Know thy Judge

“Grant of appropriate remedy is not the discretion of the judge but his obligation.

Justice must be tempered with mercy but justice cannot be substituted for mercy.”[1]

-Justice Ashok Bhushan


Born on 05-07-1956 in Jaunpur, Uttar Pradesh, Justice Bhushan graduated in Arts in the year 1975, obtained Law Degree in 1st Division from the Allahabad University in the year 1979.

He enrolled as an Advocate with the Bar Council of Uttar Pradesh on 06-04-1979 and started practice on Civil and Original side at Allahabad High Court till the elevation to the Bench.

He worked as Standing Counsel of Allahabad University, State Mineral Development Corporation Limited and several Municipal Boards, Banks & Education Institutions. He was elevated as permanent Judge of the Allahabad High Court on 24-04-2001.

He sworn in as Judge of the High Court of Kerala on 10-07-2014, and took charge as Acting Chief Justice on 01-08-2014. He had sworn in as Chief Justice on 26-03-2015. Read more

He elevated as Judge of the Supreme Court of India on 13-05-2016.

It would be an understatement that Justice Bhushan contributed to the legal field and to the country. He is known to have given various such judgments that would set major precedents for the future. The Supreme Court has acted as the guardian of the country in the ongoing pandemic and Justice Bhushan has been the most actively involved judge in dealing with the matters of public interest an importance in relation to Covid-19.

Attorney General for India KK Venugopal, the first person to speak at the farewell reference, said it was a “sad day” for the Supreme Court, he said that Justice Ashok Bhushan has issued directions to mitigate the sufferings of people during the pandemic. Solicitor General of India Tushar Mehta said “The decorum maintained by his lordship in Court, the respect shown for members of the Bar and concern for common man are exemplary. His Lordship will always be missed by the Bar and citizens of this country.”

NV Ramana, CJI said,

“Justice Bhushan reflected a “welfarist and humanistic approach” in his judgments.”[2]


NOTABLE JUDGMENTS 


Reepak Kansal v. Union of India, 2021 SCC OnLine SC 443 [Ex gratia compensation to familes of Covid victims]

After the Court was approached seeking direction to the Government to provide notified ex-gratia monitory compensation of Rs.4,00,000/- to the families of deceased who succumbed to COVID-19, the Division Bench of Ashok Bhushan and MR Shah, JJ. had issued directions asking the National Disaster Management Authority to make uniform guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19.

Read more

IN RE: Problems And Miseries of Migrant Labourers, 2021 SCC OnLine SC 441 [One Nation One ration card]

Migrant workers had been exposed to financial and other forms of hardships due to their limited access and claim to the welfare resources offered by the States/Union Territories. The migrant labourers are particularly vulnerable to the economic regression. Division Bench of Ashok Bhushan and MR Shah, JJ had issued extensive directions to ensure the welfare of the migrant labourers who have been severely affected due to the outbreak of the COVID-19 pandemic. It was reminded that,

“To provide food security to impoverished persons is the bounden duty of all States and Governments.”

Apart from directing all the States to implement “One nation, One Ration card” Scheme by July 31st, the Central Government has also been directed to develop the Portal in consultation with National Informatics Centre (NIC) for registration of the unorganized labourers/migrant workers. The registration process by all means has to commence by July 31st.

Read more

Dr. Jaishri Laxmanrao Patil v. The Chief Minister2021 SCC OnLine SC 362 [Maratha Reservation]

The Full Bench of Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ had quashed the much in debate Maratha Reservation and has held that the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 [ 2018 Act] as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhneys case.

Read more

Pravat Chandra Mohanty v. State of Odisha2021 SCC OnLine SC 81 [Custodial Violence]

In a case relating to brutal custodial violence dating back to 1985, the bench of Ashok Bhushan and Ajay Rastogi, JJ. had held that,

“The custodial violence on the deceased which led to the death is abhorrent and not acceptable in the civilized society. The offence committed by the accused is crime not against the deceased alone but was against humanity and clear violations of rights guaranteed under Article 21 of the Constitution.”

Read more

Skill Lotto Solutions v. Union of India2020 SCC OnLine SC 990 [GST on lottery/betting]

The Full Bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ had upheld the constitutionality of imposition of GST on lotteries, betting and gambling.

Read more

IN RE: The Proper Treatment Of COVID 19 Patients AND Dignified Handling of Dead Bodies in the Hospitals etc., (2021) 2 SCC 519

On 27-11-2020, the Court took suo motu cognizance of the incident which happened in Rajkot, Gujarat on 26-11–2020 resulting in death of COVID patients in the COVID Hospital. The Court also took notice of earlier incidents of fire in Covid Hospitals. Concerned with the COVID-19 pandemic spreading like a wild fire despite Guidelines and SOPs in place, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has said that a strict and stern action should be taken against those who are violating the Guidelines and SOPs, whoever he may be and whatever position the violator is occupying.

Read more

Abhilasha v. Prakash,  2020 SCC OnLine SC 736

The Full Bench of Ashok Bhushan. R. Subhash Reddy and MR shah, JJ had held that an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Hindu Adoptions & Maintenance Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of Act, 1956.

Read more

Pooran Chand v. Chancellor2021 SCC OnLine SC 47

The 3-Judge Bench of Ashok Bhushan, R. Subhash Reddy and M.R. Shah, JJ., held that the Allahabad High Court had committed an error in quashing the appointment of the appellant as Assistant Professor and reverting him to the post of Lecturer as well as in quashing the order of the Chancellor. The Bench stated,

“When the appointment of the appellant was not challenged in reasonable time as per the provisions of the Act, 2002, it is not in the ends of justice to permit respondent 4 to challenge such appointment in the High Court in writ petition for the first time, after more than four years of the appointment.”

Read more

Dipika Jagatram Sahani v. Union of India, (2021) 2 SCC 740 

The three-judge bench comprising Ashok Bhushan, R. Subhash Reddy and M.R. Shah, JJ., had addressed the petition questioning the closure of the Anganwadi Centres across the country. The Bench said,

“Government has a constitutional obligation to preserve human life.”

Read more

State of Maharshtra v. Keshao Vishwanath Sonone,  2020 SCC OnLine SC 1040

In a case where the Bombay High Court declared that tribe “Gowari” is a part of Scheduled Tribe “Gond Gowari” thereby leading to several people taking benefit of Scheduled Tribes for admissions and employment, the bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ had held that

“the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950.”

Read more

M. Siddiq v. Mahant Suresh Das, (2020) 1 SCC 1 [Ayodhya Verdict]

Justice Bhushan has been a part of the historical and much awaited judgment of the Ayodhya Temple dispute. The Full Bench of Ranjan Gogoi, CJ, S.A. Bobde, Dr. D.Y. Chandrachud, Ashok Bhushan and S. Abdul Nazeer, JJ., unanimously put an end to the Ayodhya Title dispute and held that the disputed land was to be given to Trust for construction of Ram Mandir. In an effort to balance the interest of both the parties involved, the Court directed  that a suitable plot of 5 acres must be granted to Sunni Waqf Board to set up a Mosque. The 1045 pages long ‘unanimous’ verdict was silent on who wrote it.

Read more

Interesting fact

The much famous Ayodhya verdict which is known to be a unanimous judgment, but also mentions that 1 judge out of the Bench had written a separate concurring piece however the identity of that judge was not revealed. No points for guessing that it was written by Justice Bhushan i.e. starting from para 1248.[3]

Justice Bhushan even after being involved in such controversial and important judgments has never been a part of any controversy himself, known for his constant smile and patient hearing of matters, has always been and continue to be a source of inspiration for the legal fraternity.

Did you know?

  • Justice Bhushan’s father was also recommended to be elevated as a judge but due to some unfortunate government changes etc that could not happen, but he always wished his son to be a judge and with blessings of his father he became a judge. Sadly, his father had passed away in 1998 and he took oath in 2001.
  • Justice Bhushan is great lover of literature and poetry and many of his poems have made rounds in the leading newspapers.
  • He has keen interest in cricket and football.
  • Justice Bhushan has written 258 judgements in his five year term. He has sat on a total of 779 Benches. He has authored 32% of the judgements he was on the Bench for. 22% of his judgements dealt with criminal law, while others included service (15%), civil (15%) and constitutional (10%) matters.[1]

 


†Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] https://www.youtube.com/watch?v=Zq4B7yxOmKs

[2] https://www.livelaw.in/top-stories/justice-ashok-bhushan-bids-farewell-to-supreme-court-176559

[3] https://www.youtube.com/watch?v=Zq4B7yxOmKs

[4] https://www.scobserver.in/the-desk/examining-justice-ashok-bhushan-s-5-year-term-in-numbers  

Know thy Judge

“Zero tolerance towards corruption should be the top-notch priority for ensuring system based and policy driven, transparent and responsive governance. Corruption cannot be annihilated but strategically be dwindled by reducing monopoly and enabling transparency in decision making. However, fortification of social and moral fabric must be an integral component of long-term policy for nation building to accomplish corruption free society.”

Justice Ajay Rastogi

State of Gujarat v. Mansukhbhai Kanjibhai Shah,

2020 SCC OnLine SC 412


Justice Ajay Rastogi was born on 18th June 1958 in Jaipur to Shri. Harish Chandra Rastogi. He followed the footsteps of his father and joined the bar in 1982. During the years of his practice at Rajasthan High Court, he practised in different spheres of law but was specialized in service and labour laws.

♦Did you know? Justice Ajay Rastogi’s father Late Harish Chandra Rastogi was an eminent civil lawyer in Rajasthan High Court.

Justice Rastogi took oath as a Judge in the Rajasthan High Court on 02-09-2004. He was officiated as the Administrative Judge of the Rajasthan High Court on 19-07-2014 and continued till his elevation as Chief Justice of the Tripura High Court.

After his appointment as a judge of the Rajasthan High Court, Justice Rastogi remained Executive Chairman of the State Legal Services Authority from 14-10*2013 to 18-10-2016.

♦Did you know? Under his stewardship, Rajasthan Legal Services Authority won the National Award from National Legal Services Authority for three consecutive years.[1]

Justice Rastogi was also the Acting Chief Justice of the Rajasthan High Court w.e.f. 14-04-2016 to 13-05-2016.

Justice Ajay Rastogi was recommended by the Collegium for being appointed as Chief Justice of the High Court of Tripura on February 1, 2018 and took oath on 01-03-2018. He was elevated as Judge of the Supreme Court on 02-11-2018.

♦Did you know? The collegium had superseded Justice Maheshwari in October, 2018 when it recommended the elevation of the then Chief Justice of the Tripura High Court, Justice Ajay Rastogi — originally from the Rajasthan High Court — to the Supreme Court.[2]


 Career as an Advocate


Justice Ajay Rastogi practised in the Rajasthan High Court in Constitutional, Service and Labour Laws etc. His field of specialisation was Service and Labour Law.

Justice Rastogi was nominated as the standing counsel for the Rajasthan High Court in the year 1990 and continued as such till his elevation in the year 2004. He also worked as the standing counsel for Rajasthan Financial Corporation, Jaipur, Board of Secondary Education, Rajasthan, Ajmer, and of various Banking Institutions, Electricity Board & Educational Institutions etc.[3]

Justice Rastogi was also appointed President of the Rajasthan High Court Bar Association at Jaipur in the year 1999-2000.

Justice Ajay Rastogi had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:


Notable Judgments at Supreme Court


The bench of NV Ramana and Ajay Rastogi, JJ, has agreed to examine the validity of a newly enacted law which makes the practice of instant divorce through triple talaq among Muslims a punishable offence entailing imprisonment of up to three years.[4]

V. N. Patil v. K. Niranjan Kumar, 2021 SCC OnLine SC 172

The bench of Indu Malhotra and Ajay Rastogi*, JJ., held that the aim of every Court is to discover the truth but it should be done judiciously.

The Court opined that though it is not necessary to record elaborate reasons in every case, the Courts should do so in order to facilitate the superior Courts to understand what weighed in with the Court to reverse the finding of the lower court.

“Wider the power, greater is the necessity of caution while exercise of judicious discretion”

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Rachna v. Union of India, 2021 SCC OnLine SC 140

While refusing the plea of last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 who had sought for an extra attempt to clear the exam in the wake of the COVID-19 pandemic, the bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi*, JJ held that allowing extra attempt in such a case would set a precedent and also have cascading effect on examinations in other streams.

“… merely because the present petitioners made a complaint to this Court, cannot be taken into isolation for the purpose of seeking additional chance/attempt in the backdrop of Covid-19 pandemic, which has been faced by not only the candidates appeared in Examination 2020 but by the candidates appeared in the various examinations/recruitment tests held by the State Commissions or by other recruiting agencies and by and large, every member of the society in one way or the other but that does not in any manner give legitimate right to the petitioners to claim additional benefit/attempt which is otherwise not permissible under the scheme of Rules 2020.”

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While discussing its related to issuing mandamus to frame policy, the Court held that the Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different and Courts cannot issue mandamus to frame policy.

Read More…

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Gauri Shankar v. State of Punjab, 2021 SCC OnLine SC 96

The Division Bench of Indu Malhotra and Ajay Rastogi*, JJ., confirmed punishment of life imprisonment for remainder of natural life awarded to a man accused of murdering two minor children aged 4 years and 2 years in brutal manner by administering celphos to them.

The Court observed that a trial court while sentencing an accused to life imprisonment cannot order that such imprisonment is for the remainder of his/her natural life. The power only lies in the hand of High Courts and the Supreme Court to direct the same.

 “It is true that the punishment of remainder of natural life could not have been imposed by the learned trial judge but after looking into the entire case, we consider it appropriate to confirm the sentence of imprisonment for life to mean the remainder of natural life while upholding the conviction under Section 302 IPC.”

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Sudipta Chakrobarty v. Ranaghta SD Hospital, 2021 SCC OnLine SC 107

Criticising the National Consumer Disputes Redressal Commission (NCDRC) for its practice of passing ‘reasons to follow’ orders, the bench of Indu Malhotra and Ajay Rastogi, JJ has asked the President of the NCDRC to take necessary steps so that this practice is discontinued, and the reasoned Judgment is passed along with the operative order.

The Court also observed that in all matters where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

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Soumitra Kumar Nahar v. Parul Nahar, (2020) 7 SCC 599

“In a custody battle, no matter which parent wins but the child is always the loser”

In a case involving prolonged Court battle over child custody rights, the Division bench of AM Khanwilkar and Ajay Rastogi*, JJ., held that the Courts should decide the issue of custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle.

“Rights of the child need to be respected as he/she is entitled to the love of both the parents. Even if there is a breakdown of marriage, it does not signify the end of parental responsibility.”

Read More…

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Pankjeshwar Sharma v. State of J&K, 2020 SCC OnLine SC 984

“Negative equality cannot be claimed to perpetuate further illegality”

A 3-Judge Bench comprising of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi*, JJ. held that any appointments made deviating from merit in exceptional cases can be justified, like in instant case viz. to give quietus to litigation, however such appointments would be irregular appointments, though not illegal and the candidates left out of merit list has no right to claim the same benefit which was provided to some other candidates on basis of some erroneous concession granted by the State. The Court restated that negative equality cannot be claimed to perpetuate further illegality.

“In a situation where the posts in excess of those advertised had been filled up in extraordinary circumstances, instead of invalidating the excess appointments, the relief could be moulded in such a manner so as to strike a just balance keeping the interest of the State and the interest of the person seeking public employment depends upon the facts of each case for which no set standard can be laid down.”

Read more…

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Prerit Sharma v. Bilu B.S., 2020 SCC OnLine SC 961

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ., by passing an interim order directed that there will be no reservation for to in-service doctors in Super Specialty Medical Courses for the academic year 2020-2021.

Read More…

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IN RE: CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2020 SCC OnLine SC 1026

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ., has issued directions to ensure education of children in Child Care Institutions which has suffered due to the COVID-19 pandemic.

Read more…

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State of Odisha v. Dilip Kumar Pratihari, 2020 SCC OnLine SC 603

The 3-judge bench of S.K. Kaul, Ajay Rastogi and Aniruddha Bose, JJ., in an application seeking condonation of delay of 587 days filed by State of Odisha, had imposed a cost of Rs. 50, 000 and directed that an enquiry be conducted and cost be recovered from the delinquent officer.

Read More…

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Anun Dhawan v. Union of India, 2020 SCC OnLine SC 165

Displeased with the Centre and the States on repeated failures by them to file their replies on a PIL seeking setting up of community kitchens across the country, the 3-judge bench of N V Ramana, Ajay Rastogi and V Ramasubramanian, JJ., came down heavily and imposed cost of Rs. 5 lakh on them for not complying with its directions to file their affidavits on a.

Read More…

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C. Bright v. District Collector, (2021) 2 SCC 392

The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ while upholding the Kerala High Court’s decision, held that 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. Time-limits stipulated in the section, are directory and not mandatory.

Interpreting Section 14 of the SARFAESI Act, the Court said that

“… the secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act.”

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Rekha Sengar v. State of Madhya Pradesh, 2021 SCC OnLine SC 173

“A strict approach has to be adopted if we are to eliminate the scourge of female feticide and iniquity towards girl children from our society.”

While rejecting the bail in the case where the investigative team has seized the sonography machine and made out a strong prima-facie case against the petitioner, the 3-judge bench of MM Shantanagoudar*, Vineet Saran and Ajay Rastogi, JJ held no leniency should be granted at this stage as the same may reinforce the notion that the PC&PNDT Act is only a ‘paper tiger’ and that clinics and laboratories can carry out sex-determination and feticide with impunity.

“The unrelenting continuation of this immoral practice, the globally shared understanding that it constitutes a form of violence against women, and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our Constitution are all factors that categorically establish pre­natal sex­ determination as a grave offence with serious consequences for the society as a whole.”

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Dakshin Haryana Bijli Vitran Nigam Ltd. v. Navigant Technologies Pvt. Ltd., 2021 SCC OnLine SC 157

While deciding the question as to whether the period of limitation for filing the Petition under Section 34 of the Arbitration and Conciliation Act, 1996 would commence from the date on which the draft award is circulated to the parties, or the date on which the signed copy of the award is provided, the bench of Indu Malhotra* and Ajay Rastogi, JJ., held that the period of limitation for challenging arbitral award can only commence from date of receipt of signed copy and not from the receipt of draft

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Priti Saraf v. State of NCT of Delhi, 2021 SCC OnLine SC 206

The bench of Indu Malhotra* and Ajay Rastogi, JJ, while discussing the exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC in quashing a criminal proceeding, reiterated that the existence of civil remedies by itself is not a ground to quash criminal proceedings.

The Court held that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court.

“…the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”

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BSNL v. Nortel Network India Pvt. Ltd, 2021 SCC OnLine SC 207

A bench comprising of Indu Malhotra* and Ajay Rastogi, JJ., held that the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963.

The Court opined that the period of limitation will begin to run from the date when there is failure to appoint the arbitrator. Moreover, the Court may refuse to make the reference in rare and exceptional cases, where the claims are ex facie time-barred and it is manifest that there is no subsisting dispute.

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Vikas Kishanrao Gawali v. State of Maharashtra, 2021 SCC OnLine SC 170

Deciding the issue whether reservation for OBCs can exceed upper ceiling of 50% in local elections for entirely scheduled areas, the 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., held that the total seats reserved in favour of SC/STs and OBCs in local bodies should not exceed 50 percent of the total seats.

The Court read down Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which mandated that the State should provide 27 percent reservation for OBCs as it ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution.

“The challenge to the validity of Section 12(2)(c) of the 1961 Act is negatived. Instead, that provision is being read down to mean that reservation in favor of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favor of SCs/STs/OBCs taken together.”

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Pravat Chandra Mohanty v. State of Odisha, 2021 SCC OnLine SC 81

“When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern.”

In a case where two police officers who had mercilessly beaten a man leading to his eventual death back in 1985, the Division Bench comprising of Ashok Bhushan* and Ajay Rastogi, JJ., held that Custodial violence a crime against humanity. The Court considered the fact that both the appellants were more than 75 years of age therefore reduced the sentence awarded for conviction under Section 324 IPC to six months instead of one year and directed to pay a compensation of Rs.3.5 Lakhs each to the legal heir of the deceased in addition to the compensation awarded by the High Court.

 “The custodial violence on the deceased which led to the death is abhorrent and not acceptable in the civilized society. The offence committed by the accused is crime not against the deceased alone but was against humanity and clear violations of rights guaranteed under Article 21 of the Constitution.”

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Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710

A 3-judge bench comprising of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ, in a case where abuses were hurled by a person of upper caste at a person belonging to Scheduled Caste due to a property dispute between them, held that no offence had been committed under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 because the insulting or intimidating of a person belonging to a SC/ST community will not be counted as offence under the Act unless such insult or intimidation is on account of them being a member of the SC/ST community.

 “The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste.”

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

“To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army –men and women – who serve as equal citizens in a common mission.”

In a path-breaking judgement, the Division Bench comprising of Dr. DY Chandrachud* and Ajay Rastogi, JJ has held that blanket non-consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law and violates the guarantee of equality under Article 14 of the Constitution.

The Court ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

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Union of India v. Lt. Cdr. Annie Nagaraja, 2020 SCC OnLine SC 326

“A hundred and one excuses are no answer to the constitutional entitlement to dignity, which attaches to every individual irrespective of gender, to fair and equal conditions of work and to a level playing field.”

In yet another major verdict addressing the gender stereotypes and rights of women, the Division Bench of Dr. DY Chandrachud* and Ajay Rastogi, JJ., lifted the statutory bar on the engagement or enrolment of women in the Indian Navy and directed the Centre to grant Permanent Commission to women Navy officers.

“Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are ill-suited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.”

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Hindustan Unilever Ltd. v. State of Madhya Pradesh, 2020 SCC OnLine SC 905

The 3-judge bench comprising of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ., in a case relating to the adulteration of Dalda Vanaspati Khajoor Brand Ghee dating back to 1989 wherein the company was absolved of all charges but prosecution against it’s nominated office Nirmal Sen was continued, held that in the absence of the Company, the Nominated Person cannot be convicted or vice versa i.e. either both of them are convicted or none of them.

“Since the Company was not convicted by the trial court, we find that the finding of the High Court to revisit the judgment will be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as unsustainable.”

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Umedsinh P Chavda v. Union of India, 2020 SCC OnLine SC 500

In a public interest litigation (PIL) seeking ban on sale of Coca cola, Thums Up and Soft Beverages, the 3-judge bench of Dr. DY Chandrachud, Hemant Gupta and Ajay Rastogi, JJ., has imposed a fine of Rs 5,00,000 on the petitioner for abuse of process.

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Joint Labour Commissioner and Registering Officer v. Kesar Lal, 2020 SCC OnLine SC 327

The bench of Dr. DY Chandrachud* and Ajay Rastogi, JJ has held that a service rendered at no matter how less consideration would still be a ‘service’ under Consumer Protection Act.

“So long as the service which has been rendered is not rendered free of charge, any deficiency of service is amenable to the fora for redressal constituted under the Consumer Protection Act 1986.”

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Notable Judgments at High Court


Krishna Sarkar v. Government of Tripura, 2018 SCC OnLine Tri 209

In a writ petition for the claim of compensation in a medical negligence case, Ajay Rastogi*, CJ., refused to quantify compensation on mere allegation of ‘Medical Negligence’.

“…the law will take its own course but merely on an allegation of a medical negligence it cannot be established unless the parties are being permitted to lead evidence in support of their respective claim and certainly, on the disputed question of fact of alleged medical negligence…”

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Tapas Chakraborty v. High Court of Tripura, 2018 SCC OnLine Tri 57

The Division Bench of Ajay Rastogi, C.J., and S. Talapatra, J., held that once a FIR is quashed under Section 482 CrPC, no inference should be drawn to impute any adverse antecedents which in any way may deprive an individual from seeking public employment.

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Sudhir Debbarma v. State of Tripura, 2018 SCC OnLine Tri 94

“The object of the die-in-harness scheme is to provide solace to the dependent family members of the deceased employee who have lost their breadwinner and left them to destitute and in financial crunch to be mitigated at the earliest”

In a case dealing with providing compassionate appointment and how these matters are being dealt in very insensitive or casual manner by the Government officials, Ajay Rastogi*, CJ., imposed cost of Rs. 50,000/- upon the respondents authorities in taking the matter so casually in deciding the application under the die-in-harness scheme and directed the authority to recover the same from the concerned defaulting officers who are so casual in disposing of the application.

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Abhyutthanam Society. v. State of Rajasthan, 2016 SCC OnLine Raj 1947

In a public interest litigation filed for ensuring effective implementation of the Right of Children to Free and Compulsory Education Act, 2009, the Division Bench of Ajay Rastogi*, A.C.J., and S. Talapatra, J., held that the State Government do not holding any authority to re-write the definition of Sec.2 (d) of the Right to Education Act, 2009.

The Court also directed the State government to include children belonging to OBC & SBC categories whose parents’ annual income not exceeding Rs.2.50 lakhs as part of the notification dated 28.3.2016.

Read More…

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Ganga Devi v. State, 2014 SCC OnLine Raj 1906

The Division Bench comprising of Ajay Rastogi and J.K. Ranka, JJ., while taking note of the fact that the appellant had served more than fourteen and a half years of sentence in jail without parole and that she was aged about 79 years, granted her permanent parole.

“a liberal view is to be taken at least in this particular case when admittedly, the convict-petitioner is a woman and is almost touching the age of 80 years and one never knows longevity of life but with her age, at least in this fag end of her life, she needs company of her children and so also grand children if any and spend rest of her life peacefully with them.”

Read More…

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Jayant Sharma v. State of Rajasthan, 2012 SCC OnLine Raj 3000

“The government employees have neither fundamental nor statutory or moral right to resort to strike.”

While deciding the issue whether making respondents eligible for Pre P.G. Medical Examination against seats reserved for in service category by granting extra ordinary leave without pay for 32 days period for which they remained on strike amounts to misconduct, Justice Ajay Rastogi* held that whether it amounts to misconduct or not, can only be established after the disciplinary enquiry contemplated under RCS (CCA) Rules is conducted

The Court while acknowledging that the service of the medical profession is a noble service, opined that the government employees have neither fundamental nor statutory or moral right to go on strike.

“The impact of such strikes either by students and medical community who are directly connected with the hospitals is totally different from the strike in factory or trading establishment, as the ailing patients cannot be left waiting or unattended. Hospital activity is not the same as the lifeless functioning of machines in a factory or movement of trading material or other forms of commerce where workmen are being provided certain protection under the provisions of the Industrial Disputes Act. Almost all the activities in relation to hospital are such as require constant and incessant attending and care, unlike financial losses; the loss of life or limb cannot be recouped.”


†Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

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

[2] https://theprint.in/judiciary/scs-newest-judges-had-set-aside-aap-mla-disqualification-ruled-fashion-shows-are-taxable/179680/

[3] https://thc.nic.in/FCJprofile-HAR.html

[4] https://www.scconline.com/blog/post/2019/08/23/triple-talaq-sc-issues-notice-to-centre-on-plea-challenging-the-new-law/

Know thy Judge

Born on 17-06-1958, Justice Kuttiyil Mathew Joseph studied Law at the Government Law College, Ernakulam, Kerala and got enrolled as a lawyer in 1982. He started his legal practice from the Delhi High Court in Civil and Writ matters. Later on, he shifted his practice to Kerala High Court in 1983 and became a permanent member of Kerala High Court Advocates Association. After practicing for about two decades Justice K.M. Joseph became Permanent Judge of the High Court of Kerala on 14-10-2004.[[1]]

♦Did you know? Justice K.M. Joseph is the son of K. K. Mathew, former Supreme Court judge and Chairman of the 10th Law Commission.[[2]]

He was sworn in as the Chief Justice of Uttranchal High Court on 31-07-2014. Carrying the legacy of his father Justice K.M. Joseph got elevated as the Judge of Supreme Court on 07-08-2018.

♦Did you know? Justice K.M. Joseph is among the longest tenures of a High Court Chief Justice for the Supreme Court judge.[[3]]

Justice K.M. Joseph is due to retire on 16-06-2023.


Career as an Advocate


Justice K.M. Joseph had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:

 Shanti Lal Mehta v. Union of India, 1982 SCC OnLine Del 303 

 Anirudhan v. Government of Kerala, 1999 SCC OnLine Ker 293

 State of Kerala v. T.V Anil, 2001 SCC OnLine Ker 328 

 Thomas v. Mathew N.M, 1995 SCC OnLine Ker 151

 Mathew v. Union of India,  2003 SCC OnLine Ker 12′

♦Did you know? Justice K.M. Joseph had been appointed as Amicus Curiae in Mathew Varghese v. Rosamma Varghese, when the Kerala High Court was addressing the question: Whether a Christian father is under an obligation to maintain his minor child?[[4]] 


Notable Judgments at the High Court of Kerala (2004-2014)


Kapico Kerala Resorts (P) Ltd., v. Ratheesh K.R., 2013 SCC OnLine Ker 24580

The Division Bench of K.M. Joseph and K. Harilal, JJ. had ordered to demolish the Kapico Resorts at Panavally in Nediyathuruthu, which was constructed violating Coastal Regulation Zone Rules. The Bench stated, “we cannot ignore the fact that we have also held that the island would fall otherwise in CRZ III and therein the construction would be impermissible. We also notice that in the recommendation of the committee the CRZ on the bank of filtration ponds/pokali fields of Kerala needs to be in CRZ-III. No doubt here the petitioners have a case that constructions could be regularised as it were and also it is important that at any rate property of the island was properly classified for all times”. Admittedly, the company had not sought or got permission for the construction as required under the guidelines.

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Ratheesh. K.R v. State of Kerala, 2013 SCC OnLine Ker 14359

The Division Bench of K.M. Joseph and K. Harilal, JJ., addressed the controversy involving ediyathuruthu and Vettilathuruthu, once two sleepy islands which lay nestled in the Vembanad Lake which is the longest lake in India and a backwater in the State of Kerala. Is there violation of the Coastal Regulation Zone Notifications issued in the year 1991 and 2011, and is there encroachment on puramboke land and kayal, were the questions which substantially arise for consideration. The Bench held that the Notifications issued were intended to protect the coasts, the environment in general and to achieve the sustainable development, particularly of the fisher folk and other local population. The Notifications were meant to be enforced with full vigour. Circulars had been issued to the local bodies, however, only lip service had been paid if at all to the terms of the Notifications. The Bench remarked that by such callous indifference and consequent blatant violation of the Notifications, a law which was meant to address serious environmental issues which adversely affect the present and future generations, was being completely undermined.

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K.V Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust, 2005 SCC OnLine Ker 504

The 3-judge Bench of J.B Koshy, K.M Joseph and K.R Udayabhanu, JJ., settled the questions of law referred to be decided by the Full Bench:

(i) Whether an appeal will lie against the order of a single Judge passed under Section 24 of the Code of Civil Procedure;

(ii) When such proceedings are under consideration can the learned single Judge pass interim orders; and

(iii) If interim orders are passed by the single Judge, whether appeals to the Division Bench can be filed from such interim orders.

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Rehim v. M.V Jayarajan, 2010 SCC OnLine Ker 3344

The 3-judge Bench of Chelameswar, CJ., A.K Basheer and K.M Joseph, JJ. addressed the questions regarding contempt jurisdiction of the Court and relevant procedures to be followed for the same:

(i) Whether a contempt case such as the one sought to be presented before this Court, which is not either moved by the Advocate General or by a person after duly obtaining consent of the Advocate General can be placed before the High Court on the judicial side or should it be considered by the Chief Justice on the administrative side as opined by a Division Bench of this Court in its order dated 19.2.2007 in an unnumbered Cont. Case (Crl.) of 2007 = 2007 (1) KLT 897 (One Earth One Life v. Sindhu Joy);

(ii) Whether it is competent for the Chief Justice or a Judge nominated by him thereupon to take a decision whether a contempt case should be registered and placed before the appropriate Bench for preliminary hearing…

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Self Financing Para Medical Managements Assn. v. State of Kerala, 2014 SCC OnLine Ker 28526

The Division Bench of K.M Joseph and A.K Jayasankaran Nambiar, JJ., declared that the State Government has no power to fix the fee structure in respect of the para-medical courses conducted by self financing institutions save to the limited extent of ensuring that they were not exploitative in nature and that no capitation fee was charged. It was further declared that any restriction, by the State Government, on the autonomy of the self-financing institutions in the matter of conduct of paramedical courses in the State, would be effected only through enacted law of the State legislature and not through executive orders.

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♦Did you know?  When the Collegium proposed Justice K.M. Joseph’s name  for elevation to the Supreme Court the first time it was rejected by the Union government[5]. It was only after the Collegium reiterated his name a second time that he got elevated to the Supreme Court.[[6]]


As the Chief Justice of High Court of Uttaranchal (2014-2018)


One of the most significant judgment delivered by Justice K.M. Joseph as the CJ of Uttranchal High Court was in Harish Chandra Singh Rawat v. Union of India, 2016 SCC OnLine Utt 502, wherein he had quashed the imposition of President’s Rule in 2016 by the BJP led Union government in the state of Uttarakhand. His decision in this case was of far reaching political implication as it invalidated the President’s rule imposed by the Governor and restored the Harish Rawat led Congress Government in Uttarakhand. It was one of the rare instances where the Court had restored the previous government after striking down the Governor’s rule.[[7]]


Remarkable Judgments as the Judge of Supreme Court


Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382

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.

Indicating the criteria for house arrest, the Court highlighted factors like like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody, the ability to enforce the terms of the house arrest, etc.

Read more…

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Kishorechandra Wangkhemcha v. Union of India, 2021 SCC OnLine SC 374

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.

The notice is returnable on July 12, 2021.

Read more…

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Iffco Tokio General Insurance Co. Ltd. v. Pearl Beverages2021 SCC OnLine SC 309

In an interesting case, the 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has held that while in case where there is a blood test or breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion, however, the absence of test may not disable the insurer from establishing a case for exclusion from liability on ground of drunk driving.

Read more…

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P. Mohanraj v. Shah Brother Ispat Pvt. Ltd.,2021 SCC OnLine SC 152

The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has, analysing various provisions under the Negotiable Instruments Act, the Court concluded that the proceedings under Section 138 are “quasi-criminal” in nature.

The Court held that

“a Section 138/141 proceeding against a corporate debtor is covered by Section 14(1)(a) of the IBC.”

In a 120-pages long verdict, the Supreme Court tackled the following issues to reach at the aforementioned conclusion:

Read more…

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Anglo American Metallurgical Coal Pty Ltd v. MMTC Ltd, 2020 SCC OnLine SC 1030

While settling the dispute between Anglo American Metallurgical Coal (AAMC) and MMTC Ltd, the bench of RF Nariman and KM Joseph, JJ had the occasion to explain the concept of “patent” and “latent” ambiguity and held,

“… a “patent ambiguity” provision, as contained in section 94 of the Evidence Act, is only applicable when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense.”

In the said case, the bench has set aside the decision of the division bench of Delhi High Court and has restored the Majority Award dated 12.05.2014 and the Single Judge’s judgment dated 10.07.2015 dismissing the application made under section 34 of the Arbitration Act by MMTC.

Read more…

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Paramvir Singh Saini v. Baljit Singh2020 SCC OnLine SC 983

The 3-judge bench of RF Nariman, KM Joseph and Anirudhha Bose, JJ has directed all the States and UTs to install CCTV cameras in all Police Stations and file compliance affidavits within 6 weeks.

The Court said that the directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and hence, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible.

Read more…

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Seelan v. Inspector of Police,  2020 SCC OnLine SC 1028

In a 20-year-old case relating to rape of a 6-year-old, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has dismissed the special leave petition filed by the convict, thereby rejecting the contention that since the petitioner has only one hand, it would be physically impossible to have committed an act of rape. The Court said that there is no such impossibility.

Read more…

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Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824

The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

Read more…

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Firoz Iqbal Khan v. Union of India, 2020 SCC OnLine SC 737

“An insidious attempt has been made to insinuate that the community is involved in a conspiracy to infiltrate the civil services.”

The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and KM Joseph, JJ has stayed the further telecast in continuation of or similar to the episodes which were telecast on 11, 12, 13 and 14 September, 2020 by Sudarshan news either under the same or any other title or caption. The case deals with telecast of a programme titled ‘Bindaas Bol’ on Sudarshan News which allegedly vilifies the Muslim community by portraying it to be involved in an act of terror or, as it is labeled, “jehad” in infiltrating the civil services of the nation.

Read more…


*Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] https://web.archive.org/web/20130628090239/http://www.highcourtofkerala.nic.in/kmjoseph.html

[2]https://www.scobserver.in/judges?id=justice-k-m-joseph

[3] Ibid.

[4] 2003 SCC OnLine Ker 218

[5] https://www.scconline.com/blog/post/2018/04/27/heres-why-centre-asked-the-collegium-to-reconsider-justice-km-josephs-elevation/

[6] https://indianexpress.com/article/who-is/who-is-justice-kuttiyil-mathew-joseph-5152643/

[7] https://www.scobserver.in/judges?id=justice-k-m-joseph

Know thy Judge

“Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.”

Justice L. Nageswara Rao

Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258


Born on 08.06.1957 at Chirala, Prakasam District, Andhra Pradesh, Justice L. Nageswara Rao enrolled as an Advocate at Bar Council of Andhra Pradesh in July 1982 after getting a degree in B.Com., B.L., from Nagarjuna University, Guntur, Andhra Pradesh.

Starting his practice at the District Court, Guntur, Andhra Pradesh, Justice Nageswara Rao, started practicing in the Andhra Pradesh High Court from January, 1984.

One year later, he started practicing at the Supreme Court of India and continued to do so till 2016, when he was elevated as the Supreme Court Judge.

♦Did you know? Justice Nageswara Rao is the 7th person to be elevated directly from the Bar as a Supreme Court judge.[1]

Justice Nageswara Rao also served as Additional Solicitor General of India from August 2003 to May, 2004 and again from 26.08.2013 to 18.12.2014.

He was took oath as a Judge of the Supreme Court of India on 13.05.2016.

♦Did you know? Justice Nageswara Rao was offered Supreme Court judgeship in 2014 by then Chief Justice of India RM Lodha. He had, however, turned down offer, citing personal and professional reasons.[2]

Justice Nageswara Rao is due to retire on 07.06.2022.


15 NOTABLE JUDGMENTS 


Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 3 SCC 52

The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference has held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction, after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

Read more


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

Stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7-judge bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.

Dr. D.Y. Chandrachud, J writing down the majority judgment for himself and S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageswara Rao, JJ, laid down the principles for promulgation of ordinances.

Read more


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

Giving a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s.

Justice Rao joined T.S. Thakur, CJ and Madan B. Lokur, and S.A. Bobde, JJ to give the majority verdict in the 4:3 verdict, while Dr. D.Y. Chandrachud, Adarsh K. Goel and U.U. Lalit, JJ dissented.

Read more


 Jaishri Laxmanrao Patil v. The Chief Minister, 2021 SCC OnLine SC 362

The 5-judge bench of Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ quashed the much in debate Maratha Reservation and has held that the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 [ 2018 Act] as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney[1]’s case.

Read more


Madras Bar Association v. Union of India, 2020 SCC OnLine SC 962

The 3-judge bench of L. Nageswara Rao*, Hemant Gupta and S. Ravindra Bhat has issued extensive directions in 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.

Read more


C. Bright v. District Collector, (2021) 2 SCC 392

The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has upheld Kerala High Court’s decision holding that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) mandating the District Magistrate to deliver possession of a secured asset within 30 days, extendable to an aggregate of 60 days upon reasons recorded in writing, is a directory provision.

Interpreting Section 14 of the SARFAESI Act, the Court said that

“… the secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act.”

Read more


Rupali Devi. State of Uttar Pradesh,  (2019) 5 SCC 384

The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and SK Kaul, JJ held that woman driven out of matrimonial home can file case under Section 498-A from the place she has taken shelter at. The bench said,

“the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”

Read more


Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710

In a case where abuses were hurled by a person of upper caste at a person belonging to Scheduled Caste due to a property dispute between them, the 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that no offence under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out as the allegations of hurling of abuses is against a person who claims title over the property and not on account of them being a member of the Scheduled Caste.

“The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste.”

Read more


Narendra v. K. Meena, (2016) 9 SCC 455

Dealing with the case where the husband had sought divorce from his wife on the ground that she was forcing him to leave his parents as he was proving them financial support, the Court said that in a Hindu society, it is a pious obligation of the son to maintain the parents.

The Bench of A.R. Dave and L. Nageswara Rao, JJ added that no son would like to be separated from his old parents and other family members, who are also dependent upon his income, the Court also said that the persistent effort of the wife to constrain the husband to be separated from the family would be torturous for the husband and will constitute as an act of ‘cruelty’.

Read more


State of Tamil Nadu v. K Balu, (2017) 2 SCC 281

While stressing upon the alarming statistics on the occurrence of road accidents due to drunken driving the Full Bench comprising of T.S. Thakur, CJ., D.Y. Chandrachud, L Nageswara Rao, JJ. prohibited all States and Union Territories from granting licenses for the sale of liquor along national and state highways.

In 2007, Ministry of Road Transport and Highways had issued a circular to all the State Governments advising them to remove liquor shops situated along national highways and not to issue fresh licenses. Moreover, the Union Government had formulated for adoption by the States a Model Policy, which provided for a minimum distance from the state/national highways for locating liquor shops. However, an exception was carved out to the effect that the national or state highways would not include such parts of them as are situated within the limits of local authorities.

Read more


Haji Ali Dargah Trust v. Dr. Noorjehan Safia Niaz, (2016) 16 SCC 788

Giving the Haji Ali Dargah Trust two weeks’ time to restore status-quo ante in regard to women pilgrims entering the sanctum sanctorum at par with men, the 3-Judge Bench of T. S. Thakur, C.J.  and D. Y. Chandrachud and L. Nageswara Rao, JJ said that in case there is any default or neglect on the part of the Trust in complying with the direction of the Bombay High Court, the respondents-writ petitioners shall be free to approach the High Court for appropriate redress in the matter.

Read more


IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS, 2021 SCC OnLine SC 329

After noticing common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes, the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and S. Ravindra Bhatt, JJ has directed all High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months.

Read more


In Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881, 2021 SCC OnLine SC 325

Noticing that the summary trials of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 are being routinely converted to summons trials in a “mechanical manner”, the Constitution bench of SA Bobde, CJ and L. Nageswara Rao, BR Gavai, AS Bopanna and S. Ravindra Bhat, JJ has directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

Read more


Dahiben v. Arvindbhai Kalyanji Bhanusali, 2020 7 SCC 366

The 2-judge bench of Indu Malhotra and L Nageswara Rao, JJ has held that even when the entire sale consideration has not been paid, it could not be a ground for cancellation of the Sale Deed.

The Court relied on the it’s verdict in Vidyadhar v. Manikrao, (1999) 3 SCC 573, wherein it was held that non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a “sale”, the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.

Read more


Anjan Kumar Sharma v. State of Assam, (2017) 14 SCC 359

The bench comprising of L.Nageswara Rao and Navin Sinha, JJ. held that in the absence of conclusive and consistent proof of circumstantial chain of evidence which lead to the only “hypothesis of guilt” against the accused then, only circumstance of last seen cannot be made basis of conviction.

Read more


[1]Emerging trends in judgment writing introduced by Justice L Nageswara Rao, by Sameer, Updated: 18th August 2020, https://www.siasat.com/emerging-trends-in-judgment-writing-introduced-by-justice-l-nageswara-rao-1951146/

[2] L Nageswara Rao recommended for the post of SC judge, by Utkarsh Anand, May 5, 2016, https://indianexpress.com/article/india/india-news-india/l-nageswara-rao-recommended-for-the-post-of-sc-judge-2784921/

Know thy JudgeObituariesOP. ED.

“An irreducible core of right to life is “dignity”. Right to human dignity comes in different shades and colours. (…) The right to dignity of an accused does not dry out with the Judges’ ink, rather, it subsists well beyond the prison gates and operates until his last breath.”

-Justice MM Shantanagoudar

‘X’ v. State of Maharashtra, (2019) 7 SCC 1


Born on 5th May, 1958, Justice Shantanagoudar enrolled as an Advocate on 05.09.1980 and practiced mainly in Civil, Criminal and Constitutional matters.

He also served as Vice-Chairman of Karnataka State Bar Council from 1991 to 1993 and as Chairman of Karnataka State Bar Council during 1995 and 1996 and later served as State Public Prosecutor of Karnataka State from 1999 to 2002.

He was then appointed as Additional Judge of the Karnataka High Court on 12.05.2003 and as Permanent Judge on 24.09.2004. He was also the President of Bangalore Mediation Centre and Karnataka Judicial Academy.

He assumed charge as Acting Chief Justice of the Kerala High Court on 01.08.2016 and was then sworn in as the Chief Justice on 22.09.2016. Read more…

He was elevated as Judge of the Supreme Court of India on 17th February, 2017. Read more…

Justice Shantanagoudar, who left for heavenly abode on April 24, 2021, left behind a legacy of significant rulings.

Let’s remember him through some of his notable judgments as a Supreme Court judge:

Bhima Razu Prasad v. State, 2021 SCC OnLine SC 210

The bench of MM Shantanagoudar* and Vineet Saran, JJ has held that Section 195(1)(b)(i) CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193 IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 193, IPC prior to commencement of proceedings and production of such evidence before the trial court. In such circumstance, the same would not be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i) CrPC.

Read more


High Court of Judicature at Madras Rep. by its Registrar General v. MC Subramaniam, 2021 SCC OnLine SC 109

The bench of MM Shantanagoudar* and Vineet Saran, JJ has held that Section 89 of CPC and Section 69-A of Tamil Nadu Court Fees and Suit Valuation Act, 1955 contemplate the refund of court fees in all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at and not just to those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC.

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Amitabha Dasgupta v. United Bank of India, 2021 SCC OnLine SC 124

In a case where United Bank of India inadvertently broke the Appellant’s locker, without any just or reasonable cause, even though he had already cleared his pending dues, the bench of MM Shantanagoudar* and Vineet Sarana, JJ Imposed costs of Rs. 5,00,000/­ on the Bank to be paid to the Appellant as compensation. The said is to be deducted from the salary of the erring officers, if they are still in service and if they have already retired, the amount of costs should be paid by the Bank. Additionally, the Appellant shall be paid Rs. 1,00,000/- as litigation expense.

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M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence,  (2021) 2 SCC 485

Interpreting Section 167(2) CrPC, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Sarah, JJ has said that the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. It said,

“The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”

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Krishna Lal Chawla v. State of U.P., 2021 SCC OnLine SC 191

The bench of Justice Shantanagoudar and Justice R. Subhash Reddy held that the Trial Judge has a duty under the Constitution and the CrPC, to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the fullest extent, the powers conferred on him.

“Frivolous litigation should not become the order of the day in India. From misusing the Public Interest Litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the justice delivery system should not be used as a tool to fulfil personal vendetta.“

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Rekha Muraka v. State of West Bengal, (2020) 2 SCC 474

Dealing with the question relating to the extent to which a victim’s counsel can participate in the prosecution of a case, the bench of MM Shantanagoudar and Deepak Gupta, JJ has held that the victim’s counsel is subject to the directions of the Public Prosecutor and that the victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross­examine witnesses.

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‘X’ v. State of Maharashtra, (2019) 7 SCC 1

The 3-judge bench of NV Ramana, MM Shantanagoudar and Indira Banerjee, JJ held

“it needs to be understood that prisoners tend to have increased affinity to mental illness. Moreover, due to legal constraints on the recognition of broad­spectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentally­ill prisoners of various degrees. There is no overlooking of the fact that the realities within the prison walls may well compound and complicate these problems.”

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Rekha Sengar v. State of Madhya Pradesh, 2021 SCC OnLine SC 173

In the case where the investigative team has seized the sonography machine and made out a strong prima-facie case against the petitioner, the 3-judge bench of MM Shantanagoudar, Vineet Saran and Ajay Rastogi, JJ held no leniency should be granted at this stage as the same may reinforce the notion that the PC&PNDT Act is only a paper tiger and that clinics and laboratories can carry out sex-determination and feticide with impunity.

“A strict approach has to be adopted if we are to eliminate the scourge of female feticide and iniquity towards girl children from our society.”


Laltu Ghosh v. State of West Bengal, (2019) 15 SCC 344

The bench of MM Shantanagoudar and Dinesh Maheshwari, JJ has held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. It was held that:

“A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.”

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Mohammed Salim v. Shamsudeen,  (2019) 4 SCC 130

The bench of NV Ramana and MM Shantanagoudar, JJ, on the issue relating to legality of the marriage of a Muslim man with an idolater or fireworshipper, said that such marriage “is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage.”

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Indore Development Authority v. Shailendra,  (2018) 3 SCC 412

In the case where the Court was deciding the issue relating to interpretation of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and section 31 of the Land Acquisition Act, 1894, the 3-judge bench of Arun Mishra, AK Goel and MM Shantanagoudar, JJ held that Non-deposit of compensation under Section 31 of LA Act, 1894 does not result in lapse of acquisition under 2013 Act.

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Commr. of Customs v. Dilip Kumar and Co.,   (2018) 9 SCC 1

A five-Judge Constitution Bench speaking through N.V. Ramana, J., while invalidating the ratio of Sun Export Corpn. v. Collector of Customs(1997) 6 SCC 564, laid at rest the controversy regarding the interpretation of an ambiguous provision exempting tax. The Bench comprised of Ranjan Gogoi, N.V. Ramana, R. Banumathi, M.M. Shantanagoudar and S. Abdul Nazeer, JJ.

Read more


 

Hot Off The PressNews

As per several news reports, Former Supreme Court Judge Surinder Singh Nijjar passed away due to cardiac arrest. Let’s have a brief look at his journey from being an Advocate to a Supreme Court Judge.

Profile | Justice S.S. Nijjar 

Former Supreme Court Judge, Surinder Singh Nijjar was born on June 7, 1949.

Educational Background

Justice Nijjar had obtained his education in England from the age of 12 years and obtained an LL.B Degree from the University of London in 1972 and did Bar-at-Law from Middle Temple Inn, London in the year 1975.

Career as an Advocate

He practised law in England from 1975 to 1977 and was Enrolled as an Advocate of the Punjab & Haryana High Court on April 28, 1977.

Later, he continued his practise in the District Courts at Chandigarh, Departmental Authorities, Central Administrative Tribunal, set up in Chandigarh in the year 1985.

He specialized in Constitutional and Writ matters and was Standing Counsel to numerous Nationalised Banks, Government Corporations, Universities and had considerable work in the field of Service and Industrial Law.

Senior Advocate

In November 1989 he was designated as a Senior Advocate.

Additional Advocate General

Punjab Government appointed him as an Additional Advocate General on October 13, 1995.

Additional Judge

 On April 8, 1996, he was elevated to the Bench of Punjab and Haryana High Court, Chandigarh as an Additional Judge.

Later, he was transferred as an Additional Judge of the Bombay High Court on April 26, 1996, and was appointed Puisne Judge of the High Court at Bombay on April 3, 1998.

Again in the year, 2000 he was transferred back to the High Court of Punjab & Haryana, Chandigarh and assumed charge on August 7, 2000.

Chairman of Advisory

He was also appointed as Chairman of Advisory/NSA Board of Punjab on 7.2.2006. Remained as Acting Chief Justice of Punjab & Haryana High Court, Chandigarh w.e.f. 3.10.2006 to 28.11.2006.

Executive Chairman of Punjab State Legal Services Authority

On 3.11.2006 he was appointed as the Executive Chairman of Punjab State Legal Services Authority.

From Chief Justice of Calcutta High Court to Supreme Court Judge

Justice Nijjar assumed the charge of the office of the Chief Justice of the Calcutta High Court on March 7, 2007, and elevated as a Judge of the Hon’ble Supreme Court of India on November 17, 2009.

After Retirement

Unanimously elected as a Master of the Bench (Bencher), the Hon’ble Society of the Middle Temple, London on October 11, 2011. Appointed as Chairman, Mediation and Conciliation Project Committee of Supreme Court in 2012. Retired on 06.06.2014.


Background taken from the Official website of the Supreme Court of India.

Justice S.S. Nijjar has been a part of some very interesting and landmark cases covering the Black Money Case filed by the eminent jurist Ram Jethmalani to the killing of Hemant Karkare, head of Maharashtra Police’s anti-terrorist squad (ATS), during the 2008 Mumbai terror attack.

Know thy Judge

“The ADR system has root in panchayat system, we are revitalizing the system by introducing with scientific system. In Industrial Dispute Act, Hindu Marriage Act, Family Courts Act the provision for settling the disputes was there before introduction of Section 89 in civil code. There should be effort to find out cases where there is possibility of settlement of cases.”

-Justice R. Subhash Reddy[1]


Justice Ramayyagari Subhash Reddy was born on January 05, 1957. He graduated from Andhra Vidyalaya College (AV College), Hyderabad and obtained his Law Degree from the University College of Law, Osmania University, Hyderabad.

Justice Reddy enrolled as an Advocate on 30-10-1980 in Bar Council of Andhra Pradesh. As an Advocate he joined the Chambers of Sri Justice B. Subhashan Reddy. He practised for 22 years and was specialised in constitutional law. He was Standing Counsel for premier institutions like S.V.University and Jawaharlal Nehru Technological University.

On 02-12-2002, Justice Reddy was elevated as an Additional Judge of the Andhra Pradesh High Court and a Permanent Judge of the Andhra Pradesh High Court on 24-06-2004. He was elevated as Chief Justice of High Court of Gujarat on 13-02-2016 and was elevated as Judge of Supreme Court of India on 2-11-2018.

♦Did you know? Justice Reddy is the first judge from Telangana to become an SC judge after the state was carved out from Andhra Pradesh.


Notable Judgments


Kantaru Rajeevaru (Right to Religion, In re-9 J.) v. Indian Young Lawyers Assn., (2020) 2 SCC 52

The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, while framing seven issues in the Sabrimala reference, opined that the same can be refered to a larger bench in its Review jurisdiction.

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Shah Faesal v. Union of India, (2020) 4 SCC 1

In a writ petition filled under Article 32 of the Constitution of India pertaining to two Constitution Orders issued by the President of India in exercise of his powers under Article 370 of the Constitution of India, a Full judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ, held that no cause was made out to refer the matter to a larger bench as there is no conflict between the judgments in the Prem Nath Kaul v. State of J & K, AIR 1959 SC 749 and the Sampat Prakash v. State of J & K, AIR 1970 SC 1118. The Court observed that

“… judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning.”

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Pravakar Mallick v. State of Orissa, 2020 SCC OnLine SC 375

A Division bench headed by Justice Reddy, determining the validity of a resolution passed by the Government of Orissa in 2002 providing consequential seniority to certain government servants belonging to the SC/ST communities, followed the law laid down in Jarnail Singh v. Lachhmi Narain Gupta: 2018 SCC OnLine SC 635, B.K. Pavitra v.Union of India: (2019) 16 SCC 229 and M. Nagaraj v. Union of India: (2006) 8 SCC 212 and opined that although Article 16(4A) of the Constitution of India enables the states to extend the benefit of promotion with consequential seniority, the same has to be done upon examining the adequacy of representation in the state services as indicated by Article 335 of the Constitution of India.

The Court upheld the Odisha High Court judgement which had quashed the impugned resolution which provided for reservation in promotion.


Nand Kishore v. State of M.P., (2019) 16 SCC 278

A 3-judge bench comprising of SA Bobde, L Nageswara Rao and R. Subhash Reddy JJ., while deciding whether the petitioner’s case fell into the ‘rarest of rare’ category requiring death penalty, commuted the death sentence into life imprisonment of 25 years without remission which was confirmed by the Madhya Pradesh High Court for rape and murder of an eight-year-old girl.

The Court observed that

“We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section 354(3) of the Cr.PC to impose death penalty on the accused. Taking into account the evidence on record and the totality of the circumstances of the case, and by applying the test on the touchstone of case law discussed above, we are of the view that the case on hand will not fall within the ‘rarest of rare’ cases.”


Ravi v. State of Maharashtra, (2019) 9 SCC 622

“A civic society has a `fundamental’ and `human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements.”

A 3-judge bench comprising of R. F. Nariman, Surya Kant and R. Subhash Reddy JJ., following the judgment in the case of California v. Ramos, 463 U.S. 992 where it was observed that “qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination” and upheld (2:1) the death penalty awarded to an accused for rape and murder of a two- year old girl.

The Court observed that the Sentencing Policy needs to strike a balance between (a) deterrent effect and (b) complete reformation for integration of the offender.

 “The Legislature has impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12years without murder of the victim, `death penalty’ can also be imposed.”

The Court shedding the light on duty of the Court and expectation of the people of the country, observed that

“The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterent punishment that commensurate(s) with the gravity of offence.”

Justice R. Subhash Reddy in his dissenting judgment noted that “I am of the view that, this is not a fit case where the appellant is to be awarded capital punishment, i.e, death penalty”. According to him the mitigating circumstances of the Appellant dominated the aggravating circumstances and that there is no proof to show that reform or rehabilitation of the convict is not possible. Moreover, the conviction is solely based on circumstantial evidence, if no special reasons exist, the extreme punishment of death penalty should not be imposed.

Relaying on the judgement in the case of Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 and Bachan Singh v. State of Punjab, (1979) 3 SCC 727, Justice Reddy observed that

“In the aforesaid judgment, while considering the scope of Section 235(2) read with Section 354(3) of the Code of Criminal Procedure, this Court has held that, in fixing the degree of punishment or in making the choice of sentence for various offences, including one under Section 302 IPC, the Court should not confine its consideration “principally or merely” to the circumstances connected with the particular crime, but also due consideration to the circumstances of the criminal. However, it is observed that, what is the relative weight to be given to the aggravating and mitigating factors, depends on facts and circumstances of each case.”

Read More…


Ishwari Lal Yadav v. State of Chhattisgarh, (2019) 10 SCC 437

“There cannot be any hard and fast rule for balancing the aggravating and mitigating circumstances. Each case has to be decided on its own merits.”

A 3-judge bench comprising of R. F. Nariman, Surya Kant and R. Subhash Reddy JJ., placing reliance on the case of Sushil Murmu v. State of Jharkhand: (2004) 2 SCC 338, opined that this case fulfils the test of rarest of rare cases as it involved gruesome murder for human sacrifice of 2 yr old boy.

Justice Reddy observed that

“Having regard to age of the accused, they were not possessed of the basic humanness, they completely lacked the psyche or mindset which can be amenable for any reformation.”

The Court also placed emphasised on extra-judicial confession and opined that

“It is true that extrajudicial confession, is a weak piece of evidence but at the same time if the same is corroborated by other evidences on record, such confession can be taken into consideration to prove the guilt of the accused.”


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

“Liberty and security have always been at loggerheads. The question before us, simply put, is what do we need more, liberty or security?”

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

The Court held that the freedom of speech and expression and freedom to carry on any trade, business or occupation over the medium of internet is embodied under Article 19(1)(g) of the Constitution.

The Court also observed that suspension of the internet should only be for a reasonable duration and periodic review should be done on it. The Prohibitory orders  passed under Section 144 CrPC cannot be imposed to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.

“As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always.”

Read More…


Janhit Abhiyan v. Union of India, 2020 SCC OnLine SC 624 [EWS Reservation]

“…deciding any case involving a substantial question of law as to interpretation of the Constitution it is to be heard by a Bench of five Judges.”

Without looking into the merit of the case on the validity of impugned amendments i.e. Constitution (One Hundred and Third Amendment) Act, 2019 which provides for grant of 10% quota to Economically Weaker Sections (EWSs) in jobs and admissions in the general category, a 3-judge bench comprising of S.A. Bobde CJ., R. Subhash Reddy and B.R. Gavai JJ., only examined whether the petitions involve a substantial question of law or not.

The Court held that the said amendments run contrary to the judgement in case of  Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 as it exceeds the ceiling cap of 50%, therefore, involves a substantial question of law which is to be examined by a Bench of 5-Judges as per Article 145(3) of the Constitution of India read with Order XXXVIII Rule 1(1) of the Supreme Court of Rules, 2013.

“Whether the impugned Amendment Act violates basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law within the meaning of the provisions as referred above. Further, on the plea of ceiling of 50% for affirmative action, it is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections.”

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Shankar Sakharam Kenjale v. Narayan Krishna Gade, 2020 SCC OnLine SC 371

“Once A Mortgage, Always A Mortgage”

Dismissing the appeal, a Division bench of Mohan M. Shantanagoudar and R. Subhash Reddy JJ., upheld the judgment of High Court of Judicature at Bombay directing the Trial Court to produce a preliminary decree of redemption of mortgage in favour of the Respondents.

The Court relying on the judgment in the case of Jayasingh Dnyanu Mhoprekar v. Krishna Babaji Patil, (1985) 4 SCC 162 and Namdev Shripati Nale v. Bapu Ganapati Jagtap, (1997) 5 SCC 185, held that

“right of redemption under a mortgage deed can come to an end or be extinguished only by a process known to law, i.e., either by way of a contract between the parties to such effect, by a merger, or by a statutory provision that debars the mortgagor from redeeming the mortgage.”


Foundation for Media Professionals v. UT of J&K, (2020) 5 SCC 746

“National security concerns and human rights must be reasonably and defensibly adjusted with one another, in line with the constitutional principles.”

A 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai JJ., observed that

“While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a world wide pandemic and a national lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored.”

and directed the constitution of a Special Committee comprising Secretaries of the Union Ministry of Home Affairs and Department of Communications, Ministry of Communications and the Chief Secretary of Jammu & Kashmir to review 4G connectivity in Jammu & Kashmir as 2G service available in the Union Territory is not sufficient for education and business purposes.

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Abhilasha v. Parkash, 2020 SCC OnLine SC 736

“The maintenance as contemplated under Act, 1956 is a larger concept as compared to concept of maintenance under Section 125 CrPC.”

A 3-judge bench of Ashok Bhushan, R Subash Reddy and MR Shah, JJ., held that an unmarried Hindu daughter can claim maintenance from her father till she is married, relying on Section 20(3) of the Hindu Adoptions & Maintenance Act, 1956, provided she pleads and proves that she is unable to maintain herself.

“The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law, which can very well be enforced by her against her father.”

The Court upheld the order of the Judicial Magistrate First Class as well as learned Additional Magistrate because the application was filed under Section 125 CrPC and while deciding proceedings under Section 125 CrPC, Judicial Magistrate First Class could not have exercised the jurisdiction under Section 20(3) of Act, 1956.

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Praneeth K  v. University Grants Commission, 2020 SCC OnLine SC 688

While upholding the validity of the revised University Grants Commission (UGC) guidelines dated July 6, 2020, a 3-judge bench of Ashok Bhushan, R Subhash Reddy and MR Shah, JJ., held that the State/State Disaster Management Authority’s decision to promote the students in the final year/terminal semester on the basis of previous performance and internal assessment is beyond the jurisdiction of Disaster Management Act, 2005 and they cannot promote students without holding final year university examinations amid the COVID-19 pandemic.

“When the State Disaster Management Authority and State Government take a decision that for mitigation or prevention of disaster it is not possible to hold physical examination in the State, the said decision was within the four corners of Disaster Management Act, 2005. However, the decision of the Disaster Management Authority or the State Government that students should be promoted without appearing in the final year/terminal semester examination, is not within the domain of the Disaster Management Act, 2005.”

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Rakesh Kumar Agarwalla v. National Law School of India University, Bengaluru, 2020 SCC OnLine SC 761

“Different National Law Universities have been established by different statues and have statutory functions and obligations to achieve a common purpose and to give a boost to legal education in the country.”

A 3-judge bench of Ashok Bhushan, R Subhash Reddy and MR Shah, JJ., quashed the National Law Aptitude Exam (NLAT) conducted by National Law School of India University (NLSIU), Bengaluru and directed the admission of students in NLSIU has to be necessarily through Common Law Admission Test (CLAT).

“CLAT being an All India Examination for different National Law Universities has achieved its own importance and prominence in legal education. The steps taken by National Law Universities to form a Consortium and to cooperate with each other in conduct of CLAT is towards discharge of their public duty entrusted under the different statutes. The duty to uphold its integrity lies on the shoulder of each and every member.”

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Pravasi Legal Cell v. Union of India, 2020 SCC OnLine SC 799

“We cannot lose sight of the present situation prevailing in the country and across the globe”

A 3-judge bench of Ashik Bhushan, R. Subhash Reddy, JJ observed that “Strict enforcement of Civil Aviation Requirements at this moment may not yield any meaningful result for any stake holder” and directed refund of air-fare during the lockdown period, when domestic and international flights’ operation was suspended.

Read More…


Thingujam Achouba Singh v. H. Nabachandra Singh, 2020 SCC OnLine SC 370

“The eligibility criteria will be within the domain of the employer and no candidate can seek as a matter of right, to provide relaxation clause.”

A Division Bench headed by R. Subhash Reddy J., while quashing the order of the High Court of Manipur by which the advertisement dated 16.08.2016 was quashed, held that to provide relaxation clause in eligibility criteria is within the domain of the employer and High Court has not power to provide a relaxation which is not notified in the advertisement.

“While it is open for the employer to notify such criteria for relaxation when sufficient candidates are not available, at the same time nobody can claim such relaxation as a matter of right.”


A.M.C.S. Swamy v. Mehdi Agah Karbalai, 2019 SCC OnLine SC 899

A Division Bench presided by R. Subhash Reddy J., held that Special Court under the Electricity Act, 2003 can take cognizance of the offence under Section 151 of the Act which is otherwise prohibited under Section 193 of the Code of Criminal Procedure, 1973.

“When there is express provision in the Special Act empowering the Special Court to take cognizance of an offence without the accused being committed, it cannot be said that taking cognizance of offence by Special Court is in violation of Section 193 of the Code of Criminal Procedure, 1973.”


XYZ v. State of Gujarat, (2019) 10 SCC 337

“Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record.”

A 3-judge bench of UU Lalit, Indu Malhotra and R. Subhash Reddy, JJ, hearing an appeal against the verdict of Gujarat High Court that quashed the criminal proceedings against a man accused for sexually assaulting and blackmailing his employee, held that exercise of inherent powers of High Court under Section 482 of Criminal Procedure Code, 1973 to quash FIR, when there are serious triable allegations in complaint is bad in law.

Justice Reddy opined that

“where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.”

Read More…


*Editorial Assistant – Trainee, EBC Publishing Pvt. Ltd. 

[1] SESSION 9 – ADR Mechanism and Role of Judges, Regional Judicial Conference on Strengthening Justice Delivery System: Tools & Techniques, Organized by Hon’ble High Court of Karnataka, Karnataka Judicial Academy and National Judicial Academy 27th February, 2015 to 1st March, 2015,

Know thy Judge

“Planned development of the city is a sine qua non for its health and growth, given the rapid increase in population of the city on account of influx of thousands of people from other parts of the country.”

Vinayak House Building Cooperative Society Ltd. v. State of Karnataka,

2019 SCC OnLine SC 1092

Justice S. Abdul Nazeer was born on January 05, 1958. He studied law in Sri Dharmasthala Manjunatheshwara Law College, Mangalore and was enrolled as an advocate on 18.02.1983. He practiced for 20 years in the Karnataka High Court. He was appointed as an additional judge of the Karnataka High Court on May 12, 2003 and was made a permanent judge in September 2004. He was elevated as a judge of the Supreme Court on February 17, 2017.

♦Did you know? Justice S. Abdul Nazeer is the third judge to be directly elevated to the Supreme Court without serving as a Chief Justice of a High Court. 


Notable Judgement at Supreme Court


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

“The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future.”

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

Read More


Kantaru Rajeevaru (Right to Religion, In re-9 J.) v. Indian Young Lawyers Assn., (2020) 2 SCC 52

The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, while framing seven issues in the Sabrimala reference, opined that the same can be refered to a larger bench in its Review jurisdiction. 

Read More


Siddiq (Ram Janmabhumi Temple-5 J.) v Suresh Das, (2020) 1 SCC 1

“The court does not decide title on the basis of faith or belief but on the basis of evidence.”

The 5-judge bench of Ranjan Gogoi, CJ, S.A. Bobde, Dr. D.Y. Chandrachud, Ashok Bhushan and S. Abdul Nazeer, JJ, held that the Court must ensure that a wrong committed must be remedied. It was further held that the Court cannot entertain or enforce rights to the disputed property solely based on the existence of an underlying temple dating to the 12th Century AD. Even though the Hindus were able to establish possessory title to the disputed property on a preponderance of probabilities, justice would not prevail if the Court overlook the entitlement of the Muslims. 

“The law provides us with parameters as clear but as profound as ownership and possession. In deciding title to the disputed property, the court applies settled principles of evidence to adjudicate upon which party has established a claim to the immovable property.”

Read More… 

Justice Nazeer who was on the 3 judge bench comprising of Dipak Misra, CJ., Ashok Bhushan, J. and himself hearing an appeal to the Ayodhya title dispute [M. Siddiq v. Suresh Das, (2019) 18 SCC 631], dissented with the majority judgment on one point that a mosque is not an essential feature of Islam and stated that the following issues need to be referred to Constitutional Bench:

“(a) Whether in the light of Shirur Mutt and other aforementioned cases, an essential practice can be decided without a detailed examination of the beliefs, tenets and practice of the faith in question?

(b) Whether the test for determining the essential practice is both essentiality and integrality?

(c) Does Article 25, only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential?

(d) Do Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken?” 


Bir Singh v. Delhi Jal Board, (2018) 10 SCC 312

“Division of Society based on birth and the calling/profession of a person has continued to dominate Hindu thinking and way of life and is perhaps some of the thorny problems inherited by the British Administration which had tried to resolve the same by giving legal recognition to what came to be termed as the “depressed classes”.

A 5-judge bench of Ranjan Gogoi, N.V. Ramana, R. Banumathi, M.M. Shantanagoudar, S. Abdul Nazeer, JJ., while deciding the issue whether a person belonging to a Scheduled Caste in a particular State would be entitled to benefits\concessions in relation to employment mater which are allowed to Scheduled Caste candidate in any other State, held that person belonging to SC/ST in one State cannot be deemed to be SC/ST person in any other State of purpose of employment or education.

“A person who is recognised as a member of Scheduled Castes/Scheduled Tribes in his original State, will been titled to all the benefits of reservation under the Constitution in that State only and not in other States/Union Territories and not entitled to the benefits of reservation in the migrated State/Union Territory.”

The Court emphasizing on the federal nature of the Constitution of India, discussed about the importance of constitutional provisions relating to services and observed that 

“The federal nature of the Constitution finds broad manifestation in two principal areas i.e. division of legislative power and exercise thereof by the Union and the constituent States and secondly, which is more relevant and important to the subject in hand, is the constitutional provisions relating to services under the Union and the States as dealt with in Part XIV of the Constitution.”

Read More… 


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

“What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

A Constitution Bench of the Supreme Court has held by 3:2 majority that the practice of Triple Talaq is unconstitutional and violative of Articles 14 and 15 of the Constitution. 

The Bench comprising of  JS Khehar, CJI ., Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and Abdul Nazeer, JJ. held that the Triple Talaq is manifestly arbitrary because in this form of Talaq “the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it”. Therefore, Triple Talaq is in violation of Article 14 of the Constitution of India.

Justice Nazeer and the then Chief Justice Khehar dissented with the majority judgement upholding the constitutionality of Triple Talaq. They observed that 

“Muslim ‘personal law’ – ‘Shariat’ is not based on any State Legislative action, we have therefore held, that Muslim ‘personal law’ – ‘Shariat’, cannot be tested on the touchstone of being a State action.”

According to them the authority to strike down law on Triple Talaq is with the Parliament and not with the Supreme Court and they directed the Parliament to draft a law on Triple Talaq and proposed placing an injunction on it for six months, until the Parliament’s decision.

Read More


Mahender Chawla v. Union of India, (2019) 14 SCC 615 [Witness Protection Scheme, 2018]

“In search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the face of justice, encircled by devils of humanity and compassion.”

“Witnesses are eyes and ears of justice”

– Bentham

A Division Bench comprising of A.K. Sikri and S. Abdul Nazeer, JJ. while emphasizing on the role of witness in decision making process 

“The witnesses, thus, play a vital role in facilitating the court to arrive at correct findings on disputed questions of facts and to find out where the truth lies. They are, therefore, backbone in decision making process.”

observed that the conditions of witnesses in Indian Legal System has become ‘pathetic’. It has become frequent happening were witnesses have suffered traumatic experience and turned hostile. Thus, creating problems of low convictions which is a serious blow criminal justice system. There is a paramount need to have witness protection scheme.

The Court after considering various authorities cited as well as Witness Protection Scheme, 2018 gave certain directions to be followed by the Government.

Read More…


Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1

 “The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcener as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.”

The 3-judge bench of Arun Mishra, S.A. Nazeer and M.R. Shah, JJ., held that daughter’s right in coparcenary property is by birth and it is not necessary that the coparcener father should be living when the Hindu Succession (Amendment) Act, 2005 came into force. If the daughter is alive on the date of enforcement of (Amendment) Act, 2005, she becomes a coparcener with effect from date of Amendment. 

“It is by birth that interest in the property is acquired… Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise.”

Read More…


Bharati Reddy v. State of Karnataka, (2018) 12 SCC 61

“Power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded.”

A Division bench headed by Justice S. Abdul Nazeer, while allowing the writ petition Panchayat challenging the election of the Adhyaksha of the Zilla Panchayat filed by the voters who are not the members of the Zilla, observed that 

“We are of the view that a voter in a particular panchayat cannot be rendered remediless if he is aggrieved by the election of the Adhyaksha of the Panchayat.”

The Court held that the judicial review is a part of the basic structure of the constitution and cannot be ousted by Article 243-O of the Constitution of India.


UMC Technologies Private Limited v. Food Corporation of India, 2020 SCC OnLine SC 934

“An order travelling beyond the bounds of notice is impermissible and without jurisdiction to that extent.”

A Division bench presided by Justice S. Abdul Nazeer, while upholding the order terminating a contract of service with the appellant and to blacklist the appellant from participating in any future tenders of the Corporation for a period of 5 years, opined that the show cause notice constituting the basis of a blacklisting order must spell out clearly the intention on the part of the issuer of the notice to blacklist the noticee. 

“…it is the first principle of civilised jurisprudence that a person against whom any action is ought to be taken or whose right or interests are being affected should be given a reasonable opportunity to defend himself.”

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Hospitality Association of Mudumalai v. In Defence of Environment and Animals, (2020) 10 SCC 589

“The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation.”

A 3-judge bench comprising of S A Bobde CJ., S. Abdul Nazeer, Sanjeev Khanna JJ.,  upheld the Madras High Court order directing resort owners and other private land owners in Mudumalai to vacate and hand over possession of land falling within the notified elephant corridor to Nilgiris Collector and observed that 

“The ever-growing need for land, infrastructure and energy requirements of our large population have slowly fragmented the elephant’s natural spaces which are now surrounded by human habitation, agriculture, mining, roads and railways….. These corridors aid this process by helping different elephant populations to intermingle, which is essential for retaining the vigour of the species and ensuring its long-term survival. By identifying and nurturing such corridors, deadly confrontations between humans and elephants can be avoided, in addition to safeguarding the welfare of the wildlife.”


Raja v. State of T.N., (2020) 5 SCC 118

“The confession is a form of admission consisting of direct acknowledgment of guilt in a criminal charge.”

While deciding whether the appellant has made the confession voluntarily and truthfully for the offences under TADA Act, 1987 and Explosive Substances Act, 1908, a Division bench comprising of S. Abdul Nazeer and Deepak Misra JJ., summarising the law regarding when conviction is permissible on basis of confession to police, held that “It is well­settled that a confession which is not free from doubt about its voluntariness, is not admissible in evidence. A confession caused by inducement, threat or promise cannot be termed as voluntary confession.”

The Court also explained about the admissibility of confession of a co­accused and opined that 

“Section 30 of the Indian Evidence Act mandates that to make the confession of a co­accused admissible in evidence, there has to be a joint trial. If there is no joint trial, the confession of a co­accused is not at all admissible in evidence”

Read More…


Notable Judgments at High Court



Pilla Akkayyamma v. Channappa, 2015 SCC OnLine Kar 8226

“Animus possidendi as is well known, is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose.”

Justice Abdul Nazeer, while deciding a suit for possession on the basis of title, held that the defendants have failed to establish that they have adverse possession in respect of the said properties. The Court while deciding the matter opined that 

“The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person, who does not acknowledge others’ rights but denies them. Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. Mere possession of the land would not ripen into possessory title. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. Occupation only implies bare use of the land without any right to retain it.”

[Note: The 5-judge bench in Ayodhya Case applied the Adverse Possession Rules as discussed in this case.]


Raju v. Bangalore Development Authority, 2010 SCC OnLine Kar 4322

“…the power to cancel the deed vests with a Court and it cannot be exercised by the vendor of a property.”

Abdul Nazeer J., while hearing a petition filed challenging the cancellation of a ‘G’ category site involving former minister Kumar Bangarappa, discussed about execution and cancellation of sale deed and observed that

“…when the sale deed executed and registered, the owner completely loses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because by execution and registration of a sale deed, the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Therefore, even by consent or agreement between the purchaser and the vendor, the said sale deed cannot be annulled. If the purchaser wants to give back the property, it has to be by another deed of conveyance.”

The Court held that State Government has no power or authority to direct the Bangalore Development Authority to allot sites under the Bangalore Development Authority Act, 1976 or the rules. 


Noel Lewis Pinto v. Shalet D’souza, 2017 SCC OnLine Kar 367

A Division bench of S. Abdul Nazeer and K.S. Mudagal JJ., while upholding the judgment of trial Court awarding alimony of Rs. 7,50,000/- to the wife, observed that thought the respondent restricted his appeal only to the relief of alimony, but the findings of trial Court that the respondent is guilty of desertion, cruelty, rape, sodomy and bestiality will still operate against him.


Divya Ramesh v. N.S. Kiran, 2017 SCC OnLine Kar 761

A Division bench of S. Abdul Nazeer and K.S. Mudagal JJ., observed that giving regard to the up-bringing, level of sensitivity, educational, family and cultural background, financial position and social status of the petitioner, the conduct of the respondent amounts to cruelty and cannot be called as mere abusing, shouting or nagging or a normal wear and tear of a marital life. Moreover, when the respondent tried to snatch means of sustenance of the petitioner, it amounted to deprivation of her right to life which amounts to violation of human rights 

Allowing the petition of the appellant under Section 13(1)(i)(a) of The Hindu Marriage Act, the Court held that he approach of the trial Court in appreciating the evidence with reference to Section 13(1)(1a) of the Act was incorrect and directed the respondent to pay permanent alimony of Rs. 50,00,000/- to the petitioner and maintenance of Rs. 50,00,000/- to his daughter. 


Vidya Ramakrishnaiah v. R.N. Vikram, 2004 SCC OnLine Kar 360

“…when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life.”

V. Bhagat v. D. Bhagat, (1994) 1 SCC 337

A Division bench presided by Justice S. Abdul Nazeer, deciding whether the conclusion reached by the Family Court that the respondent has made out a case for dissolution of marriage on the ground that the appellant has treated him with cruelty, held that the Family Court was justified in recording with finding that the appellant had treated the respondent with cruelty and it is clear that the appellant is not interested in retaining the marriage. 


*Editorial Assistant -Trainee, EBC Publishing Pvt. Ltd.

Know thy Judge

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

-Justice Sanjay Kishan Kaul 

Maqbool Fida Husain v. Rajkumar Pandey2008 SCC OnLine Del 562


Justice Sanjay Kishan Kaul was born on December 26, 1958. He graduated in Economics (Hons) from St Stephens College, Delhi University in 1979 and later obtained LLB from Campus Law Centre, Delhi University in 1982. He enrolled as an Advocate with Bar Council of Delhi on July 15, 1982 and practiced law at the High Court of Delhi and the Supreme Court of India. He was Advocate-on-Record of the Supreme Court of India from 1987 to 1999 and was designated as a Senior Advocate in December, 1999. He was appointed as Senior Counsel for the Delhi High Court and the Delhi University, was on the Senior panel of Union of India and served as the Additional Senior Standing Counsel for the DDA.

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


Notable Judgments at Supreme Court


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

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

Justice Kaul concurring with the majority view that privacy is a primal and natural right inherent to every individual, recognised the technological development and breach of privacy committed by private individuals, private entities and non-State actors.

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

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

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

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

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

1.The action must be sanctioned by law; 

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

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

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

Read More…

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

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

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

Read More…

Shah Faesal v. Union of India, (2020) 4 SCC 1

In a writ petition filled under Article 32 of the Constitution of India pertaining to two Constitution Orders issued by the President of India in exercise of his powers under Article 370 of the Constitution of India, a Full judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ, held that no cause was made out to refer the matter to a larger bench as there is no conflict between the judgments in the Prem Nath Kaul v. State of J & K, AIR 1959 SC 749 and the Sampat Prakash v. State of J & K, AIR 1970 SC 1118. The Court observed that 

“judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning.”

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

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

– Walter Lippmann

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

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

Read More

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

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

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

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

State of Madhya Pradesh v. Bherulal, 2020 SCC OnLine SC 849

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

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

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

Read More…


Notable Judgments at High Court


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

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

– Miguel De Cervantes.

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

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

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

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

– Pablo Picasso

The Court observed that

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

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

The Court emphasized on liberal tolerance and observed that 

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

According to Justice Kaul,

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

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

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

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

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

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

Read More…

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

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

– John Stuart Mill

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

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

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

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

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

– Oliver Wendell Holmes

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

Read More…

Babita Puniya v. Secretary, 2010 SCC OnLine Del 1116

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

– Will Henry

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

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


*Editorial Assistant – Trainee, EBC Publishing Pvt. Ltd. 

OP. ED.SCC Journal Section Archives

I

The architects of the India Constitution perceived that, for the Republic to survive, the Constitution must be Supreme. They also realised that the supremacy of the Constitution depends upon an independent judiciary—one with power to resolve disputes between the States, between the State and the national governments, and, most importantly, between individuals and government. However, in recent years, the Indian Supreme Court has been subjected to much ill-informed and native criticism. “To distrust the judiciary,” Honore Balzac once said, “marks the beginning of the end of society.”1 My object here is not to defend the Supreme Court against these attacks, but to pay tribute to one of its members, Mr Justice V.R. Krishna Iyer, who retired recently, after a little over seven years of distinguished service on the Court. While aware of the storms that raged about the Court, he welcomed disinterested criticism which stirs in the Court a continual awareness of its accomplishments and failures. Justice Krishna Iyer, however, though of the Court as an “institution” and tried hard to reconcile divergent views where he believed their expression would injure the institutional character of the Court; he acted not simply to improve the Court’s image, but, rather, to give strength to the rule of law.

II

It has often been remarked that Indians are the most litigious people in that every great issue is transformed into a question of law. The Judge is exalted as Lawgiver and Prophet in the Temple of Justice. He must have the wisdom of Solomon, the moral vision of Isaiah, the analytic power of Socrates, the intellectual creativity of Aristotle, the humanity of Lincoln and Gandhi, and the impartiality of the Almighty. Measured by these expectations every judge is something of a disappointment. But Justice Krishna Iyer understood the nature of the challenge. A study of his over 300 published opinions and numerous extra-curricular writings2 reveals a picture which is truly unique; they attest to the eloquent constancy with which he has placed his imprimatur on the principles of individual liberty and political equality. Any socially conscious judge, especially in a developing country like India, needs to be resourceful, versatile, and experimental, in relating human problems to a complex background of modernity and tradition. Mr Justice Brandeis once said that a lawyer who has not studied economics and sociology is apt to become a public enemy. Mr Justice Cardozo went further. The law was always a jealous mistress; but nowadays, said Cardozo, she has become “insatiate in her demands. Not law alone, but almost every branch of human knowledge, has been brought within her ken, and so within the range of sacrifice exacted of her votaries. Those who would earn her best rewards must make their knowledge as deep as the science and as broad and universal as the culture of their day. She will not be satisfied with less”.3 Unusually well versed in this Cardozian Kamasutra, Justice Krishna Iyer’s experience—a former politician, legislator, administrator, one-time minister, judge of the High Court of Kerala, member of the Law Commission of India—seems to come vibrantly alive in his Supreme Court judgments.4

[Read more]


Note: This Article was first published in Supreme Court Cases (1981) 4 SCC J-38.It has been reproduced with the kind permission of Eastern Book Company.

* B.A., M.A., LL.B., LL.M. (Rajasthan); LL.M., S.J.D. (Harvard); Faculty of Law, University of New South Wales, Kensington (Sydney), N.S.W. 2033, Australia. EDITOR’S NOTE: A former editor of LAWASIA, Professor Sharma is currently spending his sabbatical at Harvard Law School and at the law firm of Hale and Dorr in Boston, Mass., U.S.A.

1 Quoted in O. KIRCHHEIMER, POLITICAL JUSTICE 175 (1961).

2 The number 300 is approximate and excludes Justice Krishna Iyer’s judgments delivered as a judge of the High Court of Kerala. His out-of-court pronouncements and writings have been equally prodigious. See, e.g., V. KRISHNA IYER, LAW AND THE PEOPLE: A COLLECTION OF ESSAYS (1972), V. KRISHNA IYER, LAW, FREEDOM AND CHANGE (1975); V. KRISHNA IYER, JURISPRUDENCE AND JURISCONSCIENCE A LA GANDHI (1976); V. KRISHNA IYER, LAW AND SOCIAL CHANGE: AN OVERVIEW (1978); V. KRISHNA IYER, Social Justice and the Handicapped Humans, 2 ACADEMY L. REV. 1 (1978); V. KRISHNA IYER, THE INTEGRAL YOGA OF PUBLIC LAW AND DEVELOPMENT IN THE CONTEXT OF INDIA (1979); V. KRISHNA IYER, OF LAW AND JUSTICE (1979); V. KRISHNA IYER, Corporate Responsibility and Social Justice, 15 CIVIL & MILITARY L.J. 263 (1979); V. KRISHNA IYER, JUSTICE AND BEYOND (1980); V. KRISHNA IYER, PERSPECTIVES IN CRIMINOLOGY, LAW AND SOCIAL CHANGE (1980); V. KRISHNA IYER, SOME HALF-HIDDEN ASPECTS OF INDIAN SOCIAL JUSTICE (1980).

3 Cardozo, Our Lady of the Common Law, 13 ST. JOHNS L. Rev. 231, 232 (1937), in B. CARDOZO, SELECTED WRITINGS OF BENJAMIN NATHAN CARDOZO 87, 88 (M. Hall Ed. 1947).

4 Unlike most of his colleagues who had spent their entire public life in the judiciary, Justice Krishna Iyer came to the Court after a long and distinguished career as a legislator and politician. And it was this background which influenced his judicial career the most. The years in the legislative branch brought with them a general restlessness with the traditional judicial approach to decision-making.

Know thy Judge

“If I can, so can you.”[1]

Justice Fathima Beevi


Early life

Justice M. Fathima Beevi was born on 30-4-1927 in Pathanamthitta (Kerala) to Mr. Meera Sahib and Khadeeja Beevi. She did her schooling from Catholicate High School, Pathanamthitta, B.Sc. from University College, Trivandrum followed by Bachelor of Law from Law College, Trivandrum. Interestingly, she was only one of the five female students pursuing legal education in her class.

Legal career

  • Enrolled as an Advocate with the Bar Council of Kerala on 14-11-1950.
  • Appointed as Munsiff in the Kerala Sub-ordinate Judicial Services in 1958 and promoted as a Subordinate Judge in 1968.
  • Promoted to the position of District and Sessions Judge in 1974.
  • Elevated to the High Court as a Judge on 4-8-1983 and became permanent Judge of the High Court on 14-3-1984.
  • Retired as the judge of High Court on 29-04-1989.
  • On 6-10-1989, Justice Fathima Beevi was appointed as a Supreme Court judge. For India, it was a watershed moment that paved the way for women to occupy higher positions in judicial system.
  • Post retirement, in 1992 she was appointed as a member of National Human Rights Commission.

Significant Judgments

  • In a case concerning limitations on statutory power, principles of Natural Justice and applicability of Rule of Law, Scheduled Caste & Weaker Section Welfare Assn. v. State of Karnataka, (1991) 2 SCC 604, Justice Beevi said,

 “It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made.”

  • In an appeal to decide the Constitutionality of a State enactment, Assam Sillimanite Ltd. v. Union of India, 1992 Supp (1) SCC 692, it was observed,

 “Notwithstanding the declaration of the legislature that any particular Act has been made to implement the directives specified in Article 39, it would be open to the Court to ignore such declaration and to examine the constitutionality of the same. The declaration cannot be relied on as a cloak to protect the law bearing no relationship with the objectives mentioned in Article 39.”

  • In a Civil suit, Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524, making notable observation upon who is a ‘necessary party’ under O.I R.10(2) CPC, Justice Beevi said,

“What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.”

  • In a batch of Criminal Appeal, Mool chand v. Jagdish Singh, 1993 Supp (2) SCC 714, determining the scope of Article 136 of the Constitution, it was observed,

“If the evidence is of such a nature that two views are possible and the view in favour of the accused weighed with the High Court in acquitting them, this Court will be slow to interfere with the order of acquittal. If only the High Court has committed grave error in the appreciation of the evidence and misdirected itself by ignoring legal principles or misreading the evidence and arrived at the conclusion, the decision can be characterized as perverse or illegal requiring the interference by this Court under Article 136 of the Constitution of India. The judgment of the High Court if supported by cogent reasons has to be sustained.”

  • In a Civil suit, Rattan Chand Hira Chand v. Askar Nawaz, (1991) 3 SCC 67, the Court had the occasion to decide upon validity of a contract in purview of section 23 of the Indian Contract Act, 1872. Justice Beevi, in the light of given facts and circumstances, held,

“Every agreement of which the object or consideration is unlawful is void. The consideration or object of an agreement is unlawful when the court regards it as opposed to public policy. If anything is done against the public law or public policy that would be illegal inasmuch as the interest of the public would suffer in case a contract against public policy is permitted to stand. Public policy is a principle of judicial interpretation founded on the current needs of the community. The law relating to public policy cannot remain immutable. It must change with passage of time.”


Political career

  • Justice Fathima Beevi went on to become the Governor of Tamil Nadu on 25-01-1997. Appointing her and former chief justice of Jammu and Kashmir High Court as the governor of Kerala, the then President of India, Shankar Dayal Sharmasaid “Their experience of and insights into the working of the Constitution and the laws comprise valuable assets.”[2]
  • As the Governor of the State, she rejected the mercy petitions filed by four condemned prisoners in the Rajiv Gandhi assassination case.[3]
  • In a series of fateful events, Fathima Beevi submitted her resignation after the Union Cabinet decided to recommend to the President to recall the Governor for having failed to discharge the prescribed constitutional obligations.

Accolades

  • D Litt and Mahila Shiromani Award in 1990.[4]
  • S.- India Business Council (USIBC) Lifetime Achievement Award.[5]
  • Bharat JyotiAward for her exceptional achievements throughout.[6]

Some interesting facts

  • First female to hold the position of Judge at the Supreme Court of India.
  • First female Supreme Court judge to be appointed as a Governor.[7]

The place created by Justice Fathima Beevi survives with pride by several other female stalwarts in Judiciary, however not in a desirable proportion. The lower judiciary in India has a mere 27.6 per cent of women representation to the current strength of 15,806 judges whereas in high courts, the ratio suggests 10 per cent representation to the total strength of 692 judges.[8] Celebrating the breakthrough of women into Indian Judiciary, we applaud, encourage and celebrate all female members at the Bench and the Bar.


Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] Justice Fathima Beevi, 15.01.2018, DD News (https://www.youtube.com/watch?v=VYpMQJy8x0o)

[2] ‘We should show the world we are capable of tackling any crisis’, President Address. (https://www.rediff.com/news/jun/03sharma.htm)

[3] ‘Governor rejects Rajiv assassins’ mercy plea’ (https://www.rediff.com/news/1999/oct/28mercy.htm)

[4] Elizabeth Sleeman, ‘The International Who’s who 2004’, Europa Publications, 2003.

[5] ‘USIBC confers lifetime achievement award upon Justice Fathima Beevi’, BUSINESS STANDARD, 20-11-2015. (https://www.business-standard.com/article/news-ani/usibc-confers-lifetime-achievement-award-upon-justice-fathima-beevi-115112001212_1.html)

[6]https://web.archive.org/web/20090515101248/http://dlis.du.ac.in/Faculty%20Members/Shailendra%20Kumar.htm

[7] Women Governors in India (https://web.archive.org/web/20080305133437/http://www.indianofficer.com/forums/india-world/748-women-governors-india.html)

[8] Kanu Sarda, ‘Skewed gender ration in judiciary present world over, not just India’, THE NEW INDIAN EXPRESS, 23-02-2020. (https://www.newindianexpress.com/thesundaystandard/2020/feb/23/skewed-gender-ration-in-judiciary-present-world-over-not-just-india-2107117.html)

Know thy Judge

As Justice N. V. Ramana, next in line to become the Chief Justice of India, celebrates his 63rd birthday today, let’s have a look at his journey so far in shaping the justice system.

Here are some of the notable judgments that Justice Ramana has been a part of:

Jindal Stainless Ltd v. State of Haryana, (2017) 12 SCC 1: A 9-judge bench, by 7:2 majority, upheld the validity of the entry tax imposed by the States on goods imported from other States. The Bench held that taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India and that the word ‘Free’ used in Article 301 does not mean “free from taxation”. T.S. Thakur, CJ and Dr.  A.K. Sikri, S.A. Bobde, Shiva Kirti Singh, N.V. Ramana, R. Banumathi and A.M. Khanwilkar, JJ, giving the majority view said that States are well within their right to design their fiscal legislations to ensure that the tax burden on goods imported from other States and goods produced within the State fall equally. Read more 

Central Public Information Officer v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459: The 5-judge constitution Bench of Ranjan Gogoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ has held that the office of the Chief Justice of India comes under the purview of the Right to Information. In the 250-pages long judgment, Justice Sanjiv Khanna wrote the majority opinion for the Bench and Justices NV Ramana and DY Chandrachud gave separate but concurring opinion. Read more 

Anuradha Bhasin v. Union of India, (2020) 3 SCC 637: A 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ has asked J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain. “The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).” Read more 

Foundations for Media Professionals v. Union Territory of Jammu and Kashmir, 2020 SCC OnLine SC 453 : A 3-judge bench of NV Ramana, R. Subhash Reddy and BR Gavai, JJ has constituted a three-member committee to look into demand for allowing 4G mobile internet in the union territory of Jammu and Kashmir. Noticing that since the issues involved affect the State and the nation, the Court found it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir. Read more 

Nabam Rebia, and Bamang Felix v. Deputy Speaker, (2016) 8 SCC 1: A 5-judge constitutional bench of Jagdish Singh Khehar, Dipak Misra, Madan B. Lokur, Pinaki Chandra Ghose and N.V.Ramana, JJ. quashed the order of the Governor, preponing the 6th session of the Arunachal Pradesh Legislative Assembly by a month without consulting the Chief Minister, Council of Ministers or the Speaker, on account of being violative of Article 163 read with Article 174 of the Constitution of India. Read more 

Commr. of Customs v. Dilip Kumar and Co., (2018) 9 SCC 1 : A five-Judge Constitution Bench speaking through N.V. Ramana, J., while invalidating the ratio of Sun Export Corpn. v. Collector of Customs(1997) 6 SCC 564, laid at rest the controversy regarding the interpretation of an ambiguous provision exempting tax. The Bench noticed that there was distinction between interpreting a charging section and an exempting section. In case of ambiguity in a charging section, the interpretation has to be made in favour of the assessee. Read more

Roger Mathew v. South India Bank Ltd., 2019 SCC OnLine SC 1456 : A 5-judge Constitution Bench of Ranjan Gogoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ has upheld the validity of Section 184 of the Finance Act, 2017 and held that the said Section does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of this Court. The Court struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017, made under Section 184 of the Finance Act, 2017, for being contrary to the parent enactment and the principles envisaged in the Constitution. Read more 

Adi Saiva Sivachariyargal Nala Sangam v. State of T.N., (2016) 2 SCC 725 : The bench held that the appointment of Archakas in temples will have to be made in accordance with the Agamas, subject to their due identification as well as their conformity with constitutional mandates and principles. Exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 only so long such inclusion/exclusion is not based on criteria of caste, birth or any other constitutionally unacceptable parameter.

Md. Anwar v. State of NCT of Delhi, 2020 SCC OnLine SC 653:. The 3-judge bench of NV Ramana, SA Nazeer and Surya Kant, JJ has held that in order to successfully claim defence of mental unsoundness under Section 84 of IPC, the accused must show by preponderance of probabilities that he/she suffered from a serious-enough mental disease or infirmity which would affect the individual’s ability to distinguish right from wrong. “Mere production of photocopy of an OPD card and statement of mother on affidavit have little, if any, evidentiary value.” Read more 

Hot Off The PressNews

Former Supreme Court judge and former Lokayukta of state of Karnataka Justice NG Venkatachala has passed away at the age of 89.

Born in an agriculturist family Mittur, Justice Venkatachala obtained Bachelor of Science and Bachelor of Law degrees from Mysore University. He then got enrolled as an Advocate in the then High Court of Mysore on 16 November 1955. He also served as a part-time reader in Mercantile Law from 1958 to 1970 and a legal adviser to the University of Agricultural Sciences, Hebbal from 1963 to 1973 and Bangalore University from 1970 to 1973.

He served as a Government Pleader and was later promoted to high court government advocate which he served till 1977. He was then appointed as additional judge for Karnataka High Court on 28 November 1977 and a permanent judge on 8 September 1978. He functioned as a tribunal for prevention of unlawful activities under the unlawful activities prevention act during the year 1990. He was appointed as the acting Chief Justice for Karnataka High Court in May, 1992. On 1 July 1992 he was sworn in as Judge of the Supreme Court of India which he remained until Jul2 2, 1995.

Sworn in as the Karnataka Lokayukta on 2 July 2001, Justice Venkatachala was best known for rejuvenating the department of Karnataka Lokayukta, the anti corruption agency. He is said to have put the fear of god in the Karnataka administration. Number of complaints the office of Lokayukta was receiving dramatically increased from 20-25 per day to 200-250 per day while Justice Venkatachala was in tenure.He personally led hundreds of raids often lashing out at corruption in political life. In his four and a half years in office, he had looked into more than 50,000 cases of misconduct and complaints from members of the public. He even drew lot of criticism often from politicians who accused him of tarnishing all politicians with the same brush. He was discontinued as Lokayukta for the second term because of legal hurdles although a huge campaign was done in favor of him. 

Know thy Judge

Justice Dr Arjan Kumar Sikri’s remarkable tenure of around 6 years ends as a Supreme Court Judge today i.e. 06-03-2019.

“Education took us from thumb impression to signature; Technology has taken us from signature to thumb impression, again” – Justice Sikri (Aadhaar Judgment)”

Justice Dr Arjan Kumar Sikri commonly known as the “Professor Judge” because of his spectacular academic record was born on 07-03-1954.

“Be patient. There is no limit, and work hard. Don’t think you can achieve name and fame in a day.”*

-Justice Dr A.K. Sikri

With an excellent academic record, he stood third in the merit list in Higher Secondary from CBSE, Delhi, following which he completed his B.Com (Hons.) from Shriram College of Commerce, Delhi University in the year 1974 and LL.B. from Law Faculty, Delhi University in the year 1977.

Strokes of Genius

He was awarded Gold Medal for attaining first position in LL.B. Awarded special prize for getting highest marks in Constitutional Law I & II. During his LL.M. from Delhi University, he was ranked first in 3-Year course. Acquired the position of president of Campus Law Centre, Delhi University during 1976-1977 and was also a member of Academic Council of Delhi University for the same duration along with being a member in various other committees of Delhi University.

Early Life as an Advocate

Justice Sikri had enrolled as an Advocate in July, 1977 with Bar Council of Delhi and started practicing in Delhi. Conducted cases of all types with specialization in Constitutional cases, Labour – Service Matters and Arbitration Matters. He was also a part-time lecturer at Campus Law Centre, Delhi University (1984-89). He was also the Vice-President, Delhi High Court Bar Association during 1994-1995. Following which he was designated as a Senior Advocate by Delhi High Court on 30-09-1997.

Journey of a “Judge” with the belief of – Sensitization of Judges to have speedy justice

The impeccable journey of Justice Sikri started with him being appointed as a Delhi High Court Judge on 7-07-1999. As a Judge, he dealt with all kinds of jurisdictions and gave many landmark judgments.

He was chosen as one of the 50 most influential persons in Intellectual Property in the world in a survey conducted by Managing Intellectual Property Association (MIPA) for the year 2007.

He achieved another milestone by being appointed as an Acting Chief Justice of Delhi High Court on  10-10-2011 and was elevated as the Chief Justice of Punjab and Haryana High Court on 23-09-2012.

Odyssey of the Illustrious Personality of Justice Dr A.K. Sikri

On 12-04-2013, A.K. Sikri was elevated to the Supreme Court of India.

Has been conferred Doctorate of Laws, Honoris Causa, by Dr Ram Manohar Lohiya National Law University, Lucknow, in November 2013.

As a Judge of the Supreme Court of India, Justice Sikri has been a part of more than 900 judgments from which several turned out to be landmark ones.

Some of the Judgments of which Dr A.K. Sikri was a part of and would always be used in common parlance are as follows:

Aadhaar Verdict | Aadhaar here to stay; K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge) (2019) 1 SCC 1

“Better be unique than being best; Aadhaar means unique”

Passive Euthanasia is permissible; Human beings have a fundamental right to die; Common Cause v. Union of India2018 SCC OnLine SC 208

“It is an undisputed that Doctors’ primary duty is to provide treatment and save life but not in the case when a person has already expressed his desire of not being subjected to any kind of treatment. It is a common law right of people, of any civilized country, to refuse unwanted medical treatment and no person can force him/her to take any medical treatment which the person does not desire to continue with”

Only “green” fireworks permitted to be manufactured and sold: SC; Arjun Gopal v. Union of India 2018 SCC OnLine SC 2118

“directions to be followed for burning of crackers while refusing the complete ban on the sale of firecrackers as it may lead to extreme economic hardships”

Karnataka Elections: KG Bopaiah to continue to be pro-tem speaker; SC orders Live broadcast of Floor Test;

“Live broadcast of Floor Test would be the best way to ensure transparency of proceedings.”

Motilal Pesticides overruled as it missed the difference in the terms ‘Income’ and ‘Gross Total Income’; Vijay Industries v. CIT, 2019 SCC OnLine SC 299

“Reading of Section 80HH along with Section 80A would clearly signify that such a deduction has to be of gross profits and gains, i.e., before computing the income as specified in Sections 30 to 43D of the Act.”

Delhi v. Centre: Powers demarcated; Split verdict on power to transfer and appoint officers; State (NCT of Delhi) v. Union of India, 2019 SCC OnLine SC 193

Maharashtra Dance Bar law; Indian Hotel and Restaurant Assn. v. State of Maharashtra2019 SCC OnLine SC 41

Amend S. 80DD of IT Act to give benefit to disabled persons even during the lifetime of guardian: SC to Centre; Ravi Agrawal v. Union of India2019 SCC OnLine SC 5

“Where guardian has become very old but is still alive, though he is not able to earn any longer or he may be a person who was in service and has retired from the said service and is not having any source of income. In such cases, it may be difficult for such a parent/guardian to take care of the medical needs of his/her disabled child. Even when he/she has paid full premium, the handicapped person is not able to receive any annuity only because the parent/guardian of such handicapped person is still alive.”

In a recent judgment of the Supreme Court [Dnyaneshwar Suresh Borkar v. State of Maharashtra; 2019 SCC OnLine SC 304]in the case of a murder convict, of which Justice Sikri was a part; the Court took note of a very rare thing that “that, from the poems, written by him in the jail, it appears that he has realised his mistake which was committed by him at the time when he was of young age and that he is reformative; therefore the appellant can be reformed and rehabilitated.” and refused to place this case in “rarest of rare category”.

Ideology | Keyword to success: Hard Work

On analysing few of Justice Sikri’s interviews his only mantra to the student’s pursuing law was summed up in three stages as mentioned:

Three stages in a lawyer’s career – First: Work, work and no money; Second: money commensurate to the work; and finally, little work and a lot of money.

“While the human in law is important, humane in law is indispensable.”

-Justice Dr A.K. Sikri

How far that little candle throws his beams! So shines a good deed in a weary world”, this quote by William Shakespeare is apt, to sum up, the momentous journey of Justice Dr Arjan Kumar Sikri.


*https://lawschoolpolicyreview.com/2018/08/15/drawing-the-line-lspr-in-conversation-with-honble-justice-a-k-sikri/

Hot Off The PressNews

Making Senior Advocate Indu Malhotra the first woman lawyer to be directly elevated to the Bench, Centre has cleared her name for appointment as the Supreme Court Judge. She is likely to take oath on 27.04.2018.

On 10.01.2018, the Supreme Court collegium, comprising of the five senior-most judges, had recommended the names of Uttarakhand Chief Justice KM Joseph and Indu Malhotra for elevation to the Supreme Court. While the Centre has cleared Indu Malhotra’s name, it is still silent on Justice KM Joseph’s elevation.

In the last 70 years of independence, Indian Supreme Court has seen only 6 women judges, namely, Justice M Fathima Beevi, Justice Sujata V Manohar, Justice Ruma Pal, Justice Gyan Sudha Misra, Justice Ranjana Prakash Desai and Justice R. Banumathi. Currently, Justice Banumathi is the only woman judge in the Supreme Court. Indu Malhotra, who joined the bar in the year 1983, will be the 7th woman judge. She qualified as an Advocate-on-Record (AoR) in the Supreme Court in 1988 and was designated as a senior advocate in 2007, only the second woman to be designated a senior advocate by the Supreme Court, after Justice Leila Seth.

While the appointment of Indu Malhotra has been applauded, many Senior members of the Bar have urged CJI Dipak Misra to block her appointment till Justice KM Joseph’s name is cleared. Senior Advocate Indira Jaising took to twitter to show her dismay over non-clearance of Justice Jospeh’s name. She tweeted:

“I appeal to the Chief Justice of India not to swear in Indu Malhotra until Justice Joseph is cleared for appointment , independence of the Judiciary must be saved at all cost.”

In another tweet, she said that if Indu Malhotra is sweared in as the Supreme Court judge, it will be illegal:

“As of now there is no collegium decision to appoint Indu Malhotra alone , hence a judge is about to be sworn in illegally , another collegium decision needed to swear her in alone to legalise her appointment , will the Chief Justice stand for independence of the judiciary please.”

Advocate Vikas Singh, President of the Supreme Court Bar Association, welcomed Indu Malhotra’s appointment, calling her a fine lawyer & a promising judge. However, on Centre’s silence on Justice KM Joseph, he said:

“I have huge reservation at the attitude of the government, there is no way by which they should not have cleared Justice KM Joseph’s name. By making one appointment and not making another, the government has interfered in functioning of the judiciary. This is a very serious matter and should be taken up with the government very strongly.”

(With inputs from DNA and ANI)