Know thy Judge

Justice Bhushan Ramkrishna Gavai was born on 24th November, 1960. At the age of 25, he enrolled as an advocate and started practicing at the Nagpur bench of the Bombay High Court. He served both as a government pleader as well as a government prosecutor[1]. He was appointed as a judge of the Bombay High Court in 2003 and served in that position for 16 years before being elevated to become judge of the Supreme Court. The collegium in recommending him gave due weight to his seniority, integrity, merit and due representation in the Supreme Court.[2].


Some important judgments that Justice BR Gavai has been a part of 


Fertico Marketing and Investment Pvt. Ltd. v. Central Bureau of Investigation, 2020 SCC OnLine SC 938

The bench of AM Khanwilkar and BR Gavai, JJ  held that not obtaining prior consent of the State Government under Section 6 of the Delhi Special Police Establishment Act, 1946 (DPSE Act) would not vitiate the investigation unless the illegality in the investigation can be shown to have brought about miscarriage of justice or caused prejudice to the accused.

Read more

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

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

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

Read more 

Foundations for Media Professionals v. Union Territory of Jammu and Kashmir, 2020 SCC OnLine SC 453

A 3-judge bench of NV Ramana, R. Subhash Reddy and BR Gavai, JJ has constituted a three-member committee to look into demand for allowing 4G mobile internet in the union territory of Jammu and Kashmir. Noticing that since the issues involved affect the State and the nation, the Court found it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir.

Read more 

In re: Prashant Bhushan, 2020 SCC OnLine SC 698

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has sentenced advocate Prashant Bhushan with a fine or Re.1/­ (Rupee one) to be deposited with the Registry by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years. It had found advocate Prashant guilty of criminal contempt on 14.08.2020 in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. 

“If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of  Re.1/­ (Rupee one).”

Read more

Sudru v. State of Chattisgarh, (2019) 8 SCC 333

In this case of murder of son by the accused father, on the basis of circumstantial evidence, last seen evidence and non-explanation of incriminating evidence by accused, conviction of accused confirmed. 

Union of India v. Unicorn Industries, (2019) 10 SCC 575

The 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ., held that by invoking the doctrine of promissory estoppel, the Union of India cannot be estopped from withdrawing the exemption from payment of Excise Duty in respect of certain products, which exemption is granted by an earlier notification; when the Union of India finds that such a withdrawal is necessary in the public interest.

Read more

Union of India v. State of Maharashtra, 2019 SCC OnLine SC 1279

The 3-judge Bench of Arun Mishra, MR Shah and BR Gavai, JJ., partially set aside the 2-judge verdict in Dr Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454. It was held that some portions of the said verdict were against the concept of protective discrimination in favour of down­trodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India.  The Court said,

“Can’t treat all of them as a liar.”

Read more

Sarika v. Administrator, Mahakaleshwar Mandir Committee, Ujjain, 2020 SCC OnLine SC 704

 In a bid to prevent the deterioration of Shivlinga at Mahakaleshwar Temple, Ujjain, the 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has given the eight directions.

Read more

Rishad Murtaza v. Union of India,  2020 SCC OnLine SC 377

 The 3-judge bench of NV Ramana, SK Kaul and BR Gavai, JJ has asked the Central Government to extend the order passed in In Re Contagion of COVID-19 Virus in Children Protection Homes, to Nari Niketans also, if feasable.

Read more

Tata Housing Development Company Ltd. v. Aalok Jagga, 2019 SCC OnLine SC 1419

In the matter concerning the housing project, on the ground that the area in question falls within the catchment area of Sukhna Lake and is 123 meters away from the boundary of Sukhna Wildlife Sanctuary, the 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that such projects cannot be permitted to come up within such a short distance from the wildlife sanctuary. Stating that the entire exercise smacks of arbitrariness on the part of Government including functionaries, the bench said that the Court has to perform its duty in such a scenario when the authorities have failed to protect the wildlife sanctuary eco­sensitive zone. It said,

The entire exercise of obtaining clearance relating to the project is quashed. We regret that such a scenario has emerged in the matter and that it involved a large number of MLAs of Punjab Legislative Assembly.

Read more


*Associate Editor, EBC Publishing Pvt. Ltd. 

[1]SC Collegium recommends Justices BR Gavai, Surya Kant for elevation to top court, Scroll, last updated May 09, 2019,

[2] Supreme Court Observer, Judges’ archive

Case BriefsSupreme Court

Supreme Court: In an elaborate judgment running into over 90 pages, the bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has discussed the mode of dealing with withheld securities of a defaulting member by National Stock Exchange of India/National Securities Clearing Corporation Limited, consequent to his expulsion.

The Court explained the law came in the backdrop of a case where the trading facilities of Rusoday Securities Ltd. were withheld on 13.10.1997, followed by withholding of various securities by the Exchange.

Here are the highlights from the judgment extensively discusses the Byelaws, Rules, Regulations and other instructions of the National Stock Exchange:

Realisation of security deposits

As per clause (11) of Chapter XII of the NSE Byelaws titled “Default”, the Exchange is vested with the power to realise the assets of a defaulter member in due course. It provides for realisation of three categories of assets:

  • security deposits, margin moneys and other deposits;
  • securities which have been deposited by the defaulter member; and
  • moneys, securities and other assets due, payable or deliverable to the defaulter by any other Trading Member and recovered by the Exchange.

Out of these three categories, security deposits can be called in and realised per se without any additional condition. There is no requirement of vesting with respect to such deposits neither in the language of clause (11) nor in the overall scheme as the Exchange enjoys a statutory lien over such deposits by way of clause (24) of Chapter IX – “Transactions   and   Settlements”, NSE Byelaws. It, however, does not include forfeited/withheld assets because the property in the deposited assets may vest in the Exchange by operation of membership obligations, whereas such is not the case with withheld securities.

“It is true that mere existence of lien may not entitle the lienee to sell off the property for satisfaction of debt without a court order. However, when lien itself is a creation of Byelaws, Rules or Regulations etc., the scope, extent and operation of such lien would also be governed by the same scheme.”

The phrase “shall call in and realise” in Clause (11) signifies that realisation is warranted as an imminent action upon declaration of defaulter in case the security deposits are insufficient. Hence, once a trading member has been declared a defaulter, the Exchange is duty bound to realise the security deposits retained by it to satisfy its obligations and return the remaining deposits, if any. If the Exchange fails to do so, it may become liable to make good the loss of interest to the defaulter on any amount over and above the monetary obligation.

Withheld securities

Unlike the money deposits, no legal requirement of forthwith realisation is envisaged in the case of withheld securities.

Introductory securities  

A member is termed as an introducing member when it introduces some securities to be transferred to the buyers in a sale transaction, subject to the securities being free from any objections.

Receiving securities

A member is termed as a receiving member when it is supposed to receive the securities for orders placed by it in a purchase transaction, subject to complete settlement and payment.

Unlike money deposits, the “receiving securities” withheld or recovered by the Exchange require legal vesting before they could be realised for the satisfaction of dues. There can be no action, be it of sale or registration, against a property unless the property vests in the entity.

Expulsion or declaration of defaulter is a pre-condition for realisation

Vesting does not take place in favour of the Exchange unless a formal expulsion order is passed. The relevant point of time, therefore, is the date of expulsion. Without such legal vesting, the Exchange only sits upon the withheld assets as a custodian. There is no question of realisation.

Such withholding is done to serve two purposes –

  1. to persuade the defaulting member to fulfil its obligations during the continuation of membership if it so wishes and
  2. to secure the liability at the earliest available opportunity as a preventive measure. If liabilities continue to be unfulfilled, expulsion becomes an inevitable consequence and the withheld assets vest in the Exchange.

Hence, realisation cannot be done unless vesting is complete and there is no obligation on the Exchange/Corporation to forthwith realise the securities upon withholding. Expulsion or declaration of defaulter, as the case may be, is a pre-condition for realisation.

“Even on applying rule of prudence, such forthwith realisation would not be appropriate as such action would deprive the defaulting member from an opportunity  to correct its mistake by settling liabilities within due course of time without giving up membership.”

Role of Exchange

The primary role of the Exchange is manifested in the phrase “shall be dealt with by the relevant authority at such times and in such manner” under Regulation 9.10, NSCCL Regulations (Regulation 9.12, NSE Regulations). That takes within its ambit a power coupled with a duty.

“The power of the Exchange to deal with the withheld securities in the manner of its choice runs parallel with its duty to mandatorily “deal” with such securities as a prudent person would after coming in possession of securities.”

The Regulation requires the Exchange not to sit idle on the withheld securities and instead, obliges   it “to deal” with them in an appropriate manner. This requirement is a manifestation of the basic “duty of care” implicit in regulatory relationships where one member is in a position to control the functionality of the other.

However, the manner of dealing with the withheld securities is not circumscribed under strict parameters. The Exchange is bestowed with a discretion to choose amongst the available options and the appellant holds no control over such choice.

“To this limited extent, the role of the Exchange as regards the withheld assets is of a fiduciary character, obligating it to choose the just course of action out of the available options.”

Registration mandatory or discretionary?

As per Regulation 9.12 of NSE (Capital Market) Regulations, the measure of registration is not provided as an exclusive one, rather, it is in addition to other residuary steps that an Exchange is entitled to take. Therefore, there is no express statutory or contractual requirement of mandatory registration in the applicable law. A clear element of discretion is involved in the manner of dealing.

“It is true that such discretion cannot be exercised in a legally perverse manner, but it is equally true that a discretion cannot be converted into a mandatory obligation, more so when such discretion is provided expressly by a statutory provision.”

Role of defaulting member

It is the fundamental principle of an equitable examination that “the one who seeks equity must do equity”.

Registration of securities or any property for that matter is done in favour of an entity only upon fulfilment of certain allied conditions, including but not limited to the supply of consideration. Without such consideration, contract itself becomes void, let aside entertaining a demand for registration. Upon withholding, it becomes the duty of the stockbroker to raise a request for the registration of securities and to comply with the payment shortfall and other requirements.

The role of the defaulting member is of an enabler and unless the Exchange is placed in a position to register, it cannot its discretion to register. Further,

“… permitting the Exchange to register forthwith as a matter of obligation would also be counterproductive to the interests of the defaulting member. For, such a blanket action would have the effect of converting a limited right of lien into that of absolute ownership over the withheld assets without giving the defaulter sufficient time to get his assets released much less before a declaration of being a defaulter or an order of expulsion. Such can never be the purpose of withholding.”

Hence, registration can only be done on fulfilment of the following conditions:

  1. request by the defaulting member;
  2. request to be preceded by fulfilment of conditions relating to payment;
  3. request to be accompanied with undertaking that any such registration in the name of the Exchange would be subject to final outcome of the case.

[Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., CIVIL APPEAL NO. 2690 OF 2009, decided on 20.11.2020]


*Justice AM Khanwilkar has penned this judgment

For appellants:  Senior Advocate Siddhartha Mitra and Advocates-on-record Ashok Mathur and Devashish Bharuka

For Respondent(s): Senior Advocate Shyam Divan and Adocates-on-Record. S. S. Shroff, Rabin Majumder, Bhargava V. Desai

Case BriefsSupreme Court

Supreme Court: In a case dating back to 1999 where a married woman was found dead in her matrimonial home, the bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ upheld the conviction of her husband even though a large number of witnesses had turned hostile and the Trial Court was also not happy with the manner of prosecution conducted the case.

“… that is not an unusual event in the long drawn out trials in our country and in the absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused.”


Factual Background


On 24.8.1999, one Sahodara Bai was found dead by her brother (PW 1) on a cot in her matrimonial home. It was alleged that few days ago, on 19.8.1999, the deceased had returned to her maternal home stating that she had been harassed at the hands of her in-laws for the last 6-7 months.  Her brothers brought her back to her matrimonial home with the hope of reconciliation. On being asked whether they wanted her to live with them, the in-laws responded that they will see for a few days and then decide. The deceased thereafter stayed back at her matrimonial home.

The post-mortem report stated that the cause of death was asphyxia due to strangulation, and the nature of death was possibly homicidal. After all other causes of death were ruled out, on 21.7.2000, the Sessions Court held all the three accused persons guilty of offences punishable under Section 302 of the IPC.

An important aspect to be taken note of is that there was some improvement in the statement of PW-1, the brother of the deceased, to the extent that he had never mentioned deceased’s father-in-law’s explanation of the death of the deceased by snake bite in the earlier statement. All other aspects were found to be consistent with his earlier statements.


Analysis and Ruling


Stating that the fact of a large number of witnesses turning hostile was not consequential in the present case as the brother who turned hostile did so to preserve the close family ties which continued to exist by marriage in the instant case, in view of the siblings of the deceased and appellant herein being married. In the Indian context, there exists a continued relationship between two families wherein the daughter-in-law comes from another house.

On the fact that the case of the prosecution rested only on the testimony of PW-1 and the medical evidence, the Court noticed that the statement of PW-1 was consistent and cogent except to the extent that in the earlier statement he had not mentioned the factum of the death being attributed to snakebite.

“However, that itself would not nullify the remaining part of his testimony. In fact, the said witness did not back out from the statement, but could not state the reason why the police did not record it in the FIR though it was mentioned.”

On the testimony of the doctor, it was noticed that the doctor opined the cause of death to be asphyxia due to strangulation and thereafter, he had stated that nature may be homicidal.

“This was so stated because asphyxia being the cause of death, the doctor himself could not have conclusively said whether it was homicidal or suicidal. It was also voluntarily opined, that there had to be a minimum of five minutes of forceful pulling to cause the death.”

Further, stating that the most important aspect is where the death was caused and the body found, the Court noticed that it was in the precincts of the house of the appellant herein where there were only family members staying. The location of the house and the surrounding buildings was such that there was no possibility of somebody from outside coming and strangulating the deceased and that too without any commotion being caused or any valuable/jewellery missing.

“We are confronted with a factual situation where the appellant herein, as a husband is alleged to have caused the death of his wife by strangulation. The fact that the family members were in the home some time before is also quite obvious. No explanation has been given as to how the wife could have received the injuries. This is a strong circumstance indicating that he is responsible for commission of the crime.”

The Court, hence, said that the appellant herein was under an obligation to give a plausible explanation regarding the cause of the death in the statement recorded under Section 313 of the Cr.P.C. and mere denial could not be the answer in such a situation.

Dismissing the appeal, the Court directed the State to examine

“… whether the appellant herein has completed 14 years of actual sentence or not and if it is so, his case should be examined within a maximum period of two months for release in accordance with norms. If not, the exercise be undertaken within the same time on completion of 14 years of actual sentence.”

[Jayantilal Verma v. State of MP (now Chhattisgarh), CRIMINAL APPEAL NO. 590 OF 2015, decided on 19.11.2020]

Hot Off The PressNews

While going through the judgments uploaded on the Supreme Court’s official website, an anomaly has caught our attention. In two of the judgments uploaded on the website, the case details mention the bench strength of three judges but the judgment carries the name of only two.

In Ram Sharan Maurya v. State of UP, C.A. No.-003707-003707 / 2020, the bench, as per the case details, consists of Justices UU Lalit, Vineet Saran and S. Ravindra Bhat, however, the judgment, as originally uploaded on the Supreme Court’s official website on 18.11.2020, has been signed by Justices UU Lalit and MM Shantanagoudar.

Here are the screenshots of the Case Details and the names of the judges mentioned in the judgment:

Case Details: Ram Sharan Maurya v. State of UP, C.A. No.-003707-003707 / 2020
Judges’ names mentioned in the judgment

While this is sure to create confusion as to which bench delivered the judgment, the order in the said case clearly mentions that Justice UU Lalit has pronounced the verdict for himself and Justice MM Shantanagoudar.

Read the order here

Similarly, in Jayantilal Verma v. State of Madhya Pradesh (now Chattisgarh), Crl.A. No.-000590-000590 / 2015, as per the case details, consists of Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, however, the judgment, as originally uploaded on the Supreme Court’s official website on 19.11.2020, has been signed by Justices Sanjay Kishan Kaul and Hrishikesh Roy.

Here are the screenshots of the Case Details and the names of the judges mentioned in the judgment:

Case Details: Jayantilal Verma v. State of Madhya Pradesh (now Chattisgarh), Crl.A. No.-000590-000590 / 2015
Judges’ names mentioned in the Judgment

Just like the previous case, the order in this case also clearly mentions that Justice Sanjay Kishan Kaul has pronounced the verdict for himself and Justice Hrishikesh Roy.

Read the order here

While these are just a couple of examples, similar discrepancies continue to appear on the Supreme Court website.

We hope the Supreme Court looks into this and makes sure that the ‘Bench’ column in the ‘Judgments’ section on the Supreme Court website displays the names of the judges who have delivered the verdict.

OP. ED.SCC Journal Section Archives

 A TWO judge bench of the Supreme Court,1 in Union of India v. Paul Manickam,2 a case challenging the preventive detention of the respondent’s daughter as unlawful has observed as under:3

It is appropriate that the concerned High Court under whose jurisdiction the order of detention has been passed by the State Government or Union Territory should be approached first. In order to invoke jurisdiction under article 32 of the Constitution to approach this court directly, it has to be shown by the petitioner as to why the high court has not been approached, could not be approached or it is futile to approach the high court. Unless satisfactory reasons are indicated in this regard, filing of petition on such matters, directly under article 32 of the Constitution is to be discouraged.

This observation of the apex court that before a person complaining of violation of his fundamental rights approach the Supreme Court under article 32 should approach the high court first under article 226, raises serious questions as to the true scope and ambit of article 32.

In the instant case the respondent who is the father of the detenue who was detained under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for possessing a huge quantity of contraband articles, addressed a representation on her behalf to the President of India. He also filed a habeas corpus petition before the Madras High Court challenging the detention order. The court dismissed the writ petition but on his application for review it quashed the order of detention. Hence this appeal by the Union of India to the Supreme Court.

Thus, it was not the petitioner who approached the Supreme Court by way of a writ under article 32 for setting aside the order of detention. Instead it was the Union of India which approached the Supreme Court by way of appeal under article 136 of the Constitution by raising various contentions, inter alia, that:4

[R]enegades who disturb peace and tranquillity of citizens are like termites which corrode financial stability of the country with vicious designs file petitions full of falsehood and at times approach this court under article 32 even without approaching the jurisdictional High Court.

What made the Union of India to take this pea is not clear from the facts of the case since the petitioner had not approached the apex court directly. It was against this plea, the Supreme Court, while dismissing the appeal by the Union of India in the instant case expressed the above quoted view.

 To read the full text of the article, click here 


NOTE: This article was first published in the Journal of the Indian Law Institute 47 JILI (2005) 102.

* Associate Research Professor, Indian Law Institute, New Delhi.

1 Doraiswamy Raju and Arijit Passayat JJ.

2 (2003) 8 SCC 342 : AIR 2003 SC 4622.

3 Id. at 4630. (Emphasis added).

4 Id. at 4624.

Op EdsOP. ED.

The Supreme Court in Asian Resurfacing of Road Agency (P)  Ltd. v. CBI[1] pronounced a landmark judgment in a batch of important matters where it resolved a long-drawn controversy pertaining to Section 19(3)(c) of the Prevention of Corruption Act,1988[2] (also referred to as ‘the PC Act’). Although the judgment was rendered in the context of the PC Act, 1988, the Supreme Court issued directions for all civil and criminal matters in an attempt to reduce delay in disposing of the matters. The present article attempts to discuss various issues leading to the aforesaid judgment and additionally discusses few friction areas which are seemingly unresolved in the judgment. The article would broadly focus on the following issues:

  1. Concept of intermediate/interlocutory/final orders;
  2. Power to grant of stay of the trial proceedings in respect of the PC Act;
  3. Exercise of inherent/constitutional powers when there is an express bar in the statute i.e. Section 482 of the Code of Criminal Procedure, 1973 and Articles 226 and 227 of the Constitution. 

Litigations before the Delhi High Court

In order to fully understand why the aforesaid issues were challenged before the Supreme Court, it is important to have an overview of the litigations before the Delhi High Court. Conflicting views in Dharambir Khattar[3] and R.C. Sabharwal[4] constrained the Single Judge in Asian Resurfacing[5] (Delhi High Court) to refer the matter to the  Chief Justice and which culminated in Anur Kumar Jain[6].

In Dharambir Khattar v. CBI[7], criminal revision petitions were filed before the Delhi High Court against an order of charge. The principal question that arose before the Court was whether an order on charge or an order framing charges in terms of Section 19(3)(c) of the Prevention of Corruption Act, 1988 is an interlocutory order. The Court perused Section 11 of the Special Courts Act (SCA), 1979, Section 34 of the Prevention of Terrorism Act, 2002 (POTA) and Section 19(3) of the Prevention of Corruption Act, 1988 and the non-obstante clause therein and did not agree that these are not pari materia. The Court also observed that the expression ‘interlocutory order’ is nowhere defined in these statutes and also in the Code of Criminal Procedure. That after referring to the judgments of the Supreme Court in V.C. Shukla v. State through CBI[8], Satya Narayan Sharma v. State of Rajasthan[9] and State v. Navjot Sandhu[10] concluded that the order framing charges is an interlocutory order and therefore no revision petition would be maintainable against it. The Court also did not agree that the powers of the Court under Articles 226 and 227 of the Constitution and Section 482 of the Code could be invoked in appropriate casses to challenge an order of revision.

That subsequently in R.C. Sabharwal v. CBI[11], similar questions again arose before the Delhi High Court and the Single Judge agreed with the view taken by the Single Judge in Dharambir Khattar[12] as regards to the interpretation of the expression ‘interlocutory order’ used in Section 19(3)(c) of the PCA, 1988 and therefore held the revisional powers to be not maintainable. The Court further agreed with Dharambir Khattar[13] that the inherent powers under Section 482 of the Code cannot be used to interfere with an order framing charge or directing the framing of charge in a case attracting the provisions of Prevention of Corruption Act but in the context of powers under Articles 226 and 227 (and also Article 136) of the Constitution, the Court held that the same could be exercised, but sparingly, cautiously and in exceptional circumstances, to challenge an interlocutory order, including an order on charge irrespective of an embargo in Section 19(3)(c) of the PC Act. The Court emphasised self-restriction and stated that the solution does not lie in denying the constitutional remedy. Therefore R.C. Sabharwal[14] marked a shift in holding the constitutional powers under Articles 226/227/136 to be maintainable against an interlocutory order.

In a later case of Asian Resurfacing of Road Agency v. CBI[15], petitions were filed before the Delhi High Court against the order framing charge. The Court noticed the conflict between Dharambir Khattar[16] and R.C Sabharwal[17] but was of the opinion that if petitions under Articles 226/227 are allowed against an order of charge, it would amount to doing indirectly the same thing which cannot be done directly. The Court observed that

“25. …once this Court holds that a petition under Article 227 would lie, the result would be as evident from the above petitions that every order on charge which earlier used to be assailed by way of revision would be assailed in a camouflaged manner under Article 227 of the Constitution and the result would be same that proceedings before the trial court shall not proceed…”

The Court considered it fit to refer the controversy to the Chief Justice for referring it to a larger Bench.

When the matter was taken up by the Division Bench of the Delhi High Court[18], the following questions were framed:

  1. Whether an order framing charge under the 1988 Act would be treated as an interlocutory order thereby barring the exercise of revisional power of this Court?
  2. Whether the language employed in Section 19 of the 1988 Act which bars the revision would also bar the exercise of power under Section 482 of the Code of Criminal Procedure for all purposes?
  3. Whether the order framing charge can be assailed under Article 227 of the Constitution of India?

The Court answered[19] the reference in the following manner:

  1. An order framing charge under the Prevention of Corruption Act, 1988 is an interlocutory order.
  2. As Section 19(3)(c) clearly bars revision against an interlocutory order and framing of charge being an interlocutory order, a revision will not be maintainable.
  3. A petition under Section 482 of the Code of Criminal Procedure and a writ petition preferred under Article 227 of the Constitution of India are maintainable.
  4. Even if a petition under Section 482 of the Code of Criminal Procedure or a writ petition under Article 227 of the Constitution of India is entertained by the High Court, under no circumstances an order of stay should be passed regard being had to the prohibition contained in Section 19(3)(c) of the 1988 Act.
  5. The exercise of power either under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India should be exercised sparingly and in exceptional circumstances.
  6. It is settled law that jurisdiction under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution of India cannot be exercised as a “cloak of an appeal in disguise” or to re-appreciate evidence. The aforesaid proceedings should be used sparingly with great care, caution, circumspection and only to prevent grave miscarriage of justice.

The matter and the questions involved were then challenged before the Supreme Court. It is important to highlight that vide order dated 09.09.2013[20] the two- Judges of the Supreme Court noticed difference of opinion among the different Benches of the Supreme Court and the High Courts on the question of law involved and referred the matter to the  Chief Justice of India for constituting a larger Bench.

 Review of cases leading to Asian Resurfacing of Road Agency (P) Ltd v. CBI[21] (Supreme Court)

Before we enter into a discussion into the various issues involved and other important cases, it is important to highlight that in the Criminal Procedure Codes prior to the 1973 Code, the word ‘interlocutory order’ was not used at all. Section 397(2) of the Code of Criminal Procedure, 1973 (also referred to as ‘the Code’), which barred revision against an interlocutory order, was incorporated with a view to expedite trial and cut out the delays.

In Mohan Lal Magan Lal Thacker v. State of Gujarat[22], while discussing interlocutory orders the Court observed that there could be certain orders which are interlocutory in character but are held to be final if they finally disposed of the proceedings though the main controversy between the parties remain undisposed of. The finality of an order it said is not to be judged by correlating that order with the controversy in the complaint. The fact that that the controversy still remained alive is irrelevant.

The  Supreme Court in Amar Nath  v. State of Haryana [23]  further explored the concept of interlocutory orders to introduce ‘orders which are matters of moment’ and which substantially affect the rights of an accused or which affect or adjudicate the rights of an accused or a particular aspect of the trial. The Court identified these orders to be not interlocutory so as to be outside the purview of revisional jurisdiction of the Court. In the said case the summoning order of the Magistrate was held to be not interlocutory. In respect of powers of the Court under Section 482 of the Code, the Court also held that if there is an express provision barring a particular remedy, the Court cannot exercise inherent powers. Therefore powers under Section 482 of the Code were held to be not available to defeat the bar contained in Section 397(2) of the Code. In Amar Nath[24] a subtle position emerged that there are certain orders which are neither final nor interlocutory. These were for now termed as ‘ matters of moment’.

In Madhu Limaye v.  State of Maharashtra[25] the Supreme court modified the view of the Court in Amar Nath[26] in respect of exercise of inherent powers to hold that powers under Section 482 of the Code could be used in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice. But it also cautioned such a use or exercise to be rare and sparing. The Court further built on Amar Nath[27] and highlighted that there could be certain orders which are neither final nor interlocutory – pure and simple and therefore would fall between the two. Bar under Section 397(2) of the Code it said is not meant to be attracted to such ‘intermediate orders’. It will be interesting to see that Madhu Limaye[28] although agreeing with Amar Nath[29] on orders which are ‘matters of moment’, termed them as ‘intermediate’. The charges framing order in the said case was held to be neither final nor interlocutory.

In V.C. Shukla v. State through CBI[30] the Supreme Court had to interpret the concept of interlocutory order in reference to Section 11(1)[31] of the Special Courts Act, 1979. The appeal in this case was directed against a charge framing order passed by a Special Judge under the SCA. The Court referred to Amar Nath[32] and Madhu Limaye[33] and the non-obstante clause in Section 11 of SCA and held that the judgments in the said cases were given in the context of the Code, particularly Section 397(2) and were correctly decided and would have no application to the interpretation of Section 11(1) of SCA which expressly excludes the Code. The Court considered the scheme of SCA as a special case which had the objective of expeditious trial and quick dispatch of cases. Moreover, the Court also held that the expression interlocutory order appearing in Section 11(1) of SCA has been used in its natural sense and not in a special or wider sense as used by the Code in Section 397(2). Based on the said reasoning the charges framing order passed by the Special Judge was held to be interlocutory. Therefore, even though conclusions in Madhu Limaye[34] and V.C. Shukla[35] were exactly opposite, V.C. Shukla[36] was held to be a special case of the Special Courts Act and the term interlocutory in SCA used differently from the one used in Section 397(2) of the Code.

In Satya Narayan Sharma v. State of Rajasthan[37] the Supreme Court was considering the issue of bar on stay of the trial proceedings under Section 19(3)(c) of the PC Act, 1988. The Court observed and held that if an enactment contains a specific bar, the inherent jurisdiction cannot be exercised to get over that bar and that there could be no stay of the trial proceedings.

That further in State v. Navjot Sandhu[38], the Supreme Court considered Section 34[39] of the Prevention of Terrorism Act, 2002 (POTA) which bars appeal from an interlocutory order. Considering the special nature of POTA, the Court observed that even if the powers under Article 227 or Section 482 could have been exercised, the interlocutory order by virtue of Section 34 of POTA should have been challenged only in the appeal filed against the final judgment. Therefore, the Supreme Court again held that the challenge to any order passed in proceedings under POTA could be allowed only in an appeal filed against a final judgment by virtue of Section 34 of POTA.

In Girish Kumar Suneja v. Central Bureau of Investigation[40], the Supreme Court had earlier passed an order dated 25.07.2014[41] where in para 10[42] of the order it had made clear that any prayer for stay, etc shall be entertained only before the Supreme Court. The accused had approached the Delhi High Court against the charges framing order but the said petition was dismissed in view of para 10 above. Girish Kumar Suneja[43]  revisited the judgments in Amar Nath[44] and Madhu Limaye[45] and the concept of interlocutory orders and talked about three kinds of orders: final, intermediate and interlocutory orders.

An intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. For example,  an order taking cognizance and summoning an accused and order framing charges. That further an intermediate order is one “…which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue. …The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code…”  Girish Kumar Suneja[46] clarified and further developed on the three types of orders and it became clear that there could be orders which are neither final not interlocutory. It preferred the expression ‘intermediate’.

It appears from paras 25, 29 and 38 of the judgment in Girish Kumar Suneja[47] that  seemingly contradictory observations were made by the Supreme Court but after careful perusal of para 38 it is clear that the Court has allowed the exercise of Section 482 of the Code in respect of interlocutory orders to prevent abuse of process of court or to serve the ends of justice in the rarest of rare cases. The same being in conformity with Madhu Limaye[48].The Court further held that  Articles 226/227 of the Constitution can be resorted to in the rarest of rare cases but defended (in para 41) that in certain category of cases the High Court ought not to interfere in larger public interest. The appellants argued that legal and constitutional remedies have been denied by para 10 in the order dated 25.07.2014[49]. The Court stated that the remedies continue to be available except that the forum has been shifted from the High Court to the Supreme Court in larger public interest. The Court further held that there could be no stay of the trial proceedings under the PC Act as intended by Parliament under Section 19(3)(c).

Asian Resurfacing of Road Agency (P) Ltd. v. CBI (Supreme Court)

The judgment in Asian Resurfacing of Road Agency (P) Ltd.[50] was delivered on 28-3-2018 by Adarsh Kumar Goel, J. on behalf of himself and  Navin Sinha, J.   Rohinton Fali Nariman, J.  gave a separate concurring  opinion. The Court held that the principles laid down in Madhu Limaye[51] still hold the field and have not been diluted in any manner either in V.C. Shukla[52] or in Girish Kumar Suneja[53]. The Court held and observed:

  1. Order framing charge is neither a purely interlocutory order nor a final order and therefore can be interfered under Sections 397 or 482 of the Code or Article 227 of the Constitution;
  2. Jurisdiction of the High Court is not barred irrespective of the label of the petition;
  • High Court must interfere only in exceptional circumstances and could grant stay in appropriate cases;
  1. There must be a speaking order while granting stay of the proceedings;
  2. Once stay is granted, the challenge should be decided in 2-3 months and matter should be taken on a day-to-day basis;
  3. Stay should not be unconditional or indefinite. Conditions may be imposed;
  • Stay will stand vacated on the expiry of 6 months;
  • Extension of stay can be granted only by a speaking order showing extraordinary situation;
  1. Directions were extended to all civil and criminal cases;
  2. Proceedings before trial court shall commence automatically after 6 months if no extension is granted;
  3. Where stay is operating as on the date of the judgment, it will automatically lapse after 6 months from the date of the judgment;
  • Same course to be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts;
  • Although the Court interpreted the words “on any other ground” mentioned in Section 19(3)(c) of the PC Act as referring to all the grounds that are available in proceedings under the Act other than the grounds which relate to sanction and therefore holding that the legislative mandate is that the proceedings under the PC Act could be stayed only when it relates to sanction, it held that the trials could be stayed expressly overruling Satya Narayan Sharma[54].
  • The Supreme court noticed some conflict in different paras of Girish Kumar Suneja[55] but resolved it by holding that the correct ratio is found in para 38 and which is in consonance with Madhu Limaye[56].

The judgment thus set aside conclusions in paras 36(a), (b) and (d) of the impugned judgment in Anur Kumar Jain[57] passed by the Division Bench of the Delhi High Court.

Asian Resurfacing of Road Agency[58] (Supreme Court) has attempted to balance the objectives of the PC Act with the rights of an accused and allows challenge to an order framing charge only in exceptional circumstances. It not only resolved the controversy around the stay of the trial proceedings under Section 19(3)(c) of the PC Act but also issued directions for all civil and criminal cases and ensured that proceedings are not stayed indefinitely.

It is also pertinent to highlight that the judgment in Asian Resurfacing[59] (Supreme Court) did not appreciate that V.C. Shukla[60] had upheld Madhu Limaye[61] and Amar Nath[62] stating that these were rendered in the context of the Code of Criminal Procedure and therefore would have no application to the interpretation of Section 11(1) of SCA which expressly excludes the Code through the non-obstante clause. A similar non-obstante clause is found in Section 19(3) of PC Act as well but the judgment did not enter into a discussion on the same. Although the judgment relied on para 38 of Girish Kumar Suneja[63] to resolve the apparent conflict, it did not discuss Girish Kumar Suneja’s position on Section 19(3)(c) PC Act i.e. bar on stay of the trial proceedings. The judgment also did not go into the issue of stay granted by the Supreme Court itself and as to whether the same shall also stand vacated after six months. In a recent order of the Supreme Court, this has been clarified that stay granted by the Supreme Court shall continue unless vacated by the Supreme Court. Moreover, it is also not very clear whether directions pertaining to stay are applicable only to trial proceedings and not proceedings in other fora. The High Court of Allahabad in a recent case[64] has held that the judgment of the Supreme Court in Asian Resurfacing[65] is not applicable to tax matters.

Although the judgment has attempted to cut down on delay in disposal of pending cases especially in matters which have been stayed for longer periods, it may be achievable only if it is accompanied by a persistent effort in improving judicial infrastructure.


*Abhinav Sharma is a law graduate from Campus Law Centre, Faculty of Law, University of Delhi and a graduate Engineer from National Institute of Technology. He currently practices in Delhi and Chandigarh. He was assisted by Prajwal Shukla who is a law student.

[1] (2018) 16 SCC 299

[2] Prevention of Corruption Act,1988

[3] Dharambir Khattar v. Central Bureau of Investigation, 2009 SCC OnLine Del 1292

[4] R.C. Sabharwal v. Central Bureau of Investigation, 2010 SCC OnLine Del 3

[5] Asian Resurfacing of Road Agency  (P) Ltd. v. CBI, 2010 SCC OnLine Del 3203

[6] Anur Kumar Jain v. Central Bureau of Investigation,  2011 SCC OnLine Del 1574 

[7] 2009 SCC OnLine Del 1292

[8] 1980 Supp SCC 92

[9] (2001) 8 SCC 607

[10] (2003) 6 SCC 641

[11]  2010 SCC OnLine Del 3 

[12] 2009 SCC OnLine Del 1292

[13] Ibid

[14] 2010 SCC OnLine Del 3

[15] 2010 SCC OnLine Del 3203

[16] 2009 SCC OnLine Del 1292

[17] 2010 SCC OnLine Del 3

[18]Anur Kumar Jain v. CBI, 2011 SCC OnLine Del 1574

[19] Ibid

[20] Asian Resurfacing of Road Agency v. CBI, Criminal Appeal No. 1375 of 2013, order dated 9-9-2013 (SC)

[21] (2018) 16 SCC 299

[22] AIR 1968 SC 733 

[23] (1977) 4 SCC 137

[24] Ibid.

[25] (1977) 4 SCC 551

[26] (1977) 4 SCC 137

[27] Ibid

[28] (1977) 4 SCC 551

[29] (1977) 4 SCC 137

[30]  1980 Supp SCC 92

[31](1) Notwithstanding anything in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the Supreme Court both on facts and on law. (Read Code as the 1973 Code.)

[32] (1977) 4 SCC 137

[33] (1977) 4 SCC 551

[34] Ibid

[35] 1980 Supp SCC 92

[36] Ibid

[37] (2001) 8 SCC 607

[38] (2003) 6 SCC 641

[39]Section 34(1).– Notwithstanding anything in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

[40] (2017)  14 SCC 809

[41] Manohar Lal Sharma v. Union of India, (2015) 13 SCC 35 : (2015) 13 SCC 37

[42]10. We also make it clear that any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

[43] (2017)  14 SCC 809

[44] (1977) 4 SCC 137

[45] (1977) 4 SCC 551

[46] (2017)  14 SCC 809

[47] Ibid

[48] (1977) 4 SCC 551

[49] Manohar Lal Sharma v. Union of India, (2015) 13 SCC 35 : (2015) 13 SCC 37

[50] (2018) 16 SCC 299

[51] (1977) 4 SCC 551

[52] 1980 Supp SCC 92

[53] (2017)  14 SCC 809

[54] (2001) 8 SCC 607

[55] (2017) 14 SCC 809

[56] (1977) 4 SCC 551

[57] 2011 SCC OnLine Del 1574

[58] (2018) 16 SCC 299

[59] Ibid.

[60] 1980 Supp SCC 92

[61] (1977) 4 SCC 551

[62] (1977) 4 SCC 137

[63] (2017) 14 SCC 809

[64] Mahesh Singh Patel v. CCE , Contempt No. 894/2019, order dated 30-7-2019 (All)

[65] (2018) 16 SCC 299

Know thy Judge

“Our ability to recognise others who are different is a sign of our own evolution. We miss the symbols of a compassionate and humane society only at our peril”.   

Justice Dr. D.Y. Chandrachud in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1  


Journey to becoming Supreme Court Judge


Justice Dr. Dhananjaya Yeshwant Chandrachud was born on 11-11-1959 to former Chief Justice of India, Justice Y.V. Chandrachud. He practiced law at the Bomaby High Court and Supreme Court of India. He was designated as Senior Advocate by the Bombay High Court in June 1998 and in the same year was appointed as the Additional Solicitor General of India. He appeared in several important cases involving Rights of Bonded Women Workers, Rights of HIV Positive Workers, Contract Labour and Rights of Religious and Linguistic Minorities.[1]

On 29th March 2000, Justice Chandrachud was appointed as Additional Judge of the Bombay High Court. On 31st October 2013, he took oath as the Chief Justice of the Allahabad High Court until he was appointed as a Judge of the Supreme Court on 13th May 2016.  [2]

♦Did you Know? Justice Chandrachud is likely to serve as the Chief Justice of India for a period of 2 years starting from November, 2022 to November, 2024. His father, Justice Y.V. Chandrachud, was the longest serving Chief Justice of India. [Read more about Justice Y.V. Chandrachud here]


Recent and Notable Judgments that Justice Dr. D.Y. Chandrachud has been a part of


The Secretary, Minister of Defence v. Babita Puniya, 2020 SCC OnLine SC 200

In this major verdict, the bench of Dr. D.Y. Chandrachud and Ajay Rastogi, JJ., ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service. Holding that the blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law, the Court said that the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either.

Read more

Rajesh v. State of Haryana, 2020 SCC OnLine SC 900

The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., summarised the principles relating to conduct of a Test Identification Parade (TIP) and held that

“… the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.”

Read more

K.S. Puttaswamy v. Union of India (Privacy- 9 Judge), (2017) 10 SCC 1

Justice Chandrachud was part of the 9 Judge Bench which unanimously held that, Right to Privacy is a basic fundamental right. The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that Right to Privacy forms an intrinsic part of Art. 21 and freedoms guaranteed in Pt. III. It permeates core of Preambular philosophy underlying “liberty” and “dignity” as also human concepts of “life” and “personal liberty” enshrined in Art. 21 and wide ranging freedoms guaranteed under Pt. III, considered essential for a meaningful human existence. Dr. Chandrachud, J., writing for himself and on behalf of J.S. Khehar, CJ, R.K. Agrawal and S.A. Nazeer, JJ, said that Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. He added,

“While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being”.

Read more

♦Did you Know? The Privacy case also marked a unique moment in judicial history of India; as Justice Chandrachud overruled the ADM Jabalpur decision in which his father, Late Justice Y.V. Chandrachud was part of the majority. Terming the judgments rendered by the majority as “seriously flawed”, Dr. D.Y. Chandrachud, J., observed that-

H.R. Khanna, J. was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend”.

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

In this landmark 5 -Judge Bench decision which became instrumental in upholding the rights of the LGBT community, Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., held Section 377 IPC to be unconstitutional insofar it criminalised gay sex between consenting adults. The Bench reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

In his concurring opinion, Dr. D.Y. Chandrachud, J., while stating that, It is difficult to right the wrongs of history. But we can certainly set the course for the Future, held that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognised and protected by the Constitution.

Read more  

Joseph Shine v. Union of India, (2019) 3 SCC 39

The 5-Judge Constitution Bench held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions. Referring to several foreign courts’ judgments and opinions of celebrated authors, Dr. Chandrachud, J. observed that,

“If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. Section 497 is founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Arbitrariness is writ large on the provision”.

Read more  

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

Stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7 Judge Bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority Justice Chandrachud writing down the majority judgment for himself and S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageswara Rao, JJ., laid down the principles for promulgation of ordinances.

Read more

Common Cause v. Union of India, (2018) 5 SCC 1

The 5-judge Constitution Bench of Dipak Misra, CJ., and AK Sikri, AM Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ., held that the right to die with dignity is a fundamental right as held in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 and that ‘passive euthanasia’, both, voluntary and involuntary, is permissible. In his concurring opinion, Dr. Chandrachud, J., observed that,

“While upholding the legality of passive euthanasia (voluntary and non-voluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy. In order to lend assurance to a decision taken by the treating doctor in good faith, this judgment has mandated the setting up of committees to exercise a supervisory role and function”.

Read more

 Shafin Jahan v. Asokan K.M, (2018) 16 SCC 368

The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. D.Y. Chandrachud, JJ., terming the instant case to be perfect example of, patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel, set aside the verdict of Kerala High Court wherein it had annulled the marriage between two consenting adults, namely, Hadiya and Shafin Jahan. Noting that the Kerala HC erred in its decision, Dr. D.Y. Chandrachud, J., in his concurring opinion, came down heavily upon the Kerala HC, stating that,

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a “just” way of life or “correct” course of living for Hadiya. She has absolute autonomy over her person. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226. The High Court has entered into a domain which is alien to its jurisdiction in a habeas corpus petition. How Hadiya chooses to lead her life is entirely a matter of her choice”.

Read more     

                                                   


Notable Dissents


K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), (2019) 1 SCC 1

The 5- Judge Bench comprising of CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ., by a majority of 4:1, upheld the constitutional validity of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. Justice Chandrachud gave a 23-point conclusion to the opinion wherein he dissented from the majority. In his opinion, the entire Aadhaar programme, since 2009, suffers from the constitutional infirmities and violations of fundamental rights-

“Creating strong privacy protection laws and instilling safeguards may address or at the very least assuage some of the concerns associated with the Aadhar scheme which severely impairs informational self-determination, individual privacy, dignity and autonomy”.

In a sharp criticism on passing of the Aaadhar Act as Money Bill within the meaning of Art.110 of the Constitution, Dr. Chandrachud, J., observed that-

“There is a constitutional trust which attaches to the empowerment of the Speaker of the Lok Sabha to decide whether a legislative measure is a Money Bill. Entrustment of the authority to decide is founded on the expectation that the Speaker of the Lok Sabha will not dilute the existence of a coordinate institution in a bicameral legislature. A constitutional trust has been vested in the office of the Speaker of the Lok Sabha. By declaring an ordinary Bill to be a Money Bill, the Speaker limits the role of the Rajya Sabha. This power cannot be unbridled or bereft of judicial scrutiny”. 

Read more

Jindal Stainless Ltd v. State of Haryana, (2017) 12 SCC 1

The 9-judge bench, by a ratio of 7:2, upheld the validity of the entry tax imposed by the States on goods imported from other States. It was held that taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India and that the word ‘Free’ used in Article 301 does not mean “free from taxation”. Delivering a dissenting opinion Dr. D.Y. Chandrachud, J., observed that,

“In order to determine whether a law providing for the imposition of a tax constitutes a restriction on the freedom of trade, commerce and intercourse, the principle that must be applied is whether the direct and inevitable effect or consequence of the law is to impede trade and commerce. The direct and inevitable consequence for the purposes of Part XIII of the Constitution is not the same as an infringement of the fundamental right to carry on an occupation, trade or business under Article 19(1)(g)”. He further observed that, “Article 301 sub-serves the constitutional goal of integrating the nation into an economic entity comprising of a common market for goods and services”.

Read more  

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

In a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voters’. Writing the dissenting opinion for himself and Adarsh K. Goel and U.U. Lalit, JJ.; Dr. D.Y. Chandrachud, J., observed that ‘his’ as in Section 123(3) of RP Act does not refer to the religion, race, caste, community or language of the voter. Dr. Chandrachud, J., made a very significant observation in his dissent-

“Our Constitution recognises the broad diversity of India and, as a political document, seeks to foster a sense of inclusion. It seeks to wield a nation where its citizens practise different religions, speak varieties of languages, belong to various castes and are of different communities into the concept of one nationhood. The Indian State has no religion nor does the Constitution recognise any religion as a religion of the State. India is not a theocratic State but a secular nation in which there is a respect for and acceptance of the equality between religions”.

Read more

Romila Thapar v. Union of India, (2018) 10 SCC 753 

In the instant case wherein 5 human rights activists were charged and arrested under the provisions of Unlawful Activities (Prevention) Act, 1967 and the 3 Judge Bench of the Court with a ratio of 2:1 (Dipak Misra CJ., and A.M. Khanwilkar, J.) rejected their prayer seeking appointment of SIT and court-monitored investigation; Justice D.Y. Chandrachud dissented with the majority. He observed that,Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes. Taking the view that a Special Investigating Team should be appointed to pursue the matter, Dr. Chandrachud, J., stated that,

“The purpose of the direction which I propose to give is to ensure that the basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty”.


*Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] Bombay High Court, Hon’ble Former Justices

[2] Supreme Court of India, Chief Justices and Judges

More Know Thy Judge stories here

Know thy Judge

 

“ (…)Judgments of Courts are to be based on reason, and discuss fairly, what is argued. Judges, unlike other sections of members of the public cannot meet unjustified personal attacks or tirades carried out against them, or anyone from their fraternity; no clarifications can be issued, no justification is given; propriety and canons of judicial ethics require them to maintain silence.”

  – Justice Ravindra Bhat,

 CPIO, Supreme Court v. Subhash Chandra Agarwal,

2009 SCC OnLine Del 2714.


As a Judge at Supreme Court


  • Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727; While clarifying the position of anticipatory bail in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.Ravindra Bhat, J., in his concurring yet separate judgment brought into light, the forgotten sayings of greatest reformers of the Indian History reflecting upon the evil of caste distinctions.

“Kabir, the great saint poet, for instance, in his composition, remarked:

If thou thinkest the Maker distinguished castes:

Birth is according to these penalties for deeds.

Born a Sudra, you die a Sudra;

It is only in this world of illusion that you assume the sacred thread.

If birth from a Brahmin makes you a Brahmin,

Why did you not come by another way?

If birth from a Turk makes you a Turk,

Why were you not circumcised in the womb?…

       Saith Kabir, renounce family, caste, religion, and nation, and live as one”

Guru Nanak, for instance, stated [Guru Granth Saheb, p. 83]:
   “Caste and dynastic pride are condemnable notions; the one Master shelters all existence. Anyone arrogating superiority to himself halt be disillusioned. Saith Nanak : superiority shall be determined by God.”

Making significant observations on the principle of Fraternity, Justice Bhat observed that,

“When the Framers of the Constitution began their daunting task, they had before them a formidable duty and a stupendous opportunity : of forging a nation, out of several splintered sovereign States and city States, with the blueprint of an idea of India. What they envisioned was a common charter of governance and equally a charter for the people. The placement of the concept of fraternity, in this context was neither an accident, nor an idealised emulation of the western notion of fraternity, which finds vision in the French and American Constitutions and charters of independence. It was a unique and poignant reminder of a society riven with acute inequalities : more specifically, the practice of caste discrimination in its virulent form, where the essential humanity of a large mass of people was denied by society—i.e. untouchability.”  Read More

  • Rambabu Singh Thakur v. Sunil Arora, 2020 SCC OnLine SC 178;  Hearing a contempt petition against a PIL on public disclosure of criminal antecedents of politicians, a Division Bench of RF Nariman and S. Ravindra Bhat, JJ., observed,

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

  • Rajendra Diwan v. Pradeep Kumar Ranibala, 2019 SCC OnLine SC 1586; While holding Section 13(2) of the Chhattisgarh Rent Control Act as unconstitutional, a full judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ., observed,

While exercising power under Article 136 of the Constitution, the Supreme Court does not re-appreciate evidence which has been appreciated by the Trial Court and the High Courts, unless extraordinary circumstances exist. It is only where the High Court has completely missed the real point requiring adjudication or has missed or ignored the relevant material, would the Supreme Court be justified in getting into evidence for the purpose of preventing grave injustice to a party.” Read More

  • Mukesh Singh v. State (Narcotic Branch of Delhi), 2020 SCC OnLine SC 700; A full judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ has held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer. The Court said that;   

“… merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.” Read More

  • Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571; In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the three judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ., held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. Read More

As a Judge at Delhi High Court


  • Sanjeet Singh Kaila v. Union of India, 2017 SCC OnLine Del 8170; A Division bench presided by Justice Bhat, held that though the members of the Armed forces consent to the risk that comes with their enrollment in the forces, one is still entitled to a safe workplace with standard equipment.

In the words of Justice Bhat,

“(…) none can be insensible to the piquancy in the pageant of life; more so, those who enlist in the service of their country in its armed forces. Yet to fling that to their teeth when accused of exposing them to more than the risks they had bargained (as the HAL does, here) is to belittle their spirit of sacrifice, which this court finds insensitive, even offensive. A soldier or an air warrior like the petitioner can be expected to be aware of the “normal” risks that he undertakes to accept in the course of a career that is removed from the ordinary. That assumption of risk at the same time raises the threshold bar on his employer and those assigned by the employer to maintain the standards in respect of the workplace and the technical equipment, which such officers and warriors have to handle and live with.” Read More

  • BGP Products v. Union of India, 2018 SCC OnLine Del 12928; Striking down a government notification made under Section 26A of the Drugs Act, to restrict the manufacture and usage of an essential drug likely to be affecting the health of pregnant woman and youth mothers, Justice Bhat observed,

This court notices that the decision of prohibiting a country wide existing manufacturing base for Oxytocin, a life-saving drug (through the over hundred private licensed units spread across the country), for over three decades or so, on the one hand and reserving it to the public sector through a single manufacturing entity, which has no previous record in its production, is thus fraught with potential adverse consequences. One of the important directive principles of State Policy (Article 47) is the that “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties..”. Maternal welfare too is considered a directive principle (Article 42).Correspondingly, the right of women, generally and pregnant women and young mothers in particular, to have a safe post-partum recovery and avoid risk of haemorrhaging that can be potentially fatal, is an integral part of Article 21 of the Constitution of India. The potential impact may or may not be direct; even if it leads to a few incidents, that would be a grave consequence contrary to public interest.”   

  • CPIO, Supreme Court of India v. Subhash Chandra Agarwal, 2009 SCC OnLine Del 2714; While directing the CPIO to release the information sought by the respondent applicant about the declaration of assets (and not the contents of the declarations, as that was not sought for) and holding the office of the CJI as a‘public authority’, significant remarks were made by Justice Ravindra Bhat, about the office of judges and exemption provided under Section 8(1)(j) RTI Act, 2005.

“In this Court’s opinion Section 8(1)(j) is both a check on the power of requiring information dissemination (having regard to its potential impact on individual privacy rights) as well as a mechanism whereby individuals have limited control over whether personal details can be made public. This safeguard is made in public interest in favour of all public officials and public servants. There can be no manner of doubt that Supreme Court and High Court Judges are public servants (K. Veeraswami established that). They are no doubt given a high status, and afforded considerable degree of protections, under the Constitution; yet that does not make them public servants any less. If that is the true position, the protection afforded by Section 8(1)(j) to Judges is of no lesser quality than that given to other public servants, in this regard. To hold otherwise: would be incongruous, because, members of the higher judiciary are held to self imposed obligatory Constitutional standards, and their asset disclosures are held (by this judgment), to be “information” held by the CJI, a public authority, under the Act; yet, they would be deprived of the protection that the same enactment extends to all those covered by it.”

  • Bayer Corporation v. Union of India, 2009 SCC OnLine Del 2469; Rejecting the claim of Bayer that the drug manufactured and sold by Cipla under the name of ‘Soranib’, was infact a spurious drug under 17-B of the Drugs and Cosmetics Act, 1940 and not a generic drug as contended, Justice Bhat held,

This Court is constrained to observe that the present litigation was what may be characterized as a speculative foray; an attempt to ‘tweak’ public policies through Court mandated regimes.”

The instant case discusses at length about patent linkage in Indian context and how imperative it is to balance monopoly rights of any patent holder and the public at large.

  • Mini Appa Kanda Swami v. M.Indra, 2016 SCC OnLine Del 5312; The Division Bench comprising of S. Ravindra Bhat and Deepa Sharma, JJ., held that demand for privacy by the spouse is not cruelty and also reiterated that High Court lacks the jurisdiction to dissolve a marriage on the doctrine of “irretrievable breakdown” under Section 13(1)(ia) of the Hindu Marriage Act.

“The Court further made observation, as to determination of cruelty for divorce stating, While considering whether a particular conduct constitutes cruelty or not, the social status of parties, cultural background, physical and mental conditions, customs and traditions etc. have to be considered. Mental cruelty can be assessed from the continuous unprovoked conduct of a spouse which causes embarrassment, humiliation, and anguish so as to render the other spouse’s life miserable and unendurable. This conduct should be of such gravity that the wronged party cannot be reasonably asked to put up with such conduct and continue to live with the other party.”  Read More


*Editorial Assistant, EBC Publishing Pvt. Ltd. 

Appointments & TransfersNews

Collegium Resolution

The Supreme Court Collegium has approved the proposal for appointment of Justice Manish Choudhury, Additional Judge of Gauhati High Court as Permanent Judge of that High Court.


Supreme Court Collegium

[Collegium Resolution dt. 15-10-2020]

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of Arun Mishra, B.R. Gavai and Krishna Murari, JJ., set aside the NCLAT’s Order with regard to the appointment of Resolution Professional.

Question for Consideration

Whether an ex-employee of the ‘Financial Creditor’ having rendered services in the past, should not be permitted to act as ‘Interim Resolution Professional’ at the instance of such ‘Financial Creditor’, regard being had to the nature of duties to be performed by the ‘Interim Resolution Professional’ and the ‘Resolution Professional’?

NCLT’s position

State Bank of India (Financial Creditor) had filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 with regard to initiation of Corporate Insolvency Resolution Process before the National Company Law Tribunal, Delhi.

NCLT on noting the objection regarding the proposed ‘Interim Resolution Professional’ — Shailesh Verma directed the Financial Creditor to perform it’s statutorily mandatory obligation by substituting the name of the ‘Resolution Professional’ to act as an ‘Interim Resolution Professional’ in place of Shailesh Verma as it was of the view that Shailesh Verma having worked with the State Bank of India for 39 years before his retirement in 2016, there was an apprehension of bias and was unlikely to act fairly and could not be expected to act as an Independent Umpire.

NCLAT’s position

Aggrieved with the above position, Financial Creditor preferred the appeal before NCLAT on the ground that the proposed ‘Interim Resolution Professional’ Shailesh Verma fulfils the requirement for appointment as ‘Interim Resolution Professional’/ ‘Resolution Professional’ under the ‘I&B Code’ and admittedly bears no disqualification.

NCLAT opined that the apprehension of bias expressed by the ‘Corporate Debtor’ qua the appointment of Shailesh Verma as proposed ‘Interim Resolution Professional’ at the instance of the Appellant — ‘Financial Creditor’ cannot be dismissed offhand and the Adjudicating Authority was perfectly justified in seeking his substitution.

——————————————————————————-

Supreme Court’s position

In the above background, Bench observed at the outset that, NCLAT’s approach was not correct that merely Resolution Professional who remained in the service of SBI and is getting pension was disentitled to be Resolution Professional.

Solicitor General, Tushar Mehta as well as Senior Counsel, Krishnan Venugopal agreed for the appointment of new Resolution Professional by NCLT.

Hence, the Bench held that new Resolution Professional be appointed by the NCLT in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016.

While concluding the order, Court stated that the change of Resolution Professional shall not reflect adversely upon the integrity of Resolution Professional concerned, who has been replaced.

Since the impugned order does not reflect the correct approach, the same shall not be treated as a precedent.[State Bank of India v. Metenere,  2020 SCC OnLine SC 837, decided on 19-08-2020]


Also Read:

[SC ALERT] NCLAT’s decoder on appointment of a person as Resolution Professional: Will an ex-employee of Financial Creditor be eligible for appointment? Read on

Op EdsOP. ED.

I. INTRODUCTION

In the days of yore when COVID-19 wasn’t a pandemic and lawyers were still employed, the Supreme Court of India, the country’s Apex Court, would be engulfed in a sea of black every Monday and Friday. The sea of black would be made up of lawyers. They came from various places and were of different shapes and sizes. Some of them were called juniors and the other seniors. The juniors would be divided into two sub-branches, one being the AOR (Advocate on Record) and the other being the counsel. The seniors were also of various types. Seniors were called so either because of their seniority at the Bar or either because they would be anointed as “Senior Counsel” by the Lords themselves! The lawyers all wore black gowns of different sizes, shapes and quality based again upon their own sizes, shapes and quality. They came in hoards, unstoppable and unbeatable; and when they descended on these two days into the lair of the Supreme Court, they created quite a stir, with chaos and cacophony as their weapons of mass destruction. A constitutional philosopher would find this scene quite disturbing. He would blame the Lords for reserving Monday and Friday as “miscellaneous days”. After all, utter madness mostly never existed from Tuesday to Thursday. The Lords sought to justify the retention of “miscellaneous days” because they had the power and discretion to “grant special leave”. It’s in the holy book that they had sworn to uphold. “Don’t blame us,” they would say. “It’s in the Constitution. This is what the framers intended.”

While the framers did not intend to create the storms on “miscellaneous days”, they certainly did intend to draft into the Constitution an article that gave discretionary power to the Supreme Court to “grant special leave to appeal” from any “judgment, decree, determination, sentence or order” passed or made by any “court or tribunal” in India.[1] This article which was originally Draft Article 112 of the Constitution of India, was later adopted as the present-day Article 136 of the Constitution of India, 1950 (hereinafter referred to as “the Constitution”).[2] Except in certain cases[3], litigants wanting to invoke the jurisdiction of the Supreme Court had to generally knock on its doors with a petition under Article 136 requesting the highest court of appeal, through their lawyers or in person, to grant special leave. The matters were placed before the Lords on miscellaneous days, generally Mondays and Fridays. Lawyers in hundreds would throng the court with petition and armour to make their client’s case before the Lords. They would plead, beg, argue and pray. But at the end, the Lords would have the last word. While physical presence of the lawyers in the Supreme Court has momentarily been eclipsed by the virtual world, thanks to “that virus”, the article can thankfully still be invoked albeit in a different setting. The Lords may, while hearing a petition under Article 136 “issue notice” to the respondents, which is the first step to enter the sanctum sanctorum of the Supreme Court or they may simply refuse to grant leave and send the valiant lawyer away only to return sometime soon. However, there are times, when the Lords may pass a brief order which could generally read as follows: “Special leave petition dismissed. Question of law kept open.”

The theme of this article is to examine Article 136 of the Constitution and the concept of “keeping the question of law open”. The article has started with this Introduction in Part I, Part II of the article will briefly discuss the appellate jurisdiction of the Supreme Court under the Constitution, Part III will specifically analyse the concept of “special leave” under Article 136 of the Constitution, Part IV will critically deal with “keeping the question of law open” and lastly, the article will conclude in Part V.

II. THE APPELLATE JURISDICTION OF THE SUPREME COURT UNDER THE CONSTITUTION

1. Chapter IV of Part V of the Constitution of India, 1950 which is titled “The Union Judiciary” contains twenty-six Articles (Articles 124 to 147) that deal with the functioning, scope and nature of jurisdiction and powers of the Supreme Court of India. The jurisdiction of the Supreme Court is set out in Articles 131 to 136 of the Constitution. Article 138 confers on Parliament the power to enlarge the jurisdiction of the Supreme Court by law.[4] Article 139[5] confers upon the Supreme Court the powers to issue writs and Article 143[6] deals with the power of the President to refer a question to the Supreme Court for its consideration by a Presidential reference. Article 131 deals with the original jurisdiction of the Supreme Court to hear inter-State disputes or disputes involving any question of law or fact between the Government of India and States.[7] Articles 132 and 133 deal with the appellate jurisdiction of the Supreme Court, to hear cases decided by the High Court, in constitutional and civil matters which can be invoked if a High Court grants a certificate of fitness under Article 134-A[8] of the Constitution. Article 132(1) empowers the Supreme Court to hear appeals from “any judgment, decree or final order of a High Court” in a “civil, criminal or other proceeding” that involves “a substantial question of law as to the interpretation” of the Constitution if the High Court certifies the same.[9] The expression, “final order” includes an order deciding an issue which would be sufficient for final disposal of the case.[10] As per Article 132(3), if such a certificate is given, then any party to the appeal may appeal on the ground that the substantial question of law has been wrongly decided.

2. On the other hand Article 133(1) also confers upon the Supreme Court the power to hear appeals from “any judgment, decree or final order” only in a civil proceeding (subject to the High Court granting a certificate), if the case involves (a) “a substantial question of law of general importance” and (b) “ that in the opinion of the High Court the said question needs to be decided by the Supreme Court.”[11] Article 132 (2) clarifies that any party appealing may “urge as one of the grounds” in the appeal that “a substantial question of law as to the interpretation of this Constitution has been wrongly decided.”[12] The three Judge-Bench of Supreme Court had an occasion to interpret Article 133(1) in State Bank of India v. Sundara Money,[13] (hereinafter referred to as Sundara Money) in which the Court stated,

“A substantial question of law of general importance is a sine qua non to certify fitness for hearing by the Supreme Court. Nay, more; the question, however important and substantial, must be of such pervasive import and deep significance that in the High Court’s judgment it imperatively needs to be settled at the national level by the highest Bench.”[14]

While interpreting the term “needs to be decided by the Supreme Court”, the Court in Sundara Money thereafter approvingly quoted the decision of the Delhi High Court in Union of India v. Hafiz Mohd. Said[15], the relevant portion of which reads as under,

“… Further the word ‘needs’ suggests that there has to be a necessity for a decision by the Supreme Court on the question, and such a necessity can be said to exist when, for instance, two views are possible regarding the question and High Court takes one of the said views. Such a necessity can also be said to exist when a different view has been expressed by another High Court.”

(emphasis supplied)

3. In Sir Chunilal V. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co.[16], the Constitutional Bench of the Supreme Court held,

“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and, substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally, settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised in palpably absurd the question would not be a substantial question of law.”

4. So far as criminal matters, the Constitution made a departure from the Government of India Act, 1935 which did not have any provision “for the exercise of any criminal appellate jurisdiction by the Federal Court” and it “was assumed that the High Courts would continue to be the final arbiters in criminal cases” unless the Privy Council was willing to grant special leave to appeal.[17] This step-motherly treatment to criminal cases was also pointed out by the certain members of the Constituent Assembly.[18] Pandit Thakur Das Bhargava had stated, “so far as the criminal jurisdiction is concerned, my humble complaint is that it so appears that this Assembly is full of civil lawyers and they do not care about the criminal aspect of the jurisdiction of the Supreme Court.”[19] No provision similar to Article 134 was drafted in the First Draft Constitution by the Constitutional Adviser nor in the Draft Constitution of the Drafting Committee.[20] It was only during the debates of the Constituent Assembly on 13th and 14th June 1949 that Draft Article 111-A dealing with the appellate jurisdiction of Supreme Court with regard to criminal matters was introduced. The said Draft article was eventually adopted as the present day Article 134 of the Constitution.[21]  As per Article 134, an appeal shall lie to the Supreme Court from the judgment, final order or sentence in criminal proceedings of a High Court[22] if the High Court has (a) reversed an order of acquittal on appeal and sentences the accused to death or (b) has withdrawn for trial before itself any case from a subordinate court and in a trial convicted the accused and sentenced him to death or (c) grants a certificate under Article 134-A.

5. Article 135 also confers on the Supreme Court jurisdiction and powers in relation to matters (where Articles 133 or 134 do not apply) in which the erstwhile Federal Court exercised powers immediately prior to the Constitution under “any existing law”, subject to a law passed by Parliament.[23] “Existing law” is defined in Article 366(10) of the Constitution to mean “any law, Ordinance, order, bye-law, rule or regulation passed or made” by any legislature, authority or person having power to make such laws before the commencement of the Constitution.[24]

6. Lastly, Article 136, deals with the discretionary power of the Supreme Court to grant “special leave to appeal” from “any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.”[25] Though the said article does not apply to any decision or order made by any court or tribunal under any law relating to the Armed Forces [see Article 136(2)], the said article confers upon the Supreme Court the widest possible jurisdiction to entertain any order passed in any matter by any Court or Tribunal, at any stage of its proceeding. Being the focal point of this piece, the next part of this article will examine Article 136 and the concept of special leave.

III. SPECIAL LEAVE UNDER ARTICLE 136

1. The Origin of Special Leave

 The expression “special leave to appeal” in Article 136(1) of the Constitution was adopted by the framers from the Government of India Act, 1935 (hereinafter referred to as “the 1935 Act or the said Act” as the case may be). The specific expression “special leave” is found in five places in the 1935 Act. It first appears in the savings clause, namely, Section 110 in Chapter II of the said Act. Section 110(b)(iii) prohibited the Federal Legislature or Provincial Legislatures “to make any law derogating from any prerogative right of His Majesty to grant special leave to appeal from any court” except if the Act expressly provided.[26] Section 205 which deals with the appellate jurisdiction of the Federal Court also uses the expression twice in sub-section (2). As per Section 205(2), where a High Court certifies under Section 205(1) that a case involves “a substantial question of law” as to the interpretation of the 1935 Act or Order in Council, any party may appeal to the Federal Court on the ground that such question of law has been wrongly decided and “on any ground on which that party could have appealed without special leave to His Majesty-in-Council if no such certificate had been given.”[27] The said sub-section goes on to state that “no direct appeal shall lie to His Majesty-in-Council” meaning thereby the Judicial Committee of the Privy Council,[28] “either with or without special leave.[29] Further, Section 206 of the said Act that deals with the power of the Federal Legislature to enlarge the appellate jurisdiction, states in Section 206(1)(b) that the Federal Legislature may provide by an enactment that an appeal may lie in certain civil cases to the Federal Court from a judgment, decree or final order of a High Court, without any certification but no appeal shall lie under any Act unless the Federal Court gives “special leave” to appeal.[30] Sub-section (2) of Section 206 goes on to state that if the Federal Legislature makes “such provision” stated in sub-section (1), then a consequential provision may also be made by the Act for abolishing, in whole or part, direct appeals in civil cases from the High Courts to His Majesty- in- Council, either with or without special leave.[31] In addition to this, Section 208 specifically deals with appeals to His Majesty-in-Council. Sub-section (a) is from a decision of the Federal Court from any judgment given in exercise of its original jurisdiction in certain disputes, without leave and sub-section (b) deals with any other case not included in sub-section (a), “by leave of the Federal Court or His Majesty-in-Council,”[32] meaning thereby, the Judicial Committee of the Privy Council. The leave granted by the Judicial Committee would be “special leave”.[33]

2. The Constituent Assembly Debates

a. Prior to the enactment of the Constitution, “the Privy Council had the power to grant special leave from any civil or criminal matter decided by any court in India.”[34] Though in criminal cases special leave to appeal was granted very rarely by the Judicial Committee.[35] As seen above, the 1935 Act also provided for provisions to grant special leave to appeal to the Privy Council. The framers of the Constitution were quite obviously aware of this position in law. The First Draft Constitution by the Constitutional Advisor included a section similar to Section 206 of the 1935 Act. Section 94, which was included in the First Draft, dealt with the appellate jurisdiction of the Supreme Court to hear appeals from High Court without a certificate. Sub-section (a) set out the types of matters which could be appealed based on valuation or based on whether the appeal involved a substantial question of law and sub-section (b) stated that an appeal could be heard without certificate if the Supreme Court gives special leave to appeal.[36]

b. Subsequently, the Drafting Committee of the Constitution substantially deviated from the aforesaid draft and introduced Draft Article 112. The marginal note of the draft Article read as follows: “Special leave to appeal by the Supreme Court in certain other cases.” As per this draft article, “in cases where the provisions of Article 110 or Article 111” do not apply, the Supreme Court could “in its discretion” grant “special leave to appeal” from any judgment, decree or final order “in any cause or matter, passed or made by any court or tribunal” in India except States specified in Part II of the First Schedule.[37] Such a provision was not found in the 1935 Act.[38] The said draft article was extensively debated on 6th June 1949.[39] Professor Shibban Lal Saksena desired that the article should have within it a power to decide appeals on “principles of jurisprudence and considerations of natural justice.”[40] He stated that “the Supreme Court should be enabled to give judgments which may not be within the letter of the law.”[41] This wish has been fulfilled to a large extent with the Supreme Court interfering in cases where the principles of natural justice have been violated. Shri Krishna Chandra Sharma supported this provision and according to him, “this provision has given a status to the judiciary, equivalent and in no way subordinate to the executive and legislature.”[42] Pandit Thakur Das Bhargava was sceptical of the provision and thought that the article was “exceptionally wide” and was “remnant of the most accursed political right of the divine right of kings” which would make the Supreme Court “above law”.[43] This assertion was rebutted by Shri H.V. Pataskar who supported the article and said that there should be “some independent body which must be the guardian of administration of justice” in all matters.[44] According to him, the Supreme Court was not likely to “grant special leave in any matter whosoever” unless there was a serious breach of the administration of justice which went to the root of the matter.[45] The article was also supported by Shri Alladi Krishnaswami Ayyar who stated that unlike the Judicial Committee of the Privy Council there should be no fetter on the exercise of jurisdiction of the Supreme Court under Article 112.[46] The draft article was amended by the Assembly by deleting the words “except the States for the time being specified, in Part III of the First Schedule, in cases where the provisions of Article 110 or Article 111 of this Constitution do not apply” which gave rise to the present day Article 136.[47]

III. Scope of Article 136 and limitations on exercising discretionary power

 a. Article 136 has been couched in the widest possible terms. It gives discretion to the Supreme Court to grant “special leave to appeal” from any judgment, decree, determination, sentence or order “in any cause or matter” “passed or made” by “any court or tribunal” in the territory of India. The non obstante clause emphasises that the power overrides the limitations on the court’s power to entertain appeals.”[48] The article applies to both final and interlocutory orders and also applies to Tribunals invested with “a part of the judicial power of the State” meaning thereby quasi-judicial authorities.[49] However, it must be remembered that Article 136 does not confer a “right to appeal” but only a “right to apply” for special leave which, if granted, confers a right to appeal so long as the leave is not revoked.[50] Just like the Privy Council, the Supreme Court has put in place self-imposed restrictions when it comes to criminal appeals and will not entertain special leave petitions in criminal cases particularly when there are concurrent findings of fact, save in exceptional cases, such as cases of perversity or impropriety, violation of principles of natural justice, error of law or errors of record or misreading of evidence.[51] The Supreme Court invokes the power under Article 136 in “exceptional circumstances as and when a question of law of general public importance arises.”[52]

b. The Supreme Court “has rightly declined to fetter its discretionary power by laying down “principles” or “rules”.”[53] The Constitutional Bench in Dhakeshwari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal[54] has observed that it is “not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested” in the Supreme Court under Article 136 and the limitations “are implicit in the nature and character of the power itself”.[55] Being an “exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations”.[56] The Court went on to state as under:

“ …. It is, however, plain that when the court reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of India has or given a fair deal to a litigant, then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of exercise of this power because the whole intent and purpose of this article is that it is the duty of this court to see that injustice is not perpetuated or perpetrated by decisions of courts and tribunals because certain laws have made the decisions of these courts or tribunals final and conclusive…”[57]

c. The aforesaid position has consistently been upheld. As recently as 2016, the Constitution Bench of the Supreme Court in Mathai George [58] refused to restrict the scope of Article 136 and stated that “no effort should be made to restrict the powers” of the Supreme Court under Article 136. The Court said that “it would be better to use the said power with circumspection, rather than to limit the power forever”.[59]

IV. QUESTION OF LAW KEPT OPEN UNDER ARTICLE 136

1. Once the matter reaches the Supreme Court in a petition/application under Article 136, the Court has to exercise its discretionary jurisdiction (and not appellate jurisdiction) to examine whether or not leave should be granted in a given case.[60] If leave to appeal is granted, “the appellate jurisdiction of the Court stands invoked, the gate for entry in the appellate arena is opened,” and if so required, the respondent may be called to oppose the petitioner.[61] The Court may in certain cases dismiss the appeal after granting leave without issuing notice to the respondent.[62] However, if the leave to appeal is dismissed, “the case for invoking the appellate jurisdiction of the court” is not made out.[63] The order can be a speaking or a non-speaking one. In most cases, when the Supreme Court does not wish to exercise its discretion, the Court simply passes a one line order dismissing the special leave petition in limine without assigning any reasons. However, on some occasions, while dismissing the special leave petition, the Court may “leave the question of law open” to be decided in an appropriate case.

2. The question that might be asked is whether it would be proper for the Supreme Court to “leave the question of law open”, whilst exercising its discretionary jurisdiction under Article 136? As has been seen in the previous part of this column,[64] the Supreme Court can only exercise its appellate jurisdiction in constitutional and civil matters under Articles 132 and 133 against “any judgment, decree or final order” when the case involves a “substantial question of law” as to the interpretation of the Constitution or of general importance that in the High Court’s opinion “needs to be decided” by the Supreme Court. The jurisdiction under Articles 132 and 133 can only be invoked if a High Court certifies the same under Article 134-A.[65] In civil proceedings, Article 133 has to be read with Section 109[66] and Order XLV of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC” ) which deals with appeals to the Supreme Court. The non obstante clause in Section 109 and savings clause in Section 112 CPC clarifies that nothing contained in CPC will “affect the powers of the Supreme Court under Article 136 or any other provision of the Constitution.”[67] This certificate also has to be granted in criminal matters, if the High Court feels that the case is a fit one for appeal to the Supreme Court, except in cases falling within Article 134(1)(a) or (b).[68]

3. The discretionary and appellate powers under Article 136 has been explained by the three Judge-Bench of the Supreme Court itself in Khoday Distilleries Ltd.   v. Shri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal (hereinafter referred to as “Khoday Distilleries”) that has extensively relied upon its previous judgment in Kunhayammed v. State of Kerala .[69] The jurisdiction conferred by Article 136 is divided into two stages: (1) Stage one is “up to the disposal of prayer for special leave to file an appeal” and (2) Stage two which commences only if “the leave to appeal is granted and the special leave petition is converted into an appeal.” Once the special leave petition is converted into an appeal, it is renumbered and treated as a civil or criminal appeal and heard as one under Article 136 by the Supreme Court as an “appellate court”.[70] In such cases, the Supreme Court may, while exercising its “appellate jurisdiction” under Article 136, “reverse, modify or affirm the judgment, decree or order appealed against. Once the Supreme Court grants leave and acts upon such order of the subordinate forum or High Court, the order passed by the subordinate forum or the High Court merges in the decision of the Supreme Court and the Supreme Court’s order remains operative and replaces the order passed by the subordinate forum or the High Court.[71] However, if the special leave petition is dismissed and leave is not granted, there is “no merger” and the order in challenge attains finality.[72] In such cases, it makes no difference whether a special leave petition is dismissed by either a speaking or a non-speaking order. The only difference between a speaking and non-speaking order passed under Article 136 is that the speaking or reasoned order rejecting the special leave petition may contain a “statement of law” declared by the Supreme Court which will be binding under Article 141[73] of the Constitution on all courts in India or the order may contain findings or directions that would bind the parties to the lis and the subordinate forum or High Court.[74] A non-speaking order binds neither the parties to the lis nor does it lay down a declaration of law under Article 141 of the Constitution.

4. Therefore, it is respectfully submitted that if the Supreme Court dismisses the special leave petition by either a speaking or non-speaking order, it would not be proper on the Court’s part to leave the question of law open for future consideration. A dismissal results in finality exclusively qua the parties to the dispute and therefore, the Supreme Court cannot go beyond the scope of its jurisdiction under Article 136 and “leave the question of law open.” This would defeat the very purpose of Article 136 of the Constitution. Further, there is no provision in the Constitution that gives the Supreme Court power to “leave a question of law open” including in Article 136 (howsoever widely it may be interpreted). Except for Article 143,[75] the Constitution only speaks of a “substantial question of law” and nor merely a “question of law”. While it is true that the “question of law” could include within its fold a “substantial question of law”, such a question would have to be certified as one by a High Court under the Constitution. This power vests only with the High Court and not the Supreme Court. While the Supreme Court can always examine a “question of law” under Article 136, after special leave is granted, it is respectfully submitted that it cannot reject special leave and at the same time leave the question of law open. The discretionary power under Article 136 ends when the special leave petition is rejected, and the said power cannot be exercised to “leave the question of law open.”

5. Prior to the judgment of Khoday Distilleries,[76] the Gujarat High Court had an opportunity to deal with the expression “question of law kept open” in Collector v. Liquidator, Petrofills Cooperative. Ltd.,[77] where one of the issues before the High Court was whether the High Court could reconsider a decision if the Supreme Court kept the “question of law open.” The Gujarat High Court relying on a previous decision its own Court in CIT v. Itegra Engg. India Ltd.[78] held that it was only the Supreme Court that could reconsider the question of law in the future.[79] According to the Gujarat High Court, the expression “question of law is kept open” would “only guard against any future contention that the Supreme Court has confirmed the ratio of the judgment under challenge whereby either giving rise to a possible contention of merger or that even in future cases, the Supreme Court would be precluded from considering such an issue in better facts”.[80] It is respectfully submitted, firstly that Khoday Distilleries has settled the issue that dismissal of the special leave petition would not result in merger and the dismissal of the petition will not result in any expression of opinion on the judgment under challenge and secondly even if the expression “question of law kept open” is absent in the order of the Supreme Court, it would still not preclude the Supreme Court from considering such an issue at a later stage. The dismissal of the special leave petition is nothing more than a refusal to exercise discretionary jurisdiction.

6. By using the expression “question of law kept open/or is kept open” while dismissing a special leave petition, the Supreme Court could give an excuse to cheeky lawyers, like yours truly, to persuade the High Court to grant a certificate under Article 134-A on the ground that the “question of law” is “substantial” and of “general importance” and since the Supreme Court has kept the question open, the said question “needs to be decided by the Supreme Court.”

V. CONCLUDING COMMENTS

According to the author, Article 136 of the Constitution serves two purposes. One purpose is to ensure that justice is administered in the right manner and the other purpose is to ensure finality even while dealing with interim orders. The article is flexible enough to ensure that both purposes are served. Leaving the question of law open and at the same time refusing special leave to appeal, is like blowing hot and cold at the same time. Such orders lack a certain degree of certainty and above all run counter to the article itself. As has been mentioned in the previous part, nothing prevents the Court from examining a question of law in appeal under Article 136 once leave is granted. Therefore, “leaving the question of law open” for a future date is wholly unnecessary. In future, it would be advisable for the Court to not leave the question of law open while dismissing a special leave petition. This would certainly ensure both certainty and finality.


* The author is a practicing advocate at  Bombay High Court and the National Company Law Tribunal, Mumbai

[1] Article 136.

[2] Constituent Assembly Debates, Official Report, Sixth Reprint, Vol. VIII, pp. 593, 634-642. See also Vijay Hansaria, The Chronicles of Indian Constitution, Mohan Law House Publishing Pvt. Ltd, New Delhi, Edn. 2019, pp. 227,228

[3]Except in cases where the writ jurisdiction of the Court under Article 32 is invoked, suits filed under Article 131 of the Constitution, appeals under Articles 132-134 and Presidential references under Article 143.

[4] 138. Enlargement of the jurisdiction of the Supreme Court.

[5] 139. Conferment on the Supreme Court of powers to issue certain writs.

[6]  143. Power of President to consult Supreme Court.

[7] 131. Original jurisdiction of the Supreme Court

[8] 134-A. Certificate for appeal to the Supreme Court

[9] 132. Appellate jurisdiction of the Supreme Court in appeals from High Courts in certain cases.

See also Order XVIII-A of the Code of Civil Procedure, 1908.

[10] Ibid

[11] 133 Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters

[12] Ibid. Also see Section 109 read with Order XLV of the Code of Civil Procedure, 1908 

[13] (1976) 1 SCC 822 

[14] Ibid, p. 824 para 2

[15] Ibid 1973 SCC OnLine Delhi 182 :  ILR (1973) 2 Del 673, 676

[16] 1962 Supp (3) SCR 549  para 6

[17] Gadbois, George H., Supreme Court of India : The Beginnings, Edited by Vikram Raghavan and Vasujith Ram, Oxford University Press, Second impression 2018, p. 35.

[18] Supra Note 2 pp. 596 to 633. See the speeches of Shri Rohini Kumar Chaudhari, Pandit Thakur Das Bhargava, Prof. Shibban Lal Saksena, Frank Anthony, Dr. P.K. Sen, Dr. P.S. Deshmukh, Pandit Lakshmi Kanta Maitra, Shri K.M. Munshi, Shri Jaspat Roy Kapoor, Dr. Bakshi Tek Chand and Dr. B.R. Ambedkar

[19] Ibid p. 598

[20] Hansaria, Vijay, The Chronicles of Indian Constitution, Mohan Law House Publishing Pvt. Ltd, New Delhi, Edition 2019, pp. 224, 225

[21] Ibid

[22] 134. Appellate jurisdiction of Supreme Court in regard to criminal matters.

[23] 135. Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court.

[24] Article 366 (10)  “existing law” 

[25] 136. Special leave to appeal by the Supreme Court.

[26] Section 110. Savings

[27] 205. Appellate jurisdiction of Federal Court in appeals from High Courts in British India

Click to access data.pdf

[28] See Section 1 of the Judicial Committee Act, 1844 and Section 3 of the Judicial Committee Act, 1833

[29] Supra Note 28

[30] Section 206. Power of Federal Legislature to enlarge appellate jurisdiction https://www.legislation.gov.uk/ukpga/Geo5and1Edw8/26/2/enacted/data.pdf

[31] Ibid

[32] 208. Appeals to His Majesty-in-Council https://www.legislation.gov.uk/ukpga/Geo5and1Edw8/26/2/enacted/data.pdf

[33] Gadbois, supra Note 17 p. 53

[34] Seervai H.M., Constitutional Law of India, Fourth Edn., Vol. 3, Universal Law Publishing Co, p. 2647 para 25.57. See also Renton, A. Wood. “Indian and Colonial Appeals to the Privy Council.” Journal of the Society of Comparative Legislation, Vol. 1, No. 3, 1899, 345–380,  JSTOR, www.jstor.org/stable/751912. Accessed 26 June, 2020

[35] Gadbois, George H. “Evolution Of The Federal Court Of India: An Historical Footnote.” Journal of the Indian Law Institute, Vol. 5, No. 1, 1963, p.19 JSTOR, www.jstor.org/stable/43950330. Accessed 26 June, 2020.

[36] Section 94. Appellate jurisdiction of Supreme Court in appeals from High Courts in Provinces in other cases.- Subject to such rules as the Supreme Court may make in this behalf, an appeal shall lie to the Supreme Court from a judgment, decree or final order of a High Court in a Province without any such certificate as aforesaid if –

(a) The amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees, or the judgement, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and where judgment, decree or final order appealed from affirms the decision of the court immediately below, appeal involves substantial question of law; or

(b) The Supreme Court gives special leave to appeal.

The section can be found in Hansaria, supra Note 20 pp. 227 and 228.

[37] Article 112. Special leave to appeal by the Supreme Court in certain other cases.--The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree or final order in any cause or matter, passed or made by any court or tribunal in the territory of India except the States for the time being specified in Part III of the First Schedule, in cases where the provisions of Article 110 or Article 111 of this Constitution do not apply. Draft Articles 110 and 111 correspond to the present-day Articles 132 and 133.

[38] Supra Note 2 p. 637. See the speech of Shri Krishna Chandra Sharma.

[39] Ibid, pp. 634 -642

[40] Ibid, p. 636

[41] Ibid.

[42] Ibid, p. 637

[43] Ibid, p. 638

[44] Ibid, p. 639

[45] Ibid

[46] Ibid

[47] Ibid, p. 640

[48] Seervai, supra Note 34 p. 2647 para 25.57. See also Bharat Bank Ltd. v. The Employees of Bharat Bank Ltd., Delhi,  (1950) SCR 459

[49] Ibid

[50] Ibid, p. 2650 para 25.61

[51] Ganga Kumar Srivastava v.  State Of Bihar, (2005) 6 SCC 211, 217 para 10

[52] Ibid

[53] Seervai, supra Note 34 p. 2649 para 25.60

[54]   (1955) 1 SCR 941 http://www.scconline.com/DocumentLink/49Iq0DOZ

[55] Ibid, p. 69 para 7

[56] Ibid

[57] Ibid

[58] (2016) 7 SCC 700   http://www.scconline.com/DocumentLink/w660v299

[59] Ibid, p. 702 para 6

[60] Kunhayammed v. State of Kerala, (2000) 6 SCC 359, 371-372, para 14.

Extracts of the judgment have been reproduced in Khoday Distilleries Limited  v. Shri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal, (2019) 4 SCC 376, 388-397 para 19-23. See also the doctrine of merger.

[61] Ibid p. 389 para 19

[62] Ibid

[63] Ibid

[64] Part II

[65] Supra Notes 9 and 11.

[66] Section 109. When appeals lie to the Supreme Court

[67] Section 112. Savings 

[68] Supra Note 22

[69] Supra Note 60.

[70] Ibid, p. 389 para 19

[71] Ibid, p. 393 para 44 (iii)

[72] Ibid, p. 390 para 20

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

[74] Supra Note 60 p. 394 para 23(v)

[75] Supra Note 6

[76] Supra Note 60

[77]Misc. Civil Application (For Review) No. 1412 of 2015 in SCA No. 4353 of 2008, decided on 23-10-2015 (Guj).

The decision has been further followed by a Single Bench of the Gujarat High Court in Hemal Ishwarbhai Patel v. Veer Narmad South Gujarat University, 2016 SCC OnLine Guj 10037

[78] 2013 SCC OnLine Guj 7389, para 10.

It is pertinent to note that the Lucknow Bench of the Allahabad High Court in Faujdar Singh v. State of U.P., 2016 SCC OnLine All 3877, has taken a contrary view.

[79] Collector v. Liquidator, Petrofils Coop. Ltd., Misc. Civil Application (For Review) No. 1412 of 2015 in SCA No. 4353 of 2008, decided on 23-10-2015, para 27 (Guj).

[80] Ibid, para 26

COVID 19Hot Off The PressNews

The Supreme Court Registry has released a detailed User Guide for limited physical hearings.  The ‘How to’ User guide answers the ‘How tos’ on

  1. e-Nomination of Counsel/Clerk for Physical hearing
  2. e-Application for Special Hearing Entry Pass
  3. e- Submission of Self-declaration Form

Some Key Points from the User Guide 

For e-Nomination of Counsel/Clerk for Physical hearing

  • AOR can nominate

1. Senior Counsel
2. Advocate-on-record (Other than the user)
3. Appearing counsel (Any other advocate otherwise eligible)
4. Party to the case represented by concerned AOR
5. Registered Clerk of the concerned AOR or nominee.

Total number of AORs appearing in the selected case will be displayed on the top of screen. The working capacity of the Court Room as per standard social distancing norms would also be on display.

  • How will the Limit be calculated: Limit per AOR is Calculated as per total number of AOR in a given case qua the working capacity of given Court Room.  If Limit per AOR is 0 in that case AOR can replace himself/herself with Senior Counsel or Appearing Counsel or Another AOR, as may be the case. If Limit per AOR is 2 in such case besides such AOR he or she can permit any two or combination of Senior Counsel or Appearing Counsel or Another AORs.
  • Entry of registered clerks is permitted to assist AOR or counsel for supplying physical material, as may be required, to argue a case. However, registered clerks
    are not permitted to enter inside the Court Room. Therefore, registered clerks are not counted as attendee inside the Court Room however his entry is permitted up
    to the Court Room. Therefore, Registered Clerk is not counted in the Limit of persons to be nominated by AOR in a given case.
  • If in a given case only AOR is permitted and such AOR replaces and nominates counsel in his place, in such event AOR will not be permitted inside the Court Room for that item number listed before the Court. In the Figure 6 name of AOR shall be at serial No. 1 by default. When AOR desires to replace himself/ herself, he or she can delete his/her entry and make fresh entry with appropriate replacement.
  • Mobile Number is mandatory field for nominating any person for physical hearing. On the basis of mobile number entry pass mechanism is designed, therefore, ensure that correct mobile number is entered, and it is verified before finally submitting nomination to the Registry.
  • On the day a given case is listed before the Court, nominated entries can be edited or changed till 09.00 am.

For e-Application for Special Hearing Entry Pass

  • AOR or Appearing Counsel or Arguing Counsel or Registered Clerk shall click on Special hearing entry pass link available on the official website Supreme Court of India.
  • Person nominated for special hearing and physical appearance before the Supreme Court of India shall enter his mobile number. If his number is registered by concerned AOR he shall receive OTP. If OTP is not received the concerned may contact respective AOR.
  • Photo ID uploaded while generating entry pass will be physically verified while permitting entry Photo ID is required for identification of the nominated person as Advocate or registered Clerk, as may be the case.
  • If on a particular day, appearance is to be marked in more than one case, multiple passes are required to be generated for that day. For each item number listed before the Court, a separate pass is required. Accordingly, one has to check schedule for the day and generate all passes listed for that day before the various Courts.
  • Before physically entering/ visiting the Supreme Court premises, the entrants have to mandatorily sign self-declaration form about fitness and good health ruling out possibility of self-infection

For e- Submission of Self-declaration Form

Any person or Advocate seeking to enter / visit the premises of the Supreme Court by generating Special Hearing Entry Pass, is mandatorily required to Sign in Selfdeclaration form. Self-declaration is to be signed in by entering OTP sent on registered mobile number only on the day of visit.

To download the user manual, click here.


Also read

SOP for limited physical hearings amidst COVIS-19 pandemic

COVID 19Hot Off The PressNews

After a 7-judge Committee of Justices NV Ramana, Arun Mishra, Rohington Nariman, U U Lalit, A M Khanwilkar, DY Chandrachud and L N Rao recommended re-commencing the physical hearings in some Courts, Chief Justice of India Justice SA Bobde has given the following directions for limited physical hearings amidst COVIS-19 pandemic:

1. On an experimental basis, and as a pilot scheme, physical hearing of matters may initially commence in three Court-rooms; eventually, number of matters or the number of Court-rooms may be increased or reduced, as the situation may warrant or permit;

2. Despite consent by the Advocates/Parties-in-Person, only such number of Counsels/parties may be permitted to appear during physical hearing inside Courtrooms, so that the total number does not exceed the working capacity of the Court(s) as determined considering the physical distancing norms;

3. If in a matter the number of parties is more, then one AOR and one Arguing Counsel per party will be allowed entry; one registered Clerk per party, as may be chosen by the AOR, shall be allowed entry to carry paper-books/journals etc. of the Counsels upto the Court-rooms;

4. Entry into the High Security Zone through proximity cards/long term passes shall be kept suspended, till further orders; entry of counsels/parties or such other stakeholders to appear for such limited physical hearing will be through daily “Special hearing passes” which will be issued by the Registry, on the basis of authorization by the concerned Advocate on Record.

5. Multiple sets of one chair and table are being placed inside the Court Rooms, in the areas demarcated for Advocates/Parties-in-Person, and it shall be incumbent upon the users to maintain minimum prescribed physical distancing norms between each set, which should not be removed from their positions;

6. Advocates/Parties-in-Person/Clerks or other stakeholders, who have been issued Special Hearing Passes, upon completion of necessary formalities, online or otherwise as may be notified in due time, shall enter the High Security Zone through the designated Gate, after subjecting themselves to the thermal and such other scanning devices as may be installed for detecting body temperature, infection status, etc.

7. On entering the High Security Zone, Advocates/Parties-in-Person would proceed to the staging areas/vacant Court-rooms as may be designated, and wait for their turn to enter respective Court Rooms where physical hearing of their respective case(s) may be scheduled, and they would proceed only through the movement corridors created and demarcated for the purpose;

8. At the staging/waiting area(s), concerned volunteers may also guide the Advocates/Parties-in-Person further, as and when their turn comes for entering the designated Court Room for hearing;

9. The entry into and exit from each Court Room shall be by separate doors; entrants into the Court Rooms are advised to use the sanitization devices for sanitizing their hands and also the papers and other items/articles, that they may seek to carry into the Court Rooms with them;

10. It may be noted that wearing of mask, frequent use of hand sanitizer and maintaining physical distancing norms is mandatory for all entrants into the Supreme Court premises, including the Court-rooms;

11. On completion of hearing of their respective case, the Advocates/Parties-in-Person/Clerks, etc. shall move out of the High Security Zone through the movement corridor and exit from the designated gates;

12. Advocates/Parties-in-Person having more than one case for physical hearing in the Court Rooms shall be issued separate Special Hearing Pass for each case and after hearing of one case is complete, they may wait in the designated staging/waiting area(s) for the purpose for appearing for the next hearing(s);

13. In order to facilitate video/tele-conferencing for the Advocates/Parties-in-Person, a dedicated VC Facilitation Centre is located in Block ‘C’, Ground Floor, Additional Building Complex, Supreme Court of India, which can be accessed through Gate No.1 of that Complex.


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Know thy Judge

As Justice N. V. Ramana, next in line to become the Chief Justice of India, celebrates his 63rd birthday today, let’s have a look at his journey so far in shaping the justice system.

Here are some of the notable judgments that Justice Ramana has been a part of:

Jindal Stainless Ltd v. State of Haryana, (2017) 12 SCC 1: A 9-judge bench, by 7:2 majority, upheld the validity of the entry tax imposed by the States on goods imported from other States. The Bench held that taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India and that the word ‘Free’ used in Article 301 does not mean “free from taxation”. T.S. Thakur, CJ and Dr.  A.K. Sikri, S.A. Bobde, Shiva Kirti Singh, N.V. Ramana, R. Banumathi and A.M. Khanwilkar, JJ, giving the majority view said that States are well within their right to design their fiscal legislations to ensure that the tax burden on goods imported from other States and goods produced within the State fall equally. Read more 

Central Public Information Officer v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459: The 5-judge constitution Bench of Ranjan Gogoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ has held that the office of the Chief Justice of India comes under the purview of the Right to Information. In the 250-pages long judgment, Justice Sanjiv Khanna wrote the majority opinion for the Bench and Justices NV Ramana and DY Chandrachud gave separate but concurring opinion. Read more 

Anuradha Bhasin v. Union of India, (2020) 3 SCC 637: A 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ has asked J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain. “The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).” Read more 

Foundations for Media Professionals v. Union Territory of Jammu and Kashmir, 2020 SCC OnLine SC 453 : A 3-judge bench of NV Ramana, R. Subhash Reddy and BR Gavai, JJ has constituted a three-member committee to look into demand for allowing 4G mobile internet in the union territory of Jammu and Kashmir. Noticing that since the issues involved affect the State and the nation, the Court found it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir. Read more 

Nabam Rebia, and Bamang Felix v. Deputy Speaker, (2016) 8 SCC 1: A 5-judge constitutional bench of Jagdish Singh Khehar, Dipak Misra, Madan B. Lokur, Pinaki Chandra Ghose and N.V.Ramana, JJ. quashed the order of the Governor, preponing the 6th session of the Arunachal Pradesh Legislative Assembly by a month without consulting the Chief Minister, Council of Ministers or the Speaker, on account of being violative of Article 163 read with Article 174 of the Constitution of India. Read more 

Commr. of Customs v. Dilip Kumar and Co., (2018) 9 SCC 1 : A five-Judge Constitution Bench speaking through N.V. Ramana, J., while invalidating the ratio of Sun Export Corpn. v. Collector of Customs(1997) 6 SCC 564, laid at rest the controversy regarding the interpretation of an ambiguous provision exempting tax. The Bench noticed that there was distinction between interpreting a charging section and an exempting section. In case of ambiguity in a charging section, the interpretation has to be made in favour of the assessee. Read more

Roger Mathew v. South India Bank Ltd., 2019 SCC OnLine SC 1456 : A 5-judge Constitution Bench of Ranjan Gogoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ has upheld the validity of Section 184 of the Finance Act, 2017 and held that the said Section does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of this Court. The Court struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017, made under Section 184 of the Finance Act, 2017, for being contrary to the parent enactment and the principles envisaged in the Constitution. Read more 

Adi Saiva Sivachariyargal Nala Sangam v. State of T.N., (2016) 2 SCC 725 : The bench held that the appointment of Archakas in temples will have to be made in accordance with the Agamas, subject to their due identification as well as their conformity with constitutional mandates and principles. Exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 only so long such inclusion/exclusion is not based on criteria of caste, birth or any other constitutionally unacceptable parameter.

Md. Anwar v. State of NCT of Delhi, 2020 SCC OnLine SC 653:. The 3-judge bench of NV Ramana, SA Nazeer and Surya Kant, JJ has held that in order to successfully claim defence of mental unsoundness under Section 84 of IPC, the accused must show by preponderance of probabilities that he/she suffered from a serious-enough mental disease or infirmity which would affect the individual’s ability to distinguish right from wrong. “Mere production of photocopy of an OPD card and statement of mother on affidavit have little, if any, evidentiary value.” Read more 

Hot Off The PressNews

Supreme Court Registry has written to the President of Supreme Court Advocates on Record Association (SCAORA) informing about the decision made in a meeting held on August 11 by the 7-Judge Committee regarding the resumption of physical hearing of cases in the Court Rooms.

Here are the recommendations of the 7-judge committee: 

  • as a pilot scheme, three amongst the bigger Court Rooms maybe prepared for the physical hearing on an experimental basis while strictly adhering to the social distancing and other norms as per medical advice.
  • a limited number of cases may be listed for physical hearing in these Court Rooms after 10 days subject to the decision of the Competent Authority and upon prior consent of all parties in writing.
  • the numbers of the cases listed may be gradually increased if the ground situation so warrants and permits.
  • all the matters including miscellaneous matters listed on Mondays and Fridays shall continue to be heard through Video Conferencing as per the existing Standard Operating Procedure till further orders.
  • considering the vulnerability, in medical terms, of some stake-holders and their family members to the COVID-19 infection, particularly in the absence of a preventive vaccine or medicine/ procedures to mitigate cure or overcome the disease resulting from such infection, it has been recommended that requests from stake-holders for exemption from participation in any such limited physical hearing inside the Court Rooms may be considered favorably.
  • steps be taken to improve and strengthen e-filing and such other components of hearing through Video Conferencing.

The letter clarified that the recommendations mentioned relate only to the requests and suggestions received in respect of the functioning of the Supreme Court and such recommendations shall not apply in respect of any other Court, Tribunal, or adjudicatory authority in India.

The Supreme Court, since March 25, has been holding hearings through video conferencing due to a nationwide lockdown and even after the restrictions were relaxed, it has decided to continue with the practice. Justices NV Ramana, Arun Mishra, Rohington Nariman, U U Lalit, A M Khanwilkar, DY Chandrachud and L N Rao are part of the committee set up by the CJI to look into the issue of resumption of physical hearings in the Supreme Court again.


ALSO READ

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

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

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

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

Appointments & TransfersNews

Collegium Statement

Supreme Court Collegium approves the proposal for elevation of the following Advocates as Judges of the Gujarat High Court:

  • Vaibhavi Devang Nanavati,
  • Nirzarkumar Sushilkumar Desai, and
  • Nikhil Shreedharan Kariel.

Supreme Court of India

[Collegium Statement dt. 14-08-2020]

COVID 19Hot Off The PressNews

A committee of seven Supreme Court judges is learnt to have recommended holding physical hearings in at least two or three of the 15 benches in the Supreme court as early as next week with some additional safety measures. Justices NV Ramana, Arun Mishra, Rohington Nariman, U U Lalit, A M Khanwilkar, DY Chandrachud and L N Rao are part of the committee set up by the CJI to look into the issue of resumption of physical hearings in the Supreme Court again.

The Supreme Court, since March 25, has been holding hearings through video conferencing due to a nationwide lockdown and even after the restrictions were relaxed, it has decided to continue with the practice. In the last week of July, the 7- judge panel headed by senior most judge Justice N V Ramana had apprised the bar leaders of its decision to not open the apex court for physical hearings “for the time being” and had assured to meet them again after two weeks to reconsider the issue.

(Source: PTI)


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Hot Off The PressNews

Supreme Court has issued a circular dated 27.07.2020 notifying that the Advocate-on-Record and Party-in-Person shall file soft copy of the petition as well as the accompanying documents, filed in physical form at the filing counter of the Registry.

To read the Standard Operating Procedure for the same, click here.


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Appointments & TransfersNews

The Supreme Court Collegium has approved the proposal for appointment of following Additional Judges of Kerala High Court as Permanent Judges of that High Court:

1. Justice V.G. Arun,

2. Justice N. Nagaresh,

3. Justice T.V. Anilkumar, and

4. Justice N. Anil Kumar.


Supreme Court Collegium

[Collegium Statement dt. 21-07-2020]

Appointments & TransfersNews

Collegium Resolutions

Supreme Court Collegium has approved:

“proposal for appointment of Justice Abhijit Gangopadhyay, Additional Judge of Calcutta High Court as Permanent Judge of that High Court.”

“proposal for appointment of Justice Jyotsna Rewal Dua, Additional Judge of Himachal Pradesh High Court as Permanent Judge of that High Court.”

“proposal for appointment of following Additional Judges of Punjab & Haryana High Court as Permanent Judges of that High Court:

  •  Justice Manjari Nehru Kaul
  • Justice Harsimran Singh Sethi
  • Justice Arun Monga
  • Justice Manoj Bajaj
  • Justice Lalit Batra
  • Justice Arun Kumar Tyagi
  • Justice Harnaresh Singh Gill

Statement 1

Statement 2

Statement 3


Supreme Court Collegium

[Collegium Statements dt. 14-07-2020]