Appointments & TransfersNews

Supreme Court Collegium has recommended elevation of Judges as Chief Justices of the High Courts, as mentioned below:

S. No.

Name of the Judge Present High Court

High Court where

appointed as Chief

Justice

1. Vipin Sanghi Delhi Uttarakhand
2. Amjad A. Sayed Bombay Himachal Pradesh
3. S.S. Shinde Bombay Rajasthan
4. Rashmin M. Chhaya Gujarat Gauhati
5. Ujjal Bhuyan

[PHC: Gauhati]

Telangana Telangana

Supreme Court Collegium

[Collegium Statement dt. 17-5-2022]

Kerala High Court
Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the appointment of the following Additional Judges of the Kerala High Court as Permanent Judges of that High Court:

1. Shri Justice Murali Purushothaman,

2. Shri Justice Ziyad Rahman A.A.,

3. Shri Justice Karunakaran Babu, and

4. Dr. Justice Kauser Edappagath.


Supreme Court of India

[Collegium Statement dt. 10-5-2022]

Patna High Court
Appointments & TransfersNews

The Supreme Court Collegium has approved the proposal for the elevation of the following Judicial Officers as Judges in the Patna High Court:

1. Shri Shailendra Singh,

2. Shri Arun Kumar Jha,

3. Shri Jitendra Kumar,

4. Shri Alok Kumar Pandey,

5. Shri Sunil Dutta Mishra,

6. Shri Chandra Prakash Singh, and

7. Shri Chandra Shekhar Jha.


Supreme Court of India

[Statement dt. 4-5-2022]

Patna High Court
Appointments & TransfersNews

Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of the following two Advocates as Judges in the Patna High Court:

 1. Shri Khatim Reza, and

2. Dr. Anshuman Pandey.

The Supreme Court Collegium also approved the proposal for the elevation of Shri Rajiv Roy, Advocate, as Judge in the Patna High Court.


Supreme Court Collegium

[Collegium Statement dt. 1-2-2022]

Telangana High Court
Appointments & TransfersNews

The Supreme Court Collegium has approved the proposal for the elevation of the following persons as Judges in the Telangana High Court:

ADVOCATES:


1. Shri Kasoju Surendhar @ K. Surender,

2. Shri Chada Vijaya Bhaskar Reddy,

3. Smt. Surepalli Nanda,

4. Shri Mummineni Sudheer Kumar,

5. Smt. Juvvadi Sridevi @ Kuchadi Sridevi,

6. Shri Mirza Safiulla Baig, and

7. Shri Natcharaju Shravan Kumar Venkat.


JUDICIAL OFFICERS:


1. Smt. G. Anupama Chakravarthy,

2. Smt. M.G. Priyadarshini,

3. Shri Sambasivarao Naidu,

4. Shri A. Santosh Reddy, and

5. Dr. D. Nagarjun.


Supreme Court of India

[Collegium Statement dt. 1-2-2022]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the elevation of the following Judicial Officers as Judges in the Delhi High Court:

1. Ms. Poonam A. Bamba,

2. Ms. Neena Bansal Krishna,

3. Shri Dinesh Kumar Sharma,

4. Shri Anoop Kumar Mendiratta,

5. Ms. Swarana Kanta Sharma, and

6. Shri Sudhir Kumar Jain


Supreme Court of India

[Collegium Statement dt. 1-2-2022]

Appointments & TransfersNews

Appointment of Supreme Court Judges


President appoints the following Judges as Supreme Court Judges:

  • Justice Jitendra Kumar Maheshwari, Chief Justice of the Sikkim High Court
  • Justice Abhay Shreeniwas Oka, Chief Justice of the Karnataka High Court
  • Justice Vikram Nath, Chief Justice of the Gujarat High Court
  • Justice Bela Madhurya Trivedi, Judge, Gujarat High Court
  • Justice M.M. Sundresh, Judge, Madras High Court
  • Justice Chudalayil Thevan Ravikumar, Judge, Kerala High Court
  • Justice Bangalore Venkataramiah Nagarathna, Judge, Karnataka High Court,
  • Justice Hima Kohli, Chief Justice of the Telangana High Court
  • Shri Pamidighantam Sri Narasimha

Ministry of Law and Justice

[Notifications dt. 26-08-2021]

Op EdsOP. ED.

Though justice is usually portrayed as a woman, it has in general been embodied by men. The Supreme Court of India is also mainly a male-dominated institution. It has a strength of 34 Judges, including the Chief Justice of India, but it had only two women Judges one of whom has since retired. Even after 70 years of its existence, the top court could not have a woman Chief Justice of the Supreme Court. This is indeed not good news. There have been very few women Judges in the Supreme Court up till now. Justice Fathima Beevi was the first woman Judge of the Supreme Court of India who was appointed in 1989. The second woman Judge was Justice Sujata V. Manohar who was elevated to the Supreme Court in 1994. The third woman Judge, Justice Ruma Pal, came to the Supreme Court in the year 2000. After her retirement, it was Justice Gyan Sudha Misra who came to the Supreme Court in 2010. In 2011, Justice Ranjana Prakash Desai was appointed to the Supreme Court. Justice Banumathi was elevated to the Supreme Court in 2014. Justices Indu Malhotra and Indira Banerjee came to the Supreme Court in 2018. Justice Indu Malhotra has recently retired and Justice Indira Banerjee will retire next year. All these women Judges have made a great contribution to the Indian judicial system by delivering wonderful judgments on a variety of significant issues relating to public, private law, and governance.

Surprisingly, the Judge-makers of our country could not find even a single woman Judge who would have become the Chief Justice of India even after seven decades of establishment of the Supreme Court. The reason is very simple. First, a lack of willpower on the part of Judge-makers, and second, the formality of seniority convention that plays a very significant role in making the Chief Justice of India. No lady Judge reaches that zone of consideration because of  lack of seniority. For reaching the top position in the Supreme Court, a Judge needs a fairly long tenure of eight or nine years. Only on two occasions, this seniority convention has been breached in 1973 and 1977 during the tenure of Prime Minister Mrs Indira Gandhi when junior Judges were appointed to the office of the Chief Justice of India by superseding their seniors. The legal fraternity had rightly criticised such judicial supersessions loudly. But thereafter the seniority convention has been followed consistently in the appointment of the Chief Justice of India and there does not seem to be any apprehension of its dilution in the future as the Supreme Court has also approved this seniority convention in the Second Judges’ case[1] in 1993. Giving India the first woman Chief Justice is not only a formality, it is a social duty also so that the highest judicial institution could give a message of gender equality to society. The Supreme Court collegium may consider bringing a woman Judge to the Supreme Court who can have a long tenure of service which could help to become the Chief Justice of India after a few years as per the seniority convention. This is a much-needed step toward the cause of women’s empowerment in the judiciary. Bypassing the seniority convention is neither possible nor desirable as the judicial supersessions cause irreparable damage to judicial independence and give an unwanted opportunity to the executive to control the judiciary. Only the timely appointment of woman Judges with long tenure is the best solution to give India the first woman Chief Justice. And for this purpose, the Supreme Court collegium should take initiative. There is no reason to delay this historic decision.

Post-1993, the judiciary has snatched the Judges’ appointment power from the executive through constitutional interpretation in the larger interests of judicial independence. Before 1993, the Prime Minister and the Union Law Minister were very powerful in making judicial appointments.They were the real Judge-makers in the country. But now they have lost such influence.  Under the existing practice, the Judges of the Supreme Court are appointed by the President of India on the recommendation of the Supreme Court collegium which is headed by the Chief Justice of India and consists of four of his seniormost colleagues. This collegium is the actual Judge-maker and the President, Prime Minister, and the Union Law Minister have little say in judicial appointments. Their main job is to implement the decisions of the collegium. However, the Central Government has some scope to delay judicial appointments in some cases.The decisions of the collegium are made by consensus. If two or more Judges oppose the Chief Justice’s proposals, the collegium cannot finalise the names and the President is also not bound to accept such recommendations. This exercise is done to eliminate the sole authority of the Chief Justice of India in judicial appointments. Now the Chief Justice has to build a consensus among all his colleagues and finalise the names accordingly. He cannot ignore their views at all. The President of India is bound to act as per the recommendation of the collegium if it decides the names by consensus. However, the President, as aided and advised by the Prime Minister, has an option to return the recommendation of the collegium once for its reconsideration but thereafter the President is bound to accept the collegium’s recommendation if it reiterates its view. In other words, the collegium has the final say in judicial appointments.

The present Supreme Court collegium is headed by Chief Justice S.A. Bobde. Its other members are: Justices N.V. Ramana, R.F. Nariman, U.U. Lalit, and A.M. Khanwilkar. As of now, the Supreme Court has four vacancies and five more Judges will retire by the end of this year but the collegium headed by Chief Justice Bobde has not made even a single appointment to the Supreme Court. As per media reports, there is some deadlock in the collegium and it has not made a consensus on a few names of Chief Justices of High Courts who are eligible for elevation to the top court as per the seniority rule. Chief Justice Bobde will retire next month. The last time a Chief Justice of India retired without recommending a single appointment to the Supreme Court was in 2015 (during the tenure of Chief Justice H.L. Dattu) when there was an unprecedented deadlock between the Central Government and the judiciary on the issue of National Judicial Appointments Commission, popularly known as NJAC. After Chief Justice Bobde’s retirement, Justice N.V. Ramana is likely to become the Chief Justice of India as per the order of seniority.

It is not that brilliant women High Court Judges and lawyers are not available in the country. There are many brilliant women lawyers and Judges who, if elevated soon to the top court, can become the Chief Justice of India after a few years as per the seniority rule. The biggest issue is to include them in the seniority circle so that they could come to the top after a few years. I think this is a great opportunity for the collegium to give India its first woman Chief Justice of the Supreme Court. It is not a difficult task. It requires a strong commitment to the cause of women’s empowerment in the judiciary. In addition to this, the Supreme Court needs more women Judges also. There should be at least four to five women Judges in the Supreme Court given the state of under-representation of women Judges in the country. The Court decides many important issues which can be properly adjudicated by the women Judges. Some brilliant women lawyers can also be considered for the Judgeship in the top court. There is no dearth of brilliant women lawyers in the country. Justice Indu Malhotra is the first woman advocate who was directly elevated to the Supreme Court. This trend of making appointments from the Bar needs to be continued in the future also. Some brilliant legal academics can also be considered for the Judgeship in the Supreme Court given the constitutional provision of appointments of “distinguished jurists” in the top court.

Notably, when it comes to the question of appointment of Judges to the Supreme Court from the High Courts, seniority and regional representation are also major criteria that the Supreme Court collegium considers but there is no such fixed rule and precedents are always there where Judges have been directly elevated to the Supreme Court by relaxing the seniority norm. It is not rocket science. If senior women Judges are not available, there are no written rules that stop the collegium to appoint a High Court Judge or a practicing lawyer to the Supreme Court. Ultimately, the final choice of Judges depends on consensus within the collegium. If all the collegium members decide that it is time to recommend a woman Judge’s name for the Supreme Court Judgeship, they can do so and a woman Judge can be appointed to the Supreme Court at this time. So, all this depends on the willpower of the collegium which has a conclusive power in judicial appointments. The Central Government will have no option but to act on the collegium’s recommendation. And there is no reason to assume that the Central Government will not appreciate this idea that promotes women’s empowerment. So, now the ball is in the collegium’s court. I think the time has come when the Supreme Court collegium should give India a future woman Chief Justice of the Supreme Court. Last year, Attorney General K.K. Venugopal had also said that there has never been a woman Chief Justice. It indicates that even the Government wants to see a woman as Chief Justice in the near future. Hope the learned Judges who are members of the collegium would understand the sentiments of the people and will make history to give India the first Chief Justice. No more delay please dear Judge-makers.


*LLM PhD LLD Advocate, Supreme Court of India, New Delhi.

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

Hot Off The PressNews

Days after the Chief Justice of India, Justice S.A. Bobde objected to a Law student (appearing party-in-person before the Supreme Court) using the expression “Your Honour” for addressing the Court, the Chairman of the Bar Council of India, Senior Advocate Manan Kumar Mishra, has issued the following clarification:

A matter which was listed before the Supreme Court of India, the Chief Justice of India has been stated to be taking objection to the term “Your Honor” being used by a Law Student who was appearing as a party in person as per practice of the Superior Courts of India.

Bar Council of India with regard to the above matter clarified that as far as back on 28-09-2019 on the request made by Office-Bearers of Bar Association of some High Courts with regard to the Advocates addressing the Court, it was resolved that as per mostly preferred and prevalent practice, lawyers of the country be requested to address the Judges of various High Courts and Supreme Court as “My Lord” or “Your Lordships” or “Hon’ble Court” while Lawyers of Subordinate Courts, Tribunals and other Forums may address the Court as “Your Honor” or “Sir” or the equivalent word in respective regional languages.

The said resolution was taken by the Council in order to maintain graciousness and to uphold the majesty (i.e. impressive beauty) of the Courts of the country.


Bar Council of India

[Press Release dt. 23-02-2021]

Know thy Judge

“Independence and adherence to constitutional accountability and limits while exercising the power of judicial review gives constitutional legitimacy to the court decisions.”

 – Justice Hemant Gupta

Madras Bar Association v. Union of India

2021 SCC OnLine SC 463


Justice Hemant Gupta was born on October 17, 1957. He was enrolled as an Advocate in July 1980 and practiced at High Court of Punjab and Haryana after spending initial few years practicing in the District Courts, Chandigarh. As an advocate justice Gupta mainly dealt with the civil cases including Labour, Company, Constitutional and Service Law.

♦Did you Know? Justice Hemant Gupta’s grandfather was a prominent civil lawyer and his father retired as Chief Justice of Punjab and Haryana High Court in the year 1991.

Justice Gupta was appointed as Judge of Punjab and Haryana High Court on July 2, 2002. He was Executive Chairman of the State Legal Services Authority, U.T. Chandigarh from July 2012 to January, 2016.

♦Did you Know? Justice Hemant Gupta was the member of the Computer Committee, Punjab and Haryana High Court, for more than 10 years.

Justice Gupta sworn in as a judge of Patna High Court on February 8, 2016 and was appointed as Acting Chief Justice of that High Court on October 29, 2016. In March 2017, he was sworn in as the Chief Justice of the Madhya Pradesh High Court. He was elevated to Supreme Court of India on November 2, 2018.[1]

♦Did you Know? Justice Hemant Gupta served as Additional Advocate General of Punjab from 1997 to1999.


Notable Judgments at Supreme Court


Union of India v. Onkar Nath Dhar, 2021 SCC OnLine SC 574

“The right to shelter does not mean right to government accommodation.”

The Division Bench of Hemant Gupta* and A.S. Bopanna, JJ., expressed that Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office.

Read More…

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Salim D. Agboatwala v. Shamalji Oddhavji Thakkar, 2021 SCC OnLine SC 735

The bench of Hemant Gupta and V. Ramasubramanian*, JJ has explained the scope of a “very strange provision” under Section 85A of the Maharashtra Tenancy and Agricultural Lands Act, 1948 and has held that

“Though Section 85(2) mandates that no order of the  Mamlatdar, the Tribunal, the Collector or the State Government passed under the Act shall be questioned in any Civil or Criminal Court, the bar contained therein stands diluted to some extent under Section 85-A.”

The Court said that such a provision is not found in many other statutes which contain provisions barring the jurisdiction of Civil Courts.

Read More…

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Harish Kumar Khurana v. Joginder Singh, 2021 SCC OnLine SC 673

A Division Bench comprising of Hemant Gupta and A.S. Bopanna*, JJ. absolved a doctor and a hospital of liability for medical negligence. The Supreme Court said that failure of treatment cannot automatically make the medical professional liable for medical negligence. It was observed:

“Every death of a patient cannot on the face of it be considered as death due to medical negligence unless there is material on record to suggest to that effect.”

Read More…

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State of M.P. v. Pujari Utthan Avam Kalyan Samiti, 2021 SCC OnLine SC 667

Bench of Hemant Gupta* and A.S. Bopanna, JJ., while addressing the matter pertaining to rights of the priest, observed that:

“Pujari is only to perform puja and to maintain the properties of the deity.”

“…name of the Collector as manager cannot be recorded in respect of property vested in the deity as the Collector cannot be a manager of all temples unless it is a temple vested with the State.”

Read More…

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Bhimrao Ramchandra Khalate v. Nana Dinkar Yadav, 2021 SCC OnLine SC 582

A Division bench of Hemant Gupta* and AS Bopanna, JJ has held that in order to determine whether a document is that of a mortgage or a conditional sale, the intention of the parties has to be seen when the document is executed.

Read More…

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Krishna Gopal Tiwary v. Union of India, 2021 SCC OnLine SC 581

The Division Bench of Hemant Gupta* and A.S. Bopanna, JJ., addressed whether 2010 amendment in Gratuity Act contemplating Rs 10 lakhs as amount of gratuity would have retrospective effect, held that the date of commencement fixed by the Executive in exercise of power delegated by the Amending Act cannot be treated to be retrospective as the benefit of higher gratuity was one-time available to the employees only after the commencement of the Amending Act.

Read More…

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Parubai v. State of Maharashtra, 2021 SCC OnLine SC 566

“Natural human conduct is to first save oneself.”

A Division Bench comprising of Hemant Gupta and A.S. Bopanna*, JJ. reversed the conviction of the accussed−appellant who was convicted for the murder of her husband’s first wife and their children. The Supreme Court held that the chain of circumstantial evidence was not complete, and gave her benefit of doubt.

Read More…

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State of Haryana v. Raj Kumar, 2021 SCC OnLine SC 539

A Division Bench of Hemant Gupta* and A.S. Bopanna, JJ. disposed of a criminal appeal holding, inter alia, that if a prisoner has undergone more than 14 years of actual imprisonment, the State Government, as an appropriate Government, is competent to pass an order of premature release; but in case of the prisoner who has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardon, reprieve, respite and remission of punishment or to suspend, remit or commute the sentence of any person.

Read More…

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Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768

Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.

“The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives.”

Read More…

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Smriti Madan Kansagra v. Perry Kansagra, 2020 SCC OnLine SC 887

A 3-judge bench of UU Lalit, Indu Malhotra* and Hemant Gupta**, JJ has, in a 2:1 verdict, has transferred the custody of an 11-year-old child to his father, an Indian-origin business tycoon living in Kenya, from his mother with whom he has been living since birth.

“Since the child is still in his formative years of growth, it would be much easier for him to imbibe and get acclimatized to the new environment.”

Disagreeing with Justice Malhotra’s opinion, Justice Gupta held that the child should be given liberty to choose his destination after he comes out of age.

“From the controlled and supervised household of the mother, if the custody is given to the father, the sudden exposure to the materialistic things have the potency to derail the studies and wellbeing of the growing child.”

Read More…

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

“Negative equality cannot be claimed to perpetuate further illegality

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

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

Read More…

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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.”

Read More

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Hindustan Unilever Ltd. v. State of M.P., 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.”

Read More…

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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.

Read More…

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

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

Read More…

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

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

Read more…

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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.”

Read more

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Rajat Sharma v. Union of India, 2021 SCC OnLine SC 162

The bench of Sanjay Kishan Kaul and Hemant Gupta, JJ has imposed a cost of Rs. 50, 000 on petitioners for filing a “publicity interest litigation” seeking initiation of proceeding against former J&K Chief Minister Farooq Abdullah for his “pro-China” comments over the abrogation of Article 370 of the Constitution.

Read More…

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Arvind Singh v. State of Maharashtra, 2020 SCC OnLine SC 400

While allowing the appeal in part against death sentence awarded by the Nagpur Bench of Bombay High Court, the Court observed,

“What is required to be examined is whether there is a possibility of rehabilitation and whether it is the rarest of the rare case where the collective conscience of the community is so shocked that it will expect the holders of judicial power to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The manner of commission of murder when committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner are aggravating factors.”

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Laxmibai v. Collector, 2020 SCC OnLine SC 187

Hearing an appeal against the order of the High Court dismissing writ petition against an order of disqualification on account of non-submission of election expenses within the period prescribed, it was held,

“The purity and transparency in election process does not give unbridled and arbitrary power to the Election Commission to pass any whimsical order without examining the nature of default. The extent of period of disqualification has to be in proportion to the default. The Election Commission has to keep in mind that by such process, an election of duly elected candidate representing collective will of the voters of the constituency is being set at naught.”

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Jaishri Laxmanrao Patil v. Chief Minister, 2020 SCC OnLine SC 727;

A full judge bench of L. Nageswara Rao, Hemant Gupta and S.Ravindra Bhat, JJ., while referring the Constitution (102nd Amendment) Act, 2018 to a larger bench, held,

“The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent.”

The Bench further directed that the admissions to educational institutions and appointments to public services/posts under the government, shall be made irrespective to the reservations provided under, 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.

Read More

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Union of India v. Exide Industries Ltd., (2020) 5 SCC 274;

A full judge bench of A.M. Khanwilkar, Hemant Gupta, Dinesh Maheshwari, JJ., deciding on the validity of clause (f) to Section 43-B Income Tax Act, 1961, held,

“To hold a provision as violative of the Constitution on account of failure of the legislature to state the Objects and Reasons would amount to an indirect scrutiny of the motives of the legislature behind the enactment. Such a course of action, in our view, is unwarranted. The raison d’être behind this self-imposed restriction is because of the fundamental reason that different organs of the State do not scrutinise each other’s wisdom in the exercise of their duties. In other words, the time-tested principle of checks and balances does not empower the Court to question the motives or wisdom of the legislature, except in circumstances when the same is demonstrated from the enacted law.”

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State of Bihar v. Sachindra Narayan, (2019) 3 SCC 803;

In an appeal against the order of a Division Bench at Patna High Court, mandating the State authorities to give financial assistance on the ground of legitimate expectation, the Court observed,

“(…)legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists, there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right. The payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees.”

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N.K. Janu v. Lakshmi Chandra, 2019 SCC OnLine SC 518;

While making significant observation with respect to the power of Court to summon public officers, it was said,

“The summoning of officers to the court to attend proceedings, impinges upon the functioning of the officers and eventually it is the public at large who suffer on account of their absence from the duties assigned to them. The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of the case.”

Read More

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Amit Kumar Roy v. Union of India, (2019) 7 SCC 369;

A division bench of D.Y. Chandrachud and Hemant Gupta, JJ., adjudicating upon the interplay of Article 19(1)(g) and the statutory restrictions on members of Indian Airforce, said,

“A person who has been enrolled as a member of the Air Force does not have an unqualified right to depart from service at his or her will during the term of engagement. Such a construction, as urged on behalf of the appellant, will seriously impinge upon manning levels and operational preparedness of the Armed Forces.”

Read More

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Mani Pushpak Joshi v. State of Uttarakhand, 2019 SCC OnLine SC 1362

The bench of L Nageswara Rao and Hemant Gupta*, JJ said while quashing the trial against a member of the School management in a case relating to sexual assault of a 6-year-old girl in her school in Haldwani.

“The heinous crime committed should not be led into prosecuting a person only because he was part of the Management of the School.”

Read More…

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Channu Lal Verma v. State of Chhattisgarh, 2018 SCC OnLine SC 2570

“Society’s perspective is generally formed by the emotionally charged narratives, which need not necessarily be legally correct, properly informed or procedurally proper.”

The Bench comprising of Kurian Joseph, Deepak Gupta and Hemant Gupta, JJ. partly allowed the appeals while modifying the death sentence to life imprisonment.

Deepak Gupta and Hemant Gupta, JJ. gave a supplementing opinion in which they agreed with Justice Kurian Joseph on all points except the observation in regard to the death penalty quoted above.

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Notable Judgments at High Court


Ram Sewak Mishra v. State of M.P., 2017 SCC OnLine MP 1546;

Deciding on the validity of an executive action wherein no adequate opportunity of hearing was provided to a Government employee charged under Prevention of Corruption Act, 1988, Justice Gupta noted,

“The rule of audi alteram partem is the rule of the law without which law would be lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. The concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application. Whether or not the application of the principles of natural justice in a given case has been excluded, wholly or in part, in the exercise of statutory power, depends upon the language and basic scheme of the provision conferring the power, the nature of the power, the purpose for which it is conferred and the effect of the exercise of that power. The procedural precondition of fair hearing, however minimal, even post-decisional, has relevance to administrative and judicial gentlemanliness.”

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Nitin Pathak v. State of M.P., 2017 SCC OnLine MP 1824

“The Court should not under the guise of preventing the abuse of power be itself guilty of usurping power.”

While examining the question as to whether in exercise of power of judicial review the Court can refer the matter to a Court chosen expert or whether the Court itself can act as Court of appeal and make a different view than what has been finalised as the model answer key by the Examining Body, a Full Bench consisting of Hemant Gupta*, C.J. and C.V. Sirpurkar and Vijay Kumar Shukla, JJ held that

“…this Court does not and should not act as Court of Appeal in the matter of opinion of experts in academic matters as the power of judicial review is concerned, not with the decision, but with the decision-making process. The Court should not under the guise of preventing the abuse of power be itself guilty of usurping power.”

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Saurabh Singh Baghel v. State of M.P., 2018 SCC OnLine MP 730

A Division Bench comprising of Hemant Gupta*, CJ. and Vijay Kumar Shukla, J. while hearing a batch of writ petitions against government’s shifting policy pertaining to appointment of guest teachers in government schools, held that the aim of Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) is to impart education to students and not to protect teachers.

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Popular Plastic v. State of M.P., 2018 SCC OnLine MP 635

A 2-Judge Bench comprising of Hemant Gupta*, CJ., and Vijay Kumar Shukla, J., addressed four writ petitions having similar issues. These petitions challenged notification issued by the State Government prohibiting the manufacturing, storage, transportation, sale and use of the plastic carry bags in the entire State.

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Vajid Ali v. State of M.P., 2018 SCC OnLine MP 418

A 2-Judge Bench of Hemant Gupta, CJ., and Jijay Kumar Shukla, J., dismissed a writ appeal, and affirmed the order passed by a Single Judge Bench, rejecting the claim of appellant for appointment on compassionate ground for acquittal in a criminal case, wherein, the appellant was facing 2 criminal trials, and was acquitted in both. The Court referred Ashutosh Pawar v. High Court of M.P, 2018 (2) MPLJ 419 in which it was held that acquittal, by itself, from a criminal case cannot be a proof of a good character. In light of the above observations the Court found the writ petition been rightly dismissed by the Single Judge Bench and therefore dismissed the present appeal.

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Authorized Officer v.  Prafulla Kumar Maheshwari, 2018 SCC OnLine MP 325

In a matter arising under Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, a Division Bench comprising of Hemant Gupta, CJ and Atul Sreedharan, J. allowed a writ appeal and set aside the Orders of the learned Single Judge as well as the Debts Recovery Tribunal.

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TBCL Shiv Shakti Construction Co. v. State of M.P., 2018 SCC OnLine MP 351

The petitioner, who challenged the eligibility of Respondent 5 to participate in the Tender process, was left high and dry when the Division Bench comprising of Hemant Gupta, CJ and Vijay Kumar Shukla, J. held that the Court in exercise of judicial review, will not sit as a Court of appeal over the decision taken by a committee of experts.

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Ambika Kaul v. Central Board of Secondary Education,  2015 SCC OnLine P&H 1669

Denouncing the tendency of the people to give older date of birth in the matriculation examination to qualify in the matriculation examination but then to rely upon the birth certificate that he is younger in age at the time of employment, cannot be countenanced,  the division bench comprising of Hemant Gupta* and Lisa Gill, JJ., held that though the Birth Certificate carries with it a presumption of correction being maintained by a public office in discharge of his official duties, even then, in the case of there being variation in the date of birth in the Birth Certificate and the Matriculation Certificate a person would be estopped as per the law of estoppel laid down in Section 115 of the Evidence Act, 1872, from disputing the same in the guise of correcting the mistake in the Matriculation Certificate.

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Aditi Sharma v. State of Punjab, 2015 SCC OnLine P&H 2653

In an appeal filed by the appellants for regularization of their admission to BDS course, the Division Bench comprising of Hemant Gupta* and Lisa Gill, JJ., held that the admissions cannot be regularized as they had taken place in violation of the regulations provided by the Punjab Private Health Sciences Educational Institutes (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006, the Dental Council of India and by the State Government.

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†Updated by Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd. 

††Cases up to October, 2020 curated by Sakshi Shukla. 


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


* Judge who has penned the judgment.

** Judge who has penned the dissenting opinion

Hot Off The PressNews

Bar Council of India

The General Council of the Bar Council of India, as a last and final opportunity, has resolved to extend the last date for submission of the details of every practicing Advocate of the country sought as per the requirement of the e-Committee of the Supreme Court of India till 15-11-2020.

Further, the Council made it clear that no further extensions shall be granted and any Advocate or Bar Association who/which does not cooperate in this endeavor shall be dealt with firmly.

The State Bar Councils are also required to ensure the strict compliance of the above-stated.


Bar Council of India

[Letter dt. 29-09-2020]

Legislation UpdatesNotifications

Ministry of Law and Justice

Central Authority nominates Justice Rohinton Fali Nariman, Judge Supreme Court of India as Chairman of the Supreme Court Legal Services Committee with immediate effect.


Ministry of Law and Justice

[Notification dt. 03-09-2020]


About Justice Rohinton Nariman:

Date of Birth:13.08.1956

School: Cathedral School, Mumbai (High 1st Division, ISC)

College:

  • Shri Ram College of Commerce-B.Com
  • Faculty of Law, Delhi – L.L.B. (1st Class-2nd in the University)
  • Harvard Law School-L.L.M. (Thesis on affirmative action: a comparison between India and US constitutional law)

Profession:

Senior Counsel, Supreme Court of India.
Was made Senior Counsel by the Chief Justice of India.  Justice Venkatachalaiah amended the rules in order to make him a Senior Counsel at the young age of 37 against the mandatory 45.  Has practiced Maritime Law in New York at Haight, Gardener, Poor and Havens for 1 year.  Has practiced law for the last 35 years.  Has over 500 Reported Supreme Court Judgments to his credit.  Expert in Comparative Constitutional Law and Civil Law.

Governing Board: Gujarat Law School, Ahmedabad.

Mediation Committee: Member, Supreme Court of India.

Lectured at:

  • The Delhi Law School, University of Delhi.
  • The Bar Council of India at the Supreme Court of India.
  • Gave the keynote address at the K.L. Misra Lecture on SPIRITUALITY AND LAW along with the Chief Justice of India and other Supreme Court Judges in Allahabad in 2004.
  • Member of the Delegation from the Supreme Court of India to the Supreme Court of the United States of America, 2002.
  • Gave a talk at IIC Delhi 2007 on Beethoven.

Specializing in Comparative Religious Studies:

  • Ordained Priest from Bandra Agiary.
  • Lectured in New York to the Zoroastrian Federation.
  • Gave the SEARCH lecture at the IIC, Delhi in 200.
  • Gave religious talks at Philadelphia in 2005.
  • Gave two lectures in Ahmedabad at the invitation of the Ahmedabad Parsi Panchayat in 2003.
  • Held fortnightly Gatha classes for two years in Delhi.
  • Delivered the Annual K.R. Cama Lecture at K.R. Cama Institute, Mumbai on “Through the Looking Glass”.
  • Zoroastrianism in other faiths on 11.11.2006.
  • Solicitor General of India from July 27, 2011 to February 4, 2013.
  • Elevated as Judge, Supreme Court of India on 7th July, 2014.

Image Credits: DNA India

Hot Off The PressNews

Pollution Under Control Certificate at the time of renewal of motor insurance mandatory

Insurance Regulatory and Development Authority of India has advised all General Insurance Companies to comply with the directions issued by the Supreme Court of India in W.P. (Civil) 13029 of 1985, M.C. Mehta v. Union of India.

Central Pollution Control Board (CPCB) has raised concerns regarding the status of compliance of the above directions of the Supreme Court of India in the National Capital Region of Delhi (Delhi-NCR).

IRDAI asks General Insurance Companies to ensure that the above directions of the Supreme Court of India are scrupulously followed with a special focus on compliance in the National Capital Region of Delhi (Delhi–NCR).

Read the circular here: PUC Circular 20-08-2020


Insurance Regulatory and Development Authority of India

[Circular dt. 20-08-2020]

Appointments & TransfersNews

Supreme Court Collegium approves the proposal for the elevation of Rajesh Kumar Bhardwaj, Advocate, as Judge of the Punjab & Haryana High Court.


Supreme Court of India

[Collegium Statement dt. 17-08-2020]

Appointments & TransfersNews

Supreme Court Collegium approves the proposal for elevation of the following Advocates, as Judges of the Delhi High Court:

1. Jasmeet Singh,

2. Amit Bansal,

3. Tara Vitasta Ganju,

4. Anish Dayal,

5. Amit Sharma, and

6. Mini Pushkarna.


Supreme Court of India

[Collegium Statement dt. 17-08-2020]

Appointments & TransfersNews

Collegium Statement

Supreme Court Collegium approves the proposal for elevation of the following Judicial Officers, as Judges of the Allahabad High Court:

  • Sanjay Kumar Pachori,
  • Subhash Chandra Sharma,
  • Subhash Chand, and
  • Saroj Yadav.

Supreme Court of India

[Collegium Statement st. 14-08-2020]

Kerala High Court
Appointments & TransfersNews

Collegium Statement

Supreme Court Collegium approves the proposal for elevation of the following Advocates and Judicial Officers as Judges of the Kerala High Court:

Advocates:

  • Murali Purushothaman,
  • Ziyad Rahman A.A.,

Judicial Officers:

  • Karunakaran Babu, and
  • (Dr.) Kauser Edappagath.

Supreme Court of India

[Collegium Resolution dt. 14-08-2020]

Op EdsOP. ED.

Amid the din against the CAA-NRC combine, a fresh challenge under a seldom employed and much less provocative provision of the Constitution of India has emerged. As per ­­the ostensible remit of Article 131 of the Constitution, the challenge has emerged in the form of Governments of constituent States of the Indian Union challenging the constitutional validity of a lawfully enacted statute by Parliament. In challenging the validity of a law that has sharply divided public and political opinion, the move throws up some interesting questions as to the invocation of such a remedy under the scheme of our federal Constitution.

Ambit of Article 131

Article 131 is in many respects an anathema to the Government’s oft-quoted catchphrase ‘cooperative federalism’. The Constitution Framers were well aware that disputes between the Union and the constituent States is an inevitability for any federal polity and therefore provisioned for either the Government of India or a State Government to by-pass the judicial hierarchy and directly approach the Supreme Court under its original and exclusive jurisdiction. However, the remit of Article 131 is tempered on certain counts and the same assumes great significance vis-à-vis the issue at hand.

A bare perusal of Article 131 manifests that (1) exclusive jurisdiction vests in the Supreme Court of India to the exclusion of any other court, (2) there must exist a ‘dispute’, (3) said dispute must be between either the Government of India i.e. the Central Government and one or more constituent State or States or between two or more of such constituent States of the Union of India, and most importantly (4) the dispute must involve a question of law or a question of fact upon which the extent or the very existence of a legal right is predicated. Two integral constituents of Article 131 i.e. ‘dispute’ and ‘legal right’ must therefore be emphasised.

Maintainability of the Suit

The  Supreme Court, vide its law settling judgments in State of Rajasthan  v. Union of India[1]  as well as State of Jharkhand v. State of Bihar[2] have authoritatively established that ‘dispute’ must involve the assertion and/or vindication of a legal right of the Government of India and/or that of a constituent State of the Union. A caveat in that regard is that a genuine legal right must have been asserted by way of the suit concerned and any issue merely touching upon political concerns would be outrightly rejected by the Supreme Court.

It becomes absolutely fundamental to take into consideration that any invocation of Article 131 must concern itself with the rights, obligations, duties, powers, immunities and liberties only insofar as the parties to the suit are concerned. The Supreme Court has further established, vide the above cited judgments, that an original suit under Article 131 must not and cannot be likened to a civil suit in terms of the Code of Civil Procedure, 1908 (CPC) and therefore in the matter at hand it is not necessary that the plaintiff States must assert the ‘legal right’ unto themselves.

Evidently, Article 131 has been manifested to not be encumbered with any such narrow expositions and a suit thereof would be maintainable so far as it brings into question any dispute centred around the legal or constitutional right asserted by the defendant Government of India not in consonance with such rights and powers asserted by the plaintiff States. However, this is precisely where the plaintiff States’ suit falters for nowhere in the respective plaints, have the States of Kerala as also Rajasthan challenged or brought into question the constitutional power of the Government of India to enact the Citizenship (Amendment) Act, 2019. In fact, vide the respective plaints it has been submitted that by virtue of Article 256, the constituent States of the Union shall be constitutionally obligated and duty bound to implement the provisions of the Amendment Act, 2019 unless the Supreme Court deems it unconstitutional.

It is no one’s case that the validity of a Central legislation cannot be challenged by the Government of a State under Article 131. However, the same has to be tempered by way of the Constitution Bench judgment in State of Rajasthan[3]whereby two conditions were laid out as already exhibited hereinabove. For invoking Article 131 therefore, there has to be a dispute between the legal/constitutional right or authority or power asserted by the defendant vis-à-vis the plaintiff. The constitutional power of the Central Government to enact the Amendment Act, 2019 as per List I (Union List) of the VIIth Schedule having nowhere been challenged, the pre-requisite conditionalities under Article 131 are not satisfied.

In fact, the  Supreme Court, vide its judgment in State of Jharkhand[4]  furthered the abovecited position of law and came to the conclusion that there isn’t any bar to a test of constitutional validity of a statute under the original jurisdiction of the Supreme Court. However, the same has to concern a disputed question of law/fact that impinges, erodes, diminishes or even outrightly strips the legal right asserted by a ‘party to the proceedings’.

Notably, the plaintiff States have predicated the ‘dispute involving questions of law and fact’ on the alleged violation of the fundamental rights of their inhabitants. This is erroneous on two primary grounds; one, the Amendment Act, 2019 does not in any manner deem to take away or abridge the rights of Indian citizens for it is merely an enabling provision to speed up the grant of Indian citizenship for certain religious communities and two, the said averment is grossly dehors the constitutional scheme of our federal polity wherein the constitutional power to regulate affairs pertaining to ‘Citizenship, naturalisation and aliens’, ‘Extradition’ and ‘Admission into, and emigration and expulsion from, India; passports and visas’, vests with Parliament to the absolute exclusion of State Legislatures. Evidently thus, the State Governments are merely manufacturing a ‘dispute’ where none exists as per the scheme of the Constitution of India.

In conclusion, the reader must be apprised of the fact that the question pertaining to invocation of jurisdiction under Article 131 insofar as it concerns a challenge to the constitutional validity of a statute has in fact been referred to a larger Bench of the Supreme Court in light of the apparent conflict between the two judgments in State of Madhya Pradesh v. Union of India[5] and the abovecited State of Jharkhand v. State of Bihar[6]. Regardless, the same doesn’t alter or dilute the ambit and scope of Article 131 as laid out by State of Rajasthan[7]  judgment.


*Authors are practising Advocates in Delhi.

[1] (1977) 3 SCC 592

[2] (2015) 2 SCC 431

[3] State of Rajasthan v. Union of India, (1977) 3 SCC 592

[4] State of Jharkhand v. State of Bihar, (2015) 2 SCC 431

[5] (2011) 12 SCC 268

[6] (2015) 2 SCC 431

[7] State of Rajasthan v. Union of India, (1977) 3 SCC 592

COVID 19Hot Off The PressNews

In view of the Supreme Court of India directions regarding welfare of migrant labourers housed at relief shelters/camps in different parts of country, Union Ministry of Home Affairs (MHA) has written to all States/UTs to take necessary action in compliance of the directions of the Court, while implementing lockdown measures to fight COVID-19 effectively.

The Court directed that adequate medical facilities besides proper arrangements for food, clean drinking water and sanitation be ensured for migrant workers at relief camps/shelters across the country. Further, trained counsellors and/ or community group leaders belonging to all faiths should visit the relief camps/ shelter homes and deal with any consternation that the migrants might be going through.

The Court also observed that the anxiety and fear of the migrants should be understood by the police and other authorities, and that they should deal with the migrants in a humane manner. Further, the State Governments/ UTs should endeavour to engage volunteers along with the police to supervise the welfare activities of the migrants.

The MHA Communication also reiterates the directions given in the Ministry of Health and Family Welfare letter to all States/UTs, on above lines. The Health Ministry has issued detailed guidelines for States/UTs to deal with psychosocial issues among migrants, which has been placed at https://www.mohfw.gov.in/pdf/RevisedPsychosocialissuesofmigrantsCOVID19.pdf


Ministry of Home Affairs

[Press Release dt. 12-04-2020]

[Source: PIB]

Appointments & TransfersNews

The Collegium comprising of Ranjan Gogoi, CJ and S.A Bobde, N.V. Ramana, Arun Mishra and R.F. Nariman, JJ. resolves to recommend that Justice Ujjal Bhuyan, Judge, Gauhati High Court, be transferred, in the interest of better administration of justice, to Bombay High Court.


Collegium Resolution

[Notification dt. 28-08-2019]

Supreme Court of India