Supreme Court

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and S.S. Shinde, J., while addressing the matter in regard to Class X and XII Board examinations for the session 2019-2020, held that the same has been dealt by the Supreme Court and nothing survives in the said matter to be addressed by the Court.

Court observed the decision of Supreme Court in the case of Amit Bathla v. CBSE, 2020 SCC OnLine SC 541 wherein the following was held:

“8. In terms of this order, all proceedings/ petitions pertaining to the subject matter of conducting examinations for classes X and XII by ICSE for Academic Year 2019-2020 pending in this Court or any other Court shall be governed by this order and deemed to be disposed of accordingly.

9. We make it clear that this order does not deal with any other issue which may arise for consideration in some other proceedings pending before the High Court or this Court except the subject matter of conducting examinations for classes X and XII for Academic Year 2019-2020 by the CBSE and ICSE respectively.”

Bench in view of the above stated decision held that “nothing survives for decision” and recorded the formal closure of the proceedings. [Arvind Tiwari v. UOI, 2020 SCC OnLine Bom 733 , decided on 29-06-2020]

Also Read:

COVID-19| SC disposes of all petitions as CBSE and ICSE propose to cancel pending Board Exams

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ has held that it’s order dated 23.03.2020, wherein the Court had extended limitation period of appeals from high courts or tribunals on account of COVID-19 pandemic, cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure.

Setting aside the Madras High Court judgment, where it was had held that the Supreme Court order dated 23.03.2020 eclipsed all provisions prescribing period of limitation until further orders, including the time prescribed under Section 167(2) of the code of Criminal Procedure, the bench said,

“neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time under Section 167(2) CrPC nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed.”

On 23.03.2020, the Court had extended the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The Court, in the present order explained that the said order was passed to protect the litigants/lawyers whose petitions/ applications/ suits/ appeals/all other proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right.

“When this Court passed the above order for extending the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings, the order was for the benefit of those who have to take remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings.”

Stating that the scheme of Code of Criminal Procedure clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person, the Court explained that without submission of charge sheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to the personal liberty.

Noticing that the law of limitation bars the remedy but not the right, the Court said that the Investigating Officer in the present case could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge).

On High Court’s opinion that the lockdown announced by the Government is akin to proclamation of Emergency, the Court said,

“The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under Section 167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law.”

It is pertinent to note that another bench of Madras High Court had, in Settu v. State, Crl.OP(MD)No. 5291 of 2020, already considered the judgment of this Court dated 23.03.2020 and noticing that personal liberty is too precious a fundamental right, it had held,

“The noble object of the Hon’ble Supreme Court’s direction is to ensure that no litigant is deprived of his valuable rights. But, if I accept the plea of the respondent police, the direction of the Hon’ble Supreme Court which is intended to save and preserve rights would result in taking away the valuable right that had accrued to the accused herein.”

The single judge in the impugned judgment before the Court had called the above mentioned Madras High Court order uncharitable. On this the Court said that the impugned judgment is not only erroneous but also sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person. It, further, said that all Courts including the High Courts and the Supreme Court have to follow a principle of Comity of Courts. A Bench whether coordinate or Larger, has to refrain from making any uncharitable observation on a decision even though delivered by a Bench of a lesser coram.

“A Bench sitting in a Larger coram may be right in overturning a judgment on a question of law, which jurisdiction a Judge sitting in a coordinate Bench does not have. In any case, a Judge sitting in a coordinate Bench or a Larger Bench has no business to make any adverse comment or uncharitable remark on any other judgment.”

[S. Kasi v. State, 2020 SCC OnLine SC 529 , decided on 19.06.2020]

Also read:

COVID-19| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

OP. ED.

In the normal course all decisions of a High Court would be binding on a District Court or a Tribunal which is subject to supervisory jurisdiction of a particular High Court[1] and the decisions of the Supreme Court are considered the law of the land[2].

When a High Court or Supreme Court is faced with a judgement cited before it there are certain rules for maintaining uniformity in law and of precedents commonly known as the principle of stare decisis.

The following is the practice usually adopted:

  1. The law laid down by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
  2. A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

The principle of stare decisis is stated thus in Waman Rao v. Union of India[3]:

“42… In fact, the full form of the principle, stare decisis et non quieta movere which means “to stand by decisions and not to disturb what is settled”, was put by Coke in its classic English version as: ‘Those things which have been so often adjudged ought to rest in peace.”

Even when a Court is faced with two conflicting judgements of a superior court of equal strength the Court may follow a decision which it considers to be correctly decided. This was stated in Jaydeo v. State of Maharashtra[4].

“24. The Full Bench of this Court in  Kamleshwar Ishwardas Patel v. Union of India[5] reported in 1994 Mh LJ 1669 dealing with a question as to what course has to be followed by the High Court when confronted with contrary decisions of the Supreme Court emanating from Benches of co-equal strength, has held that the High Court is not necessarily bound to follow the decision later in point of time, but must follow the one which in its view is better in point of law. For coming at such a conclusion, the Full Bench of this Court has relied on the judgment of the Constitution Bench of the Supreme Court in f Atma Ram v. State of Punjab[6].”

The question posed in this article relates to the question we are often faced with at one time or another. What is the correct course to follow when we are faced with a decision which decides in a particular way but does not refer to any statutory provision, decides contrary to statute or ignores relevant provisions or does not give any reasons etc for its decision. What is the value of such a decision, does it amount to a precedent or can it be ignored even though it may be a decision of a superior Court.

In such a case it is open to invoke the principle of “per incuriam” and contend that the judgement be ignored as it does not lay down the correct position in law.

The concept of per incuriam was examined in Hyder Consulting (UK) Ltd. v. State of Orissa[7] where it was held:

“46. Before I consider the correctness of the aforementioned decisions, it would be necessary to elaborate upon the concept of “per incuriam”. The Latin expression “per incuriam” literally means “through inadvertence”.A decision can be said to be given per incuriam when the court of record has acted in ignorance of any previous decision of its own, or a subordinate court has acted in ignorance of a decision of the court of record. As regards the judgments of this Court rendered per incuriam, it cannot be said that this Court has “declared the law” on a given subject-matter, if the relevant law was not duly considered by this Court in its decision. In this regard, I refer to State of U.P. v. Synthetics and Chemicals Ltd.[8], wherein R.M. Sahai, J. in his concurring opinion stated as follows: (SCC p. 162, para 40)

“40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’.”

Some of the factors to consider while contending that a decision is not a binding precedent and should not be followed or be ignored on the above principle are now considered set out hereafter:

A decision where the point in issue is not argued or considered by the Court or decision rendered without argument, without reference to the crucial words of the rule, and without any citation of authority.

A decision where a mere direction is issued without laying down any principle of law.

State of UP v. Jeet S. Bisht[9]

“18. No doubt in the aforesaid decision various directions have been given by this Court but in our opinion that was done without any discussion as to whether such directions can validly be given by the Court at all. The decision therefore passed sub silentio. The meaning of a judgment sub silentio has been explained by this Court in Municipal Corpn. of Delhi v. Gurnam Kaur[10]  (vide paras 11 and 12) as follows: (SCC pp. 110-11)

“… ‘A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of Point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided Point B in his favour; but Point B was not argued or considered by the court. In such circumstances, although Point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on Point B. Point B is said to pass sub silentio.’

In Gerard v. Worth of Paris Ltd.[11] the only point argued was on the question of priority of the claimant’s debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd.[12]  the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided ‘without argument, without reference to the crucial words of the rule, and without any citation of authority’, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed.”

*                             *                               *

21. It is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent.

22. In Municipal Committee, Amritsar v. Hazara Singh[13]  the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab v. Baldev Singh[14] this Court observed that everything in a decision is not a precedent. In Delhi Admn. v. ManoharLal[15]  the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent.”

(emphasis supplied)

A decision decided without a discussion on facts and law

D.J. Malpani v. Commissioner of Central Excise[16]

“27. In this case, CESTAT decided against the assessee relying on Panchmukhi[17] (supra). The case of Panchmukhi (supra) was apparently decided not after a discussion on facts and law but because the counsel for the revenue submitted that the matter is covered by the decision in TISCO Ltd.[18] (supra) and the counsel for the assessee “was not in a position to dispute this legal position”. The judgment in Panchmukhi (supra) has little precedential value. The point whether Dharmada involved in Panchmukhi (supra) and the surcharge held as price in Tata Iron & Steel (supra) were identical and liable to be included in the transaction value passed sub-silentio. Salmond on Jurisprudence, Twelfth Edition p.15 states that a decision held is not binding since it was decided “without argument, without reference to the crucial words of the rule, and without any citation of authority”, therefore, would not be followed. The author also states that precedents sub-silentio and without arguments are of no moment. This is enough reason for not treating the decision in Panchmukhi (supra) as a binding precedent.”                          

(emphasis supplied)

A decision which is not express and is not founded on reasons nor proceeds on consideration of issue

(i) State of U.P.v. Synthetics and Chemicals Ltd.[19]

“40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd.[20] ) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey[21]  this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury’s Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding.

41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. “A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind.” (Salmond on Jurisprudence, 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd.[22]  the Court did not feel bound by earlier decision as it was rendered ‘without any argument, without reference to the crucial words of the rule and without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur[23].The Bench held that, ‘precedents sub-silentio and without argument are of no moment’. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry[24]  it was observed, ‘it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein’. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.”              

(emphasis supplied)

(ii) Arnit Das v.State of Bihar[25]

“20. A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined. (See State of U.P. v. Synthetics & Chemicals Ltd.[26] ).”                                       

(emphasis supplied)

(iii) Divisional Controller, KSRTC v. Mahadeva Shetty[27]

“23. So far as Nagesha case relied upon by the claimant… precedent sub silentio and without argument are of no moment. Mere casual expression carry no weight at all, nor every passing expression of a judge, however eminent, can be treated as an ex cathedra statement having the weight of authority.”

Any direction given on special facts, in exercise of jurisdiction under Article 142, is not a binding precedent

Ram Pravesh Singh v. State of Bihar[28]

“23. The appellant next submitted that this Court, in some cases, has directed absorption in similar circumstances. Reliance is placed on the decision in G. Govinda Rajulu v. A.P. State Construction Corpn. Ltd.[29]  We extract below the entire judgment: (SCC p. 651, paras 1-2)

“1. We have carefully considered the matter and after hearing learned counsel for the parties, we direct that the employees of the Andhra Pradesh State Construction Corporation Ltd. whose services were sought to be terminated on account of the closure of the Corporation shall be continued in service on the same terms and conditions either in the government departments or in the government corporations.

2. The writ petition is disposed of accordingly. There is no order as to costs.”

The tenor of the said order, which is not preceded by any reasons or consideration of any principle, demonstrates that it was an order made under Article 142 of the Constitution on the peculiar facts of that case. Law declared by this Court is binding under Article 141. Any direction given on special facts, in exercise of jurisdiction under Article 142, is not a binding precedent. Therefore, the decision in Govinda Rajulu[30]  cannot be the basis for claiming relief similar to what was granted in that case. A similar contention was negatived by the Constitution Bench in Umadevi (3)[31] : (SCC p. 39, para 46)

“The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation.”

To conclude one has to be mindful of the above when decisions are cited both when you are yourself citing it and when it is used against you  and every attempt must be to cite decisions with caution and responsibility so that the correct principle of law is laid down.

* Advocate, High Court, Bombay. Assisted by Arjun Prabhu, Sheetal Parkash and Mayur Agarwal. Author can be reached at karlshroff@gmail.com

[1] Article 227.  Power of superintendence over all courts by the High Court.–  Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

[2] Article 141. Law declared by Supreme Court to be binding on all courts.—The law declared by the Supreme Court shall be binding on all courts within the territory of India.

[3] (1981) 2 SCC 362

[4] 2005 SCC OnLine Bom 1283 

[5] 1995 Supp (3) SCC 732 

[6] 1959 Supp (1) SCR 748

[7] (2015) 2 SCC 189

[8] (1991) 4 SCC 139

[9] (2007)  6  SCC  586 

[10] (1989) 1 SCC 101

[11] (1936) 2 All ER 905 (CA)

[12] (1941) 1 KB 675 : (1941) 2 All ER 11 (CA)

[13] (1975) 1 SCC 794

[14] (1999) 6 SCC 172

[15] (2002) 7 SCC 222

[16] (2019) 9 SCC 120 

[17] CCE v. Panchmukhi Engg. Works, (2018) 11 SCCC 791 

[18] TISCO Ltd. v. CCE, (2002) 8 SCC 338 

[19] (1991) 4 SCC 139

[20] (1944) 1 KB 718 : (1944) 2 All ER 293

[21] (1962) 2 SCR 558

[22] (1941) 1 KB 675, 677 : (1941) 2 All ER 11

[23] (1989) 1 SCC 101

[24] (1967) 2 SCR 650

[25] (2000) 5 SCC 488

[26] (1991) 4 SCC 139, para 41

[27]. (2003) 7 SCC 197

[28] (2006) 8 SCC 381 : 2006 SCC (L&S) 1986 at page 395

[29] 1986 Supp SCC 651

[30] 1986 Supp SCC 651

[31] (2006) 4 SCC 1

Hot Off The PressNews

SCBA writes to Secretary General, Supreme Court, requesting inclusion of RuPay card and UPI for payment of court fees.

For the payment of Court Fees, the Supreme Court website is accepting payments from only four credit Cards i.e. Visa, Mastercard, Mistro and American express. It does not provide the facility of payment through Rupay Cards and UPI. 

Rupay was a payment scheme launched by the Government of India to fulfill vision of India’s own, domestic, open and multilateral payment system and UPI is an initiative by Government of India with multiple benefits. Both schemes are being highly promoted by the Government of India, therefore most of the Banks are issuing RuPay Cards where a large population as also many members of the Bar use the Rupay Cards and UPI system for payments.

Therefore, SCBA requested that payments for this purpose should also be accepted through RuPay Card and UPI. 

Supreme Court Bar Association

COVID 19Hot Off The PressNews

The Supreme Court Registry has notified the list of 1239 matters that are likely to be heard by the Supreme Court through Video Conferencing from June 1, 2020.

Earlier, the Registry had notified the new schedule for summer vacations of the Court. The Notice read:

“the period from 18th May, 2020 to 19th June, 2020 (both inclusive) shall be declared as period functioning for the Supreme Court of India.”

The Court was originally supposed to remain closed from May 18, 2020 to July 5, 2020 but the same was changed due to the ongoing Coronavirus Pandemic.  The Court had, on March 23, 2020, opted to hold video-conference to hear urgent matters in an unprecedented move

Click here to access the list of matter.

Also read: 

COVID-19| No in-person hearings in SC till further notice; Extremely urgent matters to be heard via video conference

COVID-19| Here’s the list of directions issued by CJI Bobde in the light of Coronavirus lockdown

COVID-19| SC extends limitation period for filing petitions/applications/suits/appeals, etc

COVID-19| SC extends limitation prescribed under the A&C, 1996 and the NI Act,1881

Hot Off The PressNews

On 13.05.2020, the Supreme Court notified that all the advocates to wear “plain white-shirt/white-salwar-kameez/ white saree, with a plainwhite neck band” during the hearings before the Supreme Court of India through Virtual Court System till medical exigencies exist or until further orders. The said decision was taken after considering the medical advice, as a precautionary measure to contain spread of Coronavirus (COVID-19) infection under the prevailing conditions.

Click here to read the Notification.

Hot Off The PressNews

In furtherance of the amendment to the Supreme Court Rules, 2013 as published in the gazette of India on 18.09.2019, single-judge bench to hear matters for the first time from Wednesday.

As per the Notification published on the Supreme Court website, following matters will be listed before Single-judge bench:

  1. special leave petitions arising out of grant, dismissal or rejection of bail application or anticipatory bail application in the matters filed against the order passed under Section 437, Section 438 or Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) involving the offences punishable with sentence up to seven years imprisonment;
  2. applications for transfer of cases under Section 406 of the Code of Criminal Procedure, 1973 (2 of 1974);
  3. application of an urgent nature for transfer of cases under Section 25 of the Code of Civil Procedure, 1908 (5 of 1908);

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of SA Bobde, Deepak Gupta and Hrishikesh Roy, JJ has directed extended the limitation prescribed under the Arbitration and Conciliation Act, 1996 and under section 138 of the Negotiable Instruments Act 1881. The Court directed that the limitation period under the said Acts,

“shall be extended with effect from 15.03.2020 till further orders to be passed by this Court in the present proceedings.”

The said order of the Court came in furtherance of the order passed on March 23, 2020 in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION, 2020 SCC OnLine SC 343, wherein the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJhad  invoked its power under Article 142 read with Article 141 of the Constitution of India and extended limitation period of appeals from high courts or tribunals on account of coronavirus (COVID-19) pandemic.

The Court took into consideration the effect of the Corona Virus (COVID 19) and resultant difficulties being faced by the lawyers and litigants and passed the present order with a view to obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunal across the country including this Court.

The Court further said,

“In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown.”

[IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION,  2020 SCC OnLine SC 434 , order dated 06.05.2020]

OP. ED.

Almost half a century ago, on 23-4-1973, the legal fraternity in India and perhaps the world over, rejoiced as the largest ever Bench constituted by the Supreme Court of India gave birth to the Basic Structure Doctrine vide its verdict in His Holiness Keshavananda Bharati Sripadagalvaru v. State of Kerala[1] (‘Keshavananda Bharati’), thereby forever circumscribing the amendment powers of Parliament. Objectively viewed, one cannot overstate the impact and influence that the Doctrine has had on Indian constitutionalism. In fact for those looking to redeem the Indian Constitution from the onslaught of incessant amendments during that era, it is akin to a ‘re-birth’ thereof; altering the scope and sphere of Article 368 for possibly all times to come. Inherent, therefore, to the study of Kesavananda Bharati[2] verdict is an examination of how the Constituent Assembly eventually arrived at Part XX of the Constitution of India. 

The task of drafting the ‘amending procedure’ for the Constitution came up before the Union Constitution Committee (UCC) sometime around early June 1947. From the very beginning, the members of the UCC were divided into two camps – those favouring a stricter amendment process and those in favour of a more facile one. Notably, stalwarts such as Nehru and B.N. Rau (and to an extent even Ambedkar) always remained in favour of the latter such that ‘a Constituent Assembly, not elected by adult suffrage, can draft a Constitution by simple majority, but a Parliament elected by adult suffrage cannot amend it except by special majorities’ [3].

In fact, between June 1947 when the UCC began its meetings and February 1948 when the Draft Constitution was laid out before the Constituent Assembly, the amending procedure began to shape-up in the manner in which it would appear vide Article 368. Nevertheless, all throughout that period, an un-alterable ‘basic structure’ such as to render certain parts/chapters of the ensuing Constitution beyond the pale of Parliament’s amendment powers was never the cynosure of any debate. In fact, the Union Constitution Committee was rather preoccupied with internal squabbles over constitutional amendment by ‘simple majority’ or by way of a ‘special procedure’ involving 2/3rd majority as well as the State Legislatures. As has been enunciated above, Nehru and Rau (perhaps to an extent even Ambedkar) always remained in favour of a ‘pliant’ Constitution such that it could be moulded by future Parliaments towards the social and economic exigencies likely to be faced by the newly formed Republic of India. In fact, Nehru remained steadfast in his demand for amendment by a simple majority and though eventually Part XX of the Constitution did not incorporate the same, many provisions of the Constitution carry that legacy, most notable being the power vested in Parliament to alter State borders without their consent and without having to adopt the procedure laid out i.e. requiring a majority of not less than two-thirds of the members of that house present and voting.

B.N. Rau presented his Draft Constitution just a month after independence in September of 1947 and though the amendment clause therein favoured the flexible approach based on simple majority, for the first time perhaps there was enunciation of an express prohibition against amending the provisions for reservation of seats for minorities in the legislatures[4]. However, the Drafting Committee was at odds with the same and the Draft Constitution, 1948 as was presented to the President of the Constituent Assembly was more in the nature of Part XX as appears in the Constitution of India.

What piques one’s curiosity, however, is that in consonance with Rau’s draft, Part XVI of the Draft Constitution also included a prohibition on amendment of reservation of seats for Muslims, Scheduled Castes, Scheduled Tribes or Indian Christians in Parliament and State Legislatures[5]. Some may embark on the misadventure of citing this as a primitive form of the Basic Structure Doctrine, however, that would be disingenuous to say the least. During the intervening years of 1947 and 1949, records clearly point to a preoccupation of the Constituent Assembly, as also others involved with the framing of the Constitution, with the ‘how’ rather than ‘whether’. In fact, as Granville Austin has lucidly encapsulated in his work, the Constituent Assembly was very much conscious of the fact that their efforts were prone to error and thus did not look favourably upon an uncompromising procedure[6]. At this juncture several doubts were raised as to the representative character of the Constituent Assembly[7].

Yet Ambedkar, despite being in favour of the importance of an amending process in the Constitution of a federal republic, was never tolerant of any insinuation that strayed towards impugning the representative character of the Constituent Assembly. It was thus in the above background that he eventually, about a couple of months before adoption of the Constitution on 26 November 1949, introduced Amendment No. 118 to Article 304 of the Draft Constitution, thus finally giving shape to the amendment procedure as would thereafter be contained in Article 368 (Part XX) of our Constitution.

Perusal of the Constituent Assembly Debates of 17 September 1949[8] would bring out that despite the widespread support for Nehru’s views in favour of a pliant and flexible approach towards amendment of the Constitution and Article 305 of the Draft Constitution, the final version was wholly devoid of any such entrenched provisions. Thus, before concluding this discussion, two conspicuous omissions on part of the Framers of our Constitution must be evinced. Firstly, vide Article 305 of the Draft Constitution, though certain subjects were put beyond the pale of constitutional amendment for a period of 10 years, surprisingly very little thought was given to entrenching the portion containing Fundamental Rights. Secondly, when Ambedkar moved his Amendment No. 118 as above, Article 305 was done away in its entirety as an express exception to the amendment procedure of the Constitution.

Evidently thus, without going into a merit based discussion on the Basic Structure Doctrine, perhaps to the Constituent Assembly the Constitution was a constantly evolving document in line with the social and economic realities and towards that the Framers were at ease to not entrench any part thereof. The happenings of early 1970s in all probability forced the hand of the Supreme Court in superimposing the embargo of basic structure. It thus becomes absolutely necessary that the Indian Republic be willing to expunge and efface it in line with the evolution of times as may present in the future.

*Author,  Practising in Supreme Court of India

[1] (1973) 4 SCC 225 

[2] Ibid

[3] Austin, The Indian Constitution, Oxford University Press; p. 325

[4] Vide Clause 232 of B.N. Rau’s Draft Constitution

[5] See Article 305, Part XVI, Draft Constitution of India, 1948, available at https://www.constitutionofindia.net/historical_constitutions/draft_constitution_of_india__1948_21st%20February%201948

[6] Austin, The Indian Constitution, Oxford University Press; p. 328

[7] Constituent Assembly of India Debates (Proceedings), Vol. IX (17 September 1949)

[8] Id

Appointments & TransfersCase BriefsNewsSupreme Court

Supreme Court: After 228 advocates have filed their application for registration as Advocate-on-record, Justice BR Gavai directed that the names of all these advocates be registered as Advocate-on-Record of the Supreme Court.

These advocates have appeared in the Advocate-on-Record examination held in June, 2019 and have passed the prescribed written test for making them eligible for registration as an Advocate-on-Record of this Court. The registration was put on hold due to COVID-19 lockdown.

[APPLICATIONS FOR REGISTRATION OF ADVOCATE-ON-RECORD, MISCELLANEOUS APPLICATION Diary No(s). 11088/2020, order dated 05.05.2020]

Also read:

Tahira Karanjawala on securing top rank in the Advocate-on-Record (AoR) Examination

Namit Saxena on securing second rank in the Advocate on Record (AoR) exam

Swarnendu Chatterjee on clearing Advocate-on-Record examination 2019

COVID 19

Functioning of courts

Supreme Court issues guidelines on functioning of courts through video conferencing

Release of prisoners

Ensure that prisoners released on parole are not left stranded due to lockdown: SC to Centre

No prisoner shall be released without taking appropriate steps if he/she has suffered from coronavirus disease

SC refuses to pass blanket order for release of prisoners above 50 years of age on parole

Agusta Westland VVIP chopper scam middleman Christian Michel seeks bail; SC asks him to approach HC

Children and women in Protection & shelter homes

SC issues extensive directions to protect children in Protection Homes from spread of coronavirus

SC suggests Centre to extend directions to protect children in Protection Homes from spread of coronavirus to Nari Niketans as well

Migrant workers

SC refuses to entertain plea seeking requisition of private properties to provide shelter to migrant workers

SC seeks Centre’s response on plea seeking payment of basic minimum wages to migrant workers

Centre submits affidavit on plea seeking minimum wages for migrant workers during lockdown

SC leaves issue of payment of minimum basic wages to migrant workers to Centre

Healthcare professionals, testing kits, masks, etc.

Doctors and healthcare professionals are “warriors”; protect them: SC issues directions

Don’t charge exorbitant fees from public for Coronavirus testing: SC asks Centre

SC seeks Centre’s response on PIL calling for WHO-approved protection kits for health care professionals

We are making masks, sanitisers, etc available to public at reasonable price: Govt. tells SC

Everyone not eligible for free testing kits; To be made free only to the economically weaker sections of society

SC refuses to pass order on petition seeking changes in the treatment guidelines; Asks ICMR to look into the matter

Other orders

Ration to people without ration cards: SC refuses to pass order on ‘policy issue’

Not appropriate to impose a financial emergency right now; SC adjourns the matter

This institution is not hostage of government: Furious SC tells advocate Prashant Bhushan during migrant workers hearing

COVID 19OP. ED.

In light of COVID-19 multiple PILs are being filed in the Supreme Court, and one such PIL[1] by a think tank Centre for Accountability and Systemic  Change (CASC) was heard and adjourned by a Bench of L. Nageswara Rao and Abdul Nazeer, JJ. The petition due to its unique and unprecedented prayer makes one ponder, can the Supreme Court issue a writ of mandamus to the Union/Ministry of Home Affairs/President (though only the Ministry of Home Affairs is the respondent in the present PIL) directing imposition of financial emergency? 

According to Article 360(1) of the Constitution, ‘”If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.”[2]

            (emphasis supplied)

It has also to be remembered in this connection that the power exercised by the President under Article 360 is on the advice of the Council of Ministers tendered under Article 74(1) of the Constitution. The Proclamation of emergency under Articles 352, 356 and 360 is dependent on the satisfaction of the President with regard to the existence of the relevant conditions precedent. [3]

The question which lies in the present scenario is can the Court sit in judgment over the satisfaction (or otherwise) of the President (to declare a financial emergency) and determine whether any other view of the situation is reasonably possible? The satisfaction (or otherwise) of the President is subjective in nature and certainly not something which can be based on “judicially discoverable” and “manageable standards”. It is rather a highly political judgment based on an assessment of various and varied facts and factors besides several imponderables and fast changing situations. Is the Court a fit body to enquire into or determine the correctness of the said satisfaction (or otherwise) of not declaring financial emergency?

In State of Rajasthan v. Union of India[4]Bhagwati, J. held (though in terms of Article 356) that the minimal area of judicial review is restricted to the mala fide/extraneous/irrelevant grounds on which satisfaction of the President is based. I am not contending that powers of declaring emergency are immune to judicial review. But a conjoint reading of Bommai[5], Minerva[6] and State of Rajasthan[7] would make one conclude that such scope of judicial review is narrow or minimal in nature. Furthermore, judicial review (if any) would only be of an exercise or a non-exercise of power wherein it is obligatory and binding. Whereas in the present scenario, the power has not yet been exercised, and the matter being completely non-obligatory, there stands no question of judicial review. The present scenario is not such that it has already been considered by the President for analysing the threat to financial stability or credit of India, and the materials considered lead the President to conclude that they were not enough to constitute such a threat. The aforementioned has not happened (going by lack of any official reports/correspondence, and further express denial of the same[8]) and thus the question of judicial review of the ‘satisfaction (or otherwise)’ does not arise.   

The judicial process also has certain inherent limitations. It is suited more for adjudication of disputes rather than for administering the country. The task of governance is the job of the executive, while the function of the judiciary is limited to ensure that the governance is carried on in accordance with the Constitution and the laws.

Article 360 of the Constitution confers a power upon the President to be exercised only when he is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened. If the subjective satisfaction (or otherwise) of the President in terms of Article 360 is construed to be justiciable and judicially manageable, then it will not only open the floodgates but prove to be a dangerous proposition. Because, if such PILs are maintainable to question the satisfaction (or otherwise) of the President in terms of proclamation of financial emergency, equally a declaration that a situation has arisen in the State to clamp emergency or to declare President’s rule by judicial order is permissible and cannot be wished away[9]. Could it be done?  If such pleas for declaration of emergency are allowed, and further directions made, would it not lead to management of executive functioning via writ (PIL) jurisdiction?

The scope of the powers of each organ in the scheme of governance has been broadly outlined by the Constitution. The constitutional limits are sacrosanct, and such PILs seek to usurp and manage executive functioning through the Courts. The Courts were meant to see that the other organs of Government do not cross the line while exercising power, and not to intervene in the exercise of powers within their domain. If the judiciary in the name of complete justice holds the sword and also takes the mantle of protecting the purse by declaring a financial emergency, then not only will it have the force and the will, but it will start acting as something on whose aid, the executive arm will have to run. The concern in the question is not the power of imposing emergency; rather the imposition of emergency upon a direction made by the Supreme Court based on a PIL. The option to use or not use this power lies at the dispensation of the executive, and not in the hands of the judiciary or even the legislature. They have their own marked scope of intervening as per the constitutional provisions and not otherwise; after the use of this discretionary power and not before that.

Broadly speaking the usage of word ‘may’ in clause (1) of Article 360 indicates that there is no duty or obligation on the President to impose financial emergency and the scheme is largely based on the subjective satisfaction of the President through the Council of Ministers. The scheme discerns discretion vested in the President to consider whether the situation so contemplated has arisen or not. The use of the word ‘may’ shows us that even if the President is completely satisfied regarding the threat of financial stability he is not obliged to impose a financial emergency. The Government can choose to handle the situation accordingly without such declaration of financial emergency. There might be an extreme probability of financial instability, but the power to consider the same for proclaiming a financial emergency under the scheme of Article 360 rests with the President and not the Supreme Court acting through its writ jurisdiction. The decision to issue a proclamation containing such a declaration is also based on the subjective satisfaction of the President, but the Court would hardly be in a position to x-ray such a subjective satisfaction for want of expertise in regard to fiscal matters[10].

To further understand the nature of discretion involved herein, let’s take a scenario where ‘shall’ would have been used in the place of “may” in Article 360. Even in that case the basis of exercise of power would have been discretionary as the power could have been exercised only upon the subjective satisfaction of the President. The Court cannot, therefore, go way ahead of any issuance of proclamation under Article 360, put cart before the horse, substitute its own satisfaction for the satisfaction (or otherwise) of the President, and thus issue a writ of mandamus for declaration of emergency.

  It is very difficult to impose the “power plus duty” doctrine in the present scenario as the scheme of Article 360 is completely based on the prerogative and subjective satisfaction (or otherwise) of the President. Even though Article 360 confers the power/discretion on the President (couched in permissive language), it is not to be treated as a provision containing a power coupled with a duty. For the reason being that if the failure or conscious omission on the part of such authority i.e. the President to act would not nullify the effect of another/other constitutional provision, or render nugatory a constitutional principle. It is a matter of government policy as to how to handle financial crisis/armed rebellions, etc. If it were understood to be a power coupled with duty, then every time there is war, armed rebellion, external aggression or financial instability an emergency would have to be declared, and if the President chooses not to do so, courts would have to step in. But we know as a matter of fact that the scheme of affairs as far as Part XVIII is concerned doesn’t work like that. The existence or non-existence of the fact of financial stability, etc. is left to the judgment and discretion of the President and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable. It is the duty of the Court to leave the decision of that fact to the public body to whom the Constituent Assembly has entrusted the decision-making power. The Court cannot substitute its discretion for that of the President nor is it for the Court to play the role of an advisor as to what the President or the Council of Ministers should do in a particular event. The Central Government, through the Council of Ministers which advises the President is the best judge of facts to decide as to what course should be adopted in a particular case. The function of the Court is only to see whether the limits imposed by the Constitution on the powers of the President have been observed or there is transgression of such limits. The Court cannot go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction (or otherwise) of the President is based. That would be a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this kind and also because the Court would thereby usurp the function of the executive and in doing so, enter the “political thicket” which it must avoid, if it is to retain its legitimacy with the people. Further, judicial review of satisfaction is allowed only if such conclusion is mala fide or is based on wholly extraneous and irrelevant grounds, because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied. The Court cannot, however, substitute its own satisfaction for that of the satisfaction (or otherwise) of the President. It is said that Article 356 has proved to be a ‘death letter’ instead of a ‘dead letter’. Similarly, if the Supreme Court directs the President or the Union to impose a financial emergency, would not the ‘dead letter’ of Article 360 be awakened from the (untouched) coffin where it is resting since 1950?

*Pruthvirajsinh Zala, 2nd Year, BA LLB (Hons), Institute of Law, Nirma University. The author can be reached at pruthvirajsinh11@gmail.com. The author thanks Prof. Sukrit Garg for his valuable inputs.

[1]Centre for Accountability and Systemic  Change (CASC) v. Ministry of Home Affairs,  WP (Civil) Dairy  No. 10793/2020, order dt. 1-4-2020.

[2] Article 360(1)

[3] S.R. Bommai v. Union of India, (1994) 3 SCC 1, para 58.

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

[5] S.R. Bommai v. Union of India, (1994) 3 SCC 1.

[6]. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

[7] State of Rajasthan v. Union of India, (1997) 3 SCC 592.

[8].Trisha Sengupta, PM Modi not declaring ’emergency under Article 360′. PIB calls out fake article, https://www.hindustantimes.com/it-s-viral/pm-modi-not-declaring-emergency-under-article-360-pib-calls-out-fake-article/story-YewF2c2o99UStlgealji1N.html (last visited 6-4-2020).

[9].S. R. Bommai v. Union of India, (1994) 3 SCC 1, para 215.

[10].S.R. Bommai v. Union of India, (1994) 3 SCC 1, para 34.

COVID 19OP. ED.

COVID-19 pandemic has disrupted the entire working of the country be it the government sector, private sector, businesses, educational institutions including judicial work (except matters of extreme urgency).  In fact, the catastrophic ramifications resulting from this virus has made the Prime Minister declare complete lockdown of the country. This would definitely impact the performance of obligations of various parties in all sectors and can be said to make most of the obligations as impossible to perform. Though, impossibility of performance is a totally different arena governed by Section 56 of the Contract Act, 1872 but surely the same would also definitely impact the timelines within which the arbitral proceedings are to be completed by making the arbitral award.

Section 29-A of the Arbitration & Conciliation Act, 1996, was introduced by virtue of the Arbitration and Conciliation (Amendment) Act, 2015 w.e.f. 23-10-2015 providing for the ‘Time-limit for arbitral award’. This section has been further modified by virtue of the 2019 Amendment Act w.e.f. 9-08-2019. Under the 2015 Amendment, Section 29-B was also introduced which provides for conducting an arbitration under ‘fast-track procedure’.  The said provisions are as under:

 “29-A. Time-limit for arbitral award.— [1](1) The award in matters other than international commercial arbitration shall be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings under sub-section (4) of Section 23:

Provided that the award in the matter of international commercial arbitration may be made as expeditiously as possible and endeavour may be made to dispose of the matter within a period of twelve months from the date of completion of pleadings under sub-section (4) of Section 23.]

(2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree.

(3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.

 (4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the court has, either prior to or after the expiry of the period so specified, extended the period:

Provided that while extending the period under this sub-section, if the court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five percent for each month of such delay:

 [2][Provided further that where an application under sub-section (5) is pending, the mandate of the arbitrator shall continue till the disposal of the said application:

Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced.]

(5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the court.

(6) While extending the period referred to in sub-section (4), it shall be open to the court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material.

(7) In the event of arbitrator(s) being appointed under this section, the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal.

(8) It shall be open to the court to impose actual or exemplary costs upon any of the parties under this section.

(9) An application filed under sub-section (5) shall be disposed of by the court as expeditiously as possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.

 29-B. Fast track procedure.—(1) Notwithstanding anything contained in this Act, the parties to an arbitration agreement, may, at any stage either before or at the time of appointment of the arbitral tribunal, agree in writing to have their dispute resolved by fast track procedure specified in sub-section (3).

(2) The parties to the arbitration agreement, while agreeing for resolution of dispute by fast track procedure, may agree that the arbitral tribunal shall consist of a sole arbitrator who shall be chosen by the parties.

(3) The arbitral tribunal shall follow the following procedure while conducting arbitration proceedings under sub-section (1):

(a) The arbitral tribunal shall decide the dispute on the basis of written pleadings, documents and submissions filed by the parties without any oral hearing;

(b) The arbitral tribunal shall have power to call for any further information or clarification from the parties in addition to the pleadings and documents filed by them;

(c) An oral hearing may be held only, if, all the parties make a request or if the arbitral tribunal considers it necessary to have oral hearing for clarifying certain issues;

(d) The arbitral tribunal may dispense with any technical formalities, if an oral hearing is held, and adopt such procedure as deemed appropriate for expeditious disposal of the case.

 (4) The award under this section shall be made within a period of six months from the date the arbitral tribunal enters upon the reference.(5) If the award is not made within the period specified in sub-section (4), the provisions of sub-sections (3) to (9) of Section 29-A shall apply to the proceedings.

(6) The fees payable to the arbitrator and the manner of payment of the fees shall be such as may be agreed between the arbitrator and the parties.”

The purpose behind the introduction of the aforesaid provisions was to make the arbitrators hear and decide matters expeditiously, and within a reasonable period of time. The scheme of Section 29-A is that the arbitrator is bound to render an award within 12 months, which can be extended by 6 months i.e. up to 18 months with the consent of the parties. However, if the award is not delivered even in the extended time, the mandate of the tribunal stands terminated. However, the courts are empowered to extend the time-limit either prior to or after the expiry of the extended period. But the courts are to be given justification and proof of sufficient cause for such delay. In case, the court finds that the proceedings have been delayed for the reasons attributable to the arbitrator, it may order for a reduction of fees of the arbitrators and may also substitute arbitrator(s) by terminating the mandate of the previous arbitrator(s). Thus, it has become imperative for all that the arbitration proceedings are culminated in a time-bound manner.

However, COVID-19 pandemic has definitely dis-arrayed all the timelines and schedules in each and every arbitration all across the globe, especially the domestic arbitrations on account of the lockdown. None of the parties or the arbitrators could have foreseen this situation and it has led to an event of impossibility of conductance of arbitration proceedings. Keeping in view the number of arbitrations taking place all over the country, all the arbitrations where the arbitrators have entered the reference, the time period as specified under Section 29-A has commenced and need to be finished by the end of the specified time.

But taking a pragmatic and holistic view of the matter, this period lost in the lockdown on account of  COVID-19 virus is liable to be excluded being a period of impossibility of continuation of arbitration proceedings. In fact, taking note of this horrifying situation, wherein the parties and their lawyers would be incapacitated in taking legal steps for prosecuting their petitions/applications/appeals/suits/other proceedings,  the Supreme Court suo motu took up the issue of extension of limitation vide order dated 23-03-2020[3] directing as under:

       “This Court has taken suo motu cognizance of the situation arising out of the challenge faced by the country on account of COVID-19 virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under special laws (both Central and/or State).

To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or special laws whether condonable or not shall stand extended w.e.f. 15-3-2020 till further order/s to be passed by this Court in present proceedings.

We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.

This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction.

Issue notice to all the Registrars General of the High Courts, returnable in four weeks.”

Thus, the Apex Court taking note of this unprecedented situation has stopped the limitation to run w.e.f. 15-3-2020 till further orders. Taking support of the said order passed by the Court in the interest of justice, the period lost on account of corona virus pandemic i.e. at least from 15-03-2020 till further orders of the Apex Court re-starting the period of limitation, must be excluded for the purpose of Sections 29-A and 29-B of the Arbitration & Conciliation Act, 1996, as well.

No doubt, discussion regarding Online Dispute Resolution, have initiated all over the world in this difficult time of lockdown and there are avenues of videoconferencing/teleconferencing already available which are being resorted to, in some of the ongoing arbitrations but the same are being done only for a particular purpose like recording of witnesses, but to implement the same as a rule for conducting the entire arbitration proceedings, suitable orders would be required to be issued under Section 19 at the initial stage of commencement of arbitration proceedings.

Therefore, till the online system for conducting the arbitration system is evolved and adopted by all concerned, an order for suspension of arbitration proceedings akin to an order passed by the Supreme Court is required to be passed by the respective arbitrators.

*Puneet Taneja, Advocate on Record, Supreme Court of India, is a litigation lawyer practicing before Supreme Court of India, Delhi High Court and is also an arbitration lawyer.

[1] Substituted by Act 33 of 2019, S. 6(a), w.e.f. 30-8-2019.

[2] Inserted by Act 33 of 2019, S. 6(b), w.e.f. 30-8-2019.

[3] In re, Cognizance for Extension of Limitation, 2020 SCC OnLine SC 343.

Case BriefsCOVID 19Supreme Court

“Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.”

Supreme Court: Noticing that the issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID – 19), the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJ has directed each State/Union Territory to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate.

The said committee would comprise of:

  • Chairman of the State Legal Services Committee,
  • Principal Secretary (Home/Prison) by whatever designation is known as,
  • Director General of Prison(s)

Giving example, the Court said that the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

The Court, however, left it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.

The Court, further, directed,

  • prison specific readiness and response plans must be developed in consultation with medical experts. “Interim guidance on Scaling-up COVID-19 Outbreak in Readiness and Response Operations in camps and camp like settings” jointly developed by the International Federation of Red Cross and Red Crescent (IFRC), International Organisation for Migration (IOM), United Nations High Commissioner for Refugees (UNHCR) and World Health Organisation (WHO), published by Inter-Agency Standing Committee of United Nations on 17 March, 2020 may be taken into consideration for similar circumstances.
  • monitoring team must be set up at the state level to ensure that the directives issued with regard to prison and remand homes are being complied with scrupulously.
  • the physical presence of all the undertrial prisoners before the Courts must be stopped forthwith and recourse to video conferencing must be taken for all purposes.

“Looking into the possible threat of transmission and fatal consequences, it is necessary that prisons must ensure maximum possible distancing among the prisoners including undertrials.”

  • the transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner.
  • there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.

[IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS,  2020 SCC OnLine SC 344, order dated 23.03.2020]

Also read:

Coronavirus (COVID-19)| No in-person hearings in SC till further notice; Extremely urgent matters to be heard via video conference

Coronavirus (COVID-19)| SC restricts it’s functioning to avoid mass gatherings in Courts; Only urgent matters to be heard

Coronavirus (COVID-19)| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

COVID-19| SC takes suo motu cognisance of nonavailability of mid-day meals for children due to Coronavirus shutdown

COVID-19| SC takes suo motu cognisance of overcrowding and infrastructure of prisons in the wake of Coronavirus

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJ invoked its power under Article 142 read with Article 141 of the Constitution of India and extended limitation period of appeals from high courts or tribunals on account of coronavirus (COVID-19) pandemic.

In order to ensure that lawyers/litigants do not have to come physically to file petitions/applications/suits/ appeals/all other proceedings in respective Courts/Tribunals across the country including this Court, the Court directed,

“a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.”

The said order of the Court came after taking suo motu cognizance of the situation arising out of the challenge faced by the country on account of COVID-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws.

The order of the Court order is binding on all Courts/Tribunals and authorities.

Earlier today, the same bench had said that it was mulling a shutdown amid rising coronavirus cases in the country. The Court opted to hold video-conference to hear extremely urgent matters in an unprecedented move.

[IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION, 2020 SCC OnLine SC 343, order dated 23.03.2020]

Also read:

Coronavirus (COVID-19)| No in-person hearings in SC till further notice; Extremely urgent matters to be heard via video conference

Coronavirus (COVID-19)| SC restricts it’s functioning to avoid mass gatherings in Courts; Only urgent matters to be heard

COVID-19| SC takes suo motu cognisance of nonavailability of mid-day meals for children due to Coronavirus shutdown

COVID-19| SC takes suo motu cognisance of overcrowding and infrastructure of prisons in the wake of Coronavirus

COVID 19Hot Off The PressNews

Supreme Court: A 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJ said it was mulling a shutdown amid rising coronavirus cases in the country. The Court opted to hold video-conference to hear urgent matters in an unprecedented move.

CJI S A Bobde said,

“I will take a call by today itself on possible shut down or pre-poning summer vacation, as demanded by lawyer bodies.”

Earlier, the Court had issued notice that on Monday hearing will take place only in the CJI’s court at 11:00 AM.

The Supreme Court has also ordered the lawyers’ chambers inside the Court premises to be closed down in the wake of the coronavirus pandemic.

“All lawyers’ chambers in and around SC premises to be sealed by Tuesday evening,”

Here are the steps taken by the Court in the wake of Corona virus:

“only the Supreme Court Bar Association president can authorise lawyers to enter court premises for urgent reasons.”

  • Court to take a call today on shutting down the Court or pre-poning summer vacation.

The Supreme Court Advocates on Record Association had passed a resolution on Sunday saying none of their members will appear in the court till April 4. They have also appealed to CJI Bobde to close down the court premises in “the best interest of the health of the bar and bench.” It also underlined that in view of the closing of Delhi borders and suspension of the metro services, advocates from Noida, Ghaziabad and Gurugram would not be able to reach the Supreme Court.

The confirmed cases in the country soared to 415 on Monday even as the government ordered lockdown of 80 districts across 17 states and five Union Territories including all seven districts in Delhi. India has also recorded seven deaths due to the viral infection so far.

(Source: Outlook)

Hot Off The PressNews

Commission to implement the directions of Supreme Court concerning criminal antecedents of candidates by reiterating its existing instructions with suitable modifications

Election Commission has consistently espoused rigorous and loftiest normative standards in public life.

Supreme Court on 13-02-2020 in Contempt Pet. (C) No. 2192 of 2018 of W.P. (C) No. 536 of 2011 invoking Article 129 and Article 142 of the Constitution of India directed as under:

“1) It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.

 2) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.

 3) This information shall also be published in: (a) One local vernacular newspaper and one national newspaper; (b) On the official social media platforms of the political party, including Facebook & Twitter.

 4) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier.

 5) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.

 6) If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.”

Election Commission whole-heartedly welcomes this landmark order, which is bound to go a long way in setting new moral yardsticks for overall betterment of electoral democracy. Earlier, Commission on 10 October 2018 issued detailed instructions and guidelines along with amended form of affidavit for ensuring publicity of criminal antecedents by the candidates and the concerned political parties for the information of voters. This is being implemented in all the elections since November, 2018.  Now, Commission proposes to reiterate these instructions with suitable modifications in order to implement the directions of Hon’ble Supreme Court in letter as well as in spirit.

Also Read:

Election Commission

[Press Release dt. 14-02-2020]

[Source: PIB]

Case BriefsSupreme Court (Monthly Roundup)

TOP STORIES

Citizenship (Amendment) Act row|

No stay on CAA as SC asks Centre to file response within 4 weeks

Country is going through difficult times: SC while refusing urgent hearing on plea seeking to declare CAA as constitutional

Sabarimala Case|

9-Judge Bench asks advocates to fine-tune the ‘broad’ issues

Hearing before the 9-judge bench to conclude in 10 days

Nirbhaya Case|

SC dismisses Mukesh Kumar’s plea against rejection of mercy plea

SC yet again rejects Pawan Kumar’s plea of juvenility

SC dismisses Pawan Kumar’s plea seeking review of order rejecting juvenility claim

Akshay Kumar Singh’s curative petition dismissed by a 5-judge bench

Article 370| Review all orders imposing curbs in a week and put them in public domain: SC to J&K administration

In a major verdict, the 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).”

Delhi-NCR Pollution| Show cause notice to Delhi, Rajasthan, UP and Haryana Govts & an extensive list of directions to curb the ‘life threatening” pollution

The bench of Arun Mishra and Deepak Gupta, JJ has issued a long list of directions to curb the Delhi-NCR Pollution after noticing that,

“the air pollution is worsening, and a large number of people suffer as a side effect by various diseases such as cancer, asthma, etc.The life span is also adversely affected.”

5-judge bench holds no time limit could be fixed while granting anticipatory bail

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.

MORE STORIES

2002 Gujarat riots| SC grants bail to 14 convicts in Sardarpura massacre case; Asks them to do ‘social service’

A bench headed by CJI SA Bobde has granted bail to 14 convicts in the Sardarpura village massacre case where 33 people were burnt alive during the 2002 communal riots in Gujarat. The 14 convicts who had been sentenced to life imprisonment have been asked by the Court to do social and spiritual services among others during the period of the bail.

Bhopal gas tragedy| Justice S Ravindra Bhat recuses from hearing Centre’s plea for additional fund

Justice S Ravindra Bhat has recused himself from hearing the Centre’s plea seeking Rs 7,844 crore as additional fund from successor firms of US-based Union Carbide Corporation for giving compensation to the 1984 Bhopal gas tragedy victims.

Notice issued to Centre on plea claiming 2,000 transgenders excluded from NRC in Assam

A Bench headed by CJI SA Bobde has issued a notice to the Central government on a petition claiming that around 2,000 transgenders were excluded from the National Register of Citizens (NRC) list in Assam. The petition, filed by Assam’s first transgender judge Swati Bidhan, said that NRC was not inclusive of the transgenders and forced them to accept male or female as their gender.

Centre moves SC seeking 7-day deadline for hanging death row convicts

The Centre has moved the Supreme Court for fixing a seven-day deadline for executing death penalty of condemned prisoners. The plea of the Ministry of Home Affairs (MHA) assumes significance in view of the the death row convicts in the sensational Nirbhaya gangrape and murder case of 2012 filing review, curative and mercy petitions, which has delayed their hanging.

Prisoners under lawful detention can’t use Habeas corpus writ to seek pre-mature release

In a case where pre-mature release of convicts was sought in terms of a Scheme framed by the Government of Tamil Nadu, the bench of SA Nazeer and Deepak Gupta, JJ observed that a writ of  habeas corpus  will not lie and such a prayer should be rejected by the Court where detention or imprisonment of the person whose release is sought is in accordance with the decision rendered by a court of law or by an authority in accordance with law.

SC dilutes unwarranted observations made by SAT casting aspersions on SEBI’s role in disposing of complaint connected with Times Group

A Division Bench of Arun Mishra and Indira Banerjee, JJ., diluted certain adverse observations made by the Securities Appellate Tribunal (“SAT”) against the Securities and Exchange Board of India (“SEBI”) in para 20 of its order passed in Ashok Dayabhai Shah v. SEBI (Appeal No. 428 of 2019, dt. 14-11-2019).

“It’s so sad!” that NCPCR and State Commissions are fighting over jurisdiction when they should be protecting the rights of the children

Showing dismay over the fact that the National Commission for Protection of Child Rights (NCPCR) and the West Bengal Commissions for Protection of Child Rights set up to protect children have been at loggerheads over their so called jurisdictions, the bench of Deepak Gupta and Aniruddha Bose, JJ held that there is no dispute over the jurisdiction of the two Commissions and that it was sorry that it had to spend its time resolving such disputes.

Non-compliance of Rule 180 of the Army Rules, 1954 cannot be a ground for ordering a re-trial

In a case where an Armed Force Tribunal ordered retrial on the ground that the procedure prescribed in Rule 180 of the Army Rules, 1954 had not been followed, the bench of L. Nageswara Rao and Ajay Rastogi, JJ has held that non-compliance of Rule 180 cannot be a ground for ordering a re-trial as the Tribunal does not have jurisdiction to direct re-trial on any other ground except that mentioned in Section 16(2) of the Armed Forces Tribunal Act, 2007.

Object of achieving educational excellence cannot be subsided merely in the name of exercise of Right under Article 30 of the Constitution

“If the intent is to achieve excellence in education, would it be enough if the concerned educational institutions were to employ teachers with minimum requisite qualifications in the name of exercise of Right under Article 30 of the Constitution, while better qualified teachers are available to impart education?”