COVID 19OP. ED.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

Case BriefsCOVID 19Supreme Court

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

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

The said committee would comprise of:

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

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

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

The Court, further, directed,

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

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

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

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


Also read:

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

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

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

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

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

Case BriefsCOVID 19Supreme Court

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

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

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

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

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

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

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


Also read:

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

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

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

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

COVID 19Hot Off The PressNews

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

CJI S A Bobde said,

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

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

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

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

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

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

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

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

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

(Source: Outlook)

Hot Off The PressNews

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

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

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

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

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

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

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

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

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

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

Also Read:


Election Commission

[Press Release dt. 14-02-2020]

[Source: PIB]

Case BriefsSupreme Court (Monthly Roundup)


TOP STORIES


Citizenship (Amendment) Act row|

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

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

Sabarimala Case|

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

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

Nirbhaya Case|

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

SC yet again rejects Pawan Kumar’s plea of juvenility

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

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

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

In a major verdict, the 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ has asked J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain.

“The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”

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

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

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

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

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


MORE STORIES


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ has declared Section 13(2) of the Chhattisgarh Rent Control Act, 2011 that Act purports to confer a right of statutory Second Appeal to the Supreme Court, ultra vires the Constitution of India. The Court said that a provision which mandates the Supreme Court to consider an appeal is clearly beyond the legislative competence of the State Legislature.

The Court held that in view of Entry 65 of the State List and Entry 46 of the Concurrent List, the State Legislature can enact law which affects the jurisdiction of all Courts, including the High Court, except under Articles 226 and 227, but it cannot enact law which touches the jurisdiction of the Supreme Court. It said,

“A law made under Article 323B (1) of the Constitution may exclude the jurisdiction of all Courts except the jurisdiction of the Supreme Court under Article 136 with respect to the matters falling within the jurisdiction of the said Tribunals. However, Article 323B (2) (d) or any other provision of the Constitution does not enable the State Legislature to enact law which provides for statutory appeals to the Supreme Court.”

The Court, hence, held that the Rent Control Tribunal having been established under Article 323B of the Constitution, as observed above, the diminution, if any, of the jurisdiction of the High Court, except under Article 226 and 227, would be saved by Article 323B(3)(d) of the Constitution, but not the provision for statutory appeal to the Supreme Court.

It was contended before the Court that Section 13(2) of the Rent Control Act does not confer on the Supreme Court, jurisdiction it did not already possess, but is only incidental to and/or extension of its power under Article 136, is not sustainable in law. The Court, however, rejected the said contention and held that under Article 136 of the Constitution, the Supreme Court does not act as a regular court of appeal. The power of the Supreme Court under Article 136 is not to be confused with the appellate power ordinarily exercised by appellate courts and Tribunals under specific statutes.

The Court also rejected the argument that when a State Law gets the assent of the President of India, that law prevails in the States, notwithstanding repugnancy with an earlier Union law, and said,

“Presidential assent makes no difference in case of legislative incompetence. Presidential assent cannot and does not validate an enactment in excess of the legislative powers of the State Legislature, nor validate a statutory provision, which would render express provisions of the Constitution otiose. Presidential assent cures repugnancy with an earlier Central Statute, provided the State Legislature is otherwise competent to enact the Statute.”

[Rajendra Diwan v. Pradeep Kumar Ranibala, 2019 SCC OnLine SC 1586, decided on 10.12.2019]

Case BriefsSupreme Court (Monthly Roundup)


TOP STORIES


Ayodhya Verdict| Here’s why the 5-judge bench unanimously held that the disputed site belongs to Hindus

The 5-judge bench finally put an end to the Ayodhya Title dispute and held that the disputed land is to be given to Trust for construction of Ram Mandir. In an effort to balance the interest of both the parties involved, the Court directed  that a suitable plot of 5 acres must be granted to Sunni Waqf Board to set up a Mosque.


Sabarimala Review Petitions NOT referred to a larger bench, but kept pending. Here’s what Supreme Court has actually held

It may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges.


Here’s why Supreme Court held that the Office of CJI comes under the purview of RTI

It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion.


RESTRUCTURING OF TRIBUNALS

Rules made under S. 184 of Finance Act struck down; Centre to make new Rules for appointment to Tribunals

Thought the Aadhaar issue was over with K.S. Puttaswamy judgment? Not yet. Here’s why


Maharashtra Political Crisis| Floor test to be conducted on tomorrow; Proceedings to be live telecast

It was necessary and expedient to conduct the floor test as soon as possible to determine whether the Chief Minister, who was administered the oath of office, has the support of the majority or not.


Karnataka MLAs Disqualification case: Read why SC ‘partly’ upheld Speaker’s order

The Court upheld the speaker’s orders dated 25.07.2019 and 28.07.2019 to the extent of the disqualification of the Petitioners but has set aside the part of order that said that disqualified members can’t contest elections till the end of the current Assembly term i.e. the 15th Legislative Assembly of Karnataka. It, hence, directed that 17 Karnataka MLAs can contest the by-elections in the state.


Article 370| SC reserves order on pleas challenging restrictions imposed in J&K after abrogation of Article 370

The 3-judge bench of N V Ramana, R Subhash Reddy, and B R Gavai, JJ has reserved the judgment on a batch of pleas including that of Congress leader Ghulam Nabi Azad challenging the restriction imposed in the erstwhile state of Jammu and Kashmir following abrogation of provisions of Article 370.


Haren Pandya Murder Case|SC dismisses review petitions of 9 convicts

The order, of which review has been sought, does not suffer from any error apparent warranting its reconsideration. The review petitions are, accordingly, dismissed.


RAFALE DEAL

SC dismisses the petition seeking review of the Rafale Verdict

Rahul Gandhi’s apology for his “Chowkidar Chor Hai remarks”; Contempt Petition dismissed


Delhi-NCR Pollution| Crop stubble burning must stop immediately and all states must do everything to stop it: SC

People are dying. More people will die but those at the helm seem interested only in gimmicks. We will supervise this matter now. Crop stubble burning must stop immediately and all states must do everything to stop it.


MORE STORIES


When a woman says she did not consent to a physical relationship, court should not presume otherwise

Section 87 of the Arbitration and Conciliation Act, 1996 struck down. Here’s why

The introduction of Section 87 would result in a delay of disposal of arbitration proceedings, and an increase in the interference of courts in arbitration matters, which defeats the very object of the Arbitration Act, 1996, which was strengthened by the 2015 Amendment Act.

Victim’s counsel can make up for deficiencies in the prosecution case but can’t argue the case

If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself.

NCLAT’s order set aside in Essar Steel Insolvency case; Key issues on Corporate Insolvency Resolution Process answered

The NCLAT judgment which substitutes its wisdom for the commercial wisdom of the Committee of Creditors and which also directs the admission of a number of claims which was done by the resolution applicant, without prejudice to its right to appeal against the aforesaid judgment, must therefore be set aside.

SC refuses to strike down provision relating to an NRI’s right to claim eviction under the East Punjab Urban Rent Restriction Act, 1949

The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and Sanjiv Khanna, JJ has refused to hold  Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (Rent Act) merely because it grants a right to claim eviction for bona fide need by summary procedure to a certain group of landlords, that is, Non-Resident Indians subject to and on the satisfaction of statutory conditions which incorporate a check on frivolous evictions.

Architects Act, 1972 will prevail over AICTE Act as far as recognition of degrees and diplomas of architecture education is concerned

Norms and Regulations set by the Council of Architecture (CoA) and other specified authorities under the Architects Act, 1972 would have to be followed by an institution imparting education for degrees and diplomas in architecture.

Rape & murder of a 10-year-old & her brother: SC refuses to review it’s 2:1 verdict awarding death sentence

In a ghastly case involving rape and murder of 2 children, the 3-judge bench of RF Nariman, Surya Kant and Sanjiv Khanna, JJ has refused to review their verdict in Manoharan v. State, (2019) 7 SCC 716, upholding  the conviction of the accusedIn the said judgment, the bench had unanimously upheld the conviction, but gave 2:1 verdict on quantum of punishment.

Tata’s Housing project in Chandigarh stalled for being ‘too close’ to Sukhna Lake & Widlife Sanctuary

In the matter concerning the housing project, on the ground that the area in question falls within the catchment area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary, the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary.

SC directs Orissa govt. to to depute full time Chief Administrator for Shri Jagannath Temple to ensure peaceful darshan

It is apparent that various aspects have to be gone into and considered by the Temple Managing Committee and wherever the Government role comes in, the Government has to do the needful after taking all the stakeholders into confidence.


IN OTHER NEWS


Know Thy Judge| Justice SA Bobde takes charge as the 47th Chief Justice of India

A part of me will always remain with the Supreme Court: CJI Ranjan Gogoi on his last working day

Appointments & TransfersNews

Increasing the strength of Supreme Court judges from 31 to 34, Justices Krishna Murari, SR Bhat, V Ramasubramanian and Hrishikesh Roy have been appointed as Supreme Court judges. The judges took oath in the CJI’s court at 10:30 AM today.

Justice Krishna Murari

Born in a lawyer family of Uttar Pradesh on 9 July 1958, Justice Murari passed LL.B. from the Allahabad University, Allahabad and enrolled as an Advocate on 23 December 1981. He started practice in the Allahabad High Court on Civil, Constitutional, Company and Revenue matters. In his 22 years career as a lawyer he served as Standing Counsel of Uttar Pradesh State Yarn Company, Northern Railway Primary Co-operative Bank, Uttar Pradesh State Textile Corporation etc. He also appeared for Bundelkhand University of Jhansi. Justice Murari was then appointed as an Additional Judge of the Allahabad High Court on 7 January 2004 and became the Permanent Judge in 2005.[3] On 2 June 2018 he was elevated in the post of the Chief Justice of Punjab and Haryana High Court in Chandigarh.

Justice Shripathi Ravindra Bhat

Born on 21 October 1958, at Mysore, Justice S Ravindra Bhat did his LLB from Campus Law Centre, Delhi University (1982) after completing his Bachelor of Arts (Hons) in English from Hindu College, Delhi University, 1979.

He was enrolled with Delhi Bar Council in August of 1982. He practised before the Delhi High Court, Supreme Court, inter alia. His field of practice included public law, banking, education, labour and service, and indirect taxation. He assumed office as additional judge, Delhi High Court on 16 July, 2004, and became the permanent judge of Delhi High Court on 20 February, 2006. He was elevated to the Chief Justice of Rajasthan High Court on 5 May, 2019.

Justice V. Ramasubramanian 

Born on 30 June, 1958. Justice Ramasubramanian graduated from the Madras Law College and was enrolled as a member of the Bar on 16 February, 1983.

After practicing for almost 23 years in High Court of Madras, City and Small Causes Court, State Consumer Commission & District Consumer Forum, Central and State Administrative Tribunals, Chennai, in civil and  constitutional matters and specialising in service matters, he was appointed as an additional judge of the Madras High Court on 31 July, 2006, and was later made a permanent judge on 9 November, 2009.

He was transferred at his own request to the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh with effect from 27 April, 2016.

After the bifurcation and the creation of a separate high court for the State of Andhra Pradesh, he was retained as a judge of the High Court of Telangana at Hyderabad from 1 January, 2019. He was sworn in as the Chief Justice of Himachal Pradesh High Court on 22nd June, 2019.

Justice Hrishikesh Roy

Born on 1 February 1960, Justice Roy passed LL.B. from University of Delhi in 1982. He was initially enrolled under the Bar Council of Delhi thereafter shifted to Guwahati. He served as the Senior Government Advocate for the State of Arunachal Pradesh, Standing Counsel for the Assam State Electricity Board and Karbi Anglong Autonomous Council.He was designated as Senior Advocate of Gauhati High Court on 21 December 2004. Roy became an Additional Judge of Gauhati High Court on 12 October 2006 and permanent Judge on 15 July 2008.[3] In his career he was the Executive Head of the Assam State Legal Services Authority and nominated as a member of the National Judicial Academic Council presided by the Chief Justice of India. On 29 May 2018 Justice Roy was transferred from the Gauhati High Court to Kerala High Court as the Acting Chief Justice. He became the permanent Chief Justice of the High Court on 8 August 2018 after the retirement of Justice Antony Dominic. 

Appointments & TransfersNews

President appoints the following Four Judges of the High Courts as Judges of the Supreme Court of India:

  • Shri Justice Krishna Murari, Chief Justice of the Punjab and Haryana High Court
  • Shri Justice Shripathi Ravindra Bhat, Chief Justice of the Rajasthan High Court
  • Shri Justice V. Ramasubramanian, Chief Justice of the Himachal Pradesh High Court
  • Shri Justice Hrishikesh Roy, Chief Justice of the Kerala High Court


    Ministry of Law and Justice

    [Notification dt. 18-09-2019]

Hot Off The PressNews

STATEMENT

Certain reports relating to recommendations recently made by the Collegium regarding transfer of Chief Justices/Judges of the High Courts have appeared in the media.

As directed, it is stated that each of the recommendations for transfer was made for cogent reasons after complying with the required procedure in the interest of better administration of justice. Though it would not be in the interest of the institution to disclose the reasons for transfer, if found necessary, the Collegium will have no hesitation in disclosing the same.

Further each of the recommendations was made after full and complete deliberations and the same were unanimously agreed upon by the Collegium.


Supreme Court of India

Hot Off The PressNews

The In-House committee, headed by Justice SA Bobde, also comprising Justices Indira Banerjee and Indu Malhotra, found “no substance” in the sexual harassment allegations levelled by a former Supreme Court employee against the CJI Ranjan Gogoi.

The notice published on Supreme Court website read that the report has been submitted to the next senior judge competent to received the report i.e. Justice Arun Mishra. A copy of the report has also been handed over to the Chief Justice. It also stated that according to the verdict in Indira Jaising v. Supreme Court of India, (2003) 5 SCC 494, the report of any Committee constituted as a part of in-house procedure can’t be made public.

The former employee had submitted her complaint against the CJI in an affidavit form to 22 Supreme Court judges on April 19.


Also Read: 

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Sexual Harassment allegations against CJI: Order on advocate’s claims of conspiracy to frame CJI Gogoi reserved

Sexual Harassment allegations against CJI: Justice AK Patnaik to look into ‘conspiracy’ angle

Case BriefsSupreme Court (Monthly Roundup)

TOP STORIES


Ayodhya Dispute to be settled by a ‘confidential’ Court monitored mediation; No Gag order passed

A 5-judge bench referred the Ram Janmabhoomi-Babri Masjid land dispute case, famously known as the Ayodhya Dispute, to a Court-monitored Mediation Panel of Justice Fakkir Mohamed Ibrahim Kalifulla, Former Judge, Supreme Court of India (Chairman), Sri Sri Ravi Shankar and Shri Sriram Panchu, Senior Advocate (Members).

Clauses stipulating ‘deposit-at-call’ before invoking arbitration defeats the purpose of ADR process

Deterring a party to an arbitration from invoking this alternative dispute resolution process by a pre-deposit of 10% would discourage arbitration, contrary to the object of de-clogging the Court system, and would render the arbitral process ineffective and expensive.

IPL spot-fixing: SC sets aside life ban imposed on Sreesanth by BCCI

The disciplinary committee is not obliged to award a life time ban in all cases where such offences are proved. When range of ineligibility which is minimum five years, maximum life time ban is provided for, the discretion to which, either minimum or maximum or in between has to be exercised on relevant facts and circumstances.

Saravana Bhavan owner P Rajagopal guilty of murdering his employee in 2001

The Court upheld the conviction and sentence of life imposed upon Saravana Bhavan Owner P Rajagopal by the Madras High Court for the abduction and murder of his employee Santhakumar.

Mathews Nedumpara barred from practicing in SC for one year

The Court noticed that it was not the first time that Mathews Nedumpara has attempted to browbeat and insult Judges of the Court. In point of fact, the style of this particular advocate is to go on arguing, quoting Latin maxims, and when he finds that the Court is not with him, starts becoming abusive.

No stipulation of period of completion of Serious Fraud Investigations under Companies Act

Section 212 of the Companies Act, 2013 does not prescribe any period within which a report has to be submitted by Serious Fraud Investigation Office (SFIO) to the Central Government.

MORE STORIES


Integrated Nodal Agency for all Tribunals: 5-judge SC bench seeks Centre’s view

A 5-judge bench sought to know from the Centre within two weeks its view on bringing all the quasi-judicial bodies under one central umbrella body. The Court said it would not like to be bogged down with what is right or wrong and all it wants is that “the tribunals work efficiently and independently”.

SC asks Centre to set up Motor Accidents Mediation Authority if feasible

The Government may examine the feasibility of setting up Motor Accidents Mediation Authority by making necessary amendments in the Motor Vehicles Act. The Court also asked the Government to consider the feasibility of enacting Indian Mediation Act to take care of various aspects of mediation in general.

SC ‘fixes’ it’s January 7 verdict; Teachers can now claim gratuity under Payment of Gratuity Act

The law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association was no longer applicable against the teachers, as if not rendered, and the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.

UPSC can recommend Officers having atleast 6 months tenure left for post of Director General of Police

The recommendation for appointment to the post of Director General of Police by the Union Public Service Commission and preparation of panel should be purely on the basis of merit from officers who have a minimum residual tenure of six months i.e. officers who have at least six months of service prior to the retirement.

Motilal Pesticides overruled as it missed the difference in the terms ‘Income’ and ‘Gross Total Income’

Reading of Section 80HH along with Section 80A would clearly signify that such a deduction has to be of gross profits and gains, i.e., before computing the income as specified in Sections 30 to 43D of  the Income Tax Act, 1961. The scheme itself draws distinction between the concept ‘income’ on the one hand and ‘profits and gains’ on the other hand.

There cannot be a uniform qualification/disqualification for the Board of Directors under the Banking Companies Act

The Board of Directors consists of persons coming from different fields. There cannot, therefore, be a uniform qualification or/and disqualification for such persons. Indeed, the qualifications and disqualifications are bound to vary from category to category and would depend on the post, experience and the stream from where a person is being nominated as a Director.

Can High Court quash proceedings for offences under Section 307 IPC? Here’s what SC said

Offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves.

SC acquits 6 falsely implicated death row convicts in a 16 year old crime; orders reinvestigation

The accused were falsely implicated in the matter as they were all nomadic tribes coming from the lower strata of the society and are very poor labourers. The benefit of the lapse in investigation and/or unfair investigation cannot be permitted to go to the persons who are real culprits and in fact who committed the offence.

SC elaborates on the scheme of determining additional purchase price under Clause 5A under Sugarcane Control Order, 1966

The entire amount of difference between the Statutory Minimum Price (SMP) and State Advisory Price (SAP) per se cannot be said to be an appropriation of profit. to the extent of the component of profit which will be a part of the final determination of the SAP and/or the final price/additional purchase price fixed under Clause 5A of the Sugarcane Control Order, 1966 would certainly be and/or said to be an appropriation of profit.

SC awards Rs. 10 Lakh compensation in a medical negligence case to ‘send message’ to medical practitioners

In a case of medical negligence where a minor surgery resulted in amputating a woman’s arm, the Court awarded Rs. 10 Lakhs towards compensation, over and above the amount awarded by the Himachal Pradesh State Consumer Disputes Redressal Commission and the National Consumer Disputes Redressal Commission.

Revisionary Court shouldn’t act like an Appellate Court

While considering the case of discharge sought immediately after the charge­sheet is filed, the Court cannot become an Appellate Court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses.

SC commutes death sentence of a man who raped and killed a 5-year-old to 25 years’ imprisonment

Life imprisonment is the rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment, having regard to the relevant facts and circumstances of the crime.

SC yet again reminds the High Courts of the limitations under Section 100 CPC

Despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.

Can’t summon additional accused under Section 319 CrPC in the absence of strong and cogent evidence

Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code.

Environmental Clearance for development of Airport at Mopa, Goa to be revisited

The EAC has not applied its mind at all to the environmental concerns raised in relation to the project nor do its reasons indicate an appraisal of those concerns by evaluating the impact of the project. Hence, the appraisal by the EAC in the present case neither the process of decision making nor the decision itself can pass legal muster.

Death due to malaria occasioned by a mosquito bite in a malaria prone area is not an accident

To be bitten by a mosquito and be imbued with a malarial parasite does involve an element of chance. But the disease which is caused as a result of the insect bite in the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone.

SC acquits man in an 18-year-old rape case

Noticing that there was no evidence adduced by the prosecution to prove the commission of the offence of rape by the appellant on the prosecutrix and the evidence adduced was not sufficient to prove the case of rape against the appellant, Court set the accused free.

SC explains meaning of “total turnover” under the Karnataka Sales Tax Act

The expression “total turnover” and “turnover” which has been used under Section 6­B has the same meaning as defined under Section 2(1)(u­2) and 2(v) of the Act. Under Section 6­B, reference is made on ‘total turnover’ and not the ‘turnover’ as defined under Section 2(v) of the KST Act and taking note of the exemption provided under first proviso clause(iii), exclusion has been made in reference to use of sale or purchase of goods in the course of inter­state trade or commerce.

IN OTHER NEWS


Case BriefsHigh Courts

Delhi High Court: A Bench of Rajendra Menon, CJ and V. Kameswar Rao, J., dismissed a petition wherein Mathews J. Nedumpara, Advocate and others sought, inter alia, to disqualify Senior Advocate Fali S. Nariman from appearing in the Supreme Court.

The petitioners made certain prayers including:

declare that respondent No 1, the living legend, is disqualified from appearing in the Supreme Court where his illustrious son, Hon’ble Mr Justice Rohinton F. Nariman, is a sitting Judge, fo, the Supreme Court means the entire Courts as an institution and the petitions which he (respondent 1) vets captioned as “To The Hon’ble the Chief Justice and his companionJustices of the Hon’ble Supreme Court of India come up before his illustrious son, Hon’ble Mr Justice Rohinton F. Nariman.”

The petitioners contended that the Explanation to Rule 6 of the Bar Council of India Rules, 1971 negates the concept of nemo debet esse judex in propria causa (nobody shall be a judge in his own cause).

As for the relevant purpose, Rule 6 bars an advocate from practicing in any way before a Court where any of his relation mentioned therein is a Judge of the Court. However, Explanation thereto makes it clear that the word “Court” does not mean the entire Court but only refers to a particular Court where relative of a lawyer is a Presiding Judge.

According to Mr Nedumpara, a declaration should be given to bring within the ambit of the word “Court” the entire Court where the relative of the advocate is a Judge.

The High Court was of the considered view that the law does not permit it to make such a declaration. It was stated, “If the provisions of Rule 6 and the Explanation contained thereto as appearing in the statutory rules are taken note of, it clearly explains the ambit and import of the word ‘Court’ used therein and if the contention of the petitioner is to be accepted, we would be rewriting the statute in a manner which would run contrary to the legislative intent and this, in our considered view, is not permissible in law”. That being the legal position, the Court saw no reason to make any indulgence into the matter. Resultantly, the writ petition was dismissed. [Mathews J. Nedumpara v. Fali S. Nariman, 2019 SCC OnLine Del 7529, dated 6-03-2019]

Appointments & TransfersNews

As reported by media, Justice Brett Kavanaugh was announced as the second Supreme Court of the United States judge by Donald Trump.

Trump had shortlisted down four nominees consisting of Brett Kavanaugh, Amy Coney Barrett, Thomas Hardiman, and Raymond Kethledge JJ., amongst whom Justice Brett Kavanaugh was Donal Trump’s final nomination.

Justice Brett Kavanaugh is to succeed Justice Anthony Kennedy on his retirement on July 31st, 2018.

[Source: CNN]

Hot Off The PressNews

Supreme Court of Bangladesh: The Supreme Court of Bangladesh on 26 June 2018 upheld a High Court order that granted bail to Bangladesh Nationalist Party (BNP) Chairperson and former Prime Minister Khaleda Zia in a case filed under the Special Powers Act over the arson attack in Cumilla on February 3, 2015.

A four-member Bench of the Appellate Division headed by Chief Justice Syed Mahmud Hossain passed the order. The SC also ordered to dispose the maintainability of the petition within seven days. On May 28, the HC granted bail for six months to BNP chief Khaleda Zia in two cases filed in Cumilla. Later, the government filed a petition with the Appellate Division seeking a stay on the bail order.

Eight people were killed and 20 others injured when miscreants hurled a petrol bomb at a bus at Jogmohanpur in Chouddagram of Cumilla district during the BNP-led alliance’s movement on February 3, 2015. Two cases were filed against Khaleda in this connection. On February 8, 2018, Khaleda Zia was sent to jail after a special court sentenced her to five years’ rigorous imprisonment in the Zia Orphanage Trust graft case.

[Courtesy: Dhakatribune]

Case BriefsSupreme Court

Supreme Court: Addressing an issue of public importance relating to difficulties faced by visitors at Shri Jagannath Temple (Puri), the Bench comprising of Adarsh Kumar Goel and Ashok Bhushan, JJ., passed an interim order issuing directions for regulation and upkeep of the Temple.

The writ petition was filed by Mrinalini Padhi, a practicing advocate before the Orrisa High Court, highlighting the issues of public importance which need to be addressed and monitored so as to ensure safe custody of the valuables of the Temple; proper hassle-free worship by the devotees; and the clean and hygienic environment in the Temple. The issues put forth, also include the harassment of visitors by sevaks of the Temple. The Hon’ble Supreme Court noticed that the issues raised, involve the enforcement of fundamental right under Article 25 and directive principles under Articles 38, 49, 51A (f) and (g) of the Constitution. The Court further observed pilgrimage centers are of undoubted religious, social, historical and architectural importance, representing cultural heritage of our country. Millions of people visit these centers not only for tourism but for seeking inspiration for righteous values.

Having regard to the nature of the issue, Hon’ble Court directed the District Judge, Puri, to submit a report on factual aspects of the matter including difficulties faced by visitors and deficiency in management. Further, the Administrator was directed to review arrangement of CCTV cameras; and ensure that no direct collection of offerings is made by any sevak. The State of Odisha was directed to constitute a committee to study the management of other important shrines. Hassle free darshan by the visitors and utilization of offerings for righteous objects was considered to be of prime importance by the Hon’ble Court; hence, it was observed that the sevaks need to be compensated by legitimate remuneration as determined by the concerned Authority. Mr. Gopal Subramanium, learned Senior Counsel, was appointed as the Amicus Curiae to assist the Court. The matter is to be listed on 5-7-2018 for further consideration. [Mrinalini Padhi v. Union of India, 2018 SCC OnLine SC 602, decided on 08-06-2018]

Appointments & TransfersNews

After being criticised for refusing to clear Uttarakhand Chief Justice KM Joseph’s name for elevation to Supreme Court, Law Minister Ravi Shankar Prasad has written to CJI Dipak Misra, citing reasons for the refusal and asking the collegium to reconsider Justice KM Joseph’s elevation.

The letter states:

“the proposed appointment of Shri Justice KM Joseph as a judge of the Supreme Court at this stage does not appear to be appropriate.”

Below are the reasons given by the Centre for refusing Justice KM Joseph’s appointment as a Supreme Court judge:

  • In the All India High Court Judges’ Seniority List, Justice KM Joseph is placed at  Number 42 and there are presently 11 Chief Justices of various High Courts who are senior to him.
  • Around 10 High Courts, including the High Courts of Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu & Kashmir, Uttarakhand, Sikkim, Manipur and Meghalaya, are not represented in the Supreme Court at present.
  • Justice KM Joseph, who’s parent High Court is Kerala High Court, if elevated will be the second judge from a relatively small High Court.
  • There is no representation of Scheduled Caste/Scheduled Tribe in the Supreme Court.

The letter stated that for the aforementioned reasons, the Government has been constrained to segregate the recommendation of the Supreme Court collegium. On the question whether the Government can segregate the recommendations made by the Collegium, the letter clarified:

“such segregation of proposals has been done in many cases earlier, which include appointment of judges to various High Court and also to the Supreme Court in interest of expeditious action on appointments and filling up of vacancies.”

Background of the controversy: 

On 19.01.2018, the Supreme Court collegium, comprising of the five senior-most judges, had recommended the names of Uttarakhand Chief Justice KM Joseph and Indu Malhotra for elevation to the Supreme Court. While the Centre cleared Indu Malhotra’s name, it rejected the collegium’s recommendation regarding Justice KM Joseph. Indu Malhotra was sworn in as the 7th woman Supreme Court judge on 27.04.2018 by CJI Dipak Misra. She is the first woman lawyer to be directly appointed as a Supreme Court judge.

While the appointment of Indu Malhotra was applauded, many Senior members of the Bar urged CJI Dipak Misra to block her appointment till Justice KM Joseph’s name is cleared. Supreme Court, however, refused to give an urgent hearing to a mentioning by a group of Supreme Court Bar Association lawyers, with 100 signatures, seeking a stay on Senior Advocate Indu Malhotra’s appointment as Supreme Court judge in light of Centre’s decision to reject Justice KM Joseph’s elevation. The SCBA resolution states:

“While we stand for nomination of Ms. Indu Malhotra, Senior Advocate and one of our distinguished members, we express our deep anguish for non-inclusion of Justice KM Joseph and selective processing of files contrary to the recommendation of the Supreme Court collegium. We strongly condemn the selective approach of the Executive and call upon the Hon’ble Supreme Court to take appropriate steps to restore independence of the judiciary. “

(Click here to read the full text of the letter)