Hot Off The PressNews

On 15.02.2021, the Supreme Court has issued a notice banning Ashok Saini, the clerk of an advocate, from entering the precincts of the Supreme Court of India for a period of three months from 1st July, 2021 till 30th September, 2021 pursuant to being found guilty of sexual harassment against him.

The notice reads:

“It is for the information of all concerned that pursuant to a complaint, against Mr. Ashok Saini, the clerk of an advocate, of sexual harassment within the precincts of the Supreme Court of India, before its Gender Sensitization and Internal Complaints Committee (GSICC) and consequential inquiry, under Regulation 11(1)06) and (c) and 11(2)Ma) of the Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013, Mr. Ashok Saini has been found guilty and debarred from entering the precincts of the Supreme Court of India for a period of three months from 1st July, 2021 till 30th September, 2021.”

Op EdsOP. ED.

Recently, a 3-Judge Bench of the Supreme Court headed by Dr. D.Y. Chandrachud, J. in Union of India v. G.S. Chatha Rice Mills[1], held that an e-notification issued at a particular entry of time shall take effect from that fraction of minute, when it is issued and not prior thereto. The judgment delved into multiple facets spanning from the effect of the provisions of Section 8-A of the Customs Tariff Act, 1975 and the Customs Act, 1962 to time from which a notification under the enactment operates and the moment from which it becomes enforceable; the change of regime of issuance of notifications from analog to digital mode and effect of notifications issued as paperless  (e-)notifications being treated at par with paper notifications. Eventually the Supreme Court answered the question posed to it by holding that the e-gazette notification shall take effect from the time stamp, when it was exactly published after taking note of the background preceding the paradigm shift from publication in paper gazette notifications to e-notifications.

This article traces the necessity of notifying any legislative or sub-legislative provision like rules, regulations, etc. and the nuances involved in the same as a mandatory precondition for making legislative provisions operational and enforceable in the eye of the law.

Prelude

Like its deities, India boasts of more than 10,000 enactments for governing the conduct and lives of its inhabitants. No wonder, why, therefore it becomes a herculean task to even be vaguely informed about each of them. Despite this, an Indian citizen’s ignorance of law is not an excuse in view of the celebrated maxim “ignorantia juris non excusat”. Though right from the 1st year of our law course, all of us are aware of this maxim, but a few (including myself, till I settled down to author this piece) know that an exception exists to this as was carved out in Blackpool Corpn. v. Locker[2]. Scott, L.J. in this lesser-known judgment propounded that maxim “ignorantia juris non excusat” will be applicable on all fours only when the entire enactment with its limbs is made publicly accessible and known to the general masses.

An appropriate way to make an individual aware about any notification/order released by Government, which he is obliged to obey is to serve the same personally on him, or to offer it for public sale in a way that awareness is on a personalised scale. Ensuring individual service of notices to each person may compound the problem much more than it seeks to redress. Therefore, the only alternative left is to expect the lawmakers to oversee that it is published, so that any interested person is conveniently able to acquaint themselves with the contents of that law.

The Courts have time and again discussed the compelling necessities of publication of the parent and subordinate legislations through gazette publications. Such an exercise makes the common man aware of the legislations whenever it’s given effect to, after its promulgation by the framing authority. Publishing and publicising (both) the legislative enactments, rules, orders, etc. is mandatory because unless the said happens, its subject cannot be held liable for any acts or omissions covered by the legislative measure or enactment. Therefore, the clear intention behind this hyped exercise is to import or attribute knowledge about the birth of such provisions for enabling the society to act within the limitations prescribed therein.

Mapping the roots

One of the starting points of notification as a genesis of any law has been the judgment of Johnson v. Sargant and Sons[3]In this case, the Food Controller under the Defence of the Realm Regulations, 1914 passed an Order which in part required importers of beans to hold them at the disposal of the Controller, unless they had been sold and paid for. The said Order was made on 16-5-1917, but was not published until May 17. To which Lord Bailhache, J. held that imported beans, which had been paid for on May 16, were not covered by the Order. His Lordships said he was unable to hold that the Order came into operation before it was known till its formal publication in the Gazette on May 17.[4]  He held that the test to find out effective publication would be published (in India) in a way that it is brought to the notice of everyone who intends to pass through the country, essentially in the usually acceptable form. Bailhache, J. towards this drew support from various provisions engrafted in various statutes mandating publications of amendments and subordinate legislations in the Official Gazette. Therefore, there cannot be any gainsaying that publication in the Official Gazette is the generally accepted norm of bringing an amended provision or subordinate legislation into existence.[5]

Vis- à-vis

(a) Position in UK

In the United Kingdom, this issue garnered attention in Evans v. Bartlam[6] holding that one must never presume that everyone is aware of the law, the precondition for which is to disseminate the information, in the first place.

Wade and Forsyth, in their celebrated treatise, Administrative Law, (Oxford, 10th Edn.) also state that the very justification for the basic maxim is “the whole of our law, written or unwritten, is made accessible to the people in such a way, that, its legal advisers have access to it, at any moment, as a matter of right”. The Statutory Instruments Act, 1946 contains specific provisions to officially publish the statutory instruments, so that the public would know of the delegated legislation.

(b) Position in USA

As in England, the USA also has “The Federal Register Act, 1935”. The US Supreme Court in Federal Crop Insurance Corpn. v. Merrill[7], where the Federal Crop Insurance Corporation, a wholly government-owned corporation was created by the Federal Crop Insurance Act to insure producers of wheat against crop losses due to unavoidable causes, including drought. This was promulgated and published as part of the Federal Register Regulations specifying the conditions when insured wheat crops, under certain conditions became ineligible for insurance. Without actual knowledge of this provision, a wheat grower applied to the corporation’s local agent for insurance on his wheat crop, informing the local agent that his wheat crop was covered by insurance clause. Most of the crop on the reseeded acreage was destroyed by drought, but however the insurance claim was denied applying the exemption clause in the insurance deed. It was held by the Court that once a provision has been published in the Federal Register, it will be presumed that people know about it and they will be made subject to the said Regulation. One cannot claim that he applied in ignorance of the same as it was not made publicly known.

Judgments of the US Federal Circuit Courts in Building Officials & Code Administrators v. Code Technology Inc.[8] and Cervase v. Office of the Federal Register[9] are the landmark classics, which all underscore that the citizen’s  right to effective access to laws casts a simultaneous duty upon the Government to provide its citizens with such an opportunity. People, under the broad umbrella of right to information deserve to know about the laws they are subjected to.

Position in India

Unlike England and the USA, India does not have any statutory provision which mandates the publication of delegated legislation. However, the principle has evolved through Court made law i.e. judgments. The earliest exposition on this can be discovered in Harla v. State of Rajasthan[10], wherein a resolution was passed by Council of Ministers which purported to enact the Jaipur Opium Act, 1923. When the appellant was convicted and fined under Section 7 of the said Act, the question arose that whether mere passing of the Resolution without promulgation or publication through means to make the Act known to the public, was sufficient to make it a binding law. The Supreme Court speaking through Vivian Bose, J. observed that any law without its publication in the Official Gazette would be deemed to be unenforceable and stillborn and cannot affect the rights of its subjects.

In B.K. Srinivasan v. State of Karnataka[11], an Outline Development Plan prepared by the Bangalore Metropolitan Board was approved by the Government and a notification to that effect was published in the Mysore Gazette dated 13-7-1972. The Bangalore Improvement Trust Board desired to develop Raj Mahal Vilas Extension under the provisions of the City of Bangalore Improvement Act, 1945 and one of the conditions of allotment was that high-rise buildings were not to be constructed on each of the sites, but the high-rise buildings were constructed. This construction of high-rise buildings was opposed and challenged by the local residents, which was repelled by the Supreme Court. The Supreme Court reiterated publication in “some form or the other is compulsory for making the delegated legislation effective”. It was emphasised that if the Act or the delegated legislation itself provides for the mode of publication, then that prescribed mode of publication should be abided by as an inderogable rule. However, where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases, publication or promulgation by other means may be sufficient.

The Supreme Court again in 1985 in yet another judgment of State of Orissa v. Sridhar Kumar Mallik[12] accentuated the importance of the language of such publication in the Official Gazette. In this case, the adequacy of the publication of a notification issued by the Government of Orissa was involved. Under Section 417 of the Orissa Municipal Act, 1950, the Government could create “notified areas” to which the provisions of the Municipalities Act could be applied. In August 1972 two villages were selected for being notified as a “notified area” through notification published in English language. The legality of these were challenged inter alia on the ground that publication in Oriya language was a precondition for it to become enforceable. Observing that since the publication was not in the vernacular language, it failed in serving the desired purpose viz. to make the masses aware about the said legislation as most people subjected to it were unable to read the notification, the Supreme Court acceded to the submissions of the petitioners. This judgment is an authority for the proposition that that publication alone would not serve the purpose, other than it being an effective one.

Digression in New Tobacco Co.[13] and its restoration in Ganesh Das[14]

The Supreme Court in a matter arising under the Central Excise Act in CCE v. New Tobacco Co.[15], went a step beyond holding Official Gazette as a precondition of making any law enforceable. It held that any notification becomes effective only “from the date it was made available to the public”. It elucidated “The mere printing of the Official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to the notification within the meaning of Rule 8(1) of the Rules.” The Court held that neither the date of the notification nor the date of printing, nor the date of gazette counts for notification within the meaning of the rule, but “only the date when the public gets notified in the sense, the gazette concerned is made available to the public”. The “date of release of the publication towards the aforesaid purpose” is the decisive date to make the notification effective.

However, this view was referred to the larger Bench of 3 Judges in view of conflicting judgments by the very same Court in Union of India v. Ganesh Das Bhojraj[16]. Therein a notification was issued under Section 25 of the Customs Act on 4-2-1987, amending an earlier notification of the year 1976, limiting the exemption (granted earlier) to the duty in excess of 25 per cent. The bill of entry was filed on 5-2-1987. The larger Bench of the Supreme Court took the view that under Section 25 of the Customs Act, since the Notification dated    4-2-1987 has been published in the Gazette, it had come into force immediately and constituted the rates prevalent on 5-2-1987, when the respondent had filed the bill of entry. Affirming the view taken in its earlier judgments in State of Maharashtra v. Mayer Hans George[17] and Pankaj Jain Agencies v. Union of India[18], the Court held that for bringing the amending notification into operation, the only requirement of the section is its publication in the Official Gazette and no further mode of publicity is contemplated or additional requirement of offering it to public or putting it on sale as was stipulated as a precondition in New Tobacco case[19].

Thus, effectively the view taken in New Tobacco case[20]  stands overruled and is no more a good law post verdict of Ganesh Das Bhojraj case[21].

Publicity through publication of laws

Publication and publicity of laws is a basic tenet of natural justice. Acts of Parliament and the State Legislatures are publicly enacted. The debates are open to the public and enactments are passed by the public representatives receiving wide publicity. As stressed by the Supreme Court in Gulf Goans Hotels Co. Ltd. v. Union of India[22], the same does not hold true for delegated legislations, on which logic, they must also be promulgated and published.

The Supreme Court in Gulf Goans case[23] was delving into challenges to environmental guidelines issued as directives, departmental orders from time to time. The validity and enforceability of these were challenged by owners of hotels and resorts in Goa subjected to demolition exercise on the basis of these orders. The challenge was anchored on ground that guidelines and orders enforced and cited against them were not an enforceable piece of law and were not in existence when the said hotels/resorts were built. The Supreme Court accepting the challenge laid on behalf of the petitioners held “law must possess a certain form; contain a clear mandate/explicit command which may be prescriptive, permissive or penal and the law must also seek to achieve a clearly identifiable purpose. While the form itself or absence thereof will not be determinative and its impact has to be considered as a lending or supporting force, the disclosure of a clear mandate and purpose is indispensable”. It went on to further hold that in the context of Article 77 of the Constitution, if the law is not duly authenticated and promulgated, then it would not be binding.

For understanding the import of word “publication”, reference can be made to the State of M.P. v. Shri Ram Ragubir Prasad Agarwal[24], wherein whilst elucidating the word “publish” in Section 3(2) of the M.P. Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, the Supreme Court observed that, “in our view, the purpose of Section 3 animates the meaning of the expression ‘publish’ ”. “Publication” was explained to intend “offering to public notice, or to make it accessible to public scrutiny; making known of something to people for a purpose”. In other words, “publication” is meant by something which has a wider publicity rather than minimal communication to the departmental officialdom.

From paper to paperless gazettes: E-notifications

On 30-9-2015, the Ministry of Urban Development, Government of India through an office memorandum completely discontinued the practice of physical printing and replaced it with the electronic gazette. The decision taken under Section 8 of the Information Technology Act, 2000, was taken in consultation with the Department of Legal Affairs to switch over to exclusive e-publishing of the Central Gazette notifications on its official website with effect from 1-10-2015 and for dispensing with their physical printing. The date of publishing shall be the date of e-publication on an official website by way of electronic gazette in respect of gazette notification.

This paradigm shift of the legislative process from analog to the digital mode for the publication of gazette notifications raised important questions about when they came into force and whether the shift to e-gazettes has brought about a change in the legal position of existing qua physical publications.

The law on e-notifications

The edifice of e-governance emanates from Information Technology Act, 2000, which is evident from its “Statement of Objects and Reasons” indicating to “enable the conclusion of contracts and the creation of rights and obligations through the electronic medium”. The IT Act legalised the use, acceptance of electronic records and digital signatures in governmental offices and agencies towards facilitating electronic governance and to “make the citizens’ interaction with the governmental offices hassle-free”.

Section 2(t) of the IT Act defines “electronic record” to mean any data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche. Chapter III of the IT Act pertains specifically to electronic governance which provides for:

(i)       Legal recognition of electronic records (Section 4);

(ii)      Legal recognition of electronic signatures (Section 5);

(iii)     Use of electronic records and electronic signatures in

Government and its agencies (Section 6);

(iv)     Authorisation by Government to service providers to set up, maintain

and upgrade computerised facilities (Section 6-A); and

(v)      Retention of electronic records (Section 7).

Section 6(1) comprises provisions pertaining to use of electronic records and electronic signatures in Government and its agencies stating that requirement of any law shall be deemed to have been satisfied if filing, issue, grant, receipt of any document or payment for any transaction as the case may be, is effected through an electronic form prescribed by the Government. As per Section 13 of the IT Act, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator. All these provisions have been incorporated in the law to enable the dispatch and receipt of a record in the electronic form to be defined with precision with reference to both time and place.

Section 8 of the Act is cardinal to the discussion under hand, which categorically states that wherever any law requires publication of any rule, regulation, order, bye-law, notification or any other matter in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or electronic gazette.

Under the IT Act, the Central Government has formulated the Information Technology (Electronic Service Delivery) Rules, 2011, where under the government authorities have been obligated to maintain time stampsof the creation of electronic records, reference in which respect can be made to Rule 5 as comprising such a requirement Rule 6(2) requires the person authorised to making changes to any electronic document, must also electronically sign the change with its corresponding “time stamps” of the original creation and modification of the electronic record. All these provisions go on to demonstrate that “time stamp” has an important role to play in the issuance of e-notifications.

Earlier views on enforceability of e-notifications

In M.D. Overseas Ltd. v. Union of India[25], the Delhi High Court dealt with a situation where the Director General of Foreign Trade issued two Notifications dated 25-8-2017 restricting the importation of gold, including gold coins. Gold coins could no longer be imported freely and had to be imported in accordance with a public notice issued on that behalf. The gold coins imported by the petitioners were dispatched on 25-8-2017. The petitioners urged that the restrictive regime created by these notifications was inapplicable to them because the notifications, they contended, came into force only on 28-8-2017, when they were published in the Official Gazette and not prior thereto when published in e-notifications. The Delhi High Court accepting the petitioner’s view held the notifications to be inapplicable to the petitioners whilst observing that the endorsement on the electronic copy of the gazette, whereby the impugned Notifications Nos. 24 and 25, dated 25-8-2017, were actually notified and electronically published in the Official Gazette only at or after 10.47 p.m. on 28-8-2017. The High Court read Sections 8 and 13 of the IT Act conjointly with the OM dated    30-9-2015 of the Central Government, for holding the time stamp of publication as the relevant marker for determining the enforceability of the notifications.

This issue also arose before the Andhra Pradesh High Court in Ruchi Soya Industries Ltd. v. Union of India[26], wherein the assessee petitioner entered into a contract with its foreign supplier on 18-1-2008 for the import of 9500 metric tons of crude oil. The first consignment of 4000 metric tons was shipped by the supplier on 6-2-2018 from Dubai. The petitioner filed two bills of entry for 2000 metric tons of crude oil on 1-3-2018. They were assessed that day and levied with 30% customs duty and 10% social welfare surcharge. On the same date, a notification raised the basic customs duty from 30 to 44%. The petitioner filed four bills of entry for the remaining 2000 tons on 2-3-2018 and pleaded that the revised rate was not applicable to it because the e-notification was published only on 6-3-2018. The High Court accepting the assessee’s arguments held that the revised notification would come into force only after it was digitally signed by the competent official, uploaded, published in the Official Gazette and accordingly made available for the public at large.

Similar view was taken also by the Madras High Court in Ruchi Soya Industries Ltd. v. Union of India[27], following the Andhra Pradesh High Court judgment mentioned above to the case before it and allowing the writ petition on the same terms.

Controversy in Chatha Rice Mills case[28]

In the wake of Pulwama terrorist attack in February 2019,  Notification No. 5/2019 was uploaded as e-gazette at time stamp 20:46:58 hours IST by the Central Government on 16-2-2019 under Section 8-A of the Customs Tariff Act, 1975. Through this notification was introduced a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200%. The custom authorities refused to release the goods on the basis of the bills of entry which were filed and self-assessed at the pre-existing rate and proceeded to recall them and reassess the goods at the enhanced rates of duty of 200% under Notification No. 5/2019. The Supreme Court in Chatha Rice Mills case[29] whilst dealing with the appeal of the Revenue was confronted to resolve the issue of applicability of this e-notification qua transactions and assessments completed prior to its issuance.

The Supreme Court held that in case of the publication of gazette notifications through the digital/electronic mode, the “time stamp” of its publication determines the moment of its enforceability in view of Section 6 read with Section 8 of the IT Act, 2000. The Court went on to observe also that such an e-notification, being a piece of delegated legislation cannot operate retrospectively to the prejudice of any assessee, unless authorised expressly by a statute. The notification was held to be operative only from the time stamp when it was so published online in digital mode and resultantly would not apply to self-assessments and transactions pertaining to bills of entry presented on the customs automated electronic data interchange (EDI) system prior to such online release. The Court in the said exercise copiously referred to the whole gamut of provisions pertaining to the e-notifications, their evolution and how the legislative process has migrated from the analog to the digital mode and why also the law needs to be abreast of the same.


Advocate practising at the High Court of Madhya Pradesh and the Supreme Court.

†† 3rd year law student, NLIU, Bhopal.

[1] 2020 SCC OnLine SC 770.

[2] (1948) 1 KB 349 : (1948) 1 All ER 85.

[3] (1918) 1 KB 101.

[4] Id., at p. 103.

[5] Johnson v. Sargant and Sons, (1918) 1 KB 101.

[6] (1937) AC 473.

[7] 1947 SCC OnLine US SC 123 : 92 L Ed 10 : 332 US 380 (1947).

[8] 628 F 2d 730 (1st Cir, 1980).

[9] 580 F 2d 1166 (3rd Cir, 1978).

[10] 1952 SCR 110

[11] (1987) 1 SCC 658 .

[12] (1985) 3 SCC 697.

[13] (1998) 8 SCC 250.

[14] (2000) 9 SCC 461.

[15] (1998) 8 SCC 250.

[16] (2000) 9 SCC 461.

[17] AIR 1965 SC 722.

[18] (1994) 5 SCC 198.

[19] (1998) 8 SCC 250.

[20] Ibid.

[21] (2000) 9 SCC 461.

[22] (2014) 10 SCC 673.

[23] Ibid.

[24] (1979) 4 SCC 686.

[25] 2019 SCC OnLine Del 11885.

[26] 2019 SCC OnLine AP 151.

[27] 2020 SCC OnLine Mad 2769.

[28] Union of India  v. G.S. Chatha Rice Mills, 2020 SCC OnLine SC 770.

[29] Ibid.

Appointments & TransfersNews

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

1. Kesang Doma Bhutia,

2. Rabindranath Samanta,

3. Sugato Majumdar,

4. Ananya Bandyopadhyay,

5. Rai Chattopadhyay,

6. Bivas Pattanayak,

7. Subhendu Samanta, and

8.  Ananda Kumar Mukherjee.


Supreme Court of India

[Statement dt. 04-02-2021]

Case BriefsSupreme Court

Supreme Court: Setting aside the conviction of a man under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah has reminded the Courts to take utmost care in scanning the evidence before recording conviction under the provisions of Prevention of Corruption Act.

“Once conviction is recorded under provisions of Prevention of Corruption Act, it casts a social stigma on the person in the society apart from serious consequences on the service rendered.  At the same time it is also to be noted that whether the view taken by the trial court is a possible view or not, there cannot be any definite proposition and each case has to be judged on its own merits, having regard to evidence on record.”

In the present case, the accused, working as Sanitary Inspector in Madurai Municipal Corporation, was charge-sheeted for the offence under Sections 7, 13(2) read with 13(1)(d) of the Act for an amount of Rs.500/¬ and a cell phone as illegal gratification from one Thiru. D. Gopal, who was working as Supervisor in a Voluntary Service Organisation called Neat And Clean Service Squad (NACSS), which was given sanitation work on contract basis in Madurai Corporation.

While the Trial Court acquitted the accused, the Madras High Court convicted him. It was argued by the accused that the well reasoned judgment of the trial court, which was rendered by appreciating oral and documentary evidence on record, was reversed by the High Court without recording valid and cogent reasons.

Having regard to material contradictions that were put forth before the Court, the Supreme Court noticed that acquittal is a “possible view”. Even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged.

The trial court has disbelieved witnesses by recording several valid and cogent reasons, but the High Court, without appreciating evidence in proper perspective, has reversed the view taken by the trial court.  Further, the High Court also has not recorded any finding whether the view taken by the trial court is a “possible view” or not, having regard to the evidence on record.

“Though the High Court was of the view that PW-2, 3 and 5 can be believed, unless it is held that the view taken by the trial court disbelieving the witnesses is not a possible view, the High Court ought not have interfered with the acquittal recorded by the trial court.”

In view of the material contradictions, the prosecution has not proved the case beyond reasonable doubt to convict the appellant. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused.

“Mere recovery of tainted money, divorced from the circumstances under which such money and article is found is not sufficient to convict the accused when the substantive evidence in the case is not reliable.”

The Court was, hence, of the view that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt. Having regard to such evidence on record the acquittal recorded by the trial court is a “possible view” as such the judgment of the High Court is fit to be set aside.

[N. Vijayakumar v. State of Tamil Nadu, 2021 SCC OnLine SC 53, decided on 03.02.2021]


*Justice R. Subhash Reddy has penned this judgment

Appearances before the Court by

For accused: Senior Advocate S. Nagamuthu

For State: Advocate M. Yogesh Kanna

Case BriefsSupreme Court

Supreme Court:  The 3-Judge Bench comprising of L. Nageswara Rao*, S. Abdul Nazeer and Indu Malhotra, JJ., dismissed the appeal filed by Chintpurni Medical College and Hospital for seeking permission for admitting students for the academic year 2021-2022. The Bench stated,

“There is no merit in the contention of the Appellants that admissions for the academic year 2019-2020 should be considered without any further inspection as the debarment by the notification dated 26-09-2016 was only for a period of two years.”

Background

Government of India granted letter of permission to the Appellant-College on 30-06-2011 for intake of 150 students in MBBS course for the academic year 2011-2012. As the inspections carried out by the Medical Council of India revealed gross deficiencies of the teaching faculty, clinical material and the other physical facilities in the medical college, it recommended that renewal of permission should not be granted to the Appellant-College for the academic years 2012-2013 to 2014-2015 which was accepted by the government.

Meanwhile, on 18-09-2014 in the case of Hind Charitable Trust Shekhar Hospital Private Ltd. v. Union of India, (2015) 2 SCC 336, this Court permitted private medical colleges whose application for renewal of permission was disapproved to make admissions, subject to the undertaking by the President/Chairman and Secretary of the Medical College that there was no deficiency existing in the medical college. Pursuant to which the Appellant-College submitted an undertaking that there was no deficiency existing in the facilities and that in the event of any deficiency being found in the inspection, the bank guarantee of Rs.9.5 Crores should be forfeited. Consequently, the Appellant-College was permitted to admit students for the academic year 2014-2015.

After noticing gross deficiencies, government debarred the Appellant-College for two years i.e. 2017-2018 and 2018-2019 from admitting students and allowed Medical Council of India to forfeit the bank guarantee. Students who were admitted in the first Appellant-College during the years 2011-2012, 2014-2015 and 2016-2017 were shifted to other colleges.

Thereafter, the appellant requested Medical Council of India to permit admission of 150 students in MBBS course for the academic year 2019-2020 which was rejected by the Council. Aggrieved by the same, the Appellant filed a petition in the High Court of Delhi which was dismissed.

Observation and Decision

The Bench observed the findings of High Court that there was no merit in the contention of the Appellants that admissions for the academic year 2019-2020 should be considered without any further inspection as the debarment by the notification dated 26-09-2016 was only for a period of two years. The Bench clarified the order of High Court stating that the Court had merely allowed the appellants to pursue their request for permission for the academic years 2019-2020 and 2020-2021. It did not mean that the appellants were entitled to admit students for the academic year 2019-2020 without an inspection. The Bench stated,

A bare look of inspections conducted from the years 2011-2012 had made it clear that the Appellants had not utilized the opportunities given to them to rectify the deficiencies in the past.

In the view of above, the instant appeal was dismissed and findings of the High Court were upheld. The Bench further clarified that the appellant-College should be entitled for admissions for the academic year 2021-2022 only if renewal of the recognition is granted to the appellant-College and it is found that there are no deficiencies like infrastructure, clinical, teaching faculty and other facilities. [Chintpurni Medical College and Hospital v. Union of India, 2021 SCC OnLine SC 45, decided on 28-01-2021]


Kamini Sharma, Editorial Assistant has put this story together. 

*Justice L. Nageswara Rao has penned this judgment

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“Unless there are any specific reasons for not opening, all Anganwadi Centres beyond the containment zones should be made functional by all the States/Union Territories at an early date”; SC directs

“Children are the future of our country and if there is some stinginess in providing them with adequate nutrition, the country as a whole is deprived in future of taking the benefit of their potential.”

Read more …


Does non-payment of stamp duty in a commercial contract invalidate the arbitration clause? Issue referred to the Constitutional bench to decide

The judgment authored by Indu Malhotra, J. framed the following question to be authoritatively settled by a Constitution bench of five judges:

 Whether the statutory bar contained in Section 35 of the Indian Stamp Act, 1899 applicable to instruments chargeable to Stamp Duty under Section 3 read with the Schedule to the Act, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non-existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract / instrument? ”

Read more …


MORE STORIES


Restitution of conjugal rights| Read how Supreme Court imparted justice to a woman despite rejecting her Transfer Petition

“While the hardship, both social and financial, pleaded by the petitioner deserves favourable consideration, the transfer of the case at this stage of the proceeding may not be appropriate.”

Read more …


Conception that housemakers do not add economic value to the household is “a problematic idea”: SC

The principle of awarding of future prospects must apply with equal vigor in case of non-earning victims of motor accidents, particularly with respect to homemakers.

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SC directs Central Pollution Control Board to submit a priority-wise list of Municipalities, along the river Yamuna which have been found to be most polluted

“Open surface water resources including rivers are lifeline of human civilization.”

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Whether the arbitral process could be interfered under Article 226/227 of the Constitution, and under what circumstance? Supreme Court explains

“If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished.”

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One-Sided and Unreasonable Clauses in Apartment Buyer’s Agreement & Unfair Trade Practice

“Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.”

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“Right to property is still a constitutional right under Article 300A of the Constitution”; SC reminds in a case where State took possession of surplus land in absence of surplus land

“Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law.”

Read more…


Wilful disobedience or Wilful breach: Are these necessary requisites for bringing in action for ‘Civil Contempt’?

“…where an objection is taken to the jurisdiction to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance. However, that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case.”

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SC directs DU to declare Supplementary exam result & issue provisional degree to woman who fell short of attendance due to birth of her child & subsequent Teacher’s strike

The applicant joined 3-year LLB Course at University of Delhi and completed first 3 semesters without any hindrance. During the 4th Semester, she fell short of required attendance due to two difficulties. One was that she gave birth to a baby on 22-02-2018, which had disabled her to attend classes till the end of March, 2018. The second difficulty was that the Delhi University Teachers’ Association had gone on a strike from 16-03-2018 and hence the University could not conduct the minimum number of classes as prescribed by Rule 10 of the Bar Council of India Rules.

Read more …


Failure to make an enquiry before dismissal or discharge of a workman can be justified by leading evidence before the Labour Court: SC clarifies

The 3-judge bench of L. Nageswara Rao, Navin Sinha and Indu Malhotra* has set aside the impugned judgment of Uttaranchal High Court, whereby the High Court had set aside the award passed by the Labour Court on the ground that no disciplinary enquiry was held by the School regarding alleged abandonment of service by the respondent.

Read more …


Can subsequent death of a dependent be a reason for reduction of motor accident compensation? Supreme Court answers

“Any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity, and good conscience.”

Read more…


Penal rent can be levied & adjusted against the dues payable including gratuity if an employee occupies a quarter beyond the specified period: SC

The observation came in a case where a SAIL employee had retained a quarter after his retirement due to non-payment of retiral benefits.

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Is segmentation permissible for National Highway projects beyond a distance of 100 kms? MoEF&CC’s Expert Committee to examine, directs SC

Adoption of segmentation of a project cannot be adopted as a strategy to avoid environmental clearance impact assessment.

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Can a conditional acceptance of an offer be considered a concluded contract? Supreme Court answers

“With the greatest of respect, the High Court has cursorily dealt with the contentions of the Appellant and has not even discussed the cases that had been cited on behalf of the Appellant.”

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Section 6 of Probation of Offenders Act, 1958 is mandatory in nature, which acts as an injunction for Courts to follow; Supreme Court clarifies legal position

“A Court ‘must not’ sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer’s report.”

Read more…


Nothing arbitrary with J&K High Court Chief Justice choosing to regulate the manner of exercise of his own power to relax qualifications: Supreme Court

“… the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.”

Read more …


SC allows IIMC, JNU to remove 29 small trees to construct new buildings for academic block

“In lieu of the 29 tender trees to be cut, the applicant institute had planted 300 trees of different species and the 29 trees which were to be cut belonged to shisham, kikar and papri species. The trees planted were of above species as also other species.”

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Punjab Govt to pay pension to all 214 beneficiaries of 1991 Pension Scheme: SC

The Bench said that there was no merit in the argument of the state that only those persons who retired from service between 11-05-1995 and 30-06-1999 should be eligible for the benefit of the pension scheme. The Bench held that, the persons who were included in the list of 214 names given by the Government could not be deprived of the benefit of the scheme on any ground whatsoever.

Read more …


“Already dismissed from service on being convicted”; Supreme Court reduced quantum of sentence of 70 years old appellant, convicted under Prevention of Corruption Act

In a case relating to Prevention of Corruption Act, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and M.R. Shah*, JJ has partly allowed the appeal regarding quantum of sentence, while concurrent order of conviction by the Courts below was confirmed.

Read more …

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of S.A. Bobde, CJ and L. Nageswara Rao and Vineet Saran, JJ., heard the instant application filed for seeking clarification of the order dated 30-01-2018 as the applicants were not granted pension in accordance with the said order, though their names were found in the list of 214 beneficiaries. On January 30, 2018, the Court had held that the the Appellants were entitled to be paid the pension and had directed the State to pay pension to 214 beneficiaries in accordance with the relevant Scheme with effect from 01.01.2018. 

Government of Punjab had introduced a pension scheme in lieu of Contributory Provident Fund in the year 1991 which was ultimately introduced in 1999. The cut-off date fixed for implementation of the pension scheme was 01-07-1999. The appellants had approached this Court in past with Civil Appeal No.1298 of 2018, wherein the decision of the High Court of Punjab and Haryana of not interfering with the decision of Government whereby Government had rejected the request made by the applicants for altering the cut off date on the ground that there would be huge financial burden on the State exchequer. The Court had directed the State to obtain instructions about the actual financial liability of the State regarding a pension scheme proposed by it.

State had submitted that there were 214 persons who were eligible for the pension/family pension and the annual liability of the State would be Rs.3.79 Crores. It was also submitted by the State that the persons who retired between 1995 and 1999 would be eligible for the benefit of the scheme. Consequently, a direction was given by this Court to pay pension in accordance with the scheme to 214 beneficiaries mentioned by the State w.e.f. 01-01-2018.

The grievances of the applicants were that applicant 1 was retired on 30-04-1994 and the applicant 2 retired on 20-09-1997. The State had denied granting a pension to both the applicants on the ground that they had been retired prior to 11-05-1995 in spite of their name being in the list of 214 beneficiaries.

The Bench said that there was no merit in the argument of the state that only those persons who retired from service between 11-05-1995 and 30-06-1999 should be eligible for the benefit of the pension scheme. The Bench held that, the persons who were included in the list of 214 names given by the Government could not be deprived of the benefit of the scheme on any ground whatsoever.

Noticing the above mention, the Bench disposed of the present application by clarifying the judgment dated 30-01-2018 in Civil Appeal No.1298 of 2018 that all the 214 persons who were included in the list prepared by the State Government were entitled to grant of benefit in accordance with the pension scheme.

[Darshan Singh v. State of Punjab, 2021 SCC OnLine SC 37, decided on 22-01-2021]


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ, AS Bopanna and V. Ramasubramanian*, JJ has set aside the judgment of Delhi High Court, whereby the Court had refused to interfere with the decision of the University denying permission to the applicant to appear in 4th Semester LL.B Examination.

The applicant joined 3-year LLB Course at University of Delhi and completed first 3 semesters without any hindrance. During the 4th Semester, she fell short of required attendance due to two difficulties. One was that she gave birth to a baby on 22-02-2018, which had disabled her to attend classes till the end of March, 2018. The second difficulty was that the Delhi University Teachers’ Association had gone on a strike from 16-03-2018 and hence the University could not conduct the minimum number of classes as prescribed by Rule 10 of the Bar Council of India Rules. Due to inadequate attendance, the applicant was not permitted to write 4th Semester Examinations. Consequently, the applicant had filed an SLP against the said order, whereby the Court had permitted her to attend classes at her own risk on completion of the required formalities. Pursuant to the order of the Court, the applicant had appeared for the examinations of the 4th, 5th and 6th Semesters.

The issue in the present application was that, the University had declared the results of the 4th and 6th Semester examinations, but the results of the 5th Semester Supplementary Examination had not been declared. Therefore, the applicant had approached the Court with I.A.No.102466 of 2020, seeking a direction to the respondent to declare the results of the applicant for the 5th Semester Supplementary Examination and to grant the provisional degree, consolidated mark sheet and character certificate.

The Court, in the light of above, had directed the University to declare the results of 5th Semester Supplementary Examination of the applicant and issue the provisional degree along with necessary certificates, if she had passed the examinations, subject to the applicant clearing other formalities. [Ankita Meena v. University of Delhi, 2021 SCC OnLine SC 36, decided on 22-01-2021]


*Justice V. Ramasubramanian has penned this judgment. 

 

Kamini Sharma, Editorial Assistant has put this story together

 

Case BriefsSupreme Court

Supreme Court: The Division Bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ., has observed that Section 6 of Probation of Offenders Act, 1958 leaves no discretion to the Court as it provides,

“A Court ‘must not’ sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer’s report.”

The appellants were youngsters, aged about 20 and 19 years when they attacked the complainant with dagger and knife and inflicted 11-12 injuries on his forehead, abdomen and neck. The complainant was thrown out of his taxi and the appellants fled with the taxi. In the trial, the appellants were convicted by the Trial Court and sentenced of Rigorous Imprisonment for 7 years was imposed on each of them. The instant special leave petition was filed to challenge the dismissal of their appeal against the Trial Court’s findings.

Contention before the Court was a compromise deed was arrived at between the complainant and the appellants, whereof the complainant had stated that he did not want to pursue any action against the appellants and had no objection to their release on bail or acquittal. However, counsel for the State submitted that the minimum sentence provided by the statute under Section 397 of IPC was 7 years and the same cannot be reduced below that period; to which the appellants sought benefit under Probation of Offenders Act, 1958.

Applicability of Probation of Offenders Act, 1958: Analysis

The Court observed that, statement of Objects and Reasons of the Act explain the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be sub served. Section 6 of the Act, as per its own title, has provided for restrictions on imprisonment of offenders under twenty-one years of age. The said provision reads as under:

“6. Restrictions on imprisonment of offenders under twenty-one years of age.—(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.

Reliance was placed by the Court on Masarullah v. State of Tamil Nadu, (1982) 3 SCC 485, wherein observations were made that “in case of an offender under the age of twenty one years on the date of commission of the offence, the Court is expected ordinarily to give benefit of the provisions of the Act and there is an embargo on the power of the Court to award sentence unless the Court considers otherwise, ‘having regard to the circumstances of the case including nature of the offence and the character of the offender”. The Court stated, “the underlying purpose of the provision being reformative and Section 6 being a special provision, it was enacted to prevent the confinement of young persons under 21 years of age in jail, to protect them from the pernicious influence of hardened criminals. The Bench, while citing Ishar Das v. State of Punjab, (1973) 2 SCC 65, reiterated that non-obstante clause in Section 4 of the Act reflected the legislative intent that provisions of the Act have effect notwithstanding any other law in force at that time. It was further noticed that the fact that Section 18 of the Act did not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences.

The Bench concluded that the benefit of probation under the said Act was not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC. Considering the facts that the appellants had served about half of their sentence and the complainant had forgiven them, also that there was no adverse report against the appellants about their conduct in jail, the Court held, it was a fit case that the benefit of probation could be extended to the appellants. Thus, the appellants were ordered to be released on probation of good conduct on their entering into a bond with two sureties each to ensure that they maintain peace and good behaviour. [Lakhvir Singh v. State of Punjab, 2021 SCC OnLine SC 25, decided on 19-01-2021]

*Justice Sanjay Kishan Kaul has penned this judgment.


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of S.A. Bobde, CJ and L. Nageswara Rao and Vineet Saran, JJ., dismissed a review petition while directing the Family Court, Gautam Budh Nagar, to conduct proceedings by video conferencing.

Petitioner preferred the instant petition seeking transfer of HMA No. 487 of 2015 filed by the respondent from Principle Jude, Family Court, District Gautambudh Nagar, U.P. to the Court of Principal Judge, Family Court, Saket District, New Delhi.

The transfer petition was dismissed the and Court directed the trial to be conducted at Gautambudh Nagar, Family Court through Video conferencing.

Reasoning placed by the petitioner for filing the present petition was that there was no video conferencing facility at Gautambudh Nagar, District Courts. Another ground was that video conferencing is not permissible in matrimonial matters in light of the Supreme Court decision in Santhini v. Vijaya Venketesh, (2018) 1 SCC 62.

 Since March 2020, due to the physical functioning of the Courts were stopped. Hence, proceedings in all Courts are being conducted only through video conferencing.

Bench stated that in the normal course, it would not have directed video conferencing in respect of matrimonial matters as per the above-referred Judgment, but in the present matter, since all the proceedings are being conducted in video conferencing, Court directed the Family Court, District Gautambudh Nagar, U.P. to conduct the trial through video conferencing.

In light of the above, the review petition was dismissed. [Anjali Brahmawar Chauhan v. Navin Chauhan, 2021 SCC OnLine SC 38, decided on 22-01-2021]

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of Ashok Bhushan, R. Subhash Reddy and M.R. Shah, JJ., issued directions in a case wherein a woman for the reason of being a ‘rape victim’ has been unable to secure accommodation.

The instant petition was filed by a rape victim invoking the jurisdiction of this Court under Article 32 of the Constitution of India.

Factual Matrix

Petitioner claimed to be a Scheduled Tribe in the State of Jharkhand. She was taken away by one Basant Yadav and later on being found, the police and the father of the petitioner got the petitioner married to Basant Yadav.

After a year of the marriage, petitioner gave birth to a son and later filed a complaint as well as a maintenance case against Basant Yadav.

Later in the sequence of facts, it was noted that after the divorce, the custody of the son was given to Basant Yadav and once petitioner while going to meet her son was raped by one Mohd. Ali and three other accused.

In light of the above incident, a case under Section 376/34 read with Section 3(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989was registered in which accused, Mohd. Ali was apprehended and put on trial.

Petitioner had also lodged FIR against the Dy. Inspector-General of Police under Sections 376,376(2)(a) IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989. Though,

Sessions Judge acquitted the Inspector General of Police by judgment and order dated 23-12-2017.

The concern placed by the petitioner is that she being a rape victim, whose identity was disclosed by the media, no one is ready to give her a rented accommodation. She has sought direction for the protection of her children.

Analysis and Decision

“The petitioner being a rape victim deserves treatment as rape victim by all the authorities.”

 While stating that a rape victim suffers not only a mental trauma but also discrimination from the society, bench referred to the decision of Supreme Court in Nipun Saxena v. Union of India, (2019) 2 SCC 703, wherein it was held that:

“12. A victim of rape will face hostile discrimination and social ostracisation in

society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. ………”

 Petitioner has two sons and one daughter, out of which one son is major and the other two are minor.

Bench on noting after an inquiry stated that Deputy Commissioner, Ranchi shall take appropriate steps to ensure that minor children are provided with free education in any Government Institution at Ranchi.

With regard to the grievance of revelation of rape victim’s identity, Court referred to the Section 228-A of the Penal Code, 1860 which makes disclosure of the identity of the victim an offence.

In Nipun Saxena v. Union of India, (2019) 2 SCC 703, following directions were issued:

“50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.”

 Further, the grievance in regard to the petitioner’s inability to get any rented accommodation due to her being a rape victim, Court stated that there several Central as well as State Schemes for providing residential accommodation to persons living living below poverty line and other deserving cases, hence the Bench asked the Deputy Commissioner, Ranchi to consider the case of the petitioner for allotment of any housing accommodation under Prime Minister Awas Yojna or any other Scheme of the Centre or the State.

Conclusion

Directions issued by the Court:

  1. The Deputy Commissioner, Ranchi is directed to take measure to ensure that minor children of the petitioner are provided free education in any of the Government Institutions in District Ranchi where the petitioner is residing till they attain the age of 14 years.
  2. The Deputy Commissioner, Ranchi may also consider the case of the petitioner for providing house under Prime Minister Awas Yojna or any other Central or State Scheme in which petitioner could be provided accommodation.
  3. The Senior Superintendent of Police, Ranchi and other competent authority shall review the Police security provided to the petitioner from time to time and take such measures as deem fit and proper.
  4. The District Legal Services Authority, Ranchi on representation made by the petitioner shall render legal services to the petitioner as may be deemed fit to safeguard the interest of the petitioner.

[X v. State of Jharkhand, WP (Civil) No. 1352 of 2019, decided on 20-01-2021]

Op EdsOP. ED.

            On 11-8-2020, the Supreme Court of India passed a landmark judgment in Vineeta Sharma v. Rakesh Sharma[1], stating that the Hindu Succession (Amendment) Act, 2005[2] will have a retrospective effect. The 2005 Amendment amended Section 6 of the Act in order to align with the constitutional belief of gender equality. Under the amendment, the daughter of the coparcener shall by birth become a coparcener in her own right in the same manner as the son. Vineeta Sharma case[3] settled the matter in the question – whether the 2005 Amendment had deemed the daughter to have the same right as of a son in the coparcenary property irrespective of the father being alive before the Amendment.

            The judgment was decided by a three-Judge Bench comprising of Arun Mishra, M. R. Shah and S. Abdul Nazeer, JJ. and was authored by Arun Mishra, J. It stated that as the right of being a coparcener is by birth for a son and so is it for a daughter post the 2005 Amendment, and even if the father was not alive on 9-9-2005, it does not obstruct a daughter’s right from claiming her share in the coparcenary property. This judgment resulted in overruling the Supreme Court’s earlier judgments in Prakash v. Phulavati[4] and Mangammal v. T.B. Raju[5] which had held otherwise. Hereby, Vineeta Sharma[6] judgment re-affirmed equality in the treatment of sons and daughters by the law for the purposes of succession.

            One of the reasons listed by the Supreme Court in the recent judgment to put the daughter at par with the son is that coparcenary rights are formed since birth and “it is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive.[7] The Supreme Court held that notional partition, the proviso to Section 6 of the 2005 Amendment Act[8] mentions, is merely a fiction of partition that is created in order to ascertain the share of the surviving Class I female heirs[9] or male relatives of the female heirs of the deceased coparcener. However, the purpose behind the statutory fiction is “not to bring about the real partition”.[10]

            The concept of notional partition is created to give effect to the Explanation to Section 6 of the Hindu Succession (Amendment) Act, 2005[11]. It is a legally formed fiction where partition is assumed to happen between the deceased and his coparceners, immediately before the death of the deceased. Notional partition can be interpreted in the following two ways: (1) narrow interpretation; and (2) broad interpretation.

            In the narrow interpretation, notional partition is a partial partition. According to the unamended Section 6, intestate succession happened by notional partition only if any member from Class I heirs mentioned in the Schedule, was alive at the time of the death of the deceased. This indicates that the property divided is like a legal fiction created only to determine the share of the deceased. Whereas the other remaining part of the property continues to be a coparcenary property until an actual partition is effected. In this way, the coparceners have fluctuating undivided joint interest in the coparcenary property. Therefore, the narrow concept of notional partition does not result in the disruption of the joint Hindu Undivided Family. Accordingly, female members who inherit in joint family property under unamended Section 6 (wife, mother and grandmother), will be entitled only to the share which is notionally devolved upon her as per Explanation 1 to Section 6[12] if the actual partition does not take place.

            On the other hand, the broader interpretation of notional partition assumes that the actual partition has occurred immediately before the death of the deceased. This interpretation is followed by the Supreme Court in Gurupad Khandappa v. Hirabai Khandappa Magdum[13]. In Uttam v. Saubhag Singh[14], which was decided post 2005 Amendment, the Supreme Court placed reliance on Khandappa case.[15] Going by this interpretation, the fictional assumption should be brought to a logical end. It should be treated and accepted as a concrete reality. Once the fictional assumption is made, it is not irrevocable as the “… assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it.”[16]

            As a result of following the broader interpretation of notional partition, the joint Hindu Undivided Family no longer exists, by converting the coparcenary property into separate property of the deceased’s heirs. Accordingly, female members who inherit in joint female property under amended Section 6 will be entitled to both the interest which she has inherited and the share which is notionally devolved upon her as per Explanation 1 to Section 6.[17] However, it must be noted that broader interpretation of the fiction can be used only to ascertain the shares of the deceased and cannot be carried beyond that to say that the female heirs cease to be members of the joint family.[18] Therefore, broader interpretation of the concept of notional partition is used to enlarge the scope of the shares which women are entitled to so as to be in tandem with the Statement of Objects and Reasons of the said 2005 Amendment Act.

            In Vineeta Sharma[19], the Court relied on the narrow interpretation of notional partition by holding that “The entire partition of the coparcenary is not provided by deemed fiction; otherwise, coparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it.”[20] This results in keeping the spirit of joint Hindu family intact.[21] This rationale is given to justify that coparcenary rights are available since birth and hence, daughters will get share in the coparcenary property irrespective of the father being alive or not.

            However, due to this reasoning, the female member (who cannot ask for partition since they are not coparceners) who inherits the joint family property will have to bear the brunt if she dies before any actual partition is initiated by the coparceners. This is because, while they will be entitled to the share devolved upon notionally as per amended Section 6, they will not receive any right in the joint family property. If the Supreme Court would have followed the broad interpretation instead, it could have yielded a similar result of vesting the daughter with the same right as of the son in the coparcenary property irrespective of father being alive. Moreover, it would have granted the daughter-in-law her share of the property without her having to depend on any coparcener to demand for an actual partition in future.

            The Supreme Court in Vineeta Sharma[22] judgment traces its way back to the past by following narrow interpretation and ensures that the joint Hindu Undivided Family stays intact.  Whereas, the 174th Report of the Law Commission of India[23] and the Consultation Paper on Reform of Family Law, 2018[24] both recommended the abolition of coparcenary and to put an end to the joint Hindu family system. The abolition of coparcenary is the only plausible solution to rectify the inherent biases of the Hindu Succession (Amendment) Act, 2005.

            While the decision in Vineeta Sharma[25] is a progressive step forward, however, it raises a lot of issues which are yet to be addressed. The judgment quoted that “Once a daughter, always a daughter … son is a son till he is married.”[26] Many have celebrated this statement, yet it has deep hues of romantic paternalism behind it. By stating so, the Court implied that a daughter can never form her own coparcenary as she will always need to hide behind the shadow of her father, grandfather, brother, husband, or son. This has led to an anomalous situation as sons can start their own coparcenary once they get married and have children.

            To say the least, the judgment does not just raise one issue, it raises a couple of them.  The issues related to gender inequality still persists. By pushing a narrative shrouded in romantic paternalism, the Court has failed to see that the married women are now double beneficiaries of these laws (same women inherit from the lineage as well as from her marriage). While at the same time it has turned a blind eye towards the men who only inherit property because of a single lineage. This further re-enforces the patriarchal structure of the society in which men are also victims at certain times.

            While this judgment surely is a welcoming step, however, it opens floodgates of various questions which are yet to be answered. It will be interesting to know how things unfold with respect to ascertaining the shares of dependent women under the abovementioned circumstances. Moreover, it pushes to shift the discourse regarding gender equality and traditional laws, as the country waits holding its breath anticipating what is to come.


* Third-year law students, Jindal Global Law School, Sonipat.

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

[2] Hindu Succession (Amendment) Act, 2005

[3] Supra Note 1.

[4] (2016) 2 SCC 36

[5] (2018) 15 SCC 662

[6] Supra Note 1.

[7] Supra Note 1 at p. 73, para 75.

[8]Read as “Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before  20th day of December, 2004.”

[9] The list is mentioned in the Schedule to the Act of 1956.

[10] Supra Note 1 at p. 101, para 101.

[11]Read as “Explanation.—For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”

[12] Ibid.

[13] (1978) 3 SCC 383

[14] (2016) 4 SCC 68

[15] Supra Note 13.

[16] Supra Note 13, para 13.

[17] Supra Note 11 .

[18]State of Maharashtra v.  Narayan Rao, (1985) 2 SCC 321,  para 9

[19] Supra Note 1.

[20]Ibid, at p. 101, para 101.

[21]As coparcenary rights are not derived from any person or event apart from being birth of the coparcener, it satisfies the concept of unobstructed heritage explained by Mulla, cited by the Supreme Court. Therefore, there is no need to take support of the narrow interpretation in order to justify the equal treatment of son and daughter. By following narrow interpretation, the Court wants to keep the concept of Hindu tradition of social togetherness unimpaired. The ulterior motive is to serve the people who are dependent on earning family members and give tax benefits incurring through it.

[22] Supra note 1.

[23] Law Commission Report, Property Rights of Women: Proposed Reforms under the Hindu Law, (Report No. 174, 2000) p. 26, para 5.7.

[24] Law Commission of India, Consultation Paper on Reform of Family Law (2018) p. 126, para 5.12.

[25] Supra Note 1.

[26] Supra Note 1,  p. 56, para 50.

Case BriefsSupreme Court

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

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

The Challenge

In the instant matter, the petitioners approached the Court calling in question the following Sections of the Insolvency and Bankruptcy Code (Amendment) Act, 2020: Sections 3, 4 and 10.

Section 3 of the impugned amendment, amends Section 7(1) of the Insolvency and Bankruptcy Code, 2016 (“IBC”). It incorporates 3 provisos to Section 7(1).

Section 4 of the impugned amendment, incorporates an additional Explanation in Section 11 (Explanation II) IBC.

Section 10 of the impugned amendment inserts Section 32-A in IBC.

The Petitioners

Majority of the petitioners were the allottees under the real estate projects and they have trained the constitutional gun at the impugned provisos.

Under the second proviso, a new threshold was declared for an allottee to move an application under Section 7 for triggering the insolvency resolution process under IBC. The threshold is the requirement that there should be at least 100 allottees to support the application or 10% of the total allottees whichever is less. Moreover, they should belong to the same project.

Some other petitioners were money lenders, who stepped in to provide finance for the real estate projects. They were also visited with the requirement which is imposed upon them under the first impugned proviso which is on similar lines as those comprised in the second proviso.

Point-wise Discussion & Observations

A. Challenging a Plenary Law

The Court noted the following two contentions urged by some of the petitioners:

A.1. The law was created by way of pandering to the real estate lobby and succumbing to their pressure or by way of placating their vested interests.

In regard with this contention, Court stated that such an argument is nothing but a thinly disguised attempt at questioning the law of the Legislature based on malice. It was observed:

“While malice may furnish a ground in an appropriate case to veto administrative action it is trite that malice does not furnish a ground to attack a plenary law.”

 Reliance was placed on the earlier Supreme Court decisions in K. Nagaraj v. State of A.P., (1985) 1 SCC 523 and State of H.P. v. Narain Singh, (2009) 13 SCC 165.

A.2. Another contention was that, due to its stand before the Court in Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416, the supreme legislature was estopped by the principle of promissory estoppel from enacting the impugned enactment.

To this, the Court answered that: “A supreme legislature cannot be cribbed, cabined or confined by the doctrine of promissory estoppel or estoppel. It acts as a sovereign body.

The theory of promissory estoppel, on the one hand, has witnessed an incredible trajectory of growth but it is incontestable that it serves as an effective deterrent to prevent injustice from a Government or its agencies which seek to resile from a representation made by them, without just cause. Reliance was placed on Union of India v. Godfrey Philips( India) Ltd, (1985) 4 SCC 369.

B. Challenge to newly inserted Provisos in S. 7(1)

Under the impugned provisos inserted in Section 7(1) of the Code, an application by an allottee, can be made only if there are hundred allottees or a number representing one-tenth of the total number of allottees, whichever is less, with a further rider that the allottees must be part of the same real estate project.

B.1. Allottee and Real Estate Project

The Court was of the opinion that the definition of the word “allottee” appears to be split up into three categories broadly, they are- plot, apartment and buildings. In the context of the impugned proviso, in calculating the total number of allottees, the question must be decided with reference to real nature of the real estate project in which the applicant is an allottee. If it is in the case of an apartment, then necessarily all persons to whom allotment had been made would be treated as allottees for calculating the figure mentioned in the impugned proviso. As to what would constitute the “real estate project”, it must depend on the terms and conditions and scope of a particular real estate project in which allottees are a part of. These are factual matters to be considered in the facts of each case.

B.2. Workability of Default

 Since, default can be qua any of the applicants, and even a person, who is not an applicant, and the action is, one which is understood to be in rem, in that, the procedures, under IBC, would bind the entire set of stakeholders, including the whole of the allottees, the Court saw no merit in the contention of the petitioner based on the theory of default, rendering the provisions unworkable and arbitrary.

It was explained that if a law contemplates that the default in a sum of R 1 crore can be towards any financial creditor, even if he is not an applicant, the fact that the debt is barred as against some of the financial creditors, who are applicants, whereas, the application by some others, or even one who have moved jointly, fulfill the requirement of default, both in terms of the sum and it not being barred, the application would still lie.

B.3. Allottees to be from same real estate project: Constitutionality 

The rationale behind confining allottees to the same real estate project is to promote the object of IBC. Once the threshold requirement can pass muster when tested in the anvil of a challenge based on Articles 14, 19 and 21, then, there is both logic and reason behind the legislative value judgment that the allottees who must join the application under the impugned provisos must be related to the same real estate project. If it is to embrace the total number of allottees of all projects, which a Promoter of a real estate project, may be having, it will make the task of the applicant himself more cumbersome.

B.4. Point of time to comply with the Threshold Requirements

There can be no doubt that the requirement of a threshold under the impugned proviso in Section 7(1) must be fulfilled as on the date of the filing of the application. In the matter of presentation of an application under Section 7, if the threshold requirement under the impugned provisos stands fulfilled, the requirement of the law must be treated as fulfilled.

B.5. Holding by family members and joint holdings: Whether Single Allottee

 In the case of a joint allotment of an apartment, plot or a building to more than one person, the allotment can only be treated as a single allotment. This for the reason that the object of the Statute, admittedly, is to ensure that there is a critical mass of persons (allottees), who agree that the time is ripe to invoke IBC and to submit to the inexorable processes under IBC, with all its attendant perils.

B.6. No power of waiver to Central Government unlike in Companies Act

 Section 399(4) of the Companies Act, 1956, empowers the Central Government to waive certain requirements allowing applicants to approach the Tribunal, if found just and equitable.

However, the scheme of IBC is unique and its objects are vividly different from that of the Companies Act. Consequently, if the Legislature felt that threshold requirement representing a critical mass of allottees alone would satisfy the requirement of a valid institution of an application under Section 7, it cannot be dubbed as either discriminatory or arbitrary.

B.7. Or. 1 R. 8 CPC and S. 12, Consumer Protection Act

Under Order 1 Rule 8 CPC, where there are numerous persons having the same interest in one suit, one or more such persons can, with the permission of the court, sue or be sued or may defend such suit on behalf of or for the benefit of all persons so interested, at the instance of a single person with whom numerous persons share the same interest. Similar is the provision of Section 12 of the Consumer Protection Act, 1986.

However, it is important to not be oblivious to the scheme of IBC and to distinguish it from a civil suit laid invoking Order 1 Rule 8 or the consumer complaint presented by one consumer, sharing the same interest with numerous others. As to whether the procedure contemplated in Order I Rule 8 is suitable, more appropriate and even more fair, is a matter, entirely in the realm of legislative choice and policy.

“Invalidating a law made by a competent Legislature, on the basis of what the Court may be induced to conclude, as a better arrangement or a more wise and even fairer system, is constitutionally impermissible. If, the impugned provisions are otherwise not infirm, they must pass muster.”

 B.8. The Pioneer judgment: Are amendments violative of it

In Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416, certain amendments to IBC were challenged. The challenged provisions included the Explanation added to Section 5(8)(f).

After culling out the findings of the Court in the Pioneer judgment, the Court opined that the impugned provisos do not set at naught the ruling in Pioneer judgment. In a challenge by real estate developers upholding the provisions in the manner done including the Explanation in Section 5(8)(f) and allaying the apprehension about abuse by individual allottees cannot detract from the law giver amending the very law on its understanding of the working of IBC at the instance of certain groups of applicants and impact it produces on the economy and the frustration of the sublime goals of the law.

B.9. Information Asymmetry

 It was contended that the information relating to allottees in respect of real estate projects and the debenture holders and security holders in regard to the first proviso is not available, which makes it arbitrary and unworkable.

On this, the Court noted that as far as allottees are concerned in regard to apartments and plots, Section 11(1)(b) of the RERA makes it mandatory for the promoter to make available information regarding the bookings. The Court conflated bookings with allotments. Further, the Association of allottees has to be formed under the mandate of the law it is expected to play an important role. It was stated:

“The law giver has therefore created a mechanism, namely, the association of allottees through which the allottees are expected to gather information about the status of the allotments including the names and addresses of the allottees.”

Similarly, contention regarding non-availability of information regarding debenture holders and security holders was turned down in view of statutory mechanism comprised in the provisions of the Companies Act 2013, namely Section 88.

B.10. The first and second provisos classification

The petitioners emphasised the principle that the object itself cannot be discriminate. It was pointed out that the object in the case of impugned provisos between different sections of financial creditors is such discrimination. Further, the corporate debtors are discriminated again in that builders are accorded special treatment qua other corporate debtors.

Following a plethora of judicial precedents, the Court concluded that:

“It is clear that the law does not interdict the creation of a class within a class absolutely. Should there be a rational basis for creating a sub-class within a class, then, it is not impermissible.”

It was noted that allottees are indeed financial creditors. They do possess certain characteristics, however, which appear to have appealed to the Legislature as setting them apart from the generality of financial creditors. These features are: (i) Numerosity; (ii) Heterogeneity; (iii) Individuality in decision making.

“In the case of the allottees of a real estate project, it is the approach of the Legislature that in a real estate project there would be large number of allottees. There can be hundreds or even thousands of allottees in a project. If a single allottee, as a financial creditor, is allowed to move an application under Section 7, the interests of all the other allottees may be put in peril. This is for the reason that as stakeholders in the real estate project, having invested money and time and looking forward to obtaining possession of the flat or apartment and faced with the same state of affairs as the allottee, who moves the application under Section 7 IBC, the other allottees may have a different take of the whole scenario.”

It was added that some of them may approach the Authority under the RERA. Others may, instead, resort to the fora under the Consumer Protection Act, though, the remedy of a civil suit is, no doubt, not ruled out. In such circumstances, if the Legislature, taking into consideration, the sheer numbers of a group of creditors, viz., the allottees of real estate projects, finds this to be an intelligible differentia, which distinguishes the allottees from the other financial creditors, who are not found to possess the characteristics of numerosity, then, it is not for the Court to sit in judgment over the wisdom of such a measure.

“This is not a case where there is no intelligible differentia. The law under scrutiny is an economic measure. As laid down by this Court, in dealing with the challenge on the anvil of Article 14, the Court will not adopt a doctrinaire approach.”

 B.11. Allottees v. Operational Creditors

One of the contentions raised by petitioners was as regards the hostile discrimination between petitioner (allottees) and operational creditors. The advantages which financial creditor have over operational creditors was referred to.

The Court was of the view that as far as the argument relating to violation of Article 14 qua operational creditor was concerned, there is no merit in the same. Quite apart from the fact that under IBC they are dealt with under different provisions and a different procedure is entailed thereunder, even the earlier decisions have treated the financial creditor differently from the operational creditor. Reliance was placed on Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407; Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 and Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416. It was observed:

“While it may be true that the allottee is not a secured creditor and he is not in the position of a bank or the financial institution, the contentions of the petitioners that there is hostile discrimination forbidden (under) Article 14 is untenable. There cannot be any doubt that intrinsically a financial creditor and an operational creditor are distinct.”

It was noted that it is not a case where the right of the allottee is completely taken away. All that has happened is a half-way house is built between extreme positions, viz., denying the right altogether to the allottee to move the application under Section 7 IBC and giving an unbridled license to a single person to hold the real estate project and all the stakeholders thereunder hostage to a proceeding under IBC which must certainly pass inexorably within a stipulated period of time should circumstances exists under Section 33 into corporate death with the unavoidable consequence of all allottees and not merely the applicant under Section 7 being visited with payment out of the liquidation value, the amounts which are only due to the unsecured creditor.

C. Challenge to newly inserted Explanation II to S. 11

It was contended that an Explanation cannot modify the main provision to which it is an Explanation. Section 11(a) and Section 11(b) unequivocally bar a Corporate Debtor from filing a Corporate Insolvency Resolution Process application qua another Corporate Debtor under Section 7 and Section 9 IBC. It was complained that the label of an Explanation has been used to substantially amend, which is an arbitrary and irrational exercise of power.

It was pointed out that the word “includes” in Explanation I to Section 11 would indicate that an Application for CIRP is barred not only against itself but also against any other Corporate Debtor when the applicant-Corporate Debtor is found placed in circumstances expressed in Section 11. If the purport of  Explanation II, which was impugned, is that the intention of the law was to only bar an Application for CIRP by a Corporate Debtor against itself, then, it will be unworkable and practically impossible. Explanation II, it was contended, is manifestly arbitrary. It was further contended that the amendment cannot be used retrospectively and take away the vested right.

Dealing with this challenge, the Court analysed the limbs of Section 11 and  Explanation I. Then finally coming to Explanation II, it was opined that The intention of the Legislature was always to target the corporate debtor only insofar as it purported to prohibit application by the corporate debtor against itself, to prevent abuse of the provisions of IBC. It could never had been the intention of the Legislature to create an obstacle in the path of the corporate debtor, in any of the circumstances contained in Section 11, from maximizing its assets by trying to recover the liabilities due to it from others. It was further held:

“The provisions of the impugned Explanation II, thus, clearly amount to a clarificatory amendment. A clarificatory amendment, it is not even in dispute, is retrospective in nature.”

D. Challenge to newly inserted S. 32-A

It was contended that the immunity granted to the corporate debtors and its assets acquired from the proceeds of crimes and any criminal liability arising from the offences of the erstwhile management for the offences committed prior to initiation of CIRP and approval of the resolution plan by the adjudicating authority further jeopardizes the interest of the allottees/creditors. It will cause huge losses which is sought to be prevented under the provisions of the Prevention of Money Laundering Act, 2002. Section 32-A, it was argued, is therefore arbitrary, ultra vires and violative of Article 300-A and Articles 14, 19 and 21.

Answering this, the Court was of the clear view that no case whatsoever is made out to seek invalidation of Section 32-A. The boundaries of the Court’s jurisdiction are clear. The wisdom of the legislation is not open to judicial review. It was observed:

“The provision is carefully thought out. It is not as if the wrongdoers are allowed to get away. They remain liable. The extinguishment of the criminal liability of the corporate debtor is apparently important to the new management to make a clean break with the past and start on a clean slate.”

Further, it was stated that it must be remembered that the immunity is premised on various conditions being fulfilled. In Court’s opinion, there was no basis at all to impugn the Section on the ground that it violates Articles 19, 21 or 300A.

E. Restrospectivity in third proviso to S. 7 and effect on vested rights

The third proviso is a one-time affair. It is intended only to deal with those applications, under Section 7, which were filed prior to 28.12.2019. In other words, the legislative intention was to ensure that no application under Section 7 could be filed after 28.12.2019, except upon complying with the requirements in the first and second provisos. The Legislature did not stop there. It has clearly intended that the threshold requirement it imposed, will apply to all those applications, which were filed, prior to 28.12.2019 as well, subject to the exception that the applications, so filed, had not been admitted, under Section 7(5).

The Court considered, whether the right under the unamended Section 7 was a vested right of the financial creditors or allottees covered by the provisos 1 and 2, respectively.

It was the Court’s view that there is a right which is vested in the cases where, the petitioners have filed application, fulfilling the requirements under unamended Section 7 of IBC. The very act of filing the application, even satisfies the apparent test propounded by the Additional Solicitor General, that the right under Section 7 is only one to take advantage of the statute and unless advantage is actually availed it does not create an accrued right. When applications were filed under the unamended provisions of Section 7, at any rate it would transform into a vested right. The vested right is to proceed with the action till its logical and legal conclusion.

It was noted, every sovereign Legislature is clothed with competence to make retrospective laws. It is open to the Legislature, while making retrospective law, to take away vested rights. If a vested right can be taken away by a retrospective law, there can be no reason why the Legislature cannot modify the vested rights.

During the course of discussion, it was also noted that imposing the threshold requirement under the third proviso, is not a mere matter of procedure. It impairs vested rights. It has conditioned the right instead, in the manner provided in the first and the second proviso. The Court already upheld the first and second proviso, which, in fact, operates only in the future. In that sense, the Legislature has purported to equate persons who had not filed applications with persons like the petitioners who had filed the applications under the unamended law.

Lastly, the Court discussed certain factors including clarity regarding “withdrawal” under the third proviso, as also the question of court fees. Analysing such points, the Court finally passed certain directions.

Conclusion & Relief

The Court upheld the impugned amendments, albeit subject to certain directions issued under Article 32 of the Constitution:

(i) If any of the petitioners move applications in respect of the same default, as alleged in their applications, within a period of two months from today, also compliant with either the first or the second proviso under Section 7(1), as the case may be, then, they will be exempted from the requirement of payment of court fees, in the manner, which we have detailed in the paragraph just herein before.

(ii) If applications are moved under Section 7 by the petitioners, within a period of two months from today, in compliance with either of the provisos, as the case may be, and the application would be barred under Article 137 of the Limitation Act, on the default alleged in the applications, which were already filed, if the petitioner file applications under Section 5 of the Limitation Act, the period of time spent before the Adjudicating Authority, the Adjudicating Authority shall allow the applications and the period of delay shall be condoned in regard to the period, during which, the earlier applications filed by them, which is the subject matter of the third proviso, was pending before the Adjudicating Authority.

(iii) The time limit of two months is fixed only for conferring the benefits of exemption from court fees and for condonation of the delay caused by the applications pending before the Adjudicating Authority. In other words, it is always open to the petitioners to file applications, even after the period of two months and seek the benefit of condonation of delay under Section 5 of the Limitation Act, in regard to the period, during which, the applications were pending before the Adjudicating Authority, which were filed under the unamended Section 7, as also thereafter. [Manish Kumar v. Union of India, 2021 SCC OnLine SC 30, dated 19-01-2021]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ., has set aside the order of High Court of Judicature for Andhra Pradesh at Hyderabad and, thereby restored the findings of Trial Court.

Background

 In the instant case, a claim for partition and division was made by the appellant in four equal shares amongst herself and her three siblings, who were arrayed as defendants 1, 2 and 3. The property was left by deceased step-mother of the appellant. Defendant 4, brother of step-mother of the appellant, alleged that his sister had sold Item 1 of Schedule A of the plaint to Defendant 15 under an agreement for sale dated 05-11-1976; and that she had also executed a Will dated 15-06-1978 in favour of her mother and an attendant, defendants 14 and 13 respectively. The appellant denied and disputed the alleged agreement for sale as also the alleged Will.

Findings of the Courts below

 The Trial Court held that both the documents, of the alleged agreement for sale and of the alleged Will, were false and fabricated. The Court observed that the deceased, who was only 45 years of age at the time of her death, would never choose to bequeath the major part of property to her mother, who was about 80 years of age. It was observed that suggestions about the deceased being in her high level of indebtedness were not correct as the defendant could not point out the names of creditors and could not say as to how much was discharged. On contrary, the High Court had affirmed the findings of the Trial Court in relation to Will in question and has held that the Will was not valid. However, it had reversed the findings of the Trial Court in relation to alleged agreement for sale and held that the same was binding on the appellant. It was also ordered that the property forming the subject matter of the said agreement would not be available for partition.

 Observations and Considerations

 In the backdrop of the aforementioned facts, the Court formed three points for determination in the instant appeal:

Whether suit for partition filed was not maintainable for want of relief of declaration against the agreement for sale deed?

The Court clarified that the expression “declaration”, for the purpose of a suit for partition, refers to the declaration of the plaintiff’s share in the suit properties. It was observed that the appellant had not shown awareness about any agreement for sale initially, and later on, the appellant did raise a claim for sale deed being frivolous.

It was also observed that, as per Section 54 of the Transfer of Property Act, 1882, an agreement for sale of immoveable property does not, of itself, create any interest in or charge on such property. A person having an agreement for sale in his favour did not get any right in the property, except the right of obtaining sale deed on that basis and the alleged agreement for sale did not invest the vendee with any such right that the appellant could not have maintained her claim for partition in respect of the properties left by her deceased mother without seeking declaration against the agreement.

What is the effect and consequence of not bringing the legal representatives of defendant who expired during the pendency of appeal in the High Court on record?

Order XXII, Rule 1 of CPC lays down that the death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives. The Court clarified that the same procedure would apply in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving parties alone. Reliance was placed on State of Punjab v. Nathu Ram,(1962) 2 SCR 636, wherein it was held that,  “if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.” The Court held that, the instant case could definitely proceed even in the absence of the legal representatives of defendant 2 because in case of success of this appeal, there would be no likelihood of any inconsistent decree vis-à-vis defendant 2 coming into existence. The decree of the Trial Court had been in favour of the plaintiff and defendants 1 to 3 and the result of success of this appeal would only be of restoration of the decree of the Trial Court, which would be of no adverse effect on the estate of the deceased defendant 2.

Whether the High Court was justified in reversing the findings of the Trial Court in relation to the said agreement for sale?

The Court noticed that the two documents were intrinsically intertwined, particularly

because it was suggested by the contesting defendants that in the Will, apart from making bequest, the deceased also directed her mother (legatee) to execute a registered sale deed in favour of defendant 15 after receiving the balance sale consideration from him as per the agreement executed in his favour; and that the deceased also directed her mother to discharge the debts. This unmistakable inter-mixing of the two documents had been the primary reason that the Trial Court examined the matters related with them together, while indicating that to give a colour of reality to the Will and to show that the deceased was highly indebted to others which compelled her to sell the property, the suggestions were made about sale to the husband of the deceased’s sister. The High Court had missed out this fundamental feature of the case that two documents, Will and agreement for sale, as put forward by the contesting defendants could not be analysed independent of each other.

When the Will was found surrounded by suspicious circumstances, the agreement must also be rejected as a necessary corollary.

While examining preponderance of probabilities about the existence of such an agreement for sale, the overall relationship of the parties, the beneficiaries of the alleged agreement and their conduct could not be kept at bay. The Court stated, “If the story of indebtedness of the deceased goes in doubt, the suspicions surround not only the Will but agreement too.” Trial Court was right in questioning that if at all any such agreement was executed on 05-11-1976, there was no reason that the vendee did not get the sale document registered for a long length of time because the deceased expired 1½ years later.

Decision

It was held that the Trial Court had examined the matter in its correct perspective and had rightly come to the conclusion that the agreement for sale was as invalid and untrustworthy as was the Will. The findings of Trial Court, based on proper analysis and sound reasoning, called for no interference. On the other hand, the High Court had been clearly in error in interfering with the findings of the Trial Court in relation to the agreement in. Therefore, the Court restored the decree of the Trial Court with further directions that the appellant should be entitled to the costs of the litigation in the High Court and in this Court from the contesting respondents. [Venigalla Koteswaramma v. Malampati Suryamba, 2021 SCC OnLine SC 26, decided on 19-01-2021]

Case BriefsSupreme Court

Supreme Court: B.R. Gavai, J., while addressing a contempt petition expressed that:

“…contempt proceeding is not like an execution proceeding under the Code of Civil Procedure.”

“…contempt proceedings are quasi-criminal in nature and the standard of proof required is in the same manner as in the other criminal cases.”

“A mere objection to jurisdiction does not instantly disable the Court from passing any interim orders.”

Contempt Petition | Father v. Sons

The instant contempt petition arose out of an unfortunate family dispute between a father and his two sons from his first wife.

Petitioner in the contempt petition Rama Narang was married to Smt. Motia. The respondent’s 1 and 2 i.e. Ramesh Narang and Rajesh Narang so also Rakesh Narang are sons of the petitioner and Smt. Motia. The petitioner and Smt. Motia divorced in 1963. The petitioner thereafter married Smt. Mona. Out of the said wedlock, two sons Rohit and Rahul, as well as a daughter Ramona, were born.

Family Settlement

In accordance with the family settlement, that insofar as ‘Narang International Hotel Limited’ and its subsidiaries were concerned, Rama Narang, Ramesh Narang and Rajesh Narang were to be the only Directors.

Further, it was added that any decision by the Board of Directors was to be taken by the mutual consent of Rama Narang on one hand and Ramesh and Rajesh, on the other hand. Though if the amount of any transaction was exceeding Rs 10 lakhs, then the same could be undertaken only through a cheque signed jointly by Rama Narang on one hand and Ramesh or Rajesh on the other hand.

Though the matter was settled in terms of minutes of Consent Order, there was no quietus to the dispute between the parties.

Allegations

Rama Narang alleged that Ramesh and Rajesh had violated the terms of Consent Order stipulated in clause 3 (c), (d), (e) and (f) of the Minutes of the Consent Order. Violation of the said order amounted to clear disobedience and thus punishable under the Contempt of Courts Act, 1971.

Contempt Proceedings against the Respondents

Court initiated contempt proceedings and requested Justice V.A. Mohta, retired Chief Justice of Orissa High Court to act as a Mediator for settlement of disputes between the parties. However, despite serious efforts made by the Mediator, the settlement could not be arrived at.

A three-Judge Bench of this Court in Rama Narang v. Ramesh Narang, (2006) 11 SCC 114, observed the following:

“32. The object of entering into consent terms and jointly filing the undertaking was to run the family business harmoniously with the active participation of all as a family business but the respondents had taken absolute control of the Company NIHL to the total exclusion of the petitioner.

 33.The respondents have erroneously submitted that joint management and control of the Company means giving veto power to the petitioner. According to the terms of undertaking the petitioner and the respondents were under an obligation to run the Company harmoniously with the active participation of all as a family business but unfortunately the respondents have taken absolute control to the total exclusion of the petitioner. This is contrary to the terms of the undertaking given to this Court.”

The Court in the earlier Order held the respondents guilty of contempt, taking into consideration the fact that immediately sending respondents to jail would create total chaos in the Company and it would also vitally affect the interest of large number of people including the employees of the Company the sentence of imprisonment imposed on the respondents was kept in abeyance.

Consequences

On account of non-cooperation by Rama, the functioning of the Company had come to a standstill. It was contended in the said company petition, that due to non-cooperation by Rama in signing cheques, the employees could not be paid their salaries from November 2007 onwards. It was also contended, that bills for payment to supplier could also not be paid, due to which, the entire functioning of the various units of the Company had been seriously affected.

Company Law Board

CLB noticed, that due to differences among the Directors, many operational issues like payment of salaries/wages, payment to supplier etc. were pending, leading to agitation by employees and irregularities in supply.

The CLB found it appropriate, that till the petition was disposed of, as an interim measure, in the interests of the Company and more than 3000 employees/workers, there should be a mechanism by which the day-to-day operations of the Company were carried on without any hitch.

Petitioner alleged that the CLB Order was violative of the order of the Supreme Court and nothing but an attempt to legalize their conduct of contempt but the petitioner approached the Court by the instant contempt petition.

Analysis

Section 2(b) of the Contempt of Courts Act, 1971:

2. Definitions. – …..
(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.”

Civil Contempt

It is clear that for bringing an action under the ambit of civil contempt, there has to be a wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to the Court.

Respondents submitted that the petitioner was attempting to use the consent terms as a veto to stall the functioning of the Company.

Bench referred to Sections 397, 398 and 403 of the Companies Act, 1956.

Respondents legitimately invoked the jurisdiction of Company Law Board invoking the powers under Sections 397, 398 and 403 of the Companies Act, to which they were entitled to in law and were not restrained to do so by any competent Court/forum.

 CLB had passed interim orders in exercise of its powers under Section 403 of the Companies Act. Petitioner had approached the Court immediately after the order dated 10-04-2008, was passed by the CLB by way of present contempt petition.

Main Contention

Petitioner’s primary contention was that invoking the jurisdiction of the CLB and entertaining the said proceedings by the CLB, itself amounts to contempt.

 Observation

Court referred to the observations of in Pratap Singh v. Gurbaksh Singh, 1962 Supp (2) SCR 838:

“The principle behind all these cases is that such action of the person which he takes in pursuance of his right to take legal action in a Court of law or in just making a demand on the other to make amends for his acts will not amount to interfering with the course of justice, even though that may require some action on the part of the other party in connection with his own judicial proceeding, as a party is free to take action to enforce his legal rights.”

 Supreme Court stated that in the present case, the respondents were entitled to invoke the jurisdiction of the CLB under Sections 397, 398 and 403 of the Companies Act. Respondents had to take recourse to that remedy in compelling circumstances to safeguard the interest of the Company and its stakeholders.

Further, the Court added that merely taking recourse to the statutory remedy available to the respondents would not amount to contempt.

“…for bringing an action for civil contempt, the petitioner has to satisfy the court that there has been a willful disobedience of any judgment, decree, direction, order, writ or other processes of the Court.”

Requisite in a contempt proceeding

In a contempt proceeding, before a contemnor is held guilty and punished, the Court has to record a finding, that such disobedience was wilful and intentional.

Adding to the above, it has also been stated that if from the circumstances of a particular case, though the Court is satisfied that there has been disobedience, but such disobedience is the result of some compelling circumstances, under which it is not possible for the contemnor to comply with the same, the Court may not punish the alleged contemnor.

Bench also referred to the decision of Supreme Court in Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307.

Situation in the present case

Court held that the petitioner failed to make out a case of wilful, deliberate and intentional disobedience of any of the directions given by the Court or acting in breach of an undertaking given to the Court.

“…where an objection is taken to the jurisdiction to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance. However, that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case.”

Further, the Bench expressed in light of jurisdiction that,

“…question of jurisdiction should be decided at the earliest possible time, the interim orders so passed are orders within jurisdiction, when passed and effective till the court decides that it has no jurisdiction, to entertain the suit. It has been held, that those interim orders would undoubtedly come to an end with the decision that the Court had no jurisdiction.”

 Violation of Interim Orders

 While in force, the interim orders passed by such Court have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff, provided violation is committed before the decision of the Court on the question of jurisdiction.

 Another Observation made by the Court was that in the present case, the petitioner qualified under Section 399 of Companies Act and that the Company Law Board had jurisdiction to deal with the petition under Sections 397 and 398 of the Companies Act.

“…in the proceedings under Sections 397/398, it is the interest of the Company which is paramount.”

Bench expressing no more opinion in the present matter held that the contempt petition deserves to be dismissed and added that parties may invoke the jurisdiction of NCLT for seeking orders as deemed fit in the facts and circumstances. [Rama Narang v. Ramesh Narang, 2021 SCC OnLine SC 29, decided on 19-01-2021]

Case BriefsSupreme Court

Supreme Court: In a case relating to Prevention of Corruption Act, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and M.R. Shah*, JJ has partly allowed the appeal regarding quantum of sentence, while concurrent order of conviction by the Courts below was confirmed.

The appellant was convicted for offences under Sections 7, 13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1988 whereby the Special Judge had sentenced him to undergo rigorous imprisonment for a period of two years with fine of Rs 5,000; which was confirmed by the High Court of judicature at Madras.

Aggrieved and dissatisfied, the appellant contended that he was a senior citizen aged about 69/70 years and had been already dismissed from service on being convicted for the offences under the Prevention of Corruption Act. Therefore, it was prayed to reduce the sentence imposed to the sentence already undergone.

Considering the fact that, out of two years sentence imposed by the Special Court, confirmed by the High Court, the appellant had already undergone approximately one year and one month and that the appellant was a senior citizen aged about 70 years who had been already dismissed from service, the Court stated,

“The ends of justice would be met if the sentence of two years rigorous imprisonment as imposed by the learned Special Court, confirmed by the High Court, is reduced to that of one year and one month rigorous imprisonment.”[S. Sundara Kumar v. State, 2021 SCC OnLine SC 21, decided on 13-01-2021]


*Justice M.R. Shah has penned this judgment

Case BriefsSupreme Court

Supreme Court: The three-judge bench comprising Ashok Bhushan*, R. Subhash Reddy and M.R. Shah, JJ., addressed the instant petition questioning the closure of the Anganwadi Centres across the country. The Bench said, “Government has a constitutional obligation to preserve human life.”

Background

 Through Anganwadi Centres, supplementary nutrition to pregnant women, lactating mothers, adolescent girls and children up to the age of 6 years were being provided which fulfilled the State objective of holistic development of children under 6 years and to provide food and nutrition to the beneficiaries as mandated by Article 47 of the Constitution. After spread of Covid-19, Anganwadi Centres were closed throughout the country in March, 2020. Distribution of special nutrition and other benefits, being essential services were permitted to be conducted by Anganwadi staff by resorting to Take Home Ration. The Supplementary Nutrition Programme supplied under ICDS Scheme was of two types for different beneficiaries’ i.e.

(a)Take Home Ration for pregnant women & lactating mothers and children in the age group of 6 months to 3years; and

(b) Morning Snacks and Hot Cooked Meal for children in the age group of 3-6 years.

Lockdown was lifted by the competent authority in phased manner and gradually specified activities were permitted to be opened but even during the post-lockdown period; beneficiaries, children pregnant women and lactating mothers continued to suffer due to non-opening of Anganwadi in various States. Counsel for the petitioner, Colin Gonsalves contended that pandemic has caused severe strain on the employment and means of livelihood of a large section of society especially marginal sections, therefore, they require immediate extension of all benefits as envisaged in the Scheme. National Human Rights Commission had also made recommendations on 28-09-2020 and 29-09-2020 after impact assessment, issued advisory to reopen Anganwadi Centres immediately. The petitioner further submitted that due to non-providing of hot cooked meals to children up to the age of six years and children who were affected of malnutrition they were suffering which needed immediate attention and remedial action.

Observations

 Considering above mentioned facts, the Bench expressed, “Inadequate supply of nutritious food to the citizens, more particularly to children and women would affect their health. Therefore, the same shall be in violation of their fundamental right to health/right to live with dignity guaranteed under Article 21 of the Constitution.”

 Government had launched an Integrated Child Development Services Scheme in the year 1975; which was designed as an early childhood development programme aimed to address health, nutrition and development needs of young children, pregnant and nursing mothers. Later, another Act, National Food Security Act, 2013 (“the Act, 2013”) was enacted to provide for food and nutritional security by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith. The Act, 2013 by Section 4 creates a statutory right of every pregnant woman and lactating mother of free meals during pregnancy and six months after the child birth. Section 5 provides for free of charge nutritional support to children, in case of children in the age group of six months to six years, age appropriate meal through the local Anganwadi so as to meet the nutritional standards. Anganwadi Centres had been given statutory recognition under the Act, 2013 and Section 7 had created an obligation on the State Governments to implement schemes covering entitlements.

On observing that ready to eat nutritional traditional sweet was provided by some States in lieu of hot cooked meals to 3 to 6 years’ children, the Court stated that the State ought to include certain cereals in Take Home Ration instead of providing only ready to eat substitutes. The nutritional standard as provided in Schedule II of Act, 2013 was mandatory to be complied with by the States.

The Court said, “Children are the next generation and therefore unless and until the children and the women have the nutritious food; it will affect the next generation and ultimately the country as a whole.” Article 47 of the Constitution had also provided that one of the primary duties of the State is to raise the level of nutrition and the standard of living of the people.

Noticing that some States were under the impression that the order issued by the Ministry of Home Affairs dated 25-11-2020, provided for not opening of the Centres, the Court discussed Para 16 of the said order;

“16. Persons above 65 years of age, persons with co-morbidities, pregnant women, and children below the age of 10 years are advised to stay at home, except for essential and health purposes.”

 The Bench explained that, paragraph 16 did not in any manner create any prohibition in opening of Anganwadi Centres as the services provided by Anganwadi Centres were essential services.

 Decision

 The Court held that the State had to provide an appropriate mechanism for supervision and check. Child development officers and other district level officers who were entrusted to monitor the functioning of Anganwadi Centres had to be extra vigilant so that no beneficiary is denied its dues.

In view of the above observations, the Court disposed of the petition with following directions:

  1. All States/Union Territories which had not yet opened Anganwadi Centres should open the same on or before 31-01-2021 situated outside the containment zone.
  2. Decision for not opening Anganwadi Centres should be taken only after the State Disaster Management Authority direct for not opening of Anganwadi Centres in particular area of the State situated outside containment zone.
  3. Anganwadi Centres situated in the containment zone shall not be opened till the containment continues.
  4. All States/Union Territories should ensure that nutritional standards as provided in Schedule II of National Food Security Act, 2013, is fulfilled by providing nutritional support to pregnant women, lactating mothers, nutritional support to children who suffer from malnutrition.
  5. All the States/Union Territories should issue necessary orders regarding monitoring and supervision of Anganwadi Centres to ensure that benefit reaches to the beneficiaries and a Complaint Redressal Mechanism should be put in place in each district.

[Dipika Jagatram Sahani v. Union of India, 2021 SCC OnLine SC 22, decided on 13-01-2021]


*Justice Ashok Bhushan has penned the judgment

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Surya Kant, N.V. Ramana* and Hrishikesh Roy, JJ., addressed an important question of law regarding arbitration law in India and special State enactments concerning public works contract.

Setting aside the impugned order of High Court of Judicature at Gujrat the Court opined that the High Court has erred in utilizing its discretionary power available under Articles 226 and 227 of the Constitution.

The High Court did not appreciate the limitations under Articles 226 and 227 of the Constitution.

Background

 On 13-02-1991, the respondent had entered into a contract with the Appellant to manufacture and supply bricks. The aforesaid contract had an arbitration clause. As some dispute arose regarding payment in furtherance of manufacturing and supplying of bricks, the appellant issued a notice dated 13-11-1998, seeking appointment of sole arbitrator in terms of the agreement. Clause 38 of the agreement provide for arbitration as under:

Clause 38 – Arbitration

All disputes or differences, in respect of which the decision has not been settled, shall be referred for arbitration to a sole arbitrator appointed as follows:

 Within thirty days of receipt of notice from the Contractor of his intention to refer the dispute to arbitration the Chief Engineer shall send to the Contractor a list of three officers from the list of arbitrator appointment by the Government. The Contractor shall within fifteen days of receipt of this list select and communicate to the Chief Engineer the name of the person from the list who shall then be appointed as the sole arbitrator. If Contractor fails to communicate his selection of name, within the stipulated period, the Chief Engineer, shall without delay select one officer from the list and appoint him as the sole arbitrator. If the Chief Engineer fails to send such a list within thirty days, as stipulated, the contractor shall send a similar list to the Chief Engineer within fifteen days. The Chief Engineer shall then select one officer form the list and appoint him as the sole arbitrator within fifteen days. If the Chief Engineer fails to do so the contractor shall communicate to the Chief Engineer the name of one Officer from the list, who shall then be the sole arbitrator.

The arbitration shall be conducted in accordance with the provision of the Indian Arbitration Act, 1940 or any statutory modification thereof. The decision of the sole arbitrator shall be final and binding on the parties thereto

 Neither party is entitled to bring a claim to arbitration if the Arbitrator has not been appointed before the expiration of thirty days after defect liability period.

 The appellant appointed a sole arbitrator to which an application was preferred by the respondent under Section 16 of the Act, disputing the jurisdiction of the sole arbitrator which was rejected by the arbitrator holding that the sole arbitrator had jurisdiction to adjudicate the dispute. Consequently, the respondent filed an application under Articles 226/227 before the High Court challenging appointment of the sole arbitrator on the grounds that according to Clause 38 of the agreement, the disputes between the parties were to be adjudicated in accordance with Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 (“Gujrat Act”) and also that the arbitration was time-barred, as the arbitrator had not been appointed before the expiration of thirty days after the defect liability period.

The High Court held that ‘the contract’ between parties was a “works contract” and the same shall be governed by the Gujrat Act, hence, the appointment of sole arbitrator was erroneous.

Observations and Decision

 Observing that the non-obstante clause is provided to uphold the intention of the legislature as provided in the Preamble to adopt UNCITRAL Model Law and Rules, to reduce excessive judicial interference the Court, the Court expressed that, the Arbitration Act is a code in itself. This phrase is not merely perfunctory, but has definite legal consequences. One such consequence is spelled out under Section 5 of the Arbitration Act, which reads as under,

Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.

The Court cited Deep Industries Limited v. Oil and Natural Gas Corporation Limited, (2019) SCC Online SC 1602, wherein interplay of Section 5 of the Arbitration Act and Article 227 of the Constitution was analyzed as under:

“we cannot forget that Article 227 is a constitutional provision which remains untouched by the non-obstante clause of Section 5 of the Act. What is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction.

Noticing that the contract between parties was for both manufacturing as well as supply of bricks and, a contract for manufacture simpliciter is not a works contract under the definition provided under Section 2(k) of Gujrat Act, the Court expressed that, mere fact that the Gujarat Act might apply may not be sufficient for the writ Courts to entertain the plea of the respondent to challenge the ruling of the arbitrator under Section 16 of the Arbitration Act.

 The Court opined that the High Court had erred in utilizing its discretionary power available under Articles 226 and 227 of the Constitution. The respondent did not take legal recourse against the appointment of the sole arbitrator, and rather submitted itself before the tribunal to adjudicate on the jurisdiction issue as well as on the merits the Court held that, the respondent has to endure the natural consequences of submitting itself to the jurisdiction of the sole arbitrator, which can only be challenged, through an application under Section 34.

In view of the above, the impugned judgment of the High Court was set aside. [Bhaven Construction v. Sardar Sarovar Narmada Nigam Ltd., 2021 SCC OnLine SC 8, decided on 06-01-2021]


*Justice N.V. Ramana has penned this judgment

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ., stays the implementation of farms laws until further orders.

Three categories of petitions have been filed before the Court, all revolving around the validity or otherwise of three Farm Laws namely:

  • Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020
  • Essential Commodities (Amendment) Act, 2020
  • Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020

 Categories of Petitions

The first category of petitions challenges the constitutional validity of the farm laws. A petition under Article 32 challenging the validity of the Constitution (Third Amendment) Act, 1954 enabling the Central Government also to legislate on a subject which was otherwise in the State List has also been included within this category of petitions.

Another Category of petitions included the ones which support the farm laws on the ground that they are constitutionally valid and beneficial to the farmers.

The third category included the ones filed by individuals who are residents of the National Capital Territory of Delhi as well as the neighbouring States, claiming that the agitation by farmers in the peripheries of Delhi and the consequent blockade of roads/highway leading to Delhi, infringes the fundamental rights of other citizens to move freely throughout the territories of India and their right to carry on trade and business.

Negotiations

Further, the Bench noted that several rounds of negotiations took place, yet no solution seemed to be in sight and the on-ground situation is as follows:

  • Senior citizens, women and children are at the site, exposing themselves to serious health hazards posed by cold and COVID
  • A few deaths have taken place, though not out of any violence, but either out of illness or by way of suicide.

While applauding the Farmers for their peaceful protest, Court noted that it was pointed out that a few persons who did not belong to the farmer’s community also joined, with a view to show solidarity with the farmers.

A specific averment was made in an intervention application that an organization by name “Sikhs for Justice”, which has been banned for anti-India secessionist movement is financing the agitation. The said contention was also supported by the Attorney General.

Constitution of a Committee of Experts

Bench noticed that the negotiations between the farmers’ bodies and the government did not yield any results so far, therefore the constitution of a committee of experts in the field of agriculture to negotiate between the farmers’ bodies and Government of India may create a congenial atmosphere and improve the trust and confidence of the farmers.

Stay on implementation of Farm Laws

Court also opined that a stay of implementation of all the three farm laws may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.

Attorney General argued that none of the petitioners who have attacked the farm laws has pointed out any single provision which is detrimental to the farmers and that the laws enacted by Parliament cannot be stayed by this Court, especially when there is a presumption in favour of the constitutionality of legislation.

“…this Court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment.”

 Senior Counsel, P. Wilson representing one section of farmers from Tamil Nadu welcomed the proposal to stay the implementation of the Laws and the constitution of the Committee and stated that his client would go before the Committee.

Similarly, A.P. Singh Counsel appearing for the Bhartiya Kisan Union also submitted that the representatives of the Union will participate in the negotiations.

Insofar as the apprehension regarding MSP [Minimum Support Price] being done away with, it is submitted across the Bar that the same may not be dismantled. The learned Solicitor General also confirmed that there are inherent safeguards, in-built in the Farm Laws, for the protection of the land of the farmers and that it will be ensured that no farmer will lose his land.

Interim Order

(i) The implementation of the three farm laws 1) Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; (2) Essential Commodities (Amendment) Act, 2020; and (3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, shall stand stayed until further orders;

(ii) As a consequence, the Minimum Support Price System in existence before the enactment of the Farm Laws shall be maintained until further orders. In addition, the farmers’ landholdings shall be protected, i.e., no farmer shall be dispossessed or deprived of his title as a result of any action taken under the Farm Laws.

(iii) A Committee comprising of (1) Shri Bhupinder Singh Mann, National President, Bhartiya Kisan Union and All India Kisan Coordination Committee; (2) Dr. Parmod Kumar Joshi, Agricultural Economist, Director for South Asia, International Food Policy Research Institute; (3) Shri Ashok Gulati, Agricultural Economist and Former Chairman of the Commission for Agricultural Costs and Prices; and (4) Shri Anil Ghanwat, President, Shetkari Sanghatana, is constituted for the purpose of listening to the grievances of the farmers relating to the farm laws and the views of the Government and to make recommendations. This Committee shall be provided a place as well as Secretarial assistance at Delhi by the Government. All expenses for the Committee to hold sittings at Delhi or anywhere else shall be borne by the Central Government. The representatives of all the farmers’ bodies, whether they are holding a protest or not and whether they support or oppose the laws shall participate in the deliberations of the Committee and put forth their view points. The Committee shall, upon hearing the Government as well as the representatives of the farmers’ bodies, and other stakeholders, submit a report before this Court containing its recommendations. This shall be done within two months from the date of its first sitting. The first sitting shall be held within ten days from today.

While parting with the decision, the Court expressed that:

“While we may not stifle a peaceful protest, we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmer’s bodies to convince their members to get back to their livelihood, both in order to protect their own lives and health and in order to protect the lives and properties of others.”

Matter to be listed in 8 weeks. [Rakesh Vaishanv v. Union of India, 2021 SCC OnLine SC 18, decided on 12-01-2021]

Know thy Judge

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

-Justice R. Subhash Reddy[1]


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

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

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

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


Notable Judgments


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

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

Read More


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

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

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

Read More


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

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

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


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

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

The Court observed that

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


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

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

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

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

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

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

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

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

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

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

Read More…


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

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

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

Justice Reddy observed that

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

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

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


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

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

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

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

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

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

Read More…


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

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

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

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

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

Read More…


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

“Once A Mortgage, Always A Mortgage”

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

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

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


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

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

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

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

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

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Abhilasha v. Parkash, 2020 SCC OnLine SC 736

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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


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

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

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

Justice Reddy opined that

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

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

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