Experts CornerSanjay Vashishtha

The jurisprudence on the rape on the pretext of marriage is being shaped by judicial precedents across the India. Marriage is considered as sacred union between two individuals – transcending beyond physical, emotional and spiritual bounds. In ancient Hindu laws, marriage and its rituals are performed to pursue dharma (duty), artha (possessions) and kama (physical desires). With such sanctity, marriage is more than a ritual, and accordingly the present criminal jurisprudence invokes Section 90 of the Penal Code, 1860 when the consent for a sexual intercourse is sought on the false promise of marriage.

 

On the other hand, “men’s rights activists” claims that these charges framed against the accused should be equitable to “false rape cases” for various reasons. It is argued that these allegations are paradoxical and rather counterproductive insofar as rampant acquittals and discharge in such cases dilute the seriousness surrounding the penal provision relating to rape.

 

Therefore, the term “consent” becomes the subject-matter of a legal deliberation and debate. In terms of Section 90 IPC, consent given by a victim under a misconception of fact would amount to rape within the meaning of Section 375 IPC. However, what is the degree and the nature of this misconception? Is there a legal litmus test to decipher this misconception? Anthropologists and experts can vouch for the fact that wear and tear is an integral part of any relationship, marital or otherwise. In fact, quite recently, Sikkim High Court had in fact extended the benefit of doubt to the accused on the ground of “relationship going sour”1. Therefore, an endeavour is made in this article to sum up the recent developments on the jurisprudence surrounding rape on the pretext of marriage and identify legal parameters which could potentially decipher the key difference between actual inducement leading to rape on the pretext of marriage or not.

 

To start with, the Supreme Court in Sonu v. State of U.P.2 quashed an FIR under Section 376 IPC between former lovers inter alia on the ground that “there is no allegation that the promise to marry given to the second respondent (prosecutrix) was false at the inception”. The decision, authored by HMJ Dr D. Y. Chandrachud cited Pramod Suryabhan Pawar v. State of Maharashtra3 wherein the following was laid down by the Supreme Court as a litmus test to govern such matters:

 

  1. 16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it.

*                                  *                                  *

  1. 18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

 

In Sonu v. State of U.P.4 the prosecutrix in her Section 164 CrPC statement admittedly claimed that the physical relations were consensual and were an outcome of a “love affair” between the two, however, on account of the accused promising to marry her. Subsequently, the family of the accused refused to have their marriage solemnised and so did the accused.

 

The fundamental issue that crops up from the Sonu judgment5 and those alike in genesis in terms of facts and circumstances is the presence of a intimate/love affair between the complainant and the accused. It is seldom the case that the accused has either married someone during the period of alleged inducement or was already in an active relationship with someone else or has married someone else either during or immediately following the refusal to marry which prompts law enforcement agencies to register an FIR under Section 376 IPC.

 

In this regard, the Full Bench of the Supreme Court headed by HMJ Rohinton Nariman had recently in Maheshwar Tigga v. State of Jharkhand6 arising out of SLP (Crl.) No. 393 of 2020 observed:

 

  1. 10. They were both smitten by each other and passions of youth ruled over their minds and emotions. The physical relations that followed was not isolated or sporadic in nature, but regular over the years. The prosecutrix had even gone and resided in the house of the appellant. In our opinion, the delay of four years in lodgement of the FIR, at an opportune time of seven days prior to the appellant solemnising his marriage with another girl, on the pretext of a promise to the prosecutrix raises serious doubts about the truth and veracity of the allegations levelled by the prosecutrix. The entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross-examination that no incident had occurred on 9-4-1999.

 

The Court further observed in Maheshwar Tigga case7 :

  1. 14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. (Emphasis added) The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her.

 

The Supreme Court has, especially in the last decade, passed several landmark decisions in an endeavour to frame policy related jurisprudence on this subject matter. From holding that the victim was not a “gullible woman of feeble intellect” in Vinod Kumar v. State of Kerala8 to reiterating the distinction between a promise which is unfulfilled and a promise which is false from the very beginning in Anurag Soni v. State of Chhattisgarh9 in the Supreme Court has made it unambiguous and coherent that in order to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established10:

 

  1. 18. … The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

 

Therefore, in other words, while the Supreme Court has identified a fine distinction between matters where there is an intention to deceit at the outset, it is paramount that concept of regular wear and tear of relations as otherwise evident from matrimonial matters is required to be infused in this jurisprudence, literally or otherwise.

 

In the recent past, my professional experience as a defence counsel in various such matters spanning from trial courts to the Supreme Court and as a consultant to a law enforcement agency, has enabled me to identify the following parameters which could further enable the investigating officers from identifying a case which merits a final report in the form of a charge-sheet in contrast to a final report under Section 173 CrPC in the form of a closure report: –

 

  1. In some matters, the FIR under Section 376 IPC is in fact an outcome of a regular wear and tear of relationship spanning over several years, including live-in relationships, which as per the Supreme Court in Velusamy v. D. Patchaiammal11, following certain conditions has the sanctity of presumption of marriage. The facts highlighting gradual wear and tear of relations leading to a break-up/refusal to marry could be a relevant identifier with regards to the primary litmus test laid down by the Supreme Court in this regard.
  1. In most of the matters, the accused (as I would only know their narrative – as a defence counsel) has neither married anyone else nor had any other relationship during the subsistence of their relationship with now complainant. They were neither actively pursuing matrimonial alliances through other online/offline modes.
  1. In a case, the complainant herself did not sought marriage till a particular timeline after which the accused sought time – and the same resulted in an FIR under Section 376 IPC.
  1. In one matter, one of my clients who had cleared one of the toughest examinations in the country was prevented from joining and rendering his services on account of the said FIR under Section 376 IPC. In this matter the complainant in statement recorded under Section 164 CrPC had stated that the accused had promised to marry her after clearing his examination and programmes. One could say this was a premature FIR, but be as it may, it is the prerogative of the complainant to choose the time and place of recording of such first information report.

 

However, an important caveat may be highlighted at the outset. The idea is not to promote closures or highlight one-sided anecdotal experience – but to highlight that the growing number of such acquittals/quashing’s and overshadow matters which would otherwise merit trials and convictions. This also tends to diminish the sensitivity and seriousness with which investigation is to be conducted in such matters, in my personal view and experience.

 

Its about time that parameters be laid down, withstanding the fact that every criminal case/FIR is unique and peculiar directing the investigating officers to consider, atleast some of the aforesaid while choosing to file a closure, as final reports in the form of charge-sheets, at times are mechanically filed in this regard.


† Sanjay Vashishtha is a practicing counsel at the Supreme Court of India, LLM in Comparative Criminal Law from McGill University, Canada and MSc, Criminology and Criminal Justice from University of Oxford. He is serving as a counsel/special counsel and consultant for several law enforcement and public sector institutions.

1 Makraj Limboo v. State of Sikkim, 2021 SCC OnLine Sikk 1.

2 2021 SCC OnLine SC 181.

3 (2019) 9 SCC 608, 618, 620.

4 2021 SCC OnLine SC 181.

5 2021 SCC OnLine SC 181.

6 (2020) 10 SCC 108, 114.

7 (2020) 10 SCC 108, 115.

8 (2014) 5 SCC 678.

9 (2019) 13 SCC 1.

10 Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, 620.

11 (2010) 10 SCC 469.

Case BriefsSupreme Court

Supreme Court: Drawing an interesting analogy to explain the scope of Section 34 of IPC, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has said that it is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper.

“A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.”

The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention”. One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense.

Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case-to-case basis.

The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.

The Court further made clear that there may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity.

“When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.”

While the existence of common intention is obviously the duty of the prosecution to prove, the Court cast a duty on the courts to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.

[Jasdeep Singh v. State of Punjab, 2022 SCC OnLine SC 20, decided on 07.01.2022]


*Judgment by: Justice MM Sundresh

Know thy Judge

“There should be effort to find out cases where there is possibility of settlement of cases…Serious thinking on ADR is required.”

                                                                                       Justice R. Subhash Reddy[1]


As Justice Ramayyagari Subhash Reddy prepares to bid adieu, we endeavor to take you to a trip down the memory lane of his tenure in the Supreme Court.


Travelling Back in Time 


Justice R. Subhash Reddy was born on 5th January, 1957 in an agricultural family in Kamaram Village of Chinna Shankarampet Mandal, Medak District. He did his primary education in Upper Primary School and Higher Education from Zilla Parishad High School, Sankarampet, and graduation from Andhra Vidyalaya College, Hyderabad and obtained his Degree in Law from the University College of Law, Osmania University, Hyderabad.[2]

♦Did You Know? Justice R. Subhash Reddy has deep interest in matters of philosophy, culture, music and education.[3]                                    


Career at a Glance    


              

Advocate- 1980-2002 

Justice Reddy enrolled as an advocate on 30-10-1980 in Bar Council of Andhra Pradesh and joined the Chambers of Sri Justice B. Subhashan Reddy. Post enrolment, Justice Reddy practised at Andhra Pradesh High Court, Civil Court Tribunals and Supreme Court.  

Justice Reddy’s stint as an advocate stretched over a staggering period of 22 years during which he argued on issues related to Civil, Criminal, Constitutional, Revenue, Taxation, Labour, Company and Service matters in both original and appellate side. His specialisation however was in Constitutional Law.[4] Justice Subhash Reddy was also elected unanimously as the President of the AP High Court Advocates Association for the year 2001-2002.[5]

♦Did you Know? He was Standing Counsel for premier institutions like S.V. University and Jawaharlal Nehru Technological University.[6]

The High Courts- Elevation as a Judge- 2002-2018 

On 2nd February, 2002, Justice Reddy was elevated as an Additional Judge of the Andhra Pradesh High Court and sworn in as Judge of the Andhra Pradesh High Court on 24-06-2004. He was later elevated as Chief Justice of Gujarat High Court on 13th February, 2016.[7]


Notable High Court Decisions  


Andhra Pradesh High Court/ Hyderabad High Court

A.P. Civil Liberties Committee (APCLC) v. Govt. of A.P., 2009 SCC OnLine AP 50 

The 5 Judge Bench of Goda Raghuram, V.V.S. Rao, R. Subhash Reddy, Ramesh Ranghanathan and G. Bhavani Prasad, JJ., held that where a police officer causes death of a person, acting or purporting to act in discharge of official duties or in self-defense as the case may be, the first information relating to such circumstance (even when by a Police/Public Official; whether an alleged perpetrator is named or not) shall be recorded and registered as FIR, enumerating the relevant provisions of Law, (u/Sec. 154(1) Cr.P.C.) and shall be investigated (u/Sec. 156/157 Cr.P.C.).

K. Swarna Kumari v. Government of Andhra Pradesh, 2006 SCC OnLine AP 97

Re. Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, Rules 20(4) and 45(1) proviso, Full Bench of the Court comprising of T. Meena Kumari, A. Gopal Reddy, Goda Raghuram, T.CH. Surya Rao and R. Subhash Reddy, JJ., held, violation of principles of natural justice by itself is not sufficient to invalidate punishment unless a clear prejudice suffered thereby is pleaded and demonstrated.  

Gangaraju Sowmini (Dr.) v. Alavala Sudhakar Reddy, 2016 SCC OnLine Hyd 430 

The 3-Judge Bench of Before R. Subhash Reddy, G. Chandraiah and Nooty Ramamohana Rao, JJ., held that as per the language under Section 166 of the Motor Vehicles Act, 1988 r/w. Rule 2(g) of the A.P. Motor Vehicles Rules, 1989, even the legal representatives who are non-dependants can also lay a claim for payment of compensation by making application under Section 166 of the Motor Vehicles Act.

Gujarat High Court 

Bar Council of Gujarat v. Jalpa Pradeepbhai Desai, 2016 SCC OnLine Guj 5080 

While dismissing an appeal filed by a respondent petitioner who applied for a certificate of practice to the Bar Council of Gujarat while simultaneously rendering services at a corporation, the Division Bench of R. Subhash Reddy, CJ and Vipul M. Pancholi, J said that an advocate who works as a full-time salaried employee of any person, government, firm, corporation or concern, is not entitled to grant of certificate of practice under the Advocates Act, 1961 in view of Rule 49 of the Bar Council of India Rules.

Read More


Prati Shailesh Patel v. State of Gujarat, 2016 SCC OnLine Guj 1909 

While dealing with the constitutionality of Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) (Amendment) Ordinance, 2016, the bench comprising of R. Subhash Reddy, CJ and Vipul M. Pancholi, J. quashed the Ordinance to the extent of removing genuine NRI/NRI proper i.e. children or wards of the Non-Resident Indian from the quota in medical colleges.

Read More


Dayaram Khemkaran Verma v. State of Gujarat, 2016 SCC OnLine Guj 1821

While dealing with the constitutionality of the Gujarat Unreserved Economically Weaker Sections (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in services under the State) Ordinance, 2016 providing reservation of seats in the educational institutions in the State and of appointments and posts in the services under the State in favour of the Economically Weaker Sections of unreserved categories, the bench comprising of R. Subhash Reddy CJ., and Vipul M. Pancholi, J. held the Ordinance unconstitutional and contrary to fundamental rights.

Read More                                 


THE SUPREME COURT- 2018-2022


On 1st November, 2018, the Ministry of Law and Justice notified the appointment of Justice R. Subhash Reddy to the Supreme Court of India by the President[8] and on 2nd November, 2018, Justice Reddy assumed charge of his office as a Judge of Supreme Court.[9]

♦Did You Know? Justice Reddy is the first Judge from the newly carved State of Telangana to become a Judge of the Supreme Court.[10] 


 Notable Judgments 


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

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

Read More


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

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

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

Read More 


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

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

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

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

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

Read More…


Rajnesh v. Neha, (2021) 2 SCC 324, 

The Bench of Indu Malhotra and R. Subhash Reddy, JJ., framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Read More


R. Natarajan v. State of T.N., (2021) 7 SCC 204

In an appeal regarding dowry death case the Division Bench of Navin Sinha and R. Subhash Reddy, JJ., granted acquittal to an old aged couple. Opining that the Courts below had failed to consider the evidences available on the standard of “beyond reasonable doubt” The Bench stated,

“Conviction of the appellants was not maintainable on a probability in absence of direct evidence. The benefit of doubt ought to have been given to the appellants.”

Read More


State of Kerala v. Leesamma Joseph, (2021) 9 SCC 208

Dealing with the issue relating to the right of promotion under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ., held that a person with disability should be considered for promotion along with other persons working in the feeder cadre. The Court explained that the mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD.

Read More 


Sk. Ahmed v. State of Telangana, (2021) 9 SCC 59

The bench of Ashok Bhushan and R. Subhash Reddy, JJ., laid down the essential ingredients required to be proved by prosecution to convict an accused under Section 364A IPC, i.e. kidnapping for ransom.

Read More


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

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

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

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

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

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

Read More…


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

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

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

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

Read More… 


Abhilasha v. Parkash, 2020 SCC OnLine SC 736 

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

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

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

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

Read More…


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

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

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

Read More… 


Rakesh Kumar Agarwalla v. National Law School of India University, (2021) 1 SCC 539 

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

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

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

Read More… 


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

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

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

Read More…


Ashwani Kumar v. Union of India, (2020) 8 SCC 808 

The bench of Ashok Bhushan and R. Subhash Reddy, JJ has directed that all old age people who are eligible for pension should be regularly paid pension and those identified older people should be provided necessary medicines, masks, sanitizers and other essential goods by respective States.

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

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

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

Justice Reddy opined that

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

Read More…


Skill Lotto Solutions Pvt. Ltd. v. Union of India, 2020 SCC OnLine SC 990 

The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has upheld the constitutionality of imposition of GST on lotteries, betting and gambling. The Bench further held that while determining the taxable value of lottery the prize money is not to be excluded for the purpose of levy of GST.

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Krishna Lal Chawla v. State of U.P., (2021) 5 SCC 435 

The Division Bench of Mohan M. Shantanagoudar and R. Subhash Reddy, JJ., addressed the instant case dealing with vexatious complaint. The Bench, while expressing concern over such practises emphasised over the need of scrutinising such complaints at its initiation.

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Khushi Ram v. Nawal Singh, 2021 SCC OnLine SC 128 

The bench of Ashok Bhushan and R. Subhash Reddy, JJ., has held that when heirs of father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female. The Court also held that consent decree recognising pre-existing rights created by oral family settlement does not require registration under Section 17 of Registration Act, 1908.

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Soorajmull Nagarmull v. Brijesh Mehrotra, 2021 SCC OnLine SC 1252

The Division Bench of R. Subhash Reddy and Hrishikesh Roy, JJ., held that once the fresh notification is issued by the State for land acquisition, no cause of action survive on previous notification and actions taken therein, when that proceeding is declared lapsed. Quoting the case of R.N. Dey v. Bhagyabati Pramanik, (2000) 4 SCC 400, the Bench stated,

“Discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court.”

Read More


Parveen v. State of Haryana, 2021 SCC OnLine SC 1184 

The bench of R. Subhash Reddy and Hrishikesh Roy, JJ., held that the confessional statements of the co-accused, in absence of other acceptable corroborative evidence, are not enough to convict an accused for conspiracy.

Read More 


State of Bihar v. Arbind Jee, 2021 SCC OnLine SC 821 

The bench of R. Subhash Reddy and Hrishikesh Roy, JJ., held that retrospective seniority cannot be claimed from a date when an employee is not even borne in service.

Read More 


Bajaj Allianz General Insurance Company Private Ltd. v. Union of India, 2021 SCC OnLine SC 418 

The bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ issued directions with respect to motor vehicle accident claims and observed that the Central Government shall develop an online platform accessible to the tribunals, police authorities and insurers throughout India, as each State having an independent online platform for submission of accident reports, claims and responses to claims, will hamper efficient adjudication of claims, especially where the victim of the accident is not a resident of State where accident has occurred.

Read More 


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

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

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

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

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


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

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

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

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


Notable Dissents 


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

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

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

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

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

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


† Sucheta Sarkar, Editorial Assistant, EBC Publishing Pvt. Ltd. 

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

[2] Supreme Court, Chief Justice and Judges

[3] Sri Justice R. Subhash Reddy, Telangana High Court

[4] SC Observer, Justice R. Subhash Reddy

[5][ Sri Justice R. Subhash Reddy, Telangana High Court

[6] Hon’ble Mr. Justice R.Subhash Reddy, Gujarat High Court

[7]Supreme Court, Chief Justice and Judges

[8] Ministry of Law and Justice, Order of Appointment

[9] Supreme Court, Chief Justice and Judges

[10]The New Indian Express, Subhash Reddy to join Supreme Court

Case BriefsSupreme Court

Supreme Court: The 3-judge Bench comprising of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna*, JJ., held that though it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage but an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. Criticizing the practise of granting cryptic bail in a casual manner, the Bench remarked,

“It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

Background

The appellant, mother of the deceased Rupesh Kumar and also the eyewitness of the killing of her son had assailed the Patna High Court’s order granting bail to the accused. The appellant had filed an FIR in the year 2020 for the offence of murder of her son under section 302 read with section 34 of the Penal Code, 1860 and section 27 of the Arms Act stating that the accused had shot her deceased son with a pistol on two occasions. Earlier, in the year 2017, another FIR was lodged against the same accused by the deceased himself for attempt to murder and causing serious bullet injury to him, under sections 341, 307 read with section 34 of IPC and section 27 of the Arms Act and in that case as well the accused was released on bail.

The appellant contended that the impugned orders granting bail to the respondent accused were bereft of any reasoning and they were cryptic and bail had been granted in a casual manner.

Observations and Analysis

In the impugned order, the High Court had noted that there was a previous enmity between the deceased and the petitioner with regard to contesting an Election as Mukhiya but this fact had not been taken into consideration in the context of the allegation against the accused and with regard to grant of bail. After critically scrutinizing the materials on record, the Bench made following observations:

  1. The offences alleged against the accused were serious vis-a-vis against the very same person, Rupesh Kumar at two points of time, namely, in 2017 when attempt to murder him was alleged and in 2020 allegation of murder had been cast by the appellant.
  2. The accused had been named in about eight cases and though he might have been acquitted in a few of them, there were still cases pending against him. Thus, he was a man with criminal antecedents.
  3. The accused had absconded for a period of seven months after the complaint in respect of the second offence was lodged against him. Therefore, his arrest was delayed.
  4. It was also the case of the appellant that the accused had threatened the informant mother of the deceased.

Thus, the Bench opined that there was a likelihood of the respondent accused absconding or threatening the witnesses if on bail which would have a vital bearing on the trial of the cases. Also, for securing the accused for the purpose of commencement of the trial in right earnest in both the cases, as the accused had earlier absconded, discretion could not have been exercised in favour of the accused in the instant cases.

Reason is the soul of the law

Applying the Latin maxim “cessante ratione legis cessat ipsa lex” meaning “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”, the Bench stated, though liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an accused particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material so as to enable a Court to arrive at a prima facie conclusion.

As been held by the Supreme Court in catena of cases, the Bench reiterated that a balance would have to be struck between the nature of the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused.

Thus, the Bench emphasised that while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail.

Conclusion

Consequently, the Bench opined that the High court had lost sight of the aforesaid vital aspects of the case and in very cryptic orders had granted bail to the accused who had two serious accusations against him vis-à-vis the very same person. Hence, the appeal was allowed and the impugned orders were set aside. The bail bonds submitted by the accused were declared cancelled and he was directed to surrender before the concerned jail authorities within a period of two weeks. [Brijmani Devi v. Pappu Kumar, Cr. A. No. 1663 of 2021, decided on 17-12-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellant: Smarhar Singh, Advocate

For the Respondent: R. Basant, Senior Counsel

Tags: IPC, Criminal Law, Homicide, Murder, Attempt to Murder, Bail, Reasoned Order, Natural Justice


*Judgment by: Justice B.V. Nagarathna

Legal RoundUpSupreme Court Roundups

“Many people with mental health disorders are willing and able to work. However, socio-structural barriers impede their participation in the workforce. People diagnosed with mental health disorders are less likely to be employed or are relegated to low-paying jobs that are not commensurate with their qualifications and interests. Exclusion from the workforce not only creates conditions of material deprivation, but it also impacts self-confidence, and results in isolation and marginalization which exacerbates mental distress.”

Ravindra Kumar Dhariwal v. Union of India, 2021 SCC OnLine SC 1293


STORY OF THE MONTH


Disciplinary proceedings against person with mental disability is a facet of indirect discrimination; SC sets aside action against CRPF personnel

In a case where the CRPF had initiated disciplinary proceeding against a person with a medical history of obsessive compulsive disorder  and depression and has been undergoing treatment for the same since 2009, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has held that the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination as such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings.

“… while the stigma and discrimination against persons with mental health disorders are rampant in society, as the highest constitutional court of the country, it falls upon us to ensure that societal discrimination does not translate into legal discrimination.”

Read more…


UNMISSABLE STORIES


Bank not a trustee of money deposited by Customers

The relationship between customer and Bank is one of a creditor and a debtor and not of a trustee.

Read more…

Consumer Protection| Can written statement be accepted beyond 45 days? SC settles pre and post New India Assurance Company Verdict conundrum once and for all

In a case where the NCDRC had condoned a delay for a period beyond the prescribed statutory outer limit just before the decision of the Constitution Bench on 4 March 2020 wherein it was held that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has held that the Constitution Bench judgment would not affect applications that were pending or decided before 4 March 2020.

Read more…

Three death row convicts to walk free as SC finds them “not guilty” of murdering six family members

“We are at pains to observe the manner in which the present case has been dealt with by the trial court as well as by the High Court, particularly, when the trial court awarded death penalty to the accused and the High Court confirmed it.”

Read more…

‘Motor Vehicle Appellate Tribunals’ may soon be a reality? Read SC’s suggestion to Ministry of Law and Justice

With an aim to curtail the pendency before the High Courts and for speedy disposal of the appeals concerning payment of compensation to the victims of road accident, the bench of SA Nazeer* and Krishna Murari, JJ has asked the Department of Justice, Ministry of Law and Justice to consider constituting ‘Motor Vehicle Appellate Tribunals’ by amending Section 173 of the Motor Vehicles Act so that the appeals challenging the award of a Tribunal could be filed before the Appellate Tribunal so constituted.

Read more…

Raped in matrimonial home; disbelieved; beaten up! SC believes woman’s sole testimony; finds act of female members of the family “unfortunate”

“Being women at least the sister-in-law and mother-in-law ought to have supported the prosecutrix, rather than beating her and not believing the prosecutrix.”

Read more…

Divorce| Wife’s act of rejecting posh accommodations of up to Rs. 30 lakhs rent per month “unreasonable”; “Similar” doesn’t mean “totally identical”

“… the conduct of the respondentwife in firstly not choosing any house as per her choice and secondly, in rejecting all the properties, which have been identified by the Architect, only on the ground that they are not similar and therefore, not in accordance with the order dated 6th March 2020, to say the least is unreasonable.”

Read more…

Lifting differently abled persons without consent; removing their prosthetic limbs/calipers for security checks, inhuman

After multiple objections were raised to the draft guidelines on ‘Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility’, the bench of Hemant Gupta and V. Ramasubramanian, JJ has asked the Director General of Civil Aviation (DGCA) to allow 30 days’ time to the petitioners to submit their objections/suggestions “even if the time limit for submission of the suggestions has come to an end.”

Read more…

State can’t use mere possibility of more money in the public coffers to forgo contractual obligations

“Equity demands that when the State failed to produce an iota of evidence of either financial loss or any other public interest that has been affected, it should be compelled to fulfill its promises.”

Read more…


EXPLAINERS



MORE STORIES


Lessee learns of cancellation of tender from Newspaper Report. SC holds authority can’t circumvent the requirement of providing effective hearing

“Natural justice is the sworn enemy of intolerant authority”

Read more…

Does pointing towards victim’s hiding place make one a part of a “murderous” unlawful assembly? “Not brave enough” at most, holds SC

“Given that a murderous mob fully armed was hunting for him, the appellant at best can be said not to be brave enough to conceal the deceased or even to have not pointed out where he was, but that by itself cannot rope in the appellant under Section 149 of the IPC.”

Read more…

Not open for Courts to usurp function of disciplinary authority; Can’t substitute one disciplinary punishment with other

“The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon.”

Read more…

Can NCLT entertain an arbitrable dispute? SC sets the yardsticks of residuary powers of NCLT under IBC

“The residuary jurisdiction of the NCLT cannot be invoked if the termination of a contract is based on grounds unrelated to the insolvency of the Corporate Debtor.”

Read more…

SC frowns on rising trend to invalidate sexual misconduct proceedings on hyper-technical points after Calcutta HC reinstates BSF head constable based on minor discrepancy

“The history of legal proceedings such as these is a major factor that contributes to the deterrence that civil and criminal mechanisms pose to persons aggrieved of sexual harassment.”

Read more…

Consumer Protection| Open to NCDRC to direct deposit of entire or more than 50 % of the amount ordered by SCDRC while staying SCDRC ‘s order

“Such an order on the stay application is not to be passed mechanically.”

Read more…

UAPA| No day-to-day hearing, 298 prosecution witnesses yet to be examined? 74-year-old gets bail after 9.5 years

In a case where a 74-year-old has been behind the bars since 2012 as an undertrial prisoner, after being arrested under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the bench of Ajay Rastogi and Abhay S. Oka, JJ has directed that the accused be released on post-­arrest bail by the trial Court.

Read more…

Also read: ‘Only one Special Court trying cases under NIA Act frustrates the purpose’; SC directs West Bengal to designate more courts

Flimsy plea, feeble excuse; Here’s why Supreme Court barred Bharti Airtel from seeking GST refund of Rs. 923 crores

“The common portal is only a facilitator to feed or retrieve such information and need not be the primary source for doing self-assessment.”

Read more…

Accused cannot be convicted for conspiracy only on the basis of co-accused’s confession: SC

“A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy.”

Read more…

Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right

“The Appointing Authority ought to have prepared a combined merit list based upon the performance or the proficiency on the basis of the marks received in the selection test as prepared by the Commission; otherwise, it would amount to denial of the right of consideration for promotion to a more meritorious candidate as against a candidate having lesser merit.”

Read more…

SC awards 30 years RI to man who killed 2 brothers & nephew; Finds imposition of death penalty on the day of conviction itself, wrong

“The trial court as well as the High Court has only taken into consideration the crime but have not taken into consideration the criminal, his state of mind, his socioeconomic background etc.”

Read more…

Supreme Court affirms HC’s order upholding appointment of Mr. Dinkar Gupta as Punjab DSP

“When a person takes a chance and participates, thereafter he cannot, because the result is unpalatable, turn around to contend that the process was unfair or the selection committee was not properly constituted.”

Read more…

Trial Courts have freedom of mind to decide sensitive cases on merit; Appellate courts must refrain from reversing acquittal just for the sake of it

“Every case has its own journey towards the truth and it is the Court’s role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance.”

Read more…

Notice must be given to the person holding the tainted property; Primary notice to convict not mandatory under Section 6 of SAFEMA

“Section 6(1) posits that notice must be given to the person who is holding the tainted property and is likely to be affected by the proposed forfeiture of the property. The person immediately and directly to be affected is the person who is the recorded owner of the property and in possession thereof himself or through some other person on his behalf.”

Read more…

Chardham Highway Project| Environmental compliance not a mere “checkbox”; Committee headed by Justice AK Sikri to oversee implementation of HPC’s recommendations

“Piecemeal implementation of some mitigation measures for protection of the environment, without any concrete strategy in place, cannot pass muster.”

Read more…

Insurer can’t repudiate mediclaim alleging pre-existing illness where policy was issued after considering necessary medical records

“A prudent insurer has to gauge possible risks.”

Read more…

Compassionate Appointment| Applicability of Scheme in force on date of employee’s death OR date of consideration of the application? SC resolves the conflict

“A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable.”

Read more…

No borrower can claim benefit of One Time Settlement Scheme as a right; Can’t encourage dishonest borrowers

“If it is held that the borrower can still, as a matter of right, pray for benefit under the OTS Scheme, in that case, it would be giving a premium to a dishonest borrower.”

Read more…

Not open to approach M.P. Arbitration Tribunal in reference when the very same claim is already decided by Arbitrator appointed by High Court

Noticing that the award had attained finality, the Bench while rejecting the respondent’s claim of award being void, stated that,

“Even the award or a nullity order has to be challenged before the appropriate forum/higher forum.”

Read more…

‘Bombay HC has “virtually” acquitted Chota Shakil aid of MCOCA charges at interim relief stage’; SC sets aside bail order; directs immediate surrender

“Virtually the High Court has acquitted the accused for the offence under the MCOCA at the interim relief stage and has granted the final relief at the interim stage exonerating the respondent from   MCOCA, which is wholly impermissible.”

Read more…

No relief to Pak national serving “consecutive” sentences in two cases since 1999, as SC refuses to show any leniency to offenders under NDPS Act

“No leniency should be shown to an accused who is found to be guilty for the offence under the NDPS Act. Those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable.”

Read more…

Parties can’t play fraud with the Court by suppressing details of related previous or ongoing legal proceedings

The parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge.

Read more…

Determination of Pension to be governed by the rule as it existed at the time of joining or the rule in force at the time of retirement? SC answers

“Discrimination, which is not based on any reasonable classification, is violative of all canons of equality enshrined in the Constitution of India.”

Read more…

Supreme Court directs to speed up insolvency process of Amtek Auto

“Any deviation would defeat the object and purpose of providing such time limit under IBC.”

Read more…

In a tiff between “mighty Union of India” & “an ordinary soldier”, the soldier wins as SC holds that members of Ecological Task Force also entitled to Disability Pension

“Can it be said that the mighty Union of India and an ordinary soldier, who having fought for the country and retired from Regular Army, seeking reemployment in the Territorial Army, have an equal bargaining power.”

Read more…

SC looks to curb the menace of fake Compensation Claims under Motor Vehicles Act; impleads Ministry of Transport

The Status Report shows that total 1376 cases of suspicious claims from various Districts in the State of U.P. have been received so far by the SIT.

Read more…

SC cites R.N. Dey’s case to hold aggrieved party has no right to insist that court should exercise contempt jurisdiction

“Contempt is between contemner and the Court”

Read more…

1273 Complaints from State Bar Councils transferred to BCI in last 5 years: SC unimpressed by COVID-19 Pandemic excuse for non-disposal of complaints; Issues Directions

“One can appreciate the delay in disposal of the transferred complaint(s) received in the year 2020 and 2021 due to COVID-19 pandemic but not for the earlier period.”

Read more…

NCLT has limited powers to either admit or reject an application u/s 7(5) of IBC

“NCLT can encourage settlements, it cannot direct it by acting as courts of equity”

Read more…

When 25% of the bid is already paid, whether failure to deposit the remaining 75% empowers the Bank to direct forfeiture of money even when Bank suffered no loss in subsequent auction? SC answers

Alleging high handedness of the respondent Bank in cancelling the sale and forfeiture of the amount deposited, the petitioner had approached the High Court of the judicature at M.P. seeking refund of the forfeited amount. However, noticing that the petitioner was given proper reminders and Covid 19 extension for the payment of remaining 75% amount of the bid, the High Court had dismissed the petition.

Read more…

“Democratic interests cannot be judicially aborted to preserve unfettered freedom to conduct business, of the few”; Govt. decision to ban MTTs in PPE products ensures adequate PPE in India: SC

“This Court must be circumspect that the rights and freedoms guaranteed under the Constitution do not become a weapon in the arsenal of private businesses to disable regulation enacted in the public interest.”

Read more…

Non-filing of affidavit in Form 25; Is it fatal for maintainability of election petition? Supreme Court decides

“Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25.”

Read more…

Delay of 1011 days condoned by Andhra Pradesh HC! What a grave error, holds Supreme Court

“The High Court has not exercised the discretion judiciously. The reasoning given by the High Court while condoning huge delay of 1011 days is not germane.”

Read more…

Examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon

The Court was deciding a case where deceased had sustained a gun-shot injury with a point of entry and exit, and it was being argued that the non-recovery of the weapon of offences or the failure to produce a report by a ballistic expert would discredit the case of the prosecution.

Read more…

Dowry Death| Wife goes missing from matrimonial home; body found a week later: Circumstances unerringly point to husband’s guilt despite slipshod investigation, holds SC

“The circumstances put together, unerringly point to his guilt in extinguishing the life of his wife within a few months of the marriage on her failing to satisfy the demands of dowry.”

Read more…

Notification to exempt land from acquisition under LA Act is not a quasi-judicial order; will not confer any vested rights to the landowner

“It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the land owners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A.”

Read more…

Conspiracy and abetment of corruption; SC holds section 13 of Prevention of Corruption Act cannot be invoked against non-public servant

“The material to implicate someone as a conspirator acting in concert with a public servant, alleged to have committed misconduct, under the PCA, or amassed assets disproportionate to a public servant’s known sources of income, has to be on firm ground.”

Read more…

Mere facility of food and refreshment in a Non-residential Club will not make it fall within the purview of M.P. Shops and Establishments Act

“A club, which is not a residential club, may have been within the ambit of the word ‘establishment’ but for the fact that the word ‘residential hotel’ takes within its sweep only residential club. More importantly, the Act specifically exempts clubs which are not residential clubs.”

Read more…


SCC SNIPPETS


Case BriefsSupreme Court

Supreme Court: In a case where an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States, challenged the prohibition of the export of PPE products from India, the bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ held that as a developing country with a sizeable population, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations.

The Court held that,

“Democratic interests that secure the well-being of the masses cannot be judicially aborted to preserve the unfettered freedom to conduct business, of the few.”

What was under challenge and why?

The appellant is the Managing Director of Anzalp Herbal Products Private Limited, a corporate body which inter alia, engages in Merchanting Trade Transactions (MTTs) that manufactures and trades in pharmaceuticals; herbal and skincare products; and personnel protection equipment products such as masks, gloves, sanitisers, PPE overalls, and ventilators. The appellant obtained an international MTT contract to serve as an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States.

At the relevant time, the export of PPE products had been banned by the Union Ministry of Commerce and Industry and the Directorate General of Foreign Trade, through successive notifications dated 8 February 2020, 25 February 2020 and 19 March 2020, due to the ongoing COVID-19 pandemic. Therefore, MTT contracts concerning PPE products were considered impermissible under Clause 2(iii) of the 2020 MTT Guidelines that stated,

“iii. The MTT shall be undertaken for the goods that are permitted for exports/imports under the prevailing Foreign Trade Policy (FTP) of India as on the date of shipment. All rules, regulations and directions applicable to exports (except Export Declaration Form) and imports (except Bill of Entry) shall be complied with for the export leg and import leg respectively.”

The appellant challenged the RBI and UOI’s prohibition of MTTs in respect of PPE products infringes his fundamental rights and freedoms under Articles 14, 19(1)(g) and 21 of the Constitution. It was submitted that the precedents of this Court indicate that once the citizen can demonstrate that the restriction directly or proximately interferes with the exercise of their freedom of trade or to carry on a business, it is the State’s burden to demonstrate the reasonableness of the restriction and that it is in the interest of the general public.

Since the Union of India had prohibited the export of PPE products from India, RBI submitted that in accordance with Clause 2(iii) of the 2020 MTT Guidelines, MTT transactions concerning PPE products were also prohibited since they allowed Indian individuals to assist others in diverting PPE products away from India in the global market. Further, it was clarified that Clause 2(iii) was of a general nature, and the RBI had no jurisdiction to exempt products from its application, since only the UOI determined the nation’s FTP.

Analysis

Since the appellant had assailed the suitability of the measure restricting MTTs in ensuring domestic supplies and for being overbroad in its ambit, since an Indian entity acting as an intermediary in an MTT between two different countries does not impact the availability of PPE products in India, the Court answered four crucial questions that finally led to upholding the validity of the impugned policy decision.

  1. Is the measure in furtherance of a legitimate aim?

“Adequate stocks of PPE products are critical for the healthcare system to combat the COVID-19 pandemic. The State’s aim of ensuring supplies is in furtherance of the right to life under Article 21 and the Directive Principles of State Policy mandating the State’s improvement of public health as a primary duty under Article 47.”

The Court noticed that the appellant had not challenged the legitimacy of the aim of ensuring adequate PPE in India. Also, the RBI, at the time of filing its affidavit on 30 January 2021, had elaborated on the state of the pandemic in the country and the necessity of ensuring adequate stock of PPE products.

It was, hence, found that the executive’s aim to ensure sufficient availability of PPE products, considering the ongoing pandemic, is legitimate. Accordingly, it was held that the impugned measure is enacted in furtherance of a legitimate aim that is of sufficient importance to override a constitutional right of freedom to conduct business.

  1. Is the measure suitable for achieving such an aim?

The Court considered the definition of MTT as defined in the International Monetary Fund in its sixth edition of the Balance of Payments and International Investment Position Manual which states:

“10.41 Merchanting is defined as the purchase of goods by a resident (of the compiling economy) from a nonresident combined with the subsequent resale of the same goods to another nonresident without the goods being present in the compiling economy. Merchanting occurs for transactions involving goods where physical possession of the goods by the owner is unnecessary for the process to occur.”

Hence, it was noticed that while the goods involved in an MTT never enter the territory of the intermediary, they are still recorded as negative and positive exports from the territory of intermediary during the import and export leg of the MTT, which is similar to how ordinary imports and exports would be recorded.

Therefore, MTTs are analogous to traditional imports and exports and hence, it was suitable for the RBI to link the permissibility of MTT in goods to the permissibility of their import/export under the FTP.

  1. Is the measure necessary for achieving the aim?

While MTTs in PPE products may not directly reduce the stock of these products in India, it still does contribute to their trade between two foreign nations. In doing so, it directly reduces the available quantity of PPE products in the international market, which may have been bought by India, if so required. As such, MTTs contribute to reducing the available stock of PPE products in the international market that India could have acquired.

Also, the UOI’s policy to ban the export of PPE products reflects their stance on the product’s non-tradability during the COVID-19 pandemic. It highlights a clear policy choice under which Indian entities shall not be allowed to export these products outside of India, in all probability to the highest buyers across the globe who may end up hoarding the global supply.

Hence, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations. A mere ban on exports would not regulate the utilisation of Indian foreign exchange. Hence, in order to keep India’s policy position consistent across the board, the prohibition of MTTs in respect of PPE products was necessary and the only alternative of ensuring the realisation of legitimate State interest.

  1. Is the measure adequately balanced with the right of the individual?

In the instant case, the RBI has demonstrated a rational nexus in the prohibition of MTTs in respect of PPE products and the public health of Indian citizens. The critical links between FTP and MTTs have been established by the respondents. Facilitating MTTs in PPE products between two distinct nations may prima facie appear as having no bearing on the availability of domestic stocks. However, the RBI has carefully established the connection between the use of Indian foreign exchange reserves, MTTs and the availability of domestic stocks. As a developing country with a sizeable population, RBI’s policy to align MTT permissibility with the FTP restrictions on import and export of PPE products cannot be questioned.

Epilogue

The Court noticed that the right to equality and the freedom to carry on one’s trade cannot inhere a right to evade or avoid regulation. In liberalized economies, regulatory mechanisms represent democratic interests of setting the terms of operation for private economic actors.

“This Court does not espouse shunning of judicial review when actions of regulatory bodies are questioned. Rather, it implores intelligent care in probing the bona fides of such action and nuanced deference to their expertise in formulating regulations. A casual invalidation of regulatory action in the garb of upholding fundamental rights and freedoms, without a careful evaluation of its objective of social and economic control, would harm the general interests of the public.”

The Court, however, clarified that it was not its stance that judicial review is stowed in cold storage until a public health crisis tides over and said,

“This Court retains its role as the constitutional watchdog to protect against State excesses. It continues to exercise its role in determining the proportionality of a State measure, with adequate consideration of the nature and purpose of the extraordinary measures that are implemented to manage the pandemic.”

[Akshay N. Patel v. Reserve Bank of India, 2021 SCC OnLine SC 1180, decided on 06.12.2021]


Counsels

For Appellant: Advocate Aayush Agarwala

For RBI: Advocate Ramesh Babu M R

For Ministry of Commerce and DGFT: Vikramjit Banerjee, Additional Solicitor General


*Judgment by: Justice DY Chandrachud

Legal RoundUpSupreme Court Roundups

Year 2021! The year that started with the hope of the COVID-19 Pandemic nearing an end with countries starting vaccination, ended up becoming deadlier than the year gone by. A year of losses for many, 2021 was also the year when the Supreme Court judges lost one of their own. Justice MM Shantanagoudar, a sitting judge of the Supreme Court, breathed his last on April 24, 2021.

Read: The Judicial Legacy of Justice MM Shantanagoudar

As the Nation was crippled with hardship and adversity, the Supreme Court refused to bog down and went on to deliver 865 judgments, which is a lot more than the number of judgments delivered in the 2020.

The year also witnessed the appointment of 9 judges, including 3 women judges and if all goes well, Justice BV Nagarathna, might take oath as the first woman Chief Justice of India in 2027!  Read more…

5 judges, including the former CJI Justice SA Bobde, retired. Justice NV Ramana took oath as the 48th Chief Justice of India. Read more…

Also read:

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

·        A Winner All Along – Justice Indu Malhotra

·        Messiah of the sufferers: Bidding adieu to Justice Ashok Bhushan

·        A Multifaceted Expert — Justice Rohinton Fali Nariman

·        A Champion who applied technology to optimize human potential and capabilities – Justice Navin Sinha

Let’s go through the most important of the 865 judgments delivered by the Supreme Court in the year 2021. 

CONSTITUTION BENCH VERDICTS

Only 3 Constitution Bench judgments were delivered in the year 2021. Read all about them here.


THE MOST TALKED ABOUT CASES

Central Vista Project

The year began with the Supreme Court giving a go-ahead to the Central Vista Project in a 2:1 verdict. While the majority found itself compelled to wonder if it can dictate the government to desist from spending money on one project and instead use it for something else, Justice Khanna, in his dissenting opinion, observed that citizens have the right to know and participate in deliberation and decision making. [Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7]

Read: Supreme Court gives a go-ahead to Central Vista Project in a 2:1 verdict

Also read: Justice Khanna dissents in 2:1 verdict clearing the Central Vista Project

Farm Bill and Farmer Protest

While the repeal of the Farm laws came at the fag end of the year, the Supreme Court stayed the implementation of these Laws right in the beginning of the year after noticing that despite the peaceful protest, a few deaths had already taken place as Senior Citizens, youth and children were exposing themselves to not just the cold weather but also to COVID-19. [Rakesh Vaishanv v. Union of India,  (2021) 1 SCC 590]

Read: Supreme Court stays implementation of Farm Laws

Also read: Farmer Protests| Shashi Tharoor and 6 journalists not to be arrested for now over tweets on protester’s death during Republic Day Tractor Rally

Here’s a list of some more unmissable high-profile cases:


THE WAY FORWARD

The structures of our society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless, are a reflection of the insidious patriarchal system.

Nitisha v. Union of India

2021 SCC OnLine SC 261

In 2021, the Supreme Court showed the way forward by giving many progressive orders/judgments. One of the top stories from the year 2021 was where the Court said that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch was arbitrary and irrational.

In another important ruling, before taking the oath as the Chief Justice of India, Justice NV Ramana noticed that the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome. He added that the issue of fixing notional income for a homemaker, therefore, served extremely important functions.

Here is the list of all the judgments that take us as a nation a step forward:


SEDITION AND FREE SPEECH

By way of a series of judgments and orders on free speech, the Supreme made clear that, a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries.

In a big move, the Supreme Court also agreed to decide the constitutionality of Section 124A IPC after it was submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 required reconsideration. [Kishorechandra Wangkhemcha v. Union of India, (2021) 6 SCC 177]

Read everything here:


IBC – THE IMPERFECT LAW?

While stating that “there is nothing like a perfect law and as with all human institutions, there are bound to be imperfections”, the Supreme Court, in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. [Manish Kumar v. Union of India,  (2021) 5 SCC 1]

Read: IBC (Amendment) Act, 2020 upheld, albeit with directions

This judgment was followed by a series of judgments and orders on IBC. Check out the list below to read more:


RIGHTS OF PERSONS WITH DISABILITIES

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

Vikash Kumar v. Union Public Service Commission,

(2021) 5 SCC 370

This year witnessed many Supreme Court Judgments and orders on the Rights of Persons with Disabilities.

Check out this list to know more:


DEMOCRACY AND TRANSPERANCY

No-one is above law; this was the Supreme Court message as it stressed on importance of transparency by Political Parties and Government Institutions.

Read here:


THE CONSTITUTIONAL RIGHT TO PROPERTY

In a case where State took possession of surplus land in absence of surplus land, this Supreme Court’s verdict served as a reminder that right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. [Bajranga v. State of Madhya Pradesh,  2021 SCC OnLine SC 27]

Read: Right to property is still a constitutional right under Article 300A of the Constitution


WHEN A CONSTITUTIONAL AMENDMENT WAS STRUCK DOWN

In a rare move, the Supreme Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B was ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. [Union of India v. Rajendra N. Shah2021 SCC OnLine SC 474]

Read: Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid: SC


THE “EVEN MORE DESERVING PARTIES”

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.

The Court observed that the parties agreeing to out-of-court settlement are “even more deserving”. [High Court of Madras v. MC Subramaniam(2021) 3 SCC 560]

Read: Parties agreeing to out-of-court settlement without judicial intervention under Section 89 CPC can’t be denied benefit of refund of court fees


BANKS AND BANKING

While the Constitution bench looked down upon the “mechanical” conversion of complaints under Section 138 NI Act from summary to summons trial and directed that the magistrates “must” record reasons, many other important decisions were given in 2021.

Read here: 


CONSUMER PROTECTION

The Supreme Court took cognizance of Government’s lackadaisical attitude towards consumer empowerment and observed that the ground reality is quite different as there is little endeavour to translate this Legislative intent into an administrative infrastructure with requisite facilities, members and staff to facilitate the decision on the consumer complaint.

Here are the important rulings on Consumer Protection that you cannot miss:


FROM “DEATH” TO “LIFE”

In 3 cases, the Supreme Court commuted the death sentences of the convicts to Life Imprisonment and in one case, 3 death row convicts were acquitted of all charges.

Read here:


MOTOR ACCIDENTS CLAIMS

Read how a one-stop online platform for all parties involved and Motor Vehicle Appellant Tribunals will help in achieving a hassle free disposal of Motor Vehicle Accident claims:


ARBITRATION

No year goes by without the Supreme Court delivering some important ruling on Arbitration and the year 2021 was no different.

Read the updates here:


A GUIDE FOR THE BENCH!

“The Magistrates are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant.”

Krishna Lal Chawla v. State of U.P.,

2021 SCC OnLine SC 191

In 2021, the Court also delivered a number of judgments on the issues of pendency of cases, judicial vacancies and overall standard to be followed by the members of bench while dealing with case.

Read all about these judgments here:


COVID-19

As the second wave of COVID-19 brought the nation to its knees, the Supreme Court did everything in it’s power to ensure that the loss is minimized.

Read all the important judgments here:

Case BriefsLegal RoundUpSupreme Court (Constitution Benches)Supreme Court Roundups

Unlike the year 2020, the Supreme Court Constitution Bench has functioned limitedly in the year 2021, with the number of judgments delivered by the Constitution Bench being three.

As we bid adieu to the year 2021, here is a brief recap of all the developments advanced by the Constitution Bench of Supreme Court:


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

5-Judge Bench:  SA Bobde, CJ and L. Nageswara Rao, BR Gavai, AS Bopanna and S. Ravindra Bhat, JJ

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 has directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

The Court explained that in a case tried summarily in which the accused does not plead guilty, it is sufficient for the Magistrate to record the substance of the evidence and deliver a judgment, containing a brief statement of reasons for his findings. There is a restriction that the procedure for summary trials is not to be applied for any sentence of imprisonment exceeding three months. However, Sections 262 to 265 of the Code were made applicable “as far as may be” for trial of an offence under Chapter XVII of the Act, notwithstanding anything contained in the Code.

    “It is only in a case where the Magistrate is of the opinion that it may be necessary to sentence the accused for a term exceeding one year that the complaint shall be tried as a summons trial.”

Read more…

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



Maratha Reservation unconstitutional | The timeline of the case and the 3 questions that received unanimous opinions of all 5 judges

5-judge Bench: Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ

In a big development, the 5-judge bench has 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…

[Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1]


Adhaar | When 4:1 majority refused to review the Adhaar-5 Judges verdict but Justice Chandrachud dissented

5-judge Bench: A.M. Khanwilkar, D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ

In spite of going through several rounds of litigation and long hours consideration, the Adhaar Controversy had once again popped up before the Supreme Court. The Constitution Bench addressed the review petition against the final verdict in K.S.  Puttaswamy (Aadhaar-5 Judges) v Union of India, (2019) 1 SCC 1. Among the issues which arose for decision, the Court had to answer two critical questions:

  • Whether the decision of the Speaker of the House of People under Article 110(3) of the Constitution, to certify a bill as a ‘Money Bill’ under Article 110(1) is final and binding, or can be subject to judicial review; and
  • If the decision is subject to judicial review, whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 had been correctly certified as a ‘Money Bill’ under Article 110(1) of the Constitution?

Read more…

[Beghar Foundation v. K.S. Puttaswamy, (2021) 3 SCC 1 ]


Kamini Sharma, Editorial Assistant has put this report together 

Appointments & TransfersNews

7 former Chief Justices/Judges of High Courts and 18 Advocates-on-Record/Advocates have been designated as Senior Advocates with effect from 8-12-2021.

S. No. Name of Retired Chief Justice/Judge High Courts where served Date of Retirement as CJ/Judge Enrolment Number
1. Dr J.N. Bhatt Gujarat/Patna 16-10-2007 1-8-1968
2. Surendra Kumar Allahabad 6-8-2013 UP00240/1977
3. S.K. Gangele Madhya Pradesh 25-7-2018 MP/786/1980
4. Vinod Prasad Allahabad/Orissa 27-11-2016 UP5122/1982
5. L. Narasimha Reddy Andhra Pradesh/Patna 31-8-2015 AP/92/1979
6. A.I.S Cheema Bombay 21-9-2016 MAH/691/1977
7. Noushad Ali Andhra Pradesh 7-3-2014 AP/80/1976

 

S. No. Name of the Advocate-on-Record/Advocate Enrolment Number
1. Mr Ravi Prakash Mehrotra D/373/1988
2. Mr S. Narasimha Bhat D/387/1981
3. Dr Krishan Singh Chauhan D/187/1987
4. Mr Vishwajit Singh D/227/1990
5. Mr Devendra Nath Goburdhun D/187/1980
6. Mr Vijay Panjwani MP/589/1976
7. Mr Pradeep Kumar Dey UP/2132/1978
8. Mr Anam D.N. Rao D/360/1987
9. Ms Rachana Srivastava UP/2880/1985
10. Mr Anil Kumar Sangal UP/2883/1976
11. Mr Rajiv Nanda D/380/1988
12. Mr Arunabha Chowdhury D 214/1996(R)
13. Mr Ravindra Kumar D/517/1986
14. Mr Vijay Kumar D/956/1990
15. Mr Manoj Goel D/375/1991
16. Mr Yadavilli Prabhakara Rao D/259/1976
17. Mr G. Umapathy D/21/1991
18. Mr P. Niroop AP/1023/1985

 

Legal RoundUpSupreme Court Roundups


JANUARY


Manish Kumar v. Union of India, (2021) 5 SCC 1

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

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

Read: IBC (Amendment) Act, 2020 upheld, albeit with directions

More stories from January: Supreme Court Monthly Roundup – January 2021


FEBRUARY


Vikash Kumar v. Union Public Service Commission,  (2021) 5 SCC 370

In a case where a citizen, who suffers from a writer’s cramp, was denied a scribe in the civil services’ examination, the 3-judge bench of Dr. DY Chandrachud*, Indira Banerjee and Sanjiv Khanna, JJ has held that writer’s cramp Forms part of Entry IV of the Schedule to the Rights of Persons with Disabilities Act, 2016 (RPwD Act 2016) and

“To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016.”

Read: “In their blooming and blossoming, we all bloom and blossom”; Read how denial of scribe to a person suffering from writer’s cramp led to SC issuing directions for formulation of new policies

More stories from February: Supreme Court Monthly Roundup – February 2021


MARCH


Nitisha v. Union of India, 2021 SCC OnLine SC 261

“The structures of our society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless, are a reflection of the insidious patriarchal system.”

In major win for women Officer in Indian Army, the division bench of Dr. DY Chandrachud* and MR Shah, JJ has held that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is arbitrary and irrational.

The Court hence, directed that the such requirement shall not be enforced while implementing the decision in Secretary, Ministry of Defence v. Babita Puniya;, (2020) 7 SCC 469.

Read: ‘Not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces’; Army’s evaluation of Women SSC Officers for grant of permanent commission arbitrary

More stories from March: Supreme Court Monthly Roundup – March 2021


APRIL


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.

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

More stories from April: Supreme Court Monthly Roundup – April 2021


MAY


Gautam Navlakha v. National Investigation Agency, 2021 SCC OnLine SC 382

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.

Indicating the criteria for house arrest, the Court highlighted factors like like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody, the ability to enforce the terms of the house arrest, etc.

Read: Open for Courts to order house arrest under Section 167 CrPC

More stories from May: Supreme Court Monthly Roundup – May 2021


JUNE


Jigya Yadav v. CBSE, (2021) 7 SCC 535

The 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ has held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

Read: Right to control one’s identity a fundamental right; CBSE must permit change of name for just cause

More stories from June: Supreme Court Monthly Roundup – June 2021


JULY


State of Kerala v. Leesamma Joseph,    (2021) 9 SCC 208

Dealing with the issue relating to the right of promotion under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ has held that a person with disability should be considered for promotion along with other persons working in the feeder cadre. It said that,

“There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted.”

Read: Govt must reserve posts for promotions for persons with disabilities even under 1995 PwD Act; explore other methods to avoid stagnation

More stories from July: Supreme Court Monthly Roundup – July 2021


AUGUST


Amazon.com NV Investment Holdings LLC v. Future Retail Ltd.,  2021 SCC OnLine SC 557

Holding that an award passed by Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996, a Division Bench of R.F. Nariman and B.R. Gavai, JJ. has ruled in favour of Amazon in the infamous Future-Amazon dispute. It has been held that the interim award in favour of Amazon, passed by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act.

Read: Amazon – Future Dispute| Emergency arbitrator’s award is referable to S. 17(1) of Indian Arbitration Act; enforceable under S. 17(2)

More stories from August: Supreme Court Monthly Roundup – August 2021


SEPTEMBER


ArcelorMittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal Ltd., 2021 SCC OnLine SC 718

A Division Bench comprising of Indira Banerjee and J.K. Maheshwari, JJ. held that once an Arbitral Tribunal is constituted, the court would not take up for consideration and apply its mind to an application for an interim measure, unless the remedy of applying to the arbitral tribunal for interim relief is inefficacious. However, this bar does not operate where already the application has been taken up for consideration and the court has applied its mind.

Read: SC resolves quandary over interplay of S. 9 and S. 17 of Arbitration Act

More stories from September: Supreme Court Monthly Roundup – September 2021


OCTOBER


Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985

The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

Read:

More stories from October: Supreme Court Monthly Roundup – October 2021


NOVEMBER


Attorney General for India v. Satish, 2021 SCC OnLine SC 1076

A 3-judge bench of UU Lalit, Bela Trivedi and S. Ravindra Bhat, JJ has set aside the Bombay High Court judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’.

Read: POCSO| “Touch”, “physical contact” can’t be restricted to “skin to skin contact”; “sexual intent” is the key. SC reverses Bombay HC’s “dangerous precedent” 

More stories from November: Supreme Court Monthly Roundup – November 2021


DECEMBER


Ravindra Kumar Dhariwal v. Union of India, 2021 SCC OnLine SC 1293

In a case where the CRPF had initiated disciplinary proceeding against a person with a medical history of obsessive compulsive disorder  and depression and has been undergoing treatment for the same since 2009, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has held that the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination as such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings.

Read: Disciplinary proceedings against person with mental disability is a facet of indirect discrimination; SC sets aside action against CRPF personnel

Legal RoundUpWeekly Rewind


STORY OF THE WEEK 


Three death row convicts to walk free as SC finds them “not guilty” of murdering six family members  

In a big relief to three death row convicts, a 3-judge bench of the Supreme Court has acquitted all of them of charges of killing 6 members of their own family after it was found that the prosecution had failed to prove the case beyond reasonable doubt. 

On 23rd January, 2014, 6 members of a family, including two children aged 15 and 8 were found brutally murdered.  

It was Prosecution’s case that one Momin Khan, with his wife Nazra, along with his first cousin and nephew came armed with knives and assaulted his parents, his brother, sister-in-law and two children. While the Trial Court convicted and sentenced all 4 to death, the Allahabad High Court affirmed the sentence imposed on 3 men but acquitted the woman.  

The Supreme Court, however, found several loopholes and inconsistencies in the prosecution story and was surprised at how the Trial Court and the High Court had dealt with the case in such a casual manner while considering the question of life and death of the accused. 

The Court observed that a greater degree of scrutiny, care and circumspection was expected while directing the accused to be hanged till death. 

Read here: Three death row convicts to walk free as SC finds them “not guilty” of murdering six family members 


SUPREME COURT


Consumer Protection| Can written statement be accepted beyond 45 days? SC settles the conundrum once and for all 

After a series of judgments, before and after the Constitution Bench verdict in New India Assurance company Limited case on March 4, 2020, gave contradictory views with respect to discretion of NCDRC to condone the delay beyond 45 days, thereby creating uncertainty over the applicability of the Constitution Bench verdict, the Supreme Court has settled the controversy once and for all and has held that the Constitution Bench judgment would not affect applications that were pending or decided before March 4, 2020. 

On March 4, 2020, the Constitution Bench had held that the limitation period under Section 13(2)3 of the Consumer Protection Act 1986 could not be extended beyond the statutorily prescribed period of forty-five days. 

Read here: Can written statement be accepted beyond 45 days? SC settles the conundrum once and for all 

Time to do away with Discretionary quota for allotment of Government Largesse 

Noticing that the allotment of government largesse on the basis of discretionary quota inevitably leads to corruption, nepotism and favouritism, the Supreme Court has suggested that discretionary quota should be done away with, and allotments of the public properties/plots must be through public auction by and large. 

The observation came in a case where the officials of the Bhubaneswar Development Authority and the Housing and Urban Development Department, Odisha Deptt hatched a criminal conspiracy for allotment of 10 plots in the discretionary quota arbitrarily and to their own family members/relatives. 

Read here: Time to do away with Discretionary quota for allotment of Government Largesse 


HIGH COURTS


KERALA HIGH COURT

Forced Conversion Therapy of LGBTQA+ community; HC directs State to constitute an expert committee for forming guidelines against such therapies 

In an important ruling on the rights of the LGBTQA community, the Kerala High Court has directed the Kerala Government to take strict action against the forced conversion therapy of LGBTQIA+ Community in the State. The Bench also directed the government to constitute an expert committee and form a guideline based on that in this regard. 

Read here: Forced Conversion Therapy of LGBTQA+ community; HC directs State to constitute an expert committee for forming guidelines against such therapies

Husband harasses wife, portrays her as a psychiatric patient; HC slams Child Right Commission for directing psychiatric treatment of wife without any medical assessment 

In an interesting development, Kerala High Court slammed the Kerala State Commission for Child Rights for directing psychiatric treatment for wife of the accused without any jurisdiction. Expressing anguish over the factum that the Commission had aided the accused in trespassing the house of the victim and forcefully admitting her in the hospital, the Bench remarked, 

“The case is very distressing insofar as, the respondent , prima facie has been attempting to style his wife as a mental patient before various forums.” 

The Court noticed that the respondent; employed in the Law Department of the State and also once appointed as a temporary Magistrate, wants to use his official clout to witch-hunt his wife and children.

Read here: Husband harasses wife, portrays her as a psychiatric patient; HC slams Child Right Commission for directing psychiatric treatment of wife without any medical assessment

Accused has no right to Narco Analysis Test to prove innocence; HC denies permission to 68 years old POCSO accused from voluntarily undergoing Narco Test 

Holding that accused have no rights to claim subjecting themselves to Narcotic Analysis Test to prove innocence, the Kerala High Court observed the limitation of Narco Test and stated that,  

“The possibility of accused himself making exculpatory statements to support his defence also cannot be ruled out. There is no mechanism or the present Investigating Agency is also not equipped to assess the credibility of such revelations of the accused.”

Read here: Accused has no right to Narco Analysis Test to prove innocence; HC denies permission to 68 years old POCSO accused from voluntarily undergoing Narco Test

Whether gifts given to the bride during marriage by parents will be covered under ‘Dowry’ or not? 

In a very important decision Kerala High Court held that, 

“Presents given at the time of marriage to the bride without any demand having made in that behalf and which have been entered in a list-maintained in accordance with rules made under the Dowry Prohibition Act will not come within the purview of Section 3(1) of Dowry Prohibition Act which prohibits giving or taking of dowry.”

Read here: Whether gifts given to the bride during marriage by parents will be covered under ‘Dowry’ or not?


DELHI HIGH COURT

“And Then There Were None”: Agatha Christie’s most famous work in Del HC for trademark registration 

Justice Harishankar, expressing that he was an “avowed aficionado and an admirer of Agatha Christie”, quashed the order which refused the trademark registration to Agatha Christies’ most well-known work  “And Then There Were None”. 

Delhi High Court also observed that, If the mark is distinctive, and is not identical or confusingly or deceptively similar to any earlier mark which is registered or in use from a prior date in respect of similar goods or services, or which results in the passing off, by the applicant, of its goods or services as those of another, registration of the mark is a matter of right.. 

Read here: “And Then There Were None”: Agatha Christie’s most famous work in Del HC for trademark registration

If an advocate has appeared for a party in judicial or quasi-judicial capacity or even as a mediator, Can Court injunct him from appearing to maintain stream of justice? 

In another decision, the Delhi High Court while expressing its opinion on the position of an advocate in law expressed that,  

an advocate owes, to the litigating public, the Court, his client and to the opposite parties, the highest degree of probity and transparency. 

The Court elaborated that where the Court finds that the appearance of an advocate, before it, is not in keeping with the standards expected of the legal profession and is likely to prejudice a fair espousal and prosecution of the lis, the Court can step in and restrain such appearance. 

Read here: If an advocate has appeared for a party in judicial or quasi-judicial capacity or even as a mediator, Can Court injunct him from appearing to maintain stream of justice?

Daughter-in-law claims right of residence in late husband’s mothers’ property under the head ‘Shared Household’: Mother-in-law approaches Del HC seeking eviction of daughter-in-law

Explaining the significance of ‘shared household’, the Delh Highi Court, explained that where a residence is clearly a shared household, it would not bar the owner from claiming eviction against her daughter-in-law, if circumstances call for it. While allowing the mother-in-law’s prayer seeking possession of the subject property to the exclusion of the daughter-in-law, the Court said that 

“The protection under the DV Act assuring the residence of the aggrieved person in the shared household does not vest any proprietary or indefeasible right on the aggrieved person. It is also subject to eviction being initiated in accordance with law.” 

Read here: Daughter-in-law claims right of residence in late husband’s mothers’ property under the head ‘Shared Household’: Mother-in-law approaches Del HC seeking eviction of daughter-in-law 


LEGISLATION UPDATES 


Bihar Biological Diversity (Amendment) Rules, 2021 

The Government of Bihar has notified the Bihar Biological Diversity (Amendment) Rules, 2021 to extend the tenure of Biodiversity Management Committees till tenure of Government Advisory Committees. 

Read here: Bihar Biological Diversity (Amendment) Rules, 2021  

Maharashtra Government revises Excise Duty for wine manufacturers 

The Government of Maharashtra has revised the Excise Duty for wine manufacturers holding licence in FORM BRL. 

As a result, the wines manufactured from any substance and without addition of alcohol and without manufacturing or blending with imported concentrate or imported Bulk Wine shall be exempted from Excise Duty in excess of Rs. 10 per bulk litre. 

Read here:Maharashtra Government revises Excise Duty for wine manufacturers

Dam Safety Act, 2021 

The Dam Safety Act received President’s assent in order to provide for surveillance, inspection, operation and maintenance of the specified dam for prevention of dam failure related disasters and to provide for institutional mechanism to ensure their safe functioning.  

Read details report about the Act on SCC Blog 

Read here: Dam Safety Act, 2021 


 

Experts CornerTarun Jain (Tax Practitioner)

Name is important. It assigns an identity, being indicative of the background, connections and ties associated with the name. Thus, name is often determinative and consequential. In legal context, name, however, is irrelevant for, according to settled legal position, nothing turns on the nomenclature of the tax or a provision in fiscal laws. This article traverses this aspect particularly in the wake of a recent decision of the Supreme Court, in Jalkal Vibhag[1], which concludes that “water and sewage tax” is actually not a tax in relation to either water or sewage and is instead a “tax on land and buildings”.

 

In Jalkal Vibhag[2], repelling the challenge to the constitutional validity of the water and sewage tax, the Supreme Court inter alia noted the following to delineate the relevance (or rather irrelevance) of the name assigned to a particular levy:

  1. 38. The nomenclature that the legislature has ascribed to the tax does not determine either the nature of the levy or its true and essential character. The legislature may choose a label for a tax. The label however will not determine or for that matter clarify the nature of the levy. The nature of the levy has to be deduced from the nature of the tax, the provision which specifies the taxing event and, as in the case of Section 52, the unit upon which the levy is to be imposed. The legislature may choose a label for the tax based on the nature of the levy. On the other hand, the legislature may choose a label having a relationship with the function of the authority which imposes the tax as in the present case. The tax has been labelled as the water tax or a sewerage tax simply because it is imposed by the Jal Sansthan constituted under the U.P. Water Supply and Sewerage Act. That does not alter the nature of the levy which in substance is a tax on lands and buildings within the meaning of Entry 49 of List II of the Seventh Schedule.

                                             *                 *                    *

  1. 48. In view of the above decisions, there can be no manner of doubt that the levy which is imposed under Section 52 is a tax on lands and buildings situated within the area of the Jal Sansthan for the purpose of imposing the tax. The tax is imposed on premises which fall within the territorial area of the Jal Sansthan. The expression “premises” is defined to mean land and building. The tax is on lands and buildings. The nomenclature of the tax does not indicate its true character and substance. Nor does the fact that the law enables the Jal Sansthan to levy the tax render it a tax on water. The charging section indicates in unambiguous terms that it is a tax on lands and buildings.

 

Multiple propositions follow from the aforesaid observations:

(a) The name of a tax neither describes the nature of the tax nor is determinative of its essential character.

(b)  There is an absolute choice available to the legislature to name a tax in any fashion it desires. The name, after all, is just a label which is thoroughly insignificant.

 (c) The nature of the tax is neither linked nor altered by the name chosen by the legislature. Instead, the nature of the tax is to be assessed from the intrinsic attributes and characterises of the tax.

(d) The fact that a particular name has been given to a tax does not imply that it cannot be a different type of tax. For illustration, the nomenclature of the levy in this case as a water and sewerage tax does not detract from the levy actually being a tax on land and building.

 

Having said that, it must be appreciated that neither the decision of the Supreme Court in Jalkal Vibhag[3] nor the aforesaid propositions are the first on the subject. It is now fairly settled, for illustration by way of the categorical declaration of the Supreme Court in terms of its decision in AIFTP, that the “nomenclature of a levy is not conclusive for deciding its true character and nature” and instead, “[f]or deciding the true character and nature of a particular levy, with reference to the legislative competence, the court has to look into the pith and substance of the legislation.”[4] Similar observations were earlier made in Continental wherein it was declared by the Supreme Court that the scope and coverage of the fiscal law is not determined by the nomenclature used in the relevant statutory provision.[5]

 

The decision in Jalkal Vibhag[6] is, however, critical from another perspective, which is that it overrules an earlier decision of the Supreme Court in Union of India v. State of U.P.[7] The relevance of this aspect is the fact that in this earlier decision in State of U.P.[8], the Supreme Court had opined on the very same provision (i.e. Section 52 of the U.P. Water Supply and Sewerage Act, 1975) and also similarly concluded that nomenclature of the levy is irrelevant. However, in State of U.P.[9] the Supreme Court had concluded that the levy under Section 52 was not a “tax” and instead was a “fee” even though Section 52 referred the levy as a “tax”. It was inter alia observed in State of U.P.[10] that “[t]hough the charge was loosely termed as ‘tax’ but as already mentioned before, nomenclature is not important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee.…”[11] However, the Supreme Court in Jalkal Vibhag[12] overruled State of U.P.[13] to conclude that the levy under Section 52 was indeed a tax, though not a water tax or a sewage tax and instead a tax on land and building.[14] In short, the Supreme Court in both State of U.P.[15] and Jalkal Vibhag[16] concurs that the nomenclature of the levy (under Section 52) is irrelevant and yet comes to different and diametrically opposite conclusions. This aspect illustrates both the criticality and nebulous nature of the issues and consequences arising out of irrelevance assigned to nomenclature of the levy.

 

An earlier decision of the Supreme Court in Drive-In sheds further insights on this aspect.[17] In this case the High Court had declared as ultra vires the provisions of the Karnataka Entertainments Tax Act, 1958 insofar as they imposed entertainment tax upon admission of cars into drive-in theatres. In appeal the Supreme Court declared that the nomenclature of the levy was not decisive of the matter and thus, even though the provision gave the impression that the levy was on admission of cars in the drive-in theatre actually “the levy is on the person entertained who takes the car inside the theatre and watches the film while sitting in his car”. Thus, the Supreme Court reversed the decision of the High Court on the ground that the true nature of the levy had to be determined on the basis of the pith and substance of the levy and not on the basis of the expressions employed and named in the provision.

 

In fact, it is not just the nature of the levy which is considered as not dependent upon the nomenclature. Instead, in the context of fiscal laws, the assigned name is irrelevant for various other aspects.[18] To illustrate, the nomenclature assigned to the entries in the schedules to the taxing laws (particularly commodity taxation), is often overlooked to give way to the principles of interpretation which determine the actual construct of these entries.[19] As another illustration, the nomenclature given in the entries to the books of accounts is inconsequential and their actual treatment in the books alone is relevant for determining the application of the fiscal laws thereupon.[20] The same legal treatment is extended to the nomenclature given in an agreement between private parties, which is not considered decisive to determine their intention,[21] similar to the description accorded by the parties to their respective obligations, which have to be determined independent of the terminology deployed in the agreement.[22] This is similar to the interpretative principle commonly applied under commercial and private laws wherein it is near universally acknowledged that headings are not consequential to determine the parties’ intentions.[23]

 

The aforesaid reflections on the irrelevance of nomenclature, however, must be caveated with the declaration which is made in certain decisions where nomenclature is indeed relied upon, albeit for a limited purpose and subject to conditions. A limited reliance on the assigned nomenclature is witnessed in instances where the legislative scheme reflects that a particular nomenclature has been employed for a specific purpose and the legislature has consciously chosen to distinguish the nomenclature at other places. Such was the situation before the Supreme Court in Sun Oil wherein it was inter alia observed that the “perusal of the provisions extracted above which are clear and unambiguous shows that the legislature itself has referred to two forms of impost under the Act differently. In Section 4, it is referred to as ‘a tax’, whereas in Section 4-AAA, it is referred to as ‘a turnover tax’. The difference in nomenclature is consistently maintained in the said sections as well as other sections of the Act.”[24] Thus, the Supreme Court assigned relative weightage to the nomenclature assigned in the law to describe a tax.

 

Subject to the above minor deviation, it appears that on an overall basis nomenclature is generally not given much importance in the construction of fiscal statutes. For that matter, it stands clarified that a levy can be considered a tax even though the law refers to such levy as fee once the intrinsic characteristics of the levy satisfy the distinguishing criteria.[25] So much from the name in tax laws.

 


† Tarun Jain, Advocate, Supreme Court of India; LLM (Taxation), London School of Economics.

[1] Jalkal Vibhag Nagar Nigam v. Pradeshiya Industrial and Investment Corpn., 2021 SCC Online SC 960.

[2] 2021 SCC Online SC 960.

[3] 2021 SCC Online SC 960.

[4] All India Federation of Tax Practitioners v. Union of India, (2007) 7 SCC 527, seeking to delineate the legislative provisions relating to levy of service tax. See also, Goodyear India Ltd. v. State of Haryana, (1990) 2 SCC 71 and Municipal Council, Kota v. Delhi Cloth and General Mills Co. Ltd., (2001) 3 SCC 654 to similar effect.

[5] Continental Construction Ltd. v. CIT, 1992 Supp (2) SCC 567, inter alia reflecting upon the scope of deemed income under Section 9 of the Income Tax Act.

[6] 2021 SCC Online SC 960.

[7] (2007) 11 SCC 324.

[8] (2007) 11 SCC 324.

[9] (2007) 11 SCC 324.

[10] (2007) 11 SCC 324.

[11] This decision inter alia also observed that “[o]ur attention was also invited to a decision of this Court in Vijayalashmi Rice Mill v. CTO, (2006) 6 SCC 763. In this case, Their Lordships considered the distinction between fee, cesses and taxes. Their Lordships held that ordinarily a tax generates general revenue not for any service rendered. However, the nomenclature is not important. Sometimes a ‘tax’ may be in reality a fee, depending upon its nature.”

[12] 2021 SCC Online SC 960.

[13] (2007) 11 SCC 324.

[14] It is critical to note that even earlier, the Supreme Court in Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, AIR 1965 SC 895 had concluded similarly to opine that water tax in that case was not a tax on water but was a tax on land and building.

[15] (2007) 11 SCC 324.

[16] 2021 SCC Online SC 960.

[17] State of Karnataka v. Drive-In Enterprises, (2001) 4 SCC 60.

[18] See generally, Shrimant Padmaraje R. Kadambande v. CIT, (1992) 3 SCC 432.

[19] For illustration, see Akbar Badrudin Giwani v. Collector of Customs, (1990) 2 SCC 203; Atul Glass Industries (P) Ltd. v. CCE, (1986) 3 SCC 480; etc.

[20] CIT v. Groz-Beckert Saboo Ltd., (1979) 1 SCC 340.

[21] CIT v. Alagappa Textile (Cochin) Ltd., (1980) 1 SCC 214.

[22] Central Wines v. CTO, (1987) 2 SCC 371 inter alia observing that “consideration obtained by the vendor from the vendee would in the eye of the law be the sale price regardless of what nomenclature is given to a part of the price charged by him.”

[23] See generally, Sasan Power Ltd. v. North American Coal Corpn. (India) (P) Ltd. (2016) 10 SCC 813. See, contra, Eastern Coalfields Ltd. v. Sanjay Transport Agency, (2009) 7 SCC 345.

[24] Sun Oil Co. (P) Ltd. v. State of W.B., (1998) 7 SCC 237.

[25] For illustration, see State of T.N. v. TVL South Indian Sugar Mills Assn., (2015) 13 SCC 748.

Legal RoundUpSupreme Court Roundups

“It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”

-Justice S. Ravindra Bhat

Attorney General for India v. Satish2021 SCC OnLine SC 1076


TOP STORIES


Story of the Month

POCSO| “Touch”, “physical contact” can’t be restricted to “skin to skin contact”; “sexual intent” is the key. SC reverses Bombay HC’s “dangerous precedent” 

A 3-judge bench of UU Lalit, Bela Trivedi and S. Ravindra Bhat, JJ has set aside the Bombay High Court judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’. 

Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench had expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. The said judgment had caused a huge uproar in January 2021, especially since the “shocking” opinion came from a woman judge. 

When the matter reached before the Supreme Court, Justice Bela Trivedi, writing for herself and Justice UU Lalit, held that

“The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.” 

Read more… 


SC relief to death row convicts who killed 8 members of their brother’s family over property dispute; To serve LI for 30 years

“There is a bounden duty cast on the Courts to elicit information of all the relevant factors and consider those regarding the possibility of reformation, even if the accused remains silent.”

Read more…

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5-year-old raped, killed, thrown into a stream: SC commutes death sentence to life imprisonment

“There is no doubt that the appellant has committed an abhorrent crime, and for this we believe that incarceration for life will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live he poses a grave and serious threat to the society, and the imprisonment for life in our opinion would also ward off any such threat.”

Read more…

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NEET| “Behind abstract number of ‘15 lakh students’ lie human lives”; SC asks NTA to rectify injustice caused to a “one-off” PwBD student

“Education plays a key role in social and economic inclusion and effective participation in society. Inclusive education is indispensable for ensuring universal and non-discriminatory access to education.”

Read more…

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Land Acquisition| Applying 2-year limitation period as per Section 11A of 1894 Act for passing award in pending cases under Section 24(1)(a) of the 2013 Act impractical

Practical absurdities and anomalies may arise if the two-year period for making of an award in terms of Section 11A of the 1894 Act commencing from the date of issue of the declaration is applied to the awards to be made under Section 24(1)(a) of the 2013 Act.

Read more…


EXPLAINERS 



MORE STORIES 


Contractual clauses cannot run contrary to legislative intent

“General phraseology of a contract cannot constitute agreement to apply statutory amendments retrospectively.”

Read more…

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Disinvesting of Hindustan Zinc Ltd.; SC smells irregularities in bidding process, directs full-fledged CBI enquiry in the matter

“There is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest.”

Read more…

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Section 138 NI Act| Can’t defeat the complaint merely because it does not elaborate upon Managing Director’s authorization

“It would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation. The artificial person being the Company had to act through a person/official, which logically would include the Chairman or Managing Director. Only the existence of authorisation could be verified.”

Read more…

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Some out of five accused abscond; remaining can still be tried for dacoity

“Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’.”

Read more…

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National Security Act| Delay in considering representation; non-communication of rejection strike at the heart of fundamental rights of detenu

“Preventive detention in independent India is to be exercised with utmost regard to constitutional safeguards.”

Read more…

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Merely having an explicit clause not sufficient to make time the essence of the contract

Whether time is of the essence in a contract’, has to be culled out from the reading of the entire contract as well as the surrounding circumstances.”

Read more…

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Tamil Nadu’s loan waiver Scheme for small and marginal farmers upheld

The percentage distribution of the indebted agricultural households depicted the poverty that envelops the class of small and marginal farmers.

Read more…

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Contractual bar on interest doesn’t only bar the parties from claiming it but also the Arbitrator from awarding it

“Once the contractor agrees that he shall not be entitled to interest on the amounts payable under the contract, including the interest upon the earnest money and the security deposit, the arbitrator in the arbitration proceedings being the creature of the contract has no power to award interest”

Read more…

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Decreeing a claim while exercising jurisdiction under Section 37 of Arbitration and Conciliation Act 1996 impermissible

“While considering a petition under Section 34 of the 1996 Act, it is well-settled that the court does not act as an appellate forum. The grounds on which interference with an arbitral award is contemplated are structured by the provisions of Section 34.”

Read more…

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‘Practically difficult to achieve absolute consistency in sentencing’ but here’s what the Courts should do

“It must be candidly acknowledged that there is an element of discretion present while adjudicating the issue of sentence, however, the same cannot be exercised in an unprincipled manner.”

Read more…

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High Court cannot dismiss second appeal in limine without assigning any reasons

“Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted.”

Read more…

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HC quashes proceedings based on “draft charge-sheet” yet to be placed before Magistrate! Clear abuse of S. 482 CrPC, holds SC

The High Court transgressed the scope of the powers conferred upon it by restricting the police from submitting the charge-sheet before the Magistrate and by further perusing the contents of the “draft charge-sheet” in the proceedings before it.

Read more…

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Not wise to shift burden of proof on accused merely because of rampant increase in henious crimes; SC acquits man in a 2009 dacoity case

“The acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent.”

Read more…

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SC not pleased with Raj HC granting bail merely by “keeping in view the facts and circumstances of the case”; says Courts must record reasons

“The duty to record reasons cannot be obviated by recording submissions, followed by an omnibus “in the facts and circumstances” formula.”

Read more…

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Not open for Courts to usurp function of disciplinary authority; Can’t substitute one disciplinary punishment with other

“The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon.”

Read more…

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Land Acquisition| Right under Section 5A of 1894 Act to stave off compulsory acquisition cannot be unjustifiably extinguished

“The authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual.”

Read more…

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‘Project Proponent not expected to anticipate changes in Environmental Clearance regimes’; SC protects already constructed buildings by Pune Developer

“A Project Proponent is not expected to anticipate the changes in Environmental Clearance (EC) regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending.”

Read more…

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‘Irregularity in cognizance order does not vitiate trial’; SC finds no “failure of justice” in cognizance by Special Judge in Karnataka iron ore illegal mining case

“For vitiating the proceedings, something more than a mere lack of authority has to be established.”

Read more…

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SC allows sand mining in Bihar; says total ban gives rise to illegal mining; causes huge loss to public exchequer

“When legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalization and at times, loss of human lives.”

Read more…

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Law abiding ex-employees cannot be put to disadvantage merely for vacating the quarters on notice; SC holds decision to grant quarters only to unauthorized occupants is illegal

“To allot the plots to those employees who were found to be in unauthorized occupation would tantamount to giving a premium to their illegality and remaining in occupation and possession of the quarters illegally and unauthorizedly.”

Read more…
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Military Services| “Much water has flown in the Ganges”; SC expresses dismay over appointments made from 1983 select panel after a lapse of 4-5 years

“No one has questioned their appointments…more than 34 years have rolled by and much water has flown in the Ganges and persons have later promoted to their promotional posts and few of them have retired.”

Read more…

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Written instruments entitled to much higher degree of credit than parol evidence; Old partnership deed clauses not superseded by new deed will continue to operate

“It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment the parties to be proved by the uncertain testimony of slippery memory.”

Read more…

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Mere renumbering of case file by the NIA Mumbai does not take away power of the ATS to continue investigation; SC affirms HC’s decision in Bombay bomb blast conspiracy case

“Mere receipt and recording of such information (through an FIR) by itself does not mean that the investigation has also commenced. Rather, the investigation commences when the police takes the first step (of proceeding to the spot or collecting evidence or speaking to a witness or arresting the accused person) on the basis of such information.”

Read more…

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Lessee learns of cancellation of tender from Newspaper Report. SC holds authority can’t circumvent the requirement of providing effective hearing

“Natural justice is the sworn enemy of intolerant authority”

Read more…


CASES REPORTED IN SUPREME COURT CASES


An overview of the cases reported in the latest SCC Volumes

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2021 SCC Vol. 7 Part 3

2021 SCC Vol. 7 Part 4

2021 SCC Vol. 8 Part 1

2021 SCC Vol. 8 Part 2

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SCC Snippets on important law points 

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Using ‘promotion’ and ‘upgradation’ interchangeably? You won’t after reading this SC verdict

In Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy(2011) 9 SCC 510, the bench of RV Raveendran and Markandey Katju, JJ laid down principles relating to the promotion and upgradation.

Read more…

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Contract of Insurance vis-à-vis the requirement of uberrima fides

In Vikram Greentech (I) Ltd. v. New India Assurance Co. Ltd., (2009) 5 SCC 599, the bench of DK Jain and RM Lodha, JJ explained how a contract of insurance needs to be interpreted.

Read more…


Case BriefsForeign Courts

United Kingdom Supreme Court: While expressing that, the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity applies to everyone in society, Bench of Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens and Lady Rose, JJ., laid down a very detailed decision on ‘consent’ with respect to sexual relations and the catch in the present matter was the diagnosis of autistic disorder of the appellant.

Issue

Present appeal raised issues of profound significance under the Mental Capacity Act 2005 for the appellant and others like him with impairment of, or a disturbance in the functioning of mind or brain which potentially renders them unable to make a decision for themselves in relation to having sexual relations.

Whether the information relevant to JB’s (appellant) decision to have sexual relations includes the fact that the other person must be able to consent and give and maintain consent throughout?

Factual Background

Appellant who was diagnosed with autistic spectrum disorder combined with impaired cognition expressed a strong desire to have a girlfriend and engage in sexual relations. His previous behaviour towards women-led the respondent local authority to conclude that he cannot safely have unsupervised contact with them.

Questions to be considered:

  • Does a person need to understand that their sexual partner must have the capacity to consent to sex?
  • Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity?

Analysis

The function of Section 27 of the Mental Capacity Act 2005 is to identify certain decisions which are so personal to the individual concerned that no one may take them on his behalf if he is unable to take them for himself.

Court added that,

Section 27 only makes clear that “where a court finds that a person lacks the capacity to consent to sexual relations, then the court does not have any jurisdiction to give consent on that person’s behalf to any specific sexual encounter”.

Mr McKendrick sought to describe JB’s wish to initiate sexual relations as a desire rather than being a decision within Section 2(1) MCA.

To the above-stated, Bench expressed that a wish to initiate sexual relations can be described as a desire to do, but clearly a desire gives rise to a decision as to whether to fulfil that desire.

It may be helpful to observe that the terminology of a capacity to decide to “engage in” sexual relations embraces both (i) P’s capacity to consent to sexual relations initiated by the other party and (ii) P’s capacity to understand that, in relation to sexual relations initiated by P, the other party must be able to consent to sexual relations and must in fact be consenting, and consenting throughout, to the sexual relations.

 Decision

Evaluation of JB’s capacity to make a decision for himself is in relation to “the matter” of his “engaging in” sexual relations. Information relevant to that decision includes the fact that the other person must have the ability to consent to sexual activity and must in fact consent before and throughout the sexual activity.

Supreme Court opined that under Section 3(1)(a) MCA, JB should be able to understand that information and should be able to use or weigh it as part of the decision-making process.

In the present matter, JB was unable to make a decision for himself in relation to the stated matter because of an autistic impairment of his mind. Though, Court declined to make a final declaration that JB does not have the capacity to make a decision to engage in sexual relations.

Hence, the matter be remitted to the judge for reconsideration and the appeal was dismissed. [A Local Authority v. JB, [2021] 3 WLR 1381, decided on 24-11-2021]


Advocates before the Court:

 Appellant

John McKendrick QC Ian P Brownhill Helen Law (Instructed by Enable Law)

Respondent

Vikram Sachdeva QC

Richard Whittam QC Alexander Ruck Keene
Fiona Paterson (Instructed by Wolferstans Solicitors)

1st Intervener (Respond) (written submissions only) Aswini Weereratne QC Sophy Miles Mary-Rachel McCabe Caragh Nimmo (Instructed by Irwin Mitchell)

2nd Intervener (Centre for Women’s Justice) (written submissions only)
Victoria Butler-Cole QC
Tim James-Matthews (Instructed by Centre for Women’s Justice)

Appointments & TransfersNews

Supreme Court Collegium recommends the transfer of Justice Munishwar Nath Bhandari, Allahabad High Court to Madras High Court.


Collegium Statement

Supreme Court of India

Legal RoundUpSupreme Court Roundups

“In matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the State gets a free pass every time the spectre of “national security” is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review.”

Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985


STORY OF THE MONTH


PEGASUS SPYWARE CASE

The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

“… it was an extremely uphill task to find and select experts who are free from prejudices, are independent and competent.”

Read more…

Also Read:

‘National security cannot be the bugbear that the judiciary shies away from’. Here’s why the initially reluctant Supreme Court finally decided to interfere

Surveillance versus right to privacy| Five unmissable quotes from the Pegasus Order


UNMISSABLE STORIES


Pupil-teacher ratio for special schools; special teachers for Children with Special Needs in general schools: Read SC’s stopgap arrangement till Centre notifies norms

The Court has directed the Central Government to notify the norms and standards of pupil-teacher ratio for special schools and also separate norms for special teachers who alone can impart education and training to Children/Child with Special Needs (CwSN) in the general schools.

Read more...

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Karnataka High Court calls person committing suicide a ‘weakling’! Don’t diminish the gravity of mental health issues, says SC

“The mental health of a person cannot be compressed into a one size fits all approach.”

Read more…

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Supreme Court temporarily restores Yatin Oza’s Senior Advocate designation for two years

“All we are seeking to do is to  give him a chance by providing a window of two years to show that he truly means what he has assured us. We can only hope that the petitioner abides by his assurances and does not give any cause for the High Court or for us to think otherwise.”

Read more…

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Gauri Lankesh murder| Direct role in commission of an organized crime not necessary. HC “manifestly wrong” in quashing charges against Mohan Nayak N: SC

The High Court, without analysing the material presented along with chargesheet on the basis of which cognizance has been taken by the competent Court including against Mohan Nayak. N, concerning commission of organized crime by the organized crime syndicate of which he is allegedly a member, committed manifest error and exceeded its jurisdiction in quashing the chargesheet.

Read more…

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Reprimand for indiscipline does not amount to abetment of suicide of a “hypersensitive” student: SC

‘Spare the rod and spoil the child’ an old saying may have lost its relevance in present days and Corporal punishment to the child is not recognised by law but that does not mean that a teacher or school authorities have to shut their eyes to any indiscipline act of a student.

Read more…

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“Revenue record is not a document of title”; Mere mentioning of name in revenue records will not create any right, title or interest over forest land: SC

“It would be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries for notification Section 4 of the Forest Act…specific details are not required.”

Read more…


EXPLAINERS



MORE STORIES


Section 138 of NI Act| No hard and fast rule that a cheque issued as security can never be presented by drawee: Supreme Court

“A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance.”

Read more…

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Section 138 NI Act| Once settlement has been entered into, the complainant cannot pursue the original complaint: Supreme Court

The settlement agreement subsumes the original complaint.

Read more…

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In absence of any settlement, Lok Adalat can’t enter into merits of writ petition and dismiss it on merits: Supreme Court

“Once there is no compromise and/or a settlement between the parties before the Lok Adalat, as provided in sub-section (5) of Section 20, the matter has to be returned to the Court from where the matter was referred to Lok Adalat for deciding the matter on merits by the concerned court.”

Read more…

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UAPA| ‘Mere association with a terrorist organisation not enough’. SC grants bail to 2 Kerala men booked over Maoist links

“The association and the support have to be with intention of furthering the activities of a terrorist organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet.”

Read more…

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IBC and Limitation| Words “order is made available to the aggrieved party” consciously omitted from Section 61(1)&(2): SC

“The IBC, as a prescriptive mechanism, affecting rights of stakeholders who are not necessarily parties to the proceedings, mandates diligence on the part of applicants who are aggrieved by the outcome of their litigation.”

Read more…

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Vicarious liability in a contempt case? Contempt jurisdiction knows no such concept: Supreme Court

“Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge.”

Read more…

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MV Act| Tribunals, Courts must recognize actual needs; award just compensation to help restore dignity of claimant with permanent disability: SC

“The very fact that a healthy person turns into an invalid, being deprived of normal companionship, and incapable of leading a productive life, makes one suffer the loss of self-dignity. Such a Claimant must not be viewed as a modern day Oliver Twist, having to make entreaties as the boy in the orphanage in Charles Dickens’s classic, “Please Sir, I want some more”. The efforts must be to substantially ameliorate the misery of the claimant and recognize his actual needs by accounting for the ground realities. The measures should however be in correct proportion.”

Read more…

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Nomenclature of a Tax does not determine the nature of the levy or its true character: Supreme Court

“The legislature may choose a label for the tax based on the nature of the levy. On the other hand, the legislature may choose a label having a relationship with the function of the authority which imposes the tax …”

Read more…

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Anticipatory bail to an absconder? Supreme Court says no!

If anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail.

Read more…

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Respondent can’t seek declaration of petitioner’s “second marriage” in a divorce proceeding; Relief can’t be prayed qua third party under Section 23A HMA: SC

Under the provisions of the Hindu Marriage Act, the relief of divorce, judicial separation etc. can be between the husband and the wife only and cannot extend to the third party.

Read more…

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Appellate Courts can’t “unnecessarily create” suspicion in absence of objection to validity of a Will: Supreme Court

“A testamentary court is not a court of suspicion but that of conscience.”

Read more…

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What amounts to attempt to rape? Supreme Court explains in a 2005 attempted rape of minor girls

`Attempt’ starts where ‘preparation’ comes to an end, though it falls short of actual commission of the crime.

Read more…

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Creation and/or sanction of the posts is the sole prerogative of Government; Courts cannot interfere: Supreme Court

Framing of any scheme is no function of the Court and is the sole prerogative of the Government.

Read more…

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Kashmiri migrants can’t retain Government accommodation for indefinite period after retirement: Supreme Court

The compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively.

Read more…

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‘Half a century old litigation, we wish it is the knock out round!’ SC holds objections can’t be raised in instalments; Res judicata applicable on execution proceedings

“…the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution.”

Read more…

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Dowry Death| Absconding mother-in-law’s alleged ‘key role’ not at par with deceased’s brother-in-law. Bail cancelled: Supreme Court

The Investigating Agency, deserves a free hand to investigate the role of the Respondent-Mother-in-law, if any, in the unnatural and untimely death of her daughter in-law.

Read more…

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Not ‘honourably’ acquitted in a case? Employer can’t be compelled to give appointment: SC

Acquittal giving benefit of doubt would not automatically lead to reinstatement of candidate unless the rules provide so.

Read more…

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“Voluntary retirement v/s Resignation”; Supreme Court cogitates technicalities of legal terms and their implication in Armed Forces

“Having tendered ‘resignation’, the respondent had to suffer the consequences and could not be permitted to take ‘U’ turn and say that what the respondent wanted was ‘premature retirement’ and not ‘resignation’.”

Read more…

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Municipal Council Delhi, whether owner or licensee of the land transferred by the Government? Supreme Court clarifies nature of the title

“…the letters dated 21-05-2008 and 08-07-2008 are interdepartmental communication and not any policy decision or circular meant for public. Thus, such interdepartmental communications are not the enforceable orders of the Union or of the Council.”

Read more…

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Environmental Watchdog | NGT could act upon a letter written to it but cannot be triggered suo motu on learning about an environmental exigency? Supreme Court Verdict

Whether the National Green Tribunal has the power to exercise Suo Motu jurisdiction in discharge of its functions under the NGT Act, 2010?

Read more…

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Whether registration of family settlement not “affecting” immovable property compulsory? Supreme Court decides admissibility of such settlement as evidence

“If the Khararunama by itself, does not ‘affect’ immovable property… there would be no breach of Section 49(1)(c), as it is not being used as evidence of a transaction effecting such property.”

Read more…

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Dismissal of SLP by reasoned order would not attract doctrine of merger but will be binding on all courts/tribunals in India

If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not   an   appellate   jurisdiction   but   merely   a discretionary jurisdiction refusing to grant leave to appeal.

Read more…

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Supreme Court sets aside Allahabad HC’s decision declaring Regulation 101 framed under Intermediate Education Act unconstitutional

“It is clear that recruitment by way of “Outsourcing” may have its own deficiencies and pit falls, however, a decision to take “Outsourcing” cannot be declared as ultra vires of the constitution on the basis of mere presumption and assumption.”

Read more…

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‘You are throwing mud at all and sundry but we refuse to back off’; Supreme Court holds Suraz India Trust Chairman guilty of contempt

“Such litigants cannot be permitted to have their way only because they can plead and write anything they feel like and keep on approbating by sometimes apologising and then again bringing forth those allegations.”

Read more…

 


CASES REPORTED IN SUPREME COURT CASES


An overview of the cases reported in the latest SCC Volumes

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SCC Snippets on important law points 


Case BriefsSupreme Court

Supreme Court: In a case where the Patna High Court had granted anticipatory bail to an absconder, the bench of MR Shah* and AS Bopanna, JJ has set aside the said order and has held that the if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail.

In the present case, FIR was lodged against respondent no 2 – an absconder, for   the   offences punishable under sections 406, 407, 468, 506 of the Penal Code, 1860.

The Trial Court dismissed the anticipatory bail application of the respondent on merits as well as on the ground that as the accused is absconding and even the proceedings under section 82/83 Cr.PC have been issued, the accused is not entitled to the anticipatory bail.

However, despite the fact that it was specifically pointed to the High Court that since the process of proclamation under section 82 & 83 Cr.PC have been issued, the accused should not be allowed the privilege of anticipatory bail, ignoring the aforesaid relevant aspect, the High Court allowed the said   anticipatory bail solely observing that the nature of accusation was arising out of a business transaction.

Finding the High Court’s order erroneous, the Supreme Court held that

“Even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. What is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction.”

The Court noted that respondent No.2 – accused has been charge¬sheeted for the offences punishable under sections 406 and 420, etc. and a charge-sheet has been filed in the court of learned Magistrate Court.

Hence, the order of the High Court granting anticipatory bail to respondent No.2 – accused was held to be un­sustainable and was set aside.

Important Rulings

State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 SCC 171

If anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail.

“…the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.”

Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730

“Normally, when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.”

[Prem Shankar Prasad v. State of Bihar, 2021 SCC OnLine SC 955, decided on 21.10.2021]


Counsels:

For State: Advocate Devashish Bharuka

For Respondent No 2: Advocate Abhishek


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ. and Alok Kumar Verma, J., dismissed an appeal which was filed with the issue as to whether the petitioners were entitled to receive the minimum of the pay-scale, and the Dearness Allowance admissible to the regularly appointed employees, or not?

Counsel for both the parties submitted that issue involved in the present Appeal is already covered by the case of Uttaranchal Van Shramik Sangh Ranibagh Etc. v. State of Uttarakhand, SLP (C) Nos. 11651-11652 of 2019, decided by the Supreme Court by its judgment dated 12-02-2020 where the issue was whether the contractual workers were entitled to receive the Dearness Allowance or not? The Court had observed that “suffice for us to say that if dearness allowance is being given to other daily wagers, naturally the State will not discriminate the daily-wagers on this aspect.”

Single Judge earlier had directed the respondent-State “to pay and release the Dearness Allowance to the petitioners at par with the members of Kumaun Ban Shramik Sangh, Center at Ranikhet with effect from 21.03.2002 within a period of ten weeks from the date of the order with arrears”. He further directed that “the petitioners shall be entitled to interest @ Rs. 12% per annum and if the amount is not released to the petitioners, the petitioners shall be entitled to 18% interest per annum till the payment is made to them”.

The Court dismissing the appeal held that once a concession was made by the State before the Hon’ble Supreme Court, the State is equally bound by the said concession.

[State of Uttarakhand v. Bahadur Singh Rawat, 2021 SCC OnLine Utt 1174, decided on 21-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a major development in the Gauri Lankesh murder case, the bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has set aside the Karnataka High Court order wherein it had quashed chargesheet filed against one Mohan Nayak.N regarding offences under Section 3(1)(i), 3(2), 3(3) and 3(4) of Karnataka Control of Organised Crimes Act, 2000.

Brief Facts

On 05.09.2017 in which Gauri Lankesh, who was a leading journalist, was shot dead by certain unknown assailants near her house at Rajarajeshwari Nagar, Bengaluru.

In absence of at least two chargesheets filed against the writ petitioner Mohan Nayak. N in respect of specified offences and of which cognizance had been taken by the competent Court as required to attract to offence of organized crime, the High Court noticed that he was not engaged in continuing unlawful activity. On this finding, the High Court concluded that Mohan Nayak.N cannot be proceeded further and thus, partly allowed the writ petition by not only quashing the order of the Commissioner of Police, Bengaluru City according approval for invoking Section 3 of the 2000 Act, but also the chargesheet filed against the writ petitioner-Mohan Nayak.N for offences punishable under Section 3(1)(i), 3(2), 3(3) and 3(4) of the 2000 Act.

Analysis

Finding the said order erroneous, the Supreme Court said that the High Court, without analysing the material presented along with chargesheet on the basis of which cognizance has been taken by the competent Court including against Mohan Nayak. N, concerning commission of organized crime by the organized crime syndicate of which he is allegedly a member, committed manifest error and exceeded its jurisdiction in quashing the chargesheet. 

It was further explained that the fact that the Investigating Agency was unable to collect material during investigation against Mohan Nayak.N for offence under Section 3(1) of the 2000 Act, does not mean   that the information regarding commission of a crime by him within the meaning of Section 3(2), 3(3) or 3(4) of the 2000 Act cannot be recorded and investigated against him as being a member of the organized crime syndicate and/or having played role of an abettor, being party to the conspiracy to commit organized crime or of being a facilitator, as the case may be. For the latter category of offence, it is not essential that more than two chargesheets have been filed against the person so named, before a competent court within the preceding period of ten years and that court had taken cognizance of such offence.  That requirement applies essentially to an offence punishable only under Section 3(1) of the 2000 Act.

As regards offences punishable under Section 3(2), 3(3), 3(4) or 3(5), it can proceed against any person  sans  such previous offence registered against him, if there is material to indicate that he happens to be a member of the organized crime syndicate who had committed the offences in question and it can be established that there is material about his nexus with the accused who is a member of the organized crime syndicate.

It is important to note that in Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, the Supreme Court had held that

“…in order to invoke MCOCA even if a person may or may not have any direct role to play as regards the commission of an organised crime, if a nexus either with an accused who is a member of an “organised crime syndicate” or with the offence in the nature of an “organised crime” is established   that would attract the invocation of Section 3(2) of MCOCA.”

Explaining the law, the Court said that while considering the proposal for grant of prior approval under 25 Section 24(1)(a) of the 2000 Act, what is essential is the satisfaction of the competent authority that the material placed before him does reveal presence of credible information regarding commission of an offence of organized crime by the organized crime syndicate and, therefore, allow invocation of Section 3 of the 2000 Act.  As a consequence of which, investigation of that crime can be taken forward by the Investigating Agency and chargesheet can be filed before the concerned Court and upon grant of sanction by the competent authority under Section 24(2), the competent Court can take cognizance of the case.

At the stage of granting prior approval under Section 24(1)(a) of the 2000 Act, therefore, the competent authority is not required to wade through the material placed by the Investigating Agency before him along with the proposal for grant of prior approval to ascertain the specific role of each accused. The competent authority has to focus essentially on the factum whether the information/material reveals the commission of a crime which is an organized crime committed by the organized crime syndicate. In that, the prior approval is qua offence and not the offender as such.

“As long as the incidents referred to in earlier crimes are committed by a group of persons and one common individual was involved in all the incidents, the offence under the 2000 Act can be invoked.”

The prior sanction under Section 24(2), however, may require enquiry into the specific role of the offender in the commission of organized crime, namely, he himself singly or jointly or as a member of the organized crime syndicate indulged in commission of the stated offences so as to attract the punishment provided under Section 3(1) of the 2000 Act.  However, if the role of the offender is merely that of a facilitator or of an abettor as referred to in Section 3(2), 3(3), 3(4) or 3(5), the requirement of named person being involved in more than two chargesheets registered against him in the past is not relevant.

“Regardless of that, he can be proceeded under the 2000 Act, if the material collected by the   Investigating Agency reveals that he had nexus with the accused who is a member of the organized crime syndicate or such nexus is related to the offence in the nature of organized crime. Thus, he need not be a person who had direct role in the commission of an organized crime as such.”

Conclusion

It was, hence, held that the conclusion reached by the High Court in partly allowing the writ petition filed by Mohan Nayak.N, is manifestly wrong and cannot be countenanced.

“In any case, the High Court has completely glossed over the crucial fact that the writ petition was filed only after the sanction was accorded by the competent authority under Section 24(2) and more so cognizance was also taken by the competent Court of the offence of organized crime committed by the members of organized crime syndicate including the writ petitioner — to which there was no challenge. The High Court has not analysed the efficacy of these developments as disentitling the writ petitioner   belated   relief claimed in respect of prior approval under Section 24(1)(a) of the 2000 Act.”

It was held that the High Court has clearly exceeded its jurisdiction in quashing the chargesheet filed against Mohan Nayak. N for offences punishable under Section 28 3(2), 3(3) and 3(4) of the 2000 Act at this stage [of prior approval under Section 24(1)(a)].

[Kavitha Lankesh v. State of Karnataka, 2021 SCC OnLine SC 956, decided on 21.10.2021]


Counsels:

For appellant: Senior Advocate Huzefa Ahmedi

For State: Advocate V.N. Raghupathy

For Respondent: Senior Advocate Basava Prabhu S. Patil


*Judgment by: Justice AM Khanwilkar

.https://www.scconline.com/blog/post/2020/07/30/know-thy-judge-justice-am-khanwilkar/

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has formulated “broad, general” principles governing rules for granting parole and furlough, holding that parole and furlough are distinct in nature and that although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough.

Interpreting the Bombay Furlough and Parole Rules, made pursuant to Section 59 of the Prisons Act 1894, the Court noticed that the same do not confer a legal right on a prisoner to be released on furlough.

“The grant of furlough is regulated by Rule 3 and Rule 4. While Rule 3 provides the eligibility criteria for grant of furlough for prisoners serving different lengths of imprisonment, Rule 4 imposes limitations. The use of the expression “may be released” in Rule 3 indicates the absence of an absolute right. This is further emphasised in Rule 17 which states that said Rules do not confer a legal right on a prisoner to claim release on furlough. Thus, the grant of release on furlough is a discretionary remedy circumscribed by Rules 3 and 4 extracted above.”

The principles laid down by the Court are:

  • Furlough and parole envisage a short-term temporary release from custody;
  • While parole is granted for the prisoner to meet a specific exigency, furlough may be granted after a stipulated number of years have been served without any reason;
  • The grant of furlough is to break the monotony of imprisonment and to enable the convict to maintain continuity with family life and integration with society;
  • Although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough;
  • The grant of furlough must be balanced against the public interest and can be refused to certain categories of prisoners.

Important Rulings on the difference between Furlough and Parole

State of Maharashtra v. Suresh Pandurang Darvakar, (2006) 4 SCC 776

While both parole and furlough are temporary releases from confinement, parole is granted only for a specific purpose. A prisoner is entitled to apply for furlough once he has served the minimum years of sentence as stipulated in Rule 3.

The “furlough” and “parole” have two different purposes. It is not necessary to state the reasons while releasing the prisoner on furlough, but in case of parole reasons are to be indicated in terms of Rule 19. But release on furlough cannot be said to be an absolute right of the prisoner as culled out from Rule 17. It is subject to the conditions mentioned in Rules 4(4) and 6. Furlough is allowed periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family association, family and social ties and to avoid ill-effect of continuous prison life. Period of furlough is treated as a period spent in the prison. But Rule 20 shows that period spent on parole is not to be counted as remission of sentence. Since the furlough is granted for no particular reason, it can be denied in the interest of society; whereas parole is to be granted only on sufficient cause being shown.

State of Haryana v. Mohinder Singh, (2000) 3 SCC 394

“… when a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him.”

Asfaq v. State of Rajasthan, (2017) 15 SCC 55

A parole can be defined as conditional release of prisoners i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Such a release of the prisoner on parole can also be temporarily on some basic grounds. In that eventuality, it is to be treated as mere suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies.

Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long-term imprisonment. The period of sentence spent on furlough by the prisoners need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission.

Key differences highlighted in the judgment are:

  • Both parole and furlough are conditional release.
  • Parole can be granted in case of short-term imprisonment whereas in furlough it is granted in case of long-term imprisonment. Duration of parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.
  • Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.
  • For parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.
  • The term of imprisonment is not included in the computation of the term of parole, whereas it is vice versa in furlough.
  • Parole can be granted number of times whereas there is limitation in the case of furlough.
  • Since furlough is not granted for any particular reason, it can be denied in the interest of the society.

[State of Gujarat v. Narayana, 2021 SCC OnLine SC 949, decided on 20.10.2021]

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Counsels:

For State of Gujarat: Tushar Mehta, Solicitor General

For Respondent: Advocate Sanjiv Punalekar


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud