Supreme Court

Legal RoundUpWeekly Rewind

Watch the latest episode of SCC Online Weekly Rewind Episode 14 featuring Devika Sharma, Senior Editorial Assistant (Legal).

Pride Month

Judge “removes Lordship’s hat” for framing guidelines for proper recognition of LGBTQIA+ rights, acknowledges “gurus” for pulling him out of darkness of ignorance

When the world is celebrating pride month, a very progressive order came from the Madras High Court this week. The Court issued interim directions for proper recognition of the rights of LGBTQIA+ community. Another significant fact about the matter is that before penning this order, the Presiding Judge himself went through a counselling session and interacted with a transwoman to understand the emotions and realities of the community. The order notes that this session “ultimately convinced the Bench that it must change all the preconceived notions and start looking at persons belonging to the LGBTQIA+ community as they are.”

scconline.com/blog/post/2021/06/08/rights-of-the-lgbtqia-community/

Supreme Court Updates

Children orphaned by COVID-19| No illegal adoption; no discontinuance of education. Directions issued  

Considering the need for continuous monitoring of the implementation of the schemes in favour of the children who have become orphans or have lost one of their parents due to the COVID-19 pandemic, the Supreme Court has issued a series of directions to ensure immediate relief to such children. 

The Court emphasised on the need to ensure that the education of such children is not discontinued and also that no illegal adoption takes place.  

https://www.scconline.com/blog/post/2021/06/11/children-orphaned-by-covid-19-no-illegal-adoption-no-discontinuance-of-education-heres-the-list-of-supreme-court-directions/  

Financial relief a policy matter: SC refuse to entertain plea seeking loan moratorium extension 

In another development the Supreme Court has refused to pass any direction in the petition seeking effective and remedial measures to redress and overcome the financial stress and hardship faced by the borrowers of the country during the second wave of Covid 19 and lockdown. The Court said that financial relief is a policy matter and left it to the Government to take a decision.  

https://www.scconline.com/blog/post/2021/06/11/covid-19-second-wave-financial-relief-a-policy-matter-similar-order-already-passed-sc-refuse-to-entertain-plea-seeking-loan-moratorium-extension/  

AIIMS INI-CET exam to be postponed by at least a month 

Coming to the aid of doctors aspiring for admission to the Post Graduate courses for the July 2021 session in the units of AIIMS (All India Institute of Medical Sciences), PGIMER Chandigarh, JIPMER Puducherry and NIMHANS Bengaluru, the Supreme Court has directed AIIMS to postpone the Institute of National Importance Combined Admission Test (INI CET) examination by at least a month.  

 AIIMS had notified the date for conduct of INI CET 2021 on 16th June, 2021.  

https://www.scconline.com/blog/post/2021/06/12/aiims-ini-cet-exam-to-be-postponed-by-at-least-a-month-supreme-court/  

High Court Updates

Footpaths are not for campaigns and protests

Kerala High Court

Kerala High Court, while addressing the issue of encroachments of footpaths for the purpose of holding assemblies and protests, stated that,

“Footpaths are not intended for the purpose of holding campaigns, demonstrations, etc., by political parties and other organizations, by causing any obstruction whatsoever to free movement of pedestrians. No political party or organization can be permitted to encroach footpath or right of way of public roads…forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances.”

Link: https://www.scconline.com/blog/post/2021/06/12/right-of-footpath/

Toon Controversy | Cartoonist wanting to express anger, cannot be construed as defamation: Madras HC quashes criminal case against cartoonist, says cannot teach ethics to people

In a very interesting case, Madras High Court noted that a cartoonist had published a cartoon on his facebook page regarding a self-immolation incident and complaint was filed against him under Sections 501 of IPC and Section 67 of the Information and Technology Act, 2000, which raised the question Where from the fundamental rights of freedom of thought and expression must begin and where must it end?

To which the Court answered that:

Freedom of thought and expression is subject to the limitations that have been set out in the Article 19(2) of the Constitution of India.

Just like, any other citizen, a cartoonist is also bound by the law and in the form of a cartoon, he cannot defame anyone.

Link: https://www.scconline.com/blog/post/2021/06/08/toon-controversy/

“Singh + Singh” prima facie deceptively similar to “Singh & Singh”: HC grants interim relief to law firm in trademark infringement case

In a very interesting case of trademark infringement, the Delhi High Court has granted interim injunction in favour of Singh and Singh Law Firm LLP. The Court found that “Singh + Singh” – trademark of the defendant firm, prima facie appears to be deceptively similar to “Singh and Singh” – which is the petitioner’s trademark. The defendants Singh
+ Singh Laywers LLP have been restrained from using the impugned mark till the date of next hearing which is on 23rd September.

Link: https://www.scconline.com/blog/post/2021/06/07/law-firm-singh-singh/

 

Tribunals/Commissions Updates

SEBI bars Director of Franklin Templeton AMC, wife from accessing securities markets for 1 yr

SEBI, while barring a director of Franklin Templeton Asset Management Company and his wife from accessing securities markets for 1 yr, made a very significant observation in this insider trading matter that:

while directors are not prohibited from trading in units of the schemes managed by the Asset Management Company, they should ensure that such trading conforms to ethical and moral standards and legal norms expected to be complied by a person entrusted with quasi-fiduciary responsibilities.

Link: https://www.scconline.com/blog/post/2021/06/10/franklin-templeton/

NCLAT responds to a very marked question that whether Banks can debit amounts from Corporate Debtor Company after Moratorium Order?

The National Company Appellate Tribunal, while making an observation that Banks cannot freeze accounts, nor can they prohibit the ‘Corporate Debtor’ from withdrawing the amount as available on the date of the moratorium for its day-to-day functioning, held that banks cannot debit any amounts from the account of the ‘Corporate Debtor Company’ after the Order of moratorium, as it amounts to recovery of the amount.

Link: https://www.scconline.com/blog/post/2021/06/10/moratorium/

 

Legislation Updates

FSSAI issues order for mandating the mention of FSSAI license/ registration no. on the receipts and invoices by Food businesses 

On June 08, 2021, the Food Safety and Standards Authority of India (FSSAI) issued an order for mandating the mentioning of FSSAI license/ registration number on receipts/ invoices/ cash memo/ bills etc. by food business on sale of food products. 

https://www.scconline.com/blog/post/2021/06/11/fssai-issues-order-for-mandating-the-mention-of-fssai-license-registration-no-on-the-receipts-and-invoices-by-food-businesses/  

Due date for GST compliances extended 

The Central Board of Indirect Taxes and Customs vide notification no. 24/2021 dated 01.06.2021 has extended due date of compliances which fall during the period from “April 15, 2021 to June 29, 2021  has been extended till 30.06.2021.  

https://www.scconline.com/blog/post/2021/06/12/due-date-for-gst-compliances-extended/  

Gujarat Goods and Services Tax (Fourth Amendment) Rules, 2021 

On June 02, 2021, the Finance Department of Gujarat has issued the Gujarat Goods and Services Tax (Fourth Amendment) Rules, 2021 to amend the Gujarat Goods and Services Tax Rules, 2017. 

Refer to the SCC Online Blog for detailed list of Amendments.  

https://www.scconline.com/blog/post/2021/06/12/gujarat-goods-and-services-tax-fourth-amendment-rules-2021/  

 SC releases draft model rules for Live streaming and recording of proceedings 

The e-committee of the Supreme Court released the Draft Model Rules for Live-Streaming and Recording of Court Proceedings on June 7, 2021. A sub-committee consisting of judges of the Bombay, Delhi, Madras and Karnataka High Courts was constituted to frame model live streaming Rules. These model rules are aimed to provide a balanced regulatory framework for live streaming and recording of court proceedings to bring greater transparency, inclusivity, and access to justice. 

https://www.scconline.com/blog/post/2021/06/10/sc-releases-draft-model-rules-for-live-streaming-and-recording-of-proceedings/  

Late fee waiver under Maharashtra Value Added Tax 

The Government of Maharashtra has amended the Maharashtra Value Added Tax Act, 2002 vide notification dated 03.06.2021. The amendment allows the dealers who are liable to file return under Rule 17(c ) (4B) and Rule 18(1A) of the Act and who have not filed return for the period of March 2021, April 2021 and May 2021; such return shall be filed on or before 30th June, 2021. The late fee charges are subsequently waived. The tax payable, as per the return, shall also be paid by 30th June 2021. 

https://www.scconline.com/blog/post/2021/06/09/late-fee-waiver-under-maharashtra-value-added-tax/  

New Release by Eastern Book Company

Simply, Legal! Torts by Shweta Vishwanathan 

In this simple and very easy to understand book on Torts, the author Shweta Vishwanathan has used illustrations to make it entertaining. All the topics under Tort Law such as Vicarious Liability, Nuisance, Negligence, Defamation, etc. have been taught in a fun and conversational manner to bring back the fun of studying the basic laws of India. In this book, the principles of Tort Law are linked with everyday examples to bring home a realization that law is all around you and not some isolated, complicated thing standing by itself. This book is useful not just for novices who are not initiated into law but also for lawyers and judges who want to brush up their fundamentals over a period of time. 

https://www.ebcwebstore.com/product_info.php?products_id=99097536  

Civil  Procedure  Code  by C.K. Takwani , 9th Edition  

Civil  Procedure  Code  by C.K. Takwani provides an interesting and lucid study of the fundamental principles of civil procedure in a logical sequence. The topic-wise treatment of the subject along with references to academic writings and the judicial decisions makes the study of civil procedure  more  meaningful  and  comprehensible.  This book explains complex legal concepts with clarity and coherence as well as covers   all aspects and dimensions of law relating to Civil Procedure and Limitation in India.  

The current edition covers  all legislative developments including a new chapter on Commercial Courts Act, 2015 as well as the Rulings on the subject by the Supreme Court as well as the High Courts up to (2020) 16 SCC. 

https://www.ebcwebstore.com/product_info.php?products_id=740  

R.V. Kelkar’s Criminal Procedure by Revised by K.N Chandrasekharan Pillai 

This classic work provides an interesting study of the fundamental principles of criminal procedure in a logical sequence. The author has incorporated all recent developments in the field of criminal procedure since the publication of the last edition in 2014. 

The author has also drawn attention to some ticklish aspects of the Code with a view to foster new thinking in the light of new developments so that criminal procedure law may grow in tune with the times. 

https://www.ebcwebstore.com/product_info.php?products_id=783  

Lectures on Administrative Law by C.K. Takwani, 7th Edition  

Lectures on Administrative Law by Justice C.K. Thakker (Takwani) is the most sought after work on this subject among law students and members of the Bar. 

The Seventh Edition has taken note of development on the subject in India and also in foreign countries. Case law up to January 2021 has been included along with addition of certain new topics. Further, a new feature of Suggested Readings is included which is a compilation of articles by legal luminaries to widen the scope of discussion.  

This book will be immensely useful to students of LL B and LL M, administrators, judges, advocates, researchers and those interested in acquiring knowledge of this subject. 

https://www.ebcwebstore.com/product_info.php?products_id=934 

P. Sarathi’s Law of Evidence by K. A. Pandey

A classic work,  V. P. Sarathi’s Law of Evidence clarifies and explains the complicated rules governing the law of evidence in a straightforward and easily comprehensible style. 

The revising author has updated the current edition of the book with the latest case law and statutory changes which have taken place since the last edition. 

With the enormous growth of Information Technology, electronic records have replaced paper-based transactions and consequently the use of digital and electronic signatures to authenticate these records. This edition exhaustively deals with this topic including the pronouncement of the Supreme Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.  

https://www.ebcwebstore.com/product_info.php?products_id=909  

New Feature | SCC Online Web Edition

Before bidding adieu, let me also tell you that SCC Online has designed a very user-oriented feature for saving your time on legal research. Now you can refer to any provision of any statute, or study any Article of the Constitution discussed in the judgments and digest notes by a single click or a single tap through this amazing feature from SCC Online. Our team is committed to cater to all your legal research needs with a single interface.

Case BriefsSupreme Court

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

Provision in question

Sub-section (1) and sub-section (5) of Section 80-IA which are relevant for these Appeals are as under:

“80-IA. Deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc.— (1) Where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in sub-section (4) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction of an amount equal to hundred per cent. of the profits and gains derived from such business for ten consecutive assessment years.

* * * *

(5) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an eligible business to which the provisions of subsection (1) apply shall, for the purposes of determining the quantum of deduction under that sub-section for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such eligible business were the only source of income of the assessee during the previous year relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made.”

The essential ingredients of Section 80-IA (1) of the Act are:

  1. a) the ‘gross total income’ of an assessee should include profits and gains;
  2. b) those profits and gains are derived by an undertaking or an enterprise from a business referred to in subsection (4);
  3. c) the assessee is entitled for deduction of an amount equal to 100% of the profits and gains derived from such business for 10 consecutive assessment years; and
  4. d) in computing the ‘total income’ of the Assessee, such deduction shall be allowed.

The import of Section 80-IA is that the ‘total income’ of an assessee is computed by taking into account the allowable deduction of the profits and gains derived from the ‘eligible business’.

Background

In the case at hand, the ‘gross total income’ of the Assessee for the assessment year 2002-03 was less than the quantum of deduction determined under Section 80-IA of the Act. The Assessee contended that income from all other heads including ‘income from other sources’, in addition to ‘business income’, have to be taken into account for the purpose of allowing the deductions available to the Assessee, subject to the ceiling of ‘gross total income’. The Appellate Authority was of the view that there is no limitation on deduction admissible under Section 80-IA of the Act to income under the head ‘business’ only.

The Court was hearing a case where the Revenue had argued that sub-section (5) of Section 80-IA refers to computation of quantum of deduction being limited from ‘eligible business’ by taking it as the only source of income.

“… the language of sub-section (5) makes it clear that deduction contemplated in sub-section (1) is only with respect to the income from ‘eligible business’ which indicates that there is a cap in sub-section (1) that the deduction cannot exceed the ‘business income’.”

On the other hand, the Assessee had argued that sub-section (5) pertains only to determination of the quantum of deduction under sub-section (1) by treating the ‘eligible business’ as the only source of income.

The claim of the Assessee was that in computing its ‘total income’, deductions available to it have to be set-off against the ‘gross total income’, while the Revenue contends that it is only the ‘business income’ which has to be taken into account for the purpose of setting-off the deductions under Sections 80-IA and 80-IB of the Act

Analysis and conclusion

In Synco Industries Ltd. v. Assessing Officer, Income Tax, Mumbai, (2008) 4 SCC 22, the Supreme Court was concerned with Section 80-I of the Act. Section 80-I(6), which is in pari materia to Section 80-IA(5), is as follows:

“ 80-I(6) Notwithstanding anything contained in any other provision of this Act, the profits and gains of an industrial undertaking or a ship or the business of a hotel or the business of repairs to ocean-going vessels or other powered craft to which the provisions of sub-section (1) apply shall, for the purposes of determining the quantum of deduction under subsection (1) for the assessment year immediately succeeding the initial assessment year or any subsequent assessment year, be computed as if such industrial undertaking or ship or the business of the hotel or the business of repairs to ocean-going vessels or other powered craft were the only source of income of the assessee during the previous years relevant to the initial assessment year and to every subsequent assessment year up to and including the assessment year for which the determination is to be made.”

It was held in Synco Industries that

  • for the purpose of calculating the deduction under Section 80-I, loss sustained in other divisions or units cannot be taken into account as sub-section (6) contemplates that only profits from the industrial undertaking shall be taken into account as it was the only source of income.
  • Section 80-I(6) of the Act dealt with actual computation of deduction whereas Section 80-I(1) of the Act dealt with the treatment to be given to such deductions in order to arrive at the total income of the assessee.

In CIT (Central), Madras v. Canara Workshops (P) Ltd., Kodialball, Mangalore, (1986) 3 SCC 538, the question that arose for consideration before this Court related to computation of the profits for the purpose of deduction under Section 80-E, as it then existed, after setting off the loss incurred by the assessee in the manufacture of alloy steels. Section 80-E of the Act, as it then existed, permitted deductions in respect of profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule. It was argued on behalf of the Revenue that the profits from the automobile ancillaries industry of the assessee must be reduced by the loss suffered by the assessee in the manufacture of alloy steels.

The Court was, however, not in agreement with the submissions made by the Revenue. It was, hence, held that the profits and gains by an industry entitled to benefit under Section 80-E cannot be reduced by the loss suffered by any other industry or industries owned by the assessee.

Referring to the aforesaid authorities, the Court held that

“… Sub-section (5) cannot be pressed into service for reading a limitation of the deduction under sub-section (1) only to ‘business income’.”

[CIT v. Reliance Energy Ltd., Civil Appeal No. 1327 of 2021, decided on 28.04.2021]

Judgment by: Justice L. Nageswara Rao 

Know Thy Judge| Justice L. Nageswara Rao

For Revenue: Senior Advocate Arijit Prasad

For Assessee: Senior Advocate Ajay Vohra

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banerjee and MR Shah, JJ has directed AIIMS to postpone the Institute of National Importance Combined Admission Test (INI CET) examination by at least a month, after doctors with an MBBS degree, aspiring for admission to the Post Graduate courses for the July 2021 session in the units of AIIMS (All India Institute of Medical Sciences), PGIMER Chandigarh, JIPMER Puducherry and NIMHANS Bengaluru filed a petition calling AIIMS’ decision to conduct INI CET 2021 on 16th June, 2021, hasty.

It was argued,

“… the hasty decision taken by AIIMS to conduct INI CET 2021 on 16th June, 2021 has seriously prejudiced innumerable aspirants for admission to Post Graduate courses of the institutions of national importance, who are serving in Covid hospitals in various parts of the country. Many of them have been rendering services at Covid Centres located far away from the examination centres for which they have opted.”

The INI CET is being conducted to fill up 850 MD and MS seats in 6 units of AIIMS, PGIMER Chandigarh, JIPMER Puducherry and NIMHANS Bengalure. As per submissions before the Court, about 80,000 doctors with the MBBS degree are expected to take the INI CET. Post Graduate courses of medical colleges, other than those mentioned above are through the NEET-PG, which has been postponed beyond 31st August, 2021.

In such circumstances, it was argued, that,

“It would be extremely difficult, if not virtually impossible for many candidates for the INI CET to reach their examination centres from their places of duty. Many of the doctors are exposed to and are running the risk of contracting Covid 19 and they may have to isolate and/or quarantine themselves. Even otherwise holding the INICET on 16th June, 2021 will result in spread of the virus and increase in Covid 19 cases.”

Hence, considering the current scenario and the prayers by the doctors, the Court was of the opinion that the fixing of the INI CET on 16.06.2021 is arbitrary and discriminatory, more so since other important examinations including Joint Entrance Examinations, Board Examinations etc. have been postponed.

The Court, hence, directed that the INI CET be postponed by at least a month from 16th June, 2021.

[Poulami Mondal v. AIIMS, Writ Petition(s)(Civil) No(s). 623/2021, order dated 11.06.2021]

For Petitioner(s): Mr. Sanjay R. Hegde, Sr. Adv.

Mr. Arvind P Datar, Sr. Adv.

Ms. Sonia Mathur, Sr. Adv.

Ms. Pallavi Pratap, AOR

M/S. Dharmaprabhas Law Associates, AOR

Dr. Charu Mathur, AOR

Mr. Chandrashekhar A. Chakalabbi, Adv.

Mr. Awanish Kumar, Adv.

Mr. Shiv Kumar Pandey, adv.

Mr. Anshul Rai, Adv.

Mr. Shikha Bharadwaj, Adv.

Mr. Abhinav Garg, Adv.

Mr. Sanjay Kumar Dubey, Adv

Ms. Tanvi Dubey, Adv.

Mr. Puneet Pathak, Adv.

For Respondent(s): Mr. Dushyant Parashar, AOR

Case BriefsSupreme Court

Supreme Court: In a case where the Gujarat High Court had stayed the arrest a person accused for offences under sections 376(2)(F), 376(2)(N), 377, 354(A), 354(D), 503, 506(1) and 509 of IPC and sections 66(E) and 67(A) of the Information Technology Act, 2000, the bench of BR Gavai and Krishna Murari, JJ has remitted the matter to the High Court and has asked to record the reasons in support of its order.

The High Court had, while issuing notice on the application for anticipatory bail, directed that the applicant shall not be arrested in the meanwhile.

Stressing upon the need for a reasoned order, the Court said,

“In such serious matter, when the High Court exercised its power of granting ad interim protection from arrest to the respondent no.2 herein, the least that is expected by the High Court is to record some reasons as to why it chooses to exercise its extra-ordinary jurisdiction. From the perusal of the impugned order, it could clearly be seen, that no reason even for namesake has been recorded in the impugned order.”

[Sorathia Bindi v. State of Gujarat, Special Leave to Appeal (Crl.) No(s). 3162/2021, order dated 01.06.2021]

Know thy Judge

“Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.”

Justice L. Nageswara Rao

Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258

Born on 08.06.1957 at Chirala, Prakasam District, Andhra Pradesh, Justice L. Nageswara Rao enrolled as an Advocate at Bar Council of Andhra Pradesh in July 1982 after getting a degree in B.Com., B.L., from Nagarjuna University, Guntur, Andhra Pradesh.

Starting his practice at the District Court, Guntur, Andhra Pradesh, Justice Nageswara Rao, started practicing in the Andhra Pradesh High Court from January, 1984.

One year later, he started practicing at the Supreme Court of India and continued to do so till 2016, when he was elevated as the Supreme Court Judge.

♦Did you know? Justice Nageswara Rao is the 7th person to be elevated directly from the Bar as a Supreme Court judge.[1]

Justice Nageswara Rao also served as Additional Solicitor General of India from August 2003 to May, 2004 and again from 26.08.2013 to 18.12.2014.

He was took oath as a Judge of the Supreme Court of India on 13.05.2016.

♦Did you know? Justice Nageswara Rao was offered Supreme Court judgeship in 2014 by then Chief Justice of India RM Lodha. He had, however, turned down offer, citing personal and professional reasons.[2]

Justice Nageswara Rao is due to retire on 07.06.2022.

15 NOTABLE JUDGMENTS 

Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 3 SCC 52

The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference has held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction, after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

Read more

Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

Stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7-judge bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.

Dr. D.Y. Chandrachud, J writing down the majority judgment for himself and S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageswara Rao, JJ, laid down the principles for promulgation of ordinances.

Read more

Abhiram Singh v. C.D. Commachen (2017) 2 SCC 629

Giving a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s.

Justice Rao joined T.S. Thakur, CJ and Madan B. Lokur, and S.A. Bobde, JJ to give the majority verdict in the 4:3 verdict, while Dr. D.Y. Chandrachud, Adarsh K. Goel and U.U. Lalit, JJ dissented.

Read more

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

The 5-judge bench of Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ quashed the much in debate Maratha Reservation and has held that the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 [ 2018 Act] as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney[1]’s case.

Read more

Madras Bar Association v. Union of India, 2020 SCC OnLine SC 962

The 3-judge bench of L. Nageswara Rao*, Hemant Gupta and S. Ravindra Bhat has issued extensive directions in relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020.

Read more

C. Bright v. District Collector, (2021) 2 SCC 392

The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has upheld Kerala High Court’s decision holding that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) mandating the District Magistrate to deliver possession of a secured asset within 30 days, extendable to an aggregate of 60 days upon reasons recorded in writing, is a directory provision.

Interpreting Section 14 of the SARFAESI Act, the Court said that

“… the secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act.”

Read more

Rupali Devi. State of Uttar Pradesh,  (2019) 5 SCC 384

The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and SK Kaul, JJ held that woman driven out of matrimonial home can file case under Section 498-A from the place she has taken shelter at. The bench said,

“the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”

Read more

Hitesh Verma v. State of Uttarakhand, (2020) 10 SCC 710

In a case where abuses were hurled by a person of upper caste at a person belonging to Scheduled Caste due to a property dispute between them, the 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that no offence under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out as the allegations of hurling of abuses is against a person who claims title over the property and not on account of them being a member of the Scheduled Caste.

“The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste.”

Read more

Narendra v. K. Meena, (2016) 9 SCC 455

Dealing with the case where the husband had sought divorce from his wife on the ground that she was forcing him to leave his parents as he was proving them financial support, the Court said that in a Hindu society, it is a pious obligation of the son to maintain the parents.

The Bench of A.R. Dave and L. Nageswara Rao, JJ added that no son would like to be separated from his old parents and other family members, who are also dependent upon his income, the Court also said that the persistent effort of the wife to constrain the husband to be separated from the family would be torturous for the husband and will constitute as an act of ‘cruelty’.

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State of Tamil Nadu v. K Balu, (2017) 2 SCC 281

While stressing upon the alarming statistics on the occurrence of road accidents due to drunken driving the Full Bench comprising of T.S. Thakur, CJ., D.Y. Chandrachud, L Nageswara Rao, JJ. prohibited all States and Union Territories from granting licenses for the sale of liquor along national and state highways.

In 2007, Ministry of Road Transport and Highways had issued a circular to all the State Governments advising them to remove liquor shops situated along national highways and not to issue fresh licenses. Moreover, the Union Government had formulated for adoption by the States a Model Policy, which provided for a minimum distance from the state/national highways for locating liquor shops. However, an exception was carved out to the effect that the national or state highways would not include such parts of them as are situated within the limits of local authorities.

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Haji Ali Dargah Trust v. Dr. Noorjehan Safia Niaz, (2016) 16 SCC 788

Giving the Haji Ali Dargah Trust two weeks’ time to restore status-quo ante in regard to women pilgrims entering the sanctum sanctorum at par with men, the 3-Judge Bench of T. S. Thakur, C.J.  and D. Y. Chandrachud and L. Nageswara Rao, JJ said that in case there is any default or neglect on the part of the Trust in complying with the direction of the Bombay High Court, the respondents-writ petitioners shall be free to approach the High Court for appropriate redress in the matter.

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IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS, 2021 SCC OnLine SC 329

After noticing common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes, the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and S. Ravindra Bhatt, JJ has directed all High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months.

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In Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881, 2021 SCC OnLine SC 325

Noticing that the summary trials of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 are being routinely converted to summons trials in a “mechanical manner”, the Constitution bench of SA Bobde, CJ and L. Nageswara Rao, BR Gavai, AS Bopanna and S. Ravindra Bhat, JJ has directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

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Dahiben v. Arvindbhai Kalyanji Bhanusali, 2020 7 SCC 366

The 2-judge bench of Indu Malhotra and L Nageswara Rao, JJ has held that even when the entire sale consideration has not been paid, it could not be a ground for cancellation of the Sale Deed.

The Court relied on the it’s verdict in Vidyadhar v. Manikrao, (1999) 3 SCC 573, wherein it was held that non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground. In order to constitute a “sale”, the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in praesenti, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.

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Anjan Kumar Sharma v. State of Assam, (2017) 14 SCC 359

The bench comprising of L.Nageswara Rao and Navin Sinha, JJ. held that in the absence of conclusive and consistent proof of circumstantial chain of evidence which lead to the only “hypothesis of guilt” against the accused then, only circumstance of last seen cannot be made basis of conviction.

Read more

[1]Emerging trends in judgment writing introduced by Justice L Nageswara Rao, by Sameer, Updated: 18th August 2020, https://www.siasat.com/emerging-trends-in-judgment-writing-introduced-by-justice-l-nageswara-rao-1951146/

[2] L Nageswara Rao recommended for the post of SC judge, by Utkarsh Anand, May 5, 2016, https://indianexpress.com/article/india/india-news-india/l-nageswara-rao-recommended-for-the-post-of-sc-judge-2784921/

Experts CornerIram Majid

In Part 2, firstly this article shall analyse the existence of an alternative dispute resolution mechanism in India. Secondly, this article shall study various arbitration cases in space-related disputes and conduct a brief comparative analysis to litigation cases in space-related disputes. Thirdly, this article shall suggest the requisite means and measures to improve the dispute resolution mechanism for space-related disputes.

 

  1. Space Law from the Lens of Indian Standpoint: Does any Alternative Dispute Resolution Mechanism Exist at the Domestic Level?

 

In 2017, the Government of India released the Draft Space Activities Bill, 2017. The Government sought for comments on this draft from the public. This Bill addressed the aspect of private participation in the Indian space sector. It essentially acknowledged the importance and the crucial role that the private sector would play in the near future for the development and enhancement of space-related technology for humanity. However, at the same time, substantial discretion was rested in the hands of the Indian State to essentially control the access to outer space. Regardless of this, the Bill emphasised on the creation of a public-private partnership model to meet the future goals of the space sector, alongside Indian Space Research Organisation (ISRO) inviting the private sector to develop the future satellites.

 

However, the point of conundrum arises is that, when we carefully scrutinise the 2017 Bill, we comprehend that powers have been given to the domestic Indian courts whereas there is no mention of resolution of disputes through arbitration, mediation, and/or negotiation. This lack of mention, accompanied by the Arbitration and Conciliation Act, 1996 and the Indian jurisprudence on arbitration, both being in their nascent stages, proves highly detrimental to the resolution of space-related disputes. This is because, even though the parties in space sector have commercial contracts and agreements that may consist of an arbitration clause, it is pertinent to note that not all disputes may be arbitrable. For example, landlord-tenant disputes were not arbitrable in India until 2020 as they dealt with matters related to public policy and interest. This meant that matters which relate to public policy and interest cannot be arbitrated as such arbitration happens in privacy and confidentiality whereas, these matters are to take place in public forums as that of the civil courts. Due to this, there were multiple conflicting decisions of the High Court and the Supreme Court. However, in December 2020, the Supreme Court finally held that the landlord-tenant disputes are arbitrable as they dealt with subordinate rights in personam that arose from rights in rem.[1] All these conflicts and confusion could have been avoided had there have been an explicit mention about resolution of landlord-tenant disputes through arbitration in the Transfer of Property Act, 1882 with the necessary exemptions of State-specific legislations that provide for specific forums for landlord-tenant disputes redressal.

 

Similarly, in the case of space-related disputes, if there is no mention of arbitration about space-related disputes in the 2017 Bill, it may highly lead to heavy turmoil and confusion despite having arbitration clauses in space-related commercial contracts and agreements, thereby hindering the objective of just, effective, and efficient justice. Although the Supreme Court developed a four-pronged guiding test in Vidya Drolia (2) case[2] –– to ascertain which disputes are non-arbitrable –– that can be applied to decide the arbitrability of space-related disputes, it is pertinent to note that there will be a massive time and resource drainage.

 

This drainage will take place because there will be a substantial time and resources drainage and wastage in deciding whether a space–related dispute is arbitrable. If the Court decides that such outer-space disputes are arbitrable, then there is an unnecessary time and resources lag to commence and conclude arbitration proceedings. This lag can cost both the Parties heavily considering outer-space disputes are enormously expensive. Further, if any Party is unsatisfied with the arbitral award, then they would approach the Court to set it aside. This process of setting aside the arbitral award only adds on to the stress of the previous time and resource lag.

 

Or, if the Court decides that such outer-space disputes are non-arbitrable, then resorting to the traditional, tedious litigation process for adjudication of that space–related dispute and/or getting the previous judgment, that outer–space disputes are non-arbitrable, reviewed by a higher Court/Bench, causes similar time and resources detriment to both the Parties.

 

  1. Study of Arbitration in Space-Related Disputes with a Comparative Analysis of Outer Space Litigation

 

As previously mentioned, the types of space-related disputes may be, but not limited to, late delivery of satellites, problem regarding the launch of a satellite, defective satellites in the orbit, sale and purchase of satellites in the orbit, lease of satellite capacity, right to operate at certain orbital positions, revocation of leased spectrum, and reservation of capacity for governmental use. Thus, taking the aforementioned into consideration, certain arbitration case laws shall be scrutinised for better comprehension.

 

Firstly, the case of Spacecom v. Israel Aerospace Industries was a dispute regarding late delivery of satellites.[3] In this case, Israel Aerospace Industries was supposed to build a satellite for Spacecom and deliver the same by August 2015. However, there were certain delays due to which the satellite was delivered to Spacecom by September 2016. Further, during a prelaunch test, this newly delivered satellite disintegrated. Spacecom initiated arbitration proceedings against Israel Aerospace Industries wherein Spacecom secured an award of USD 10 million in its favour.

 

Secondly, the case of Avanti Communications Group v. Space Exploration Technologies was a dispute regarding launch of satellites.[4] In this case, Avanti contracted with Space Exploration Technologies (hereinafter “SpaceX”) wherein Avanti’s satellite was to be launched aboard a SpaceX Falcon 9 launch vehicle. In pursuance to this contract, SpaceX was mandated to show a certain number of successfully completed launches for their launch vehicle, which they failed to show. Due to this failure, Avanti terminated the contract with SpaceX and requested for a refund as Avanti had already paid the launch cost deposit of USD 7.6 million to SpaceX. SpaceX denied refunding the same amount and Avanti initiated arbitration proceedings against Space X wherein Avanti secured an arbitral award of USD 7.6 million in its favour.

 

Thirdly, the case of Thuraya Satellite Telecommunications v. Boeing Satellite Systems International was a dispute regarding defective satellites in the orbit.[5] Generally, satellite manufacturer’s liability stops from the launch of the satellite. However, in this particular case, a group of insurers brought a claim against Boeing as Boeing’s manufactured satellite lost power in the orbit due to the alleged defective solar panels. Boeing acknowledged that its earlier satellite models contained defects; however, it said that it was not aware about these problems before such satellites were launched and denied concealing such defects from the purchasers of its satellites. The Arbitral Tribunal rejected the insurers’ claim and ordered them to pay Boeing’s full “costs”.

 

Fourthly, the case of ABS v. KT Corpn.[6] was a dispute regarding sale and purchase of satellites in orbit. In this case, ABS contracted with KT Corporation and KTSAT (hereinafter “KT”) for the purchase of a satellite from KT. This satellite was purchased with the requisite US regulatory approvals, but not any Korean regulatory approvals. In 2011, KT delivered the satellite to ABS wherein ABS paid the requisite purchase price of USD 500 million. However, in 2013, Korea’s Ministry of Science, ICT and Future Planning (hereinafter “MSIP”) declared the contract –– between KT and ABS –– as null and void as KT did not comply with Korean regulatory approval. Further, KT was ordered for returning the satellite to its original operating condition. Due to this, KT sent a letter to ABS wherein KT asserted its ownership of the satellite. However, ABS denied the same on two counts: (i) MSIP did not have the authority to nullify the contract between KT and ABS; and (ii) Korean export approval was not necessary because the satellite was not a Korean export but a US export. ABS initiated arbitration proceedings against KT and secured an arbitral award in its favour wherein the title was declared to have been transferred to ABS even before the MSIP nullified the contract. This was because:

 

… ABS and KT fulfilled every prerequisite defined in Article 10.1 of the purchase contract as a condition precedent to the passage of title to the satellite: obtaining export approval by KT and Lockheed Martin for a US export under the regime of the US International Traffic in Arms Regulations (ITAR), delivery of the satellite, payment of the purchase price and issuing of bills of sale.[7]

 

Further, the Arbitral Tribunal also held that the Korean Government did not have any authority to nullify the contract as it held that MSIP was not the competent agency to issue an order of nullification, but the Korean Ministry of Trade, Industry and Energy was competent that remained silent throughout the matter.

 

Fifthly, the case of Avanti Communications v. Govt. of Indonesia was a dispute regarding leasing of satellite capacity.[8] In this case, Indonesia’s satellite malfunctioned in 2015 due to which Indonesia could have lost its orbital slot. The filling of this orbital slot with a new satellite would have taken more than three years but this was problematic to Indonesia because, according to the “use it or lose it” policy, a State may lose its orbital slot if the State leaves the orbital slot vacant for more than three years.[9] To avoid the same conundrum, Indonesia leased capacity on another satellite that could be brought and maintained in Indonesia’s orbital slot until a new Indonesian satellite could be placed. This replacement satellite was owned by Avanti. The lease capacity agreement was worth USD 30 million. Indonesia paid only USD 12 million, leaving a remaining balance of USD 16.8 million as it claimed that the satellite was not fulfilling the requisite purpose. Failure to pay even after a year, due to this, Avanti initiated arbitration proceedings against Indonesia in 2017 and secured an arbitral award in its favour in 2018 wherein Indonesia was ordered to pay Avanti a total sum of USD 20.075 million.

 

Sixthly, the case of Eutelsat SA v. United Mexican States[10] is a dispute regarding reservation of capacity for governmental use. In this case, Eutelsat, a satellite operator, acquired a satellite in 2014. However, according to the regulatory rules of United Mexican States i.e. Mexico, satellite operators are mandated to reserve ninety per cent of their satellite’s overall capacity for governmental use, which the operators could otherwise commercialise. The problem arose at the point wherein Eutelsat claims that it was required to reserve a larger capacity for Mexican Government than its competitors which, in turn, violated the principle of fair and equitable standard under the Mexico-France Bilateral Investment Treaty (BIT). The case is still pending.

 

Seventhly and in finality, there are two noteworthy arbitral disputes that are the Devas arbitrations[11] and the Eutelsat arbitrations[12] that relate to revocation of lease spectrum and the right to operate at orbital positions respectively.

 

Thus, considering the aforementioned cases, it is lucidly evident that a plethora of international arbitration cases have taken place that are related to a conventional manufacturing, purchase, title, or contract-related dispute.

 

However, the query is that whether litigation takes places for space-related disputes. The answer is affirmative as already evident from the 1991 case of Martin Marietta Corpn. v. Intelsat.[13] In this case, Martin Corporation (hereinafter “Martin”) and Intelsat entered into an agreement to launch two satellites. Martin agreed to launch the satellites in return for a consideration worth USD 112 million from Intelsat. Soon after the lift off of the first launch, the payload’s separation system failed to eject the satellite and the satellite’s booster. Although Intelsat’s engineers eventually separated the payload from the rocket, this delay caused in the separation of the payload from the rocket left the satellite in a useless orbit. It was estimated that the cost to rescue and place the satellite in a proper orbit was USD 90 million due to which Martin filed a case in Maryland District Court. In response to this, Intelsat filed a counter case claiming a breach of contract. Further, Intelsat also brought the claims of negligent misrepresentation, negligence and gross negligence to recover the damages for loss of profits, loss of use of satellite, and rescue costs. The District Court’s case lasted for a significant period of time, but it did not end there as the case went to appeal to the Fourth Circuit that disagreed on the District Court’s decision on multiple counts.

 

Thus, the point of consideration, rather than a conundrum, arises is that this significant time and resource lapse, alongside changing decisions of the courts, in Martin case[14], could have been avoided had the matter been referred to arbitration proceedings as arbitration would have not only offered a higher chance at time and resource savings, but also mutual development and agreement for the claim amounts, thereby enabling the development of sustainable and long-lasting relationship between the parties. Similar problems have arisen in the space-related litigation disputes of Appalachian Insurance Co. v. McDonnell Douglas Corpn.[15] and Lexington Insurance v. McDonnell Douglas.[16]

 

Thus, it is lucidly evident that litigation proceedings in already complex and highly technical space-related disputes add on to the existing layers of complexity. Further, it also leads to massive cost and resource drainage and wastage which, in turn, further detriments the space sector from gaining traction in terms of growth, development, and innovation. Therefore, arbitration, mediation and/or negotiation offer the best chance at saving time and resources alongside building long-lasting and sustainable commercial relationships which, in turn, enable the space sector to bloom while protecting its manufacturers, sellers, and service providers.

 

In the following, the author shall conclude with certain recommendations to improve the scenario of dispute resolution in space-–related disputes.

 

  1. Conclusion: What is Actually Written in the Stars for the Future of Dispute Resolution Mechanism in Space-Related Disputes

 

We comprehend that the disputes in the space sector are highly technical and complex in nature due to which the need for arbitration substantially rises and for litigation reduces. However, it is pertinent to note that, in the space sector, the disputes are usually resolved through the process of mediation.[17] The parties resort to arbitration only if the matter escalates.[18] Taking this into account, it can be inferred that mediation is quintessential to resolve space-related disputes. However, considering the fact that the conventions and accords regarding space law are obsolete and ineffective, an imperative need to update and upgrade the same becomes the need of the hour because failure to do so will obstruct in the delivery of justice to the parties. The reason behind the same is that there is a burning need to develop a dispute resolution mechanism that is akin to space-related disputes only, rather than resorting to a general and standard dispute resolution mechanism as previously argued.

 

Thus, firstly, a new, effective, and efficient dispute resolution mechanism of arbitration, mediation, and negotiation (hereinafter “AMN”) can be developed through a top-to-down approach (hereinafter “TDA”). This means that that the law and its related provisions shall flow from the lawmakers to the parties wherein the updation and upgradation of the related conventions, treaties, and accords, alongside the development of specific rules and procedures shall be the responsibility of the lawmakers. It shall involve inclusion of specific and comprehensive provisions related to the dispute resolution mechanism of AMN in the newly updated and upgraded conventions, treaties, accords, and so on. Further, the relevant and requisite suggestions/amendments may be sought from various actors of the space sector for a comprehensive and inclusive development of the dispute resolution mechanism. This approach takes precedence over a down-to-top approach (hereinafter “DTA”) wherein the law and its related provisions flow between the parties while ensuring adherence to the general norms of international law. In other words, in DTA, the parties shall set their own rights, duties, and obligations, while ensuring that such setting does not violate any basic provisions of international law such as justice, fairness, equality, and good faith. DTA is not a preferrable mode because in this approach, there is a lack of uniformity and standardisation in the rights, duties, and obligations of the parties. This lack of uniformity and standardisation may inherently lead to the creation of stark differential treatment for each AMN proceedings which, in turn, may be perceived as discriminatory. Thus, to avoid the same, TDA is preferrable for the creation of an AMN dispute resolution mechanism.

 

Adding on to the aforementioned updation and upgradation of the treaties and so on, it is of quintessence importance for us to comprehend that the PCA Outer Space Arbitration Rules already exist for the purpose of arbitration in space-related disputes. Considering the dynamic and rapid changes in the space sector, wherein the probability of space-related disputes exponentially rise in times of Covid-19 — owing to halt and delay in various businesses and their ancillary industries — the need for utilising and applying these Rules becomes inevitable. This is to ensure faster, effective, and efficient redressal of space-related disputes owing to these Rules expertise and specific draft for space-related disputes. However, to achieve the same, there is a need for creating an awareness regarding these Rules within the space sector. Further, these Rules scope can also be expanded by including provisions and measures for mediation and/or negotiation. The benefit of the same would essentially be of standardisation and uniformity in the Rules for dispute resolution mechanisms as earlier argued.

 

Secondly, it is also imperative for us to comprehend that if the parties choose to go for litigation, then they may choose to go for the International Court of Justice (hereinafter “ICJ”) ad hoc litigation rather than a traditional ICJ litigation. The reason behind the same is that, in the ICJ Statute, there is a provision that enables the creation of ad hoc litigation chambers of the ICJ.[19] According to Article 26 of the ICJ Statute, we comprehend that it enables the creation of two types of chambers: a chamber that deals with a particular case;[20] or one or more chambers that deal with a particular “category” of cases.[21] Thus, we need to comprehend that this type of ad hoc ICJ litigation is far more beneficial than a traditional ICJ litigation because: (i) the ad hoc chambers will be specially equipped with experience and expertise to deal with space-sector related disputes as Article 26(1) enables the creation of chambers for a particular category of cases. This benefit of experience and expertise shall enable ICJ to deliver judgments of higher effectiveness and efficiency which, in turn, will enable the parties to receive appropriate and speedy justice. (ii) Ad hoc chambers act in a manner similar to that of Arbitral Tribunals because these chambers are created especially for specific disputes which is the same case in Arbitral Tribunals. This essentially offers similar benefits of Arbitral Tribunal but in the form of a decision rendered by an ICJ chamber. Further, it is also quintessential to note that these ad hoc chambers decisions are considered as a judgment rendered by the ICJ[22] which, in turn, makes it binding on the parties as per Article 59[23] and thereby increases the authenticity of these decisions.

 

However, the advantages of an ad hoc ICJ chamber over an Arbitral Tribunal must be discussed. These advantages are as follows: (i) From a political standpoint, it has already been observed that ICJ judgments have a higher visibility than an Arbitral Tribunal which, in turn, creates an increased probability of compliance with these judgments.[24] Further, these ICJ judgments are termed as “more prestigious” when compared to arbitral awards.[25] This, in turn, enables a party to bring the other party under the accountability and responsibility factor which may be due to the other party’s inability to fully or partially comply with the judgment. (ii) An ad hoc ICJ litigation chamber is comparatively lesser expensive than an Arbitral Tribunal because, according to Article 33, the “expenses” of the ICJ proceedings shall be borne by ICJ. The parties would be required to only bear their “own costs” for the ICJ proceedings. This encourages small actors of space-related disputes to undertake the same proceedings. Thus, it is lucidly evident that the parties can also resort to ad hoc ICJ litigation, provided the mutual settlement talks and/or mediation and/or arbitration has failed between them.

 

Therefore, considering the fact that there are ample amounts of opportunity for the dispute resolution mechanism for space-related disputes to grow, develop, and evolve, an inevitable need for constant updation and upgradation of the laws and rules arises alongside the creation of an awareness regarding the same.

† Iram Majid, Director of Indian Institute of Arbitration and Mediation (ILAM) and Executive Director of Asia Pacific Centre for Arbitration and Mediation.

[1] Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1 : 2020 SCC OnLine SC 1018.

[2] Ibid.

[3] Jan Frohloff, Arbitration in Space Disputes, 35 Arbitration Int’l 309, 311 (2019).

[4] Id. at 311-312.

[5] Id. at 313.

[6] ICC Case 19958/ AGF/RD/MK (ABS).

[7] Frohloff, supra note 2, at 315.

[8] Id. at 316.

[9] Id. at 317.

[10] ICSID Case No. ARB(AF)/17/2.

[11] See also CC/Devas (Mauritius) Ltd. v. Republic of India, PCA Case No 2013-09 and Devas Multimedia (P) Ltd. v. Antrix Corpn. Ltd., ICC Case 18051/CYK.

[12] See also Eutelsat v. Media Broadcast, Deutsche Telekom; Eutelsat v. SES (Eutelsat) <https://www.international-arbitration-attorney.com/icc-space-arbitration-eutelsat-communications-v-ses/>.

[13] 763 F Supp 1327 (D Md 1991).

[14] Ibid.

[15] 262 Cal Rptr 716, 718 (Cal Ct App 1989).

[16] 49 USC app § 2615 (1988).

[17] Frohloff, supra note 2, at 328.

[18] Ibid.

[19] 1945 3 Bevans 1179, Art. 26 (hereinafter “ICJ Statute”).

[20] Id. at Art. 26(2).

[21] Id. at Art. 26(1).

[22] Id. at Art. 27.

[23] Id. at Art. 59.

[24] Andreas Zimmermann, Ad Hoc Chambers of the International Court of Justice, 8(1) Dickinson Journal of International Law 9, 1-32 (1989).

[25] Ibid.

Appointments & TransfersNews

Justice Arun Kumar Mishra, former Judge of the Supreme Court of India, has joined as the new Chairperson of the National Human Rights Commission, NHRC, India.

Justice Arun Mishra the 8th Chairperson of the NHRC, India.

Background

He was born on 3rd September 1955. After completing B.Sc. M.A. L.L.B. joined the Bar in 1978 and practised in constitutional, civil, industrial, service and criminal matters.

He was elected as the youngest Chairman of the Bar Council of India in 1998 and particularly focused on the improvement of legal education. During his Chairmanship, the Bar Council of India decided to close the evening Law Colleges and also decided that 5-year Law Course should be started instead of 3 years Course in all the colleges. More than two hundred sub-standard law colleges were closed by the BCI. Also, amount of medical aid to lawyers was enhanced.

He was instrumental in the drafting and implementation of Foreign Law Degree Recognition Rules of 1997 under Advocates Act, 1961; Bar Council of India Employees Service Rules,1996 and Rules pertaining to Foreign Lawyers Conditions of Practice in India.

He was appointed Judge of the High Court of Madhya Pradesh on 25th October 1999 and appointed as the Chief Justice of Rajasthan High Court on 26th November 2010 and held the office till his appointment as the Chief Justice of the High Court at Calcutta on 14th December 2012.

Justice Mishra was elevated as a Judge of the Supreme Court of India on 7th July 2014 and held the position till his superannuation on 2nd September 2020. During his tenure as a Supreme Court Judge, he delivered 236 judgements. Out of this 199 were in two Judges Bench,32 in three Judges Bench and 5 in five Judges Bench.

National Human Rights Commission

[Press Release dt. 02-06-2021]

Case BriefsForeign Courts

Supreme Court of Florida: The 7-Judges Bench of Candy, CJ. Polston, Labarga, Muniz Couriel, Grosshans and Lawson, JJ., upheld the Vertical Integration Requirement of Medical Marijuana Statute and also confirmed caps on licensees for MMTC.

The instant case was initiated at the Trial Court wherein Florigrown, LLC, and Voice of Freedom, Inc. (collectively, Florigrown) had filed a lawsuit against the Florida Department of Health (Department) and other state actors advancing several constitutional challenges to section 381.986(8), Florida Statutes (2017), contending the same to be inconsistent with the recent medical marijuana amendment to the Florida Constitution, Article X, section 29 (the Amendment) as it mandated that MMTCs (Medical Marijuana Treatment Center) use a vertically integrated supply chain, and the other places statutory caps on the number of MMTC licenses available to authorize entities to participate in the medical marijuana industry. Florigrown contended that provisions of section 381.986(8) as special laws granting privileges to private corporations were contrary to article III, Section 11(a)(12) of the Florida Constitution. The trial court agreed with Florigrown as to each argument and entered a temporary injunction.

Later on, while partially upholding the injunction, the First District certified the question to be of great public importance it framed the following question: whether the statutory requirements of vertical integration and caps on the number of medical marijuana treatment center licenses as set forth in section 381.986(8), Florida statutes, are in direct conflict with article x, section 29, of the Florida Constitution?

Analysis by the Court

Relying on the decision of Provident Mgmt. Corp. v. City of Treasure Island, 796 So. 2d 481, 485 (Fla. 2001), the Supreme Court opined that a temporary injunction is extraordinary relief that should be granted only when the party seeking the injunction has established four elements: (1) a substantial likelihood of success on the merits, (2) the unavailability of an adequate remedy at law, (3) irreparable harm absent entry of an injunction, and (4) that the injunction would serve the public interest.

Florigrown’s Constitutional Claims

There were three claims at issue:

  1. that section 381.986(8)’s vertical-integration requirement conflicts with the Amendment;
  2. that section 381.986(8)’s caps on the number of MMTC licenses available conflicts with the Amendment; and
  3. that three aspects of section 381.986(8)(a) violate Florida’s constitutional prohibition against the use of a special law to grant a privilege to a private corporation.

Vertical Integration

Art. X, S. 29(b)(5) of the Constitution Amendment defined “MMTC” as “an entity that acquires, cultivates, possesses, processes . . . , transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the Department.” In pertinent part, S 381.986(8)(e) provided as follows: A licensed medical marijuana treatment center shall cultivate, process, transport, and dispense marijuana for medical use.

The Court concluded that Article X, section 29(b)(5) of the Constitution provide a two-part definition of MMTC and that the definition in itself gave no entity the right to be either registered or licensed. Thus, an entity is an MMTC if it performs any one of the listed functions and is registered by the Department, the Bench emphasized that Section 381.986(8)(e) did not say otherwise neither it undertook to define “MMTC” rather it merely set forth requirements that an MMTC must meet in order to be licensed.

Similarly, the Amendment did not speak of “licensing” MMTCs but instead directed the “registering” of MMTCs. Noticing that the constitutional definition of “MMTC” did not provide for unilateral registration “with” the Department; it rather require an entity to be registered “by” the Department according to regulations designed to ensure safety and security before it can be considered an MMTC; the Court opined that because the Amendment did not entitle an entity to either registration or licensure simply because it intended to perform one of the listed functions, the Legislature’s enactment of standards that include vertical integration was not inconsistent with the Amendment.

Accordingly, the Court held that the vertical-integration requirement of section 381.986(8)(e) was within the Legislature’s specific authority recognized in article X, section 29(e) and its plenary lawmaking authority set out in article III, section 1 of the Constitution.

Statutory Caps on the Number of Licenses

Florigrown argued that Statutory Caps on number of licenses set out in section 381.986(8)(a) violated the Amendment by placing an unreasonable restriction on the medical marijuana industry and conflicting with the Amendment’s purpose of “ensuring the availability and safe use of medical marijuana by qualifying patients.” While rejecting the said contention, the Court stated that there was no competent, substantial evidence produced by Florigrown to prove that the statute had made medical marijuana unavailable and that the Amendment did not preclude a limit on the number of MMTCs that could be licensed.

Opining that though the Statute limited the number of dispensing facilities providing a limit of twenty-five per MMTC and a limit within that twenty-five of how many dispensing facilities each MMTC could operate in each of five regions of the state, however, it also provided for an expanding number of facilities in increments of five additional facilities per MMTC each time the patient population reached an additional 100,000 patients. Further, as planned from the outset by the terms of the statute, the limitation on the number of dispensing facilities MMTCs were permitted to operate expired on 01-04-2020 and currently there is no limit.

Special-Law Challenge

Florigrown’s last claim on the merits was that subparagraph 1, 2.a, 3 of section 381.986(8)(a) were unconstitutional under article III, section 11(a)(12) of the Constitution because they were special laws granting privileges to private corporations and because they operate on closed classes. The Court opined that for the alleged violation a statute must have two features:

(1) it must be either a special law or a general law of local application, and

(2) it must grant a privilege to a private corporation.

The Bench stated that the challenged provisions were parts of a general law implementing a statewide regulatory scheme and, accordingly, did not violate Constitutional provisions. The Court remarked,

“A law that addresses state interests and operates to protect those interests using valid classifications “based upon proper differences which are inherent in or peculiar to the class[es]” is a general law. Even if the law is limited in direct application, it is still a general law as long as the limitation on its application bears a reasonable relationship to its statewide purpose.”

Hence, statute at issue created an open class of entities that may be eligible for MMTC licensure and, within that open class, created sub-classifications “based upon proper distinctions and differences that inhere in or are peculiar or appropriate to the class,”, making it a general law.

Conclusion

Consequently, it was held that Florigrown did not have a substantial likelihood of success on the merits of its constitutional challenges to section 381.986(8). Accordingly, Florigrown’s request for a temporary injunction was denied and the First District’s decision was quashed. The matter was remanded to the First District with instructions to further remand to the Trial Court for vacation of the temporary injunction.

Dissenting View by Lawson, J.,

Although, Lawson, J., had a concurring opinion on the rest of the matter he expressed his dissent on the issue of special laws granting privileges to private corporations in violation of Article III, section 11(a)(12) of the Florida Constitution. The judge concluded that Florigrown has demonstrated a substantial likelihood of success on the merits of its challenge to section 381.986(8)(a)1 as the provisions in question had granted certain private corporations (described so precisely that they might as well be named in the statute) the right to MMTC licensure without entering the competition that others must enter for a statutorily capped number of licenses. The Judge opined that because the law granted this clear benefit to those private corporations, it violated the Constitution and thus, it could not be construed as a general law. Rejecting the argument that the class was not closed because any entity can sell its license once the license is obtained, he opined that the idea was that anyone can effectively join the classes established by section 381.986(8)(a)1 and 2.a. by purchasing a license from one of the entities that obtained their licenses under those provisions which did not show that the classes created were open, but rather underscored that the privilege those classes had been granted was a valuable commodity.[Florida Department of Health v. Florigrown, LLC, No. SC19-1464, decided on 27-05-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Legal RoundUpSupreme Court Roundups

“This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution.”

Chief Election Commissioner of India v. M.R Vijayabhaskar, 2021 SCC OnLine SC 364

UNMISSABLE STORIES 

Practice and Procedure

Open for Courts to order house arrest under Section 167 CrPC

In a major verdict, the bench of UU Lalit and KM Joseph*, JJ has held that it is open for Courts to order house arrest under Section 167 CrPC in appropriate cases. The order comes as a milestone for curbing the problem of overcrowded prisons and high cost for their maintenance.

Read more…

Judges need to be extra careful while conducting criminal trials relating to dowry deaths

In a case relating to dowry death, the bench of NV Ramana*, CJ and Aniruddha Bose, J has said that judges need to be extra careful while conducting criminal trials relating to Section 304-B, IPC. The Court went on to summarise the law under Section 304­B, IPC read with Section 113­B, Evidence Act and the guidelines to be followed by the Courts while conducting trials in such cases.

Read guidelines

“No coercive measures to be taken”| Can High Courts pass such blanket orders while refusing to quash investigation? Here’s the law laid down by the Supreme Court

“Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law.”

Read more...

Apprehension of COVID-19 a ground for anticipatory bail: Supreme Court stays Allahabad High Court’s order

The vacation bench of Vineet Saran and BR Gavai, JJ has stayed the Allahabad High Court’s order wherein it was held that apprehension of being infected with COVID-19 after coming into contact with authorities was a valid ground for anticipatory bail.

Read more…

NCLT/NCLAT vacancies

39 members for a sanctioned strength of 63! Supreme Court asks Centre to complete reappointment process within 2 months

“As the Government has already initiated the process of reappointment by writing to the Hon’ble Chief Justice, we trust and hope that the reappointment process should be completed expeditiously, as there is no necessity of issuance of any advertisement for participation of other eligible candidates.”

Read more…

Sedition

Supreme Court to decide constitutionality of Section 124A IPC

The 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has issued notice in a plea seeking declaration of Section 124-A IPC to as unconstitutional and void. The order came after Senior Advocate Colin Gonalves submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 requires reconsideration.

Read why Section 124A IPC came into force and why 5-judge bench in Kedar Nath Singh verdict found it constitutional

Need to interpret sedition law in context of freedom of media; No coercive steps against TV5, ABN till next hearing

The two channels had broadcasted certain programmes wherein Raghurama Krishnam Raju, Member of Parliament had allegedly expressed views critical of the State Government and the Chief Minister. While Raju, has been named as the first accused, TV5 and ABN have been named as the second and third accused.

Read more…

Free Press/ Freedom of Speech and Expression

Madras High Court’s remarks harsh, metaphor inappropriate but can’t be expunged; Supreme Court junks EC’s plea seeking restrain on Media reporting Court proceedings

During the course of the hearing, the Madras High Court had allegedly orally observed that the EC is “the institution that is singularly responsible for the second wave of COVID-19” and that the EC “should be put up for murder charges”.

Read more…

Open courts and freedom of media to report Court Proceedings: Unmissable Supreme Court quotes and the iconic Lokmanya Balgangadhar Tilak’s sedition trial

“Acceptance of a new reality is the surest way of adapting to it. Our public constitutional institutions must find better responses than to complain.”

Read more…

BOWC Cess

Levy of building cess on a contract for supply and delivery of equipment and materials? Impermissible, holds Supreme Court

In the case where Uttar Pradesh Power Transmission Corporation Ltd had levied cess on CG Power and Industrial Solutions Limited based on CAG report only and had withheld dues in respect of other contracts, the bench of UU Lalit and Indira Banerjee*, JJ has termed such levy a forcible extraction of cess.

Read more…

Insolvency and Bankruptcy Code

Nothing wrong with IBC Notification treating personal guarantors differently from other categories of individuals

Adding to the series of verdicts on the Insolvency and Bankruptcy Code, 2016, the bench of L. Negaswara Rao and S. Ravindra Bhat* has upheld the legality of the notification dated 15.11.2019 which notified provisions of Part III of the Code only in respect of personal guarantors to corporate debtors and has held that approval of a resolution plan does not ipso facto discharge a personal guarantor to a corporate debtor of her or his liabilities under the contract of guarantee.

Read more…

COVID-19 STORIES

National Task Force for allocation of oxygen to States: Who are the experts and what will they do? All you need to know

“Estimating projected needs is crucial to ensure that the country remains prepared to meet future eventualities, which will cause a demand for oxygen, medicines, infrastructure, manpower and logistics.”

Read more…

Schools can’t profit from unutilised facilities; Rajasthan Schools to provide 15% deduction of annual fees for academic year 2020-21: Supreme Court

“The school Management supposedly engaged in doing charitable activity of imparting education, is expected to be responsive and alive to that situation and take necessary remedial measures to mitigate the hardship suffered by the students and their parents. It is for the school Management to reschedule payment of school fee in such a way that not even a single student is left out or denied opportunity of pursuing his/her education, so as to effectuate the adage “live and let live”.”

Read more…

Dry Ration/Community kitchen for stranded migrant workers; Common National Database for all organised workers: Supreme Court issues directions

“…for accessing of any benefit percolating from any scheme framed by the Centre or the States for the benefit of unorganized workers or migrant workers, registration of workers is essential, which registration shall facilitate the unorganized workers to assess the scheme and reap the benefit.”

Read more…

Limit arrests, release prisoners on parole: Read Supreme Court directions on containing COVID-19 spread in overcrowded prisons

India has more than four lakh prison inmates. Some of the prisons in India are overburdened and are housing inmates beyond optimal capacity.

Read more…

What is your policy for issuing death certificates in case of COVID-19 deaths? How do you provide compensation? Supreme Court issues notice to Central Government

It was argued before the Court that,

  1. under the revised list of items and norms of assistance from State disaster response fund which is part of the letter dated 08.04.2015, Rs.4,00,000/- as exgratia compensation is required to be made.
  2. there is no uniform policy for issuing the certificate or any official document regarding causes of death to the deceased families due to which there is a difficulty on availing various benefits.

 Read more…

MORE STORIES

No default bail to Gautam Navlakha

The Court held that the house arrest of the appellant was not purported to be under Section 167 and hence, cannot be included within the period of 90 days under Section 167 of CrPC. 

Read more…

After one year of marriage, woman burnt to death over dowry. Supreme Court finds accused guilty; explains the true import of “soon before” under Section 304-IPC

“When the legislature used the words, “soon before” they did not mean “immediately before”. Rather, they left its determination in the hands of the courts.”

Read more…

Narada Scam Case| CBI withdraws appeal from Supreme Court against Calcutta High Court’s order putting TMC leaders under house arrest

After accepting the fact that the Narada Scam Case is being heard by a 5-judge bench of the Calcutta High Court, the Central Bureau of Investigation has withdrawn the case filed before the Supreme Court challenging the May 21 order of the High Court that had put the 4 TMC Leaders under House Arrest.

Read more…

EXPLAINERS

Interpretation of Contracts: Not our duty to delve deep into the intricacies of human mind: Supreme Court

When can High Court entertain a writ petition, notwithstanding the availability of an alternative remedy?

IN OTHER NEWS

Supreme Court’s E-Committee releases Manual for its free “e-Courts Services Mobile App” in 14 languages

Case BriefsSupreme Court

Supreme Court: Taking note of the depleting strength of the members of the NCLT and NCLAT, the 3-judge bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has issued certain directions and has asked the Government to complete the reappointment process “at the earliest and not later than two months”.

The direction came in the petition filed by the National Company Law Tribunal and Appellate Tribunal Bar Association seeking direction to the Central Government

  • to fill up the vacancies of Chairman, NCLAT and President of NCLT without any further delay.
  • to issue letters of appointment to the candidates pursuant to the Selection procedure initiated in 2019 and to fill up the remaining vacancies of Members of NCLT and NCLAT.
  • to extend the term of six Members of the NCLT and NCLAT for a further period of five years as they are completing the tenure by June, 2021.

The Additional Solicitor General Balbir Singh had told the Court that the process for appointment of candidates who have been selected pursuant to the procedure which was initiated in 2019 shall be expedited and orders of appointment shall be issued soon. In respect of the process to be initiated for filling up the existing vacancies, a search cum Selection Committee has to be constituted. The Court, hence, directed that the Selection Process shall be initiated at the earliest.

On the issue of extension of the term of the Members of the NCLT and NCLAT who are completing their tenure in June, 2021 is concerned, Attorney General KK Venugopal submitted that the government has initiated the process for reappointment by requesting the Chief Justice of India to constitute a committee for the purposes of the reappointment of members to the NCLT and NCLAT.

As per Section 413 of the Company’s Act 2013, the President or other members of the Tribunal shall hold office for a period of 5 years and shall be entitled for reappointment for another term of 5 years.

The petitioner, however, requested that the members who are completing their tenure should be permitted to continue till the process of reappointment is completed.

“… there are 39 members at present for a sanctioned strength of 63 and the depletion of the strength of the members will adversely affect the smooth functioning of the Tribunals.”

The Court, hence, directed the Government to complete the process within two months and said,

“As the Government has already initiated the process of reappointment by writing to the Hon’ble Chief Justice, we trust and hope that the reappointment process should be completed expeditiously, as there is no necessity of issuance of any advertisement for participation of other eligible candidates. Reappointment of members can be considered separately without waiting for the process of fresh appointments to commence.”

[National Company Law Tribunal and Appellate Tribunal Bar Association v. Ministry of Corporate Affairs, 2021 SCC OnLine SC 406, order dated 31.05.2021]

For Petitioner(s) Mr. A.S. Chandhiok, Sr. Adv. Mr. Virender Ganda, Sr. Adv. Mr. Ajay Kumar Jain, Adv Mr. Rakesh Kumar, Adv Mr. Vipul Ganda, Adv Mr. Vishal Ganda, Adv Mr. Satyajit A. Desai, Adv. Mrs. Anagha S Desai, AOR Ms. Aastha Trivedi, Adv Ms. Guresha Bhamra, Adv Mr. Tejasvi Chaudhry, Adv Mr. Satya Kam Sharma, Adv.

For Respondent(s) Mr. KK Venugopal, Ld. AG Mr. Balbir Singh, Ld. ASG Mr. R. Balasubramanium, Sr. Adv. Mr. Zoheb Hossain, Adv Ms. Shradha Deshmukh, Adv. Ms. Chinmayee Chandra, Adv. Mr. Shyam Gopal, Adv. Mr. Ankur Talwar, Adv. Ms. Suhasini Sen, Adv. Mr. Gurmeet Singh Makker, AOR

Legal RoundUpWeekly Rewind

The 12th Episode of SCC Online Weekly Rewind featuring Devika Sharma, Senior Legal Editor bringing you the most important and interesting stories from the field of law is out now! Check out the written episode below.

TARUN TEJPAL CASE

22-pointer comprehensive analysis of Tarun Tejpal’s acquittal order

The most highlighted development of the week was the judgment of the Additional Sessions Court at Mapusa, Goa, which acquitted Tarun Tejpal, former Editor-in-Chief of Tehelka, who was accused of committing rape on a journalist. The court gave benefit of doubt to Tejpal, noting crucial lapses in investigation and major contradictions and improvements in testimony of the prosecutirx. The incident is of 2013 which allegedly happened during THiNK Fest, organised by Tehelka in Goa that year. Now, the State of Goa has appealed against this order before the Bombay High Court. We have studied the entire 527-pages judgment of the Sessions Court and prepared a 22-pointer comprehensive analysis.

https://www.scconline.com/blog/post/2021/05/28/rape-accused-tarun-tejpal/

SUPREME COURT

Courts need to be extra careful while dealing with Dowry Death cases; Guidelines issued

Now moving to the Supreme Court, In an important ruling, the Supreme Court has held that Courts need to be extra careful while conducting criminal trials relating to Section 304­B, IPC that deals with Dowry death.

The Court expressed grave concern on the fact that, often, Trial Courts record the statement of an accused under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. The Court said that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness.

The Court hence issued elaborate guidelines on trial of dowry death cases.

https://bit.ly/3fwnpHj

Apprehension of COVID-19 a ground for anticipatory bail: Supreme Court stays Allahabad High Court’s order

In another matter, A vacation bench of the Supreme Court stayed the Allahabad High Court’s order wherein it was held that apprehension of being infected with COVID-19 after coming into contact with authorities was a valid ground for anticipatory bail.

The High Court had granted anticipatory bail to one Prateek Jain “on account of special conditions and on special ground” and had also issued direction on grant of anticipatory bail on such special grounds.

The Supreme Court staying the said order, directed that the Courts shall not consider the said directions while considering applications for anticipatory bail and must decide each case on its merits.

https://www.scconline.com/blog/post/2021/05/25/apprehension-of-covid-19-a-ground-for-anticipatory-bail-supreme-court-stays-allahabad-high-courts-order-heres-all-you-need-to-know-about-the-case/ 

HIGH COURTS

Delhi High Court

Seizure by police of oxygen concentrators and Covid-related equipment sold at high-profit margins. Is it illegal?

In another matter, the Delhi High Court has confirmed that it is legal for the police to seize oxygen concentrators and other Covid-related equipment being sold at high profit margins in contravention of laws, rules and executive orders.

https://www.scconline.com/blog/post/2021/05/27/oxygen-concentrators/

 

Madras High Court

Malicious prosecution: What, how and who, discussed

Down south, The madras High Court has held that to succeed in a suit for malicious prosecution, the acquittal of the plaintiff alone is not sufficient. Rather, the plaintiff is obliged to prove (i) that the prosecution was without any reasonable and probable cause, and (ii) that it was instituted with a malicious intention, and (iii) that he suffered damage.

Apart from this, the Court also discussed, in detail, the duty of civil court in cases relating to malicious prosecution and also the burden of proof.

https://www.scconline.com/blog/post/2021/05/25/malicious-prosecution/

 Gujarat High Court

Compounding of offence under S. 138 NI Act after conviction can be allowed in exceptional circumstances 

In a ruling on Negotiable Instruments Act, the Gujarat High Court compounded an offence under Section 138 of the Negotiable Instruments Act and set aside the conviction and sentence of the accused, while observing at the same time that generally powers under Section 482 CrPC are not to be exercised when a statutory remedy is available under law but considering the fact that the parties have settled the dispute amicably, the compounding of the offence was permitted.

https://www.scconline.com/blog/post/2021/05/26/section-138-ni-act-4/

 Madhya Pradesh High Court

Directions issued to Police, Judicial Magistrates on arrests and bail

On bail jurisprudence, The Madhya Pradesh High Court has issued elaborate directions to Police and Judicial Magistrates in relation to arrests and bail after it noticed that District Judiciary is extremely tight-fisted when it comes to granting bail. 

The Court noticed that applications are being routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses. In such circumstances, huge burden of bail matters has been shifted to the High Court. Hence, the issuance of certain directions was necessary. 

https://www.scconline.com/blog/post/2021/05/28/mp-hc-district-judiciary-is-extremely-tight-fisted-when-it-comes-to-granting-bail-leads-to-burden-on-the-high-court-directions-on-arrest-and-bail-issued-to-police-judicial-magistrates/ 

 Jammu and Kashmir High Court

Bail cannot be granted on the ground of delay unless the matter was pending for 5 years or more

In another bail matter, the Jammu and Kashmir High Court held that bail cannot be granted on grounds of delay unless the matter was pending for 5 years or more.

In the case before the Court, though the applicant had been behind the bars for over 13 years, but the appeal against the order of conviction and sentence dated 23rd July 2020 was filed only in August 2020.

https://www.scconline.com/blog/post/2021/05/28/jk-hc-bail-cannot-be-granted-on-the-ground-of-delay-unless-the-matter-was-pending-for-5-years-or-more/

 Punjab and Haryana High Court

All-men SIT to investigate a rape case: Insensitive and deplorable 

In an important matter, a case where an all-men SIT was deployed to investigate a rape case, the Punjab and Haryana High Court said that it was rather intriguing that no lady police official was involved, which is even otherwise the requirement of law in cases of this kind.

The case pertains to 38-year-old widow giving into the sexual demands of CIA officials, after her 19-year-old son was picked up by them in broad day light while he was recovering from Covid-19 infection at his residence. The woman had also alleged that an FIR, allegedly a fake one, was registered against her son under NDPS Act by planting contraband on him so as to arm twist the petitioner.

Reacting to the allegations, the Court said that the same are so grisly and frightful, one can only hope, that the same are fictitious. 

https://bit.ly/2R7STKD

 LEGISLATION UPDATES 

Union Ministry of Health approves guidelines for ‘Near to Home COVID Vaccination Centres (NHCVC) for elderly & differently-abled citizens 

The Union Ministry of Health has accepted the recommendations by the National Expert Group on Vaccine Administration for Covid-19 on the proposed guidelines for Near to Home COVID Vaccination Centres for Elderly & Differently Abled Citizens.

The Technical Expert Committee’s recommendations are aimed to ensure vaccination of Senior Citizens and Differently Abled population having limited mobility due to their physical condition.

https://www.scconline.com/blog/post/2021/05/27/union-ministry-of-health-approves-guidelines-for-near-to-home-covid-vaccination-centres-nhcvc-for-elderly-differently-abled-citizens/

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified by the Ministry of Electronics and Information Technology in February, 2021. The Rules provided three-month timeline to social media intermediaries in order to comply with the New IT Rules by May 26, 2021.

https://www.scconline.com/blog/post/2021/05/26/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-2/

Hot Off The PressNews

Around 2100 women advocates have written to the Chief Justice of India and other judges of the Supreme Court, drawing their attention towards the constitutional crisis and deplorable condition of the citizens residing in the State of West Bengal due to the post poll violence continuing since 02.05.2021.

Highlighting that the perpetrators of violence have not even spared women and children, the letter states that,

“The police is hand in gloves with the goons and the victims are not in a position to even register their complaints. There is a complete breakdown of the constitutional machinery in the State. Even the media is silent for past few days and not showing the true and current picture of the State of West Bengal.”

2093 women advocates from across the nation, joined the cause in a short spell of about 60 hours. By way of the letter, the advocates prayed before the judges to,

  1. Take cognizance of the matter and constitute a Special Investigation Team to register FIRs and investigate into the deaths and other vengeful attacks as being reported in news;
  2. Direct a nodal officer to be appointed (not belonging to West Bengal Police) to register the complaints of the victims;
  3. Direct court monitored investigation in a time bound manner, trial by specially constituted fast track court wherever charge sheet is filed by the SIT regarding cases emanating from the post poll violence in the State of West Bengal;
  4. Issue Directions that all post poll violence victims/family members may be duly compensated for death /injuries, loss of property etc. by the State of West Bengal;
  5. Director General of Police of the State of West Bengal may kindly be directed to set up an effective complaint mechanism at all levels on priority basis and to file a daily report before the Hon’ble Supreme Court, regarding the complaints received by Police Department from all channels;
  6. Direction may be issued to the Director General of Police of the State of West Bengal to provide full protection to the victims;
  7. Directions may be issued to all Commissions i.e National Human Rights Commission, National Commission for Women, National Commission for protection of Child Rights, Commission of Scheduled Castes and
  8. Scheduled Tribes, National Commission for Backward classes to appoint competent nodal officers to record the statements of victims through virtual mode and contact numbers of those nodal officers be widely circulated

Photo credit: PTI

Know thy Judge

Early life

Born on 20th May, 1959, Justice Ajjikuttira Somaiah Bopanna is respected for ensuring transparency. He was enrolled as an advocate on November 21, 1984 and practised Civil, Constitutional, Company, Service and Labour matters in the High Court as well as the Civil and Labour Courts. He also worked as legal advisor to Central Public Sector Undertakings and worked as Additional Central Government Standing Counsel from 1999 onwards till 2005. Later on, he was appointed as an Additional Judge of the High Court of Karnataka on January 6, 2006 and became a permanent judge on March 1, 2007. On October 29, 2018 Justice A. S. Bopanna was elevated as Chief Justice of Gauhati High Court. He was elevated as a judge of the Supreme court of India on May 24, 2019. He is due to retire on May 19, 2024.[1]

♦Did you know? Justice Bopanna has made a remarkable contribution to prevent pilling up of cases in the Courts. During his transfer from Karnataka HC the then Chief Justice had appreciated Justice A. S. Bopanna’s unparallel contribution to the Bengaluru Mediation Centre[2]

♦Did you know? Justice Bopanna has served as one of the members of Board of governors of Karnataka Arbitration Centre.[3]

Career as an Advocate [1984-2005]

Enrolled as an Advocate on 21-11-1984, Justice Bopanna had practised Civil, Constitutional, Company, Service and Labour matters in the High Court of Karnataka as well as in the Civil and Labour Courts. He had also worked as Legal Advisor to all Central Public Sector Undertakings and worked as Addl. Central Govt. Standing Counsel from 1999 onwards till 2005. [4] Here are some of the notable cases represented by Justice Bopanna:

Bharat Gold Mines Ltd. v. Sundareshan, 2000 SCC OnLine Kar 346

Tata Consultancy Services v. State of Karnataka, 2003 SCC OnLine Kar 559

Ansys Software Pvt. Ltd., In re, 2004 SCC OnLine Kar 562

G. Naravana Rao v. V.R. Nagmani, 1996 SCC OnLine Kar 397

Equipment v. G.M, Bangalore Telephones, 1996 SCC OnLine Kar 374

♦Did you know? Justice Bopanna is the son of the late A.N. Somaiah, a prominent politician belonging to the erstwhile Janata Party, who served as a member of the Karnataka Legislative Council a few decades ago.[5]

Important Judgments at the High Court of Karnataka [2006-2018]

♦Did you know? Justice Bopanna, the first judge from Kodagu (Coorg) in Karnataka to be elevated to the Supreme Court of India, is the ‘Coorg Person of the Year, 2019’.[6]

Rahul Chandra Kone v. Jahanvi, 2017 SCC OnLine Kar 1700

The Single Judge Bench comprising of A.S. Bopanna, J., decided a set of writ petitions filed under Articles 226 and 227 of the Constitution, wherein the petitioner husband; residing abroad, was granted permission to appear in the Court through Skype.

The matter related to a marriage dispute between the petitioner-husband and the respondent-wife. The matter was initially filed before the Family Court by the wife against the husband. The petitioner-husband in the instant petition prayed to quash the order of the Family Court whereby the petitioner was directed to appear in person before the Court in Bangalore. The petitioner submitted that he was residing in the USA and had difficulties in traveling to India and appearing before the Family Court.

Read more…

 Tammanna v. Renuka, 2009 SCC OnLine Kar 123

The 7-Judges Bench comprising of P.D. Dinakaran CJ and S.R. Bannurmath, V. Gopala Gowda, V.G. Sabhahit, K.L. Manjunath, A.S. Bopanna and A.N. Venugopala Gowda, JJ. held that the power of the Single Judge under Section 8 of the Karnataka High Court Act is traceable and subject to the revisional jurisdiction of the High Court under Section 115 CPC. Therefore, since Section 8 of the Karnataka High Court Act remained unamended, the insertion of Section 9(xii) and 10(iv-a) of the Karnataka High Court Act as amended by Amendment Act 12 of 1973 to the Karnataka High Court Act by itself would not render Section 8 redundant in the statute book.

D. Sudhakar v. D.N. Jeevaraju, 2011 SCC OnLine Kar 46

     The Bench of Mohan Shantana Goudar, S. Abdul Nazeer and A.S. Bopanna, JJ. held that the elected members are duty bound to adhere strictly to the democratic norms without making themselves subject to the wrath of the Tenth Schedule. The election promises and pledges held out to the electorate at the time of election have to be maintained. Any deviation of the same would amount to betrayal of the electorate who has reposed confidence in the elected member. The Bench stated,

“We hope and trust that the elected members of the House would realise the avowed object of the Tenth Schedule in order to prevent unholy atmosphere in the House and also in the society.”

Notable Judgments at the High Court of Gauhati [2018-2019]

Union of India v. Bichitra Sarmah, 2019 SCC OnLine Gau 3498

The Division Bench of A.S. Bopanna, C.J. and Arup Kumar Goswami, J. held that when the incident of firing had occurred accidentally and no other motive was alleged in the charge sheet, the disciplinary authority’s decision to ultimately impose the punishment on the basis of the conclusion of the Enquiry Officer that such firing was an attempt to commit suicide, would not be justified.

Assam State Agricultural Marketing Board v. Tinsukia Trading Co. (P) Ltd.,2018 SCC OnLine Gau 1581

The Division Bench comprising of A.S. Bopanna, CJ. and Arup Kumar Goswami, J. interpreted the meaning of ‘Agricultural Produce’ of Assam Agricultural Produce Market Act, 1972.

The appellants were levying a cess on Mustard Oil imported from outside the State of Assam which was contended by the respondents to be unjustified and accordingly they sought for a refund of the amount collected by the respondent as cess.

Read more…

Utpal Das v. Rinki Sarkar, 2019 SCC OnLine Gau 1048

A Bench of A.S. Bopanna, CJ and Sanjay Kumar Medhi, J. dismissed an appeal filed by the appellant-husband against family court’s order granting alimony of Rs 2.5 lakhs to the respondent-wife.

Undisputed facts of the case are that the parties were formerly married to each other. Some marital disputes arose and the husband filed a petition seeking divorce which was granted by the family court. Subsequent to the divorce decree, the wife filed a petition under Section 25 of the Hindu Marriage Act, 1955 seeking permanent alimony of Rs 15 lakhs. Partly allowing the wife’s application, the family court awarded her alimony of Rs 2.5 lakhs. Aggrieved thereby, the husband filed the present appeal.

Read more…

Numaligarh Refinery Ltd. v. State of Assam, 2019 SCC OnLine Gau 1023

The Division Bench of A.S. Bopanna, C.J. and Arup Kumar Goswami, J. held that even if the contention that the processing is to be done at the refinery and only thereafter VAT would be payable is taken note of, when as per the decision of the hon’ble Supreme Court, the same is also incidental to the purchase, irrespective of the fact as to whether the same is included in the invoice or not it would get attracted. The value of the VAT also would, therefore, get included in the import value for the purpose of processing the entry tax as it would fall under “other charges incidentally levied on the purchase of such goods” which is paid or payable.

Union Public Service Commission v. Nityananda Borkakoty, 2019 SCC OnLine Gau 3511

The Division Bench of A.S. Bopanna, C.J. and Sanjay Kumar Medhi, J. held that there is no dispute to the proposition of law that a Selection Committee does not act as a mechanical body and can make its own assessment of the respective merits of the candidates apart from the ACRs. In our view, a Selection Committee has to be given that much of independence and liberty to make its own assessment based on the relevant materials on record and cannot be bound by the remarks in the ACRs only. If such a narrow view is taken, the Selection Committee would be rendered to a mere mechanical body and there would be no necessity of appointing experts in the same which is not the object of holding the selection. However, at the same time, the assessment has to be made on the basis of the relevant materials before the committee and if the committee relies upon any irrelevant materials or extraneous consideration, such selection would not be in accordance with law. Though the fact of not communicating the adverse remark of ‘Unfit’ to the respondent No. 1 might not per se have a bearing in the Selection Committee meeting, the said remark was undoubtedly a relevant factor which had played a role in the minds of the members of the Selection

 Remarkable Judgments as the Judge of Supreme Court

Mechanical Conversion of Complaints

Expeditious Trial of Cases Under Section 138 Of N.I. Act 1881, In Re,  2021 SCC OnLine SC 325

Noticing that the summary trials of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 are being routinely converted to summons trials in a “mechanical manner”, the Constitution bench of SA Bobde, CJ and L. Nageswara Rao, BR Gavai, AS Bopanna and S. Ravindra Bhat, JJ has directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

Read more…

 Deportation of Rohingya Refugees

Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296

“Right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India.”

The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has directed that Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.

Read more…

Tata v. Cyrus Controversy

Tata Consultancy Services Ltd. v. Cyrus Investments Private Ltd., 2021 SCC OnLine SC 272

In a long awaited verdict in the Tata-Mistry Row, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has upheld the removal of Cyrus Mistry as Chairman by the Tata Sons and has also answered all questions in favour of Tata Sons. The Court said that NCLAT has, by reinstating Mistry without any pleading or prayer, “has forced upon the appellant an Executive Chairman, who now is unable to support his own reinstatement.” 

The Court said,

“The relief of reinstatement granted by the Tribunal, was too big a pill even for the complainant companies, and perhaps Cyrus Mistry, to swallow.”

Read more…

Hathras Gang Rape

Satyama Dubey v. Union of India, 2020 SCC OnLine SC 874,

The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has, “in order to allay all apprehensions and only as a confidence building measure”, directed that the security to the victim’s family and the witnesses in the Hathras Gang Rape case shall be provided by the CRPF within a week.

The case pertains to the brutal gang-rape and assault of a 19-year¬old girl, resident of Hathras village in Uttar Pradesh. Though she was shifted to Safdarjung Hospital in Delhi, she breathed her last and she was cremated in the middle of the night without the presence of her family members.

Read more…

Sale of electoral bonds Scheme

 Association for Democratic Reforms v. Union of India, 2021 SCC OnLine SC 266

The 3-judge bench of SA Bobde, CJ and AS Bopanna and V, Ramasubramanian, JJ has refused to interfere with the scheme of sale of electoral bonds by the Political Parties challenged on the ground that it allows the donors of political parties to maintain anonymity which is not healthy for a democracy. The Court said that even though the Scheme provides anonymity, it is intended to ensure that everything happens only through banking channels and that,

“All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”. Therefore, it is not as though the operations under the Scheme are behind iron curtains incapable of being pierced.”

Read more…

ED’s power to freeze bank accounts

OPTO Circuit India Ltd. v. Axis Bank, 2021 SCC OnLine SC 55

The 3-judge bench of SA Bobde, CJ and AS Bopanna* and V. Ramasubramanian, JJ has held that  under the Prevention of Money ­Laundering Act, 2002, though the Directorate of Enforcement is vested with sufficient power to freeze the accounts; such power is circumscribed by a procedure laid down under the statute.

“It certainly is not the requirement that the communication addressed to the Bank itself should contain all the details. But what is necessary is an order in the file recording the belief as provided under Section 17(1) of PMLA before the communication is issued and thereafter the requirement of Section 17(2) of PMLA after the freezing is made is complied.”

Read more…

No sexual assault if no ‘skin to skin’ contact Controversy  

Attorney General for India v. Satish, 2021 SCC OnLine SC 42

The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has stayed the controversial Bombay High Court judgment wherein the High Court had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that the accused had no sexual intent in committing the offence under POCSO Act because there was no direct physical contact, i.e., skin to skin.

The said order came after Attorney General for India K. K. Venugopal brought to the Court’s notice that the Nagpur Bench of Bombay High Court has passed a judgment dated 19.01.2021 is likely to set “a dangerous precedent”.

Read more…

Farm Laws

Rakesh Vaishanv v. Union of India, 2021 SCC OnLine SC 18

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

Read more…

Protection of the Great Indian Bustard

M.K. Ranjitsinh v. Union of India, 2021 SCC OnLine SC 326

The 3-Judge Bench comprising of S. A. Bobde, CJ., A.S. Bopanna and V. Ramasubramanian, JJ., addressed the instant PIL addressing the issue of protection of two species of birds namely the Great Indian Bustard (‘GIB’) and the Lesser Florican, which is on the verge of extinction. The Bench remarked,

“…keeping in view, the sustainable development concept and on striking a balance the protection of the rare species of birds is essential to be made, the effort being to save every bird while at the same time allowing transmission of power in an appropriate manner.”

Read more…

Validity of Pre-disqualification Vote of MLA

Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu, 2020 SCC OnLine SC 1039,

In an interesting case where a Member of the Legislative Assembly cast his vote in an election to the Rajya Sabha in the morning and got convicted in the afternoon thereby becoming disqualified, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has held that the such vote would remain valid. If held otherwise, such situation will create endless confusion and needless chaos.  

Read more…

 Pre-litigation Mediation

Youth Bar Association of India v. Union of India, WP(C) No. 000849 of 2020

In the petition seeking for standard operating procedures for implementation of pre-litigation mediation under Section 12A of Commercial Courts Act, 2015, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has admitted the application for intervention made by Bridge Mediation, a policy think tank based out of New Delhi, seeking the creation of a committee of experts to guide on the ground level issues arising out of the implementation of Section 12A of Commercial Courts Act, 2015.

Read more…

Segmented Offers by Airtel and Vodafone

Telecom Regulatory Authority of India v. Bharti Airtel Ltd., 2020 SCC OnLine SC 910

The 3-judge bench of SA, Bobde, CJ* and AS Bopanna and V. Ramasubramanian, JJ has directed telecom giants Bharti Airtel and Vodafone-Idea to disclose information/details regarding segmented offers to TRAI. It asked TRAI to ensure that such information is kept confidential and is not made available to the competitors or to any other person.

Read more…

Nirbhaya Death Row Convicts 

Pawan Kumar Gupta v. State of NCT of Delhi,  2020 SCC OnLine SC 340

Putting the last nail in the coffin for the Nirbhaya death row convicts who were hanged this morning, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ dismissed the plea file by Pawan Kumar Gupta challenging the rejection of his mercy petition by the President on the ground that his plea of juvenility had not been finally determined and this aspect was not kept in view by the President of India while rejecting his mercy plea.

Read more…

† Editorial Assistant, EBC Publishing Pvt. Ltd. 

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

[2] https://www.newindianexpress.com/cities/bengaluru/2018/oct/27/karnataka-high-court-bids-adieu-to-justice-a-s-bopanna-1890703.html

[3] http://www.arbitrationcentreblr.org/images/INAUGURAL%20ISSUE.pdf

[4] https://karnatakajudiciary.kar.nic.in/bio_data/HCKformer_judges/asbj.htm

[5] http://www.coorgnews.in/general-news/supreme-court-judge-justice-bopanna-is-coorg-person-of-the-year-2019/

[6] http://www.coorgnews.in/general-news/supreme-court-judge-justice-bopanna-is-coorg-person-of-the-year-2019/

Know thy Judge

“Freedom to express and speak is the most important condition for political democracy. Law and policies are not democratic unless they have been made and subjected to democratic process including questioning and criticism.”

– Justice Sanjiv Khanna

Amish Devgan v. Union of India, (2021) 1 SCC 1

Justice Sanjiv Khanna was born on 14th May 1960. He completed his schooling from Delhi’s prestigious Modern School, Barakhamba Road. He graduated from University of Delhi in 1980 and later studied Law from the Campus Law Centre, University of Delhi.

♦Did You Know? Justice Sanjiv Khanna is the nephew of a former Judge of the Supreme Court of India, Justice Hans Raj Khanna, who propounded the Basic Structure Doctrine in 1973 and famously delivered the lone dissenting judgement in the ADM Jabalpur v. Shiv Kant Shukla case, popularly known as the Habeas Corpus case, in 1976. Justice H. R. Khanna was superseded to the office of the Chief Justice of India by M. H. Beg.

 From an Advocate to a Supreme Court Judge

Justice Sanjiv Khanna enrolled as an Advocate with the Bar Council of Delhi in 1983. He began his practice in the District Courts at Tis Hazari in Delhi and soon shifted his practiced to Delhi High Court.

His area of practice was wide and varied from writ petitions in public law matters, direct tax appeals, income tax prosecutions, arbitration cases, commercial suits, environment and pollution laws matters, besides medical negligence cases before consumer forums and company law cases before the Company Law Board.

He had represented the Government of Delhi as an additional Public Prosecutor in various criminal cases. He was a senior standing counsel for the Income Tax Department for about seven years. He was appointed as a standing counsel (Civil) for the Government of Delhi in Delhi High Court in 2004.

♦Did You Know? Justice Sanjiv Khanna never headed any High Court as Chief Justice and was a judge of the Delhi High Court prior to his elevation to SC.

On 24th June, 2005 he was elevated as an additional Judge of the Delhi High Court and became a permanent Judge of the Delhi High Court on 20th February, 2006.[1]

♦Did You Know? Justice Khanna was directly elevated from his parent High Court – the Delhi High Court, which is a rare occurrence. Only six judges have been elevated directly from their parent high court since 1997 – Justices S Abdul Nazeer, Ranjana Prakash Desai, Lokeshwar Singh Panta, G P Mathur, Ruma Pal and S S Quadri.[2]

Justice Khanna was elevated as a Judge of the Supreme Court of India on 18th January, 2019.

♦Did You Know? Going by seniority, Justice Sanjiv Khanna, 61, is in line to become Chief Justice of India (CJI) in November 2024 for a term of seven months.[3]

Notable Judgments at Supreme Court

♦Did You Know? It was a rare coincidence for Justice Sanjiv Khanna to begin his first day as a judge in Supreme Court sitting in the same courtroom from which his uncle, Late Justice H. R. Khanna, last retired.[4]

Amish Devgan v. Union of India, (2021) 1 SCC 1

“Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21 as if one claims to right to speech, the others have the right to listen or decline to listen.”

A Division bench comprising of AM Khanwilkar and Sanjiv Khanna,* JJ has refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation.

Read More…

The Court opined that thetrue test of a valid FIR is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Criminal Code to investigate.

“…the FIR registered first in point of time, should be treated as the main FIR and others as statements under Section 162 of the Criminal Code. However, in exceptional cases and for good reasons, it will be open to the High Court or this Court, as the case may be, to treat the subsequently registered FIR as the principal FIR. However, this should not cause any prejudice, inconvenience or harassment to either the victims, witnesses or the person who is accused.”

Read More…

The Court also made an attempt to define “hate speech” and explain what will invite penal action.

“Dissent and criticism of the elected government’s policy, when puissant, deceptive or even false would be ethically wrong, but would not invite penal action.”

Read More…

Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7

A 3-judge bench comprising of A. M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna**, JJ, by a 2:1 verdict, held that there is no infirmity in the grant of “no objection” by the Central Vista Committee (CVC) and “approval” by the Delhi Urban Art Commission (DUAC) and “prior approval” by the Heritage Conservation Committee (HCC) to the Central Vista Project and given a go ahead to the Central Vista Project.

“The project does not involve any conversion into private ownership and has no element whatsoever of permitting commercial use of vital public resources. The proposed project is in line with the standards of public trust.”

Justice Sanjiv Khanna dissented with the opinion expressed by A.M. Khanwilkar, J. on the aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee and the order passed by the Expert Appraisal Committee.

According to Justice Khanna the core issue in the present case is whether or not the authorities have performed their duty to consult the public, followed the prescribed procedure and the authority competent acted to modify or amend in terms of the Development Act and the Development Rules.

Justice Khanna opined that “…mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance, but rather an exercise violating the express as well as implied stipulations, that is, necessity and requirement to make adequate and intelligible disclosure.”

Read More…

Rapid MetroRail Gurgaon Ltd. v. Haryana Mass Rapid Transport Corporation Ltd., 2021 SCC OnLine SC 269

A 3-judge bench of Dr. DY Chandrachud*, MR Shah and Sanjiv Khanna, JJ has directed Haryana government to deposit Rs. 1,925 crore within three months into an escrow account while hearing a dispute between the state’s urban development authority, HSVP, and infrastructure company IL&FS on the Metro corridor in Gurugram.

Read More…

♦Did You Know? Justice Sanjiv Khanna recused himself from hearing Sajjan Kumar’s appeal in 1984 anti-Sikh riots case and he is the one who had dismissed Sajjan Kumar’s bail in the Delhi High Court in 2015.[5]

Laxmi Singh v. Rekha Singh, (2020) 6 SCC 812

“The principle of secrecy of ballots is an important postulate of constitutional democracy whose aim is the achievement of this goal.”

A 3-judge bench of N V Ramana, Sanjiv Khanna* and Krishna Murari, JJ held that the applicable statutory rules providing for voting on no-confidence motion by secret ballot have binding effect. Hence, re-voting or fresh voting, directed on the no-confidence vote in question, in the facts and circumstances of the case, as the same had not been done by secret ballot. Such re-voting, held, must be by way of secret ballot in accordance with the 1966 Rules.

The Court relied on the judgement in the case of Kuldip Nayar v. Union of India, (2006) 7 SCC 1 and S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, 1980 Supp SCC 53, observed that “The primary principle and test to be applied by the courts is purity of election, that is, free and fair election. Secrecy of voting is an adjunct to the principle of purity of election.”

“Secrecy is not an absolute principle enshrined in law, but a requirement to subserve the larger public interest of purity of election. Secrecy cannot stand aloof, in isolation or in confrontation to the foundation of free and fair elections.”

Vidya Drolia v. Durga Trading Corporation, 2020 SCC OnLine SC 1018

A 3-judge bench of  comprising of N V Ramana***, Sanjiv Khanna* and Krishna Murari, JJ overruled the ratio in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 wherein it was held that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy.

“Landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However, landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration.”

Read More…

Franklin Templeton Trustee Services Private Limited v. Amruta Garg, 2021 SCC OnLine SC 88

In the case relating to winding up of six schemes of the Franklin Templeton Mutual Fund, a division bench of SA Nazeer and Sanjiv Khanna*, JJ has, rejecting the objections to poll results, upheld the validity of e-voting process for winding up of mutual fund schemes of Franklin Templeton, and opined that the disbursal of funds to unit holders will continue.

The Court held that for the purpose of clause (c) to Regulation 18(15) of the Mutual Fund Regulations, consent of the unit holders would mean consent by majority of the unit holders who have participated in the poll, and not consent of majority of all the unit holders of the scheme.

Read more…

Vikash Kumar v. Union Public Service Commission, 2021 SCC OnLine SC 84

“In their blooming and blossoming, we all bloom and blossom.”

In the present case, a citizen suffering from a writer’s cramp knocked on the doors of the Apex Court as he was denied a scribe in the civil services examination and the 3-judge bench comprising of D Y Chandrachud*, Indira Banerjee and Sanjiv Khanna, JJ held that writer’s cramp can be considered as a disability under Entry IV of the Schedule to the Rights of Persons with Disabilities Act, 2016 (RPwD Act 2016).

“To confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognized entitlements. To do so would be contrary to the plain terms as well as the object of the statute.”

The Court opined that the heart of the present case lies in the principle of reasonable accommodation. The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled.

“The principle of reasonable accommodation postulates that the conditions which exclude the disabled from full and effective participation as equal members of society have to give way to an accommodative society which accepts difference, respects their needs and facilitates the creation of an environment in which the societal barriers to disability are progressively answered.”

The Court directed the Centre to frame guidelines in three months to protect the rights of disabled students and enable them to write all competitive examinations with help of a scribe in tune with the Rights of Persons with Disabilities Act 2016.

Read More…

Satya Deo v. State of Uttar Pradesh, 2020 SCC OnLine SC 809

While upholding conviction of the accused, the Division bench of SA Nazeer and Sanjiv Khanna*, JJ, set aside the sentence of life imprisonment and held that the 2000 Act would be applicable in a pending proceeding instituted under the 1986 Act in any court or authority, if the person had not completed eighteen years of age as on 1st April 2001, when the 2000 Act came into force.

The Court held that “the 2000 Act would have prospective effect and not retrospective effect except in cases where the person had not completed the age of eighteen years on the date of commencement of the 2000 Act. Other pending cases would be governed by the provisions of the 1986 Act.”

Read More…

Central Public Information Officer v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459

“Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”

The 5-judge constitution Bench of Ranjan Gogoi, CJ and NV Ramana***, Dr. DY Chandrachud***, Deepak Gupta and Sanjiv Khanna,* JJ upholding the 2010 landmark judgment of the Delhi high court bringing the Chief Justice of India’s office under Right to Information, held that the office of the Chief Justice of India comes under the definition of ‘public authority’ in the Right to Information Act.

Justice Chandrachud is his separate but concurring opinion opined that “To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability.”

Read More… 

Roger Mathew v. South India Bank Ltd., 2019 SCC OnLine SC 1456

A 5-judge Constitution Bench of Ranjan Gogoi*, CJ and NV Ramana, Dr. DY Chandrachud***, Deepak Gupta*** and Sanjiv Khanna, JJ., assessing the constitutional validity of Section 184 of the Finance Act, 2017 and held that Section 184 is valid and does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of this Court.

The Court struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017, made under Section 184 of the Finance Act, 2017, for being contrary to the parent enactment and the principles envisaged in the Constitution i.e. being destructive of judicial independence.

The Court also dealt with the difference with money bill and finance bill and held that the Money bill can be introduced only in Lok Sabha and the role of the Rajya Sabha is merely consultative.

Read More …

Harbhajan Singh vs. State of Punjab, 2019 SCC OnLine SC 1546

A 3-judge bench comprising of NV Ramana, Sanjiv Khanna* and Krishna Murar, JJ upheld the constitutional validity of the Punjab Religious Premises and Land (Eviction and Rent Recovery) Act, 1997.

The Court held that the separate classification of properties of religious institutions for rent legislation will pass the test under Article 14 of the Constitution of India.

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Manoharan v. State, 2019 SCC OnLine SC 951

“There can be no doubt that today’s judgment is in keeping with the legislature’s realisation that such crimes are on the rise and must be dealt with severely.”

Considering the serious nature of the crime involving rape and murder of 2 children, a 3-judge bench comprising of RF Nariman,* Surya Kant and Sanjiv Khanna,** JJ., with 2:1 verdict upheld the death sentence confirmed by the High Court.

Justice Khanna, while dissenting only on the issue of upholding death sentence confirmed by the High Court, held that the present case does not fall under the category of ‘rarest of rare’ case but would fall within the special category of cases, where the appellant should be directed to suffer sentence for life.

Read More…

Manoharan v. State, (2020) 5 SCC 782

Dismissing the review petition filed by Appellant to review it’s 2:1 verdict awarding death sentence, a 3-judge bench of RF Nariman, Surya Kant* and Sanjiv Khanna,* JJ., held that the dissent by one Judge is not a bar for upholding death penalty.

The Court held that in the present case the appellant misused societal trust and the crime was not a crime a passion but a well crafted crime. The Crime committed by the Appellant were grave and shock the conscience of this Court and society that we cannot commute the sentence and without any doubt it will fall under rarest of the rare category.

 “It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist.”

Agreeing with the Justice Surya Kant on the dismissal of review petition and upholding of the conviction of the accused, Justice Khanna held that there is no good ground and reasons to review his observations and findings in the minority judgment.

Read More…

Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly, 2019 SCC OnLine SC 1454

A 3-judge bench comprising Justices N.V. Ramana*, Sanjiv Khanna and Krishna Murari upheld the then Karnataka Assembly Speaker K R Ramesh Kumar’s decision disqualifying 17 MLAs, but struck down the period of disqualification.

The Court opined that the Speaker is not empowered to disqualify any member till the end of the term.

The Court also discussed about the growing trend of Speakers acting against constitutional mandate and observed that

“There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty or lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked.”

Read More…

Pioneer Urban Land and Infrastructure Ltd. v. Union of India, 2019 SCC OnLine SC 1005

A 3-judge bench consisting of RF Nariman*, Sanjiv Khanna and Surya Kant, JJ has held the Amendment Act to Insolvency and Bankruptcy Code, 2016 made pursuant to a report prepared by the Insolvency Law Committee dated 26th March, 2018 does not infringe Articles 14, 19(1)(g) read with Article 19(6), or 300-A of the Constitution of India.

Read More…

Ritesh Sinha v. State of Uttar Pradesh, 2019 SCC OnLine SC 956

“The law on the point should emanate from the Legislature and not from the Court”

A 3-judge bench of Ranjan Gogoi,* CJ and Deepak Gupta and Sanjiv Khanna, JJ, has held that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime.

Read More…

♦Did You Know?A five-member collegium headed by Chief Justice of India Ranjan Gogoi recommended the elevation of Justice Maheshwari and Justice Khanna to the top court after reviewing its earlier deliberations held on December 12, 2018, in which Delhi High Court Chief Justice Rajendra Menon and Rajasthan High Court Chief Justice Pradeep Nandrajog were said to have been considered for elevation.[6]

Notable Judgments at High Court

♦Did You Know? 32 judges were being superseded by the elevation of Justice Khanna.[7]

Kailash Gahlot v. Election Commission of India, 2018 SCC OnLine Del 8125

The Division bench of Sanjiv Khanna* and Chander Shekhar, JJ while deciding the validity of disqualification of 20 AAP MLAs for holding offices of profit as ‘parliamentary secretaries’ in the Delhi government by President Ram Nath Kovind, set aside the disqualification on the ground of failing to comply with the principles of natural justice by the Election Commission as the MLAs were not given an oral hearing or an opportunity of being heard.

ATV Projects (India) Ltd. v. Union of India, 2017 SCC OnLine Del 12136

The Division Bench of Sanjiv Khanna and Prathiba M. Singh*, JJ., while upholdimg the validity of Section 4(b) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003, observed that

“…once a law is repealed and a new legislation has been put in its place, it is not open for anyone to contend that it should be continued to be governed by the old enactment, except where actions under the existing laws had concluded. The applicability of the repealed legislation is only to the extent as provided in the Savings clause and nothing more.”

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Wing Commander Arvind Kumar v. Directorate General, BSF, 2017 SCC OnLine Del 10880

A Division Bench comprising of Sanjiv Khanna* and Navin Chawla, JJ, ruled in favour of an Air Force officer on deputation to the BSF Air Wing, enforcing the rule laid down in Group Captain Joe Emmanuel Stephen v. Directorate General of BSF, 2013 SCC OnLine Del 2472, that there cannot be two different pay scales, one applicable to deputationists and the other to the officer of the parent cadre/department when both are performing identical and same duties.

Read More…

Sterling Agro Industries Ltd. v. Union of India, 2011 SCC OnLine Del 3162

A 5-judge bench of Dipak Misra*, CJ and Vikramajit Sen, A.K. Sikri, Sanjiv Khanna and Manmohan, JJ., while deciding a petition challenging the validity of an order dated 9th July, 2010 passed by the Ministry of Finance dismissing its revision application, dealt with a very important question i.e. whether the High Court of Delhi can issue a writ against a person or authority not located within its territories, simply because the quasi judicial tribunal which passed the impugned order is located within the territorial jurisdiction of the Delhi High Court.

While entertaining a writ petition, the Court held that an order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated but, the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

“The principle of forum conveniens in its ambit and sweep encapsulates the concept that a cause of action arising within the jurisdiction of the Court would not itself constitute to be the determining factor compelling the Court to entertain the matter. While exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the Court cannot be totally oblivious of the concept of forum conveniens.”

Nand Kishore Garg v. Govt. (NCT of Delhi), 2011 SCC OnLine Del 2366

The division bench of  Dipak Misra*, CJ and Sanjiv Khanna, J., while disposing of a petition that demanded implementation of the tariff order passed by the Delhi Electricity Regulatory Commission (DERC), directed the Commission to proceed afresh by following the due procedure and do the needful.

The court observed that, “The commission under the 2003 Act is required to deal with the aspect of tariff determination with intellectual integrity, transparent functionalism and normative objectivity and not act in a manner by which its functioning invite doubt with regard to its credibility.”

The Court reprimanded the Delhi government for “unjustifiably intruding and encroaching on the functions of the commission by interdicting”.

Rajinder Jaina v. Central Information Commission, 2009 SCC OnLine Del 3511

Sanjiv Khanna*, J., while deciding the writ petition challenging the disclosure on grounds of infringement of the right to privacy, held that the information was already existed in the public domain therefore no claims as to privacy could be made.

The court applied the ratio laid down in Raj Gopal v. State of Andhra Pradesh, (1994) 6 SCC 632, whereby the Court held that once a matter becomes an issue of public record, no privacy can be claimed for it.

Union of India v. Central Information Commission, 2009 SCC OnLine Del 3876

While dealing with yet another case related to refusal of the Central Information Commission to divulge information under the Right to Information Act, 2005 and involving an interpretation of S. 8(1)(i), Sanjiv Khanna*, J., held that the purpose of the proviso is only to clarify that while deciding the question of larger public interest i.e., the question of balance between ‘public interest in form of right to privacy’ and ‘public interest in access to information’ is to be balanced.

“The proviso is a guiding factor and not a substantive provision which overrides Section 8(1)(j) of the RTI Act. It does not undo or rewrite Section 8(1)(j) of the RTI Act and does not itself create any new right.”

†Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

** Judge who has penned the dissenting opinion

*** Judge who has penned a concurring opinion.

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

[2] https://www.newindianexpress.com/nation/2019/jan/16/ignoring-elevation-row-centre-appoints-justice-sanjiv-khanna-of-delhi-hc-as-sc-judge-1925928.html

[3] https://www.hindustantimes.com/india-news/cji-succession-line-key-to-justice-sanjiv-khanna-s-elevation/story-5tOCtBTNu7iWJFVlMMIEmM.html

[4] https://www.dnaindia.com/india/report-justice-sanjiv-khanna-sits-in-his-uncle-s-court-portrait-in-backdrop-2709576

[5] https://www.scconline.com/blog/post/2019/02/26/justice-sanjiv-khanna-recuses-himself-from-hearing-sajjan-kumars-appeal-in-1984-anti-sikh-riots-case/

[6] https://www.tribuneindia.com/news/archive/nation/news-detail-715379

[7] https://www.thestatesman.com/india/controversy-elevation-two-hc-judges-supreme-court-1502725097.html

Supreme Court Roundups

TOP STORIES

Constitution Bench

No more “mechanical” conversion of complaints under Section 138 NI Act from summary to summons trial; Magistrates “must” record reasons: Supreme Court

“Such conversion of complaints under Section 138 from summary trial to summons trial has been contributing to the delay in disposal of the cases.”

Read more…

COVID-19 Surge

As nation gasps for breath, Supreme Court calls for “even handed” distribution of COVID essentials like oxygen, Remdesivir; asks Centre to submit a “national plan”

“The High Courts have passed certain orders which may have the effect of accelerating and prioritising the services to a certain set of people and slowing down the availability of these resources to certain other groups whether the groups are local, regional or otherwise.”

Read more…

 

Distribution of COVID essentials like oxygen, Remdesivir| “Not substituting the jurisdiction of the High Courts”; Supreme Court explains why it intervened

“The role of this Court in the present situation is complementary to the role and functions being performed by the High Courts. Neither is intended to substitute the other.”

Read more…

 

Allahabad HC’s “lockdown” judgment stayed for now but UP Govt to “immediately” report to HC on steps taken and future plan: Supreme Court

“Until further orders, there shall be an ad interim stay of the impugned order passed by the High Court.”

Read more…

Vacancies in High Courts and Pendency of Cases

Ad-hoc judges to be appointed to deal with unprecedented pendency of cases in High Courts. Supreme Court issues guidelines and “trigger points” for activation of dormant Article 224A

“Article 224 A should not be made a dead letter, more so when the need is so pressing.”

Read more…

 

With 220 vacancies, “the High Courts are in a crisis situation”; Here’s what the Supreme Court advised to facilitate timely appointments

“The High Courts are in a crisis situation. There are almost 40% vacancies in the High Courts, with many of the larger High Courts working under 50% of their sanctioned strength.”

Read more…

 

Deficiencies in Criminal Trials and pendency of cases| Supreme Court directs all High Courts to adopt the Draft Rules of Criminal Practice, 2021

After noticing common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes, the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and S. Ravindra Bhatt, JJ has directed all High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months.

Read more…

A blind Scheduled Caste woman raped! Supreme Court explains intersectional oppression and how it needs to be addressed

“The experience of rape induces trauma and horror for any woman regardless of her social position in the society. But the experiences of assault are different in the case of a woman who belongs to a Scheduled Caste community and has a disability because the assault is a result of the interlocking of different relationships of power at play.”

Read more…

 

Balance sheet entries can amount to an acknowledgement of liability under Section 18 of the Limitation Act, 1963: Supreme Court

“… it would depend on the facts of each case as to whether an entry made in a balance sheet qua any particular creditor is unequivocal or has been entered into with caveats, which then has to be examined on a case by case basis to establish whether an acknowledgement of liability has, in fact, been made, thereby extending limitation under Section 18 of the Limitation Act.”

Read more…

 

Any creditor including Central/State Government or any local authority bound by Resolution Plan approved by adjudicating authority under Section 31(1) IBC: Supreme Court

“On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished.”

Read more…

 

No blood or breath analyser test proving drunk driving? Insurer may still establish a case for exclusion from liability: Supreme Court

“Merely because there is no test performed, the Insurer would not be deprived of its right to establish a case which is well within its rights under the contract.”

Read more…

 

“Complex” questions involving novation of contract can’t be decided by Court under Section 11 of the Arbitration and Conciliation Act: Supreme Court

“Detailed arguments on whether an agreement which contains an arbitration clause has or has not been novated cannot possibly be decided in exercise of a limited prima facie review as to whether an arbitration agreement exists between the parties.”

Read more…

 

Can’t treat unequals equally; No automatic vacation of stay under Section 254(2A) Proviso 3 of the Income Tax Act, 1961 if the assessee is not responsible for the delay: Supreme Court

“Unequals have been treated equally so far as assessees who are responsible for delaying appellate proceedings and those who are not so responsible, resulting in a violation of Article 14 of the Constitution of India.”

Read more…

MORE STORIES

Rohingya Refugees not to be deported unless the procedure prescribed for such deportation is followed: Supreme Court

“Right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India.”

Read more…

 

The Rapid MetroRail controversy; High Court’s “consensual order” and Supreme Court’s order directing HSVP to deposit 80% of debt due in Escrow Account

Non-interference in the matter would have inevitably led to the disruption of rapid metro lines for Gurgaon leading to disastrous consequences for the general public.

Read more…

 

Husband & Sister-in-law walk free after deceased’s dying declaration fails to “inspire confidence” in a 30 year old case; Supreme Court explains the yardstick for admissibility of a dying declaration

The bench of Navin Sinha and Krishan Murari, JJ has held that there cannot be any rigid standard or yardstick for acceptance or rejection of a dying declaration and whether or not it will be admissible in evidence will depend upon the fact of each case.

Read more…

 

“We are afraid that we cannot do anything”; Read why Supreme Court refused to interfere with the dismantling of INS Viraat, the oldest serving warship in the World

“While appreciating the sentiments of the petitioners, we are afraid that we cannot do anything at this stage”

Read more…

 

Enquiry by retired Supreme Court judge into Justice V. Eswaraiah Phone Call controversy uncalled for: Supreme Court

“High Court ought not to have embarked on any other enquiry in the matter except to the maintainability of the PIL.”

Read more…

 

“Consent of parties cannot obviate the duty of the High Court to indicate its reasons”; Supreme Court explains the law on Bail

“Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused…it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”

Read more…

 

Judicial review or judicial restraint? Supreme Court explains where the virtue itself turns into vice

The Division Bench comprising of Rohinton Fali Nariman* and B.R. Gavai, JJ., addressed the issue of overstepping of review jurisdiction by the High Courts in policy matters. The Bench expressed,

“Judicial review in these matters is equivalent to judicial restraint in these matters…the writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority.”

Read more…

 

Gangster previously prosecuted in 15 cases gets bail in a murder case! Supreme Court sets aside Allahabad High Court order

“There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.”

Read more…

 

Murderer kills one or two persons but persons dealing with narcotic drugs inflict death blow to a number of innocent youngsters: Supreme Court

“While striking balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always be tilt in favour of the suitable higher punishment.”

Read more…

 

Can there be presumption of Hindu joint family property if a business activity carried out by Karta in a tenanted premise? Supreme Court answers

“Even if a male member had taken premises on rent, he is tenant in his individual capacity and not as Karta of Hindu Undivided Family in the absence of any evidence that Karta was doing the business for and on behalf of Joint Hindu Family.”

 Read more…

 

“Mini Trial not permissible at the stage of framing of charge”; Supreme Court explains the yardsticks of revisional jurisdiction of High Courts

The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., recently held in an interesting case that evaluation of evidence on merits is not permissible at the stage of considering the application for discharge and the same is beyond the scope of revisional jurisdiction of the High Courts. The Bench explained,

“At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible.”

Read more…

 

Protection of heaviest flying bird, the Great Indian Bustard: SC emphasizes on need to adopt ecocentric approach; issues directions

“…keeping in view, the sustainable development concept and on striking a balance the protection of the rare species of birds is essential to be made, the effort being to save every bird while at the same time allowing transmission of power in an appropriate manner.”

Read more…

EXPLAINERS

Rule of alternate remedy and maintainability of writ petitions under Article 226 of the Constitution

“An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;.”

Read more…

 

What happens to a petition filed under wrong nomenclature?

The nomenclature under which the petition is filed is not quite relevant and it does not debar the Court from exercising its jurisdiction which otherwise it possesses.

Read more…

 

Whether punishment justified where the authority imposing punishment and approving it, is the same person?

“In terms of the specific statutory regime referable to Section 122-A of the 1965 Act, Rule 15, would be the governing principle rather than Regulation 87 framed in exercise of regulation making power referable to the general dispensation under Sections 121 and 122 of the 1965 Act. Rule 15 does not contemplate that the Chairman of the Committee is required to have any prior concurrence of any authority.”

Read more…

 

Whether pre-FIR enquiry is permissible against public servant in corruption matters? What is the scope and ambit of such an enquiry? Supreme Court explains

“…(If) an enquiry is held and/or conducted after following the procedure as per Maharashtra State Anti-corruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre-registration of FIR stage.”

Read more…

IN OTHER NEWS

Justice NV Ramana sworn in as the 48th Chief Justice of India

Chief Justice SA Bobde retires: A look at his legacy and justice in the time of COVID-19

COVID-19 surge| Supreme Court’s Summer Vacation preponed

COVID-19 surge| Supreme Court to hear only urgent matters from April 22, 2021. Here’s the list of matters that can be treated as “urgent”

With sudden rise in COVID-19 cases, Supreme Court issues additional guidelines for people entering the Court premises

IN MEMORIAM

Sitting Supreme Court judge Justice MM Shantanagoudar passes away

Also read: The Judicial Legacy of Justice MM Shantanagoudar

Former Supreme Court judge Justice MK Mukherjee passes away at 87. Here are his 5 notable judgments

COVID 19Hot Off The PressNews

Considering the alarming surge in the COVID-19 cases in the country, the Supreme Court has preponed it’s Summer Vacation.  As per the new schedule, this year’s summer vacation will start from May 10 and will continue till June 28, 2021.

As per the original Schedule, the Court was to go on summer break from May 14.

Read the circular here.

Legal RoundUpWeekly Rewind

7th Episode of SCC Online Weekly Rewind featuring Bhumika Indulia, Associate Editor bringing you the most important and interesting stories from the field of law is out now! Check out the written episode below.

Supreme Court 

♦ Chief Justice SA Bobde retires; Justice NV Ramana takes oath as the 48th Chief Justice of India

Faced with the unprecedented situation of COVID-19 pandemic forcing the Courts to function virtually, Justice SA Bobde retired on April 23rd after a stint of 17 months as the Chief Justice of India and a total of 8 years as a Supreme Court Judge.  

ON April 24th, Justice NV Ramana took oath as the 48th Chief Justice of India.  

Chief Justice SA Bobde retires: A look at his legacy and justice in the time of COVID-19: https://bit.ly/3ve0DsR​

♦ 3 Important rulings on pendency of cases and vacancies in High Courts

Right before his retirement, CJI Bobde, aling with Justice L. Nageswara Rao and Justice S. Ravindra Bhat, gave 3 important rulings to deal with the pendency of cases and vacancies in the High Courts. 

  1. All High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials. This will help in removing the common deficiencies in criminal trials thereby leading to faster disposal of cases. 
  2. Taking note of the existing 220 vacancies in the High Court, the Supreme Court has stressed upon the importance of the Chief Justices of the High Courts making recommendations in time. 
  3. General guidelines for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts, which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent. In the extensive guidelines, the Court has also laid down 5 “trigger points” for activation of dormant Article 224A. 

♦ Allahabad High Court’s “lockdown” judgment stayed https://bit.ly/3aDX3QL​

High Courts

♦  Bom HC | “Elderly citizens being asked to choose between devil and the deep sea”: HC not impressed with Centre’s reply on petition for door-to-door vaccination for elderly and disabled citizens

Bombay High Court while addressing a concern regarding the door-to-door vaccination for elderly and disabled citizens said that it is for the government and its appropriate department to explore ways and means to prevent contamination as well as exposure of vaccine beyond recommended temperature so that vaccination programme can be taken to doorsteps of elderly and disabled citizens. 

https://bit.ly/3erNlSR​

2. Bom HC | “Serum Institute coined the term ‘Covishield’, took substantial steps towards development and manufacture”: Court finds no merit in Cutis Biotech’s passing off action

In an appeal with respect to passing of an injunction against the use of name COVISHIELD by Serum Institute of India for its COVID-19 Vaccine, Bombay High Court observed that 

A temporary injunction directing Serum Institute to discontinue the use of mark ‘Covishield’ for its vaccine will cause confusion and disruption in the Vaccine administration programme of the State

https://bit.ly/3tQ9D7c​

♦ COVID-19 Surge | Bom HC | Reports of RT-PCR Tests to be made available on Whatsapp; COVID positive patients reports to be uploaded within 24 hours on ICMR portal

While addressing the issue with regard to difficulties being faced by the patients in obtaining RT-PCR reports, Bombay High Court directed the laboratories that the said reports be made available on WhatsApp and to be uploaded on ICMR portal within 24 hours for the patients testing positive, whereas for the patients who test negative to be uploaded on the portal within 7 days. 

https://bit.ly/3nqjGgP​

♦ Del HC | “Wastage of a single dose of vaccine is a criminal waste”

While addressing the concerns arising out of the COVID-19 pandemic, High Court noted that 44 lakhs vaccines were wasted out of the 10 crores vaccines allocated to different State due to the restriction of age or category of people who were entitled to take the vaccine and hence remarked that: 

Wastage of even a single dose of vaccine, when the same is proving to be life–saving, would be a criminal waste. 

https://bit.ly/2Qy6V7M

 

​

♦ Ori HC | Suo Moto matter taken regarding death of sanitation workers in two incidents; Directions laid down regarding abolition of manual scavenging

Division Bench of Orissa High Court directed compensation to the grieving families of the sanitation workers who were engaged in manually cleaning a sewer line and died of asphyxiation, made noteworthy observations regarding the sorry plight of manual scavengers 

https://bit.ly/3tRnquj

 

 

​Legislation Updates

♦ Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2021

https://bit.ly/32NQOWe

 

 

​♦ Union Health Ministry issues Regulatory Pathways for foreign produced COVID-19 Vaccines

https://bit.ly/3tPqbMD​

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Rohinton Fali Nariman* and B.R. Gavai, JJ., addressed the issue of overstepping of review jurisdiction by the High Courts in policy matters. The Bench expressed,

“Judicial review in these matters is equivalent to judicial restraint in these matters…the writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority.”

Background

A Tender Call Notice (TCN) was issued by SCB Medical College and Hospital, Cuttack, inviting sealed tenders in a two-bid system (technical and financial) from eligible registered diet preparation and catering firms/suppliers etc. having a valid labour licence and a food licence with a minimum of three years of relevant experience in the field of preparation and distribution of therapeutic and non-therapeutic diet.

Pursuant to the aforesaid TCN, four bids were received by the Tender Committee. Vide the Technical Committee meeting dated 17-02-2020, Respondent 1 and Respondent were held to be disqualified inter alia for the reason that they had not submitted a valid labour licence, i.e., a contract labour licence from the competent authority, as per the TCN requirement and the Appellant and Respondent 5 were shortlisted for opening of financial bids. Consequently, the Tender Committee opened the financial bids, and found the Appellant to be the lowest bidder, quoting an average cost of Rs.82/- per patient per day. Meanwhile, Respondent 1 filed a writ petition before the High Court, praying that the Tender Committee proceedings be set aside and that Respondent 1 be awarded the tender.

Findings of the High Court

The High Court opined that the eligibility criteria were candid and clear requiring valid license of Labour Department. The said stipulation never mandated the license to be issued under the Contract Labour (Regulation and Abolition) Act, 1970. In the wake of the purpose, which was to supply diet, therapeutic and non- therapeutic to the patients to the hospital, there was no need for labour license under the Contract Labour Act. Hence, the bid of the Petitioner was found to be rejected illegally and contrary to the conditions of the TCN.

Whether a registration certificate under Shops and Commercial Establishments Act, 1956  can be the equivalent to labour licence issued under the Contract Labour Act, 1970?

The respondent argued that the TCN did not require that establishments/firms etc. that applied have 20 or more workmen, hence, it was obvious that it was not this Contract Labour Act that was the subject matter for eligibility but it was the Orissa Act, the registration certificate under which was produced to the satisfaction of the High Court by Respondent 1.

The Court observed that the requirement of Contract Labour Act that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso, making it clear that this was not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authority’s interpretation of its own TCN which could not be so second-guessed unless it was arbitrary, perverse or mala fide. The Bench stated that,

The registration of an establishment under the Orissa Act was to categorise the establishment as a shop, commercial establishment, hotel, etc. and not for the purpose of issuing a labour licence which, in the context of the present TCN, could only be a labour licence under the Contract Labour Act.

Judicial Review or Judicial Restraint?

The Court had repeatedly held that judicial review in these matters is equivalent to judicial restraint in these matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority. Referring to the judgment in Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, wherein, the Court had held that, the authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted; the Court stated that the constitutional courts must defer to this understanding and appreciation of the tender documents.

In any case, a registration certificate under Section 4 of the Orissa Act could not possibly be the equivalent of a valid labour licence issued by the labour department. High Court, in second-guessing the authority’s requirement of a licence under the contract Labour Act, has clearly overstepped the bounds of judicial review in such matters.

Decision

Hence, the Bench concluded that except for an incantation of the expression mala fide, no mala fide had in fact been made out on the facts of this case. The High Court’s judgment was set aside and the Appellant was directed to be put back to complete performance under the agreement entered into between the Appellant and the authority.

[M/S Utkal Suppliers v. M/S Maa Kanak Durga Enterprices,  2021 SCC OnLine SC 301, decided on 09-04-2021]

Kamini Sharma, Editorial Assistant has put this report together

*Judgment by: Justice Rohinton Fali Nariman

Know Thy Judge| Justice Rohinton F. Nariman

Appearance before the Court by:

For the Appellant: Sr. Adv. Siddhartha Dave

For the Respondent 1: Adv. Aditya Kumar Chaudhary

Know thy JudgeObituariesOP. ED.

“An irreducible core of right to life is “dignity”. Right to human dignity comes in different shades and colours. (…) The right to dignity of an accused does not dry out with the Judges’ ink, rather, it subsists well beyond the prison gates and operates until his last breath.”

-Justice MM Shantanagoudar

‘X’ v. State of Maharashtra, (2019) 7 SCC 1

Born on 5th May, 1958, Justice Shantanagoudar enrolled as an Advocate on 05.09.1980 and practiced mainly in Civil, Criminal and Constitutional matters.

He also served as Vice-Chairman of Karnataka State Bar Council from 1991 to 1993 and as Chairman of Karnataka State Bar Council during 1995 and 1996 and later served as State Public Prosecutor of Karnataka State from 1999 to 2002.

He was then appointed as Additional Judge of the Karnataka High Court on 12.05.2003 and as Permanent Judge on 24.09.2004. He was also the President of Bangalore Mediation Centre and Karnataka Judicial Academy.

He assumed charge as Acting Chief Justice of the Kerala High Court on 01.08.2016 and was then sworn in as the Chief Justice on 22.09.2016. Read more…

He was elevated as Judge of the Supreme Court of India on 17th February, 2017. Read more…

Justice Shantanagoudar, who left for heavenly abode on April 24, 2021, left behind a legacy of significant rulings.

Let’s remember him through some of his notable judgments as a Supreme Court judge:

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

The bench of MM Shantanagoudar* and Vineet Saran, JJ has held that Section 195(1)(b)(i) CrPC will not bar prosecution by the investigating agency for offence punishable under Section 193 IPC, which is committed during the stage of investigation. This is provided that the investigating agency has lodged complaint or registered the case under Section 193, IPC prior to commencement of proceedings and production of such evidence before the trial court. In such circumstance, the same would not be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i) CrPC.

Read more

High Court of Judicature at Madras Rep. by its Registrar General v. MC Subramaniam, 2021 SCC OnLine SC 109

The bench of MM Shantanagoudar* and Vineet Saran, JJ has held that Section 89 of CPC and Section 69-A of Tamil Nadu Court Fees and Suit Valuation Act, 1955 contemplate the refund of court fees in all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at and not just to those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC.

Read more

Amitabha Dasgupta v. United Bank of India, 2021 SCC OnLine SC 124

In a case where United Bank of India inadvertently broke the Appellant’s locker, without any just or reasonable cause, even though he had already cleared his pending dues, the bench of MM Shantanagoudar* and Vineet Sarana, JJ Imposed costs of Rs. 5,00,000/­ on the Bank to be paid to the Appellant as compensation. The said is to be deducted from the salary of the erring officers, if they are still in service and if they have already retired, the amount of costs should be paid by the Bank. Additionally, the Appellant shall be paid Rs. 1,00,000/- as litigation expense.

Read more

M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence,  (2021) 2 SCC 485

Interpreting Section 167(2) CrPC, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Sarah, JJ has said that the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. It said,

“The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”

Read more

Krishna Lal Chawla v. State of U.P., 2021 SCC OnLine SC 191

The bench of Justice Shantanagoudar and Justice R. Subhash Reddy held that the Trial Judge has a duty under the Constitution and the CrPC, to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the fullest extent, the powers conferred on him.

“Frivolous litigation should not become the order of the day in India. From misusing the Public Interest Litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the justice delivery system should not be used as a tool to fulfil personal vendetta.“

Read more

Rekha Muraka v. State of West Bengal, (2020) 2 SCC 474

Dealing with the question relating to the extent to which a victim’s counsel can participate in the prosecution of a case, the bench of MM Shantanagoudar and Deepak Gupta, JJ has held that the victim’s counsel is subject to the directions of the Public Prosecutor and that the victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross­examine witnesses.

Read more

‘X’ v. State of Maharashtra, (2019) 7 SCC 1

The 3-judge bench of NV Ramana, MM Shantanagoudar and Indira Banerjee, JJ held

“it needs to be understood that prisoners tend to have increased affinity to mental illness. Moreover, due to legal constraints on the recognition of broad­spectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentally­ill prisoners of various degrees. There is no overlooking of the fact that the realities within the prison walls may well compound and complicate these problems.”

Read more

Rekha Sengar v. State of Madhya Pradesh, 2021 SCC OnLine SC 173

In the case where the investigative team has seized the sonography machine and made out a strong prima-facie case against the petitioner, the 3-judge bench of MM Shantanagoudar, Vineet Saran and Ajay Rastogi, JJ held no leniency should be granted at this stage as the same may reinforce the notion that the PC&PNDT Act is only a paper tiger and that clinics and laboratories can carry out sex-determination and feticide with impunity.

“A strict approach has to be adopted if we are to eliminate the scourge of female feticide and iniquity towards girl children from our society.”

Laltu Ghosh v. State of West Bengal, (2019) 15 SCC 344

The bench of MM Shantanagoudar and Dinesh Maheshwari, JJ has held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. It was held that:

“A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.”

Read more

Mohammed Salim v. Shamsudeen,  (2019) 4 SCC 130

The bench of NV Ramana and MM Shantanagoudar, JJ, on the issue relating to legality of the marriage of a Muslim man with an idolater or fireworshipper, said that such marriage “is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage.”

Read more

Indore Development Authority v. Shailendra,  (2018) 3 SCC 412

In the case where the Court was deciding the issue relating to interpretation of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and section 31 of the Land Acquisition Act, 1894, the 3-judge bench of Arun Mishra, AK Goel and MM Shantanagoudar, JJ held that Non-deposit of compensation under Section 31 of LA Act, 1894 does not result in lapse of acquisition under 2013 Act.

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Commr. of Customs v. Dilip Kumar and Co.,   (2018) 9 SCC 1

A five-Judge Constitution Bench speaking through N.V. Ramana, J., while invalidating the ratio of Sun Export Corpn. v. Collector of Customs, (1997) 6 SCC 564, laid at rest the controversy regarding the interpretation of an ambiguous provision exempting tax. The Bench comprised of Ranjan Gogoi, N.V. Ramana, R. Banumathi, M.M. Shantanagoudar and S. Abdul Nazeer, JJ.

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In a sad news coming from the Supreme Court, Justice MM Shantanagoudar has passed away on 24.04.2021 after a prolonged illness. He was 62. As per an NDTV report, Justice Shantanagoudar was admitted to a private hospital in Gurgaon due to lung infection. 

Born on 5th May, 1958, Justice Shantanagoudar enrolled as an Advocate on 05.09.1980 and practiced mainly in Civil, Criminal and Constitutional matters.He also served as Vice-Chairman of Karnataka State Bar Council from 1991 to 1993 and as Chairman of Karnataka State Bar Council during 1995 and 1996 and later served as State Public Prosecutor of Karnataka State from 1999 to 2002.He was then appointed as Additional Judge of the Karnataka High Court on 12.05.2003 and as Permanent Judge on 24.09.2004.

He was also the President of Bangalore Mediation Centre and Karnataka Judicial Academy.He assumed charge as Acting Chief Justice of the Kerala High Court on 01.08.2016 and was then sworn in as the Chief Justice on 22.09.2016. Read more…

He was elevated as Judge of the Supreme Court of India on 17th February, 2017. 

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https://www.scconline.com/blog/post/2021/04/25/the-judicial-legacy-of-justice-mm-shantanagoudar/