Know thy Judge

“Scrutiny of Judicial Process by Half Truth Knowledgeable is real danger to Rule of Law”

— Justice JB Pardiwala at ‘2nd Justice HR Khanna Memorial National Symposium[1]


Justice Jamshed Burjor Pardiwala assumed office as a sitting judge of the Supreme Court of India on May 9th, 2022 and is in line to become the Chief Justice of India in 2028.

Did You Know? Justice Pardiwala is expected to serve a two-year and three months term as Chief Justice of India from May 3rd 2028 to August 11th 2030. [2]


Early Life and Education [3]


Justice JB Pardiwala was born in Mumbai on August 12th, 1965 into a family of lawyers having roots in Valsad located in the south of Gujarat. He is the great grandson of Navrojji Bhikaji Pardiwala who started his legal practice as early as in 1894, grandson of Cawasji Navrojji Pardiwala  who began his legal career in 1929 till 1958 and son of Burjor Cawasji Pardiwala who joined the Valsad Bar in 1955 following the same footsteps.

Justice J B Pardiwala, after attending St. Joseph Convent School, graduated from J P Arts College in 1985, and went on to obtain Bachelor of Law degree from K M Mujli College in 1988, all located in Valsad Gujarat.

♦Did You Know? His father Barjorji Cowasji Pardiwala was elected as an MLA from Valsad Assembly Constituency on an Indian National Congress ticket and even served as the Speaker of Gujarat Legislative Assembly from January 19, 1990 to March 16, 1990.

 


As an Advocate[4]


Justice Pardiwala began his legal career as an advocate from Gujarat High Court in January 1989 and eventually was elected to the State Bar Council in 1994 wherein he remained as a member till 2000. The year 2002 saw his appointment as Standing Counsel in the same High Court where he started his legal practice, Gujarat High Court, along with other subordinate courts.

♦Did You Know? If reports given by his colleagues are to be believed, Justice Pardiwala cleared approximately 1,200 pending matters during his tenure.


As a Judge


In High Court

Justice Pardiwala earned the coveted title of “Justice” when he began his judgeship on February 17th, 2011, having been appointed as Additional Judge of Gujarat High Court which was made permanent on January 28th, 2013. His tenure also saw him serving as the President of Gujarat State Judicial Academy. Justice Pardiwala mainly adjudicated matters related to Criminal and Civil Law, Services, and Indirect Taxation.

♦Did You Know? During his stint as a Judge at the Gujarat High Court, Pardiwala J authored 1,807 Judgments and was part of 2,195 Benches.

In Supreme Court

Justice Pardiwala was elevated to the Supreme Court on May 9th, 2022. He has experience of rendering judgments under his hat on multifarious issues like 400+ judgments on criminal matters, 250+ on service matters, around 200 on civil and direct taxation, 150+ on GST matters to name a few.[5]

♦Did You Know? Justice JB Pardiwala superseded many senior judges and chief justices of High Courts to make an entry in the Supreme Court in just 11 years of being elevated as a judge.[6]

His Top 18 Notable Judgments thus far are as follows: [List is inclusive of his term as a High Court Judge and Supreme Court judge]


‘Respect each other. Your children are watching you very closely’; Supreme Court advises parents in custody battle

The bench of AM Khanwilkar and JB Pardiwala*, JJ, in a matter relating to custody of two minor children, has advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives.’ Read more

[Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885]


Trial Court not a ‘mere post office’; must apply its mind while framing charges: SC unimpressed with discharge of murder accused based on postmortem report only

Explaining the importance of the role of Trails Courts, especially, with respect to framing of charges, the bench of AM Khanwilkar, Abhay S. Oka and JB Pardiwala*, JJ has held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

“Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e., whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached such a conclusion merely relying upon the port mortem report on record.”  Read more

[Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 SCC OnLine SC 913]


Prophet Remark Row| Why Supreme Court stayed Nupur Sharma’s arrest?

After politician and lawyer Nupur Sharma approached the Court claiming that there is an imminent necessity for the Court to intervene and protect her life and liberty as guaranteed under Article 21 of the Constitution, the bench of Surya Kant and JB Pardiwala, JJ has directed that no coercive action shall be taken against her pursuant to the impugned FIR(s)/complaint(s) or the FIR(s)/complaint(s) which may be registered/entertained in the future pertaining to the telecast dated 26-05-2022 on Times Now. Read more

[N.V. Sharma v. Union of India, 2022 SCC OnLine SC 895]


Illegal Coal Mining| Supreme Court stays Meghalaya HC’s order directing dismantling of existing coke plants

In a case concerning illegal coal mining in the State of Meghalaya, the Vacation Bench comprising Surya Kant and J.B. Pardiwala, JJ., stayed directions of the Meghalaya High Court directing the dismantling of existing coke plant(s). Read more

[JMK Coke Industry Pvt. Ltd. v. State of Meghalaya, 2022 SCC OnLine SC 783]


Maharashtra Political Crisis| Supreme Court refuses to stay Trust Vote; Uddhav Thakrey resigns as CM

The Vacation Bench of Surya Kant and JB Pardiwala, JJ gave a go ahead to the Special Session of the Maharashtra Vidhan Sabha convened on 30-0­6-­2022 for trust vote. Read more

[Sunil Prabhu v. Governor of Maharashtra, 2022 SCC OnLine SC 776]


Can a wife be forced to cohabit and establish conjugal rights? Or can a decree do so? Gujarat High Court answers

The Division Bench of J.B. Pardiwala* and Niral R. Mehta, JJ., while dealing with a matter regarding restitution of conjugal rights, stated that,

“Section 281 of the Muhammadan Law deals with the aspect of the restitution of conjugal rights but does not throw any light as to in what circumstances, a decree for restitution of conjugal rights can be granted or declined.”

Further, the Bench expressed that,

“A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.”

The present appeal was filed under Section 19 of the Family Courts Act, 1984 by the original defendant-wife questioning the legality and validity of the order passed by the Family Court on suit instituted by respondent-husband for restitution of conjugal rights whereby the family court allowed the suit instituted by the husband directed the appellant-wife to go back to her matrimonial home and perform her marital obligations. Read more

[Jinnat Fatma Vajirbhai Ami v. Nishat Alimdbhai Polra, 2021 SCC OnLine Guj 2075]


Gujarat High Court| Will permanent alimony granted to a Muslim woman be conditional to her remarriage? Detailed report untangling the significance of ‘Permanent Alimony’ & ‘Periodical Maintenance’

In an instant appeal under Section 19 of the Family Courts Act, 1984 filed at the instance of the original defendant (husband) and was directed against the judgment and decree passed by Principal Judge, Ahemdabad for a decree of divorce under the provisions of Dissolution of Muslim Marriages Act, 1939, the Division Bench of J.B. Pardiwala* and Vireshkumar B. Mayani, JJ., while addressing the issue of grant of permanent alimony to a Muslim Woman noted the significant difference between permanent alimony and periodical maintenance. Read more

[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLine Guj 711]


♦Did you know? Justice J B Pardiwala is a huge fan of Manna Dey, an internationally acclaimed, celebrated Indian playback singer, music director, and a musician and loves watching and playing cricket.[7]


Gujarat High Court | Two finger test violates the right of victim to privacy, physical and mental integrity and dignity; held unconstitutional

A Division Bench of J.B. Pardiwala* and Bhargav D. Karia, JJ., while deciding the two clubbed appeals, held that,

“Two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity.” Read more

[State of Gujarat v. Rameshchandra Rambhai Panchal, 2020 SCC OnLine Guj 114]


[Marital rape] Gujarat High Court: A husband cannot be permitted to treat his wife like a chattel and violate her dignity

While deciding the present case wherein the focal point was marital rape and unnatural carnal activity, J.B. Pardiwala, J., observed that a wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent. Furthermore, the Court urged that the time is ripe that the legislature intervenes and goes into the soul of the issue of marital rape as it is a serious matter which unfortunately is not attracting serious discussions at the end of the Government. Read more

[Nimeshbhai Bharatbhai Desai v. State of Gujarat,2018 SCC OnLine Guj 732]


Gujarat High Court |For the purposes of S. 498-A IPC, a former wife will not come under the category of “the relative of the husband”

In the instant application wherein, the applicant invoked the inherent power of the Court under Section 482 of CrPC thereby seeking quashment of proceedings under Section 498-A read with Section 114 IPC, J.B. Pardiwala, J., held that for the purposes of Section 498-A IPC, a former wife will not come under the category of the “relative of the husband”. Thus, even if the former wife is the cause of matrimonial disputes, she cannot be prosecuted under Section 498-A IPC. Read more

[Honeyben Ashokbhai Patel v. State of Gujarat,  2017 SCC OnLine Guj 1558]


Gujarat High Court | Pregnancy of above 20 weeks can be terminated if it serves the ‘best interest’ of pregnant girl

J.B. Pardiwala, J. allowed a writ application filed by a victim of rape for termination of her pregnancy, subject to her examination by two doctors to ensure that the termination can be carried out safely. Read more

[Pujaben Subedar Yadav v. State of Gujarat, 2017 SCC OnLine Guj 453]


Gujarat High Court |Those who have not allowed to change the Muslim personal law have done great disservice to the community; Gujarat High Court quashes FIR

In a case where an FIR was registered by the father of a Muslim girl aged 16 years, against a man alleging offence under Sections 363, 366 Penal Code, 1860 and Section 18 POCSO Act, and the instant application was filed seeking quashing the same FIR, J B Pardiwala J. perusing the Muslim Law in light of said facts showed disappointment for the lack of a codified Muslim law. In the instant case, the Judge remarked

“Sixteen years is not an age for a girl to get married. At this age, probably, a girl would not even clear her S.S.C. Exam. At times, I fail to understand how she would be able to go ahead in life. Most of the time, unfortunately, this type of marriage fails, and one day, the girl would come back to her parents. By that time, it is too late in her life to realize her mistake as it would be very difficult for the parents to get her again settled in life.”

“… as the social condition in the Nation and throughout the world continues to change, the reality of life is, that even without a code on personal law of Muslim insofar as the marriage is concerned, the child marriage is going into oblivion. Education, changing pattern of the family structure, the structure of the family in the context of reality of the world, and economic necessities are on their own precipitating the situation. The members of the community have realized the evil consequences of getting a Muslim girl married at a tendered age of 16 or 17 years”

The Court however quashed the charges under Sections 363 and 366 as there was no reason to believe Namira had been enticed into the union as Namira deposed before Court that she eloped and married the accused on her own free will and volition as she was in love with the applicant and vice versa.

[Yunusbhai Usmanbhai Shaikh v State of Gujarat, 2015 SCC OnLine Guj 6211]


Amendments to Section 80 HHC Income Tax Act, 1961 was challenged; Gujarat High Court rules amendments to apply prospectively; Retrospective provisions to be extended only if they benefit assesses

The petitioners filed a batch of civil appeals at the Gujarat High Court challenging newly inserted Amendments to Section 80 HHC of the Income Tax Act, 1961. Under Section 80HHC, businesses could avail themselves of specific Income Tax deductions—and had even been incentivized to do so by earlier governments. This benefit had been extended to them from Assessment Year 1988-89 to Assessment Year 2004-05. The petitioners contended that the Amendments sought to retrospectively remove these deduction benefits after 31st March, 2004—while also retrospectively granting them to another group of assesses for the same assessment period. This created two arbitrary subgroups within the same class of businesses, violating the Right to Equality and the Right to practice any profession.

The question was raised before the Court that whether the severable parts of the 3rd and 4th proviso to Section 80 HHC (3) Income Tax Act, 1961 are ultra vires Articles 14 and 19(1)(g) Constitution of India, a Division Bench of Bhaskar Bhattacharya and J B Pardiwala JJ. noted that if a valid piece of legislation is wrongly interpreted by the Tribunal, the aggrieved party should move to a higher judicial forum for correct interpretation. The Court thus held that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribunal, and at the same time, for depriving the benefit earlier granted to a class of the assesses whose assessments were still pending although such benefit will be available to the assesses whose assessments have already been concluded. In other words, in this type of substantive amendment, retrospective operation can be given only if it is for the benefit of the assesses but not in a case where it affects even a fewer section of the assesses.

[Avani Exports v Commissioner of Income Tax Rajkot, 2012 SCC OnLine Guj 3837]

♦Did You Know? JB Pardiwala is the 4th Parsi Judge to serve at the Supreme Court and first minority High Court judge to be appointed in 5 years after Justice Abdul Nazeer[8]

Notable Judgments during COVID


[Midnight Hearing] Gujarat High Court | Situation of Ahmedabad on account of COVID-19 cannot be compared with situation in Puri or in the State of Orissa (sic Odisha); No Rath Yatra at Ahmedabad

A Division Bench of Vikram Nath, CJ* and J.B. Pardiwala, J., rejected all the civil applications in a midnight hearing, filed with regard to granting permission for Rath Yatra on the ground that Supreme Court allowed the Yatra in restricted manner by modifying its earlier order.   Read more

[Mahant Akhileshwardasji Ramlakhandasji v. State of Gujarat, 2020 SCC OnLine Guj 917]


Gujarat High Court | “If State would not have been doing anything, we all would have been dead”: Court berates politicizing of COVID-19 situation while at the same time reminding the State of its Constitutional obligations

A Division Bench of Vikram Nath, CJ and J.B. Pardiwala, J.* while addressing certain issues with regard to COVID-19, stated that,

“Healthcare access is the ability to obtain healthcare services such as prevention, diagnosis, treatment and management of diseases, illness, disorders, and other health ­impacting conditions. For healthcare to be accessible it must be affordable and convenient.” Read more

[Suo Motu v. State of Gujarat, 2020 SCC OnLine Guj 836]


Gujarat High Court | Gujarat Govt given directions to take stern and decisive actions in matters connected to private hospitals, migrants, protection of doctors and overall management of Covid-19 crisis

Taking suo motu cognizance of the way private hospitals in the State of Gujarat are indulging in blatant profiteering in the time of Covid-19, the Division Bench of J.B. Pardiwala and Ilesh J. Vora, JJ., gave important directions to the State Government in relation to regulation of private hospitals; proper arrangement of sending the migrants to their homes and overall management of every aspect of governance to deal with one of the greatest humanitarian crisis the world has seen. The Court also expressed its deep respect for all the frontline ‘corona warriors’ for showing exemplary dedication towards public welfare. Read more

[Suo Motu v. State of Gujarat, Writ Petition (PIL) No. 42/2020, decided on 22-05-2020]


[COVID-19] Gujarat High Court | No Rath Yatra shall be carried out at Ahmedabad; No activities secular or religious associated with Rath Yatra to be conducted

A Division Bench of Vikram Nath, CJ* and J.B. Pardiwala, J., held that in view of present times of outbreak of COVID-19, there shall be no Rath Yatra at Ahmedabad and any of the districts in the State of Gujarat. Read more

[Hitesh Kumar Vittalbhai Chavda v. Shri Jagannathji Mandir Trust, 2020 SCC OnLine Guj 910]


Gujarat High Court | “What is most essential as of now is a more humane approach or touch”; State Authorities should ensure that its citizens do not die of starvation

A Division Bench of J.B. Pardiwala* and Ilesh J. Vora, JJ., took suo motu cognizance of certain issues like the food, shelter for migrant workers, travel to hometowns, etc.

The court took notice of a few news items and took suo motu cognizance of the same, wherein the following was noted:

“Caught in the Covid­19 crossfire in pain? Grin and bear because cops won’t let you meet your doc with the police getting stricter in ensuring that people do not step out of their houses during the lockdown, patients with genuine ailments are suffering as they are at the receiving end”  

Read more

[Suo motu v. State of Gujarat, 2020 SCC OnLine Guj 718]

________________________________

†Arunima Bose, Editorial Assistant has put this report together 

*Judge, who has authored the judgment


[1] https://www.scconline.com/blog/post/2022/07/12/scrutiny-of-judicial-process-by-half-truth-knowledgeables-is-real-danger-to-rule-of-law-says-justice-pardiwala/

[2] https://www.scobserver.in/journal/who-are-the-nine-next-chief-justices-of-india/

[3] https://gujarathighcourt.nic.in/cjjfull?jid=435

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

[5] https://www.scobserver.in/judges/jamshed-burjor-pardiwala/

[6] https://timesofindia.indiatimes.com/india/justice-dhulia-superseded-29-judges-justice-pardiwala-48/articleshow/91452648.cms

[7] https://theprint.in/judiciary/in-justice-jb-pardiwala-sc-gets-a-future-cji-a-manna-dey-fan-and-a-cricket-lover/947824/

[8] https://www.outlookindia.com/national/supreme-court-to-get-full-strength-jury-as-two-judges-to-take-oath-of-office-on-monday-news-195556

Know thy Judge

“A possibility of abuse cannot be used to deny legitimate rights to citizens”

Justice A.M. Khanwilkar

Jigya Yadav v. CBSE, (2021) 7 SCC 535


A trip down the memory lane is what Retirements and Farewells essentially are in regards to a Supreme Court Judge. It is a chance to reminisce and cherish their tenure and take in the importance and gravity of the imprint that they will leave behind in the form of their numerous decisions. The year 2022 is ‘The Year of Farewells’ for the Supreme Court, because never before has it seen such a flurry of retirements as it has in this year.

This month, Supreme Court’s Justice Ajay Manikrao Khanwilkar is all set to retire after a comprehensive term of 6 years. It also means that it is time for us to take our readers on a time travel, to run through the past and present of Justice Khanwilkar’s life in law, with anticipation for an equally stellar future.


Early Life and Career as an Advocate [1982- 2000][1]


Justice A. M. Khanwilkar was born on 30-07-1957 in Pune, Maharashtra. He did his graduation (B. Com) from Mulund College of Commerce, Mumbai and LL.B. from K.C. Law College, Mumbai.

After graduating in law, Justice Khanwilkar enrolled as Advocate on 10-02-1982. During his time as a counsel, Justice Khanwilkar handled Civil, Criminal and Constitutional matters before the Subordinate Courts, Tribunals and High Court of Judicature at Bombay on the Appellate Side as well as the Original Side. During his practicing years, Justice Khanwilkar got a wide range of exposure in Criminal, Civil, Constitutional, Election and Co-operative matters.

From the year 1984, Justice Khanwilkar started his practice in the Supreme Court of India. He also worked as Additional Government Advocate for the State of Maharashtra till December 1989. Justice Khanwilkar was appointed as Panel Counsel for Union of India in January 1990 whereby which, he had the opportunity to represent the Union of India in several matters of national importance.

In August 1994 he was appointed as Amicus Curiae by the Supreme Court to assist on environmental issues in the case of M.C. Mehta (Calcutta Tanneries’ Matter) v. Union of India, (1997) 2 SCC 411. He was also the Standing Counsel for the Election Commission of India for Supreme Court matters from March 1995 till his elevation as a Judge. In October 1995, Justice Khanwilkar was appointed as Standing Counsel for the State of Maharashtra for Supreme Court matters.

♦Did you Know? Even in private practice, Justice Khanwilkar had on occasion handled matters of great significance before the Supreme Court to represent persons in high public offices as also various statutory Authorities, Corporations and institutions.

As Member of Committees/Task Force/ Associations

Justice Khanwilkar was appointed as Member of the Task force (headed by the former Chief Justice of India Justice E. S. Venkataramaiah ) constituted by the Ministry of Health and Family Welfare, Government of India in November 1995 for examining and reporting on the amendments needed in the Prevention of Food Adulteration Act.

He was also the Executive Member of the Supreme Court Bar Association and Joint Secretary and Executive Member of the Supreme Court Advocates on Record Association.

Notable Appearances as a Counsel


Judgeship of the High Court [2000- 2016][2]


A.M. Khanwilkar’s tryst with judgeship began from the year 2000 when he was appointed as the Additional Judge of the Bombay High Court on 29-03-2000. He was later confirmed as permanent Judge of the Bombay High Court on 08-04-2002.

On 04-04-2013, Justice Khanwilkar was elevated the Chief Justice of the High Court of Himachal Pradesh. Thereafter, he was appointed as Chief Justice of Madhya Pradesh High Court on 24-11-2013.

Notable High Court Decisions

Bombay High Court

State of Maharashtra v. Murarao Malojirao Ghorpade, 2009 SCC OnLine Bom 1645

Swatanter Kumar, CJ., and S.B. Mhase, A.M. Khanwilkar, A.S. Oka and R.M. Savant, JJ., held that Words “all the land held by a person or as the case may be by a family unit whether in this State or any part of India” in Section 3(2) of Maharashtra Agricultural Lands (Ceilings on Holdings) Act (27 of 1961), cannot be given effect as it has extra-territorial operation beyond State of Maharashtra.

Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, 2009 SCC OnLine Bom 1996

The 3 Judge Bench of Swatanter Kumar, CJ., and A.M. Khanwilkar and Mridula Bhatkar, JJ., held that expression “or” occurring in Order 18, Rule 4(2), CPC, means “either”. Expression “shall” occurring in Order 18, Rule 4(2) is mandatory only to extent that cross-examination of witness, whose evidence has been taken on Affidavit in lieu of chief-examination, has to be taken. It was held that the Court has discretion to direct cross-examination to be done before the Commissioner appointed by it with such directions as it may think fit and it is not mandatory for Court to record evidence only before Court. Judicial discretion contemplated in Order 18, Rule 4(2) is to be exercised on settled principles of law; evidence can also be recorded by electronic media which may result in expeditious disposal.

Himachal Pradesh High Court

State of H.P. v. Mehboon Khan, 2013 SCC OnLine HP 4080

The 3 Judge Bench of AM Khanwilkar, CJ., and VK Sharma and Dharam Chandra Chaudhry,JJ., held that Section 293 of CrPC postulates that Expert Report cannot be thrown out merely because Expert was not summoned or because details of tests not been given, unless and until Court is satisfied that summoning of Expert for furnishing tests carried out is necessary.

Vikram Chauhan v. Managing Director, 2013 SCC OnLine HP 1715

While deciding the issue that whether Co-operative Banks established in the State of Himachal Pradesh are “State” within the meaning of Art. 12, the Bench of AM Khanwilkar, CJ., R.B. Misra and DD Sud, JJ., referred the issue for consideration of Full Bench.

Madhya Pradesh High Court

Asif Mohd. Khan v. State of M.P., 2015 SCC OnLine MP 6742

The powers of the competent authority regarding suspension of employee are, that they can pass order revoking suspension of employee and can also transfer him at another place. There is no prohibition in M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, R. 9(5)(a) and (b) barring Competent Authority from passing such composite order.

Technofab Engineering Ltd. v. Bharat Heavy Electricals Ltd., 2015 SCC OnLine MP 6744

Sch. I, Art. 1-A [As substituted by M.P. Amendment Act (6 of 2008) w.e.f. 2-4-2008] of Court Fees Act, providing for upper limit of Court Fees instead of ad valorem Court Fees is beneficial legislation. The benefit of upper limit of Court Fees prescribed by Amendment Act, must be applied uniformly to all litigants instituting their claim after 2-4-2008, be it in the form of plaint before subordinate Court or memorandum of appeal before the High Court.


Judgeship of Supreme Court of India [2016- 2022]


Justice Khanwilkar was elevated as Judge of Supreme Court of India and assumed charge on 13-05-2016.

In March 2018, Justice Khanwilkar was appointed as the Chairman of the Water Disputes Tribunal called ‘The Mahanadi Water Disputes Tribunal’, for the adjudication of the water dispute regarding the inter-State River Mahanadi, and the river valley thereof. The appointment was done in exercise of the powers conferred by Section 4 of the Inter-State River Water Disputes Act, 1956, and by an order of the President. The Tribunal was constituted by the Central Government with the members nominated by the Chief Justice of India.

Notable Supreme Court Judgments

When it comes to Justice Khanwilkar’s many decisions as a Supreme Court Judge, his tenure has been multi-faceted, as his decisions have not centered around one specific field of law.[3]

♦Did You Know? Justice Khanwilkar has authored approximately 200+ Supreme Court Judgments[4]

Some of the notable decisions on various issues, that have been rendered by Justice A.M. Khanwilkar and the decisions that he had been a part of, are as follows-

Prevention of Money Laundering Act

Justice Khanwilkar’s final week before his retirement saw the coming of a significant decision concerning the constitutional validity of Prevention of Money Laundering Act, 2002. In Vijay Madanlal Choudhary v. Union of India, SLP (Criminal) No. 4634 OF 2014, the 3-Judge Bench of A.M. Khanwilkar*, Dinesh Maheshwari and C.T. Ravikumar, JJ., upheld the validity of the challenged provisions of the 2002 legislation. The Bench also held that in view of the special mechanism envisaged by the 2002 Act, ECIR cannot be equated with an FIR under CrPC. “Supply of a copy of ECIR in every case to the person concerned is not mandatory, it is enough if Enforcement Directorate at the time of arrest, discloses the grounds of such arrest”.

Fundamental Rights

In Jigya Yadav v. CBSE, (2021) 7 SCC 535, the 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ., held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

A 5 Judge Bench comprising Chief Justice Dipak Misra and Justices A. K. Sikri, A. M. Khanwilkar, D Y Chandrachud and Ashok Bhushan in Common Cause (A Registered Society) v. Union of India, (2018) 5 SCC 1  held that the right to die with dignity is a fundamental right. An individual’s right to execute advanced medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.

Elections

In Shobhabai Narayan Shinde v. Commr., (2022) 3 SCC 35, while deciding that whether an appeal could be filed before the Divisional Commissioner against an order passed by the Collector under Section 14B (1) of the Maharashtra Village Panchayats Act, 1959, declining to disqualify a Sarpanch/Member of the Panchayat for allegedly having failed to lodge an account of election expenses within the time and in the manner prescribed by the State Election Commission, without offering any good reason or justification for such failure? Answering an interesting question of law, the Bench of AM Khanwilkar* and CT Ravikumar, JJ., held that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee –the Collector, under Section 14B (1) of the Maharashtra Village Panchayats Act, 1959, rejecting the complaint or to drop the proceedings for declaration of a Sarpanch/Member having incurred disqualification.

In the case of Public Interest Foundation v. Union of India, (2019) 3 SCC 224, the 5-judge bench comprising Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, JJ., made the disclosure of criminal antecedents by the contesting candidates mandatory and held that the disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice.

In Rahul Ramesh Wagh v. State of Maharashtra, 2022 SCC OnLine SC 692, the Bench of A.M. Khanwilkar, Abhay S. Oka and C.T. Ravikumar, JJ., directed Maharashtra State Election Commission to expeditiously conduct elections of local bodies (around 2486), which were pending for over 2 years (in some cases) due to disputed constitutional validity of State Amendments seeking to introduce delimitation in the State.

Local Government- OBC Reservation in Elections

The 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., addressed the instant petition, i.e., Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73, wherein a declaration had been sought that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Act, 1961), was ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution. The Bench remarked-

 “State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission”

Schools, Students and Education

The division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., in Indian School v. State of Rajasthan, (2021) 10 SCC 517, issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilized facilities/activities and not on the basis of actual data school-wise. The said direction was issued in order to obviate avoidable litigation by over 36,000 schools and to give finality to the issue of determination and collection of school fees for the academic year 2020¬21, as a one-time measure.

The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Rajneesh Kumar Pandey v. Union of India, 2021 SCC OnLine SC 1005, directed the Central Government to notify the norms and standards of pupil-teacher ratio for special schools and also separate norms for special teachers who alone can impart education and training to Children/Child with Special Needs (CwSN) in the general schools. While the Petitions before the Court pertained to State of Uttar Pradesh and Punjab only, the extensive direction issued by the Court will apply pan India.

The bench of AM Khanwilkar and Dinesh Maheshwari, JJ., in Mamta Sharma v. CBSE, (2022) 1 SCC 368, refused to interfere with the assessment Scheme propounded by the C.B.S.E or I.C.S.E for the Class XII students and has held that, “… the stated Schemes are fair and reasonable and take into account concerns of all students and is in larger public interest.”

Legislative Processes/ Legislations

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “undisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Ashish Shelar v. Maharashtra Legislative Assembly, 2022 SCC OnLine SC 105, held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.

The 2-judge bench of AM Khanwilkar and Dinesh Maheshwari, JJ., in L.R. Brothers Indo Flora Ltd v. Commissioner of Central Excise, 2020 SCC OnLine SC 705, held that for application of a subsequent legislation retrospectively, it is necessary to show that the previous legislation had any omission or ambiguity or it was intended to explain an earlier act.

Judiciary, Courts and its Administration, Practice and Procedure etc.

Holding advocates to be officers of the Court, the bench of AM Khanwilkar* and CT Ravikumar, JJ., in NKGSB Cooperative Bank Limited v. Subir Chakravarty, 2022 SCC OnLine SC 239, held that it would be open to the Chief Metropolitan Magistrate (CMM)/District Magistrate (DM) to appoint an advocate commissioner to assist him/her in execution of the order passed under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

The high voltage matter in Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196; highlighting the case registered by the Central Bureau of Investigation against retired Orissa High Court Judge, Justice I.M. Quddusi, containing serious allegations implicating the said Judge under Ss. 8 and 120-B of the Prevention of Corruption Act, 1988, the 5-judge bench of Dipak Misra, CJ., along with RK Agrawal, Arun Mishra, Amitava Roy and AM Khanwilkar, JJ held that- “There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers”.

A 5-judge bench in State of Jharkhand v. Hindustan Construction Co. Ltd., (2018) 2 SCC 602, held that Supreme Court cannot entertain objections as the Original Court solely because it has appointed the arbitrator.

The bench of Justice A.M. Khanwilkar, Indu Malhotra and Ajay Rastogi, JJ., in Rachna v. Union of India, (2021) 5 SCC 638, held that the Courts cannot issue mandamus to frame policy. The Court was hearing the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic.

Explaining the importance of the role of Trial Courts, especially, with respect to framing of charges, the bench of A.M. Khanwilkar, Abhay S. Oka and J.B. Pardiwala, JJ., in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, Crl.A. No.-001041-001041/2022, held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

Central Vista Project

The 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna, JJ., in Rajiv Suri v. Delhi Development Authority2021 SCC OnLine SC 7, by a 2:1 verdict, gave a go ahead to the Central Vista Project. As per the Government, the Project, which plans to build a New Parliament building, is necessary for the creation of a larger working space for efficient functioning of the Parliament and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis.

Aadhar Card/ Right to Privacy

In K.S. Puttaswamy v. Union of India, (2018) 3 SCC 797, the Supreme Court quashed the order of Central Board of Secondary Education (C.B.S.E) asking the students to get themselves registered for National Eligibility-cum-Entrance Test (NEET) examinations by producing AADHAR numbers. The Court stated that

“The students who intend to register in the said Board for NEET examination and for any other All India examinations, need not necessarily produce the Aadhaar number for the present, but they may be asked to produce any alternative identification number, such as ration card, passport, voter ID, driving licence and bank account.”

Justice Khanwilkar was part of the Constitution Bench which decided one of the most significant decisions related to ‘Right to Privacy’ in K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 which declared the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to be valid and not violative of the fundamental right to privacy. However, certain orders and/or circulars making the citing of Aadhaar number mandatory have been held unconstitutional and struck down with a ratio of 4:1. However, despite going through several rounds of litigation and long hours consideration, the Adhaar Controversy had once again popped up before the Supreme Court.

The 5- Judge Constitution Bench of A.M. Khanwilkar, D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ., in Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1 addressed the review petition against the final verdict in K.S.  Puttaswamy (Aadhaar-5 Judges) v Union of India, (2019) 1 SCC 1.

Same –Sex Relationships – Constitutionality of S. 377 IPC

In the landmark judgment of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the 5-Judge Bench of Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., partially struck down Section 377 of the Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court had upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.

Centre- State Relationship/ Federalism

In State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 also known as Delhi v. Centre case, the 5-Judge Bench comprising of Dipak Misra, CJ., and A.K. Sikri, A.M Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan JJ., held that the words “any matter” employed in the proviso to clause (4) of Art. 239AA of the Constitution cannot be inferred to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.

Freedom of Speech and Expression and Hate Speeches

The bench of A.M. Khanwilkar and Sanjiv Khanna, JJ., in Amish Devgan v. Union of India, (2021) 1 SCC 1, refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation. While holding this, the bench made an attempt to define “hate speech” albeit it was of the opinion that a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable.

Commutation of Death Sentence

The 3-judge bench of A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar, JJ., in Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, refused to commute the death sentence to life imprisonment of a man convicted for brutal rape and murder of a 7-year-old physically and mentally challenged girl. The Court noticed that it is unlikely that the appellant, if given an absolution, would not be capable of and would not be inclined to commit such a crime again.

Evidentiary value of Parliamentary Committee Reports

The 5-Judge Bench comprising of Dipak Misra, CJ., and A.M. Khanwilkar, Dr D.Y. Chandrachud, Dr A.K. Sikri and Ashok Bhushan, JJ., in Kalpana Mehta v. Union of India, (2018) 7 SCC 1, held that Parliamentary Standing Committee Report or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor can its validity be called into question.

Child Custody

The bench of A.M. Khanwilkar and J.B. Pardiwala, JJ., in a matter relating to custody of two minor children, advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives’. In Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885, the Court observed that, “The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children”.

Sexual Offences

In a plea concerning imposition of certain conditions in a case involving a sexual offence against a woman, at any stage of judicial proceedings, that trivialize the trauma undergone by survivors and adversely affect their dignity, the bench of A.M. Khanwilkar and S. Ravindra Bhat, JJ., in Aparna Bhat v. State of Madhya Pradesh, 2021 SCC OnLine SC 230, held that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is to be avoided under all circumstances.

Reminding the Courts of their duty, the Bench stated that-

“The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the Court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the Court.”

Adultery

The 5-Judge Constitution Bench in Joseph Shine v. Union of India, (2019) 3 SCC 39, held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions. Dipak Misra, CJ., (for himself and A.M. Khanwilkar, J.,) stated that on a reading of the provision, it is demonstrable that women are subordinated to men in as much as it lays down that when there is connivance or the consent of the man (husband), there is no offense. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is the reflection of the social dominance that was prevalent when the penal provision was drafted. It was also noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under Section 497. It does not treat the wife of the adulterer as an aggrieved person.

Tribunals

The Bench of A.M. Khanwilkar, Hrishikesh Roy and C.T. Ravikumar, JJ., considered the question, whether the National Green Tribunal has the power to exercise Suo Motu jurisdiction in the discharge of its functions under the National Green Tribunal Act, 2010 in Municipal Corporation of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897, it was observed that “NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks its door”.

Taxation

Justice A.M. Khanwilkar was part of the majority opinion in the 7:2 majority Entry Tax verdict in Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1  which upheld the validity of the entry tax imposed by the States on goods imported from other States. It was 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”.

Sidhu Road Rage

Allowing the review petition in the 34-year-old road-rage case involving cricketer-turned-politician Navjot Singh Sidhu that resulted into the death of one 65-yer-old Gurnam Singh, the bench of A.M. Khanwilkar and Sanjay Kishan Kaul, JJ., in Jaswinder Singh v. Navjot Singh Sidhu, 2022 SCC OnLine SC 652, imposed a sentence of one-year rigorous imprisonment on Sidhu in addition to the fine of Rs.1,000/- imposed in the order dated 15-05-2018.

Decisions That Initiated a Broader Discourse

In Justice Khanwilkar’s varied trajectory as a SC Judge, there were some decisions which generated quite a buzz, not only in the legal circles but also in the political crowd and the civil society at large. Besides the very recent decision in Madanlal Choudhry v. Union of India (PMLA case), there have been other cases which encouraged a dialogue within the various sections of the society and media. Some of those cases have been listed below-

Foreign funding for NGOs

In a major win for the Union of India, the 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Noel Harper v. Union of India, 2022 SCC OnLine SC 434, upheld the validity of the amendments to the provisions of the Foreign Contribution (Regulation) Act, 2010 vide the Foreign Contribution (Regulation) Amendment Act, 2020. The Court was of the opinion that receiving foreign donations cannot be an absolute or even a vested right. By its very expression, it is a reflection on the constitutional morality of the nation as a whole being incapable of looking after its own needs and problems.

Gauri Lankesh Murder Case

In a major development in the Gauri Lankesh murder case, the bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Kavitha Lankesh v. State of Karnataka, 2021 SCC OnLine SC 956, set aside the Karnataka High Court order wherein it had quashed chargesheet filed against one Mohan Nayak. N, regarding offences under Sections 3(1)(i), 3(2), 3(3) and 3(4) of Karnataka Control of Organised Crimes Act, 2000.

Godhra Riots Case

The 3-judge bench of A.M. Khanwilkar, Dinesh Maheshwari and CT Ravikumar, in Zakia Ahsan Jafri v. State of Gujarat, 2022 SCC OnLine SC 773, dismissed Zakia Jafri’s plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State of Gujarat against the minority community.

Entry of Women in Sabrimala Temple

A 5-Judge Constitution Bench, in Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1, by a majority of 4:1, held that not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by Dipak Misra, CJ., for himself and A.M. Khanwilkar, J.; while, R.F. Nariman and Dr D.Y. Chandrachud, JJ., each gave separate concurring opinions. The only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion.

Dipak Misra, CJ., and A.M. Khanwilkar, J., held that the exclusionary practise  followed at the Sabarimala temple violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. The practice of exclusion of women of the age group of 10 to 50 years cannot be regarded as an essential part as claimed by the respondent Board.


 Legacy


♦Did you Know? During his tenure as a Judge, A.M. Khanwilkar, J., has been part of almost 809 Benches![5]   

Every field in Law is a vast universe in itself and it is through the contributions of lawyers and judges alike that people are able to access this ‘multiverse’. It would not be wrong to say that ever since Justice Khanwilkar entered the legal profession, at every step of his career, he has traversed into this infinite realm. At every phase of his career- whether it be Judging or Getting Judged- Justice Khanwilkar has not only proved his mettle, but his contributions have enriched the legal space for the posterity to savour.

Law is like the universe- infinite; thus, there are always chances of expansion. Since 1982, Justice Khanwilkar truly has been exploring the “multiverse of law”. We very much look forward to the next chapter in Justice Khanwilkar’s career with hopes that he keeps on exploring and expanding the legal boundaries.


†Sucheta Sarkar, Editorial Assistant has put this report together 

* Judge who has authored the decision

[1] Hon’ble Former Justices, High Court of Bombay

[2] Chief Justice and Judges, Supreme Court of India

[3] Justice AM Khanwilkar, SC Observer

[4] www.scconline.com

[5] Justice A.M. Khanwilkar, SC Observer

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]

Ajmer Vidyut Vitran Nigam Ltd. v. Hindustan Zinc Ltd., 2022 SCC OnLine SC 208

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that a modification changing tariff for inadvertent drawal from temporary supply rate to the regular supply rate cannot be considered to be a mere clarification and is rather a substantial alteration which cannot be made applicable retrospectively.

Read More…


Pawan Kumar v. Union of India, 2022 SCC OnLine SC 532

The Division Bench of Ajay Rastogi* and Sanjiv Khanna, JJ., reversed the impugned order of Delhi High Court whereby the High Court had upheld the dismissal order of appellant owing to suppression of information/false declaration in the verification form regarding criminal antecedent.

The Court held that the effect of suppression of material/false information involving in a criminal case is that it is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keep in view the objective criteria and the relevant service rules, while taking appropriate decision regarding continuance/suitability of the employee into service.

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P. Ranjitharaj v. State of T.N., 2022 SCC OnLine SC 508

The Division Bench comprising Ajay Rastogi and Bela M. Trivedi, JJ., reversed the impugned judgment of the Madras High Court and held that when the delay in appointment is attributable to the State, it would not deprive the employees of their right to become the member of the Pension Scheme, 1978 merely on the ground that the Scheme was not applicable to their year of appointment, particularly when other candidates who participated in the common process of selection were availing the same.

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Union of India v. Ex. Constable Ram Karan, 2021 SCC OnLine SC 1041

The Division Bench of Ajay Rastogi* and Abhay S. Oka, JJ.,    set aside the judgment of the Delhi High Court wherein it had substituted the penalty of removal from service with confinement of respondent from 1.00 p.m. to 10.00 p.m. in quarter guard jail without noticing the mandate of the nature of punishments indicated under Section 11(1) of the Central Reserve Police Force Act, 1949 (CRPF). The Bench expressed,

“The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon.”

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Sudhir Kumar Atrey v. Union of India, 2021 SCC OnLine SC 971

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed dismay over the manner adopted by the Western Command, Military Engineering Service in making appointments from the select panel of 29-06-1983 after a lapse of 4-5 years in the year 1987-1988.

“…the manner in which the appointments were made from the select panel of 1983 after it has outlived its life in the year 1987-1988 and ordinarily it was not open to be operated upon and such appointments are nothing but a clear abuse of the discretion vested with the competent authority.”

Read More…


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.”

Read More…

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.

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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.”

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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.”

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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.

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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.

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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.

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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.

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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.”

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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.”


†Ritu Singh, 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 one of the longest serving High Court Chief Justices to be elevated to the Supreme Court.[[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]] 


Remarkable Judgments as the Judge of Supreme Court


Union of India v. Rajendra N. Shah, 2021 SCC OnLine SC 474

A 3-Judge Bench has held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B is ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. At the same time, the Court by a majority of 2:1, followed doctrine of severability in declaring that Part IX-B is operative insofar as it concerns Multi-State Cooperative Societies both within various States and in Union Territories.  R.F. Nariman and B.R. Gavai, JJ. formed the majority. Whereas K.M. Joseph, J. penned a separate opinion dissenting partly with the majority. He expressed inability to concur with the view on the application of doctrine of severability.

Read more…


 P.B. Nayak v. Bhilai Steel Plant,  2021 SCC OnLine SC 970

The Division Bench of K.M Joseph* and Pamidighantam Sri Barasimha, JJ., held that mere fact that food, refreshment and even liquor is being provided in Non-Residential Clubs by catering services, it will not make the club premises ‘wholly or principally’ related to supply of meals and refreshments to make it fall within the purview of M.P. Shops and Establishments Act, 1958.

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Rathish Babu Unnikrishnan v. State (NCT of Delhi), 2022 SCC OnLine SC 513

While rejecting an appeal to quash proceedings under Section 138 of the N.I. Act, 1881 at pre-trial stage, the Division Bench comprising of K.M. Joseph and Hrishikesh Roy*, JJ., held that when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties.

The Bench upheld the impugned judgment of Delhi High Court wherein the High Court had – while acting as a quashing court under Section 482 of CrPC – refused to quash proceedings at pre-trial stage. The Bench observed,

“The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested.”

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Regional Transport Authority v. Shaju, 2022 SCC OnLine SC 209

The Division Bench comprising of K.M. Joseph and Pamidighantam Sri Narasimha*, JJ., held that Rule 174(2)(c) of the Kerala Motor Vehicle Rules,1989 is valid and salutary and does not go beyond the scope of Section 83 of the MV Act, 1988. While interpreting the expression “same nature” the Bench observed that such expressions are better kept open ended to enable courts to subserve the needs of changing circumstances. The Bench expressed,

“…the assumption in the impugned judgment that the expression “same nature” is confined only to, mean “a bus by bus, a mini-bus by mini-bus and not bus by a minibus….” is not a correct way to read the provision. There is no need to restrict the meaning of an expression same nature.”

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Amar Nath v. Gian Chand, 2022 SCC OnLine SC 102

The Division Bench of K.M. Joseph* and Pamidighantam Sri Narasimha, JJ., held that mere writing the word “cancelled” or drawing a line would not render Power of Attorney null and void as there must be cancellation and it must further be brought to the notice of the third party at any rate.

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CBI v. Uttamchand Bohra2021 SCC OnLine SC 1208

While dealing with a case of abetment and conspiracy for commission of criminal misconduct by public servant, the Division Bench of K.M. Joseph and S. Ravindra Bhat*, JJ., held that Section 13 of Prevention of Corruption Act cannot be invoked against a non-public servant. Clarifying the standard of suspicion to make out a prima facie case for conspiracy, the Bench stated,

“The material to implicate someone as a conspirator acting in concert with a public servant, alleged to have committed misconduct, under the PCA, or amassed assets disproportionate to a public servant’s known sources of income, has to be on firm ground.”

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Korukonda Chalapathi v. Korukonda Annapurna Sampath Kumar, 2021 SCC OnLine SC 847

The Division Bench of K.M Joseph* and S. Ravindra Bhat, JJ., held that an unregistered family settlement document is admissible to be placed “in” evidence if it does not by itself affect the transaction though the same cannot be allowed “as” evidence. The Bench expressed,

“Merely admitting the Khararunama containing record of the alleged past transaction, is not to be understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question.”

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 Commissioner of Police v. Raj Kumar2021 SCC OnLine SC 637

The Bench of K.M. Joseph and S. Ravindra Bhat, JJ. while addressing the matter, observed that,

“Public service – like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service.”

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 Manohar Lal Sharma v. Narendra Damodardas Modi2018 SCC OnLine SC 2807

A Bench comprising of CJ Ranjan Gogoi and S.K. Kaul and K.M. Joseph, JJ. dismissed the petitions pertaining to seeking probe in ‘Rafale Deal’ by stating that “we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.”

The present judgment given by the 3-judge bench of the Supreme Court dealt with 4 writ petitions in regard to procurement of 36 Rafale Fighter Jets for the Indian Airforce.

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Manish Kumar v. Union of India, 2021 SCC OnLine SC 30

The 3-Judge Bench of Rohinton Fali Nariman, Navin Sinha and K.M. Joseph, JJ., in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. While so upholding the impugned amendments, the Bench expressed an observation that:

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

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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.

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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.

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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.

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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:

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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.

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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.

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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.

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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.

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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.

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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.

______________________________________________________________________________

♦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]]


†Kamini Sharma, 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

The purpose of the law cannot be to allow the offender to sneak out of the meshes of law”.

Justice Bela M. Trivedi

Attorney General for India v. Satish, 2021 SCC OnLine SC 1076


Early life and Legal Career[1]


Justice Bela M. Trivedi was born on 10th June 1960 at Patan, in North Gujarat.  Since her father had a transferable judicial service, she did her schooling at various places. However, Justice Trivedi finished her B. Com – LL.B from the MS University, Vadodara.

As an advocate, Justice Bela Trivedi’s practice in the Gujarat High Court centered around Civil and Constitutional matters for about ten years. Later, on 10th July 1995, she was appointed directly as the Judge, City Civil and Sessions Court at Ahmedabad.

♦Did You Know? It was a happy coincidence that her father was already working as the Judge, City Civil and Sessions Court when she was appointed. The Limca Book of Indian records has recorded the entry in their 1996 edition that ” Father – daughter judges in the same court “.

Serving as a member of the Judicial Services, Justice Bela M. Trivedi also worked in different capacities like Registrar – Vigilance in the Gujarat High Court; CBI Court Judge; Special Judge – Serial Bomb blast matters etc. Justice Trivedi was also deputed as the Law Secretary of the Gujarat State Government between 2004 to 2006.[2]


High Courts


On 17th February, 2011, Justice Trivedi was elevated as the Judge of Gujarat High Court. Later in June 2011 she was transferred to the Rajasthan High Court at the Jaipur Bench. In 2013, Justice Trivedi was confirmed as a Permanent Judge of the Rajasthan HC. Three years later i.e., in February 2016, she was repatriated to the Gujarat High Court.[3]

Some of the important decisions rendered by Justice Bela M. Trivedi during her tenure in the High Courts have been listed below.

Rajasthan High Court

Manohar Lal v. State of Rajasthan, 2012 SCC OnLine Raj 1989

The Division Bench of Narendra Kumar Jain-I and Bela M. Trivedi, JJ., deliberated upon the grievance of the petitioners who were detained on the ground that they were dangerous persons and their activities were prejudicial to the maintenance of public order. The Bench observed that there was no explanation as to what the activities were and what were the reasons for passing the detention order after a delay of more than one year. Since their representations were rejected by a non-speaking order which is a violation of Art. 22(5) of the Constitution and in absence of any germane material for passing the order of detention, the entire order of detention was held as vitiated.

Radhey Shyam v. Radha Mohan Paliwal, 2012 SCC OnLine Raj 2208

While deciding the matter related to C.P.C., Order 22 Rule 5, Sec. 2(11) of CPC regarding determination of Legal Representatives of the deceased, Justice Bela M. Trivedi held that the legatee under the Will, who intends to represent the estate of the deceased testator being on intermeddler with the estate of the deceased, will be a Legal Representative.

Anuj Sharma v. Ram Gopal, 2014 SCC OnLine Raj 140

While deciding the issue concerning appointment of maternal grandfather as guardian of a minor while his natural father is alive, Justice Bela M. Trivedi held that as long as the father of the minor is alive and is not found unfit to be the guardian of the person of the minor, the Court cannot appoint any other person as guardian of the person of such minor.

Jal Mahal Resorts Pvt. Ltd. v. State of Rajasthan, 2015 SCC OnLine Raj 12151

Whether the Collector (Stamps) can review and set aside his own order under the guise of exercising the powers of rectification u/Sec. 52 of the Rajasthan Stamp Act, 1998; Justice Bela M. Trivedi held that, Collector (Stamps) cannot review his own order and such order shall be treated as passed without any authority of law, and therefore illegal. Chief Controlling Revenue Authority has the power to call for the record of any case decided in the proceeding held by the Collector and pass appropriate orders.

G.S. & Company v. Union of India, 2016 SCC OnLine Raj 1357

While dealing with the issue of scope and ambit of judicial review in contractual matters, the Bench of Bela M. Trivedi, J., held that such a scope is very limited and terms of invitation to tender are not open to judicial scrutiny. It was further held that unless the action of tendering authority is found to be malicious and misuse of its statutory powers, the interference of the Court is unwarranted- Exclusion and inclusion of terms and conditions in the tender is a part of evolutionary process.

Gujarat High Court

Surat Parsi Panchayat Board v. Union of India, 2021 SCC OnLine Guj 1431

The Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., dismissed a petition which was filed with the sole purpose of securing an appropriate order, direction and/or writ directing the authority to permit the petitioners and its members to perform Dokhmenashini/last rites in Dokhmas of its member having died due to Covid 19, in accordance with their religious practices which is duly protected by the Constitution of India. The Court while dismissing the petition went on to hold that impugned Guidelines issued by the Ministry of Health and Family Welfare considering the prevailing situation of Covid-19, in the larger public interest for the disposal of dead bodies by cremation or burial, could not be said to be violative of any fundamental rights.

“The safety and the welfare of the State is the supreme law as comprehended in the legal maxim – “salus populi suprema lex”. Even the fundamental rights to profess, practice or propagate religion, and the right to manage religious affairs, as enshrined under Articles 25 and 26 of the Constitution of India, are subject to public order, morality and health.”

Read more

Anil Surendrasingh Yadav v. State of Gujarat, 2019 SCC OnLine Guj 2692

A Division Bench of Bela M. Trivedi and A.C. Rao, JJ., dismissed an appeal filed on being aggrieved by the Judgment and order by the Additional Sessions Judge and Special Judge (POCSO), whereby it had convicted the appellant-accused for the offence under Sections 302, 363, 366, 376AB, 377 and 201 of the Penal Code, 1860 and under Sections 3(a), 4, 5(a), 5(r) and 6 of the Protection of Children from Sexual Offences Act, 2012, and had sentenced him to death penalty for the offence under Sections 302, 376AB of the Penal Code and had convicted him of the offences under the Atrocities Act. The Court while dismissing the appeal and confirming the decision of the Special Court stated that the abhorrent and atrocious nature of crime committed by the appellant-accused in a diabolical manner, on the defenseless unprotected girl of 3½ years, without any remorse, has left the Court with no option but to consider the case as the rarest of rare casefor awarding the punishment of death penalty.

Read more

Suo Motu v. State of Gujarat, 2021 SCC OnLine Guj 850

In the instant matter the Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., directed the State of Gujarat to remain alert despite the falling number of Covid-19 cases and take all necessary actions immediately with regard to the improvement of the health infrastructure in the rural areas as also for creating awareness amongst public at large of the Mucormycosis disease [one of the post- covid side effect] and for making the policy of distribution of Liposomal Amphotericin B injections more transparent, specific and effective.

Jignesh Natvarlal Mevani v. Suo Motu, 2021 SCC OnLine Guj 832

The Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., in the instant matter, perused the petition seeking to direct the State of Gujarat to publish and come out with data at the end of every day with regard to the total tests done for COVID-19; the number of Covid-19 fatalities and other connected information. The Court however, did not pass any directions in this regard citing the advisories issued by the ICMR.

Suo Motu v. State of Gujarat, 2021 SCC OnLine Guj 834

The Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., noting the swift spread of covid19 in rural areas and no clear strategy regarding the distribution of vaccines and medicines, directed the Central Government to place on record for the information of the general public at large, about the vaccination policy adopted by the Central Government. The Bench also directed the Gujarat Government to provide details on oath regarding availability of dedicated covid hospitals, RT-PCR tests etc.


Supreme Court


In August 2021, the Supreme Court Collegium while deliberating upon appointment of new Judges to the Supreme Court, recommended the name of Justice Bela M. Trivedi along with 8 other names. Subsequently, the recommendations were accepted and Justice Trivedi was elevated as Judge of Supreme Court of India on 31st August, 2021.[4]

♦Did you Know? Upon her elevation, Justice Bela M. Trivedi became the First Woman Judge from Gujarat High Court to be elevated to the Supreme Court.[5]

Some of the prominent decisions, that have been rendered by Justice Bela M. Trivedi so far, are as follows-  

Jaina Construction Co. v. Oriental Insurance Co. Ltd., (2022) 4 SCC 527

The bench of Sanjiv Khanna and Bela M. Trivedi, JJ., held that an Insurance Company cannot repudiate a claim merely on the ground that there was a delay in intimating it about the occurrence of the theft of vehicle. The Court was deciding a case relating to theft of a Truck that was insured with Oriental Insurance Company Limited.

Read more

Attorney General for India v. Satish, 2021 SCC OnLine SC 1076

In an important ruling on POCSO Act, the 3-judge bench of UU Lalit, Bela M. Trivedi and S. Ravindra Bhat, JJ., set aside the Bombay High Court (Nagpur Bench) judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’. Justice Bela M. Trivedi also observed that-

“The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.”

Read more

Muzaffar Husain v. State of U.P., 2022 SCC OnLine SC 567

In a case where a Judge was accused of misconduct, the bench of Dr. D.Y. Chandrachud and Bela M. Trivedi, JJ., held that showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration.

“It is often said that “the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion.”

Read more

P. Ranjitharaj v. State of T.N., 2022 SCC OnLine SC 508

The Division Bench comprising Ajay Rastogi and Bela M. Trivedi, JJ., reversed the impugned judgment of the Madras High Court and held that when the delay in appointment is attributable to the State, it would not deprive the employees of their right to become the member of the Pension Scheme, 1978 merely on the ground that the Scheme was not applicable to their year of appointment, particularly when other candidates who participated in the common process of selection were availing the same.

Read more

 Munni Devi v. Rajendra, 2022 SCC OnLine SC 643

The bench of Ajay Rastogi and Bela M. Trivedi, JJ., held that by virtue of Section 14(1) of the Hindu Succession Act, 1956, the Hindu widow’s limited interest gets automatically enlarged into an absolute right, when such property is possessed by her whether acquired before or after the commencement of 1956 Act in lieu of her right to maintenance.

Read more

R. Muthukumar v. TANGEDCO, 2022 SCC OnLine SC 151

In a case where some candidates who had applied for the post of Helper/trainee with Tamil Nadu Generation and Distribution Corporation Ltd (TANGEDCO) on the basis of a compromise order directing appointment of 84 persons, arguing that they were similarly situated, the 3-judge bench of UU Lalit, S. Ravindra Bhat and Bela M. Trivedi, JJ., held that if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.

Read more

Sunil Kumar Maity v. SBI, 2022 SCC OnLine SC 77

In an interesting case where one SBI account holder was left with a balance of Rs. 59/- only in his account due to the existence of another bank account with strikingly similar name in the same branch, the bench of Sanjiv Khanna and Bela M. Trivedi, JJ., set aside the “highly erroneous” impugned order passed by the National Consumer Disputes Redressal Commission solely relying upon the suo-moto report called for from SBI during the pendency of the revision application.

Read more

Chandrapal v. State of M.P., 2022 SCC OnLine SC 705

The Division Bench of Dr. D.Y. Chandrachud and Bela M. Trivedi, JJ., reiterated the settles position of law vis-a-vis extra-judicial confessions and observed that an extra judicial confession attains greater credibility and evidentiary value if it is supported by chain of cogent circumstances and is further corroborated by other prosecution evidence.


†Sucheta Sarkar, Editorial Assistant has put this report together 

Justice Bela M. Trivedi’s Image Courtesy: Times Now 

[1] Chief Justice and Judges Supreme Court of India

[2] Justice Bela M. Trivedi SC Observer

[3] Justice Bela M. Trivedi SC Observer

[4] Chief Justice and Judges Supreme Court of India

[5] Know about Justice Bela M. Trivedi, Sparsh Upadhyay, Live Law

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


Despite the gloominess that generally surrounds farewells and retirements; they are probably the perfect occasion to reminisce about the uniqueness and the legacy that has been created by an individual. In the legal fraternity, a Supreme Court Judge’s retirement carries quite a sentiment. Of course, once you enter the field of law, the journey never really ends. But a Judge isn’t there only to judge. A judge has a superpower- a constitutionally mandated superpower to interpret the law. A judge’s interpretation has the force of law. Which is why, when a Supreme Court Judge retires, it feels like a loss of guidance and wisdom. Today, one such paragon of wisdom, Justice Lavu Nageswara Rao officially retires as a Supreme Court Judge and therefore it is time that we bring to you a recapitulation of Justice Rao’s stellar legal career.


Early Life and Career as an Advocate [1982- 2016]


Justice Rao was born on 08.06.1957 at Chirala, Prakasam District in Andhra Pradesh and did his schooling and graduation in Andhra itself (Nagarjuna University).[1]

♦Howzatt! Justice Rao participated in the Ranji Trophy cricket tournament in the year 1982.  Furthermore, in a recently held cricket match between Chief Justice of India- XI vs. Supreme Court Bar Association- XI, wherein, the CJI-XI defeated the SCBA-XI for the first time, with a whooping margin of 72 runs; with Justice L. Nageswara Rao becoming the “wrecker in chief” claiming 3 wickets for 9 runs in 2 overs!![2]

When not probing allegations against the Indian premier League, Justice Rao has a lot of interest in watching IPL matches![3]

His enrollment as an advocate at the Bar Council of Andhra Pradesh in July 1982 meant that he became a first-generation lawyer in his family. Post enrollment, Justice Rao started practicing at the District Court in Guntur and at Andhra Pradesh High Court (at Hyderabad). In December 2000, Justice Rao was designated as a Senior Advocate by the Andhra Pradesh High Court. After a stint in his native State, Justice Rao set up his practice at the Supreme Court of India and continued to do so till his elevation as a Supreme Court Judge in 2016.[4]

Justice Nageswara Rao also served as Additional Solicitor General of India for two terms- first term from August 2003 to May, 2004; and second term from 26th August, 2013 to 18th December, 2014.[5]

♦Acting Chops![6]  Here’s a riveting titbit – In the year 1989, Justice L. N. Rao, who was still practicing as an advocate; appeared in the action-drama flick Kanoon Apna Apna alongside stars such as Dileep Kumar, Kader Khan and Sanjay Dutt. Not surprisingly, his reel role had a law connection; i.e. he played the role of a Police Officer!  

Not only films, during his college days, Justice Rao was very much involved in Theatre. However, he wasn’t much interested in pursuing acting as a career.  


Noteworthy Cases and Committees


Justice Rao represented late J. Jayalalitha in the disproportionate assets case before the Karnataka High Court and secured a favourable decision for her in the matter. [Selvi J. Jayalalitha v. State, 2015 SCC OnLine Kar 124]

Justice Rao also appeared for the Christian Medical College and State of Tamil Nadu in the NEET case before the Supreme Court [Christian Medical College v. Union of India, (2014) 2 SCC 305]

As Additional Solicitor General of India, Justice Rao was part of the 3- member Mudgal Committee appointed by the Supreme Court, to look into the allegations of corruption against the BCCI (Board of Control for Cricket in India) and spot-fixing in the IPL.[7]

Some other prominent cases advocated by Justice Rao are as follows-

Samatha v. State of A.P., (1997) 8 SCC 191

State of A.P. v. A.P. SRTC, (2001) 9 SCC 197

M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691

SAIL v. National Union Waterfront Workers, (2001) 7 SCC 1

ITC Ltd. v. Agricultural Produce Market Committee, (2002) 9 SCC 232

K.M. Mathew v. K.A. Abraham, (2002) 6 SCC 670

Air India Cabin Crew Assn. v. Yeshaswinee Merchant, (2003) 6 SCC 277

E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394

M.C. Mehta v. Union of India, (2011) 15 SCC 461

Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1

High Court of Madras v. R. Gandhi, (2014) 11 SCC 547


Judgeship of Supreme Court of India [2016- 2022]


Justice Nageswara Rao was offered Supreme Court judgeship in 2014 by then Chief Justice of India R.M Lodha. He however, turned down the offer, citing personal and professional reasons[8]. Two years later, on 13.05.2016, Justice Rao finally took oath as a Judge of the Supreme Court of India[9].

♦From the Bar to the Bench! With his elevation as a Supreme Court Judge, Justice L. Nageswara Rao became the 7th lawyer to be directly elevated from the Bar[10]!   


 Notable Judgments


♦Double Century!  Justice L.N. Rao has authored 200+ judgments so far.[11]

Justice L. Nageswara Rao’s tenure as a Judge is remarkable for the number of landmark judgments that have been delivered on diverse issues. Furthermore, Justice Rao’s approach in authoring his judgments in a way that hits the proverbial ‘bull’s eye’ vis-a-vis discerning the ratio, has been praised by many for making the life of a practical lawyer easy.

The most noteworthy aspect of the judgements of Justice Nageswara Rao is its crisp and point-blank element which serves the purpose of the matter at hand with legal reasoning/ratio in lesser words.” – K. Ramakanth Reddy[12]

Justice Rao in his 6-year tenure dealt with matters ranging from protection of liberty of an individual to highlighting and berating corrupt electoral practices to ensuring a dignified life for all, irrespective of their caste, creed or profession. His decisions on these issues definitely provided a lot of fuel to the discourse within the legal circles. Some of the important issues that Justice L.N. Rao covered in decisions are as follows-

Grant of liberty

During the final days of his tenure at the Bench, Justice L.N. Rao granted big relief for A.G. Perarivalan, convicted for assassination of former Prime Minister Rajiv Gandhi, [AG Perarivalan v. State, 2022 SCC OnLine SC 635] and directed his release after being incarcerated for 32 years. Similarly, Azam Khan and Indrani Mukherjea were granted bail in their respective cases.

Affirmative Action/ Reservation

Justice Rao was a part of the 5- Judge Bench in Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1 that quashed the much in debate Maratha Reservation and 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 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’s[13] case.

In Jarnail Singh v. Lachhmi Narain Gupta, 2022 SCC OnLine SC 96 the 3-judge bench of L. Nageswara Rao, Sanjiv Khanna and BR Gavai, JJ., has answered 6 crucial questions in relation to quantifiable data showing inadequacy of representation in promotional posts.

However, Justice Rao, in Mukesh Kumar v. State of Uttarakhand, (2020) 3 SCC 1 held that no mandamus can be issued by the Court to the State to collect quantifiable data relating to adequacy of representation of the Scheduled Castes and Scheduled Tribes in public services. The Court also held, “The State Government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing the State Government to provide reservations”.

In the case of Pattali Makkal Katchi v. A. Mayilerumperumal, 2022 SCC OnLine SC 386, relating to reservation of seats in Educational Institutions, the bench of L. Nageswara Rao and BR Gavai, JJ observed that while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the decision and demonstrate that caste is not the sole basis.

In a relief to students seeking admission in AIIMS Institutes, the bench of L. Nageswara Rao and AS Bopanna, JJ., in Students Assn. AIIMS v. All India Institute of Medical Sciences, 2022 SCC OnLine SC 681 directed that a roster point-based reservation for preferential candidates as followed by Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER) shall be implemented in all the AIIMS institutes.

Regarding Judiciary -Tribunals and Contempt of Court

In the landmark decision of Madras Bar Assn. v. Union of India, (2021) 7 SCC 369

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat 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. In Het Ram Beniwal v. Raghuveer Singh, (2017) 4 SCC 340, the bench of L.N. Rao and Anil Dave, JJ., dealt with a matter of criminal contempt of court, wherein an attempt was made to scandalise the authority of court via allegations of bias and corruption. It was held that Judges need not be protected since they can take care of themselves but it is the right and interest of public in due administration of justice which must be protected. “Vilification of Judges leads to destruction of system of administration of justice. Thus, statements made by appellants accusing Judges of corruption results in denigration of institution which has effect of lowering confidence of public in system of administration of justice, were not only derogatory but had propensity to lower authority of court.”

Regarding Practice and Procedure and Disposal of Cases

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 S.A. Bobde, CJ., and L. Nageswara Rao and S. Ravindra Bhatt, JJ., via Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In re, (2021) 10 SCC 598, 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. Similarly, when it was noticed 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 comprising of S.A. Bobde, C.J. and L. Nageswara Rao, B.R. Gavai, A.S. Bopanna and S. Ravindra Bhat, JJ., via Expeditious Trial of Cases Under Section 138 of N.I. Act 1881, In re, 2021 SCC OnLine SC 325  directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

Sex Workers’ Right to Dignity

In a significant decision, the 3-judge Bench comprising of L. Nageswara Rao, B. R. Gavai and A.S. Bopanna, JJ., in Budhadev Karmaskar v. State of W.B., 2022 SCC OnLine SC 704, upheld sex workers right to identity and issued detailed directions for their protection and upliftment. The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Aadhar Card for them without insisting on address proof.

Regarding Democracy, Constitutional and Electoral Processes

In several important judgments, Justice L.N. Rao upheld the constitutional essentialities and reprimanded corrupt practices that subvert the democratic process. Like in 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. The principles for promulgation of ordinances were thus laid down in this case. Likewise, in Abhiram Singh v. C.D. Commachen (2017) 2 SCC 629, the 7- Judge Bench of the Court with a ratio of 4: 3 severely reprimanded the practice of electoral appeal on the basis of caste, religion, race and community. The Court held that such an appeal 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 voters’. Justice Rao joined T.S. Thakur, CJ., and Madan B. Lokur, and S.A. Bobde, JJ., to give the majority ruling in the 4:3 verdict, while Dr. D.Y. Chandrachud, Adarsh K. Goel and U.U. Lalit, JJ., dissented.

Covid-19, Vaccines and Other related matters

The onset of Covid-19 pandemic meant that the judiciary had to face new challenges and issues. Benches led by Justice L.N. Rao provided the requisite guidance in such unprecedented circumstances. In Jacob Puliyel v. Union of India, 2022 SCC OnLine SC 533, a matter related to COVID-19 vaccination drive; the bench of L. Nageswara Rao and BR Gavai, JJ., held that bodily integrity is protected under Article 21 of the Constitution of India and no individual can be forced to be vaccinated.

In Distribution of Essential Supplies & Services during Pandemic, In re, (2021) 7 SCC 772, the 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ., expressed serious concerns on the ability of the marginalized members of society between the ages of 18-44 years to avail COVID-19 vaccination, exclusively through a digital portal in the face of a digital divide. The Court also sought to understand the Government’s vaccination policy in light of the raging Delta wave in 2021 and noted that, “A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.

Not only the vaccination policy, the 3- Judge Bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ., even took suo moto notice under Art. 32 of the Constitution regarding the issues surrounding the availability of essential medical supplies during the height of Covid-19 in 2021. The Court in Distribution of Essential Supplies and Services During Pandemic, In re, 2021 SCC OnLine SC 372 observed that in a time of national crisis, such as the one which is confronting the nation as a consequence of the pandemic, the Supreme Court cannot stand silent as a mute spectator. The court has a constitutional duty to protect the fundamental rights traceable to Part III of the Constitution.

Free Speech

For any thriving democracy, protection of free speech is sacrosanct. The judicial system acts as a protector of this very essentiality. In Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258, the bench of L.N. Rao and S. Ravindra Bhat, JJ., quashed the criminal case registered against Shillong Times Editor Patricia Mukhim under Sections 153 A, 500 and 505 (1) (c) of the Indian Penal Code, 1860 and observed that, “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.”

Regarding entry of women in Temples and Dargahs   

In 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, 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. Likewise in Haji Ali Dargah Trust v. Dr. Noorjehan Safia Niaz, (2016) 16 SCC 788, the 3-Judge Bench of T. S. Thakur, C.J.  and D. Y. Chandrachud and L. Nageswara Rao, JJ., gave 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 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.

Matrimonial disputes

Dealing with the case where a husband had sought divorce from his wife on the ground that she was forcing him to leave his parents as he was providing them financial support, the Court in Narendra v. K. Meena, (2016) 9 SCC 455 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’. In 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 a 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.”


Legacy


♦Man of many talents! Justice Nageswara is also a golfer and an avid biker.[14]

With great power, comes great responsibility” and if the responsibilities are performed with diligence and dedication, then it leaves behind a Legacy. From his enrolment in 1982 till his retirement as a SC Judge, Justice Nageswara has contributed immensely in enriching the law and its interpretations. In the recently held Farewell Function[15] organised by the Supreme Court Bar Association, the fellow Judges and lawyers were all praise for Justice L.N. Rao’s simplicity, hard work and gentle demeanour.

With another phase of his legal career is set to end; there is truly no end in sight for Justice Rao, because after retirement, he will be heading India’s first International Arbitration and Mediation Centre which was recently inaugurated at Hyderabad[16].

As I stated earlier, Farewells are about reminiscing the legacy left behind with a hope for a new eventful chapter. Justice Lavu Nageswara Rao’s legacy has been well established with his legal practice, judgments and overall conduct with his peers and juniors. Now we look forward to the next stage of his journey to demystify the law because when it comes to Law, “The road goes ever on and on!”.[17]


†Sucheta Sarkar, Editorial Assistant has put this report together 

[1] Chief Justice and Judges, Supreme Court of India.

[2] Supreme Court Judges crush Advocates in a game of Cricket, Latest Laws [dot] com

[3] Justice L.N. Rao- A star in real and reel life, The Hindu

[4] Justice L. Nageswara Rao, Supreme Court Observer

[5] Chief Justice and Judges, Supreme Court of India.

[6] Meet Justice L.N. Rao, Live Mint

[7] Justice L. Nageswara Rao , Supreme Court Observer

[8] L Nageswara Rao recommended for the post of SC judge, Indian Express

[9] Chief Justice and Judges, Supreme Court of India.

[10] Justice L. Nageswara Rao , Supreme Court Observer

[11] https://www.scconline.com

[12] Emerging trends in judgment writing introduced by Justice L Nageswara Rao, The Siasat Daily

[13] Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217

[14] Justice L. Nageswara- A star in reel and real life

[15] Justice L. Nageswara Rao- Spotlight, by Aamir Khan for Bar and the Bench

[16] India’s first International Arbitration and Mediation Centre opens , Business Standard News

[17] Quote by Bilbo Baggins, “The Fellowship of the Ring“, by JRR Tolkien

Know thy Judge

Born to Advocate Shreeniwas W. Oka on May 25, 1960, Justice Abhay S. Oka completed his Bsc and LLM from Mumbai University and enrolled as an advocate on June 28, 1983, and started practicing in Thane District Court in the chambers of his father

♦Did You Know? In 1985-86, Justice Oka joined the chamber of V. P. Tipnis, a former judge of the Bombay High Court and former Lok Ayukta.

He practiced for 19 years in the High Court, Appellate Side, Bombay in Civil, Constitutional and Service matters and specialised in all the matters.  In 2003, he was appointed as an Additional Judge of the Bombay High Court. In 2005, he was appointed as a permanent Judge in Bombay High Court. He was appointed as the Chief Justice of the Karnataka High Court in 2019, before being elevated as a Supreme Court judge in 2021.

During his tenure as a High Court judge, he passed many orders on environmental protection and for better living conditions in Bangalore and Bombay. He is known for his orders on civil liberties. During the Covid-19 pandemic, he passed several orders protecting the rights of migrant workers and questioned the handling of the government.

♦Did You Know? Justice AS Oka at one point decided to become an engineer but gave up the idea midway and decided to join the legal fraternity instead.[1]


Justice Oka and PIL


♦Did You Know? During the tenure of Justice A.S. Oka as the Chief Justice of the Karnataka High Court, the Karnataka High Court suddenly become a constitutional shield for the protection of the rights of many marginalised communities including slum dwellers, sweepers, prisoners and transgender persons.

Justice Oka took the Public Interest Litigation`s version of locus standi seriously and used it in facilitative role as opposed to a “command-and-control” position, ascertained real dedication from diverse reassets along with affidavits from public servants of the State, and exercised restraint while the pains of a tribulation had been required in ascertaining statistics and while technical knowledge changed into required.

Justice Oka`s tenure as the Chief Justice has been a living proof for exercising a delicate balance in the PIL jurisdiction, even as concurrently making sure protection from fundamental right violations of the maximum vulnerable.

Justice Oka frequently exercised restraint however at the same time, is unafraid to fulfil the mandate of the Constitution, even supposing it intended displeasing the executive. Such judicial orders additionally got here at instances the people of Karnataka wanted them the maximum.

His conviction to uphold justice, harbingering social change and preserving administrative accountability can be reflected through his judgments like – right to protest and requirements of Section 144 of CrPC, Rights of the urban poor: illegal evictions, Right to shelter: upholding the state’s obligation to provide shelter to the homeless under Article 21 of the Constitution and ordering the setting up requisite night shelters for the homeless across urban areas in the State, right of prisoners, Secularism,  inviolable right to legal representation, combating atrocities against Scheduled Castes & Tribes, implementation of prohibition on manual scavenging and judicial intervention in the COVID-19 crisis.


Notable Judgements at Supreme Court


Maniben Maganbhai Bhariya v. District Development Officer Dahod, 2022 SCC OnLine SC 507

In a detailed judgment stressing on the importance of the work done by the Anganwadi workers/helpers at the grassroot level, the bench of Ajay Rastogi* and Abhay S. Oka*, JJ has held that Anganwadi workers/helpers are entitled to gratuity under the Payment of Gratuity Act, 1972.

Writing separate but concurrent opinions, both the judges agreed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre-school education. And for all this, they are being paid very meagre remuneration and paltry benefits.

Read More…


K. Shanthamma v. State of Telangana, 2022 SCC OnLine SC 213

In an interesting case relating to corruption, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., acquitted a Commercial Tax Officer in spite of proved recovery of tainted currency notes from her. The Bench observed that though the recovery was proved in the absence of demand being conclusively proved conviction cannot be made under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.

Read more…


Ajmer Vidyut Vitran Nigam Ltd. v. Hindustan Zinc Ltd., 2022 SCC OnLine SC 208

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that a modification changing tariff for inadvertent drawal from temporary supply rate to the regular supply rate cannot be considered to be a mere clarification and is rather a substantial alteration which cannot be made applicable retrospectively.

Read more…


UCO Bank v. Krishna Kumar Bhardwaj, 2022 SCC OnLine SC 201

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that non-supply of demanded documents is not sufficient to challenge a disciplinary inquiry unless it is showed what prejudice has been caused due to non-supply.

Read More…


Bihar Industrial Area Development Authority v. Rama Kant Singh, 2022 SCC OnLine SC 32

In a case where the bench of Ajay Rastogi and Abhay S. Oka*, JJ was deciding an issue relating to Bihar Public Works Contracts Disputes, the bench has held that if any of the provisions of the Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 are in conflict with the Arbitration and Conciliation Act, 1996, the 2008 Act shall prevail to the extent of the conflict.

Read More…


Deepak v. State of Maharashtra, 2022 SCC OnLine SC 99

While deciding the instant appeal wherein the appellant challenged the externment order issued against him under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., quashed the impugned externment order observing that that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. The Bench held that,

“If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under Article 19(1) (d) of the Constitution”.

Read More…


Horticulture Experiment Station Gonikoppal, Coorg v. Regional Provident Fund Organization, 2022 SCC OnLine SC 223

The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that any default or delay in the payment of EPF contribution by the employer under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 is a sine qua non for imposition of levy of damages under Section 14B and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.

Read More…


Debananda Tamuli v. Kakumoni Kataky, 2022 SCC OnLine SC 187

In a case where it was argued that merely because husband and wife are staying separately since a long time, an inference regarding desertion cannot be drawn, the bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.

“The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.”

Read More…


S.K. Supiyan v. CBI, 2022 SCC OnLine SC 164

In a breather to SK Supiyan, West Bengal Chief Minister Mamta Banerjee’s Election Agent in the Vidhan Sabha Elections held in 2021, the bench of L Nageswara Rao and Abhay S. Oka*, JJ has granted him anticipatory bail in the Nandigram murder case but has directed him to fully cooperate with CBI for investigation and to remain present for investigation as and when called upon by the investigating officer. The Court made clear that the pre-arrest bail is liable to be cancelled if it is found that the appellant is not cooperating for the investigation.

Read More…


Jagathy Raj V.P. v. Rajitha Kumar S., 2022 SCC OnLine SC 152

While addressing the question of law with regard to lifespan of relinquishment of claim for consideration for promotion in educational institutions, the Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed,

“…the paramount consideration not to disrupt the academic and research work of a senior Professor when his turn arises and if he has shown unwillingness, his seniority has to be given its predominance and opportunity be available to him to serve when the next rotation becomes due…”

Read More…


Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43

In a habeas corpus case the Division Bench Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,

 “We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”

Read More…


Punjab State Cooperative Agricultural Development Bank Ltd v. Registrar, Cooperative Societies, 2022 SCC OnLine SC 28

The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

“If a person while entering into service, has a legitimate expectation that as per the then existing scheme of rules, he may be considered for promotion after certain years of qualifying service or with the age of retirement which is being prescribed under the scheme of rules but at a later stage, if there is any amendment made either in the scheme of promotion or the age of superannuation, it may alter other conditions of service such scheme of rules operates in futuro.  But at the same time, if the employee who had already been promoted or fixed in a particular pay scale, if that is being taken away by the impugned scheme of rules retrospectively, that certainly will take away the vested/accrued right of the incumbent which may not be permissible and may be violative of Article 14 and 16 of the Constitution.”

Read More…


Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156

In a case where a 74-year-old has been behind the bars since 2012 as an undertrial prisoner, after being arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the bench of Ajay Rastogi* and Abhay S. Oka, JJ has directed that the accused be released on post-­arrest bail by the trial Court.

Read More…


Vinod Kumar v. Amritpal, 2021 SCC OnLine SC 1150

The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that once the prosecution establishes the existence of the three ingredients forming a part of “thirdly” in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. Further, it does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature. Even the knowledge that an act of that kind is likely to cause death is not necessary to attract “thirdly”.

Read More…


Ashim v. National Investigation Agency, 2021 SCC OnLine SC 1156

After granting bail to a 74-year-old arrested under the Unlawful Activities (Prevention) Act, 1967, as after the charge-sheets came to be filed way back in 2012, the charges were framed after 7 years and hearing was taking place only one day in a month, the bench of Ajay Rastogi* and Abhay S. Oka, JJ said that if this procedure is being followed in conducting the trial under the National Investigation Agency Act, 2008, it frustrates the very purpose with which the special Courts are designated.

Read More…


Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000

The bench of Ajay Rastogi and Abhay S. Oka*, JJ has granted bail to Thwaha Fasal and Allan Shuaib, booked under punishable under Sections 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 for alleged links with Communist Party of India (Maoist).

It was argued before the Court that though the investigation of the case was later on, transferred to National Investigation Agency (NIA), the NIA did not seek sanction for prosecuting any of the accused for the offence punishable under Section 20. Sanction was sought to prosecute Fasal and Shuaib for the offences punishable under Sections 38 and 39. In addition, a sanction was sought to prosecute Shuaib under Section 13.

Hence, in view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable under Section 20, it was noticed that a prima facie case of the accused being involved in the said offence is not made out at this stage.

Read More…


State of M.P. v. Somdutt Sharma, 2021 SCC OnLine SC 829

“Overall activities and functions of the Irrigation Department would have to be considered while deciding the question whether it is carrying on manufacturing activities.”

The Division Bench comprising of Ajay Rastogi and Abhay S. Oka*, JJ., held that Irrigation Department was not a factory within the meaning of Factories Act, 1948 as there was no indulgence in manufacturing process in the Department. The Bench expressed,

“Even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process.”

Read More…


Nagendra Sah v. State of Bihar, 2021 SCC OnLine SC 717

The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that when the chain of circumstantial evidence is not complete, falsity of the defence is no ground to convict the accused.

“…falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.”

Read More…


SY Azhar SY. Kalandar v. State of Maharashtra, 2021 SCC OnLine SC 701

While noting the mitigating factors and circumstances in which a crime had been committed and considering that the parties are residing in the same village and are peacefully residing after the uncalled for incident had taken place, the Division Bench of Ajay Rastogi* and Abhay S. Oka, JJ., reduced the quantum of sentence for a conviction under Section 307  Penal Code, 1860.

Read More…


Notable Judgements at High Court


♦Did You Know? Justice Oka’s bench, when he was sitting with Justice Riyaz Chagla, was accused by Advocate General Ashutosh Kumbhakoni of bias. This was when the bench was hearing PILs regarding noise pollution. Following the allegations, the then Chief Justice Manjula Chellur took away the matter from Justice Oka but after public outcry and support from the bar associations, the petitions were returned to the bench. Three days after levelling charges against the judge, the state government withdrew the allegations, tendered an apology, and claimed that it held the judge “in the highest esteem”.[2]

Girish Bharadwaj v. State of Karnataka, 2020 SCC OnLine Kar 445

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. while addressing a petition with regard to release of information of people who contracted COVID-19 at Nizamuddin, Delhi,  stated that, it is a policy decision and Court cannot interfere in the same.

Read More…


Sandhya U. Prabhu v. State of Karnataka, 2020 SCC OnLine Kar 441

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., while addressing a petition held that,

“…decision to keep open super markets 24×7 relates to purely a policy decision and nothing arbitrary in the said policy decision is found.”

Read More…


Mohammed Arif Jameel  v. Union of India, 2020 SCC OnLine Kar 391

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. asked the State Government of Karnataka to take cognizance on various significant issues that have been raised in wake of the outbreak of Corona Virus.

Read More…


Mohammed Arif Jameel v. UOI, 2020 SCC OnLine Kar 539

While addressing a petition dealing with issue of migrant workers who had applied to be accommodated to the Shramik Special Trains to their origin State, a Division Bench of Abhay Shreeniwas Oka, CJ and B.V. Nagarathna, J. held that,

“though several orders have been passed by this Court from time-to-time, the State has not placed on record any transparent and fair policy for selecting persons out of those who registered on Seva Sindhu website.”

Read More…


Vijayakumar Rai v. State of Karnataka, 2019 SCC OnLine Kar 2186

A Division Bench of Abhay S. Oka, CJ. and Mohammad Nawaz, J. directed the state government to refund the amount already deducted from the salaries of judicial officers by the end of February 2020.

Read More…


MONKEYS DEATH – SUO MOTU; decided on 30-07-2021

A Division Bench of Abhay S. Oka CJ and N S Sanjay Gowda J. remarked that it is necessary to lay down the guidelines to ensure that inhuman and shocking incidents of animal cruelty are hereafter prevented.

The Court took up suo moto cognizance of large number of monkey deaths on the roadside in Belur Taluk of Hassan District on Wednesday night after 15 alive monkeys who were put in a large bag were found as per news reports published in the leading newspapers – Deccan Herald, Indian Express, Times of India, Prajavani, etc.

Read More…


Sanathana Kalakshetra v. Bruhat Bengaluru Mahanagara Palike, 2020 SCC OnLine Kar 871

A Division Bench of Abhay S. Oka, CJ and M. Nagaprasanna, J., while addressing a matter held that,

“…right to construct unauthorized temple and that also on a footpath cannot be said to be an essential part of any religion or religious practice which can be protected under Article 25 of the Constitution of India.”

Read More…


V. Mara Nayaka v. State of Karnataka, 2019 SCC OnLine Kar 681

The Division Bench of Abhay S. Oka, C.J. and H.T. Narendra Prasad, J. while not going into the legal issue involved, dismissed the petition and held that the act of the petitioner is not pro bono and should not be allowed to invoke the extraordinary jurisdiction of this Court by filing a Public Interest Litigation.

Read More…


High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 762

A Division Bench of Abhay Shreeniwas Oka, CJ and Vishwajith Shetty, J., laid down the guidelines to be followed for payment of dues to the claimants in Motor Vehicle Accident Claim cases, Workmen’s Compensation Act, 1923 Matrimonial Cases and Land Acquisition Compensation cases etc.

Due to the partial functioning of the district and trial Courts in the State in view of the COVID-19 Pandemic, entry of litigants in the Courts premises has not been permitted.

Read More…


High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 543

A Division Bench of Abhay Shreeniwas Oka, CJ and S Vishwajith Shetty, J., while dealing with many issues held that no legal basis for Family Courts insisting on personal presence of petitioners at the time of filing cases and presence of complainant while filing S. 138 NI Act case not necessary.

Read More…


Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 442

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J., asked for the State Government’s response with regard to breach of social distancing norms at a political leaders house, incident of assault on doctors, nurses and ASHA workers and action being taken on the complaints filed with respect to domestic violence.

Read More…


Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 448

A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathnna, J. held that , owners of seized vehicles due to breach of COVID-19 Guidelines may approach jurisdictional Police Officers for the same.

“…in case of such seizure of vehicles for the offences relating to breach of the directions concerning COVID-19, it will be open for the jurisdictional Police Officers to exercise the powers under sub- section (3) of Section 102 of Cr.P.C and to give custody of the vehicles in terms of sub-section (3) of Section 102 to the owners.”

Read More…


KC Kondaiah v. State of Karnataka, WP No. 7987 of 2020

A Division Bench of Abhay S. Oka CJ. and Ashok S. Kinagi J., while partly allowing the present petition, discussed the powers and obligations of the State Election Commission and the limited intervention of the State Government in exercise of such powers.

Read More…


SEBI v. Franklin Templeton, 2020 SCC OnLine Kar 1650

A Division Bench of Abhay S. Oka CJ. and Ashok S.Kinagi J., while allowing the present writ petition held, “the decision of the Trustees (the Franklin Templeton Trustee Services private Limited) to wind up six Schemes mentioned in paragraph-1 of the Judgment by taking recourse to sub-clause (a) of clause (2) of Regulation 39 of the Mutual Funds Regulations cannot be implemented unless the consent of the unit-holders is obtained in accordance with sub-clause (c) of clause (15) of Regulation 18.”

Read More…


High Court of Karnataka v. State of Karnataka, WP No. 7338 of 2020

A Division Bench of Abhay S. Oka, CJ and S. Vishwajith Shetty, J., in view of the present situation of COVID-19 outbreak held that,

“…course adopted by the Courts while recording the plea of the accused and recording the statement of the accused under Section 313 of CrPC through video conferencing hearing will be a step taken to reduce the physical presence of the stakeholders in the Courts precincts to meet the exceptional situation and to secure the functioning of the Courts by following the best possible health practice.”

Read More…


Mohammed Arif Jameel v. Union of India, W.P. No. 6435 of 2020

A Division Bench of Abhay S Oka, CJ and Aravind Kumar, J. gave a slew of directions regarding vaccine allocation. The Court took stock of the various aspect related to COVID vaccination in the State.

Read More…


† Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd. has put this report together

* Judge who has penned the judgment.

[1] https://www.indiatoday.in/law/story/karnataka-hc-justice-abhay-shreeniwas-oka-elevation-supreme-court-collegium-1842605-2021-08-19

[2] https://www.indiatoday.in/law/story/karnataka-hc-justice-abhay-shreeniwas-oka-elevation-supreme-court-collegium-1842605-2021-08-19

Know thy Judge

“It is true that ‘justice hurried is justice buried’, but in the same breath it is also said that ‘justice delayed is justice denied’”.

Justice Vineet Saran in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd., (2020) 5 SCC 757


As hon’ble Justice Vineet Saran prepares to call it a day as Supreme Court Judge, we endevour to retrace his trajectory in the field of law


Travelling Back in Time…


Justice Vineet Saran was born in Bijnor (U.P) on 11th May, 1957. He pursued his graduation at Allahabad University in the year 1976 followed by his LL.B. degree which he received in the year 1979/80[1].

Career as a Counsel [1980-2002]

Justice Saran enrolled as an advocate with the U.P. Bar Council on 28-07-1980. Justice Saran displayed immense versatility during his practice in the Allahabad High Court from 28-07-1980 to 13-02-2002 as he dealt with myriad matters related to the original, constitution, civil and criminal sides. Justice Saran also conducted cases for various private and public sector companies and also as special counsel for the Central and State Governments[2].

Justice Saran also served as the Additional Advocate General for the State of U.P. in 1995.

High Court Judgeship [2002-2018]

After a thriving career as counsel for almost 22 years, Justice Saran was elevated as permanent Judge of Allahabad High Court on 14-02-2002 where he served 13 years.[3]

In 2015, he was transferred to Karnataka and took oath as Judge of Karnataka High Court on 16-02-2015. During his judgeship in the Karnataka HC, Justice Saran was also the President of Arbitration Centre – An Initiative of the High Court of Karnataka[4].

He was further promoted as the Chief Justice of Orissa High Court on February 26th 2016[5].


Notable High Court Decisions


Some of the prominent decisions rendered by Justice Saran during his time in the High Courts, are listed as follows-

Allahabad High Court

U.P. Power Corporation Ltd. v. Urmila Devi, 2011 SCC OnLine All 152

The 3- Judge Bench comprising of Ferdino Inacio Rebello, C.J. and Vineet Saran and Vikram Nath, JJ., deliberated upon the question that whether the definition of “family” under the U.P. State Electricity Board Dying in Harness Rules, 1975 would include a daughter-in-law. It was observed that a daughter-in-law on the death of her husband, does not cease to be a part of the family – “The concept that such daughter-in-law must go back and stay with her parents is abhorrent to our civilized society. Such daughter-in-law must, therefore, have also right to be considered for compassionate appointment as she is part of the family where she is? married and if staying with her husband’s family. In this context, in our opinion, arbitrariness, as presently existing, can be avoided by including the daughter-in-law in the definition of ‘family’. Otherwise, the definition to that extent, prima facie, would be irrational and arbitrary. The State, therefore, to consider this aspect and take appropriate steps so that a widowed daughter-in-law like a widowed daughter, is also entitled for consideration by way of compassionate appointment, if other criteria is satisfied”.

____________________________________________________________________________________________________

Bhupendra Nath Tripathi v. State of U.P., 2009 SCC OnLine All 6

The 3-Judge Bench comprising of Ashok Bhushan, Vineet Saran and Sanjay Misra, JJ., dealt with some important questions related to the eligibility criteria for Special Basic Training Course 2007 as per the statutory requirements stated in National Council for Teacher Education Act, 1993.

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Veenu Gangwar v. State of U.P., 2013 SCC OnLine All 14259

The Division Bench of Vineet Saran and B. Amit Sthalekar, JJ., dealt with a matter related to irregularities in Kshetra Panchayat elections. While allowing the petition, the Judges observed that, “For any democracy to be successful, it has to be strengthened at the grass root level. An elected representative, whether it be at the lowest or highest level, should not be denuded of his powers, except for very valid and good reasons and in accordance with law”.

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Karnataka High Court

Sharadabai v. Deputy General Manager, Canara Bank, 2015 SCC OnLine Kar 8160

The Court in the instant matter, discussed the issue that whether employees who have been imposed punishment of compulsory retirement, are entitled the benefit of pension. It was held that, the Regulations of Canara Bank Service Regulations, 1975 merely provides that employee who is compulsorily retired ‘may be’ granted pension. It does not provide for an employee, who is compulsorily retired, to lay a claim, as of right, for grant of pension.

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Nagaraj v. State Bank of Hyderabad, 2015 SCC OnLine Kar 8225

The Court, while dealing with the issue of eligibility for promotion and suitability for grant of promotion, held that, for promotion to a post after a particular level, it is not the seniority but suitability for the post, which is to be taken into consideration.

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Solidus Hi Tech Products Pvt. Ltd. v. State of Karnataka, 2015 SCC OnLine Kar 8575

In the matter related to S. 39(1) of Karnataka Value Added Tax Act, 2003, the Division Bench of Vineet Saran and S. Sujatha, JJ., observed that from the provisions of Section 63A of the KVAT Act, it is clear that once the order of cancellation of the assessment order had been passed by the Revisional Authority, it could not proceed to pass a fresh assessment order but could only direct the Assessing Officer to pass a fresh assessment order.

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Orissa High Court

Mohapatra Binders v. State of Odisha, 2017 SCC OnLine Ori 32

The bench of  Vineet Saran, C.J. and A.K. Rath and B.R. Sarangi, JJ while answering the issue that whether the petitioners herein, who are small book binding units and cover/text printers of the State of Odisha, would be entitled to exclusive right of State Government work of book binding and printing, under the provisions of Industrial Policy Resolutions (issued by the State Government) as well as the Micro, Small and Medium Enterprises Development Act, 2006  and the Odisha MSMED Policy of 2009; or can such work be awarded by way of inviting national tender. It was decided that the petitioners would not be entitled to the protection of the IPRs issued by the State Government, as well as MSMED Act, 2006 and the OMSMED Policy framed there under in 2009.

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Kalipada Mishra v. State of Odisha, 2016 SCC OnLine Ori 224

The Division Bench of Vineet Saran, C.J. and B.R. Sarangi, J., while deliberating upon the PIL seeking issuance of a writ of mandamus against the opposite parties with regard to the action taken for abolition of the prevailing system of toll collection by demolishing the check gates; observed that the matters fall within the realm of policy decision to be taken by the State Government or authority vested with power under any statute, and the Court should not interfere unless the policy is unconstitutional or contrary to the statutory provisions or arbitrary or irrational or in abuse of power.

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Assaf Ali Khan v. State of Odisha, 2016 SCC OnLine Ori 829

The bench of Vineet Saran, C.J. and B.R. Sarangi, J., in this instant writ petition in the nature of public interest litigation to ensure transparency and fairness in the election of Gram Panchayats and Zilla Parishads made certain observations vis-a-vis the High Court’s jurisdiction to issue any direction to the state legislature to enact a particular law in a particular manner.


Supreme Court [2018-2022]


In 2018, the President of India appointed Justice Vineet Saran as Judge, Supreme Court of India.

Notable Judgments

Some of the notable decisions that were either rendered by Justice Saran or he was part of, are as follows-

B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corpn., (2022) 3 SCC 294

While clarifying the law on leave to defend, the Division Bench of Vineet Saran and Dinesh Maheshwari, JJ., held that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions could be imposed while granting leave to defend but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious. Read more

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Nahar Singh v. State of U.P., 2022 SCC OnLine SC 332

The division bench of Vineet Saran and Aniruddha Bose JJ., deliberated on the issue that whether a Magistrate taking cognizance of an offence on the basis of a police report in terms of Section 190(1)(b) of The Criminal Procedure Code, 1973, can issue summons to any person not arraigned as an accused in the police report and whose name also does not feature in column (2) of such report. They held that for summoning persons upon taking cognizance of an offence, the Magistrate has to examine the materials available before him for coming to the conclusion that apart from those sent up by the police some other persons are involved in the offence. These materials need not remain confined to the police report, charge sheet or the F.I.R. A statement made under Section 164 of CrPC could also be considered for such purpose.

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Punjab National Bank v. Union of India, 2022 SCC OnLine SC 227

The Division Bench of L. Nageswara Rao and Vineet Saran, JJ., quashed the confiscation order of Customs and Central Excise Commission confiscating land, building, plant and machinery of Rathi Ispat Ltd. for lacking statutory backing. The Bench observed that the existing law only permit confiscation of goods and no land, building can be confiscated under the Central Excise Rules, 2017.
Read more

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City and Industrial Development Corporation of Maharashtra Ltd. v. Shishir Realty (P) Ltd., 2021 SCC OnLine SC 1141

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

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Chebrolu Leela Prasad Rao v. State of A.P., (2021) 11 SCC 401

The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., held the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates (out of whom 33.1/3% shall be women) for the post of teachers in the schools in the scheduled areas in Andhra Pradesh, unconstitutional, as there was no rhyme or reason with the State Government to resort to 100% reservation.
Read more…

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T.N. Medical Officers Assn. v. Union of India, (2021) 6 SCC 568

The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.
Read more…

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New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd., (2020) 5 SCC 757

The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ., held that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act, 1986. The bench was answering the reference relating to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act, 1986.
Read more

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Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1

In a significant ruling, a 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ has unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.
Read more

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Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120

The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ., held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer.
Read more

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Pandurang Ganpati Chaugule v. Vishwasrao Patil Murgud Sahakari Bank Ltd., (2020) 9 SCC 215:

The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ held that “’banking’ relating to co­operatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by co­operative banks in the SARFAESI Act.” Read more

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State of Punjab v. Davinder Singh, (2020) 8 SCC 1:

5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ upon noticing that SC decision of E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, is required to be revisited, referred the matter to a larger bench. While doing so, the Court observed,

Reservation was not contemplated for all the time by the framers of the Constitution.  On the one hand, there is no exclusion of those who have come up, on the other hand, if sub- classification is denied, it would defeat right to equality by treating unequal as equal.”

Read more…

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West U.P. Sugar Mills Association v. State of Uttar Pradesh, (2020) 9 SCC 548:

The 5-judge bench of Arun Mishra, Indira Banerjee and Vineet Saran, M.R. Shah and Aniruddha Bose, JJ., held that once the Central Government having exercised the power under Entries 33 and 34 List III of seventh Schedule and fixed the “minimum price”, the State Government cannot fix the “minimum price” of sugarcane.
Read more…

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

The bench of MM Shantanagoudar and Vineet Saran, JJ 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..

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High Court of Madras v. M.C. Subramaniam, (2021) 3 SCC 560

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.
Read more..

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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.
Read more…

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Rekha Sengar v. State of M.P., (2021) 3 SCC 729

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.”

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Gajanan Babulal Bansode v. State of Maharashtra, (2021) 4 SCC 494

The 3-Judge Bench comprising of L. Nageswara Rao, Indu Malhotra and Vineet Saran, JJ heard the petition challenging the decision of Maharashtra government to appoint 636 additional candidates without consulting MPSC (Maharashtra Public Service Commission. The Bench stated,

“It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.”

Read More…

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Compack Enterprises India (P) Ltd. v. Beant Singh, (2021) 3 SCC 702

The bench of MM Shantanagoudar and Vineet Saran, JJ has lucidly explained the law governing consent decree and has held that the well settled law that consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties, does not apply as a blanket rule in all cases.
Read more…

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CIT v. Reliance Energy Ltd., (2021) 4 SCC 237

Interpreting the true scope of Section 80-IA(5) of the Income Tax Act, 1961, the bench of L. Nageswara Rao and Vineet Saran, JJ., held that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating ‘eligible business’ as the ‘only source of income’.
Read more

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Bangalore Electricity Supply Co. Ltd. v. E.S. Solar Power (P) Ltd., (2021) 6 SCC 718

The bench of L. Nageswara Rao and Vineet Saran, JJ shed light on how Courts should proceed while interpreting contracts. Referring to various authorities, here is what the Court concluded that the duty of the Court is not to delve deep into the intricacies of human mind to explore the undisclosed intention, but only to take the meaning of words used i.e. to say expressed intentions.
Read more

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Vinod Dua v. Union of India, 2021 SCC OnLine SC 414

Upholding the citizens’ right to criticise the government, the bench of UU Lalit* and Vineet Saran, JJ, has quashed the FIR lodged against Journalist Vinod Dua over his YouTube show on communal riots in Delhi earlier this year. The Court held,

“… a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.”

Read more

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Imperia Structures Ltd. v. Anil Patni, (2020) 10 SCC 783

The bench of UU Lalit and Vineet Saran, JJ held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.
Read more…

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CBI v. Mohd. Parvez Abdul Kayuum, (2019) 12 SCC 1

A bench headed by Justice Arun Mishra allowed the appeals of CBI and the Gujarat government challenging the High Court order by which the convicts were absolved of murder charges in the case. The Court, however, dismissed a PIL filed by NGO “Centre for Public Interest Litigation” (CPIL) seeking a court-monitored fresh probe in the Haren Pandya murder case.

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Siddaling v. State, (2018) 9 SCC 621

The Bench comprising of R. Banumathi and Vineet Saran, JJ., ordered for refusal of modification in quantum of sentence as sought for by the appellant; on the reasoning that the conviction of the appellant under Section 498-A and 306 IPC as given by the High Court is to be maintained and any leniency in the same would be a misplaced one. Read more.

Decisions that initiated broader discourse

Safeguarding Courts and Protecting Judges (Death of Additional Sessions Judge, Dhanbad): In Re.

While addressing the issue pertaining to the unfortunate demise of the Judicial Officer Uttam Anand, the 3-Judge Bench comprising of N.V. Ramana, CJ., Vineet Saran and Surya Kant, JJ., emphasized the institutional need to create a safe and secure environment for judicial officers and legal fraternity. A suo motu case was registered by the Supreme Court for addressing the issue of safeguarding courts and protecting judges.
Read more

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Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727:

A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has upheld the constitutional validity of the SC/ST (Prevention of Atrocities) Amendment Act, 2018, and said that a court can grant anticipatory bail only in cases where a prima facie case is not made out. In the unanimous verdict, Justice Mishra penned the opinion for himself and Justice Saran whereas Justice Bhat wrote a separate but concurring opinion.
Read more…

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Christian Medical College Vellore Association v. Union of India, 2020 SCC OnLine SC 423:

The 3-judge bench of Arun Mishra, Vineet Saran and MR Shah, JJ has held that prescribing uniform examination of NEET for admissions in the graduate and postgraduate professional courses of medical as well as dental science is not in violation of the rights of the unaided/aided minority to administer institutions under Articles 19(1) (g) and 30 read with Articles 25, 26 and 29(1) of the Constitution.
Read more

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Vijay Kurle, In re, 2020 SCC OnLine SC 407 and Rashid Khan Pathan v. Vijay Kurle, 2020 SCC OnLine SC 711: 

After finding advocates Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan guilty of levelling scandalous allegations against Justice RF Nariman and Justice Vineet Saran, the bench of Deepak Gupta and Aniruddha Bose, JJ sentenced all 3 to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-. It further said that in default of payment of fine, each of the defaulting contemnors shall undergo further simple imprisonment for a period of 15 days. Also Read:


†Sucheta Sarkar, Editorial Assistant has put this report together 

[1] Justice Vineet Saran, Orissa High Court.

[2] Justice Vineet Saran, Allahabad HC

[3] Refer fn. 2

[4] Hon’ble Mr. Justice Vineet Saran, Karanatka High Court

[5] Justice Vineet Saran, Orissa High Court

Know thy Judge

“There should be effort to find out cases where there is possibility of settlement of cases…Serious thinking on ADR is required.”

                                                                                       Justice R. Subhash Reddy[1]


As Justice Ramayyagari Subhash Reddy prepares to bid adieu, we endeavor to take you to a trip down the memory lane of his tenure in the Supreme Court.


Travelling Back in Time 


Justice R. Subhash Reddy was born on 5th January, 1957 in an agricultural family in Kamaram Village of Chinna Shankarampet Mandal, Medak District. He did his primary education in Upper Primary School and Higher Education from Zilla Parishad High School, Sankarampet, and graduation from Andhra Vidyalaya College, Hyderabad and obtained his Degree in Law from the University College of Law, Osmania University, Hyderabad.[2]

♦Did You Know? Justice R. Subhash Reddy has deep interest in matters of philosophy, culture, music and education.[3]                                    


Career at a Glance    


              

Advocate- 1980-2002 

Justice Reddy enrolled as an advocate on 30-10-1980 in Bar Council of Andhra Pradesh and joined the Chambers of Sri Justice B. Subhashan Reddy. Post enrolment, Justice Reddy practised at Andhra Pradesh High Court, Civil Court Tribunals and Supreme Court.  

Justice Reddy’s stint as an advocate stretched over a staggering period of 22 years during which he argued on issues related to Civil, Criminal, Constitutional, Revenue, Taxation, Labour, Company and Service matters in both original and appellate side. His specialisation however was in Constitutional Law.[4] Justice Subhash Reddy was also elected unanimously as the President of the AP High Court Advocates Association for the year 2001-2002.[5]

♦Did you Know? He was Standing Counsel for premier institutions like S.V. University and Jawaharlal Nehru Technological University.[6]

The High Courts- Elevation as a Judge- 2002-2018 

On 2nd February, 2002, Justice Reddy was elevated as an Additional Judge of the Andhra Pradesh High Court and sworn in as Judge of the Andhra Pradesh High Court on 24-06-2004. He was later elevated as Chief Justice of Gujarat High Court on 13th February, 2016.[7]


Notable High Court Decisions  


Andhra Pradesh High Court/ Hyderabad High Court

A.P. Civil Liberties Committee (APCLC) v. Govt. of A.P., 2009 SCC OnLine AP 50 

The 5 Judge Bench of Goda Raghuram, V.V.S. Rao, R. Subhash Reddy, Ramesh Ranghanathan and G. Bhavani Prasad, JJ., held that where a police officer causes death of a person, acting or purporting to act in discharge of official duties or in self-defense as the case may be, the first information relating to such circumstance (even when by a Police/Public Official; whether an alleged perpetrator is named or not) shall be recorded and registered as FIR, enumerating the relevant provisions of Law, (u/Sec. 154(1) Cr.P.C.) and shall be investigated (u/Sec. 156/157 Cr.P.C.).

K. Swarna Kumari v. Government of Andhra Pradesh, 2006 SCC OnLine AP 97

Re. Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, Rules 20(4) and 45(1) proviso, Full Bench of the Court comprising of T. Meena Kumari, A. Gopal Reddy, Goda Raghuram, T.CH. Surya Rao and R. Subhash Reddy, JJ., held, violation of principles of natural justice by itself is not sufficient to invalidate punishment unless a clear prejudice suffered thereby is pleaded and demonstrated.  

Gangaraju Sowmini (Dr.) v. Alavala Sudhakar Reddy, 2016 SCC OnLine Hyd 430 

The 3-Judge Bench of Before R. Subhash Reddy, G. Chandraiah and Nooty Ramamohana Rao, JJ., held that as per the language under Section 166 of the Motor Vehicles Act, 1988 r/w. Rule 2(g) of the A.P. Motor Vehicles Rules, 1989, even the legal representatives who are non-dependants can also lay a claim for payment of compensation by making application under Section 166 of the Motor Vehicles Act.

Gujarat High Court 

Bar Council of Gujarat v. Jalpa Pradeepbhai Desai, 2016 SCC OnLine Guj 5080 

While dismissing an appeal filed by a respondent petitioner who applied for a certificate of practice to the Bar Council of Gujarat while simultaneously rendering services at a corporation, the Division Bench of R. Subhash Reddy, CJ and Vipul M. Pancholi, J said that an advocate who works as a full-time salaried employee of any person, government, firm, corporation or concern, is not entitled to grant of certificate of practice under the Advocates Act, 1961 in view of Rule 49 of the Bar Council of India Rules.

Read More


Prati Shailesh Patel v. State of Gujarat, 2016 SCC OnLine Guj 1909 

While dealing with the constitutionality of Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) (Amendment) Ordinance, 2016, the bench comprising of R. Subhash Reddy, CJ and Vipul M. Pancholi, J. quashed the Ordinance to the extent of removing genuine NRI/NRI proper i.e. children or wards of the Non-Resident Indian from the quota in medical colleges.

Read More


Dayaram Khemkaran Verma v. State of Gujarat, 2016 SCC OnLine Guj 1821

While dealing with the constitutionality of the Gujarat Unreserved Economically Weaker Sections (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in services under the State) Ordinance, 2016 providing reservation of seats in the educational institutions in the State and of appointments and posts in the services under the State in favour of the Economically Weaker Sections of unreserved categories, the bench comprising of R. Subhash Reddy CJ., and Vipul M. Pancholi, J. held the Ordinance unconstitutional and contrary to fundamental rights.

Read More                                 


THE SUPREME COURT- 2018-2022


On 1st November, 2018, the Ministry of Law and Justice notified the appointment of Justice R. Subhash Reddy to the Supreme Court of India by the President[8] and on 2nd November, 2018, Justice Reddy assumed charge of his office as a Judge of Supreme Court.[9]

♦Did You Know? Justice Reddy is the first Judge from the newly carved State of Telangana to become a Judge of the Supreme Court.[10] 


 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.

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.”

Read More 


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.

Read More…


Rajnesh v. Neha, (2021) 2 SCC 324, 

The Bench of Indu Malhotra and R. Subhash Reddy, JJ., framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Read More


R. Natarajan v. State of T.N., (2021) 7 SCC 204

In an appeal regarding dowry death case the Division Bench of Navin Sinha and R. Subhash Reddy, JJ., granted acquittal to an old aged couple. Opining that the Courts below had failed to consider the evidences available on the standard of “beyond reasonable doubt” The Bench stated,

“Conviction of the appellants was not maintainable on a probability in absence of direct evidence. The benefit of doubt ought to have been given to the appellants.”

Read More


State of Kerala v. Leesamma Joseph, (2021) 9 SCC 208

Dealing with the issue relating to the right of promotion under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ., held that a person with disability should be considered for promotion along with other persons working in the feeder cadre. The Court explained that the mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD.

Read More 


Sk. Ahmed v. State of Telangana, (2021) 9 SCC 59

The bench of Ashok Bhushan and R. Subhash Reddy, JJ., laid down the essential ingredients required to be proved by prosecution to convict an accused under Section 364A IPC, i.e. kidnapping for ransom.

Read More


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 [EWS Reservation], 2020 SCC OnLine SC 624

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 judgment 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.

Read More… 


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.

Read More…


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.

Read More… 


Rakesh Kumar Agarwalla v. National Law School of India University, (2021) 1 SCC 539 

 “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.”

Read More… 


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 holderand directed refund of air-fare during the lockdown period, when domestic and international flights’ operation was suspended.

Read More…


Ashwani Kumar v. Union of India, (2020) 8 SCC 808 

The bench of Ashok Bhushan and R. Subhash Reddy, JJ has directed that all old age people who are eligible for pension should be regularly paid pension and those identified older people should be provided necessary medicines, masks, sanitizers and other essential goods by respective States.

Read More 


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…


Skill Lotto Solutions Pvt. Ltd. v. Union of India, 2020 SCC OnLine SC 990 

The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has upheld the constitutionality of imposition of GST on lotteries, betting and gambling. The Bench further held that while determining the taxable value of lottery the prize money is not to be excluded for the purpose of levy of GST.

Read More 


Krishna Lal Chawla v. State of U.P., (2021) 5 SCC 435 

The Division Bench of Mohan M. Shantanagoudar and R. Subhash Reddy, JJ., addressed the instant case dealing with vexatious complaint. The Bench, while expressing concern over such practises emphasised over the need of scrutinising such complaints at its initiation.

Read More 


Khushi Ram v. Nawal Singh, 2021 SCC OnLine SC 128 

The bench of Ashok Bhushan and R. Subhash Reddy, JJ., has held that when heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female. The Court also held that consent decree recognising pre-existing rights created by oral family settlement does not require registration under Section 17 of Registration Act, 1908.

Read More  


Soorajmull Nagarmull v. Brijesh Mehrotra, 2021 SCC OnLine SC 1252

The Division Bench of R. Subhash Reddy and Hrishikesh Roy, JJ., held that once the fresh notification is issued by the State for land acquisition, no cause of action survive on previous notification and actions taken therein, when that proceeding is declared lapsed. Quoting the case of R.N. Dey v. Bhagyabati Pramanik, (2000) 4 SCC 400, the Bench stated,

“Discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court.”

Read More


Parveen v. State of Haryana, 2021 SCC OnLine SC 1184 

The bench of R. Subhash Reddy and Hrishikesh Roy, JJ., held that the confessional statements of the co-accused, in absence of other acceptable corroborative evidence, are not enough to convict an accused for conspiracy.

Read More 


State of Bihar v. Arbind Jee, 2021 SCC OnLine SC 821 

The bench of R. Subhash Reddy and Hrishikesh Roy, JJ., held that retrospective seniority cannot be claimed from a date when an employee is not even borne in service.

Read More 


Bajaj Allianz General Insurance Company Private Ltd. v. Union of India, 2021 SCC OnLine SC 418 

The bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ issued directions with respect to motor vehicle accident claims and observed that the Central Government shall develop an online platform accessible to the tribunals, police authorities and insurers throughout India, as each State having an independent online platform for submission of accident reports, claims and responses to claims, will hamper efficient adjudication of claims, especially where the victim of the accident is not a resident of State where accident has occurred.

Read More 


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

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.” 


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.” 


Notable Dissents 


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.  

Justice R. Subhash Reddy dissenting on the question of sentence 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.

Relying 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.” 


† Sucheta Sarkar, Editorial Assistant, 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.

[2] Supreme Court, Chief Justice and Judges

[3] Sri Justice R. Subhash Reddy, Telangana High Court

[4] SC Observer, Justice R. Subhash Reddy

[5][ Sri Justice R. Subhash Reddy, Telangana High Court

[6] Hon’ble Mr. Justice R.Subhash Reddy, Gujarat High Court

[7]Supreme Court, Chief Justice and Judges

[8] Ministry of Law and Justice, Order of Appointment

[9] Supreme Court, Chief Justice and Judges

[10]The New Indian Express, Subhash Reddy to join Supreme Court

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

“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.

Read more


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.

Read more


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.”

Read more


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.“

Read more


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.

Read more


‘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.”

Read more


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.”

Read more


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.”

Read more


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.

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 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.

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.”

Read More


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.”

Read More…


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.

Read More…


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.

Read More…


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.”

Read More…


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.”

Read More…


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

Know Thy Judge | Justice S. Abdul Nazeer

“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.”

– Justice Nazeer

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 in Beluvai near Moodbidri. 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.[1]

♦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 Judgements at Supreme Court


Hemraj Ratnakar Salian v. HDFC Bank Ltd., 2021 SCC OnLine SC 611

The Division Bench of S. Abdul Nazeer* and Krishna Murari, JJ., addressed a pertinent issue of whether the rent act would come to the aid of a “tenant in sufferance” and held that “…Rent Act would not come to the aid of a “tenant­-in-­sufferance” vis­à­vis SARFAESI Act due to the operation of Section 13(2) read with Section 13(13) of the SARFAESI Act.”

Read More…

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

“Sufficient and adequate representation of Maratha community in public services is indicator that they are not socially and educationally backward.”

In a big development, the 5-judge bench of Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has 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 v. Union of India, 1992 Suppl. (3) SCC 217.

The Constitution Bench had clearly laid down that even reservation for promotion, ceiling of 50% limit cannot be breached. Hence, the Commission has completely erred in understanding the ratio of the judgment.

“The Marathas are dominant forward class and are in the main stream of National life.”

Read More…

Beghar Foundation v. K.S. Puttaswamy, (2021) 3 SCC 1

Dismissing the review petition, the Constitution Bench comprising of A.M. Khanwilkar*, D.Y. Chandrachud**, Ashok Bhushan*, S. Abdul Nazeer* and B.R. Gavai*, JJ., addressed the review petition against the final verdict in K.S.  Puttaswamy (Aadhaar-5 Judges) v Union of India, (2019) 1 SCC 1, and held that Section 7 of the Aadhaar Act had elements of a ‘Money Bill’, and the other provisions were incidental to the ‘core’ of the Aadhaar Act. Hence, the majority held that the Aadhaar Act had been correctly certified as a ‘Money Bill’ under Article 110(1).

Read More…

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

N. Jayasree v. Cholamandalam Ms General Insurance Co. Ltd., 2021 SCC OnLine SC 967

The Division Bench of S. Abdul Nazeer* and Krishna Murari, JJ., held that neither the percentage of deduction for personal expenses be governed by a rigid rule or formula of universal application nor does it depends upon the basis of relationship of the claimant with the deceased.

“It is not uncommon in Indian Society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance.”

Read More…

Neelima Srivastava v. State of U.P., 2021 SCC OnLine SC 610

A Division Bench of S. Abdul Nazeer and Krishna Murari*, JJ., held that there is a distinction between overruling a principle and reversal of the judgment. The Supreme Court reaffirmed the settled position of law by explaining that:

“Mere overruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught. “

Read More…

Kiran Devi v. Bihar State Sunni Wakf Board, 2021 SCC OnLine SC 280

The 3-judge bench comprising of Ashok Bhushan, SA Nazeer and Hemant Gupta*, JJ has held that there can be presumption of Hindu joint family property if the property has been acquired by the male member or if the same has been treated as joint Hindu family. But no such presumption is attached to a business activity carried out by an individual in a tenanted premise.

Read More…

Assam Industrial Development Corp. Ltd. v. Gillapukri Tea Co. Ltd., 2021 SCC OnLine SC 44

In a petition regarding land acquisition by government of Assam for setting up a plastic park, the Division Bench of S. Abdul Nazeer* and Sanjiv Khanna had held,

“Once the award has been approved, compensation has been paid and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of Land Acquisition Act, 1894.”

Read More…

United India Insurance Co. Ltd. v. Satinder Kaur, 2020 SCC OnLine SC 410

The 3-judge bench of SA Nazeer, Indu Malhotra* and Aniruddha Bose, JJ., while hearing an issue relating to determination of compensation in a motor vehicle accident case, took note of the fact that several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection and directed the Tribunals and High Courts to award compensation for loss of consortium, which is a legitimate conventional head.

“There is no justification to award compensation towards loss of love and affection as a separate head.”

Read More…

M. 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, 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?” [M. Siddiq v. Suresh Das, (2019) 18 SCC 631]

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.”

Read More…

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 Judgements 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.”

♦Did You Know? The 5-judge bench in Ram Janmabhumi Temple Case applied the Adverse Possession Rules as discussed in this case.

K. 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.

Deepak Apparels (P) Ltd. v. City Union Bank Ltd., 2016 SCC OnLine Kar 686

While deciding the present petition wherein the issue was that whether a writ petition challenging an order passed by the Debts Recovery Tribunal (DRT) while disposing an appeal filed under Section 17 of the SARFAESI Act, 2002, is maintainable, especially when Section 18 of the 2002 Act offers the alternative remedy, a three judge Bench comprising of S.A. Nazeer, A.B. Hinchigeri and A.N. Venugopala Gowda*, JJ., held that unless the Court is convinced that a case falls under exceptional circumstances, any writ petition challenging the order passed by the DRT while exercising its jurisdiction under Section 17, cannot be entertained by the High Courts in the light of the mandate of Article 141 of the Constitution.

Read More…

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.


Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd. 


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

* Judge who has penned the judgment.

** Judge who has penned the dissenting opinion

*** Judge who has penned the concurring opinion

**** Judge who has penned a partly concurring and partly dissenting opinion.

Know thy Judge

“It is necessary to say that the problem is not of dissent. Every society must have opinions and point of view. The debasement however is in the manner of dissent. These differences of views should be set forth in a manner which conveys it as a different. We have lost respect for each other’s opinion. It isn’t right or wrong, it is a question of time. Courts are faced with a situation where political matters under the guise of PILs lead to shrill discourse. We have a democratic government under the Constitution, there is separation of powers, hence Courts can’t be unelected governments. Checks and balances are necessary. It’s a very delicate balance and I think the segregation of powers must be respected. Dissent by Judges must be treated with constructive approach and there are limitations to that criticism. Dissent has and will always have importance.”

Justice Sanjay Kishan Kaul

CAN-GNLU Webinar“Dissents That Made A Difference: India & Abroad”


 

Justice Sanjay Kishan Kaul was born on December 26, 1958 and hails from the distinguished Dattareya Kauls of Srinagar, whose ancestry can reliably be traced back to over 500 years. 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.

♦Did You Know? Justice Kaul’s great-great grandfather Raja Suraj Kishan Kaul was the revenue minister in the Regency Council.[1]

♦Did You Know? Justice Kaul’s great grandfather was Raja Sir Daya Kishan Kaul who became the Prime Minister of Kashmir.[2]

Justice Kaul 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. During his 19-year-long practice, he handled mainly commercial, civil and writ matters in the Delhi high court and the Supreme Court.[3] 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.

♦Did You Know? Justice S.K. Kaul’s brother, Neeraj Kishan Kaul who was a judge of Delhi HC, resigned from judgeship to return to the Bar. According to Neeraj Kishan Kaul “I felt it was injustice to hold on to a Constitutional post when you are not enjoying it. One should do what one enjoys doing. It must be a great joy being a judge but you have to have the temperament, which I sadly lack.”

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.[4]


Notable Judgements at Supreme Court


Taijuddin v. State of Assam, 2021 SCC OnLine SC 1154

In a case where an accused merely pointed to the house where the victim was hiding, thereby helping a fully armed “murderous mob” locate the victim, Division bench comprising of Sanjay Kishan Kaul* and MM Sundresh, JJ., has held that the mere fact that the accused was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly under Section 149 of the IPC.

Read More…


Ratnam Sudesh Iyer v. Jackie Kakubhai Shroff, 2021 SCC OnLine SC 1032

The Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., held that a generally worded clause of a contract or Deed of Settlement cannot be said to constitute an agreement to change the course of law that the Section 34 proceedings are subject to.

The Bench expressed,

“The general phraseology of a clause which seeks to include any amendment to the Act would not be able to be availed of to expand the scope of scrutiny as it would appear to run contrary to the legislative intent of Section 26 of the Amendment Act.”

Read More…


Bhupesh Rathod v. Dayashankar Prasad Chaurasiya, 2021 SCC OnLine SC 1031

In a case relating to dishonour of cheques where it was alleged that the complaint was filed by the managing director in his personal capacity and not on behalf of the Company, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that there could be a format where the Company’s name is described first, suing through the Managing Director but there cannot be a fundamental defect merely because the name of the Managing Director is stated first followed by the post held in the Company. It was further held that it would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation.

Read More…


Yatin Narendra Oza v. High Court of Gujarat, 2021 SCC OnLine SC 1004

A Division bench of Sanjay Kishan Kaul* and R. Subhash Reddy, JJ has temporarily restored the senior designation of Advocate Yatin Narendra Oza who was stripped off this designation after he levelled charges of corruption against the registry of the Gujarat High Court.

“In effect, the fate of the petitioner is dependent on his appropriate conduct as a senior counsel before his own High Court, which will have the final say. All we are seeking to do is to  give him a chance by providing a window of two years to show that he truly means what he has assured us. We can only hope that the petitioner abides by his assurances and does not give any cause for the High Court or for us to think otherwise.”

Read More…


Kush Kalra v. Union of India, Writ Petition(s)(Civil) No.1416 of 2020, 18-08-2021

Taking a significant step towards gender equality, the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., issued interim direction permitting the women candidates to take part in the National Defence Academy (NDA) examination.

Read More…


Suraz India Trust v. Union of India, 2021 SCC OnLine SC 833

Coming down heavily upon a contemnor, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the power to punish for contempt is a constitutional power vested in this Court which cannot be abridged or taken away even by legislative enactment.

“The raison d’etre of contempt jurisdiction is to maintain the dignity of the institution of judicial forums. It is not a vindictive exercise nor are inappropriate statements by themselves capable of lowering the dignity of a Judge. These are often ignored but where despite all latitude a perennial litigant seeks to justify his existence by throwing mud at all and sundry, the Court has to step in.”

Read More…


Sivasankaran v. Sathimeenal, 2021 SCC OnLine SC 702

While deciding a case of a matrimonial dispute where the marriage never took off from the first day and was never consummated and the parties had been living separately from the date of marriage for almost 20 years, a Division Bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ. passed a decree of divorce in favour of the husband on account of irretrievable breakdown of marriage as well as on account of cruelty committed by the wife.

“… Living together is not a compulsory exercise. But marriage is a tie between two parties. If this tie is not working under any circumstances, we see no purpose in postponing the inevitability of the situation …”

Read More…


Samual Sk. v. State of Jharkhand, 2021 SCC OnLine SC 645

A Division Bench comprising of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ., agreed to reduce the sentence of the appellant−husband convicted for offence of cruelty to woman punishable under Section 498-A IPC, if he pays Rs 3 lakh as compensation to his wife and children.

The Supreme Court observed that

“The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 CrPC is enacted in the statute. The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case, it is one of voluntarily offering the amount albeit to seek a reduction of sentence.”

Read More…


Siddharth v. State of U.P., 2021 SCC OnLine SC 615

A Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ. has held that if the Investigating Officer does not believe that the accused will abscond or disobey summons, he/she is not required to be produced in custody. While remarking that if arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person, the Supreme Court observed:

“The word ‘custody’ appearing in Section 170 CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet.”

Read More…


Inaction of the Governments in appointing President and Members/Staff of Districts and State Consumer Disputes Redressal Commission and inadequate infrastructure across India: In Re, 2021 SCC OnLine SC 602

Opining that empowerment of the consumers is the legislative intent behind the Consumer Protection Act, 2019 and the ground reality is quite different as there is little endeavour to translate this Legislative intent into an administrative infrastructure with requisite facilities, members and staff to facilitate the decision on the consumer complaints, the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., stated,

“Statistics can be deceptive but sometimes statistics reveal the truth. The position prevalent in the State Consumer Forums and the District Consumer Forums is best reflected by the statistics of existing vacancies, insofar as the Chairman and the members are concerned.”

The Bench was addressing the inaction of the Governments in appointing President and Members/Staff of Districts and State Consumer Disputes Redressal Commission and inadequate infrastructure across India. 

Read More…


South Eastern Coalfields Ltd. v. S. Kumar’s Associates AKM (JV), 2021 SCC OnLine SC 486

A Division Bench of Sanjay Kishan Kaul* and Hemant Gupta, JJ., reiterated that a Letter of Intent merely indicates a party’s intention to enter into a contract with the other party in future. No binding relationship between the parties at this stage emerges and the totality of the circumstances has to be considered in each case.  

Read More…


Dharmesh v. State of Gujarat, 2021 SCC OnLine SC 458

A Division Bench of Sanjay Kishan Kaul* and Hemant Gupta, JJ., found that direction passed by the Gujarat High Court requiring the appellant-accused to deposit a sum of Rs 2 lakhs each towards compensation to the victims, as a condition for grant of bail was not sustainable.

“In our view the objective is clear that in cases of offences against body, compensation to the victim should be a methodology for redemption. Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started. Such a compensation can hardly be determined at the stage of grant of bail.”

Read More…


Ajit Mohan v. Delhi Legislative Assembly, 2021 SCC OnLine SC 456

“After all, it is for ‘the common man’ that the judicial system exists.”

In a postscript to its 188-pages long judgment in Ajit Mohan v. Delhi Legislative Assembly (wherein it was held that representatives of Facebook will have to appear before the Committee constituted by Delhi Legislative Assembly for looking into Facebook’s role in aggravating Delhi Riots which broke out last year), the 3-Judge Bench of Sanjay Kishan Kaul, Dinesh Maheshwari, and Hrishikesh Roy, JJ. stressed upon the need for timely disposal of cases. The way forward, in dealing with the likely post-COVID surge in number of cases pending adjudication, was also discussed. Read More…

Also Read: SC puts fetter on exercise undertaken by Delhi Legislative Assembly’s Committee enquiring into Facebook’s role in aggravating Delhi Riots last year; Says FB representatives will have to appear 


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.”

Read More


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 M.P. 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


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


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,

“Privacy is an inherent right. It is thus not given, but already exists.”

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:

  • The action must be sanctioned by law;

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

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

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

Read More


Notable Judgements at High Court


R. 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


S. 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


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?”


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.


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.”

– Prablo 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.

Explaining the dynamics between democracy and freedom of speech, Justice Kaul said that

“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.”

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.”


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.”


[1] Lawyers Update – http://www.lawyersupdate.co.in/legal-luminaries/neeraj-kishan-kaul/

[2] Lawyers Update – http://www.lawyersupdate.co.in/legal-luminaries/neeraj-kishan-kaul/

[3] https://web.archive.org/web/20140819083005/http://www.samachar.com/justice-sanjay-kishan-kaul-to-be-new-chief-justice-of-madras-high-court-ofygMogdiae.html

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

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 

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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.