Supreme Court

Know thy Judge

Justice Sudhanshu Dhulia was born on 10-08-1960 in in Pauri Garhwal, Uttarakhand to Shri Keshav Chandra Dhulia, who was also a Judge at Allahabad High Court and Smt Sumitra Dhulia, a Sanskrit Professor. His grandfather was a freedom fighter who sentenced to jail for seven years (severed for three years and later was released) for participating in the Quit India Movement.

♦ Did You Know? Justice Dhulia is a grandson of Pundit Bhairav Dutt Dhulia who was a freedom fighter and editor of Hindi newspaper Karmabhumi newspaper in Garhwal, Uttarakhand.

Justice Dhulia has two brothers – the elder Himanshu Dhulia, a retired naval officer, and the younger Tigmanshu Dhulia is a filmmaker.

♦ Did You Know? Justice Dhulia is the brother of national award-winning film director and actor Tigmanshu Dhulia.[1]

He did his earlier schooling from Dehradun, Allahabad and Lucknow. In his growing up years, he participated in debates, played sports and was a part of number of plays in theatre. He graduated from Allahabad University in 1981 and completed his masters Masters in Modern History in 1983. Justice Dhulia completed his L.L.B. in 1986

As an Advocate

Justice Dhulia is a second-generation legal professional who joined the Bar at Allahabad High Court in 1986 and then shifted his base to High Court of Uttarakhand after formation of the new state in 2000.

Initially, he practiced on the Civil and Constitutional side before the High Court of Judicature at Allahabad and was the legal counsel for IIT, Roorkee, State Industrial Development Corporation of Uttarakhand Ltd. (SIDCUL), Bhagirathi River Valley Authority, amongst others. He was designated as Senior Advocate in June, 2004 at High Court of Uttarakhand.

♦ Did You Know? After the creation of the new  State  of Uttarakhand, Justice  Dhulia  became  its  First  Chief  Standing Counsel and was later appointed as State Additional  Advocate  General.

He was also an honorary professor in the Uttarakhand Academy of Administration (ATI) Nainital.

As a Judge

Justice Dhulia was elevated as a permanent Judge of Uttarakhand High Court on 01-11-2008. He was also appointed as the judge in-charge of education at the Uttarakhand Judicial and Legal Academy.

♦ Did You Know? Over 13 years as a Judge of the Uttarakhand High Court, Justice Dhulia authored 1,119 Judgments and was part of 1,415 Benches.[2]

He was elevated as Chief Justice of the Gauhati High Court on 07-01-2021 and took the oath on 10-01-2021.

♦ Did You Know? In the one year and four months he spent as Chief Justice of the Gauhati High Court, Justice Dhulia authored 81 judgments and sat on 110 Benches.[3]

Justice Dhulia was elevated as Judge of Supreme Court of India on 09-05-2022.

Notable Judgements

Tihar Jail Crime Syndicate| Supreme Court directs conman Sukash Chandra to reveal names of persons involved in Rs. 200 crores extortion case

In a highly controversial extortion case of about Rs. 200 crores in Delhi’s Tihar jail, the 3-judge Bench of Uday Umesh Lalit, S. Ravindra Bhat, and Sudhanshu Dhulia, JJ., has directed conman Sukash Chandra to reveal names of the persons involved in the alleged crime syndicate. [Sukash Chandra Shekhar v. Union of India, 2022 SCC OnLine SC 894]

Read More…

Supreme Court allows Project 39A of NLU Delhi to conduct psychological evaluation of a death row convict to bring out mitigating factors 

Adopting a humanitarian approach, the 3-judge Bench of Uday Umesh Lalit, S. Ravindra Bhat, and Sudhanshu Dhulia, JJ., allowed Project 39- A of the National Law University, Delhi, to have access to the appellant, a death row convict to interview him and conduct a psychological analysis in order to bring out mitigating circumstances.  [Karan v. State of M.P., 2022 SCC OnLine SC 732]

Read More…

Person languishes in jail for 2 years despite being granted bail by Supreme Court; Supreme Court criticizes Trial Judge for misinterpreting bail order

In a significant case, the 4-judges Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat, P.S. Narasimha and Sudhanshu Dhulia, JJ., issued directions to all the High Courts of the country to submit reports indicating status of cases where bail has been granted by the Supreme Court i.e. if any of such persons are deprived of the opportunity of being released on bail for some reason or the other.

“… where the custody of a person for 9 years was found to be sufficient to entitle him to be released on bail, is now turned into custody for 11 years. This is nothing but  reincarnation of Hussainara Khatoon [(1980) 1 SCC 81] & Motil Ram[(1978) 4 SCC 47].”

[Gopisetty Harikrishna v. State of A.P., 2022 SCC OnLine SC 654]

Read More…

Right to cross-examination cannot be denied as a punishment for failure to deposit interim compensation under Section 143A NI Act

In a case where an offender under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) was denied the right to cross-examine a witness upon failure to deposit the interim compensation under Section 143A of NI Act, the bench of UU Lalit*, S. Ravindra Bhat and Sudhanshu Dhulia, JJ has held that any such order foreclosing the right would not be within the powers conferred upon the court and would, as a matter of fact, go well beyond the permissible exercise of power. [Noor Mohammad v. Khurram Pasha, Crl.A. No.-001123-001123 / 2022, decided 02.08.2022]

Read More…

Husband seeking personal information such as salary of wife under Right to Information Act, 2005; Whether acceptable or not?

Dismissing the petition being devoid of merits, Sudhanshu Dhulia J., held that it cannot be any anybody’s case that a Government authority being Government school does not come under the definition of ‘public authority’. The only exception as to the information given under the Act under Section 8 of the RTI Act, is an exemption from disclosure of information. It further observed that the nature of information sought by respondent 8 is not covered under any of the exemption given under Section 8 of the RTI Act. [Jasmeet Kaur v. State of Uttarakhand, 2016 SCC OnLine Utt 2276]

Read More…

Mere installation of CCTV cameras in hospitals is not enough; HC directs to connect Hospital cameras to the nearest Police Station

The Division Bench comprising of Sudhanshu Dhulia, CJ, and Manash Ranjan Pathak, J., directed to connect CCTV cameras of Hospitals to the nearest Police Station to put a check on increasing instances of violence against medical practitioners amid Covid-19. [Asif Iqbal v. State of Assam, 2021 SCC OnLine Gau 1529]

Read More…

Not in interest of the child; HC stays Sessions Court’s order granting custody of teenage rape victim to relatives of accused 

The Division Bench of Sudhanshu Dhulia, CJ., and  Manash Ranjan Pathak, J., addressed a suo motu PIL concerning the plight of a rape victim, where the victim was a child between 12-15 years of age.

Observing the sensitivity of the matter, the Bench issued strict directions to the State to depute a team of medical officers, including a lady doctor to conduct medical examination on the victim, only for the determination of her age. The Bench emphasised strictly that the examination shall be limited to a bone ossification test and no other test be done as the victim had already been medically examined. [State of Arunachal Pradesh, In Re., PIL (Suo Moto) No. 5 of 2021, decided on 30-06-2021]

Read More…

Violence against Doctors; HC directs State to take immediate actions if any medical practitioner is manhandled or abused

The Division Bench of Sudhanshu Dhulia, CJ., and Manash Ranjan Pathak, J., addressed the issue of violence against doctors. The Bench ordered the State to ensure that no medical practitioner is manhandled or abused in any manner. [Suo Motu v. State of Assam, PIL (Suo Moto) No.4 of 2021, Order dated 14-06-2021]

Read More…

Court directs ration be provided to struggling sex workers and their families who have been identified; further asks AIDS societies to identify the rest and give relief 

The Division Bench of Sudhanshu Dhulia, CJ. and Manash Ranjan Pathak, J., took up a petition filed in the nature of PIL; concern raised was the present condition of sex workers in Assam who, according to the petitioner in most cases, were on the verge of starvation, considering the strange and difficult times of the present COVID-19 pandemic, which is now in its second wave. [Debajit Gupta v. State of Assam, 2021 SCC OnLine Gau 1169]

Read More…

“What kind of test is being done for determination of COVID-19 infection?”; HC directs Assam government to set up Mobile Medical Units in Tea Gardens

The Division Bench of Sudhanshu Dhulia, CJ., and Manash Ranjan Pathak, J., addressed the issues relating to situation under the Covid-19 pandemic in the Tea Gardens of Assam and conditioner of workers in these Tea Gardens.

“We have absolutely no doubt that since the Government already has the resources, these Mobile Medical Units must be put in use for testing and other purposes in the Tea Gardens as well, if not already being done.”

[Anjan Nagg v. Union 0f India, 2021 SCC OnLine Gau 1105]

Read More…

Court rejects Plea of bias against the Enquiry officer; Dismisses petition in the matter of departmental proceedings

The Division Bench of Sudhanshu Dhulia and Alok Kumar Verma, JJ., dismissed a writ petition which was filed in the nature of certiorari and mandamus for quashing of certain orders passed by the enquiry officer and with a prayer to change the enquiry officer on grounds of bias. [Kanwar Amninder Singh v. High Court of Uttaranchal, 2020 SCC OnLine Utt 722]

Read More…

State contractual employees entitled to claim Child Care Leave

A Full-Bench of Ramesh Ranganathan CJ, Sudhanshu Dhulia and Alok Kumar Verma JJ, held that contractual state employees are also entitled to child care leave, and that its denial would mean the denial of the rights of a child. [Tanuja Tolia v. State of Uttarakhand, 2020 SCC OnLine Utt 337]

Read More…

Law provides a remedy at two stages, one before authority concerned and later before appellate authority, both must be fair and in compliance with the norms of natural justice

Sudhanshu Dhulia*, J., contemplated a petition presented before him by the petitioner who was a member of Waqf Board and was subsequently disqualified, aggrieved by which he filed the instant petition.

The Court observed that though the petitioner had a remedy under sub-section (2) of Section 83 of the Waqf Act, 1995 however, in this particular case the existence of an alternative remedy before the Tribunal not operated as a bar inasmuch as the present order had been passed without affording opportunity of hearing to the petitioner. [Haji Rao Sharafat Ali v. State of Uttarakhand, 2019 SCC OnLine Utt 893]

Read More…

Voluntarily depriving husband of wife’s company and comfort of matrimonial life amounts to cruelty; Divorce granted 

A Division Bench of Sudhanshu Dhulia and Narayan Singh Dhanik*, JJ., contemplated the special appeals preferred against the judgment of Family Court, where the divorce petition was filed under Section 13 of Hindu Marriage Act, 1955 and was subsequently dismissed but the counterclaim of the wife-respondent for the right of residence was decreed in the favor of the respondent. [Raghuveer Kaintura v. Meera Kaintura, 2019 SCC OnLine Utt 718]

Read More…

Compensation increased considering raise in annual notional income of a non-earning member pursuant to 1994 amendment in MV Act

Sudhanshu Dhulia*, J., allowed the appeal filed by the appellants against the award passed by the Motor Accident Claims Tribunal, Rudrapur in MACT Case No. 153 of 2013, whereby compensation of Rs 3,00,000 was awarded to the claimants. [Parwati Devi v. Paramjeet Singh, 2019 SCC OnLine Utt 672]

Read More…

Reservations in favor of sportsperson is traceable to Article 16(1); atrocities of exhaustiveness of reservation under Art. 16(4) observed by the Court

A Full Bench of Ramesh Ranganathan* CJ and Sudhanshu Dhulia and Alok Singh, JJ., entertained a writ petition calling into question the exhaustiveness of Article 16(4) of the Constitution of India. [Dhananjay Verma v. State of Uttrakhand, 2019 SCC OnLine Utt 373]

Read More…

Biological resources are property of Nation; Divya Pharmacy’s challenge to Fair and Equitable Benefit Sharing dismissed

A Single Judge Bench comprising of Sudhanshu Dhulia, J. stated that Fair and Equitable Benefit Sharing (FEBS) under the Biodiversity Act, 2002, was welfare legislation that was made to cater the needs of the local and indigenous communities. [Divya Pharmacy v. Union of India, 2018 SCC OnLine Utt 1035]

Read More…

Judge has to be protected from vexatious charges and malicious litigations; Judge of Court of Record cannot be tried for committing contempt of his own Court

A Division Bench comprising of Sudhanshu Dhulia and Rajiv Sharma, JJ., dismissed a contempt petition against a ‘Judge of a court of record’ purely on the question of law.

“The duty of a Judge, after all, was to dispense justice – without fear or favour, affection or ill will, without passion or prejudice. It is not a part of his duty to please litigants or keep lawyers in good humor. A Judge, ironically, with respect to the office he holds, does not enjoy much liberty and freedom. The principal requirement for all Judges, and particularly for a Judge of Court of Record, is to maintain his independence. A Judge can also be very helpless at times with respect to the position he holds hence for the sake of the independence of judiciary, a Judge has to be protected, from vexatious charges and malicious litigations.”

[Chhitij Kishore Sharma v. Justice Lok Pal Singh, CCP No. 03 of 2018, Order dated 04-09-2018]

Read More…

In the matter of appointments to higher echelons, fairness should be the hallmark of selection

A Division Bench comprising of U.C. Dhyani* and  Sudhanshu Dhulia, JJ. dismissed a challenge against the appointment of State Chief Information Commissioner. The main challenge in the petition was that the office of the State Chief Information Commissioner has become the ‘dumping ground’ for retired bureaucrats, who are rewarded for their loyalty to the State Government. [Chandra Shekhar Kargeti v. State Of Uttarakhand; 2018 SCC OnLine Utt 29]

Read More…

† Ritu Singh, Editorial Assistant has put this report together 

* Judge who has penned the judgment.

[1] NDTV, https://www.ndtv.com/india-news/gauhati-hc-cj-dhulia-justice-pardiwala-of-guj-hc-take-oath-as-sc-judges-2958197

[2] Supreme Court Observer, https://www.scobserver.in/judges/sudhanshu-dhulia/

[3] Supreme Court Observer, https://www.scobserver.in/judges/sudhanshu-dhulia/

Jharkhand High Court
Case BriefsHigh Courts

   

Jharkhand High Court: Rajesh Shankar, J., while dismissing the present writ petition primarily for want of territorial jurisdiction held that even if a small part of cause of action is said to have arisen within the territorial jurisdiction of this Court, it would not be proper to entertain the petition applying the principle of forum conveniens.

This petition has been preferred by the petitioners for quashing and setting aside Certificate dated 30-12-2021 issued to the movie namely, “Holy Wound”, by Central Board of Film Certification (‘CBFC'), Kerala praying to stop the release of the said silent movie on OTT platform/ Youtube etc. or on any other social media platform as the movie is blasphemous in nature, hurting the religious sentiments of the petitioners and the Christian community at large.

Arguments:

Counsel for the petitioner claims that the movie’s trailer is available on a variety of social media sites, where it can be seen that the movie shows a sexual relationship between two female characters who have been in an emotional relationship since childhood and are eventually split when one of them joins a Catholic Church.

The counsel for the petitioner further submits that the film’s very disparaging content undoubtedly damages the Catholic Church’s reputation and that of its believers, which would demoralize those who entered the priestly orders and nunship. He contended that the CBFC should have followed the “Guidelines for Certification of Films for Public Exhibition” which provides that the objectives of film certification are to ensure that the medium of film remains responsible and sensitive to the values and standards of society. According to Clause-2(ix) of the said Guidelines, the CBFC must ensure that scenes degrading or denigrating women in any manner are not presented.

He further points out that soon after the trailer was released, the petitioner received several phone calls inquiring as to whether such things happened inside the convents which disturbed her mental disposition.

The counsel for petitioner put reliance on Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254 where it was held that the question as to whether the court has territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. It has further been held that in order to confer jurisdiction on a High Court to entertain a writ petition, it must be disclosed that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the court to decide the dispute and that the entire or a part of it arose within its jurisdiction. It has further been held that the place from where an appellate order or a revisional order is passed may give rise to a part of cause of action although the original order was passed at a place outside the said area. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum.

ASGI appearing on behalf of the respondent (‘UoI'), at the outset, raises issues with regard to the maintainability of the present writ petition. It was argued that the head office of CBFC is situated in Mumbai and the impugned certificate has been issued by the regional office situated in Kerala. It was pointed out that even a small part of the cause of action has not arisen within the territorial jurisdiction of this Court and as such the present petition is liable to be dismissed without entering into the merit of the case for want of jurisdiction.

Issue:

Whether it would be proper to entertain the present writ petition applying the principle of forum conveniens?

Observation and Analysis:

The Court observed that the said concern shown by the petitioners appears to be omnibus in nature and there is every possibility that nuns residing in different parts of the country may have similar grievances as that of the petitioners. If the same issue is raised in different High Courts, there may be a possibility of divergent views coming up creating an impossible situation for the implementing agency to comply with all such orders.

The Court observed that in Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, the Supreme Court has held that even if a small part of the cause of action arises within the territorial jurisdiction of a High Court, the same by itself may not be considered to be a determinative factor compelling the said High Court to decide the matter on merit. The court, in appropriate cases, may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

Thus, the Court held that it would not be proper to entertain the petition applying the principle of forum conveniens and dismissed the petition.

[Sithara Joy v. Union of India, W.P. (C) No. 241 of 2022, decided on 30-03-2022]

Advocates who appeared in this case :

Mr. Shubhashis Rasik Soren, Advocate, for the Petitioner;

UoI: Mr. Prashant Pallav, ASGI, Advocate, for the Respondent;

State: Mr. Mohan Kumar Dubey, AC to AG, Advocate, for the Respondent.

Know thy Judge

“A possibility of abuse cannot be used to deny legitimate rights to citizens”

Justice A.M. Khanwilkar

Jigya Yadav v. CBSE, (2021) 7 SCC 535

A trip down the memory lane is what Retirements and Farewells essentially are in regards to a Supreme Court Judge. It is a chance to reminisce and cherish their tenure and take in the importance and gravity of the imprint that they will leave behind in the form of their numerous decisions. The year 2022 is ‘The Year of Farewells’ for the Supreme Court, because never before has it seen such a flurry of retirements as it has in this year.

This month, Supreme Court’s Justice Ajay Manikrao Khanwilkar is all set to retire after a comprehensive term of 6 years. It also means that it is time for us to take our readers on a time travel, to run through the past and present of Justice Khanwilkar’s life in law, with anticipation for an equally stellar future.

Early Life and Career as an Advocate [1982- 2000][1]

Justice A. M. Khanwilkar was born on 30-07-1957 in Pune, Maharashtra. He did his graduation (B. Com) from Mulund College of Commerce, Mumbai and LL.B. from K.C. Law College, Mumbai.

After graduating in law, Justice Khanwilkar enrolled as Advocate on 10-02-1982. During his time as a counsel, Justice Khanwilkar handled Civil, Criminal and Constitutional matters before the Subordinate Courts, Tribunals and High Court of Judicature at Bombay on the Appellate Side as well as the Original Side. During his practicing years, Justice Khanwilkar got a wide range of exposure in Criminal, Civil, Constitutional, Election and Co-operative matters.

From the year 1984, Justice Khanwilkar started his practice in the Supreme Court of India. He also worked as Additional Government Advocate for the State of Maharashtra till December 1989. Justice Khanwilkar was appointed as Panel Counsel for Union of India in January 1990 whereby which, he had the opportunity to represent the Union of India in several matters of national importance.

In August 1994 he was appointed as Amicus Curiae by the Supreme Court to assist on environmental issues in the case of M.C. Mehta (Calcutta Tanneries’ Matter) v. Union of India, (1997) 2 SCC 411. He was also the Standing Counsel for the Election Commission of India for Supreme Court matters from March 1995 till his elevation as a Judge. In October 1995, Justice Khanwilkar was appointed as Standing Counsel for the State of Maharashtra for Supreme Court matters.

♦Did you Know? Even in private practice, Justice Khanwilkar had on occasion handled matters of great significance before the Supreme Court to represent persons in high public offices as also various statutory Authorities, Corporations and institutions.

As Member of Committees/Task Force/ Associations

Justice Khanwilkar was appointed as Member of the Task force (headed by the former Chief Justice of India Justice E. S. Venkataramaiah ) constituted by the Ministry of Health and Family Welfare, Government of India in November 1995 for examining and reporting on the amendments needed in the Prevention of Food Adulteration Act.

He was also the Executive Member of the Supreme Court Bar Association and Joint Secretary and Executive Member of the Supreme Court Advocates on Record Association.

Notable Appearances as a Counsel

Judgeship of the High Court [2000- 2016][2]

A.M. Khanwilkar’s tryst with judgeship began from the year 2000 when he was appointed as the Additional Judge of the Bombay High Court on 29-03-2000. He was later confirmed as permanent Judge of the Bombay High Court on 08-04-2002.

On 04-04-2013, Justice Khanwilkar was elevated the Chief Justice of the High Court of Himachal Pradesh. Thereafter, he was appointed as Chief Justice of Madhya Pradesh High Court on 24-11-2013.

Notable High Court Decisions

Bombay High Court

State of Maharashtra v. Murarao Malojirao Ghorpade, 2009 SCC OnLine Bom 1645

Swatanter Kumar, CJ., and S.B. Mhase, A.M. Khanwilkar, A.S. Oka and R.M. Savant, JJ., held that Words “all the land held by a person or as the case may be by a family unit whether in this State or any part of India” in Section 3(2) of Maharashtra Agricultural Lands (Ceilings on Holdings) Act (27 of 1961), cannot be given effect as it has extra-territorial operation beyond State of Maharashtra.

Harish Vithal Kulkarni v. Pradeep Mahadev Sabnis, 2009 SCC OnLine Bom 1996

The 3 Judge Bench of Swatanter Kumar, CJ., and A.M. Khanwilkar and Mridula Bhatkar, JJ., held that expression “or” occurring in Order 18, Rule 4(2), CPC, means “either”. Expression “shall” occurring in Order 18, Rule 4(2) is mandatory only to extent that cross-examination of witness, whose evidence has been taken on Affidavit in lieu of chief-examination, has to be taken. It was held that the Court has discretion to direct cross-examination to be done before the Commissioner appointed by it with such directions as it may think fit and it is not mandatory for Court to record evidence only before Court. Judicial discretion contemplated in Order 18, Rule 4(2) is to be exercised on settled principles of law; evidence can also be recorded by electronic media which may result in expeditious disposal.

Himachal Pradesh High Court

State of H.P. v. Mehboon Khan, 2013 SCC OnLine HP 4080

The 3 Judge Bench of AM Khanwilkar, CJ., and VK Sharma and Dharam Chandra Chaudhry,JJ., held that Section 293 of CrPC postulates that Expert Report cannot be thrown out merely because Expert was not summoned or because details of tests not been given, unless and until Court is satisfied that summoning of Expert for furnishing tests carried out is necessary.

Vikram Chauhan v. Managing Director, 2013 SCC OnLine HP 1715

While deciding the issue that whether Co-operative Banks established in the State of Himachal Pradesh are “State” within the meaning of Art. 12, the Bench of AM Khanwilkar, CJ., R.B. Misra and DD Sud, JJ., referred the issue for consideration of Full Bench.

Madhya Pradesh High Court

Asif Mohd. Khan v. State of M.P., 2015 SCC OnLine MP 6742

The powers of the competent authority regarding suspension of employee are, that they can pass order revoking suspension of employee and can also transfer him at another place. There is no prohibition in M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, R. 9(5)(a) and (b) barring Competent Authority from passing such composite order.

Technofab Engineering Ltd. v. Bharat Heavy Electricals Ltd., 2015 SCC OnLine MP 6744

Sch. I, Art. 1-A [As substituted by M.P. Amendment Act (6 of 2008) w.e.f. 2-4-2008] of Court Fees Act, providing for upper limit of Court Fees instead of ad valorem Court Fees is beneficial legislation. The benefit of upper limit of Court Fees prescribed by Amendment Act, must be applied uniformly to all litigants instituting their claim after 2-4-2008, be it in the form of plaint before subordinate Court or memorandum of appeal before the High Court.

Judgeship of Supreme Court of India [2016- 2022]

Justice Khanwilkar was elevated as Judge of Supreme Court of India and assumed charge on 13-05-2016.

In March 2018, Justice Khanwilkar was appointed as the Chairman of the Water Disputes Tribunal called ‘The Mahanadi Water Disputes Tribunal’, for the adjudication of the water dispute regarding the inter-State River Mahanadi, and the river valley thereof. The appointment was done in exercise of the powers conferred by Section 4 of the Inter-State River Water Disputes Act, 1956, and by an order of the President. The Tribunal was constituted by the Central Government with the members nominated by the Chief Justice of India.

Notable Supreme Court Judgments

When it comes to Justice Khanwilkar’s many decisions as a Supreme Court Judge, his tenure has been multi-faceted, as his decisions have not centered around one specific field of law.[3]

♦Did You Know? Justice Khanwilkar has authored approximately 200+ Supreme Court Judgments[4]

Some of the notable decisions on various issues, that have been rendered by Justice A.M. Khanwilkar and the decisions that he had been a part of, are as follows-

Prevention of Money Laundering Act

Justice Khanwilkar’s final week before his retirement saw the coming of a significant decision concerning the constitutional validity of Prevention of Money Laundering Act, 2002. In Vijay Madanlal Choudhary v. Union of India, SLP (Criminal) No. 4634 OF 2014, the 3-Judge Bench of A.M. Khanwilkar*, Dinesh Maheshwari and C.T. Ravikumar, JJ., upheld the validity of the challenged provisions of the 2002 legislation. The Bench also held that in view of the special mechanism envisaged by the 2002 Act, ECIR cannot be equated with an FIR under CrPC. “Supply of a copy of ECIR in every case to the person concerned is not mandatory, it is enough if Enforcement Directorate at the time of arrest, discloses the grounds of such arrest”.

Fundamental Rights

In Jigya Yadav v. CBSE, (2021) 7 SCC 535, the 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ., held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

A 5 Judge Bench comprising Chief Justice Dipak Misra and Justices A. K. Sikri, A. M. Khanwilkar, D Y Chandrachud and Ashok Bhushan in Common Cause (A Registered Society) v. Union of India, (2018) 5 SCC 1  held that the right to die with dignity is a fundamental right. An individual’s right to execute advanced medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.

Elections

In Shobhabai Narayan Shinde v. Commr., (2022) 3 SCC 35, while deciding that whether an appeal could be filed before the Divisional Commissioner against an order passed by the Collector under Section 14B (1) of the Maharashtra Village Panchayats Act, 1959, declining to disqualify a Sarpanch/Member of the Panchayat for allegedly having failed to lodge an account of election expenses within the time and in the manner prescribed by the State Election Commission, without offering any good reason or justification for such failure? Answering an interesting question of law, the Bench of AM Khanwilkar* and CT Ravikumar, JJ., held that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee –the Collector, under Section 14B (1) of the Maharashtra Village Panchayats Act, 1959, rejecting the complaint or to drop the proceedings for declaration of a Sarpanch/Member having incurred disqualification.

In the case of Public Interest Foundation v. Union of India, (2019) 3 SCC 224, the 5-judge bench comprising Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, JJ., made the disclosure of criminal antecedents by the contesting candidates mandatory and held that the disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. It has to be remembered that such a right is paramount for a democracy. A voter is entitled to have an informed choice.

In Rahul Ramesh Wagh v. State of Maharashtra, 2022 SCC OnLine SC 692, the Bench of A.M. Khanwilkar, Abhay S. Oka and C.T. Ravikumar, JJ., directed Maharashtra State Election Commission to expeditiously conduct elections of local bodies (around 2486), which were pending for over 2 years (in some cases) due to disputed constitutional validity of State Amendments seeking to introduce delimitation in the State.

Local Government- OBC Reservation in Elections

The 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., addressed the instant petition, i.e., Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73, wherein a declaration had been sought that Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Act, 1961), was ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution. The Bench remarked-

 “State legislations cannot simply provide uniform and rigid quantum of reservation of seats for OBCs in the local bodies across the State that too without a proper enquiry into the nature and implications of backwardness by an independent Commission”

Schools, Students and Education

The division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., in Indian School v. State of Rajasthan, (2021) 10 SCC 517, issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilized facilities/activities and not on the basis of actual data school-wise. The said direction was issued in order to obviate avoidable litigation by over 36,000 schools and to give finality to the issue of determination and collection of school fees for the academic year 2020¬21, as a one-time measure.

The 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Rajneesh Kumar Pandey v. Union of India, 2021 SCC OnLine SC 1005, directed the Central Government to notify the norms and standards of pupil-teacher ratio for special schools and also separate norms for special teachers who alone can impart education and training to Children/Child with Special Needs (CwSN) in the general schools. While the Petitions before the Court pertained to State of Uttar Pradesh and Punjab only, the extensive direction issued by the Court will apply pan India.

The bench of AM Khanwilkar and Dinesh Maheshwari, JJ., in Mamta Sharma v. CBSE, (2022) 1 SCC 368, refused to interfere with the assessment Scheme propounded by the C.B.S.E or I.C.S.E for the Class XII students and has held that, “… the stated Schemes are fair and reasonable and take into account concerns of all students and is in larger public interest.”

Legislative Processes/ Legislations

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “undisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Ashish Shelar v. Maharashtra Legislative Assembly, 2022 SCC OnLine SC 105, held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.

The 2-judge bench of AM Khanwilkar and Dinesh Maheshwari, JJ., in L.R. Brothers Indo Flora Ltd v. Commissioner of Central Excise, 2020 SCC OnLine SC 705, held that for application of a subsequent legislation retrospectively, it is necessary to show that the previous legislation had any omission or ambiguity or it was intended to explain an earlier act.

Judiciary, Courts and its Administration, Practice and Procedure etc.

Holding advocates to be officers of the Court, the bench of AM Khanwilkar* and CT Ravikumar, JJ., in NKGSB Cooperative Bank Limited v. Subir Chakravarty, 2022 SCC OnLine SC 239, held that it would be open to the Chief Metropolitan Magistrate (CMM)/District Magistrate (DM) to appoint an advocate commissioner to assist him/her in execution of the order passed under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

The high voltage matter in Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196; highlighting the case registered by the Central Bureau of Investigation against retired Orissa High Court Judge, Justice I.M. Quddusi, containing serious allegations implicating the said Judge under Ss. 8 and 120-B of the Prevention of Corruption Act, 1988, the 5-judge bench of Dipak Misra, CJ., along with RK Agrawal, Arun Mishra, Amitava Roy and AM Khanwilkar, JJ held that- “There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers”.

A 5-judge bench in State of Jharkhand v. Hindustan Construction Co. Ltd., (2018) 2 SCC 602, held that Supreme Court cannot entertain objections as the Original Court solely because it has appointed the arbitrator.

The bench of Justice A.M. Khanwilkar, Indu Malhotra and Ajay Rastogi, JJ., in Rachna v. Union of India, (2021) 5 SCC 638, held that the Courts cannot issue mandamus to frame policy. The Court was hearing the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic.

Explaining the importance of the role of Trial Courts, especially, with respect to framing of charges, the bench of A.M. Khanwilkar, Abhay S. Oka and J.B. Pardiwala, JJ., in Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, Crl.A. No.-001041-001041/2022, held that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law.

Central Vista Project

The 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna, JJ., in Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7, by a 2:1 verdict, gave a go ahead to the Central Vista Project. As per the Government, the Project, which plans to build a New Parliament building, is necessary for the creation of a larger working space for efficient functioning of the Parliament and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis.

Aadhar Card/ Right to Privacy

In K.S. Puttaswamy v. Union of India, (2018) 3 SCC 797, the Supreme Court quashed the order of Central Board of Secondary Education (C.B.S.E) asking the students to get themselves registered for National Eligibility-cum-Entrance Test (NEET) examinations by producing AADHAR numbers. The Court stated that

“The students who intend to register in the said Board for NEET examination and for any other All India examinations, need not necessarily produce the Aadhaar number for the present, but they may be asked to produce any alternative identification number, such as ration card, passport, voter ID, driving licence and bank account.”

Justice Khanwilkar was part of the Constitution Bench which decided one of the most significant decisions related to ‘Right to Privacy’ in K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 which declared the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to be valid and not violative of the fundamental right to privacy. However, certain orders and/or circulars making the citing of Aadhaar number mandatory have been held unconstitutional and struck down with a ratio of 4:1. However, despite going through several rounds of litigation and long hours consideration, the Adhaar Controversy had once again popped up before the Supreme Court.

The 5- Judge Constitution Bench of A.M. Khanwilkar, D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ., in Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1 addressed the review petition against the final verdict in K.S.  Puttaswamy (Aadhaar-5 Judges) v Union of India, (2019) 1 SCC 1.

Same –Sex Relationships – Constitutionality of S. 377 IPC

In the landmark judgment of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the 5-Judge Bench of Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., partially struck down Section 377 of the Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court had upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.

Centre- State Relationship/ Federalism

In State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 also known as Delhi v. Centre case, the 5-Judge Bench comprising of Dipak Misra, CJ., and A.K. Sikri, A.M Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan JJ., held that the words “any matter” employed in the proviso to clause (4) of Art. 239AA of the Constitution cannot be inferred to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.

Freedom of Speech and Expression and Hate Speeches

The bench of A.M. Khanwilkar and Sanjiv Khanna, JJ., in Amish Devgan v. Union of India, (2021) 1 SCC 1, refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation. While holding this, the bench made an attempt to define “hate speech” albeit it was of the opinion that a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable.

Commutation of Death Sentence

The 3-judge bench of A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar, JJ., in Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, refused to commute the death sentence to life imprisonment of a man convicted for brutal rape and murder of a 7-year-old physically and mentally challenged girl. The Court noticed that it is unlikely that the appellant, if given an absolution, would not be capable of and would not be inclined to commit such a crime again.

Evidentiary value of Parliamentary Committee Reports

The 5-Judge Bench comprising of Dipak Misra, CJ., and A.M. Khanwilkar, Dr D.Y. Chandrachud, Dr A.K. Sikri and Ashok Bhushan, JJ., in Kalpana Mehta v. Union of India, (2018) 7 SCC 1, held that Parliamentary Standing Committee Report or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor can its validity be called into question.

Child Custody

The bench of A.M. Khanwilkar and J.B. Pardiwala, JJ., in a matter relating to custody of two minor children, advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives’. In Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885, the Court observed that, “The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children”.

Sexual Offences

In a plea concerning imposition of certain conditions in a case involving a sexual offence against a woman, at any stage of judicial proceedings, that trivialize the trauma undergone by survivors and adversely affect their dignity, the bench of A.M. Khanwilkar and S. Ravindra Bhat, JJ., in Aparna Bhat v. State of Madhya Pradesh, 2021 SCC OnLine SC 230, held that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is to be avoided under all circumstances.

Reminding the Courts of their duty, the Bench stated that-

“The role of all courts is to make sure that the survivor can rely on their impartiality and neutrality, at every stage in a criminal proceeding, where she is the survivor and an aggrieved party. Even an indirect undermining of this responsibility cast upon the Court, by permitting discursive formations on behalf of the accused, that seek to diminish his agency, or underplay his role as an active participant (or perpetrator) of the crime, could in many cases, shake the confidence of the rape survivor (or accuser of the crime) in the impartiality of the Court.”

Adultery

The 5-Judge Constitution Bench in Joseph Shine v. Union of India, (2019) 3 SCC 39, 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. Dipak Misra, CJ., (for himself and A.M. Khanwilkar, J.,) stated that on a reading of the provision, it is demonstrable that women are subordinated to men in as much as it lays down that when there is connivance or the consent of the man (husband), there is no offense. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is the reflection of the social dominance that was prevalent when the penal provision was drafted. It was also noted that the section doesn’t bring within its purview an extramarital relationship with the unmarried woman or a widow. It treats husband of the women to be a person aggrieved for the offense punishable under Section 497. It does not treat the wife of the adulterer as an aggrieved person.

Tribunals

The Bench of A.M. Khanwilkar, Hrishikesh Roy and C.T. Ravikumar, JJ., considered the question, whether the National Green Tribunal has the power to exercise Suo Motu jurisdiction in the discharge of its functions under the National Green Tribunal Act, 2010 in Municipal Corporation of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897, it was observed that “NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks its door”.

Taxation

Justice A.M. Khanwilkar was part of the majority opinion in the 7:2 majority Entry Tax verdict in Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1  which 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”.

Sidhu Road Rage

Allowing the review petition in the 34-year-old road-rage case involving cricketer-turned-politician Navjot Singh Sidhu that resulted into the death of one 65-yer-old Gurnam Singh, the bench of A.M. Khanwilkar and Sanjay Kishan Kaul, JJ., in Jaswinder Singh v. Navjot Singh Sidhu, 2022 SCC OnLine SC 652, imposed a sentence of one-year rigorous imprisonment on Sidhu in addition to the fine of Rs.1,000/- imposed in the order dated 15-05-2018.

Decisions That Initiated a Broader Discourse

In Justice Khanwilkar’s varied trajectory as a SC Judge, there were some decisions which generated quite a buzz, not only in the legal circles but also in the political crowd and the civil society at large. Besides the very recent decision in Madanlal Choudhry v. Union of India (PMLA case), there have been other cases which encouraged a dialogue within the various sections of the society and media. Some of those cases have been listed below-

Foreign funding for NGOs

In a major win for the Union of India, the 3-judge bench of A.M. Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Noel Harper v. Union of India, 2022 SCC OnLine SC 434, upheld the validity of the amendments to the provisions of the Foreign Contribution (Regulation) Act, 2010 vide the Foreign Contribution (Regulation) Amendment Act, 2020. The Court was of the opinion that receiving foreign donations cannot be an absolute or even a vested right. By its very expression, it is a reflection on the constitutional morality of the nation as a whole being incapable of looking after its own needs and problems.

Gauri Lankesh Murder Case

In a major development in the Gauri Lankesh murder case, the bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ., in Kavitha Lankesh v. State of Karnataka, 2021 SCC OnLine SC 956, set aside the Karnataka High Court order wherein it had quashed chargesheet filed against one Mohan Nayak. N, regarding offences under Sections 3(1)(i), 3(2), 3(3) and 3(4) of Karnataka Control of Organised Crimes Act, 2000.

Godhra Riots Case

The 3-judge bench of A.M. Khanwilkar, Dinesh Maheshwari and CT Ravikumar, in Zakia Ahsan Jafri v. State of Gujarat, 2022 SCC OnLine SC 773, dismissed Zakia Jafri’s plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State of Gujarat against the minority community.

Entry of Women in Sabrimala Temple

A 5-Judge Constitution Bench, in Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1, by a majority of 4:1, held that not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by Dipak Misra, CJ., for himself and A.M. Khanwilkar, J.; while, R.F. Nariman and Dr D.Y. Chandrachud, JJ., each gave separate concurring opinions. The only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion.

Dipak Misra, CJ., and A.M. Khanwilkar, J., held that the exclusionary practise  followed at the Sabarimala temple violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. The practice of exclusion of women of the age group of 10 to 50 years cannot be regarded as an essential part as claimed by the respondent Board.

 Legacy

♦Did you Know? During his tenure as a Judge, A.M. Khanwilkar, J., has been part of almost 809 Benches![5]   

Every field in Law is a vast universe in itself and it is through the contributions of lawyers and judges alike that people are able to access this ‘multiverse’. It would not be wrong to say that ever since Justice Khanwilkar entered the legal profession, at every step of his career, he has traversed into this infinite realm. At every phase of his career- whether it be Judging or Getting Judged- Justice Khanwilkar has not only proved his mettle, but his contributions have enriched the legal space for the posterity to savour.

Law is like the universe- infinite; thus, there are always chances of expansion. Since 1982, Justice Khanwilkar truly has been exploring the “multiverse of law”. We very much look forward to the next chapter in Justice Khanwilkar’s career with hopes that he keeps on exploring and expanding the legal boundaries.

†Sucheta Sarkar, Editorial Assistant has put this report together 

* Judge who has authored the decision

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

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

[3] Justice AM Khanwilkar, SC Observer

[4] www.scconline.com

[5] Justice A.M. Khanwilkar, SC Observer

Know thy Judge

“A litigant has one lifetime yet litigation has several lives to live. If society stands denied of justice, we are not only failing our duty and constitution but are enslaving a generation of litigants. For speedy disposal effective docket management is required and is the need of the hour.”

-Justice Krishna Murari[1]

Born on 09-07- 1958, obtained LL.B degree from Allahabad University, Allahabad. He was enrolled as an Advocate on 23-12-1981. He practiced in the Allahabad High Court for over 22 years in Civil, Constitutional, Company, Service and Revenue matters and has specialized in Civil Revenue and Service cases. He was Standing Counsel of U.P. State, Yarn Company Limited, Kanpur, Northern Railway Primary Co-operative Bank Limited, U.P. State Textile Corporation Limited, Kanpur, U.P. Co-operative Spinning Mills Federation Limited, Kanpur and Bundelkhand University, Jhansi.

He was appointed as an Additional Judge of the Allahabad High Court on 07-01- 2004 and appointed as permanent Judge of the Allahabad High Court on 18-08-2005.

He took over as Chief Justice of Punjab and Haryana High Court, Chandigarh on 02-06-2018. Read more

Elevated as Judge of Supreme Court of India on 23-09-2019. Read more

Notable Supreme Court Judgments 

S.P. Velumani v. Arappor Iyakkam, 2022 SCC OnLine SC 663

In the case where the Madras High Court had ordered an enquiry and obtained a report without   furnishing a copy thereof to Tamil Nadu Minister SP Velumani in a corruption case and unceremoniously closed the writ petition, the 3-judge bench of NV Ramana, CJ* and Krishna Murari and Hima Kohli, JJ has held that when the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover.

Read more

Deepak Yadav v. State of U.P., 2022 SCC OnLine SC 672

In a murder case where the Allahabad High Court had granted bail to the main accused only on the basis of parity, the 3-judge bench of  NV Ramana, Krishna Murari* and Hima Kohli, JJ has cancelled the bail after observing that the High Court should have taken into consideration factors like the criminal history of the accused, nature of crime, material evidences available, involvement of accused in the said crime, recovery of weapon from his possession, etc.

Read more

K.C. Laxmana v. K.C. Chandrappa Gowda, 2022 SCC OnLine SC 471

In a case where a portion of a joint Hindu Family was alienated ‘out of love and affection’ by way of a gift deed, the bench of SA Nazeer* and Krishna Murari, JJ has explained the scope of powers of members of Joint Hindu Family and has held that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’.

Read more

Vijay Kumar Ghai v. State of W.B., 2022 SCC OnLine SC 344

The Division Bench S. Abdul Nazeer and Krishna Murari*, JJ., reversed the impugned order of the Calcutta High Court for being affected with the vice of forum shopping. The Bench expressed,

“The timeline of filing complaints clearly indicates the malafide intention of Respondent 2 which was to simply harass the petitioners so as to pressurise them into shelling out the investment made by Respondent 2.”

Read more

Babu Venkatesh v. State of Karnataka, (2022) 5 SCC 639

In a case where the Magistrate had passed an order under Section 156(3) CrPC even in absence of an affidavit duly sworn by the complainant, the bench of BR Gavai* and Krishna Murari, JJ that many a times the applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons and hence, such applications are to be supported by affidavits.

The Court held that, prior to the filing of a petition under Section 156 (3) of the Cr.P.C., there have to be applications under Section 154 (1) and 154 (3) of the Cr.P.C. Filing of an affidavit is necessary so that the persons making the application would be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. If the affidavit is found to be false, the person would be liable for prosecution in accordance with law.

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Kahkashan Kausar v. State of Bihar, 2022 SCC OnLine SC 162

In a dowry demand and harassment case, where a woman had lodged criminal complaint against her husband and in-laws but  no specific role was attributed to the in-laws, the bench of SA Nazeer and Krishna Murari*, JJ has held that it would be unjust if the in-laws are forced to go through the tribulations of a trial and that general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. The Court observed that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged.

Read more

Arunachala Gounder v. Ponnusamy, 2022 SCC OnLine SC 72

The bench of SA Nazeer and Krishna Murari*, JJ has held that if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. However, if she dies leaving behind her husband or any issue, then Section 15(1)(a) of the Hindu Succession Act, 1956 comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act.

Read more

K. Jayaram v. BDA, 2021 SCC OnLine SC 1194

In a case where the party, in a subsequent petition seeking same relief, had not disclosed the filing of the suit, its dismissal by the Civil Court and the confirmation of the said judgment by the High Court in the writ petition, the bench of SA Nazeeer* and Krishna Murari, JJ has held that the appellants did not come to the court with clean hands and stressed that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge.

Read more

Rasmita Biswal v. National Insurance Co. Ltd., (2022) 2 SCC 767

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

Read more

Hasmat Ali v. Amina Bibi, 2021 SCC OnLine SC 1142

In a case where the Orissa High Court had not assigned any reasons for the dismissal of an appeal, the bench of SA Nazeer* and Krishna Murari, JJ has set aside the said order and has held that the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion.

Read more

N. Jayasree v. Cholamandalam MS General Insurance Company Ltd., 2021 SCC OnLine SC 967

The Division Bench of S. Abdul Nazeer* and Krishna Murari, JJ., held that neither the percentage of deduction for personal expenses be governed by a rigid rule or formula of universal application nor does it depends upon the basis of relationship of the claimant with the deceased.

Passing a landmark decision, the Bench granted compensation to mother-in-law of the deceased considering her to be of the dependents of the deceased. The Bench remarked,

“It is not uncommon in Indian Society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance.”

Read more

Geo Varghese v. State of Rajasthan, 2021 SCC OnLine SC 873

In a case where a 14-year-old had committed suicide after his PTI Teacher had allegedly “harassed and insulted him in the presence of everyone”, the bench of SA Nazeer and Krishna Murari*, JJ has held that the suicide note suggested that it was a rhetoric document, penned down by an immature mind and that it was the hypersensitive temperament of the deceased which led him to take such an extraordinary step. The Court said that the action of the teacher, otherwise would not ordinarily induce a similarly circumstanced student to commit suicide.

The Court explained that,

“A simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not amount to instigation or intentionally aid to the commission of a suicide by a student.”

Read more

Garg Builders v. BHEL, 2021 SCC OnLine SC 855

The bench of SA Nazeer* and Krishna Murari, JJ has held that if the contract contains a specific clause which expressly bars payment of interest, then it is not open for the arbitrator to grant pendente lite interest.

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Gumansinh v. State of Gujarat, 2021 SCC OnLine SC 660

A Division Bench of S. Abdul Nazeer and Krishna Murari, JJ. refused to interfere in the judgment passed by the Gujarat High Court whereby the appellants (husband and mother-in-law of the deceased) were found guilty of committing cruelty to the deceased and abetting suicide committed by the deceased. Noting that although the prosecution failed to adduce any direct evidence to establish that accused abetted deceased into committing suicide, the Supreme Court observed:

“Admittedly, in the case at hands, the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption [under Section 113-A of the Evidence Act] exists. Admittedly the appellants have led no evidence to rebut the presumption.”

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Abdul Ahad v. Union of India, 2021 SCC OnLine SC 627

The 3-judge bench of L. Nageswara Rao, BR Gavai* and Krishna Murari, JJ had refused to grant any relief to the students who were admitted to the 1st  year Professional MBBS course for the Academic Session 2016-2017 in Glocal Medical College, in contravention of the Notification that provided that the admissions were to be done only through the centralized admission process and not by way of private counselling.

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Neelima Srivastava v. State of U.P., 2021 SCC OnLine SC 610

A Division Bench of S. Abdul Nazeer and Krishna Murari, JJ. held that there is a distinction between overruling a principle and reversal of the judgment. The Supreme Court reaffirmed the settled position of law by explaining that:

“Mere overruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught. “

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Hemraj Ratnakar Salian v. HDFC Bank Ltd., 2021 SCC OnLine SC 611

The Division Bench of S. Abdul Nazeer and Krishna Murari, JJ., addressed a pertinent issue of whether the rent act would come to the aid of a “tenant in sufferance”.

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Yatin Narendra Oza v. High Court of Gujarat, 2020 SCC OnLine SC 724

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ., observed that the Court would wait for the order of the Gujarat High Court before passing any orders in the issue relating to withdrawal of senior Designation of advocate Narendra Oza. Oza, who is also the President of the Gujarat High Court Advocates’ Association, was stripped off his Senior Advocate designation. This has been done after Advocate Oza had levelled charges of corruption against the registry of the Gujarat High Court.

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Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733

A 3-judge bench comprising of Sanjay Kishan Kaul, Krishna Murari and Hrishikesh Roy,* JJ., while deciding a criminal appeal challenging the judgement of Chhattisgarh High Court upheld the conviction of the appellant under Sections 302 and 34 of the Indian Penal Code, 1860 and acquittal of the co-accused.

The Court held that the recovery of the alleged weapons of assault on the statement of the accused can be a key evidence to support the prosecution but the recovered articles were not linked to the crime. Moreover, when relevant forensic evidence was withheld by the prosecution, an adverse inference will have to be drawn against the prosecution.

Dumka Medical College v. Board of Governors in Supersession of Medical Council of India, 2021 SCC OnLine SC 122

The Division Bench comprising of L. Nageswara Rao and Krishna Murari, JJ., dismissed the instant petition for grant of permission for Medical Colleges after observing infrastructural and faculty deficiencies. The Bench remarked,

“It is clear that gross deficiencies still exist in spite of the affidavits and undertakings filed on behalf of the State of Jharkhand. No action has been taken to improve the situation.”

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Harshit Agarwal v. Union of India, (2021) 2 SCC 710

The Division Bench comprising of L. Nageswara Rao* and Krishna Murari, JJ., addressed the plight of NEET students. The Bench stated,

“Decision of government not to reduce minimum marks for admission was propelled by extraneous considerations like sufficient number of Dentists being available in the country and the reasons for which students were not inclined to get admitted to BDS course which remits in the decision being unreasonable. Consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters.”

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Samir Agrawal v. CCI (Cab Aggregators Case), (2021) 3 SCC 136

In a plea seeking inquiry into the alleged anti-competitive practices of Ola and Uber of entering into price-fixing agreement, the 3-judge bench of RF Nariman*, KM Joseph, Krishna Murari, JJ has refused to interfere with the concurrent finding of CCI and NCLAT that Ola and Uber do not facilitate cartelization or anti-competitive practices between drivers, who are independent individuals, who act independently of each other, so as to attract the application of section 3 of the Competition Act, 2002.

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Project Implementation Unit v. P.V. Krishnamoorthy, (2021) 3 SCC 572

Dealing with the question whether the Parliament was competent to enact the National Highways Act, 1956 and the National Highway Authority of India Act, 1988 for construction of new roads traversing through the open green-fields, the 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ has held that

“… there is nothing in the Constitution which constricts the power of the Parliament to make a law for declaring any stretch/section within the State not being a road or an existing highway, to be a national highway. Whereas, the provisions in the Constitution unambiguously indicate that the legislative as well as executive power regarding all matters concerning and connected with a highway to be designated as a national highway, vests in the Parliament and the laws to be made by it in that regard.”

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Renuka Dey v. Naresh Chandra Gope, 2020 SCC OnLine SC 895

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has held that under the West Bengal Restoration of Alienated Land Act, 1973, homestead land, when included within the meaning of the term ‘land’ means homestead of the agriculturist and not any or every structure of non­-agricultural land.

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SBI v. Metenere Ltd., (2021) 1 SCC 191

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 where the question for consideration was 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’.

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Raghunath v. Radha Mohan, 2020 SCC OnLine SC 828

On the question as to whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time, the 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has held that

“… it is only exercisable for the first time when the cause of such a right arises, in a situation where the plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property.”

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Sahir Sohail v. Dr A.P.J. Abdul Kalam Technical University, (2020) 9 SCC 696

The 3-judge bench of SA Kaul, Aniruddha Bose and Krishna Murari, JJ ‘reluctantly’ dismissed an SLP arising out of a Allahabad High Court order which held that the students with certificates from ‘bogus and fictitious’ organisations cannot be allowed to continue pursuing their courses at Dr APJ Abdul Kalam Technical University (APJAKTU).

The Court said,

“We do have sympathy but this is not a case where we can really translate our sympathy to a relief in the present case, more so, in view of the fact that since this exam system is found to be fraudulent, the petitioners before us will never have a recognized plus two status and to give such students the opportunity to get a degree from the University will create a great anomaly.”

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Jigya Yadav v. CBSE, 2021 SCC OnLine SC 415

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

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Kalparaj Dharamshi v. Kotak Investment Advisors Ltd,  2021 SCC OnLine SC 204

The 3-judge bench of AM Khanwilkar, BR Gavai and Krishna Murari has explained the true test to determine whether a party has waived its rights or not. It has held that for establishing waiver, it will have to be established, that a party expressly or by its conduct acted in a manner, which is inconsistent with the continuance of its rights. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them.

“As such, for applying the principle of waiver, it will have to be established, that though a party was aware about the relevant facts and the right to take an objection, he has neglected to take such an objection.”

Read more

Amit Sahni v. Commissioner of Police, (2020) 10 SCC 439

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has, in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied in such a manner and that too indefinitely.

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.”

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Kalparaj Dharamshi v. Kotak Investment Advisors Ltd, 2021 SCC OnLine SC 204

The 3-judge bench of AM Khanwilkar, BR Gavai and Krishna Murari has held that the commercial wisdom of Committee of Creditors (CoC) is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the Insolvency and Bankruptcy Code, 2016 (IBC).

Taking note of various decision of the Supreme Court, the Court held that the legislative scheme is unambiguous. The legislature has consciously not provided any ground to challenge the “commercial wisdom” of the individual financial creditors or their collective decision before the Adjudicating Authority and that the decision of CoC’s ‘commercial wisdom’ is made non-justiciable.

“… the appeal is a creature of statute and that the statute has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the resolution plan or rejecting the same.”

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Amar Nath Chaubey v. Union of India, 2020 SCC OnLine SC 1019

The 3-judge bench of RF Nariman, Navin Sinha and Krishna Murari, JJ had IPS Officer Satyarth Anirudh Pankaj as the senior officer, State of Uttar Pradesh to carry out further investigation in the Ram Bihari Chaubey murder case after it found the investigation and closure report submitted by the UP Police to be “extremely casual and perfunctory in nature”.

Directing that IPS Officer Pankaj will be free to select a team of competent officers of his choice, the Court directed that

“the investigation must be concluded within a period of two months from the date of receipt of a copy of this order, unless extension is required, and the final report be placed before this Court. The Director General of Police (DGP), Uttar Pradesh shall do the needful.”

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Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1

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

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Amar Singh v. State (NCT of Delhi), 2020 SCC OnLine SC 826

Giving benefit of doubt to the accused convicted under Section 302 IPC r/w Section 34 IPC, the 3-judge bench of SK Kaul, Anirudhha Bose and Krishna Muraji, JJ reiterated that Court can and may act on the testimony of single eye-witness provided he is wholly reliable.

“… the prosecution has miserably failed to prove the guilt of the accused beyond doubt the appellants therefore must be given benefit of doubt.”

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V.N. Krishna Murthy v. Ravikumar, (2020) 9 SCC 501

The issue before the Supreme Court was whether the appellants held the focus to question the judgment and decree passed by the trial court and whether the High Court was justified in rejecting their leave to appeal. Dismissing the appeal the Full Bench of L. Nageswara Rao, Krishna Murari and S. RavindraBhat, JJ., held,

“Section 96 and 100 CPC do not enumerate the categories of persons who can file an appeal. However, it is a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls in the category of aggrieved persons. It is only where a judgment and decree prejudicially affects a person who is not party to the proceedings, he can prefer an appeal with the leave of the appellate court.”

Sorathia Bindi v. State of Gujarat, 2021 SCC OnLine SC 419

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

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In Re Prashant Bhushan, (2021) 1 SCC 745

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ had, in a 108-pages long verdict, held advocate Prashant guilty of criminal contempt 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. It held,

“The tweets which are based on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’.

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In re: Prashant Bhushan, (2021) 3 SCC 160

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.

Read more

Contagion of Covid-19 Virus in Children Protection Homes, In re, (2020) 15 SCC 289

Taking suo motu cognizance of the issue where 35 out of 57 children in a Protection Home at Royapuram, Chennai have been infected with COVID-19 and were hospitalized, the 3-judge bench of L. Nageswara Rao, Krishna Murari and S. Ravindra Bhat, JJ had asked the Health and Family Welfare Department, State of Tamil Nadu and secretary to Social Welfare Department to submit a report giving details of the reasons for the spread of COVID-19 in the said Protection Home.

Read more

Jagmail Singh v. Karamjit Singh, (2020) 5 SCC 178

Under the Evidence Act, 1872 facts had to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts had to be established to account for the existence of primary evidence. Section 65 made it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it.

It was held that the appellants would be entitled to lead secondary evidence in respect of the will in question. However, such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with the law.

Nirmala Kothari v. United India Insurance Co. Ltd., (2020) 4 SCC 49

The question before the Court was that “What is the extent of care/diligence expected of the employer/insured while employing a driver?”

The Division Bench of Navin Sinha and Krishna Murari, JJ., answered that while hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.

The respondent insurance company was held liable to indemnify the appellant.

Arun Singh v. State of U.P., (2020) 3 SCC 736

The Division Bench of Navin Sinha and Krishna Murari, JJ., observed that offences relating to the demand of dowry are offences against society and not private in nature. Such offences have serious impact upon society and continuance of trial of such cases is founded on the overriding effect of public interests in punishing persons for such serious offences. It is neither an offence arising out of commercial, financial, mercantile, partnership or such similar transactions or has any element of civil dispute thus it stands on a distinct footing. In such cases, settlement even if arrived at between the complainant and the accused, the same cannot constitute a valid ground to quash the FIR or the charge-sheet.

Yasmeen Zuber Ahmad Peerzade v. Union of India, (2020) 2 SCC 50 (1)

The Nation is looking forward to a historic judgment which is pending. It was placed before 3-judge bench of SA Bobde (retired), SA Nazeer and Krishna Murari, JJ. involving the Muslim Women right to pray in Durgah/Mosque. The Supreme Court will decide whether practices prohibiting the entry of women into mosques violates the right to equality under Article 14 of the Constitution and whether such a right can be enforced against non-state actors in view of the judgement of the Constitution Bench in the Sabarimala Temple Entry case.

†Suchita Shukla, Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] https://www.youtube.com/watch?v=K2rNXRU5Aqw

Case BriefsSupreme Court

Supreme Court: In a case where the single bench of JK Maheshwari, J was posed with the question as to whether the plea of territorial jurisdiction or the lack thereof can be entertained by the Supreme Court in its jurisdiction under Section 25 of CPC, it was observed that there is limited scope vested in this Court while exercising its jurisdiction under Section 25 of CPC and the same cannot be extended to determine the question of territorial jurisdiction of  the proceedings before it as the plea of jurisdiction or the lack of it can be prompted before the Court in which the proceedings are pending.

The Court came to the conclusion that the issue was no longer res integra, as the Supreme Court, in Naivedya Associates v. Kirti Nutrients Limited (Transfer Petition (C) 953/2021), had held that the point is required to be urged before the Court in which the suit is pending.

[Neilan International Co. Ltd v. Powerica Limited, 2022 SCC OnLine SC 795, decided on 06.07.2022]

Interviews

Mr Sanchit Garga, Advocate-on-Record, Supreme Court of India. He is a very young lawyer who has not only conquered the AOR examination but is also an established name at the Supreme Court as well as the Delhi High Court. He deals in a wide array of cases ranging from civil to criminal to arbitration matters.

In this conversation, he shares with us some valuable insights on the practicality of law and how practice is different from the theoretical concepts we learn at law school. He also shares some tips on litigation and the AOR examination.

This interview has been conducted by Vranda Agarwal, EBC/SCC Online Student Ambassador who is currently pursuing law from NLIU, Bhopal.

  • Can you please introduce yourself and give us a glimpse of your law school journey? Also tell us how do you define the change that you have seen from law in books to law at practice?

I graduated in 2012 from Bangalore Institute of Legal Studies (Bangalore University). Simultaneously, I also completed my company secretaries course. Apart from reading law, while in college I got driven to a world other than law but very closely related to law such as psychology, history, social science, etc, which ultimately helps in understanding the nuances of law. When one practises in superior courts, the Judges are more well versed with law than the young lawyers, one has to come to the point in no time for there is no time for recovery. If a lawyer is not quick on his feet or is not conversant with the facts, he might not be able to answer the volley of questions often asked by the Judges.

Litigation practice is completely different, life as a litigator is far more diverse and different from reading the law in books. Law is an ocean and nobody can learn it all. One always has to be a student of law.

  • Sir can you also share your early experiences with litigation as a career, what was the journey like? What should one expect while embarking upon this journey?

Initial days were a struggle, you keep waiting for briefs, but those were days where you learn the most. One learns courtcraft watching veterans argue in courts. In the initial days, finances become a big problem and it can get frustrating also. Briefs are scarce to come by since litigants do not trust young lawyers, easily. However, this should not deter young lawyers from embarking on the beautiful journey of life as a litigating lawyer. One should look for light from anywhere. Initial days are tough but persistence and self-belief are the key factors which keep you going. Young lawyers should have the courage of conviction to stay put for success might be slow but not far to see.

  • Next is a question which every law student tries to look for. What is the life like as an independent counsel? Also, please throw some light on the profile in contrast to other legal careers like corporate jobs. Is it helpful to work in a firm and then start with your own practice as is the trend these days?

Life as an independent counsel is a wholesome experience. It is a bitter-sweet experience of failure and success in courts as a part of everyday life. But failure should not deter one from moving ahead. Failure is the condiment that gives success its flavour. When in law school, the student should make up his mind on what journey and future he looks for himself though it is a tough decision to make at that time.

 

Law firms provide financial security, the corporate practice of the law firms is diametrically opposite to litigation while the litigation practice of law firms provides a similar experience with heavy briefs and since law firms engage Senior Advocates on regular basis, it is a great learning experience as well. The arbitration practice of law firms is also a great learning curve. The transition from law firms to litigation as an independent counsel might not be smooth always but the idea of being your own boss is a good enough motivating factor.

 

  • A lot many students fear this career path as there is a lot of uncertainty and in the initial days, not much of returns so to say. How does one make a successful litigation career? What are some of the things that he/she needs to keep in mind while opting for a career in this domain?

Persistence, self-belief, patience are the only keys to success. Apart from financial struggles there is so much to learn which in itself is an incentive. There is no straitjacket formula or secret formula to achieve success. It is only by trial and error. The experiences and journey of each litigator is his own and one has to chart his own course. The difficulties may be wide ranging and diverse which are unique to every individual but the way you turn adversities into opportunities is what will take you ahead. Develop a mindset of growth and be a problem-solver for your clients as well as for yourself.

  • What should be the basic approach and expectations one must have while starting the practice at High Court or Supreme Court? What should be the ideal trajectory and please share some do’s and don’ts while starting out this journey?

Before moving to constitutional courts, a lawyer needs to first start with practice in District Courts for at least two years. The basics of CPC and CrPC are implemented in District Courts exercising original jurisdiction.  If the foundation is not strong the entire structure will be weak. I also practised initially in District Court for two years. The idea is to first become a good drafting counsel and then become a good arguing counsel, though there is no ideal trajectory but I always endeavour to draft my own matters which in turns enable me to remember facts, better.

In my advice and experience,

Do’s:

(a) Thorough examination of facts and the applicable case laws should be done while drafting the petitions.

(b)  Always be fair to the opposite side as well.

(c)  Argue without hesitation or fear.

Don’t’s:

(a)  Never mislead the court.

(b)  Never conceal facts prejudicial to your client’s interest.

(c)   Never get agitated in court.

  • Since you took the AOR examination in recent past, please share some tips with the readers on how to clear this exam and what are the benefits of becoming an AOR? Please share your experiences with the examination.

AOR examinations are not that tough to crack especially, if you have been practising in Supreme Court. The key is memorising Supreme Court Rules, 2013 which helps in practice and procedure, drafting as well as ethics paper. Leading case laws though is an open book exam but I find it to be the toughest. Time management during the exams is something to watch out for. Attending the lectures delivered by Senior Advocates conducted by the Supreme Court is a must and should not be avoided for any reason. The lectures are important for they are delivered by the “test author”. Be careful to read and understand the question and then write the answers. The benefits of becoming an AOR are plenty. First you become a certified advocate of the Supreme Court who can plead in his own name. Several public sector companies and private organisations also engage the services of an AOR only. Advocates of High Courts also recognise the Advocate-on-Record. Becoming an AOR helps in boosting the practice and also enhances self-confidence.

 

  • Any advice from your side to all the law students out there, particularly for those who want to get into litigation and aspire to establish their own independent practice?

Litigation is a beautiful profession. Be honest to your profession and the clients. Integrity, perseverance, hard work are the keys to success in any profession. My advice to all the budding litigators is just go out there and make the world your oyster. Success will eventually follow, learn to enjoy the journey. “When the tough gets going, the going gets tough.”

Op Ed
Op EdsOP. ED.

   

Introduction

In 2017, a 2-Judge Bench of the Supreme Court in Shanti Fragrances v. Union of India2 (Shanti Fragrances) was dealing with a batch of cases concerning the taxability of pan masala under various State sales tax enactments. During the proceedings, the 2-Judge Bench noticed the “dichotomy between two lines of Supreme Court judgments” holding opposing and conflicting views.3 The first being Kothari Products Ltd. v. State of U.P.4 line of judgments and the second being CST v. Agra Belting Works5 line of judgments.6 Both Kothari Products7 and Agra Belting Works8 were three-Judge Bench decisions.9 Kothari Products10 was a unanimous decision, while Agra Belting Works11 was decided by a majority of 2:1. Noticing this conflict, the 2-Judge Bench referred this issue to the Chief Justice of India to constitute an appropriate Bench to ascertain which line of judgments lay down the correct law.12

However, while delivering its judgment, the 2-Judge Bench delved into another aspect. The Bench questioned that after the decision of Union of India v. Raghubir Singh13 (Raghubir Singh) whether it can be stated that Judges of the Supreme Court “do not sit in 2s and 3s for mere convenience but that a Bench which is numerically superior will prevail over a Bench of lesser strength”.14 In Raghubir Singh15, the court referred to the observations of Chinnappa Reddy, J. in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra16 in which the learned Judge relied on the decision of the Kings Bench in Young v. Bristol Aeroplane Co. Ltd.17 to observe that it would be “inappropriate for a Division Bench of three Judges” to overrule the decision of the Division Bench of two Judges.18 However, notwithstanding this observation, the court in Raghubir Singh19 noted that a practice in Indian courts “sanctified by repeated affirmation” has evolved to the rule that “the statement of law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges”.20

Though this aspect was not in direct consideration before the 2-Judge Bench in Shanti Fragrances21, the Bench chose to examine the issue further. It referred to the judgment of Beaumon, C.J. in Emperor v. Ningapa Ramappa Kurbar22 (erroneously referred to as Ningapa Ramappa Kurbar v. Emperor by the Bench) in which Beaumon, C.J. stated that “it would seem anomalous to hold that a later Full Bench can overrule an earlier Full Bench merely because the later Bench consists of more Judges than the earlier”.23

The 2-JudgeBench further noticed that a similar view was echoed by M.B. Lokur, J. in his judgment in Supreme Court Advocates-on-Record Assn. v. Union of India24 in which the learned Judge questioned whether the number of Judges on a Bench governs what is binding upon a subsequent Bench.25 Lastly, the 2-JudgeBench also referred to the provisions of law set out by Lord Denning M.R. in Harper v. National Coal Board26.

After referring to all the aforesaid judgments, the 2-JudgeBench felt that that time had come to “tear the judicial veil” on this issue and also requested the Chief Justice to constitute an appropriate Bench “to lay down, as a matter of law, as to whether and to what extent” the propositions contained in Ningapa Ramappa Kurbar27, Lokur, J.'s observation in Supreme Court Advocates-on-Record Assn.28 and Harper29 judgment of the Court of Appeal in the UK “should guide us for the future”.30

Thus, two issues were referred to the Chief Justice by the 2-Judge Bench.

The author argues that the request made by the 2-Judge Bench to the Chief Justice to constitute a Bench to examine the second issue of the doctrine of precedent was unnecessary because the 2-Judge Bench has not considered law laid down by the seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak.31 (Antulay case).

The law laid down in Antulay case

The facts of this case are well known but ascertaining the law is a tedious task due to various judicial opinions. This exercise is, however, made easier due to the editorial note in the Supreme Court Cases Reporter, which the author relies on for this column.32

Seven Judges of the Supreme Court assembled to decide two questions:

(1) Whether the directions of the Constitution Bench of five Judges of the Supreme Court in the previous round of litigation between the parties in Antulay case33 to transfer the proceedings from the Special Judge, Bombay to the High Court of Bombay itself were “inoperative, invalid or illegal”?

(2) If the directions were invalid, then could the seven-Judge Bench “recall, withdraw, revoke or set aside the directions”?34

The appeal was allowed by a majority of 5:2 and the directions of the five-Judge Bench to transfer the case to the Bombay High Court were set aside and quashed.35 The lead judgment was delivered by Sabyasachi Mukharji, J. for himself, G.L. Oza, J. and S. Natarajan, J.; Ranganathan Misra, J. concurred with Mukharji, J. with a separate opinion and differed with him on certain aspects.36 Even though Oza, J. was a party to the opinion of Mukharji, J., he delivered a short opinion he expressed his dissent with Mukharji, J. and concurred with Ranganathan Misra, J. only on the issue of whether a writ of certiorari by the Supreme Court could be issued to correct its own judgment or order.37 B.C. Ray, J. concurred with Mukharji, J. The dissenters were M.N. Venkatachaliah, J. and S. Ranganathan, J.38

Mukharji, J.

During the course of his judgment, Mukharji, J., speaking for the majority, directly dealt with the issue of whether the size of a Bench matters or not.39 Disagreeing with the observations of Chinnappa Reddy, J. in Javed Ahmed Abdul Hamid Pawala40 as well as the decision of Young v. Bristol Aeroplane Co. Ltd.41 where it was “held that a Division Bench of three Judges should not overrule a Division Bench of two Judges”, Mukharji, J. opined that this principle has not been followed by “our courts”.42 The learned Judge went onto opine that the “law laid down” by the Supreme Court “is somewhat different. There is a hierarchy within the court itself here, where larger Benches overrule smaller Benches”. According to the learned Judge, “This is the practice following by this Court and now it is a crystallised rule of law.” Therefore, Mukharji, J. clearly holds that larger Benches overruling smaller Benches is (i) the law laid down by the Supreme Court; and (ii) a practice that is now “rule of law”.43

Ranganath Misra, J.

In his concurring judgment, Ranganath Misra, J. does not disagree with Mukharji, J. and acknowledges that “The practice has developed that a larger Bench is entitled to overrule the decision of a smaller Bench notwithstanding the fact that each of the decisions is that of the Court”.44 However, the learned Judge opined that this principle would not apply to the case before the Court and further stated that the seven-Judge Bench was “not entitled to reverse the decision of the Constitution Bench” of five-Judges.45

According to the learned Judge, “Overruling when made by a larger Bench of an earlier decision of a small one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in the particular case.”46 The learned Judge opined that only the five-Judge Bench could rectify its mistake and a larger Bench was not required to do so. However, he agreed with the “ultimate conclusions” of Mukharji, J.

Venkatachaliah, J.

Venkatachaliah, J. as mentioned earlier delivered a dissenting opinion. According to the learned Judge, “A larger Bench, merely on the strength of its numbers, cannot undo the finality of the decisions of other Division Benches.”47 The learned Judge opined that “if the decision suffers from an error the only way to correct it, is to go in review under Article 13748” of the Constitution of India49 (the Constitution) “read with Order 40 Rule 150” of the Supreme Court Rules framed under Article 14551 of the Constitution.52 The learned Judge further went onto to opine that the seven-Judge Bench “cannot sit in appeal” over what the five-Judge Bench said.53 In order words, according to Venkatachaliah, J., the seven-Judge Bench of the Supreme Court could not undo or overrule the decision of the five-Judge Bench transferring the case from the Special Judge to the Bombay High Court. However, what is crucial to note is that Venkatachaliah, J. has not disagreed with Mukharji, J.'s view that larger Benches overruling smaller Benches is “a crystallised rule of law”.

S. Ranganathan, J.

S. Ranganathan, J. did not opine on this issue.

Is the opinion of Mukharji, J. on the issue the majority view in Antulay case?

The reader of this column would be entitled to ask that if the opinion of Mukharji, J. has been delivered for himself and two other Judges, then would the learned Judge's opinion constitute the majority view having fallen one short of the magic figure of four? The answer to this question lies in the opinions of Misra, J. and Venkatachaliah, J.

We have already seen that Misra, J. has not differed with Mukharji, J. on the position of law, namely, that a larger Bench is entitled to overrule the decision of a smaller Bench notwithstanding the fact that each of the decisions is that of the Court. The learned Judge has only opined that “this principle” (which is not disputed by him) would not apply to the case before the Court. The general principle of law and the law laid down by Mukharji, J. has not been countered by Misra, J.

Venkatachaliah, J. on the other hand has stated that a larger Bench cannot “undo the finality of the decisions of other Division Benches”; but the learned Judge has not expressly disputed the statement of law, set out by Mukharji, J. that larger Benches overrule smaller Benches. What the learned Judge has disputed is that the larger Benches cannot undo the finality of the decision or the ultimate decision of a smaller Bench. The learned Judge has not stated that the principle of law laid down by a smaller Bench cannot be overruled by a larger Bench. There is a difference between the principle of law and the actual decision in a judgment. Therefore, it is submitted that Mukharji, J.'s opinion has in effect not been countered either by Misra, J. or Venkatachaliah, J.

However, supposing the reader of this column is of the opinion that Venkatachaliah, J. has expressly disagreed on this issue with Mukharji, J., even then, the concurring opinion of Misra, J. on this issue would be sufficient to conclude that in Antulay case54, the Supreme Court has by a majority of 4:3 opined that the practice of larger Benches of the Supreme Court overruling smaller Benches is a crystallised rule of law and therefore, the Supreme Court in Shanti Fragrances55 ought not to have referred this issue to the Chief Justice to constitute a larger Bench.

But let us assume for a moment that Misra, J. has neither concurred with Mukharji, J. nor dissented with his opinion. Would it still be open to conclude that the opinion of Mukharji, J. would be the majority view on this issue? Reliance may be placed on the judgments of the Gujarat High Court in Goswami Kalyanraiji Govindraiji v. Goswami Vallabraiji Govindraiji56 and Gajubha (Gajendrasinh) Bhimaji Jadeja v. Union of India57 in which the High Court has held that it is a settled principle of law when the other Judges of a Bench do not dissent from or contravene the view of a particular Judge on the same Bench, then it is presumed that the other Judges who have not expressed contrary views have agreed with the view expressed by the said Judge. Both judgments of the Gujarat High Court have placed reliance on a passage from the decision of the Queen's Bench in Guardians of the Poor of the West Derby Union v. Guardians of the Poor of the Atcham Union58 in which Lord Esher M.R. has opined as under:

The question is, what is the true construction of the 35th section of the Act of Parliament which is before us, and, when we have got at the true construction, what is the application of it to this case? …The House of Lords heard the cases, and did not give judgment at once, but considered the matter carefully, and four of the learned Judges in the House of Lords gave judgment. Now we know that each of them considers the matter separately, and they then consider the matter jointly, interchanging their judgments, so that every one of them has seen the judgments of the others. If they mean to differ in their view, they say so openly when they come to deliver their judgments, and if they do not do this, it must be taken that each of them agrees with the judgments of the others.

(emphasis supplied)

The view of the Gujarat High Court and the Queen's Bench has also been echoed by the Supreme Court in the decision delivered in Kaikhosrou (Chick) Kavasji Framji v. Union of India59 in which the Court rejected the objection raised by the respondent in the said case that the view expressed by A.P. Sen, J. in Express Newspapers (P) Ltd. v. Union of India60 was his own view and not the majority view as two other learned Judges on the Bench did not express any opinion on a particular question. By relying of the aforequoted decision of the Queen's Bench, the Court held that since the two other Judges on the Bench did not dissent with A.P. Sen, J. while expressing their concurrent opinions, the view of A.P. Sen, J. was the law laid down under Article 14161 of the Constitution.

Therefore, by this logic, even if it is presumed Misra, J. did not express any clear opinion, the fact that the learned Judge did not disagree with Mukharji, J. would be enough to leave the statement of law set out by Mukharji, J. untouched. This is also fortified by the fact that Ranganathan, J. in his dissenting opinion has not expressed any view on the statement of law set out by Mukharji, J.

Is the reference in Shanti Fragrances on the second issue necessary in light of Mukharji, J.’s opinion in Antulay case

Once the majority view by Mukharji, J. in Antulay case62 holds the field, the reference by the 2-Judge Bench in Shanti Fragrances63 would be unnecessary. In a recent decision of the Supreme Court in Shah Faesal v. Union of India64, a five-Judge Bench of the Court opined:

19. When a decision is rendered by this Court, it acquires a reliance interest and the society organises itself based on the present legal order. When substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner. It is only when a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well-established principle, that a reference will be made to a larger Bench.65

Albeit in the context of Article 145(3)66, a three-Judge Bench of the Supreme Court in Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly67 opined:

160. Any question of law of general importance arising incidentally, or any ancillary question of law having no significance to the final outcome, cannot be considered as a substantial question of law. The existence of substantial question of law does not weigh on the stakes involved in the case, rather, it depends on the impact the question of law will have on the final determination. If the questions having a determining effect on the final outcome have already been decided by a conclusive authority, then such questions cannot be called as “substantial questions of law”.68

“A substantial question of law, therefore, cannot arise where that law has been finally and authoritatively decided” by the Supreme Court.69 Though the reference in Shanti Fragrances70 does not appear to have been made under Article 145(3) of the Constitution but under Order 6 Rule 271 of the Supreme Court Rules, 201372, the principal of law set out in both judgments above would certainly guide the Court in cases which are referred to a larger Bench.

Conclusion

R.S. Pathak, C.J. in Raghubir Singh73 while examining whether the Supreme Court is bound by its own decisions painstakingly referred to the law laid down in different jurisdictions in certain common law countries. While examining the law laid down on this issue by the House of Lords, reference was made to Dr Alan Paterson's The Law Lords which summarises the guidelines framed by the House of Lords. One such guideline is that “a decision ought not to be overruled if it would be impracticable for the Lords to foresee the consequences of departing from it” or “if to do so would involve a change that ought to be part of a comprehensive reform of the law”.74 While this is in the context of overruling decisions, it is submitted that these guidelines are relevant to the issue at hand. The consequence of attempting to unsettle with the law laid down in Antulay case75 would shake the very foundation of the law of precedent as it stands today which would certainly entail unforeseen consequences which even the Supreme Court would not be able to imagine. Therefore, unless a comprehensive law reform is undertaken, (which seems highly unlikely), it would be advisable for the Supreme Court not to stir up a hornet's nest and lay the issue to rest.

† Author is a practicing Advocate at the Bombay High Court and the NCLT Mumbai. He can be contacted on Twitter@DormaanD.

2. (2018) 11 SCC 305. The Bench comprised of R.F. Nariman and Sanjay Kishan Kaul, JJ. The judgment was delivered by R.F. Nariman, J.

3. (2018) 11 SCC 305, 312 para 7.

4. (2000) 9 SCC 263.

5. (1987) 3 SCC 140.

6. (2018) 11 SCC 305.

7. (2000) 9 SCC 263.

8. (1987) 3 SCC 140.

9. (2018) 11 SCC 305, 314-315 para 12.

10. (2000) 9 SCC 263.

11. (1987) 3 SCC 140.

12. (2018) 11 SCC 305, 320, para 18.

13. (1989) 2 SCC 754.

14. (1989) 2 SCC 754, 777-778, para 27.

15. (1989) 2 SCC 754.

16. (1985) 1 SCC 275.

17. 1944 KB 718 : (1944) 2 All ER 293.

18. (1989) 2 SCC 754, para 26.

19. (1989) 2 SCC 754.

20. (1989) 2 SCC 754, para 27.

21. (2018) 11 SCC 305.

22. 1941 SCC OnLine Bom 41.

23. (2018) 11 SCC 305, 315-316, para 13.

24. (2016) 5 SCC 1.

25. (2018) 11 SCC 305, 316-317, para 14.

26. 1974 QB 614.

27. 1941 SCC OnLine Bom 41.

28. (2016) 5 SCC 1.

29. 1974 QB 614.

30. (2018) 11 SCC 305, 320, para 18.

31. (1988) 2 SCC 602.

32. A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.

33. (1988) 2 SCC 602.

34. (1988) 2 SCC 602, 605.

35. (1988) 2 SCC 602.

36. (1988) 2 SCC 602.

37. (1988) 2 SCC 602.

38. (1988) 2 SCC 602.

39. (1988) 2 SCC 602, 653, para 43.

40. (1985) 1 SCC 275.

41. 1944 KB 718 : (1944) 2 All ER 293.

42. (1988) 2 SCC 602.

43. (1988) 2 SCC 602, para 44.

44. (1988) 2 SCC 602, 688, para 105.

45. (1988) 2 SCC 602.

46. (1988) 2 SCC 602.

47. (1988) 2 SCC 602, 706, para 157.

48. Constitution of India, Art. 137.

49. Constitution of India.

50. Supreme Court Rules, 2013, Or. 40 R. 1.

51. Constitution of India, Art. 145.

52. (1988) 2 SCC 602.

53. (1988) 2 SCC 602.

54. (1988) 2 SCC 602.

55. (2018) 11 SCC 305.

56. 2002 SCC OnLine Guj 247.

57. 2014 SCC OnLine Guj 303.

58. [LR] 24 QBD 117, 119-120.

59. (2019) 20 SCC 705, 718-720, paras 38-46.

60. (1986) 1 SCC 133.

61. Constitution of India, Art. 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.

62. (1988) 2 SCC 602.

63. (2018) 11 SCC 305.

64. (2020) 4 SCC 1.

65. (2020) 4 SCC 1, 10.

66. Art. 145(3). The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

67. (2020) 2 SCC 595.

68. (2020) 2 SCC 595, 650, para 160.

69. State of J&K v. Thakur Ganga Singh, AIR 1960 SC 356, para 9.

70. (2018) 11 SCC 305.

71. Supreme Court Rules, 2013, Or. 6 R. 2.

72. Supreme Court Rules, 2013. Where in the cause of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice of India, who shall thereupon constitute such a Bench for the hearing of it.

73. (1989) 2 SCC 754.

74. (1989) 2 SCC 754, 770, para 16.

75. (1988) 2 SCC 602.

Supreme Court June 2022 Roundup
Legal RoundUpSupreme Court Roundups

Top Stories of the Month

Clean Chit to PM Modi in 2002 Gujarat riots case

“SIT Officials have come out with flying colours unscathed despite all odds”; SC upholds SIT’s clean chit to PM Modi in 2002 Gujarat riots

“The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State.”

Read more…

Maharashtra Political Crisis

Supreme Court refuses to stay Trust Vote; Uddhav Thakrey resigns as CM

No stay on floor test, disqualification proceedings to be kept in abeyance till July 11; Read SC’s directions on Eknath Shinde’s plea

Psychiatric & Psychological Evaluation of death row convicts

Supreme Court mandates call for mental health report before pronouncing death sentence

“Implicit in this shift is the understanding that the criminal is not a product of only their own decisions, but also a product of the state and society’s failing, which is what entitles the accused to a chance of reformation.”

Read more…

Also Read: Supreme Court allows Project 39A of NLU Delhi to conduct psychological evaluation of a death row convict to bring out mitigating factors

Insolvency and Bankruptcy

Liability in respect of a claim arising out of a Recovery Certificate is a “financial debt” under Section 5(8) of the IBC

The words “means a debt along with interest, if any, which is disbursed against the consideration for the time value of money” are followed by the words “and includes”. By employing the words “and includes”, the Legislature has only given instances, which could be included in the term “financial debt”. However, the list is not exhaustive but inclusive.

Read more…

NEET-PG 2021

“Process of admission and that too in the medical education cannot be endless”; SC says no to Stray Round of counselling for unfilled NEET-PG 2021 seats

“There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health.”

Read more…

Fact Check of this Supreme Court story from a Leading Newspaper

On June 14th 2022, a leading newspaper had published an article with the headline “Illegitimate child of cohabiting couple to get assets share: Supreme Court”. While on the face of it, it appeared to be a landmark judgement, on our correct analysis of the judgment, we found out that neither the couple was held to be cohabitating “without marriage” nor was the son considered to be “illegitimate”.

Read the Fact Check: We fact-check a leading newspaper’s misleading headline “Illegitimate child of cohabiting couple to get assets share: Supreme Court”

Read the accurate analysis by the SCC Online Blog: Long co-habiting couple’s child cannot be disentitled from family property in absence of proof against presumption of marriage

Read more…

Most Read Story of the Month

Beyond Reasonable Doubt versus Preponderance of Probabilities: Supreme Court explains why circumstances guide the Courts in deciding Right to Private Defence cases

“The underlying factor should be that such an act of private defence should have been done in good faith and without malice.”

Read more…

More Stories

Dishonour of cheque| Partner cannot be held to be vicariously liable when partnership firm is not tried as primary offender

The Partnership Act, 1932 creates civil liability. Further, the guarantor’s liability under the Contract Act, 1872 is a civil liability. The Partner may have civil liability and may also be liable under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. However, vicarious liability in the criminal law in terms of Section 141 of the NI Act cannot be fastened because of the civil liability.

Read more…

No conviction based on ‘last seen together’ theory when possibility of suicidal death not ruled out; SC sets man free in a 28-year-old honour killing case

“The suspicion howsoever strong cannot take place of proof.”

Read more…

Old Age Home inmates can’t get away with causing disruption of peace of other inmates; Administration can ask them to vacate the room

“One can understand the mental trauma which the parents face in the evening of their life but the agony suffered by a parent cannot be a cause of disturbance to the other inmates or to the organizers who have resolved to take care and run the old age home.”

Read more…

Railway doubling project on Karnataka-Goa route antithesis to biodiversity and ecology; Supreme Court revokes approval for railway doubling in Western Ghats

“While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity topreserve ecology and environment should not hamper economic and other developments.”

Read more…

Income, age not enough to tilt the balance in favour of maternal aunt; Grandparents win custody battle of 5-year-old who lost parents to COVID-19

“One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson.”

Read more…

Date of dispatch/shipment: Is it when the loading commences or when the loading completes?

“The term ‘despatch’ contained in the policy implied ‘completion’ of handing over of possession of the goods to the first carrier (the ship), and not the date on which the loading ‘commenced’ such an interpretation would give rise to an absurdity.”

Read more…

Allahabad HC grants bail to a history sheeter only on the basis of parity; prompts SC to lay down illustrative circumstances for cancellation of bail

Holding that the Supreme Court has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances, the Court laid down the illustrative circumstances where the bail can be cancelled.

Read more…

More than one chargesheet is necessary for invoking provisions of Gujarat Control of Terrorism and Organised Crime Act, 2015

The Court enumerated the conditions will have to be fulfilled for invoking the provisions of the GCTOC Act.

Read more…

Pay on a par with last drawn pay on reemployment in Government Service? Not a matter of right, holds Supreme Court

In a case where the bench of MR Shah and BV Nagarathna, JJ was posed with the question as to whether on re­employment in the government service, an employee who was serving in the Indian Army/in the Armed Forces shall be entitled to his pay scales at par with his last drawn pay, it has been held that a claim for the last drawn pay in the armed forces is not a matter of right.

Read more…

Consider relocating and rehabilitating 268 Jhuggi Dwellers without insisting on Ration Card proofs; Supreme Court directs Delhi Government

By the impugned order, the Delhi High Court had held that since the original cut-off date was 31-12-1998, the jhuggi dwellers were not eligible for the rehabilitation scheme at that date as they did not have ration card on the relevant date.

Read more…

Madras High Court’s decision to keep enquiry report in a sealed cover in SP Velumani graft case doesn’t sit well with Supreme Court

When the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover.

Read more…

Unless there’s a written instrument declaring land was voluntarily relinquished for no consideration, State cannot deny payment of compensation

Under the mandate of Article 300A, the State can only deprive a person of the right to property if it is for a public purpose and the right to compensation is fulfilled, thereby reiterating that the right to compensation is an inbuilt part of Article 300A.

Read more…

Can insurer rely on statutory interpretation of “acts of terrorism” to repudiate insurance claim where the policy itself defines the term?

The Court reversed National Consumer Disputes Redressal Commission’s (NCDRC) judgment by which it had held that the insurance company was justified in repudiating the claim.

Read more…

Can State deny benefits of New Pension Scheme citing delayed appointments when the delay was not attributable to employees?

In the given circumstances, when all other candidates who had participated along with the appellants were appointed on 24-09-2002 including those who were lower in the order of merit, there was no reason for withholding the names of the appellants.

Read more…

SC steps in after Orissa HC sits on a blind man’s bail plea in a Ponzi scheme case for 2 years after reserving order in 2020; Issues notice to CBI, ED

The petitioner, who suffers from a permanent disability of blindness by birth, has submitted before the Court that the prolonged detention is against the fundamental rights of the Petitioner under Article 21 of the Constitution of India.

Read more…

Supreme Court reinstates All India Chess Federation secretary Bharat Singh Chauhan till August 15 to ensure smooth holding of the prestigious Chess Olympiad-2022

The Court took the decision in the light of the fact that a prestigious Chess Olympiad is to be held in the country and the same should not be affected because of any structural anomaly in the National Sports Federation (NSF). 

Read more…

Cases Reported in SCC

2022 SCC Vol. 4 Part 2 : In 2022 SCC Volume 4 Part 2, read this very pertinent matter of the Supreme Court wherein it was decided whether culpable homicide tantamounts to murder or not. [State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227]

Read more…

2022 SCC Volume 4 Part 3: This part consists a very pertinent decision of the Supreme Court wherein it was held that it cannot be said that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property as such interpretation will be against the provisions Section 83(1) of Act. [Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414]

Read more…

2022 SCC Volume 4 Part 4: This part encapsulates, a very interesting decision, wherein while criticizing the practise of granting cryptic bail in a casual manner, the Court expressed, “It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.” [Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497]

2022 SCC Vol. 5 Part 1: This part encapsulates, a very interesting decision of the Supreme Court wherein the Court while dealing with Appointment of Vice-Chancellor, held, that it cannot be made dehors the applicable UGC Regulations, even if the State Act concerned prescribes diluted eligibility criteria vis-à-vis the criteria prescribed in the applicable UGC Regulations. [Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179]

2022 SCC Vol. 5 Part 2: This part covers the decision wherein the scope of “deemed authorization” clause under S. 16 provisio of the Petroleum and Natural Gas Regulatory Board Act, 2006 has been dealt with. It has been held that if one reads S. 16 proviso in isolation, the inference undoubtedly would be that every entity which had started laying and building pipelines and networks was the recipient of the deemed authorisation clause i.e. the provision sought to retrospectively regularise activities by all entities, however, such a plain and facial construction is unacceptable. [Adani Gas Ltd. v. Union of India, (2022) 5 SCC 210]

2022 SCC Vol. 5 Part 3: This part consists of an important decision on the menace of “dowry”, wherein it has been held that “Dowry” ought to be ascribed an expansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a valuable security of any nature. [State of M.P. v. Jogendra, (2022) 5 SCC 401]

2022 SCC Vol. 5 Part 4: This part covers a pertinent decision on Section 29-A(h) of the Insolvency and Bankruptcy Code, 2016, wherein it has been held that existence of personal guarantee invoked by creditor is sufficient to render disqualification against the person executing guarantee, even when the application seeking initiation of insolvency resolution process is filed by some other creditor. [Bank of Baroda v. MBL Infrastructures Ltd., (2022) 5 SCC 661]

SCC Snippet

Why Reason is the Soul of Justice : The bench of GS Singhvi and AK Ganguly, JJ, in Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496, stressed upon the importance of reasoned judicial orders and elaborated on why “reason is the soul of justice.”

Legal RoundUpWeekly Rewind

 

TOP STORY OF THE WEEK

Right to Abortion no longer a Constitutional right in the USA

In a far-reaching decision concerning American women’s right to abortion, the Supreme Court of the United States, has held that the Constitution of the United States does not confer any right to obtain abortions. The judgment decisively overrules the landmark SCOTUS ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted this constitutional right in the first place and also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11 which upheld Roe. Furthermore, by this mandate the authority to regulate abortion is returned to the people and their elected representatives.

While Chief Justice Roberts agreed with the majority opinion that the viability line established by Roe and Casey should be discarded, he however took a “measured course” and said that the right should extend far enough to ensure a reasonable opportunity to choose but need not extend any further certainly not all the way to viability.

However, the dissenting opinion termed the decision to be catastrophic and stated that the majority has given the ruling out of despise and has substituted a rule by judges for the rule of law. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other,

The dissent concluded with the following words,

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”

Detailed Analysis: SCOTUS| United States’ Constitution does not confer any right to abortion; Roe v. Wade overruled after 49 years

Also read: “With sorrow—for this Court, but more, for the many mil­lions of American women…we dissent.” Read SCOTUS dissent on Right to Abortion case 

APPOINTMENTS AND TRANSFERS

6 High Courts get new Chiefs

6 High Courts have got new Chief Justices. While Telangana High Court’s current Chief, Justice Satish Chandra Sharma will now be assuming the charge of the Chief Justice of the Delhi High Court, 5 judges have been promoted to be the Chief Justices of Gauhati, Rajasthan, Uttaranchal, Himachal Pradesh and Telangana High Courts.

Full Story: 5 Appointments and one Transfer lead to 6 High Courts getting new Chiefs

SUPREME COURT

Clean Chit to PM Modi in 2002 Gujarat Riots

Supreme Court has dismissed Zakia Jafri’ss plea challenging the clean chit given to Prime Minister Narendra Modi by the Special Investigation Team in 2002 Gujarat riots case. The Court observed that no fault can be found with the approach of the SIT in submitting final report back in 2012, which is backed by firm logic, expositing analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the State against the minority community.

Detailed Analysis: “SIT Officials have come out with flying colours unscathed despite all odds”; Read SC’s key observations while upholding SIT’s clean chit to PM Modi in 2002 Gujarat riots

Man set free in a 28-year-old honour killing case

In 1994, a young couple belonging to different castes was found hanging from a tree after having gone missing for days. The love affair did not sit well with the girl’s father and uncle. It was alleged her uncle had killed both of them and had kept the bodies in the house for 3 days, after which he had taken the bodies to the cashew nursery and had hung them on a cashew tree to give it the shape of them having committed suicide.

Noting that the prosecution had miserably failed to bring home the charges levelled against the accused beyond reasonable doubt, the Court observed that conviction could not be based on a very weak kind of evidence of extra judicial confession by the co-accused and the theory of “Last seen together” propounded by the prime witness.

Detailed Analysis: No conviction based on ‘last seen together’ theory when possibility of suicidal death not ruled out; SC sets man free in a 28-year-old honour killing case

HIGH COURTS

Bombay High Court| Unmarried major Daughter’s right to maintenance

In a case where a father had refused to maintain his unmarried major daughter on the ground that the daughter was earning Rs.72 lakhs to Rs.80 lakhs by merely posting photographs on Instagram, the Bombay High Court has held that the father had the responsibility to maintain his daughter and her Instagram biography is not enough to prove that she has independent and sufficient income.

The Court remarked,

“it is a well-known fact that it is the habit of the youth of today to project a glossy picture and post the same in the social media though its contents may not always be true.”

Detailed Analysis: Bombay High Court| Unmarried major Daughter entitled for maintenance from her father; Glossy life on Instagram does not prove independent and sufficient income

Orissa High Court | Vigilance Department vis-à-vis Right to Information

The Orissa High Court has held that the Government of Odisha cannot deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department. The Court held that if under the RTI Act disclosure is the norm, and non-disclosure is the exception, then the notification by the Odisha Government’s Information and Public Relations Department seeks to take away what is provided by the RTI Act and is therefore ultra vires the RTI Act.

Detailed Analysis: Orissa High Court | Notification exempting Orissa Vigilance Department from the purview of RTI is ultra vires of RTI Act, 2005

Patna High Court| Right to Sanitation a fundamental right

Sanitation is personal and private, inextricably linked to human dignity. At the same time, sanitation has an essential public health dimension. The Patna High Court observed that the right to sanitation comes within the scope of Article 21 and therefore, directed the State, National Highway Authority of India (NHAI), and Oil Marketing Companies (OMC) to construct public toilets and public conveniences on highways across the state of Bihar.

Detailed Analysis: Right to Sanitation a fundamental right: Patna HC issues directions to Bihar Govt and NHAI to construct “Public toilets” on highways

NATIONAL COMMISSIONS

NCDRC| Women with sponge left in abdomen after Caesarean Surgery gets Rs. 5 Lakhs Compensation

In a consumer dispute where a woman had alleged medical negligence on part of the doctors who had left a sponge in her abdomen after performing a Caesarean surgery; NCDRC has held that, since a foreign body was left in the system of the complainant during the surgery, it clearly indicated a failure of reasonable degree of care and thus it constitutes medical negligence. As a result, the woman will now get the compensation of Rs. 5 lakhs.

Detailed Analysis: Infected sponge left in the abdomen of a woman post Caesarean surgery, constitutes medical negligence; NCDRC directs compensation of Rs. 5 lakhs to the aggrieved party

LEGISLATIONS

TDS exemption on rent of ‘aircraft’ leased out by IFSC units on certain conditions

The Central Board of Direct Taxes (CBDT) has exempted TDS on lease rentals under Section 194-I of Income Tax Act, 1961 paid to Aircraft Leasing Units. The Notification will come into force on July 1, 2022. The Exemption is applicable on certain conditions. You can read the same on the SCC Online Blog.

Full Report: CBDT notifies exemption of TDS on rent of ‘aircraft’ leased out by IFSC units on certain conditions

Registration of Electors (Amendment) Rules, 2022

Central Government, after consulting the Election Commission of India has notified Registration of Electors (Amendment) Rules, 2022 A new Rule has been inserted which provides Merger and integration of list of amendments. The rule provides that the list of amendments prepared with reference to the qualifying dates shall be merged and integrated with the last finally published roll and published as draft roll, before every election and bye-election and shall be put in public domain with reference to the qualifying date, proximate to the said election, as the Election Commission may direct.

Full Report: Centre notifies linking of Aadhaar with electoral roll vide Registration of Electors (Amendment) Rules, 2022

NFRA Amendment Rules, 2022

The National Financial Reporting Authority Amendment Rules, 2022 introduces the penalty in case of non-compliance of the provisions of the Rules. Whoever contravenes any of the provisions of these rules, shall be punishable with fine not exceeding five thousand rupees, and where the contravention is a continuing one, with a further fine not exceeding five hundred rupees for every day after the first during which the contravention continues.”.

Full Report: MCA introduces maximum penalty upto Rs. 5000 in case non-compliance of NFRA Rules, 2018 vide NFRA Amendment Rules, 2022

Curated and presented by Prachi Bhardwaj, Associate Editor, EBC Publishing Pvt. Ltd. 

Know thy Judge

“Publish at your own peril” appears to be the philosophy adopted by our country in the last few decades after Independence. But it appears that a number of countries, both developed and developing, have repealed Laws making defamation a Criminal Offence.”

– Justice V. Ramasubramanian

M. Nedunchezhian v. Bar Council of T.N., 2015 SCC OnLine Mad 5573

 

♦Did you know?Justice Ramasubramanian has immense contribution to Tamil language. He has authored a book in Tamil on the principles of law and justice in Kamba Ramayana (Kambanil Sattamum Neethiyum). He also wrote a series of articles under the caption “Beyond science” (Ariviyalukku Appaal) in a Tamil newspaper for 27 weeks.[1]

Justice V. Ramasubramanian was born on 30-06-1958 in Mannargudi. He did his schooling in Hindu High School at Triplicane. He passed B.Sc from Vivekananda College in Chennai and completed his LL.B. from Madras Law College.

♦Did you know? Justice Ramasubramanian added new vocabulary to the language of Tamil by running a column in a Tamil newspaper under the caption “Sol Vettai” for 50 weeks on the same lines as Barbara Walraff ran a column for Atlantic Times under the caption “Word Court and Word Fugitives.” Many readers of the newspaper got involved in this exercise and one of them was actually serving a life sentence in Puzhal Prison. As a mark of recognition of the involvement of a life convict in this exercise, the judge got the life convict out on parole for the Book release function and made the life convict sit on the dais with him and receive the first copy of the book.[2]

From an Advocate to a Supreme Court Judge

Justice V. Ramasubramanian enrolled as a Member of the Bar on February 16, 1983. He practised in High Court of Madras, City and Small Causes Court, State Consumer Commission and District Consumer Forum, Central and State Administrative Tribunals, Chennai. His mainly practised in Civil and Constitutional matters and was specialized in service matters.

Justice Ramasubramanian had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:

He was appointed as an Additional Judge of the Madras High Court on 31-07-2006 and became permanent Judge on 9-11-2009. He continued to serve in the Madras High Court until 2016, when he was transferred to the common High Court for Andhra Pradesh & Telangana.

♦Did you know? He was transferred on his own request to the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh with effect from April 27, 2016.[3]

♦Did you know? After the bifurcation and the creation of a separate High Court for the State of Andhra Pradesh, he was retained as a Judge of the High Court of Telangana at Hyderabad w.e.f. January 1, 2019.[4]

Justice Ramasubramanian was elevated as the Chief Justice of Himachal Pradesh High Court on 22-06-2019. He relinquished the charge on 23-09-2019 (forenoon) on being elevated as a Judge of Honourable Supreme Court of India.[5]

♦Did you know? At the time of his appointment as a judge of Supreme Court, Justice Ramasubramanian was at 42nd number in the nationwide seniority list. The Supreme Court collegium while recommending Justice Ramasubramanian said it “is conscious of the fact that in the seniority of judges hailing from the Madras High Court” he is in second position and after his appointment, “there will be two judges on the bench of the Supreme Court from the Madras high court.” [6]

Notable Judgments at Supreme Court

♦Did you know?  Justice Ramasubramanian recused himself from hearing a plea of Kerala’s People’s Democratic Party (PDP) leader Abdul Nazir Maudany, who is an accused in the 2008 Bengaluru serial blasts case, seeking to allow him to go to Kerala and stay there till the trial is concluded.[7]

Asset Reconstruction Co. (India) Ltd v. Chief Controlling Revenue Authority, 2022 SCC OnLine SC 515

While dealing with a case under the Gujarat Stamp Act, 1958, the bench of Hemant Gupta and V. Ramasubramanian*, JJ has held that once a single instrument has been charged under a correct charging provision of the Statute, namely Article 20(a), the Revenue cannot split the instrument into two, because of the reduction in the stamp duty facilitated by a notification of the Government issued under Section 9(a).

Read More…

Dinesh Chandra Shukla v. State of U.P., 2022 SCC OnLine SC 353

The Division Bench of Hemant Gupta and V. Ramasubramanian*, JJ., reversed the impugned order of the Allahabad High Court holding that where no particular qualification, particularly Master’s Degree in ‘Karm Kand’ was prescribed for the post of Lecturer in ‘Karm Kand’ either by the University Statute or in the advertisement, candidature of the appellant could not be rejected for not holding a Master’s degree in ‘Karm Kand’.

Opining that the appellant’s rejection was a result of stale relationship of the Chancellor and the Vice-Chancellor, the Bench commented,

“…perhaps the entire selection process undertaken in 2006 by the University, became victims of the crossfire between the Chancellor and the Vice-Chancellor.”

Read More…

Sanjay Gupta v. State of U.P., 2022 SCC OnLine SC 443

In the 2006 Meerut fire case, the bench of Hemant Gupta and V. Ramasubramanian, JJ has held the Organizers responsible for the incident and not the Contractor as the Contractor was only responsible for executing work as assigned to him by the Organizers. It observed,

“The contractor has worked for the Organizers and not for the victims. Hence, the Organizers alone are responsible to protect the life and liberty of the victims.”

The court was dealing with the writ petition preferred by the victims of the fire tragedy which occurred on 10.4.2006, the last day of the India Brand Consumer Show organized at Victoria Park, Meerut, Uttar Pradesh by Mrinal Events and Expositions. The incident claimed the lives of 65 persons and left 161 or more with burn injuries.

Read More…

Fertilizer Corpn. of India Ltd. v. Rajesh Chandra Srivastava, 2022 SCC OnLine SC 417

The bench of Hemant Gupta and V. Ramasubramanian*, JJ has held that an ad hoc payment made to the workers pursuant to the interim orders passed by this Court in a previous round of litigation does not form part of “wages” within the meaning of the expression under Section 2(s) of the Payment of Gratuity Act, 1972, for the purpose of calculating gratuity.

Read More…

Shripati Lakhu Mane v. Maharashtra Water Supply and Sewerage Board, 2022 SCC OnLine SC 383

Explaining the law on abandonment on contractual obligation, the bench of Hemant Gupta and V. Ramasubramanian*, JJ has held that the refusal of a contractor to continue to execute the work, unless the reciprocal promises are performed by the other party, cannot be termed as abandonment of contract. A refusal by one party to a contract, may entitle the other party either to sue for breach or to rescind the contract and sue on a quantum meruit for the work already done.

Read More…

DEVAS Multimedia (P) Ltd.v. Antrix Corporation Ltd., 2022 SCC OnLine SC 46

In the case where the bench of Hemant Gupta and V. Ramasubramanian*, JJ upheld NCLAT’s order of winding up of Devas Multimedia Private Limited, the requirement of advertising the winding up petition was looked into and the Court observed that the failure to publish an advertisement would not lead to the automatic dismissal of the petition for winding up.

Read More…

Brigade Enterprises Ltd. v. Anil Kumar Virmani, 2021 SCC OnLine SC 1283

In a case where it was alleged that more than one consumer cannot institute a complaint unless they come within the definition of the word “complainant” of Section 2(5) of the Consumer Protection Act, 2019 and also satisfy the requirements of Section 38(11) read with Order I Rule 8 CPC, the bench of Hemant Gupta and V. Ramasubramanian*, JJ has held that it is wrong to contend that wherever there are more consumers than one, they must only take recourse to Order I Rule 8 CPC, even if the complaint is not on behalf of or for the benefit of, all the consumers interested in the matter.

Read More…

Secretary to Govt. Department of Education (Primary) v. Bheemesh, 2021 SCC OnLine SC 1264

Clearing the air over the applicability of a new or modified Compassionate Appointment Scheme that comes into force after the death of the employee, the bench of Hemant Gupta and V. Ramasubramanian*, JJ the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor such as the date of consideration of the application of the dependant.

Read More…

Internet and Mobile Assn. of India v. Reserve Bank of India, (2020) 10 SCC 274

The 3-judge bench comprising of R.F. Nariman, Aniruddha Bose and V. Ramasubramanian*, JJ set aside the RBI circular that had prevented financial services from trading in crypto-currencies, such as Bitcoin and Ethereum.

According to Justice Ramasubramanian RBI’s circular had failed to demonstrate as how the virtual currency trading was causing harm to banks and other types of financial institutions.

Read more…

Kapico Kerala Resorts (P) Ltd. v. State of Kerala, (2020) 3 SCC 18

The 3-judge bench comprising of R.F. Nariman, Aniruddha Bose and V. Ramasubramanian*, JJ upheld a Kerala High Court order that had directed Kapico Kerala Resorts to cease encroaching land on Vaamika Island.

The Court held that the decision in Vaamika Island, (2013) 8 SCC 760 was rendered at the stage of special leave petitions and though the Court refused leave, it went on to affirm the findings of High Court, recording detailed reasons therefore. Further, the appellants cannot escape the findings recorded in the said case and once it is found that the main issues arose in common for both the islands and dealt with in common by High Court, had received a seal of approval from Supreme Court by a reasoned order. Further, there is no scope for revisiting the same on the basis of certain minor ancillary issues not specifically dealt with, in the judgment.

Embassy Property Developments (P) Ltd. v. State of Karnataka, (2020) 13 SCC 308

In an important judgment with regards to the jurisdiction of National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT) to look into fraud in an Insolvency and Bankruptcy Code (IBC) proceeding, the 3-judge bench of R.F. Nariman, Aniruddha Bose and V. Ramasubramanian*, JJ held that the NCLT and NCLAT enjoyed the jurisdiction to look into fraud under Section 65 of the IBC.

The Court while deciding the second issue i.e. whether a High Court could interfere under Article 226/227 of the Constitution of India with a NCLT order in a IBC proceeding and thereby ignore the statutory remedy of appeal to the NCLAT, held that a High Court could interfere in instances where the NCLT had lacked the jurisdiction to entertain a proceeding in the first place.

“NCLT and NCLAT would have jurisdiction to enquire into questions of fraud, they would not have jurisdiction to adjudicate upon disputes such as those arising under MMDR Act, 1957 and the rules issued there under, especially when he disputes revolve around decisions of statutory or quasi ­judicial authorities, which can be corrected only by way of judicial review of administrative action.”

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

While interpreting Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of R.F. 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. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

Read more…

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

“National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.”

While deciding not to grant the interim relief prayed by the petitioners, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ directed that the Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.

“…right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).”

Read more…

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

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

Concluding the corporate sage in the Tata-Mistry Row, the 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has answered all questions in favour of Tata Sons and upheld the removal of Cyrus Mistry as Chairman by the Tata Sons.

The Court observed that

“NCLAT appears to have granted the relief of reinstatement gratis without any foundation in pleadings, without any prayer and without any basis in law, thereby forcing upon the appellant an Executive Chairman, who now is unable to support his own reinstatement.”

Read more…

Also Read: Tata v. Mistry: A Case for Greater Protection of Minority Shareholders’ Rights 

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

In a case pertaining to the brutal gang-rape and assault of a 19-year old girl, also known as Hathras Gang Rape Case, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ, while observing that the perception and pessimism are not without justification and directed the CRPF to provide security to the victim’s family and witnesses within a week “in order to allay all apprehensions and only as a confidence building measure”.

Read more…

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

“All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”.”

While refusing to interfere with the Scheme of sale of electoral bonds by the Political Parties, the 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V, Ramasubramanian, JJ has held that the operations under the Electoral Bonds Scheme are not behind iron curtains incapable of being pierced.

The Court also observed that even though the Scheme provides anonymity, it is intended to ensure that everything happens only through banking channels.

Read more…

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

In a Special Leave Petition (SLP) filed against the controversial Bombay High Court judgment, the 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ stayed the release of accused whose sentence was cut to 1 year by the High Court on the ground that there was no skin to skin contact with victim.

Read more…

Also Read: Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act? 

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

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

While staying the implementation of all the three farms laws until further orders, the 3-Judge Bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ., opined that a stay on implementation of the farm laws may alleviate the hurt feelings of the farmers and invigorate them to come to the negotiating table with confidence and good faith.

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

Read more…

Rakesh Vaishnav v. Union of India, 2020 SCC OnLine SC 1032

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order.”

While refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench consisting of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ opined that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.

Read more…

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

In a PIL addressing the issue of protection of two species of birds namely the Great Indian Bustard (‘GIB’) and the Lesser Florican, which is on the verge of extinction, the 3-Judge Bench of S. A. Bobde, CJ., A.S. Bopanna and V. Ramasubramanian, JJ., has emphasized on need to adopt eco-centric approach and issued directions to be followed by the Government as  the State as well as the Central Government have a duty to preserve the endangered species.

Read more…

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

In an important and far-reaching verdict deciding the question as to “whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a Criminal Court, in the afternoon on the very same day?”, the 3-judge bench of S.A. Bobde*, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has held that such vote would remain valid and if held otherwise, such a situation will create endless confusion and needless chaos.

“…to hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty.”

Read more…

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

Recognising the need of adherence to the regulatory principles of transparency, non-discrimination and non­-predation sought by TRAI, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has directed telecom giants Bharti Airtel and Vodafone-Idea to disclose information/details regarding segmented offers to TRAI and also asked TRAI to ensure that such information is kept confidential and is not made available to the competitors or to any other person.

Read more…

Sudha Singh v. State of U.P., 2021 SCC OnLine SC 342

Setting aside the order of the Allahabad High Court granting bail to a gangster arrested under Section 3 (1) of the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ., held that there is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail.

Read More…

R. Poornima v. Union of India, 2020 SCC OnLine SC 714

Dismissing the writ petition, the 3-judge bench of S.A. Bobde*, A.S. Bopanna and V. Ramasubramanian, JJ has dismissed the claim of certain District Judges to club their services rendered as advocates with the service rendered by them as Judicial Officers, for determining their eligibility for elevation as High Court judges.

Read more…

CCEv.  Cera Boards and Doors, 2020 SCC OnLine SC 657

The 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ while explaining the scheme of provisions under the Central Excise Act, 1944, laid down elaborate principles that the Adjudicating Authorities has to keep in mind while determining the value of excisable goods.

Read more…

Envitech Marine Consultants (P) Ltd. v. Union of India, 2021 SCC OnLine SC 312

The 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ has refused to interfere with the dismantling of INS Viraat, the oldest serving warship in the World.

“…while appreciating the sentiments of the petitioners, we are afraid that we cannot do anything at this stage and in these circumstances.”

Read More…

Amruta Ben Himanshu Kumar Shah v. Himanshu Kumar Parvinchandra Shah, 2021 SCC OnLine SC 46

While rejecting the transfer petition, V. Ramasubramanian*, J held that the dismissal of a petition for transfer, may not operate as res judicata, when a fresh petition is filed on change of circumstances. However, when a case is at its final stage, the Court will be extremely reluctant to order the transfer, as it may derail the entire process.

Read more…

Ankita Meena v. University of Delhi, 2021 SCC OnLine SC 36

Setting aside the judgment of Delhi High Court where the Court refused to interfere with the decision of the University denying permission to the applicant to appear in 4th Semester LL.B Examination, the 3-judge bench of S.A. Bobde, CJ, A.S. Bopanna and V. Ramasubramanian*, JJ has directed the University to declare Supplementary exam result & issue provisional degree to woman who fell short of attendance due to birth of her child & subsequent Teacher’s strike.

Read more…

Ashok Kumar v. State of J&K, 2021 SCC OnLine SC 24

Setting aside the judgment of the Division Bench of the High Court, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ held that the seniority will not be decided on the basis of the date of promotion but on the basis of the date of acquiring the qualification while occupying the promoted posts.

“It is apparent from the facts and circumstances of the case that the non graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.”

Read more…

Saritha S. Nair v. Hibi Eden, 2020 SCC OnLine SC 1006

The 3-judge bench comprising of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ has held that the suspension of sentence not enough to save one from disqualification from contesting elections; a person is disqualified to contest polls if conviction not stayed.

On the issue of rejection of the of the election petition by the Kerala High Court, the Court held that though the High Court was right in not taking up the election petition but the ground on which it rejected the petition i.e. incurable defects, was wrong.

“If only the High Court had given an opportunity to the petitioner to cure the defects in the verification and if, despite such an opportunity, the petitioner had failed to come up with a proper verification, the High Court could have then held the petitioner guilty of playing hide and seek. The failure of the High Court to give an opportunity to cure the defects is improper.”

Read more…

Ghanshyam Upadhyay v. State of U.P., 2020 SCC OnLine SC 587 and 2020 SCC OnLine SC 658

After Vikas Dubey, a history-sheeter and gangster-turned-politician, was killed in a police encounter on July 10, 2020, the Supreme Court gave a go ahead to Inquiry Committee headed by Former SC judge Justice B S Chauhan.

SC gives a go ahead to Inquiry Committee headed by Former SC judge Justice B S Chauhan | Read more…

Later, a 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian, JJ refused to scrap the Judicial Committee constituted to look into the killing of Vikas Dubey and said that the allegations of bias made against the members of the Commission merely on the basis of newspaper reports and nothing more, are liable to be rejected outright.

Also read: SC refuses to scrap Justice B.S. Chauhan lead Judicial Committee; says allegations based merely on newspaper reports liable to be rejected outright

APJ Abdul Kalam Technological University v. Jai Bharath College of Management and Engineering Technology, 2020 SCC OnLine SC 1015

The 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ has upheld the power of Universities to fix enhanced norms and standards for the grant of affiliation other than those prescribed by AICTE.

“No State run university can afford to have a laid­back attitude today, when their own performance is being measured by international standards. Therefore, the power of the universities to prescribe enhanced norms and standards, cannot be doubted.”

Read more…

Somasundaram v. State, (2020) 7 SCC 722

Agreeing with Justice Mishra’s opinion that under section 109 IPC, the abettor is liable to the same punishment which may be inflicted on the principal offender if the act of the latter is committed in consequence of the abetment., the 3-judge bench of R.F. Nariman, K.M. Joseph* and V. Ramasubramanian, JJ upheld the conviction of the accused .

The Court opined that “Abduction followed by murder in appropriate cases can enable court to presume that abductor is the murderer. Principle in this regard is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural and logical that an irresistible inference may be drawn that he has done away with the hapless victim.” and held that the said principle would also apply to those persons who illegally confine the person who stands abducted even if there is no evidence that they have themselves carried out the abduction.

Read more…

Also Read: Division Bench verdict | Split decision over conviction of accused for abetment when the charges of conspiracy under Section 120B IPC have failed

Kaushik Chatterjee v. State of Haryana, 2020 SCC OnLine SC 793

In a case seeking to transfer of three criminal cases, all pending on the file of the Court of the Additional Judicial Magistrate, Gurugram, Haryana, to any competent Court in New Delhi, V. Ramasubramanian*, J., held that the transfer of criminal cases cannot be ordered under section 406 of the Code of Criminal Procedure, 1973 on the ground of lack of territorial jurisdiction even before evidence is marshalled.

Read more…

Skoda Auto Volkswagen India (P) Ltd. v. State of U.P., 2020 SCC OnLine SC 958

Rejecting the plea of Skoda Auto Volkswagen India (P) Ltd. to quash an FIR against it alleging the use of “cheat devices” which manipulate emission figures in Audi cars sold by them, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ., reiterated that the Courts should not thwart any investigation unless no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.

Read more…

Kaledonia Jute and Fibres (P) Ltd. v. Axis Nirman and Industries Ltd., 2020 SCC OnLine SC 943

Deciding the issue as to what are the circumstances under which a winding up proceeding pending on the file of a High court could be transferred to the NCLT and on whose instance such a transfer could be ordered, the 3-judge bench of S.A. Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ., held that not just the petitioning creditor but ‘any’ creditor aggrieved by any decision of the official liquidator can initiate transfer of winding up proceedings from a Company Court to NCLT.

Read more…

Notable Judgments at High Court

♦Did you know? The computerization of the Madras high court and the Subordinate courts in Tamil Nadu gained momentum under his leadership. The selection of judges to the subordinate judiciary in Tamil Nadu was entrusted to him three times from the year 2012. [8]

Consim Info (P) Ltd. v. Google India (P) Ltd., 2010 SCC OnLine Mad 4967

In a case dealing with the issue as to whether such a use of appellant’s trademark by Google’s Ad program amounted to trademark infringement, Justice Ramasubramanian* denied an interim injunction against Google for its ‘Keywords Suggestion Tool’.

♦Did you know? The decision rendered by Justice Subramanian in Consim Info (P) Ltd. v. Google India (P) Ltd. was hailed as the first decision in India on the question of infringement of trademark by an internet search engine through its adword policy. This decision was hailed by IPR experts as an encyclopedia on the legal issues involved.[9]

Sanjeev Kumar v. State of H.P., 2019 SCC OnLine HP 972

“…all appointments made otherwise than in accordance with the Recruitment and Promotion Rules, strike at the very root of equality guaranteed under Articles 14 & 16 of the Constitution.”

In a civil writ petition were the petitioners engaged on a contractual basis as Trainer in various Industrial training institute challenged the cut-off date fixed under notification of the Department of Technical Education by the Government, the Division Bench of V. Ramasubramanian*, C.J. and Anoop Chitkara, J., held that there was no arbitrariness on the part of the Government in choosing the cut-off date i.e. 31.07.2015 as there was a scientific reason for the same.

“…the appointments on contract basis may not strictly follow the rule of reservation, which is the bedrock of Articles 14 & 16 of the Constitution. Therefore, this Court cannot be a party to the conversion of an ‘One time Measure’ issued by the Government, that too, at the instance of this Court, in to a permanent measure.”

Read more…

Jinendra Jewellers v. B. Venkateswara Rao, 2017 SCC OnLine Hyd 442

In a case dealing with the issue a to whether a counter-claim can be rejected in terms of Order VII, Rule 11 of Civil Procedure Code, 1908, Justice Ramasubramanian* has held that while dealing with an application for rejection of counter-claim the court must take precaution and examine whether rejection would have the effect of striking off the defence

Read more…

T. Rajkumar v. Union of India, 2016 SCC OnLine Mad 2001

In a writ petition dealing with the constitutionality of Section 94A(1) of the Income Tax Act, 1961, the Division bench comprising of V. Ramasubramanian* and T. Mathivanan, JJ., upheld the constitutionality of Section 94-A(1) of the Income Tax Act stating that in the present times when scams like Panama Leaks are being revealed, the provisions related to tax avoidance are the need of the hour.

The Court held that the provisions of the Vienna Convention on the Law of Treaties and other such rules of International Law did not influence the legislative powers of Parliament.

Read more…

B. Dilipkumar v. Secretary to the Govt., 2016 SCC OnLine Mad 2122

Raising concerns over the rising cases of honour killing, V. Ramasubramanian*, J., issued directions to the Tamil Nadu Government to tackle the growing menace of honour killings in the State.

Read more…

State v. Rasu, 2016 SCC OnLine Mad 1807

Dismissing and disapproving the order laid down by the Single Judge Bench wherein it was directed that the devotees should follow a ‘dress code’ while visiting temples, the Division Bench of V. Ramasubramanian and K. Ravichandrabaabu, JJ., has held that the directions issued by the Single Judge Bench prescribing the dress code for the devotees is beyond the scope of the lis that was before him and therefore cannot be approved.

“Courts are not expected to adjudicate any matter academically in the absence of any real lis between parties. Courts are not entitled to create a controversy and adjudicate upon the same.”

Read more…

A. Santhos Yadav v. Bar Council of T.N.,2015 SCC OnLine Mad 3362

“…the burning of effigies has its roots in history, culture as well as the religion of several countries throughout the world.”

The Division Bench of V. Ramasubramanian* and K. Ravichandrabaabu JJ., held that section 285 of Indian Penal Code, 1860 does not criminalize burning of effigies in a political agitation.

The Court ordered the enrolment of an eligible person as an advocate as he can not be denied enrolment merely because he had a criminal case of burning effigy of a political leader pending against him.

Read more…

V. Surendra Mohan v. State of T.N., 2015 SCC OnLine Mad 2100

Dismissing the writ petition seeking appointment to judicial services with 70% blindness, the Division Bench of V. Ramasubramanian* and T. Mathivanan, JJ., held that held that the Tamil Nadu Public Service Commission’s decision is lawful as it is in line with the State’s policy.

Read more…

Also Read: Supreme Court | 40-50% disability limit for the post of Civil Judge is logical considering the nature of the job

LYCA Production (P) Ltd v.  Govt. of T.N., 2014 SCC OnLine Mad 8448

“The action of any group or organisation demanding the removal of any dialogue or scene or sub-title or title from a film which is already certified for release by the Central Board of Film Certification, would tantamount to a blackmail.”

While allowing the petition and directing the respondent to provide protection to enable the petitioner to have their name exhibited as the Producer of the film “Kathi” in the prints as well as the publicity material of the film, V. Ramasubramanian* J., opined that once a film is certified for screening by the Central Board of Film Certification, no group, organisation or association can demand further censoring, on the ground that something in the film hurts the religious, communal, racial or linguistic sentiments of someone or the other.

Read more…

Dorothy Thomas v. Rex Arul, 2011 SCC OnLine Mad 925

Reffused to be oscillated by the emotional appeal of the Plaintiff-mother against the order of an American Court granting custody of her child to her antagonized husband, Justice V. Ramasubramanian* held that a person who had failed to avail opportunity of hearing provided in the proceedings of the foreign Court cannot contend violation of principles of natural justice and any attack to such foreign judgment under Section 13(d) of the Code of Civil Procedure is not sustainable.

The Court opined that the US court had jurisdiction even though the Plaintiff never personally appeared but appearing through counsel was sufficient to extend personal jurisdiction over the plaintiff for the defendant’s counterclaims.

S. Anand v. Vanitha Vijaya Kumar, 2011 SCC OnLine Mad 435

Emphasized the need for developing the concept of shared parenting, Justice V. Ramasubramanian* held that if both parties are not disqualified from having the custody of the child, then it is their duty, under normal circumstances, to draw up a parenting schedule and share the responsibility of co-parenting to bring up the child in a healthy and happy environment.

The Court casted duty on the Courts to draw up a parenting schedule keeping in mind the interest and welfare of the child, if the parents themselves are not matured enough to reach an understanding and draw up a parenting schedule.

Discussing the Court’s mindset and need for change towards its duty towards the interest and welfare of the child, Justice Ramasubramanian held that

“It is quite unfortunate that the Courts still dabble with the age old concepts of custody and visitation rights. These terms emanate from a rights regime rather than a responsibilities regime. Today the emphasis has shifted from the regime where we were concerned with the rights of the parents over the child, to a regime where we should be concerned about the responsibilities of the parents towards the child.”

Lalgudi G. Jayaraman v. Cleveland Cultural Alliance, 2008 SCC OnLine Mad 148

Justice V. Ramasubramanian* held that where a right over an artistic/musical/literary work is claimed by an entity, apart from the author, such entity is under a very heavy burden to show that the work was commissioned by him, was created in the course of employment by the author and that there was no agreement to the contrary.

Rajshree Sugars & Chemicals Ltd. v. AXIS Bank, 2008 SCC OnLine Mad 746

“Derivatives are time bombs and financial weapons of mass destruction, which can push companies on to a spiral that can lead to a corporate melt down”.

– Warren Buffett

Ruling in favour of AXIS Bank, Justice V. Ramasubramanian* held that derivative contract is not a wager, because the purpose it serves is akin to insurance by hedging the plaintiff’s risk, therefore it is not illegal.

“Every business venture provides a roller-coaster ride at some point of time or the other and the validity of contracts cannot be judged on the basis of the success or failure of the venture.”

Colgate-Palmolive (India) Ltd. v. Anchor Health & Beauty Care (P) Ltd., 2008 SCC OnLine Mad 627

“…on the one hand, advertisements being free commercial speech, enjoy a degree of protection. On the other hand, the right of the consumers to know and to receive information is also protected. Therefore, both rights have to be matched and balanced.”

Recognising the rights of the consumers to be protected against misleading claims made by manufacturers, V. Ramasubramanian*, J., held that the question of the legality of puffing needed to be decided by balancing the right to freedom under Article 19 along with reasonable restrictions on that right in the form of consumer laws.

“…the recognition of this right (to puff) of the producers, would be to de-recognise the rights of the consumers guaranteed under the Consumer Protection Act, 1986.”

†Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

** Judge who has penned the concurring judgment.

[1] https://www.deccanchronicle.com/nation/current-affairs/210919/v-ramasubramanian-to-be-sworn-in-supreme-court-judge-on-monday.html

[2] https://www.deccanchronicle.com/nation/current-affairs/210919/v-ramasubramanian-to-be-sworn-in-supreme-court-judge-on-monday.html

[3] https://tshc.gov.in/hcapp/fcjjudprofile.action;HCAPP_ID=E419F69C53EF3A2592C3A3A5AC049D86?judcode=2&cjornot=N

[4] https://tshc.gov.in/hcapp/fcjjudprofile.action;HCAPP_ID=E419F69C53EF3A2592C3A3A5AC049D86?judcode=2&cjornot=N

[5] https://tshc.gov.in/hcapp/fcjjudprofile.action;HCAPP_ID=E419F69C53EF3A2592C3A3A5AC049D86?judcode=2&cjornot=N

[6] https://economictimes.indiatimes.com/news/politics-and-nation/another-judge-now-objects-to-sc-collegium-overlooking-seniority/articleshow/70983735.cms?from=mdr

[7] https://www.deccanherald.com/national/sc-judge-v-ramasubramanian-recuses-himself-from-hearing-2008-bengaluru-blasts-accuseds-plea-973634.html

[8] https://www.deccanchronicle.com/nation/current-affairs/210919/v-ramasubramanian-to-be-sworn-in-supreme-court-judge-on-monday.html

[9] https://www.deccanchronicle.com/nation/current-affairs/210919/v-ramasubramanian-to-be-sworn-in-supreme-court-judge-on-monday.html

Experts CornerSiddharth R Gupta

It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged.

Romer L.J.,

Hadkinson v. Hadkinson1

Disobedience of orders of a court strikes at the very root of the rule of law on which the judicial system rests. Judicial orders are bound to be obeyed at all costs. Howsoever grave the effect may be, is no answer for non-compliance of a judicial order. Judicial orders cannot be permitted to be circumvented.

J.S. Khehar, J.

Subrata Roy Sahara v. Union of India2

The present article delves into a subject of immense relevance for the judicial system of our country, with the ongoing debate on interpretation of interim orders regarding their extent, existence, and expiry after a particular passage of time. In other words, we would attempt to highlight how the question of duration and endurance of interim orders has been answered by the various courts, especially the constitutional courts of the country viz. (High Courts and the Supreme Court), when they were mentioned to be operative for a particular period/duration/time by the court passing the order granting interim relief.

As the analytical description would unfold, what will also be amusing to note is that the constitutional courts of the country have themselves left every corner of this issue ambiguous and ambivalent. It is highly desirable that the Supreme Court of India must step in and resolve the serious conundrum occasioned owing to mutually contradictory judicial verdicts of various High Courts. There is a sharp vertical cleavage of judicial opinion on the duration and expiry of interim orders, when they are passed for a fixed period/time.

The article shall be segregated into the following sub-topics:

1. Purpose and objective of an interim/interlocutory order by any court of law.

2. Classification of interim/interlocutory orders on the basis of their wordings.

3. Origins and applicability of the legal maxim – “actus curiae neminem gravabit”.

4. View of the Supreme Court of India.

5. Views of the High Courts favouring continuation of interim order in various contingencies.

6. Views of the High Courts against continuation of interim order, declaring their expiry date.

Discussions under topics A to D shall be undertaken in the current part of the article whilst discussions under topics E to G shall be dealt with in Part II of the article

Purpose and objective of an interim/interlocutory order by any court of law

The roots and origins of the concept of interim/interlocutory order in the Indian context can be traced to the provisions of Order 39 Rules 1 to 3 CPC, which are the repository of powers to grant interim relief and temporary injunctions.

Upon perusal of Order 39 Rule 1 CPC, it would indicate that wherein any suit, it is proved by affidavit or otherwise (i) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens, or intends, to remove or dispose of the property with a view to defrauding the creditors; (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit; the court may grant an order of temporary injunction to restrain such acts.

It has now been well settled that before a court grants a temporary injunction, it needs to be satisfied that a person seeking an injunction has a prima facie case in his favour and that the balance of convenience and possibility of irreparable injury being caused also lies in his favour.

The word “prima facie case” apparently indicates something which at the first impression makes out a triable case. The term “prima facie case” should not be confused with the term “prima facie title” which has to be established at the trial upon permitting the parties to lead evidence. Thus, it means a substantial question has been raised, which upon first sight needs to be investigated and decided on merits.

The word “balance of convenience” denotes that the court must be satisfied that the comparative mischief and hardship which is likely to be caused to the person seeking an injunction is more than the inconvenience likely to be caused to the other party by granting such injunction.

The word “irreparable injury” on the other hand guides the court to be satisfied that the refusal to grant the injunction would result in such injury which cannot be compensated in terms of costs or otherwise and the person seeking injunction needs to be protected from the consequences of apprehended injury.

The aforesaid three ingredients have been noticed by the House of Lords in the celebrated case of American Cyanamid Co. v. Ethicon Ltd.3 The principles regarding grant of injunction as laid down by the Lord Diplock in the Cyanamid case4 can be summarised as under:

(1) The plaintiff must first satisfy the court that there is a serious issue to decide and that if the defendants were not restrained and the plaintiff won the action, damages at common law would be inadequate compensation for the plaintiff’s loss.

(2) The court, once satisfied with these matters will then consider whether the balance of convenience lies in favour of granting an injunction or not, that is, whether justice would be best served by an order of injunction.

(3) The court does not and cannot judge the merits of the parties’ respective cases and that any decision of justice will be taken in a state of uncertainty about the parties’ rights.

The Supreme Court of India has also followed the same principle as followed by the English courts primarily the three considerations mentioned above. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd.,5 the Supreme Court of India referred to the Cyanamid case6. It also relied upon the Indian precedents and succinctly enumerated the broad parameters that should govern the judicial discretion in the passing of interim/interlocutory/temporary orders by Indian courts. Vide para 24, the Supreme Court Bench, comprising B.N. Kirpal and U.C. Banerjee, JJ., held thus:

24. We, however, think it fit to note hereinbelow certain specific considerations in the matter of grant of the interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the court, since the issue of grant of injunction, usually, is at the earliest possible stage so far as the time-frame is concerned. The other considerations which ought to weigh with the court hearing the application or petition for the grant of injunctions are as below:

(i) Extent of damages being an adequate remedy.

(ii) Protect the plaintiff’s interest for violation of his rights though, however, having regard to the injury that may be suffered by the defendants by reason therefor.

(iii) The court while dealing with the matter ought not to ignore the factum of the strength of one party’s case is stronger than the other’s.

(iv) No fixed rules or notions ought to be had in the matter of grant of the injunction but on the facts and circumstances of each case — the relief being kept flexible.

(v) The issue is to be looked at from the point of view as to whether on the refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case.

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant.

(vii) Whether the grant or refusal of the injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise.

The authorities and precedents on principles governing grant of interim relief are innumerable. However, the above ones have been referred to broadly explain the factors that should govern grant of interim relief by any judicial/quasi-judicial court or a tribunal.

Necessarily, therefore, the exercise of passing of any interim order granting any interim relief by necessary implication is an exercise to be undertaken by the courts with due application of mind, preferably through speaking order. The Supreme Court has been consistently holding that interim orders cannot be granted on mere asking or as a matter of force, but only on consideration governing them (as explained above). There has to be an active display of judicial conscience and mental thinking in the process of passing of interim order in favour of any party.

The present article delves into the moot question of whether the effect of an interim order granted to any party must dissipate on procedural grounds, when the time expires. Whether, despite all the diligent efforts of the parties, when the courts are not able to decide on the vacation or withdrawal of interim relief so granted to any party, should the party be denied the fruits of a judicially considered and well-deliberated interim order is the question to be answered.

Classification of interim/interlocutory orders on the basis of their wordings

Even though it may be a singular term  “interlocutory orders”, however the content of these orders may bear different colours. As stated earlier, the grant of interim relief to any party in any proceeding is dependent upon a host of factors. The courts may while granting interim relief, bracket it with certain conditions or riders. The tenure, extent and duration of the interim orders may be limited by the court whilst granting interim relief. Generally, the court restricts the extent and duration of the interim orders in the following words:

(i) “in the meanwhile … during the pendency of the matter”;

(ii) “till the next date of hearing of the matter”;

(iii) “till the next date of listing”;

(iv) “list on (date) … till then interim order (as specified) to operate”; and

(v) “parties are directed to maintain status quo (or any other similar interim order) till further orders of this Court”.

The interim orders of varied wordings may be passed by the court, but each of them has a separate import about its extent and duration. It is the dispute about the interpretation of these interim orders only that has been keeping jurists and Judges puzzled alike, with no definite answer. A one line interim order may at times cascade into another bigger litigation if the stakes on either side are volatile, for protection of which only the interim order of the court was passed.

Origins applicability of the legal maxim – “actus curiae neminem gravabit” for extension and restoration of interlocutory orders

The maxim is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law. In virtue of it where a case stands over for argument from term to term on account of the multiplicity of business in the court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case; and therefore, if  one party  to  an  action  dies  during  a  curia  advisari vult,  judgment may be entered “nunc pro tunc”, for the delay is the act of the court, and therefore neither party should suffer for it.

Cases do however, occur, in which injury is caused by the act of a legal tribunal, as by the laches or mistake of its officers; and where, notwithstanding the maxim as to actus curiae, the injured party is altogether without redress.

The maxim referred to above was relied on, referred and applied for by the courts at UK as far back in the beginning of 19th century in the judgment of Pulteney v. Warren7, wherein Lord Eldon in the context of above maxim, observed as under:

“If there be a principle, upon which courts of justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. That proposition is broadly laid down in some of the cases.”

This view was followed subsequently by the House of Lords in East India Co. v. John Campion8. In another case of Rodger v. Comptoir d’Escompte de Paris9, the principle enshrined above in the Latin maxim was reiterated again in following lines:

… One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors and when the expression “the act of the court” is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case….

In addition to the above, first few judgments which affirmed and followed the doctrine of “actus curiae neminem gravabit” is Turner v. London and South-Western Railway Co.10 In this case, the plaintiff had died after the hearing, but before the court rendered its judgment. The court ordered that its judgment be entered “nunc pro tunc”, as of the day when the argument terminated, noting that this would not cause an injustice to the other party and that such a result was appropriate in a case in which the delay had resulted from an act of the court.

Thus in essence, the Latin maxim “actus curiae neminem gravabit”, means “an act of the court should prejudice no one”. At times, judicial proceedings or orders of the court may itself perpetuate injustice. The doctrine therefore allows courts to rectify and undo the wrongs committed to any party due to its own mistakes, shortcomings in judicial proceedings or judicial orders.

The Privy Council as far back as in Debi Bakhsh Singh v. Habib Shah11 pointed out that an abuse of the process of the court may be committed by the court or by a party. Where a court employs a procedure in doing something, which it never intended to do and there is an abuse of the process of the court, it can always be corrected. Lord Shaw spoke for the Bench thus:

“Quite apart from Section 151, any court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made.”

Further, in another matter of The Bolivar12, the Privy Council applying the doctrine further stated thus:

“Where substantial injustice would otherwise result, the court has, in Their Lordships’ opinion, an inherent power to set aside its own judgments of condemnation so as to let in bona fide claims by parties….”

In Jang Singh v. Brij Lal13, the Supreme Court of India in relation to the maxim “actus curiae neminem gravabit” observed as follows:

6. … There is no higher principle for the guidance of the court than the one that no act of courts should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by a mistake of the court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim:

“actus curiae neminem gravabit”.

Courts have held in many judgments said that to own up any mistake when judicial satisfaction is reached, does not militate against its status or authority. Perhaps it would enhance both.

What would happen if the interim order applicable up to a particular date or any interim arrangement determined by the court does not get extended due to procedural impediments on the part of the court; or owing to omission on the part of its Registry. Whether an interlocutory order passed after due consideration of merits and application of judicial mind with due exercise of judicial conscience and discretion must disappear for the faults in the machineries working in the judicial system. Courts in India have applied the aforementioned doctrine of “actus curiae neminem gravabit” to restore the previously passed interlocutory orders that expired for no fault of the parties.

In Pradip Kumar Saha v. Rajesh Rajak14, the ADJ Court at Siliguri (W.B.) had passed an order whereby the prayer for extension of ad interim order of stay of the operation of the order was refused against which the matter travelled to the High Court. Previously, an ad interim order of injunction was passed on an application filed by the plaintiffs/opposite parties on 17-8-2015 restraining the defendant-petitioner from disturbing the peaceful possession of the plaintiff till 16-9-2015. This interim order was extended from time to time until the Order No. 16 passed in the said suit. But from Order No. 16 till Order No. 24 passed in the said suit, this order was not extended by the trial court. No order came to be passed for extension of interim order, when the matter travelled to the High Court on the question of existence and continuation of interim order when the parties had made diligent efforts. The High Court applying the doctrine of “actus curiae neminem gravabit”, held that act of the court should not cause any prejudice to the litigant and therefore continued the ad interim order granted earlier by the trial court till the final disposal of the pending applications for the extension of the interim relief. Vide para 1, the High Court applying the said doctrine observed thus:

1. … An ad interim order of injunction was passed on an application filed by the plaintiffs/opposite parties on 17-8-2015 restraining the defendant-petitioner from disturbing the peaceful possession of the plaintiff till 16-9-2015. It is not in dispute that such ad interim order of injunction was extended from time to time until the Order No. 16 passed in the said suit. There is no reflection after the said Order No. 16 till the Order No. 24 passed in the said suit that the said ex parte ad interim order of injunction was extended by the trial court. A serious dispute was raised before this Court over the filing of an application seeking extension of the said interim order on each date of listing. My attention is drawn to the orders recorded in the said suit wherefrom it appears that an application seeking extension of ad interim order was filed but there is no reflection that the court extended the said ad interim order of injunction. By an order dated 10-1-2018 the learned Judge in the trial court took up the matter and noticed that the ex parte ad interim order of injunction granted on 17-8-2015 has not been extended on and from 1-7-2016. The learned Judge was of the opinion that it was a mistake on the part of the court in not extending ad interim order of injunction and extended in the manner as if the said ad interim order of injunction was operative through out the proceeding. What can be seen from the tenet of the said order is that the learned Judge in the trial court was swayed by the fact that the act of the court should not cause any prejudice to the litigant. Such principle is well recognised and based on the legal maxim “actus curiae neminem gravabit”.

Vide para 5, the High Court held thus:

5. This Court, therefore, modifies the order dated 10-1-2018 in exercise of the power of superintendence to the extent that the ad interim order of injunction passed on 17-8-2015 is reimposed from the said date and to continue till the disposal of the injunction applications.

A somewhat similar situation arose before the Madras High Court in T. Gnanasambanthan v. Board of Governors15. In this case, the writ petition was filed challenging the order of discharge passed by the respondents. Through an interim order, the court stayed the operation of the impugned order of discharge. Against this order, a vacate stay petition was filed by the respondents which was not decided within 14 days from the date of filing. Consequently, the respondents issued an office order dated 30-10-2013 relieving the petitioner with effect from 30-10-2013 on the ground that the interim stay automatically got vacated due to Article 226(3) of the Constitution of India. The main issue was whether the stand taken by the respondents on the basis of Article 226(3) to the effect that the stay automatically got vacated is correct or not.

The court noted that due to fault on the part of its Registry and listing section, the application for vacation of interim order could not get listed. This was titled as “act of omission” on the part of the court, warranting invocation of “actus curiae neminem gravabit”. Holding that when the court or its executive machinery is at fault, then the parties should not suffer. Vide para 65, the Madras High Court held thus:

65. But unfortunately, none of the High Courts, whose decisions are relied upon by the respondents, has considered the question from the pedestal of the most fundamental principle of law, namely, that no one shall be prejudiced by an act of court (actus curiae neminem gravabit). An act can either be an act of omission or be an act of commission. The non-listing of an application for vacation of an interim order, if not due to the fault of any of the parties, but due to the fault of the Registry of the court, would fall under the category of “act of omission”. No law can be so absurd as to say that if the court is at fault, the parties shall suffer. I do not think that any case law is required to support the proposition that an act of court shall not prejudice a party.

Vide paras 74-75, the Madras High Court further held as follows:

74. … Take for instance a case, where an application for vacating the stay is taken up for hearing within two weeks of its presentation and the court reserves orders. If orders were not pronounced on or before the expiry of the 14th day from the date of filing of the vacate stay application, could it be said that the party, who obtained an interim stay, should still suffer, despite ensuring that the application is heard within two weeks. It is not within the control of any party to have his application or the opposite party’s application listed for hearing. Even if a party succeeds in getting the application listed within two weeks, it is not in his control to ensure that the application is heard before the expiry of two weeks. Even if a party succeeds in making the court hear the application for vacation of the interim order within two weeks, it is not in his control (especially these days) to ensure that it is disposed of within two weeks from the date of filing of the vacate stay application.

75. Therefore, an interpretation that would put a party, who is not at fault, to disastrous consequences, for the failure of an institution or for the happening of something that is beyond his control, is wholly unjustified. If a statutory provision imposes an obligation upon one party and makes the opposite party suffer for the consequences of non-fulfilment of the obligation cast therein, such a provision cannot be said to be mandatory. Unfortunately, none of the High Courts, whose decisions are relied upon by the respondents, has taken note of this basic difference between the person, on whom, an obligation is cast and the person, on whom, the consequences are made to fall under Article 226(3). Hence, with great respect, I am unable to agree with the views expressed by the other High Courts.

From the above judgments, it is clear that the doctrine of “actus curiae neminem gravabit”, can be rightly invoked to continue and restore interim orders that expired due to faults on the part of Registry or the executing machinery of the court. However, a neat and clear case has to be made out by the party pleading for applicability of the doctrine that it is entitled for restitution due to fault on the part of the court, meaning thereby that more often than not one can claim restitution if due diligence is proved on his part.

View of the Supreme Court of India on extent, expiry and duration of interim orders

Not many judgments are available of the Supreme Court on the issue of duration and existence of interlocutory orders. However, there are two judgments that have taken a strict view on their operability, while there are some others on the other end of the spectrum. The first one at hand is the judgment of Arjan Singh v. Punit Ahluwalia16. In this case, through the interim order dated 2-2-1996, Dr Bawa, one of the respondents, was restrained from transferring the property, which order was to remain in effect till 16-10-1996. An application for extension of the said interim order was filed on this date, but extension could not be granted since the Presiding Officer was on leave on 16-10-1996. Thereafter, the matter was transferred to another court and the interim order was neither extended nor vacated. Therefore, the main issue that arose was whether the order of injunction was operative, so as to attract the provisions of Order 39 Rule 2-A of the Code of Civil Procedure or invoking the inherent jurisdiction of the court under Section 151 thereof. The court held that if the order of injunction was operative up to a particular date, technically the order of injunction shall not remain operative thereafter. Thus, the owner of the land Dr Bawa and Defendant 2 Sanjeev Sharma could have entered into the compromise, to be treating the interim order to be not operative beyond the date it was so held to be. Vide paras 16-17, the Supreme Court held thus:

16. The learned trial Judge passed an interim order on 2-2-1996, which was periodically extended. Indisputably, by reason thereof, Dr Bawa was restrained from transferring the property. A similar order of injunction was passed in Sanjeev Sharma’s case which was made absolute on 28-5-1997. It is, however, again beyond any dispute that the said order of injunction continued from time to time. It was operative till 16-10-1996. It has been noticed by the learned trial Judge that an application for extension was filed. However, because the Presiding Officer was on leave on 16-10-1996 and later the matter was transferred to another court, the interim order was neither extended nor vacated.

17. Was the order of injunction operative so as to attract the provisions of Rule 2-A of Order 39 of the Code of Civil Procedure or invoking the inherent jurisdiction of the court under Section 151 thereof? The learned trial Judge opined that it was so because it was for the court to pass an appropriate order thereunder. The High Court, however, differed with the aforementioned finding of the learned trial Judge to hold that no order of injunction was operative. It, furthermore, held that any transaction carried out in violation of the order of the court is void; it would be a nullity. The decision of the High Court is based on the decisions of different High Courts including Pranakrushna v. Umakanta Panda17, Phani Bhusan Dey v. Sudhamoyee Roy18 and Harbalas v. State of Haryana19. We agree with the High Court on this issue. If the order of injunction was operative up to a particular date, technically the order of injunction shall not remain operative thereafter. The owner of the land Dr Bawa and Defendant 2 Sanjeev Sharma, thus, could have entered into the compromise. The effect thereof would be that the said deed of sale was not binding on the appellant. It would be hit by the doctrine of lis pendens, as adumbrated under Section 52 of the Transfer of Property Act. The said deed of sale would not come in the court’s way in passing a decree in favour of the appellant. Its validity or otherwise would not be necessary to be considered as the appellant is not bound thereby. Sanjeev Sharma and consequently Punit Ahluwalia would be deemed to be aware of the pendency of the suit. Even Section 19 of the Specific Relief Act will be attracted.

A similar issue arose thereafter in Ashok Kumar v. State of Haryana20. The appellant landowners acquired the said lands in 1993 and raised certain construction thereupon. A notification was issued on 20-12-1996 for acquisition of the said lands by the State of Haryana. A suit was filed by the landowners in the Court of the Civil Judge, Senior Division, Panipat, questioning the validity of the said notification. On an application for grant of injunction filed by the appellants, an order of interim injunction was passed on 30-8-1997. The said interim order was extended from time to time. The matter was placed on 28-7-1998 on the ground that the Presiding Officer was to remain on leave on 29-7-1998. The matter was adjourned to 9-9-1998. However, the order of injunction was not extended. After some adjournments, the suit was dismissed for default on 19-8-2000. The main issue was whether the order of an interim injunction granted by the learned Civil Judge, Senior Division, Panipat, was operative till 9-9-1998 or 19-8-2000. The Supreme Court held that the interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted. It was stated  that although in the earlier order dated 30-8-1997, the term “in the meantime” was used, which was repeated in order dated 24-9-1997, but in the subsequent orders beginning from 29-11-1997, the expression used was “till then”. Vide paras 11-12, the Supreme Court held thus:

11. The short question which arises for consideration in this appeal is as to whether the order of ad interim injunction granted by the learned Civil Judge, Senior Division, Panipat, was operative till 9-9-1998 or 19-8-2000. We have noticed hereinbefore the nature of the orders passed by the learned Civil Judge. Although in its order dated 30-8-1997, the learned Civil Judge, used the term “in the meantime”, which was repeated in its order dated 24-9-1997, but in the subsequent orders beginning from 29-11-1997, the expression used was “till then”.

12. The term of the order of the learned Judge, in our opinion, does not leave any manner of doubt whatsoever that the interim order was only extended from time to time. The interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted.

From the above exposition, it is clear that a lot depends on the exact language of the interim order passed by the court. If the interim order passed by the court is intended to have a limited effect for a definite time, then in such circumstances, it cannot be held to possess an operation beyond its reach by presumptions. If one follows the view taken by the Supreme Court, then there is no warrant for the proposition, that unless an order of stay passed once even for the limited period is vacated by an express order or otherwise; the same would continue to operate.

However, till date, the Supreme Court of India has not dealt with or adjudicated any case, where arguments have been taken on the applicability of doctrine of “actus curiae neminem gravabit”. Both the judgments of Arjan Singh21 and Ashok Kumar22 were decided essentially on the facts of the case, without delving into the larger issue of applicability of the above Latin maxim. The argument always remains open for an aggrieved party to persuade the Supreme Court to take another view.

With this, the Part I of this article gets concluded. In the sequel to this part, the discussion shall veer around the sharp cleavage of judicial opinion amongst various High Courts on the subject. This cleavage of judicial opinion shows far more serious questions than it answers, requiring intervention by the Supreme Court of India at the earliest to solve one of the complex judicial enigmas which our legal fraternity faces every day.

The remaining discourse on the subject shall continue in Part II of this article to follow after a short while.

† Siddharth R. Gupta is an Advocate practising at Madhya Pradesh High Court and Supreme Court of India.

†† IVth year student, BA LLB (Hons), Dr B.R. Ambedkar National Law University, Sonepat.

1. (1952) 2 All ER 567 at para 288, p. 285.

2. (2014) 8 SCC 470 at para 185.2 : AIR 2014 SC 3241.

3. 1975 AC 396 : (1975) 2 WLR 316 : (1975) 1 All ER 504 : 1975 UKHL 1.

4. 1975 AC 396 : (1975) 2 WLR 316 : (1975) 1 All ER 504 : 1975 UKHL 1.

5. (1999) 7 SCC 1, 13, 14 : AIR 1999 SC 3105.

6. 1975 AC 396 : (1975) 2 WLR 316 : (1975) 1 All ER 504 : 1975 UKHL 1.

7. 6 Ves 73, 92 (1801) : (1801) 31 BR 944.

8. (1837) 11 Bli NS PC 158 : 6 ER 291 (1837).

9. [LR] 3 PC 465, 475 : 1871 UKPC 6.

10. [LR] 17 Eq 561.

11. 1913 SCC OnLine PC 15 : ILR (1913) 35 All 33.

12. 1916 SCC OnLine PC 30 : AIR 1916 PC 85.

13. AIR 1966 SC 1631 : (1964) 2 SCR 145.

14. 2018 SCC OnLine Cal 3056.

15. 2014 SCC OnLine Mad 235 : (2014) 3 Mad LJ 1.

16. (2008) 8 SCC 348, 355, 356 : AIR 2008 SC 2718.

17. 1988 SCC OnLine Ori 35 : AIR 1989 Ori 148.

18. 91 CWN 1078.

19. 1973 Punj LJ 84.

20. (2007) 3 SCC 470, 472, 473 : AIR 2007 SC 1411.

21. (2008) 8 SCC 348 : AIR 2008 SC 2718.

22. (2007) 3 SCC 470 : AIR 2007 SC 1411.

Conference/Seminars/LecturesLaw School News

The Internship & Placement Cell of the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, Delhi is organizing a lecture series on different career opportunities for law students. The series aims to provide students with some exposure to the various avenues that they can pursue as a legal practitioner, with key insights regarding the practicalities of such a career. Through these talks, the Cell hopes to empower students with knowledge gained through years of experience.

The third lecture of the series “Nuances of Supreme Court Litigation: From Procedure to Court Craft” will be taken by Mr. Raghenth Basant, an independent litigator practicing mainly before the Hon’ble Supreme Court, the National Company Law Appellate Tribunal, and the National Consumer Disputes Redressal Commission and an alumnus of NLSIU, Bangalore. Mr. Basant will be speaking on Tuesday, June 28, 2022, at 11:00 AM.

We invite all students and professionals to participate in this interactive session. Interested participants must register on the following link before 11:59 PM, June 27, 2022 to receive the meeting credentials: HERE .

About the Organizers

USLLS has ranked 12th in the National Institutional Ranking Framework’s 2021 Rankings (Law) and is one of the premier law schools located in Delhi. The I&P Cell is a student-cum-faculty initiative of the law school, which seeks to secure internship and placement opportunities for USLLS students and undertakes several activities for facilitating professional development of the students.

Op EdsOP. ED.

To claim relief under the provisions of oppression and mismanagement (Sections 241–2441 of the Companies Act, 2013), it is necessary to prove that there exists just and equitable ground for winding up the company. Such ground exists when there is a justifiable lack of confidence in the conduct of management of the company’s affairs. This concept of just and equitable ground flows from the law of partnership and has its roots in good faith, probity and mutual confidence. However, to impose that the company is a quasi-partnership, proper evaluation has been done by the courts from time to time.

Notwithstanding the wide nature of discretion available to the courts, the courts have always restrained themselves from invoking quasi-partnership principles other than in exceptional circumstances.2

Rationale behind inclusion of winding-up circumstances in oppression remedy

The courts do not interfere in the internal management of a company and it is the majority rule which prevails. However, only in grave circumstances such as oppression of the minority and gross mismanagement in a company, the courts are bound to interfere. Thus, mere acts of carelessness do not constitute oppression and in fact, the oppression or mismanagement should be so grave that it becomes justifiable to wind up the company due to such oppression.

In Loch v. John Blackwood3, it was held that there must be lack of confidence in the management of affairs of the company to justify its winding  up. However, such lack of confidence shall not arise merely out of dissatisfaction of being voted out from the affairs of the business.

In Baird v. Lees4, it was observed that a shareholder invests his money in a company upon certain conditions including the fact that the company shall be limited to specific purpose and will be run efficiently. It will be “just and equitable” to wind up the company only when these conditions are consistently and deliberately violated.

The oppression must be so cruel and burdensome that it leads to winding up of the company irrespective of the fact that the Tribunal will order winding up of the company as a remedy for the oppression.

Co-existence of oppression and winding-up clause

Earlier, winding up the company on just and equitable ground was the only remedy available to the shareholders for any offending act in a company. Such an action of completely winding up the company was held to be a nuclear option and the courts started to refrain from ordering winding up.  P.N. Bhagwati, J.5 also observed that the winding-up remedy was totally inadequate for it meant killing the company to put an end to the alleged oppression and mismanagement. But killing a company would be a clumsy method to end the oppression and such an action might as well turn out against the interests of the minority shareholders. The liquidation of the company will result into the sale of its asset at break-up value and the purchaser of the assets of the company may be the very majority shareholders who has oppressed the minority, affecting the minority shareholders altogether.

The Kerala High Court in Palghat Exports (P) Ltd. v. T.V. Chandran6, observed that while examining the factual situation in a case, the courts have to caution themselves that the oppression is the core element to be proved and the nature of the oppression to be tested in the context of “cause for winding up”. But it has to be kept in the minds that the provision is intended to avoid winding up and it is aimed to mitigate the oppression. The relief under Section 3977 of the 1956 Act is geared to help members who were oppressed and the relief under Section 3988 of the 1956 Act is geared to save the company and it is in the interest of the company alone and not of any particular member.

Under the Companies Act, 20139, the existence of dual criteria is a prerequisite before invoking the oppression and mismanagement remedy. First is that there should be prejudicial conduct of the company’s affairs and second is that the circumstances should be such that they form just and equitable ground to wind up the company, although such winding up may cause unfair prejudice to the members of the company. Thus, the onus of proof rests on the members proposing a case for oppression and mismanagement.10

In S.P. Jain v. Kalinga Tubes Ltd.11 the Supreme Court has clarified the position relating to the requirements of Section 397, it has observed that it is not enough for the petitioner to show that there is just and equitable cause for winding up of the company although that must be shown as a preliminary to the application of Section 397. It must further be proved that the conduct of the majority shareholders was oppressive to the members and this requires that the events have to be considered not in isolation but as a part of consecutive story. The conduct must be burdensome, harsh and wrongful and mere lack of confidence between majority and minority shareholders is not enough for considering the application unless such lack of confidence springs from oppression of the  minority by a majority.

In Maharashtra Power Development Corpn. Ltd. v. Dabhol Power Co.12, the Bombay High Court held that the appellant had failed to prove that the affairs of the company were conducted in manner prejudicial to public interest or in a manner oppressive to the appellant. In the absence of such proof and in the absence of any justification to pass an order for winding up of the company on the ground that it was just and equitable to do so, CLB lacked the jurisdiction to pass any order under Section 397 of the Act.

Where the petitioning shareholders have the burden to prove their case, the onus may shift to the respondents wherein they can demonstrate that the winding up of the company would be a harsh step and will cause inconvenience to the general public and rest of the shareholders. Along with proving that there is no oppression in a given case, the respondents can justify the reasons for not winding up the company for it becomes unfair to the members.

In Hanuman Prasad Bagri v. Bagress Cereals (P) Ltd.13, the Supreme Court has interpreted Section 397(2) of the 1956 Act and observed that in order to be successful to wind up a company on just and equitable ground, the petitioners have to make a case for it. If the facts fall short of the case set out for winding up a company on just and equitable grounds, no relief can be granted to the petitioners. The party who is opposing winding up can demonstrate that there are no just and equitable grounds for winding up and the winding up would be unfair to them.

In N.R. Murty v. Industrial Development Corpn. of Orissa Ltd.14, the Court held that the company’s affairs were conducted in a manner oppressive to some part of the members and against the interest of the company and on the facts, winding-up order under just and equitable grounds should ordinarily be made, however, taking into account that the factory is almost complete and with some more investments, the company can go into production. It would neither be in public interest nor in the interest of the members to wind up the company, as winding up would unfairly prejudice the members.

In Ebrahimi v. Westbourne Galleries Ltd.15, it was held that there are three instances to grant winding-up order on just and equitable ground—

(i) When the main object of the company has failed and it becomes impossible for the company to achieve the object.

(ii) Due to the shareholders’ dispute, a deadlock situation arises.

(iii) When there is complete loss of confidence amongst the shareholders.

Thus, the abovestated are the situation wherein the Tribunal can grant winding-up order on just and equitable ground.

In Suryakant Gupta v. Rajaram Corn Products (Punjab) Ltd.16, an appeal was filed for winding up of the company on ground of mismanagement. The Court while remitting the case back to CLB held that if neither the respondents nor the third party is willing to purchase shares at valuation so made, having regard to the finding that there are just and equitable circumstances for winding up of the company, the company shall be ordered to be wound up.

The Supreme Court in a landmark judgment17, has also observed the fact that just and equitable doctrine can only be invoked under two circumstances i.e. functional deadlock and quasi-partnership amongst members.

However, apart from the abovementioned circumstances, there could be other situations such as diversion of funds, large scale siphoning of money, repeated acts ultravires the articles of association (AoA) which are acts of oppression and require invocation of just and equitable doctrine for claiming relief under the Act.18

In Rajahmundry Electric Supply Corpn. Ltd. v. A. Nageswara Rao19, the Court held that where it is established that the directors have misappropriated the funds of the company and nothing more, an order of winding up would not be just and equitable because such an order must operate harshly on rights of shareholders.

In the recent landmark ruling, the Supreme Court of India in Tata Consultancy Services Ltd. v. Cyrus Investments (P) Ltd.20, has reiterated the position that removal of a person from the post of executive chairman/director could not be termed as oppressive/prejudicial. The Court held that the respondents neither pleaded nor proved functional deadlock for invoking just and equitable ground for winding up. As the majority shareholders of Tata Consultancy Services are owned by philanthropic trusts and the dividends are being used for charitable purposes, it would not otherwise be just and equitable to wind up the company and leave the charitable trusts to starve to death. Thus, no case of oppression and winding up on just and equitable ground was proved for granting any relief under the 2013 Act.

Thereafter, Cyrus Investment Pvt. Ltd. has approached the Court for review of the judgment. However, on 18-5-2022, the said review petition was dismissed by the Supreme Court21.

Section 242 of the 2013 Act places heavy burden on petitioning shareholders. They have to prove two conditions before claiming a relief—

1. The affairs of the company are oppressive and prejudicial to any member or in public interest.

2. Winding up the company would unfairly prejudice such members, but that the facts would otherwise justify winding up of the company on just and equitable ground.

The first requirement is the substantive limb and second requirement is the conditional limb and it is essential to prove both the situations for claiming relief. The second condition, is however, narrowing down the scope of the oppression remedy as it is tied to the winding up of the company.

The linkage of “just and equitable” cause for winding up with the remedy for oppression and mismanagement has made the alternative remedy of oppression all more complex. The section has imported the notions and principles of law of winding up on the “just and equitable” ground, founded on partnership as a precondition for granting relief. It is not possible that every case of oppression must have “just and equitable” grounds for winding up of the company. A heavy burden is cast upon the minority shareholders to satisfy the court to get relief for oppression22.

Conclusion

Despite the criticism revolving around the clause “winding up on just and equitable ground” in the oppression remedy, the Indian law seems unchanged. When compared, in England, such a clause was eliminated after the recommendations by Jenkins Committee in 196223 and the oppression remedy was turned into unfair prejudice remedy, thereby making it an independent remedy. Thus, the position in England now is that the petitioning shareholders need not demonstrate the existence of just and equitable ground for winding up the company to seek remedy for unfair prejudice24.

However, in India, the clause still exists in the provisions and more so after the 2013 Act, the just and equitable clause is applicable to mismanagement as well. The current position is that this condition is prerequisite for oppression, prejudice and mismanagement as well which is a dichotomous approach and now the petitioning shareholders need to demonstrate the existence of just and equitable ground for winding up the company in case of mismanagement, an onus they did not carry in 1956 Act.25 These conditions are unwanted, unnecessary and are hindering in administration of justice to minority shareholders.

Thus, Section 242(1) requires amendment, and the phrase “the facts would justify the making of a winding-up order on the ground that it was just and equitable that the company should be wound up” should be eliminated from the section. The removal of the phrase will lessen the burden of the petitioning shareholders for demonstrating winding-up circumstances and thus, the remedy for oppression and mismanagement can be granted effectively.

† Legal Officer at Apollo Med Skills Limited, Hyderabad; LLM from NALSAR University of Law, Hyderabad.

1. Companies Act, 2013, Ss. 241, 242, 243 and 244.

2. Umakanth Varottil, “Unpacking the Scope of Oppression, Prejudice and Mismanagement under the Companies Act, 2013” (2020) 6 SCC J-1.

3. 1924 AC 783.

4. 1924 SC 83 [Scotland].

5. Mohanlal Ganpatram v. Shri Sayaji Jubilee Cotton and Jute Mills Co. Ltd., 1964 SCC OnLine Guj 66.

6. 1993 SCC Online Ker 441. .

7. Companies Act, 1956, S. 397.

8. Companies Act, 1956, S. 398.

9. Companies Act, 2013.

10. Vinod Kothari Consultants, “Supreme Court Ruling in the Tata-Mistry Case”,  dt. 5-4-2021, <https://vinodkothari.com/2021/04/supreme-court-ruling-in-the-tata-mistry-case/>.

11. AIR 1965 SC 1535.

12. 2003 SCC Online Bom 1128.

13. (2001) 4 SCC 420.

14. (1977) SCC Online Ori 84.

15. 1973 AC 360 : (1972) 2 WLR 1289.

16. 2009 SCC OnLine P&H 11560. .

17. Tata Consultancy Services Ltd. v. Cyrus Investments (P) Ltd., (2021) 9 SCC 449.

18. Jaimin R. Dave, “Tata Consultancy Services Limited v. Cyrus Investments Pvt. Ltd.: A Magna Carta on Law of Oppression and Mismanagement”, [2021] 127 taxmann.com 319.

19. AIR 1956 SC 213.

20. (2021) 9 SCC 449.

21. Cyrus Investments (P) Ltd. v. Tata Consultancy Services Ltd., 2022 SCC OnLine SC 747.

22. Paridhi Jain, “Critical Review: Linkage of Winding Up Clause with Oppression Remedy” [2020] 117 taxmann.com 885.

23. Board of Trade, Report of the Company Law Committee (June 1962) at Para 201.

24. Companies Act, 2006, Ss. 994 to 996 [UK].

25. Umakanth Varottil, “Unpacking the Scope of Oppression, Prejudice and Mismanagement under the Companies Act, 2013” (2020) 6 SCC J-1.

Case BriefsSupreme Court

Supreme Court: After some NEET-PG 2021 candidates, who could not get admission despite participating all the rounds of counsellings, sought for Special Stray Round of counselling with respect to the unfilled 1456 seats, the bench of MR Shah* and Anirudhha Bose, JJ has refused the request after observing that,

“The process of admission and that too in the medical education cannot be endless. It must end at a particular point of time. The time schedule has to be adhered to, otherwise, ultimately, it may affect the medical education and the public health.”

The NEET-PG 2021 examination was conducted on 11.09.2021. The result was declared on 28.09.2021. As per the earlier counselling scheme, there were two rounds of counselling for All India Seats as well as State Quotas seats respectively. However, as per the modified counselling scheme, counselling is to be carried in four rounds and no seats were to be reverted to States. It is important to note that at the end of the four rounds of counselling, each for All India Quota and State Quotas (in all eight rounds of counselling) and thereafter one another round of counselling was conducted, out of 40,000 seats, 1456 seats have remained vacant, out of which approximately, more than 1100 seats are non-clinical seats, which every year remain vacant.

The Supreme Court observed that,

“… when the Medical Counselling Committee and the Union of India have to adhere to the time schedule for completing the admission process and when the current admission of NEET-PG-2021 is already behind time schedule and ever after conducting eight to nine rounds of counselling, still some seats, which are mainly non-clinical courses seats have remained vacant and thereafter when a conscious decision is taken by the Union Government/the Medical Counselling Committee, not to conduct a further Special Stray Round of counselling, it cannot be said that the same is arbitrary.”

The Court also took note of the fact that after closure of the last round of counselling on 07.05.2022, the entire software mechanism has been closed and the security deposit is refunded to the eligible candidates. The admission process for NEET-PG-2022 has already begun, the results for the NEET-PG-2022 has been announced on 01.06.2022 and as per the time schedule, the counselling process is going to start in July, 2022.

Noticing that if one additional Special Stray Round of counselling is conducted now, as prayed, in that case, it may affect the admission process for NEET-PG-2022, the bench held,

“The decision of the Union Government and the Medical Counselling Committee not to have Special Stray Round of counselling is in the interest of Medical Education and Public Health. There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health.”

[Dr. Astha Goel v. Medical Counselling Committee, 2022 SCC OnLine SC 734, decided on 10.06.2022]

*Judgment by: Justice MR Shah

Counsels

For Petitioners: Senior Advocates Rachna Shrivastava and A.D.N. Rao, Advocates Avijit Mani Tripathi and Kunal Cheema

For UOI: ASG Balbir Singh,

For Medical Counselling Committee and National Board of Examinations: Advocate Gaurav Sharma

Know thy Judge

“Zero tolerance towards corruption should be the top-notch priority for ensuring system based and policy driven, transparent and responsive governance. Corruption cannot be annihilated but strategically be dwindled by reducing monopoly and enabling transparency in decision making. However, fortification of social and moral fabric must be an integral component of long-term policy for nation building to accomplish corruption free society.”

– Justice Ajay Rastogi

State of Gujarat v. Mansukhbhai Kanjibhai Shah,

2020 SCC OnLine SC 412

Justice Ajay Rastogi was born on 18th June 1958 in Jaipur to Shri. Harish Chandra Rastogi. He followed the footsteps of his father and joined the bar in 1982. During the years of his practice at Rajasthan High Court, he practised in different spheres of law but was specialized in service and labour laws.

♦Did you know? Justice Ajay Rastogi’s father Late Harish Chandra Rastogi was an eminent civil lawyer in Rajasthan High Court.

Justice Rastogi took oath as a Judge in the Rajasthan High Court on 02-09-2004. He was officiated as the Administrative Judge of the Rajasthan High Court on 19-07-2014 and continued till his elevation as Chief Justice of the Tripura High Court.

After his appointment as a judge of the Rajasthan High Court, Justice Rastogi remained Executive Chairman of the State Legal Services Authority from 14-10*2013 to 18-10-2016.

♦Did you know? Under his stewardship, Rajasthan Legal Services Authority won the National Award from National Legal Services Authority for three consecutive years.[1]

Justice Rastogi was also the Acting Chief Justice of the Rajasthan High Court w.e.f. 14-04-2016 to 13-05-2016.

Justice Ajay Rastogi was recommended by the Collegium for being appointed as Chief Justice of the High Court of Tripura on February 1, 2018 and took oath on 01-03-2018. He was elevated as Judge of the Supreme Court on 02-11-2018.

♦Did you know? The collegium had superseded Justice Maheshwari in October, 2018 when it recommended the elevation of the then Chief Justice of the Tripura High Court, Justice Ajay Rastogi — originally from the Rajasthan High Court — to the Supreme Court.[2]

 Career as an Advocate

Justice Ajay Rastogi practised in the Rajasthan High Court in Constitutional, Service and Labour Laws etc. His field of specialisation was Service and Labour Law.

Justice Rastogi was nominated as the standing counsel for the Rajasthan High Court in the year 1990 and continued as such till his elevation in the year 2004. He also worked as the standing counsel for Rajasthan Financial Corporation, Jaipur, Board of Secondary Education, Rajasthan, Ajmer, and of various Banking Institutions, Electricity Board & Educational Institutions etc.[3]

Justice Rastogi was also appointed President of the Rajasthan High Court Bar Association at Jaipur in the year 1999-2000.

Justice Ajay Rastogi had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:

Notable Judgments at Supreme Court

The bench of NV Ramana and Ajay Rastogi, JJ, has agreed to examine the validity of a newly enacted law which makes the practice of instant divorce through triple talaq among Muslims a punishable offence entailing imprisonment of up to three years.[4]

Ajmer Vidyut Vitran Nigam Ltd. v. Hindustan Zinc Ltd., 2022 SCC OnLine SC 208

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., held that a modification changing tariff for inadvertent drawal from temporary supply rate to the regular supply rate cannot be considered to be a mere clarification and is rather a substantial alteration which cannot be made applicable retrospectively.

Read More…

Pawan Kumar v. Union of India, 2022 SCC OnLine SC 532

The Division Bench of Ajay Rastogi* and Sanjiv Khanna, JJ., reversed the impugned order of Delhi High Court whereby the High Court had upheld the dismissal order of appellant owing to suppression of information/false declaration in the verification form regarding criminal antecedent.

The Court held that the effect of suppression of material/false information involving in a criminal case is that it is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keep in view the objective criteria and the relevant service rules, while taking appropriate decision regarding continuance/suitability of the employee into service.

Read More…

P. Ranjitharaj v. State of T.N., 2022 SCC OnLine SC 508

The Division Bench comprising Ajay Rastogi and Bela M. Trivedi, JJ., reversed the impugned judgment of the Madras High Court and held that when the delay in appointment is attributable to the State, it would not deprive the employees of their right to become the member of the Pension Scheme, 1978 merely on the ground that the Scheme was not applicable to their year of appointment, particularly when other candidates who participated in the common process of selection were availing the same.

Read More…

Union of India v. Ex. Constable Ram Karan, 2021 SCC OnLine SC 1041

The Division Bench of Ajay Rastogi* and Abhay S. Oka, JJ.,    set aside the judgment of the Delhi High Court wherein it had substituted the penalty of removal from service with confinement of respondent from 1.00 p.m. to 10.00 p.m. in quarter guard jail without noticing the mandate of the nature of punishments indicated under Section 11(1) of the Central Reserve Police Force Act, 1949 (CRPF). The Bench expressed,

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

Read More…

Sudhir Kumar Atrey v. Union of India, 2021 SCC OnLine SC 971

The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed dismay over the manner adopted by the Western Command, Military Engineering Service in making appointments from the select panel of 29-06-1983 after a lapse of 4-5 years in the year 1987-1988.

“…the manner in which the appointments were made from the select panel of 1983 after it has outlived its life in the year 1987-1988 and ordinarily it was not open to be operated upon and such appointments are nothing but a clear abuse of the discretion vested with the competent authority.”

Read More…

V. N. Patil v. K. Niranjan Kumar, 2021 SCC OnLine SC 172

The bench of Indu Malhotra and Ajay Rastogi*, JJ., held that the aim of every Court is to discover the truth but it should be done judiciously.

The Court opined that though it is not necessary to record elaborate reasons in every case, the Courts should do so in order to facilitate the superior Courts to understand what weighed in with the Court to reverse the finding of the lower court.

“Wider the power, greater is the necessity of caution while exercise of judicious discretion”

Read More…

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Rachna v. Union of India, 2021 SCC OnLine SC 140

While refusing the plea of last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 who had sought for an extra attempt to clear the exam in the wake of the COVID-19 pandemic, the bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi*, JJ held that allowing extra attempt in such a case would set a precedent and also have cascading effect on examinations in other streams.

“… merely because the present petitioners made a complaint to this Court, cannot be taken into isolation for the purpose of seeking additional chance/attempt in the backdrop of Covid-19 pandemic, which has been faced by not only the candidates appeared in Examination 2020 but by the candidates appeared in the various examinations/recruitment tests held by the State Commissions or by other recruiting agencies and by and large, every member of the society in one way or the other but that does not in any manner give legitimate right to the petitioners to claim additional benefit/attempt which is otherwise not permissible under the scheme of Rules 2020.”

Read More…

While discussing its related to issuing mandamus to frame policy, the Court held that the Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different and Courts cannot issue mandamus to frame policy.

Read More…

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Gauri Shankar v. State of Punjab, 2021 SCC OnLine SC 96

The Division Bench of Indu Malhotra and Ajay Rastogi*, JJ., confirmed punishment of life imprisonment for remainder of natural life awarded to a man accused of murdering two minor children aged 4 years and 2 years in brutal manner by administering celphos to them.

The Court observed that a trial court while sentencing an accused to life imprisonment cannot order that such imprisonment is for the remainder of his/her natural life. The power only lies in the hand of High Courts and the Supreme Court to direct the same.

 “It is true that the punishment of remainder of natural life could not have been imposed by the learned trial judge but after looking into the entire case, we consider it appropriate to confirm the sentence of imprisonment for life to mean the remainder of natural life while upholding the conviction under Section 302 IPC.”

Read More…

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Sudipta Chakrobarty v. Ranaghta SD Hospital, 2021 SCC OnLine SC 107

Criticising the National Consumer Disputes Redressal Commission (NCDRC) for its practice of passing ‘reasons to follow’ orders, the bench of Indu Malhotra and Ajay Rastogi, JJ has asked the President of the NCDRC to take necessary steps so that this practice is discontinued, and the reasoned Judgment is passed along with the operative order.

The Court also observed that in all matters where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

Read More…

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Soumitra Kumar Nahar v. Parul Nahar, (2020) 7 SCC 599

“In a custody battle, no matter which parent wins but the child is always the loser”

In a case involving prolonged Court battle over child custody rights, the Division bench of AM Khanwilkar and Ajay Rastogi*, JJ., held that the Courts should decide the issue of custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle.

“Rights of the child need to be respected as he/she is entitled to the love of both the parents. Even if there is a breakdown of marriage, it does not signify the end of parental responsibility.”

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Pankjeshwar Sharma v. State of J&K, 2020 SCC OnLine SC 984

“Negative equality cannot be claimed to perpetuate further illegality”

A 3-Judge Bench comprising of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi*, JJ. held that any appointments made deviating from merit in exceptional cases can be justified, like in instant case viz. to give quietus to litigation, however such appointments would be irregular appointments, though not illegal and the candidates left out of merit list has no right to claim the same benefit which was provided to some other candidates on basis of some erroneous concession granted by the State. The Court restated that negative equality cannot be claimed to perpetuate further illegality.

“In a situation where the posts in excess of those advertised had been filled up in extraordinary circumstances, instead of invalidating the excess appointments, the relief could be moulded in such a manner so as to strike a just balance keeping the interest of the State and the interest of the person seeking public employment depends upon the facts of each case for which no set standard can be laid down.”

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Prerit Sharma v. Bilu B.S., 2020 SCC OnLine SC 961

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ., by passing an interim order directed that there will be no reservation for to in-service doctors in Super Specialty Medical Courses for the academic year 2020-2021.

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IN RE: CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2020 SCC OnLine SC 1026

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ., has issued directions to ensure education of children in Child Care Institutions which has suffered due to the COVID-19 pandemic.

Read more…

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State of Odisha v. Dilip Kumar Pratihari, 2020 SCC OnLine SC 603

The 3-judge bench of S.K. Kaul, Ajay Rastogi and Aniruddha Bose, JJ., in an application seeking condonation of delay of 587 days filed by State of Odisha, had imposed a cost of Rs. 50, 000 and directed that an enquiry be conducted and cost be recovered from the delinquent officer.

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Anun Dhawan v. Union of India, 2020 SCC OnLine SC 165

Displeased with the Centre and the States on repeated failures by them to file their replies on a PIL seeking setting up of community kitchens across the country, the 3-judge bench of N V Ramana, Ajay Rastogi and V Ramasubramanian, JJ., came down heavily and imposed cost of Rs. 5 lakh on them for not complying with its directions to file their affidavits on a.

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

The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ while upholding the Kerala High Court’s decision, held that the time-limit to take action by the District Magistrate has been fixed to impress upon the authority to take possession of the secured assets. However, inability to take possession within time-limit does not render the District Magistrate functus officio. Time-limits stipulated in the section, are directory and not mandatory.

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

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

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

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

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

“The unrelenting continuation of this immoral practice, the globally shared understanding that it constitutes a form of violence against women, and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our Constitution are all factors that categorically establish pre­natal sex­ determination as a grave offence with serious consequences for the society as a whole.”

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Dakshin Haryana Bijli Vitran Nigam Ltd. v. Navigant Technologies Pvt. Ltd., 2021 SCC OnLine SC 157

While deciding the question as to whether the period of limitation for filing the Petition under Section 34 of the Arbitration and Conciliation Act, 1996 would commence from the date on which the draft award is circulated to the parties, or the date on which the signed copy of the award is provided, the bench of Indu Malhotra* and Ajay Rastogi, JJ., held that the period of limitation for challenging arbitral award can only commence from date of receipt of signed copy and not from the receipt of draft

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Priti Saraf v. State of NCT of Delhi, 2021 SCC OnLine SC 206

The bench of Indu Malhotra* and Ajay Rastogi, JJ, while discussing the exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC in quashing a criminal proceeding, reiterated that the existence of civil remedies by itself is not a ground to quash criminal proceedings.

The Court held that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court.

“…the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”

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BSNL v. Nortel Network India Pvt. Ltd, 2021 SCC OnLine SC 207

A bench comprising of Indu Malhotra* and Ajay Rastogi, JJ., held that the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963.

The Court opined that the period of limitation will begin to run from the date when there is failure to appoint the arbitrator. Moreover, the Court may refuse to make the reference in rare and exceptional cases, where the claims are ex facie time-barred and it is manifest that there is no subsisting dispute.

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Vikas Kishanrao Gawali v. State of Maharashtra, 2021 SCC OnLine SC 170

Deciding the issue whether reservation for OBCs can exceed upper ceiling of 50% in local elections for entirely scheduled areas, the 3-Judge Bench comprising of A.M. Khanwilkar*, Indu Malhotra and Ajay Rastogi, JJ., held that the total seats reserved in favour of SC/STs and OBCs in local bodies should not exceed 50 percent of the total seats.

The Court read down Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which mandated that the State should provide 27 percent reservation for OBCs as it ultra vires the provisions of Articles 243D and 243T including Articles 14 and 16 of the Constitution.

“The challenge to the validity of Section 12(2)(c) of the 1961 Act is negatived. Instead, that provision is being read down to mean that reservation in favor of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favor of SCs/STs/OBCs taken together.”

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Pravat Chandra Mohanty v. State of Odisha, 2021 SCC OnLine SC 81

“When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern.”

In a case where two police officers who had mercilessly beaten a man leading to his eventual death back in 1985, the Division Bench comprising of Ashok Bhushan* and Ajay Rastogi, JJ., held that Custodial violence a crime against humanity. The Court considered the fact that both the appellants were more than 75 years of age therefore reduced the sentence awarded for conviction under Section 324 IPC to six months instead of one year and directed to pay a compensation of Rs.3.5 Lakhs each to the legal heir of the deceased in addition to the compensation awarded by the High Court.

 “The custodial violence on the deceased which led to the death is abhorrent and not acceptable in the civilized society. The offence committed by the accused is crime not against the deceased alone but was against humanity and clear violations of rights guaranteed under Article 21 of the Constitution.”

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

A 3-judge bench comprising of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ, in a case where abuses were hurled by a person of upper caste at a person belonging to Scheduled Caste due to a property dispute between them, held that no offence had been committed under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 because the insulting or intimidating of a person belonging to a SC/ST community will not be counted as offence under the Act unless such insult or intimidation is on account of them being a member of the SC/ST community.

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

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Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469

“To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army –men and women – who serve as equal citizens in a common mission.”

In a path-breaking judgement, the Division Bench comprising of Dr. DY Chandrachud* and Ajay Rastogi, JJ has held that blanket non-consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law and violates the guarantee of equality under Article 14 of the Constitution.

The Court ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

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Union of India v. Lt. Cdr. Annie Nagaraja, 2020 SCC OnLine SC 326

“A hundred and one excuses are no answer to the constitutional entitlement to dignity, which attaches to every individual irrespective of gender, to fair and equal conditions of work and to a level playing field.”

In yet another major verdict addressing the gender stereotypes and rights of women, the Division Bench of Dr. DY Chandrachud* and Ajay Rastogi, JJ., lifted the statutory bar on the engagement or enrolment of women in the Indian Navy and directed the Centre to grant Permanent Commission to women Navy officers.

“Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are ill-suited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.”

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Hindustan Unilever Ltd. v. State of Madhya Pradesh, 2020 SCC OnLine SC 905

The 3-judge bench comprising of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ., in a case relating to the adulteration of Dalda Vanaspati Khajoor Brand Ghee dating back to 1989 wherein the company was absolved of all charges but prosecution against it’s nominated office Nirmal Sen was continued, held that in the absence of the Company, the Nominated Person cannot be convicted or vice versa i.e. either both of them are convicted or none of them.

“Since the Company was not convicted by the trial court, we find that the finding of the High Court to revisit the judgment will be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as unsustainable.”

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Umedsinh P Chavda v. Union of India, 2020 SCC OnLine SC 500

In a public interest litigation (PIL) seeking ban on sale of Coca cola, Thums Up and Soft Beverages, the 3-judge bench of Dr. DY Chandrachud, Hemant Gupta and Ajay Rastogi, JJ., has imposed a fine of Rs 5,00,000 on the petitioner for abuse of process.

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Joint Labour Commissioner and Registering Officer v. Kesar Lal, 2020 SCC OnLine SC 327

The bench of Dr. DY Chandrachud* and Ajay Rastogi, JJ has held that a service rendered at no matter how less consideration would still be a ‘service’ under Consumer Protection Act.

“So long as the service which has been rendered is not rendered free of charge, any deficiency of service is amenable to the fora for redressal constituted under the Consumer Protection Act 1986.”

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Notable Judgments at High Court

Krishna Sarkar v. Government of Tripura, 2018 SCC OnLine Tri 209

In a writ petition for the claim of compensation in a medical negligence case, Ajay Rastogi*, CJ., refused to quantify compensation on mere allegation of ‘Medical Negligence’.

“…the law will take its own course but merely on an allegation of a medical negligence it cannot be established unless the parties are being permitted to lead evidence in support of their respective claim and certainly, on the disputed question of fact of alleged medical negligence…”

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Tapas Chakraborty v. High Court of Tripura, 2018 SCC OnLine Tri 57

The Division Bench of Ajay Rastogi, C.J., and S. Talapatra, J., held that once a FIR is quashed under Section 482 CrPC, no inference should be drawn to impute any adverse antecedents which in any way may deprive an individual from seeking public employment.

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Sudhir Debbarma v. State of Tripura, 2018 SCC OnLine Tri 94

“The object of the die-in-harness scheme is to provide solace to the dependent family members of the deceased employee who have lost their breadwinner and left them to destitute and in financial crunch to be mitigated at the earliest”

In a case dealing with providing compassionate appointment and how these matters are being dealt in very insensitive or casual manner by the Government officials, Ajay Rastogi*, CJ., imposed cost of Rs. 50,000/- upon the respondents authorities in taking the matter so casually in deciding the application under the die-in-harness scheme and directed the authority to recover the same from the concerned defaulting officers who are so casual in disposing of the application.

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Abhyutthanam Society. v. State of Rajasthan, 2016 SCC OnLine Raj 1947

In a public interest litigation filed for ensuring effective implementation of the Right of Children to Free and Compulsory Education Act, 2009, the Division Bench of Ajay Rastogi*, A.C.J., and S. Talapatra, J., held that the State Government do not holding any authority to re-write the definition of Sec.2 (d) of the Right to Education Act, 2009.

The Court also directed the State government to include children belonging to OBC & SBC categories whose parents’ annual income not exceeding Rs.2.50 lakhs as part of the notification dated 28.3.2016.

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Ganga Devi v. State, 2014 SCC OnLine Raj 1906

The Division Bench comprising of Ajay Rastogi and J.K. Ranka, JJ., while taking note of the fact that the appellant had served more than fourteen and a half years of sentence in jail without parole and that she was aged about 79 years, granted her permanent parole.

“a liberal view is to be taken at least in this particular case when admittedly, the convict-petitioner is a woman and is almost touching the age of 80 years and one never knows longevity of life but with her age, at least in this fag end of her life, she needs company of her children and so also grand children if any and spend rest of her life peacefully with them.”

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Jayant Sharma v. State of Rajasthan, 2012 SCC OnLine Raj 3000

“The government employees have neither fundamental nor statutory or moral right to resort to strike.”

While deciding the issue whether making respondents eligible for Pre P.G. Medical Examination against seats reserved for in service category by granting extra ordinary leave without pay for 32 days period for which they remained on strike amounts to misconduct, Justice Ajay Rastogi* held that whether it amounts to misconduct or not, can only be established after the disciplinary enquiry contemplated under RCS (CCA) Rules is conducted

The Court while acknowledging that the service of the medical profession is a noble service, opined that the government employees have neither fundamental nor statutory or moral right to go on strike.

“The impact of such strikes either by students and medical community who are directly connected with the hospitals is totally different from the strike in factory or trading establishment, as the ailing patients cannot be left waiting or unattended. Hospital activity is not the same as the lifeless functioning of machines in a factory or movement of trading material or other forms of commerce where workmen are being provided certain protection under the provisions of the Industrial Disputes Act. Almost all the activities in relation to hospital are such as require constant and incessant attending and care, unlike financial losses; the loss of life or limb cannot be recouped.”

†Ritu Singh, Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

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

[2] https://theprint.in/judiciary/scs-newest-judges-had-set-aside-aap-mla-disqualification-ruled-fashion-shows-are-taxable/179680/

[3] https://thc.nic.in/FCJprofile-HAR.html

[4] https://www.scconline.com/blog/post/2019/08/23/triple-talaq-sc-issues-notice-to-centre-on-plea-challenging-the-new-law/

Know thy Judge

Born on 17-06-1958, Justice Kuttiyil Mathew Joseph studied Law at the Government Law College, Ernakulam, Kerala and got enrolled as a lawyer in 1982. He started his legal practice from the Delhi High Court in Civil and Writ matters. Later on, he shifted his practice to Kerala High Court in 1983 and became a permanent member of Kerala High Court Advocates Association. After practicing for about two decades Justice K.M. Joseph became Permanent Judge of the High Court of Kerala on 14-10-2004.[[1]]

♦Did you know? Justice K.M. Joseph is the son of K. K. Mathew, former Supreme Court judge and Chairman of the 10th Law Commission.[[2]]

He was sworn in as the Chief Justice of Uttranchal High Court on 31-07-2014. Carrying the legacy of his father Justice K.M. Joseph got elevated as the Judge of Supreme Court on 07-08-2018.

♦Did you know? Justice K.M. Joseph is one of the longest serving High Court Chief Justices to be elevated to the Supreme Court.[[3]]

Justice K.M. Joseph is due to retire on 16-06-2023.

Career as an Advocate

Justice K.M. Joseph had marked his presence in many remarkable cases as an advocate. Some of the significant cases represented by him are:

 Shanti Lal Mehta v. Union of India, 1982 SCC OnLine Del 303 

 Anirudhan v. Government of Kerala, 1999 SCC OnLine Ker 293

 State of Kerala v. T.V Anil, 2001 SCC OnLine Ker 328 

 Thomas v. Mathew N.M, 1995 SCC OnLine Ker 151

 Mathew v. Union of India,  2003 SCC OnLine Ker 12′

♦Did you know? Justice K.M. Joseph had been appointed as Amicus Curiae in Mathew Varghese v. Rosamma Varghese, when the Kerala High Court was addressing the question: Whether a Christian father is under an obligation to maintain his minor child?[[4]] 

Remarkable Judgments as the Judge of Supreme Court

Union of India v. Rajendra N. Shah, 2021 SCC OnLine SC 474

A 3-Judge Bench has held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B is ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. At the same time, the Court by a majority of 2:1, followed doctrine of severability in declaring that Part IX-B is operative insofar as it concerns Multi-State Cooperative Societies both within various States and in Union Territories.  R.F. Nariman and B.R. Gavai, JJ. formed the majority. Whereas K.M. Joseph, J. penned a separate opinion dissenting partly with the majority. He expressed inability to concur with the view on the application of doctrine of severability.

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 P.B. Nayak v. Bhilai Steel Plant,  2021 SCC OnLine SC 970

The Division Bench of K.M Joseph* and Pamidighantam Sri Barasimha, JJ., held that mere fact that food, refreshment and even liquor is being provided in Non-Residential Clubs by catering services, it will not make the club premises ‘wholly or principally’ related to supply of meals and refreshments to make it fall within the purview of M.P. Shops and Establishments Act, 1958.

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Rathish Babu Unnikrishnan v. State (NCT of Delhi), 2022 SCC OnLine SC 513

While rejecting an appeal to quash proceedings under Section 138 of the N.I. Act, 1881 at pre-trial stage, the Division Bench comprising of K.M. Joseph and Hrishikesh Roy*, JJ., held that when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties.

The Bench upheld the impugned judgment of Delhi High Court wherein the High Court had – while acting as a quashing court under Section 482 of CrPC – refused to quash proceedings at pre-trial stage. The Bench observed,

“The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested.”

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Regional Transport Authority v. Shaju, 2022 SCC OnLine SC 209

The Division Bench comprising of K.M. Joseph and Pamidighantam Sri Narasimha*, JJ., held that Rule 174(2)(c) of the Kerala Motor Vehicle Rules,1989 is valid and salutary and does not go beyond the scope of Section 83 of the MV Act, 1988. While interpreting the expression “same nature” the Bench observed that such expressions are better kept open ended to enable courts to subserve the needs of changing circumstances. The Bench expressed,

“…the assumption in the impugned judgment that the expression “same nature” is confined only to, mean “a bus by bus, a mini-bus by mini-bus and not bus by a minibus….” is not a correct way to read the provision. There is no need to restrict the meaning of an expression same nature.”

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Amar Nath v. Gian Chand, 2022 SCC OnLine SC 102

The Division Bench of K.M. Joseph* and Pamidighantam Sri Narasimha, JJ., held that mere writing the word “cancelled” or drawing a line would not render Power of Attorney null and void as there must be cancellation and it must further be brought to the notice of the third party at any rate.

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CBI v. Uttamchand Bohra, 2021 SCC OnLine SC 1208

While dealing with a case of abetment and conspiracy for commission of criminal misconduct by public servant, the Division Bench of K.M. Joseph and S. Ravindra Bhat*, JJ., held that Section 13 of Prevention of Corruption Act cannot be invoked against a non-public servant. Clarifying the standard of suspicion to make out a prima facie case for conspiracy, the Bench stated,

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

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Korukonda Chalapathi v. Korukonda Annapurna Sampath Kumar, 2021 SCC OnLine SC 847

The Division Bench of K.M Joseph* and S. Ravindra Bhat, JJ., held that an unregistered family settlement document is admissible to be placed “in” evidence if it does not by itself affect the transaction though the same cannot be allowed “as” evidence. The Bench expressed,

“Merely admitting the Khararunama containing record of the alleged past transaction, is not to be understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question.”

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 Commissioner of Police v. Raj Kumar, 2021 SCC OnLine SC 637

The Bench of K.M. Joseph and S. Ravindra Bhat, JJ. while addressing the matter, observed that,

“Public service – like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service.”

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 Manohar Lal Sharma v. Narendra Damodardas Modi, 2018 SCC OnLine SC 2807

A Bench comprising of CJ Ranjan Gogoi and S.K. Kaul and K.M. Joseph, JJ. dismissed the petitions pertaining to seeking probe in ‘Rafale Deal’ by stating that “we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.”

The present judgment given by the 3-judge bench of the Supreme Court dealt with 4 writ petitions in regard to procurement of 36 Rafale Fighter Jets for the Indian Airforce.

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Manish Kumar v. Union of India, 2021 SCC OnLine SC 30

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

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

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

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

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

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Kishorechandra Wangkhemcha v. Union of India, 2021 SCC OnLine SC 374

The 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has issued notice in a plea seeking declaration of Section 124-A IPC to as unconstitutional and void.

The order came after Senior Advocate Colin Gonalves submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 requires reconsideration.

The notice is returnable on July 12, 2021.

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Iffco Tokio General Insurance Co. Ltd. v. Pearl Beverages, 2021 SCC OnLine SC 309

In an interesting case, the 3-judge bench of UU Lalit, Indira Banerjee and KM Joseph, JJ has held that while in case where there is a blood test or breath test, which indicates that there is no consumption at all, undoubtedly, it would not be open to the insurer to set up the case of exclusion, however, the absence of test may not disable the insurer from establishing a case for exclusion from liability on ground of drunk driving.

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P. Mohanraj v. Shah Brother Ispat Pvt. Ltd.,2021 SCC OnLine SC 152

The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has, analysing various provisions under the Negotiable Instruments Act, the Court concluded that the proceedings under Section 138 are “quasi-criminal” in nature.

The Court held that

“a Section 138/141 proceeding against a corporate debtor is covered by Section 14(1)(a) of the IBC.”

In a 120-pages long verdict, the Supreme Court tackled the following issues to reach at the aforementioned conclusion:

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Anglo American Metallurgical Coal Pty Ltd v. MMTC Ltd, 2020 SCC OnLine SC 1030

While settling the dispute between Anglo American Metallurgical Coal (AAMC) and MMTC Ltd, the bench of RF Nariman and KM Joseph, JJ had the occasion to explain the concept of “patent” and “latent” ambiguity and held,

“… a “patent ambiguity” provision, as contained in section 94 of the Evidence Act, is only applicable when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense.”

In the said case, the bench has set aside the decision of the division bench of Delhi High Court and has restored the Majority Award dated 12.05.2014 and the Single Judge’s judgment dated 10.07.2015 dismissing the application made under section 34 of the Arbitration Act by MMTC.

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Paramvir Singh Saini v. Baljit Singh, 2020 SCC OnLine SC 983

The 3-judge bench of RF Nariman, KM Joseph and Anirudhha Bose, JJ has directed all the States and UTs to install CCTV cameras in all Police Stations and file compliance affidavits within 6 weeks.

The Court said that the directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and hence, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible.

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Seelan v. Inspector of Police,  2020 SCC OnLine SC 1028

In a 20-year-old case relating to rape of a 6-year-old, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has dismissed the special leave petition filed by the convict, thereby rejecting the contention that since the petitioner has only one hand, it would be physically impossible to have committed an act of rape. The Court said that there is no such impossibility.

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Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824

The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

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Firoz Iqbal Khan v. Union of India, 2020 SCC OnLine SC 737

“An insidious attempt has been made to insinuate that the community is involved in a conspiracy to infiltrate the civil services.”

The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and KM Joseph, JJ has stayed the further telecast in continuation of or similar to the episodes which were telecast on 11, 12, 13 and 14 September, 2020 by Sudarshan news either under the same or any other title or caption. The case deals with telecast of a programme titled ‘Bindaas Bol’ on Sudarshan News which allegedly vilifies the Muslim community by portraying it to be involved in an act of terror or, as it is labeled, “jehad” in infiltrating the civil services of the nation.

Read more…

Notable Judgments at the High Court of Kerala (2004-2014)

Kapico Kerala Resorts (P) Ltd., v. Ratheesh K.R., 2013 SCC OnLine Ker 24580

The Division Bench of K.M. Joseph and K. Harilal, JJ. had ordered to demolish the Kapico Resorts at Panavally in Nediyathuruthu, which was constructed violating Coastal Regulation Zone Rules. The Bench stated, “we cannot ignore the fact that we have also held that the island would fall otherwise in CRZ III and therein the construction would be impermissible. We also notice that in the recommendation of the committee the CRZ on the bank of filtration ponds/pokali fields of Kerala needs to be in CRZ-III. No doubt here the petitioners have a case that constructions could be regularised as it were and also it is important that at any rate property of the island was properly classified for all times”. Admittedly, the company had not sought or got permission for the construction as required under the guidelines.

______________________________________________________________________________

Ratheesh. K.R v. State of Kerala, 2013 SCC OnLine Ker 14359

The Division Bench of K.M. Joseph and K. Harilal, JJ., addressed the controversy involving ediyathuruthu and Vettilathuruthu, once two sleepy islands which lay nestled in the Vembanad Lake which is the longest lake in India and a backwater in the State of Kerala. Is there violation of the Coastal Regulation Zone Notifications issued in the year 1991 and 2011, and is there encroachment on puramboke land and kayal, were the questions which substantially arise for consideration. The Bench held that the Notifications issued were intended to protect the coasts, the environment in general and to achieve the sustainable development, particularly of the fisher folk and other local population. The Notifications were meant to be enforced with full vigour. Circulars had been issued to the local bodies, however, only lip service had been paid if at all to the terms of the Notifications. The Bench remarked that by such callous indifference and consequent blatant violation of the Notifications, a law which was meant to address serious environmental issues which adversely affect the present and future generations, was being completely undermined.

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K.V Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust, 2005 SCC OnLine Ker 504

The 3-judge Bench of J.B Koshy, K.M Joseph and K.R Udayabhanu, JJ., settled the questions of law referred to be decided by the Full Bench:

(i) Whether an appeal will lie against the order of a single Judge passed under Section 24 of the Code of Civil Procedure;

(ii) When such proceedings are under consideration can the learned single Judge pass interim orders; and

(iii) If interim orders are passed by the single Judge, whether appeals to the Division Bench can be filed from such interim orders.

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Rehim v. M.V Jayarajan, 2010 SCC OnLine Ker 3344

The 3-judge Bench of Chelameswar, CJ., A.K Basheer and K.M Joseph, JJ. addressed the questions regarding contempt jurisdiction of the Court and relevant procedures to be followed for the same:

(i) Whether a contempt case such as the one sought to be presented before this Court, which is not either moved by the Advocate General or by a person after duly obtaining consent of the Advocate General can be placed before the High Court on the judicial side or should it be considered by the Chief Justice on the administrative side as opined by a Division Bench of this Court in its order dated 19.2.2007 in an unnumbered Cont. Case (Crl.) of 2007 = 2007 (1) KLT 897 (One Earth One Life v. Sindhu Joy);

(ii) Whether it is competent for the Chief Justice or a Judge nominated by him thereupon to take a decision whether a contempt case should be registered and placed before the appropriate Bench for preliminary hearing…

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Self Financing Para Medical Managements Assn. v. State of Kerala, 2014 SCC OnLine Ker 28526

The Division Bench of K.M Joseph and A.K Jayasankaran Nambiar, JJ., declared that the State Government has no power to fix the fee structure in respect of the para-medical courses conducted by self financing institutions save to the limited extent of ensuring that they were not exploitative in nature and that no capitation fee was charged. It was further declared that any restriction, by the State Government, on the autonomy of the self-financing institutions in the matter of conduct of paramedical courses in the State, would be effected only through enacted law of the State legislature and not through executive orders.

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♦Did you know?  When the Collegium proposed Justice K.M. Joseph’s name  for elevation to the Supreme Court the first time it was rejected by the Union government[5]. It was only after the Collegium reiterated his name a second time that he got elevated to the Supreme Court.[[6]]

As the Chief Justice of High Court of Uttaranchal (2014-2018)

One of the most significant judgment delivered by Justice K.M. Joseph as the CJ of Uttranchal High Court was in Harish Chandra Singh Rawat v. Union of India, 2016 SCC OnLine Utt 502, wherein he had quashed the imposition of President’s Rule in 2016 by the BJP led Union government in the state of Uttarakhand. His decision in this case was of far reaching political implication as it invalidated the President’s rule imposed by the Governor and restored the Harish Rawat led Congress Government in Uttarakhand. It was one of the rare instances where the Court had restored the previous government after striking down the Governor’s rule.[[7]]

†Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 

[1] https://web.archive.org/web/20130628090239/http://www.highcourtofkerala.nic.in/kmjoseph.html

[2]https://www.scobserver.in/judges?id=justice-k-m-joseph

[3] Ibid.

[4] 2003 SCC OnLine Ker 218

[5] https://www.scconline.com/blog/post/2018/04/27/heres-why-centre-asked-the-collegium-to-reconsider-justice-km-josephs-elevation/

[6] https://indianexpress.com/article/who-is/who-is-justice-kuttiyil-mathew-joseph-5152643/

[7] https://www.scobserver.in/judges?id=justice-k-m-joseph

Know thy Judge

“The purpose of the law cannot be to allow the offender to sneak out of the meshes of law”.

Justice Bela M. Trivedi

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

Early life and Legal Career[1]

Justice Bela M. Trivedi was born on 10th June 1960 at Patan, in North Gujarat.  Since her father had a transferable judicial service, she did her schooling at various places. However, Justice Trivedi finished her B. Com – LL.B from the MS University, Vadodara.

As an advocate, Justice Bela Trivedi’s practice in the Gujarat High Court centered around Civil and Constitutional matters for about ten years. Later, on 10th July 1995, she was appointed directly as the Judge, City Civil and Sessions Court at Ahmedabad.

♦Did You Know? It was a happy coincidence that her father was already working as the Judge, City Civil and Sessions Court when she was appointed. The Limca Book of Indian records has recorded the entry in their 1996 edition that ” Father – daughter judges in the same court “.

Serving as a member of the Judicial Services, Justice Bela M. Trivedi also worked in different capacities like Registrar – Vigilance in the Gujarat High Court; CBI Court Judge; Special Judge – Serial Bomb blast matters etc. Justice Trivedi was also deputed as the Law Secretary of the Gujarat State Government between 2004 to 2006.[2]

High Courts

On 17th February, 2011, Justice Trivedi was elevated as the Judge of Gujarat High Court. Later in June 2011 she was transferred to the Rajasthan High Court at the Jaipur Bench. In 2013, Justice Trivedi was confirmed as a Permanent Judge of the Rajasthan HC. Three years later i.e., in February 2016, she was repatriated to the Gujarat High Court.[3]

Some of the important decisions rendered by Justice Bela M. Trivedi during her tenure in the High Courts have been listed below.

Rajasthan High Court

Manohar Lal v. State of Rajasthan, 2012 SCC OnLine Raj 1989

The Division Bench of Narendra Kumar Jain-I and Bela M. Trivedi, JJ., deliberated upon the grievance of the petitioners who were detained on the ground that they were dangerous persons and their activities were prejudicial to the maintenance of public order. The Bench observed that there was no explanation as to what the activities were and what were the reasons for passing the detention order after a delay of more than one year. Since their representations were rejected by a non-speaking order which is a violation of Art. 22(5) of the Constitution and in absence of any germane material for passing the order of detention, the entire order of detention was held as vitiated.

Radhey Shyam v. Radha Mohan Paliwal, 2012 SCC OnLine Raj 2208

While deciding the matter related to C.P.C., Order 22 Rule 5, Sec. 2(11) of CPC regarding determination of Legal Representatives of the deceased, Justice Bela M. Trivedi held that the legatee under the Will, who intends to represent the estate of the deceased testator being on intermeddler with the estate of the deceased, will be a Legal Representative.

Anuj Sharma v. Ram Gopal, 2014 SCC OnLine Raj 140

While deciding the issue concerning appointment of maternal grandfather as guardian of a minor while his natural father is alive, Justice Bela M. Trivedi held that as long as the father of the minor is alive and is not found unfit to be the guardian of the person of the minor, the Court cannot appoint any other person as guardian of the person of such minor.

Jal Mahal Resorts Pvt. Ltd. v. State of Rajasthan, 2015 SCC OnLine Raj 12151

Whether the Collector (Stamps) can review and set aside his own order under the guise of exercising the powers of rectification u/Sec. 52 of the Rajasthan Stamp Act, 1998; Justice Bela M. Trivedi held that, Collector (Stamps) cannot review his own order and such order shall be treated as passed without any authority of law, and therefore illegal. Chief Controlling Revenue Authority has the power to call for the record of any case decided in the proceeding held by the Collector and pass appropriate orders.

G.S. & Company v. Union of India, 2016 SCC OnLine Raj 1357

While dealing with the issue of scope and ambit of judicial review in contractual matters, the Bench of Bela M. Trivedi, J., held that such a scope is very limited and terms of invitation to tender are not open to judicial scrutiny. It was further held that unless the action of tendering authority is found to be malicious and misuse of its statutory powers, the interference of the Court is unwarranted- “Exclusion and inclusion of terms and conditions in the tender is a part of evolutionary process”.

Gujarat High Court

Surat Parsi Panchayat Board v. Union of India, 2021 SCC OnLine Guj 1431

The Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., dismissed a petition which was filed with the sole purpose of securing an appropriate order, direction and/or writ directing the authority to permit the petitioners and its members to perform Dokhmenashini/last rites in Dokhmas of its member having died due to Covid 19, in accordance with their religious practices which is duly protected by the Constitution of India. The Court while dismissing the petition went on to hold that impugned Guidelines issued by the Ministry of Health and Family Welfare considering the prevailing situation of Covid-19, in the larger public interest for the disposal of dead bodies by cremation or burial, could not be said to be violative of any fundamental rights.

“The safety and the welfare of the State is the supreme law as comprehended in the legal maxim – “salus populi suprema lex”. Even the fundamental rights to profess, practice or propagate religion, and the right to manage religious affairs, as enshrined under Articles 25 and 26 of the Constitution of India, are subject to public order, morality and health.”

Read more

Anil Surendrasingh Yadav v. State of Gujarat, 2019 SCC OnLine Guj 2692

A Division Bench of Bela M. Trivedi and A.C. Rao, JJ., dismissed an appeal filed on being aggrieved by the Judgment and order by the Additional Sessions Judge and Special Judge (POCSO), whereby it had convicted the appellant-accused for the offence under Sections 302, 363, 366, 376AB, 377 and 201 of the Penal Code, 1860 and under Sections 3(a), 4, 5(a), 5(r) and 6 of the Protection of Children from Sexual Offences Act, 2012, and had sentenced him to death penalty for the offence under Sections 302, 376AB of the Penal Code and had convicted him of the offences under the Atrocities Act. The Court while dismissing the appeal and confirming the decision of the Special Court stated that the abhorrent and atrocious nature of crime committed by the appellant-accused in a diabolical manner, on the defenseless unprotected girl of 3½ years, without any remorse, has left the Court with no option but to consider the case as the “rarest of rare case” for awarding the punishment of death penalty.

Read more

Suo Motu v. State of Gujarat, 2021 SCC OnLine Guj 850

In the instant matter the Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., directed the State of Gujarat to remain alert despite the falling number of Covid-19 cases and take all necessary actions immediately with regard to the improvement of the health infrastructure in the rural areas as also for creating awareness amongst public at large of the Mucormycosis disease [one of the post- covid side effect] and for making the policy of distribution of Liposomal Amphotericin B injections more transparent, specific and effective.

Jignesh Natvarlal Mevani v. Suo Motu, 2021 SCC OnLine Guj 832

The Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., in the instant matter, perused the petition seeking to direct the State of Gujarat to publish and come out with data at the end of every day with regard to the total tests done for COVID-19; the number of Covid-19 fatalities and other connected information. The Court however, did not pass any directions in this regard citing the advisories issued by the ICMR.

Suo Motu v. State of Gujarat, 2021 SCC OnLine Guj 834

The Division Bench of Bela M. Trivedi and Bhargav D. Karia, JJ., noting the swift spread of covid19 in rural areas and no clear strategy regarding the distribution of vaccines and medicines, directed the Central Government to place on record for the information of the general public at large, about the vaccination policy adopted by the Central Government. The Bench also directed the Gujarat Government to provide details on oath regarding availability of dedicated covid hospitals, RT-PCR tests etc.

Supreme Court

In August 2021, the Supreme Court Collegium while deliberating upon appointment of new Judges to the Supreme Court, recommended the name of Justice Bela M. Trivedi along with 8 other names. Subsequently, the recommendations were accepted and Justice Trivedi was elevated as Judge of Supreme Court of India on 31st August, 2021.[4]

♦Did you Know? Upon her elevation, Justice Bela M. Trivedi became the First Woman Judge from Gujarat High Court to be elevated to the Supreme Court.[5]

Some of the prominent decisions, that have been rendered by Justice Bela M. Trivedi so far, are as follows-  

Jaina Construction Co. v. Oriental Insurance Co. Ltd., (2022) 4 SCC 527

The bench of Sanjiv Khanna and Bela M. Trivedi, JJ., held that an Insurance Company cannot repudiate a claim merely on the ground that there was a delay in intimating it about the occurrence of the theft of vehicle. The Court was deciding a case relating to theft of a Truck that was insured with Oriental Insurance Company Limited.

Read more

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

In an important ruling on POCSO Act, the 3-judge bench of UU Lalit, Bela M. Trivedi and S. Ravindra Bhat, JJ., set aside the Bombay High Court (Nagpur Bench) judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’. Justice Bela M. Trivedi also observed that-

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

Read more

Muzaffar Husain v. State of U.P., 2022 SCC OnLine SC 567

In a case where a Judge was accused of misconduct, the bench of Dr. D.Y. Chandrachud and Bela M. Trivedi, JJ., held that showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration.

“It is often said that “the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion.”

Read more

P. Ranjitharaj v. State of T.N., 2022 SCC OnLine SC 508

The Division Bench comprising Ajay Rastogi and Bela M. Trivedi, JJ., reversed the impugned judgment of the Madras High Court and held that when the delay in appointment is attributable to the State, it would not deprive the employees of their right to become the member of the Pension Scheme, 1978 merely on the ground that the Scheme was not applicable to their year of appointment, particularly when other candidates who participated in the common process of selection were availing the same.

Read more

 Munni Devi v. Rajendra, 2022 SCC OnLine SC 643

The bench of Ajay Rastogi and Bela M. Trivedi, JJ., held that by virtue of Section 14(1) of the Hindu Succession Act, 1956, the Hindu widow’s limited interest gets automatically enlarged into an absolute right, when such property is possessed by her whether acquired before or after the commencement of 1956 Act in lieu of her right to maintenance.

Read more

R. Muthukumar v. TANGEDCO, 2022 SCC OnLine SC 151

In a case where some candidates who had applied for the post of Helper/trainee with Tamil Nadu Generation and Distribution Corporation Ltd (TANGEDCO) on the basis of a compromise order directing appointment of 84 persons, arguing that they were similarly situated, the 3-judge bench of UU Lalit, S. Ravindra Bhat and Bela M. Trivedi, JJ., held that if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.

Read more

Sunil Kumar Maity v. SBI, 2022 SCC OnLine SC 77

In an interesting case where one SBI account holder was left with a balance of Rs. 59/- only in his account due to the existence of another bank account with strikingly similar name in the same branch, the bench of Sanjiv Khanna and Bela M. Trivedi, JJ., set aside the “highly erroneous” impugned order passed by the National Consumer Disputes Redressal Commission solely relying upon the suo-moto report called for from SBI during the pendency of the revision application.

Read more

Chandrapal v. State of M.P., 2022 SCC OnLine SC 705

The Division Bench of Dr. D.Y. Chandrachud and Bela M. Trivedi, JJ., reiterated the settles position of law vis-a-vis extra-judicial confessions and observed that an extra judicial confession attains greater credibility and evidentiary value if it is supported by chain of cogent circumstances and is further corroborated by other prosecution evidence.

†Sucheta Sarkar, Editorial Assistant has put this report together 

Justice Bela M. Trivedi’s Image Courtesy: Times Now 

[1] Chief Justice and Judges Supreme Court of India

[2] Justice Bela M. Trivedi SC Observer

[3] Justice Bela M. Trivedi SC Observer

[4] Chief Justice and Judges Supreme Court of India

[5] Know about Justice Bela M. Trivedi, Sparsh Upadhyay, Live Law

Know thy Judge

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

Justice L. Nageswara Rao

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

Despite the gloominess that generally surrounds farewells and retirements; they are probably the perfect occasion to reminisce about the uniqueness and the legacy that has been created by an individual. In the legal fraternity, a Supreme Court Judge’s retirement carries quite a sentiment. Of course, once you enter the field of law, the journey never really ends. But a Judge isn’t there only to judge. A judge has a superpower- a constitutionally mandated superpower to interpret the law. A judge’s interpretation has the force of law. Which is why, when a Supreme Court Judge retires, it feels like a loss of guidance and wisdom. Today, one such paragon of wisdom, Justice Lavu Nageswara Rao officially retires as a Supreme Court Judge and therefore it is time that we bring to you a recapitulation of Justice Rao’s stellar legal career.

Early Life and Career as an Advocate [1982- 2016]

Justice Rao was born on 08.06.1957 at Chirala, Prakasam District in Andhra Pradesh and did his schooling and graduation in Andhra itself (Nagarjuna University).[1]

♦Howzatt! Justice Rao participated in the Ranji Trophy cricket tournament in the year 1982.  Furthermore, in a recently held cricket match between Chief Justice of India- XI vs. Supreme Court Bar Association- XI, wherein, the CJI-XI defeated the SCBA-XI for the first time, with a whooping margin of 72 runs; with Justice L. Nageswara Rao becoming the “wrecker in chief” claiming 3 wickets for 9 runs in 2 overs!![2]

When not probing allegations against the Indian premier League, Justice Rao has a lot of interest in watching IPL matches![3]

His enrollment as an advocate at the Bar Council of Andhra Pradesh in July 1982 meant that he became a first-generation lawyer in his family. Post enrollment, Justice Rao started practicing at the District Court in Guntur and at Andhra Pradesh High Court (at Hyderabad). In December 2000, Justice Rao was designated as a Senior Advocate by the Andhra Pradesh High Court. After a stint in his native State, Justice Rao set up his practice at the Supreme Court of India and continued to do so till his elevation as a Supreme Court Judge in 2016.[4]

Justice Nageswara Rao also served as Additional Solicitor General of India for two terms- first term from August 2003 to May, 2004; and second term from 26th August, 2013 to 18th December, 2014.[5]

♦Acting Chops![6]  Here’s a riveting titbit – In the year 1989, Justice L. N. Rao, who was still practicing as an advocate; appeared in the action-drama flick Kanoon Apna Apna alongside stars such as Dileep Kumar, Kader Khan and Sanjay Dutt. Not surprisingly, his reel role had a law connection; i.e. he played the role of a Police Officer!  

Not only films, during his college days, Justice Rao was very much involved in Theatre. However, he wasn’t much interested in pursuing acting as a career.  

Noteworthy Cases and Committees

Justice Rao represented late J. Jayalalitha in the disproportionate assets case before the Karnataka High Court and secured a favourable decision for her in the matter. [Selvi J. Jayalalitha v. State, 2015 SCC OnLine Kar 124]

Justice Rao also appeared for the Christian Medical College and State of Tamil Nadu in the NEET case before the Supreme Court [Christian Medical College v. Union of India, (2014) 2 SCC 305]

As Additional Solicitor General of India, Justice Rao was part of the 3- member Mudgal Committee appointed by the Supreme Court, to look into the allegations of corruption against the BCCI (Board of Control for Cricket in India) and spot-fixing in the IPL.[7]

Some other prominent cases advocated by Justice Rao are as follows-

Samatha v. State of A.P., (1997) 8 SCC 191

State of A.P. v. A.P. SRTC, (2001) 9 SCC 197

M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691

SAIL v. National Union Waterfront Workers, (2001) 7 SCC 1

ITC Ltd. v. Agricultural Produce Market Committee, (2002) 9 SCC 232

K.M. Mathew v. K.A. Abraham, (2002) 6 SCC 670

Air India Cabin Crew Assn. v. Yeshaswinee Merchant, (2003) 6 SCC 277

E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394

M.C. Mehta v. Union of India, (2011) 15 SCC 461

Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1

High Court of Madras v. R. Gandhi, (2014) 11 SCC 547

Judgeship of Supreme Court of India [2016- 2022]

Justice Nageswara Rao was offered Supreme Court judgeship in 2014 by then Chief Justice of India R.M Lodha. He however, turned down the offer, citing personal and professional reasons[8]. Two years later, on 13.05.2016, Justice Rao finally took oath as a Judge of the Supreme Court of India[9].

♦From the Bar to the Bench! With his elevation as a Supreme Court Judge, Justice L. Nageswara Rao became the 7th lawyer to be directly elevated from the Bar[10]!   

 Notable Judgments

♦Double Century!  Justice L.N. Rao has authored 200+ judgments so far.[11]

Justice L. Nageswara Rao’s tenure as a Judge is remarkable for the number of landmark judgments that have been delivered on diverse issues. Furthermore, Justice Rao’s approach in authoring his judgments in a way that hits the proverbial ‘bull’s eye’ vis-a-vis discerning the ratio, has been praised by many for making the life of a practical lawyer easy.

“The most noteworthy aspect of the judgements of Justice Nageswara Rao is its crisp and point-blank element which serves the purpose of the matter at hand with legal reasoning/ratio in lesser words.” – K. Ramakanth Reddy[12]

Justice Rao in his 6-year tenure dealt with matters ranging from protection of liberty of an individual to highlighting and berating corrupt electoral practices to ensuring a dignified life for all, irrespective of their caste, creed or profession. His decisions on these issues definitely provided a lot of fuel to the discourse within the legal circles. Some of the important issues that Justice L.N. Rao covered in decisions are as follows-

Grant of liberty

During the final days of his tenure at the Bench, Justice L.N. Rao granted big relief for A.G. Perarivalan, convicted for assassination of former Prime Minister Rajiv Gandhi, [AG Perarivalan v. State, 2022 SCC OnLine SC 635] and directed his release after being incarcerated for 32 years. Similarly, Azam Khan and Indrani Mukherjea were granted bail in their respective cases.

Affirmative Action/ Reservation

Justice Rao was a part of the 5- Judge Bench in Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1 that quashed the much in debate Maratha Reservation and held that the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s[13] case.

In Jarnail Singh v. Lachhmi Narain Gupta, 2022 SCC OnLine SC 96 the 3-judge bench of L. Nageswara Rao, Sanjiv Khanna and BR Gavai, JJ., has answered 6 crucial questions in relation to quantifiable data showing inadequacy of representation in promotional posts.

However, Justice Rao, in Mukesh Kumar v. State of Uttarakhand, (2020) 3 SCC 1 held that no mandamus can be issued by the Court to the State to collect quantifiable data relating to adequacy of representation of the Scheduled Castes and Scheduled Tribes in public services. The Court also held, “The State Government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing the State Government to provide reservations”.

In the case of Pattali Makkal Katchi v. A. Mayilerumperumal, 2022 SCC OnLine SC 386, relating to reservation of seats in Educational Institutions, the bench of L. Nageswara Rao and BR Gavai, JJ observed that while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the decision and demonstrate that caste is not the sole basis.

In a relief to students seeking admission in AIIMS Institutes, the bench of L. Nageswara Rao and AS Bopanna, JJ., in Students Assn. AIIMS v. All India Institute of Medical Sciences, 2022 SCC OnLine SC 681 directed that a roster point-based reservation for preferential candidates as followed by Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER) shall be implemented in all the AIIMS institutes.

Regarding Judiciary -Tribunals and Contempt of Court

In the landmark decision of Madras Bar Assn. v. Union of India, (2021) 7 SCC 369

The 3-judge bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat issued extensive directions in relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020. In Het Ram Beniwal v. Raghuveer Singh, (2017) 4 SCC 340, the bench of L.N. Rao and Anil Dave, JJ., dealt with a matter of criminal contempt of court, wherein an attempt was made to scandalise the authority of court via allegations of bias and corruption. It was held that Judges need not be protected since they can take care of themselves but it is the right and interest of public in due administration of justice which must be protected. “Vilification of Judges leads to destruction of system of administration of justice. Thus, statements made by appellants accusing Judges of corruption results in denigration of institution which has effect of lowering confidence of public in system of administration of justice, were not only derogatory but had propensity to lower authority of court.”

Regarding Practice and Procedure and Disposal of Cases

After noticing common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes, the 3-judge bench of S.A. Bobde, CJ., and L. Nageswara Rao and S. Ravindra Bhatt, JJ., via Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In re, (2021) 10 SCC 598, directed all High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months. Similarly, when it was noticed that the summary trials of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 are being routinely converted to summons trials in a “mechanical manner”, the Constitution Bench comprising of S.A. Bobde, C.J. and L. Nageswara Rao, B.R. Gavai, A.S. Bopanna and S. Ravindra Bhat, JJ., via Expeditious Trial of Cases Under Section 138 of N.I. Act 1881, In re, 2021 SCC OnLine SC 325  directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

Sex Workers’ Right to Dignity

In a significant decision, the 3-judge Bench comprising of L. Nageswara Rao, B. R. Gavai and A.S. Bopanna, JJ., in Budhadev Karmaskar v. State of W.B., 2022 SCC OnLine SC 704, upheld sex workers right to identity and issued detailed directions for their protection and upliftment. The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Aadhar Card for them without insisting on address proof.

Regarding Democracy, Constitutional and Electoral Processes

In several important judgments, Justice L.N. Rao upheld the constitutional essentialities and reprimanded corrupt practices that subvert the democratic process. Like in 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. The principles for promulgation of ordinances were thus laid down in this case. Likewise, in Abhiram Singh v. C.D. Commachen (2017) 2 SCC 629, the 7- Judge Bench of the Court with a ratio of 4: 3 severely reprimanded the practice of electoral appeal on the basis of caste, religion, race and community. The Court held that such an appeal 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’. Justice Rao joined T.S. Thakur, CJ., and Madan B. Lokur, and S.A. Bobde, JJ., to give the majority ruling in the 4:3 verdict, while Dr. D.Y. Chandrachud, Adarsh K. Goel and U.U. Lalit, JJ., dissented.

Covid-19, Vaccines and Other related matters

The onset of Covid-19 pandemic meant that the judiciary had to face new challenges and issues. Benches led by Justice L.N. Rao provided the requisite guidance in such unprecedented circumstances. In Jacob Puliyel v. Union of India, 2022 SCC OnLine SC 533, a matter related to COVID-19 vaccination drive; the bench of L. Nageswara Rao and BR Gavai, JJ., held that bodily integrity is protected under Article 21 of the Constitution of India and no individual can be forced to be vaccinated.

In Distribution of Essential Supplies & Services during Pandemic, In re, (2021) 7 SCC 772, the 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ., expressed serious concerns on the ability of the marginalized members of society between the ages of 18-44 years to avail COVID-19 vaccination, exclusively through a digital portal in the face of a digital divide. The Court also sought to understand the Government’s vaccination policy in light of the raging Delta wave in 2021 and noted that, “A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.”

Not only the vaccination policy, the 3- Judge Bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ., even took suo moto notice under Art. 32 of the Constitution regarding the issues surrounding the availability of essential medical supplies during the height of Covid-19 in 2021. The Court in Distribution of Essential Supplies and Services During Pandemic, In re, 2021 SCC OnLine SC 372 observed that in a time of national crisis, such as the one which is confronting the nation as a consequence of the pandemic, the Supreme Court cannot stand silent as a mute spectator. The court has a constitutional duty to protect the fundamental rights traceable to Part III of the Constitution.

Free Speech

For any thriving democracy, protection of free speech is sacrosanct. The judicial system acts as a protector of this very essentiality. In Patricia Mukhim v. State of Meghalaya, 2021 SCC OnLine SC 258, the bench of L.N. Rao and S. Ravindra Bhat, JJ., quashed the criminal case registered against Shillong Times Editor Patricia Mukhim under Sections 153 A, 500 and 505 (1) (c) of the Indian Penal Code, 1860 and observed that, “Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.”

Regarding entry of women in Temples and Dargahs   

In Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 3 SCC 52, the 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference, held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction, after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected. Likewise in Haji Ali Dargah Trust v. Dr. Noorjehan Safia Niaz, (2016) 16 SCC 788, the 3-Judge Bench of T. S. Thakur, C.J.  and D. Y. Chandrachud and L. Nageswara Rao, JJ., gave the Haji Ali Dargah Trust two weeks’ time to restore status-quo ante in regard to women pilgrims entering the sanctum sanctorum at par with men said that in case there is any default or neglect on the part of the Trust in complying with the direction of the Bombay High Court, the respondents-writ petitioners shall be free to approach the High Court for appropriate redress in the matter.

Matrimonial disputes

Dealing with the case where a husband had sought divorce from his wife on the ground that she was forcing him to leave his parents as he was providing them financial support, the Court in Narendra v. K. Meena, (2016) 9 SCC 455 said that in a Hindu society, it is a pious obligation of the son to maintain the parents. The Bench of A.R. Dave and L. Nageswara Rao, JJ., added that no son would like to be separated from his old parents and other family members, who are also dependent upon his income, the Court also said that the persistent effort of the wife to constrain the husband to be separated from the family would be torturous for the husband and will constitute as an act of ‘cruelty’. In Rupali Devi. State of Uttar Pradesh, (2019) 5 SCC 384, the 3-judge bench of Ranjan Gogoi, CJ., and L. Nageswara Rao and SK Kaul, JJ., held that a woman driven out of matrimonial home can file case under Section 498-A from the place she has taken shelter at. The bench said, “The courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”

Legacy

♦Man of many talents! Justice Nageswara is also a golfer and an avid biker.[14]

“With great power, comes great responsibility” and if the responsibilities are performed with diligence and dedication, then it leaves behind a Legacy. From his enrolment in 1982 till his retirement as a SC Judge, Justice Nageswara has contributed immensely in enriching the law and its interpretations. In the recently held Farewell Function[15] organised by the Supreme Court Bar Association, the fellow Judges and lawyers were all praise for Justice L.N. Rao’s simplicity, hard work and gentle demeanour.

With another phase of his legal career is set to end; there is truly no end in sight for Justice Rao, because after retirement, he will be heading India’s first International Arbitration and Mediation Centre which was recently inaugurated at Hyderabad[16].

As I stated earlier, Farewells are about reminiscing the legacy left behind with a hope for a new eventful chapter. Justice Lavu Nageswara Rao’s legacy has been well established with his legal practice, judgments and overall conduct with his peers and juniors. Now we look forward to the next stage of his journey to demystify the law because when it comes to Law, “The road goes ever on and on!”.[17]

†Sucheta Sarkar, Editorial Assistant has put this report together 

[1] Chief Justice and Judges, Supreme Court of India.

[2] Supreme Court Judges crush Advocates in a game of Cricket, Latest Laws [dot] com

[3] Justice L.N. Rao- A star in real and reel life, The Hindu

[4] Justice L. Nageswara Rao, Supreme Court Observer

[5] Chief Justice and Judges, Supreme Court of India.

[6] Meet Justice L.N. Rao, Live Mint

[7] Justice L. Nageswara Rao , Supreme Court Observer

[8] L Nageswara Rao recommended for the post of SC judge, Indian Express

[9] Chief Justice and Judges, Supreme Court of India.

[10] Justice L. Nageswara Rao , Supreme Court Observer

[11] https://www.scconline.com

[12] Emerging trends in judgment writing introduced by Justice L Nageswara Rao, The Siasat Daily

[13] Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217

[14] Justice L. Nageswara- A star in reel and real life

[15] Justice L. Nageswara Rao- Spotlight, by Aamir Khan for Bar and the Bench

[16] India’s first International Arbitration and Mediation Centre opens , Business Standard News

[17] Quote by Bilbo Baggins, “The Fellowship of the Ring“, by JRR Tolkien

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of L. Nageswara Rao, B.R. Gavai and A.S. Bopanna, JJ., directed the Delhi Urban Shelter Improvement Board to consider relocation and rehabilitation of 268 Jhuggi Dwellers without insisting on Ration Card proofs.

The appellant, Rajiv Camp, Saidabad had approached the Delhi High Court with a request to issue writ of mandamus for directing the NCT of Delhi to allot plots to the beneficiaries of Rajiv Camp in terms of policy guidelines for the implementation of the scheme for relocation/rehabilitation and allotment of plots to slum and JJ dwellers.

By the impugned order, the Delhi High Court had held that since the original cut-off date was 31-12-1998, the jhuggi dwellers were not eligible for the rehabilitation scheme at that date as they did not have ration card on the relevant date. The High Court observed that there was nothing in the office orders dated 16-7-2010 and 03-02-2011 to show that they had a retrospective operation.

Notably, the slum and JJ Department carried out a joint survey with DMRC, the department that was carrying out the demolition, and prepared a list of jhuggi dwellers existing on-site. Pursuant to this, the slums and JJ Department informed DMRC that none of the jhuggi dwellers were eligible for allotment of the alternate site. A total of 474 jhuggies were found existing at the site. Admittedly, the jhuggi dwellers were removed/evicted from the site by DMRC allegedly without notice.

However, on receipt of the verification report from the Food and Supply Department, it was found that not even a single person was found entitled to relocation/rehabilitation. Since, as per the policy, jhuggi dweller families having ration cards issued up to 31-12-1998 were only eligible for relocation. In the instant case, none of the families were found in possession of ration cards issued up to 31-12-1998.

The appellant urged that the dwellers had made representations pointing out that they had been living at the existing site for more than 20 years and had valid claim/proof of their existence. Therefore, the appellant was claiming the benefit of the order dated 16-7-2010 and 03-02-2011 issued by the Govt. of NCT of Delhi, Urban Development Department which extended the cut-off date from 31-12-1998 to 31-03-2002 for allotting flats for rehabilitation/relocation. Further, by the order dated 03-02-2011 the cut-off date was extended from 31-03-2002 to 31-03-2007.

The Court permitted the 268 Jhuggi Dwellers to file a representation before the Delhi Urban Shelter Improvement Board for relocation and rehabilitation, granting them liberty to produce evidence to show that they are entitled to relocation and rehabilitation.

The Board was directed not to reject the applications on the ground that Ration Cards and other data is not available. Additionally, the authorities concerned were directed to consider the representation made by the Jhuggi Dwellers on the basis of the evidence produced by them in accordance with the aforementioned guidelines/policy and pass orders within a period of four weeks.[Rajiv Camp Saidabad v. State (NCT of Delhi), 2022 SCC OnLine SC 721, decided on 19-05-2022]

Appearance by:

For Petitioner(s): Mr. Prashant Bhushan, AOR, Ms. Alice Raj, Adv. And Mr. Rahul Gupta Adv

For Respondent(s): Ms. Uttara Babbar, AOR and Mr. Manan Bansal, Adv.

Kamini Sharma, Editorial Assistant has reported this brief.

Experts CornerTarun Jain (Tax Practitioner)

  1. Background

Without elaborating how and why, the Supreme Court recently declared that it “has consistently applied one test: substance over form” to opine that the form and style of employee secondment agreement was “not decisive of its nature” and recharacterise the relationship between the parties as of “manpower supply services” by one to another. This declaration in Commr. of Customs, Central Excise and Service Tax v. Northern Operating Systems (P) Ltd.[1] has brewed a storm in the tax fraternity — particularly in the sphere of indirect taxation to which this decision relates — given that it unsettles the relatively tranquil interpretative rule that the tax authorities cannot disregard the legal structure and recharacterise the transaction in the absence of fraud or overwhelmingly compelling circumstances.

Taking note of economic realities and the “substance” of the bargain struck between the parties, the Supreme Court rejected the legal framework of their agreement to confirm demand of service tax on the transaction. In this process, the court failed to advert to its earlier precedents revalidating the taxpayers’ choice of form of transaction which continue to hold the field in view of the conspicuous parliamentary abstinence to enact “general anti-avoidance rules” in indirect tax paradigm unlike the income tax law. This note seeks to dissect the dichotomy which arises in the jurisprudential confines of indirect tax law on account of this decision.

  1. A Caveat

Before advancing further on the recent decision, it is crucial to highlight that the “substance over form” test is not totally unheard of in the indirect tax realm[2] and instead been applied in limited context to determine the “substance” of the transaction.[3] However, in these decisions the “substance” test has received a fleeting reference, perhaps only to revalidate the conclusion apparent on the first glance of the transaction.

In another sense, substance also intrinsically forms the core of “substantial compliance” test which is a key pivot in the indirect tax laws. This principle dispenses complete compliance with the statutory provisions and it is sufficient in the event the taxpayer demonstrates that the provisions have been complied with substantially.[4] Thus, the “substance” test has indeed been in vogue, albeit indirectly, in the indirect tax framework, but to a limited extent.

  1. Dispute before the Supreme Court

With the aforesaid background, we traverse the recent decision in Northern Operating case[5]. The facts in this case were simple, yet extensive debate arose on the nature of the transaction and the economic relationship underlying the agreement. The dispute arose with a demand of service tax raised by the tax authorities against Northern Operating Systems Pvt. Ltd., an Indian company (hereinafter referred as “I Co.”). The demand was in respect of various agreements executed by I Co. with its group companies located in many countries, such as US, UK, Singapore, etc. (hereinafter collectively referred as “NR Co.”).

In terms of these agreements, I Co. would request NR Co. “for managerial and technical personnel to assist in (I Co’s.) business and accordingly the employees are selected by the (NR Co.) and they would be transferred to (I Co.). The employees shall act in accordance with the instructions and directions of (I Co.). The employees would devote their entire time and work to the (I Co.). The seconded employees would continue to be on the payroll of the (NR Co.) for the purpose of continuation of social security/retirement benefits, but for all practical purposes, (I Co.) shall be the employer. During the term of transfer or secondment the personnel shall be the employee of (I Co.). (I Co. shall) issue an employment letter to the seconded personnel stipulating all the terms of the employment. The employees so seconded would receive their salary, bonus, social benefits, out of pocket expenses and other expenses from (NR Co.). The (NR Co.) shall raise a debit note on (I Co.) to recover the expenses of salary, bonus, etc. and (I Co.) shall reimburse the (NR Co.) for all these expenses and there shall be no markup on such reimbursement.”[6]

According to the tax authorities, the aforesaid arrangement was one of “manpower recruitment or supply” service being provisioned by NR Co. to I Co. which was exigible to service tax. The raison d’être for this premise was the opinion of the tax authorities that through this arrangement NR Co. were “providing skilled manpower, on secondment basis” to I Co. wherein NR Co. are the service providers and I Co., which receives skilled manpower, on secondment basis, is the service recipient. The tax authorities highlighted that in this “secondment arrangement a secondee would continue to be employed by the original employer during the secondment, and will, following its termination return to the seconder/original employer. As a consequence of this, the secondee does not become integrated into the host’s organisation” which confirmed the presence of “manpower supply” element of the concerned service.

I Co. contested the premise of the tax authorities to put forth its understanding that it was incorrect to view NR Co. as supply suppliers given that the transaction was limited to the seconded personnel acting as “employees” of I Co., which transaction was outside the service tax framework under the law. This view of I Co. was accepted in adjudication and also approved by the Appellate Tribunal. According to the Tribunal, NR Co. were not engaged in supply of manpower; “those seconded to the assessee working in the capacity of employees and receiving salaries by (NR Co.) were only for disbursement purposes”; employee-employer relationship existed between such personnel and I Co.; in effect I Co. “obtained from (NR Co.) directly or by transfer, service of expatriate employees who were paid salaries by the (I Co.) in India, for which tax was deducted and paid to statutory benefits — such as provident fund”, etc. and thus the demand of service tax was unfounded. Being aggrieved by this conclusion, the tax authorities approached the Supreme Court seeking validation of their premise. It was in this background that the lis came up for consideration before the Supreme Court.

In the Supreme Court the tax authorities pitched their argument higher to reflect upon the attendant circumstances and the relationship between I Co. and NR Co. as well to impress upon the court that in reality NR Co. “provided the services of its employees to (I Co.) for the performance of agreed tasks” which in turn “were handed over to (I Co.) by (NR Co.). It was not as if (I Co.) was free in regard to the manner of performance of the jobs assigned to it.” The tax authorities also sought to project that the “real employer” of the seconded employees was not I Co. and “the mere fact that the temporary control over the manner of performance of duties of the employees seconded (was with I Co.) did not take away or diminish the fact that their real employer was none other than” NR Co. In essence, therefore, the tax authorities argued that the agreements between I Co. and NR did not reflect the true state of affairs as “real reason or purpose for the secondment” was not what was sought to be portrayed in those agreements.

  1. Dissecting the Decision of the Supreme Court

In the wake of absence of precedent in the service tax context, the Supreme Court made reference to its decisions in DIT (International Taxation) v. Morgan Stanley & Co. Inc.[7] and CIT v. Eli Lilly and Co. India (P) Ltd.[8] rendered in the context of income tax laws, to underscore that such situations are frequent in the tax paradigm where one is required to determine the question “who is the employer, and whether the relationship between an employee and another, is one of master servant, or whether there is an underlying contract for service, by which the real employer, lends the services of his employee to another”. Furthermore, by accepting the application of “real employer” test, the Supreme Court dissipated the legal rights and obligations of the parties as the sole factor of consideration to make the factual construct also relevant, which implies expanding the zone of considerations to a wide variety of variables including economic costs.

The Supreme Court also imported its labour law jurisprudence to enlist the tests for distinguishing between “contract of service” vis-à-vis “contract for service” in order to delineate the relationship between I Co. and NR Co. Concepts such as “master-servant” relationship, “control” test, etc. were, thus, brought and instituted within the fold of tax law as critical facets of inquiry. The Supreme Court, thereafter, exposited another principle that “the nomenclature of any contract, of document, is not decisive of its nature”. Thus the stage was set for the Supreme Court to declare that the “task for this court, therefore is to, upon an overall reading of materials presented by the parties, discern the true nature of the relationship between the seconded employees and the assessee, and the nature of the service provided — in that context, by (NR Co.) to (I Co.)”.

Before one dissects the substantive contours of the decision, it is expedient to take note of certain objections to the aforesaid approach of scrutinising the factual ingredients:

(a) In its own description, the decision emphasises the need for the Supreme Court to appreciate the factual parameters of the transaction. This approach is at variance with the appellate jurisdiction, which was being exercised by the Supreme Court, which is statutorily restricted to determination of the “substantial question of law”. Thus, the Supreme Court appears to have exceeded the periphery of its examination.

(b) No reason by the Supreme Court has been assigned to disregard the factual conclusions of two authorities below which have examined the factual paradigm and found no reason to doubt them. Thus, the decision muddles the legal threshold for the Supreme Court to consider facts which, it is now well settled, is occasioned only when the factual appreciation by the lower authorities is “perverse”.[9]

(c) The decision of the Supreme Court does not reveal whether the tax authorities alleged impropriety in the factual setting so as to reject the legal form of the transaction. Furthermore, despite noting that the tax officer who first adjudicated the lis himself rejected the case of the Tax Department and found nothing objectionable in the legal arrangement, the Supreme Court proceeded to redraw the factual confines on which the parties transacted.

Having thus concluded that a factual reappreciation was indeed warranted, the Supreme Court culled out the underlying aspects of the contractual terms which were perceived to exist by it. The court even reflected upon the changing global economic dimensions and international hiring of labour to re-emphasise the need for applying the test of “substance over form, requiring a close look at the terms of the contract, or the agreements”.

Having said that, however, the findings in the decision are clearly inconsistent and reveal a dichotomy in the perception of the facts. This aspect is best understood by a comparative analysis of certain observations of the court. In one of the paragraphs, the Supreme Court observed as under:

  1. 57. The above features show that the assessee had operational or functional control over the seconded employees; it was potentially liable for the performance of the tasks assigned to them. That it paid (through reimbursement) the amounts equivalent to the salaries of the seconded employees — because of the obligation of the overseas employer to maintain them on its payroll, has two consequences: one, that the seconded employees continued on the rolls of the overseas employer; two, since they were not performing jobs in relation to that employer’s business, but that of the assessee, the latter had to ultimately bear the burden. There is nothing unusual in this arrangement, given that the seconded employees were performing the tasks relating to the assessee’s activities and not in relation to the overseas employer. To put it differently, it would be unnatural to expect the overseas employer to not seek reimbursement of the employees’ salaries, since they were, for the duration of secondment, not performing tasks in relation to its activities or business.[10] (emphasis in original)

Were one to read only the aforesaid paragraph, as a representative sample of the Supreme Court’s reasoning, one would perhaps be pardoned for concluding that the Supreme Court declared I Co. to be the de facto employer. In this scenario, the substance over form test would compel a conclusion that master-servant relationship existed between I Co. and the seconded employees, which fact alone would be sufficient to disregard the premise that NR Co. is supplying manpower to I Co. However, the Supreme Court flipped this conclusion inter alia observing as under:

  1. 60. Facially, or to put it differently, for all appearances, the seconded employee, for the duration of her or his secondment, is under the control of the assessee, and works under its direction. Yet, the fact remains that they are on the pay rolls of their overseas employer. What is left unsaid and perhaps crucial, is that this is a legal requirement, since they are entitled to social security benefits in the country of their origin. It is doubtful whether without the comfort of this assurance, they would agree to the secondment. Furthermore, the reality is that the secondment is a part of the global policy — of the overseas employer loaning their services, on temporary basis. On the cessation of the secondment period, they have to be repatriated in accordance with a global repatriation policy (of the overseas entity).[11]

(emphasis in original)

Thus, by introducing a “doubt” which the court harboured[12] (though it was not a fact on record or even an allegation), the Supreme Court rewrote its own understanding to conclude that I Co. was not the de facto employer, basing its conclusion on a perceived “reality”.

  1. Substance over Form: Unanswered Questions

The decision has created more doubts than the controversy it has settled, that too not just in the indirect tax paradigm. To illustrate, the decision sheds doubt over the propriety and operability of the “deputation”/”secondment” related employment models in vogue in the country. Supposing the same fact pattern was to be tried under an industrial dispute setting, there are some glaring questions requiring advertence were the substance over form test to apply. For example: (i) Who would be held liable for omission to perform legal obligations qua the employees? Would it be I Co., being their “operational or functional” employer or NR Co. as their “legal employer”? (ii) Would I Co. be vicariously liable for acts of the deputed/seconded employees? (iii) Can the foreign deputed/seconded personnel be denied employment visa (by government authorities) in India on the ground that they are not the employees of I Co.? Many issue arise with this ruling.

Notwithstanding, it goes without saying that the emphatic emphasis placed in decision on the substance over form test poses issues in the specific context of indirect taxes. To address these aspects, one is compelled to review the decisions propelling against application of “substance over form” test in this realm.

One of the leading decisions in indirect taxation is the three-Judge Bench verdict in the CCE v. Acer India Ltd.[13] While determining the valuation of supply a unanimous Supreme Court categorically ruled out the application of the substance over form test in this sphere of tax laws. Explaining the relevant propositions in the decision, under the heading “principles of interpretation of a taxing/fiscal statute”, the Supreme Court inter alia culled out the following rules governing the interpretation:

  1. It is also well-settled rule of construction of a charging section that before taxing a person it must be shown that he falls within the ambit thereof by clear words used as no one can be taxed by implication.
  2. It is further well settled that a transaction in a fiscal legislation cannot be taxed only on any doctrine of “the substance of the matter” as distinguished from its legal signification, for a subject is not liable to tax on supposed “spirit of the law” or “by inference or by analogy”.
  3. The taxing authorities cannot ignore the legal character of the transaction and tax it on the basis of what may be called “substance of the matter”. One must find the true nature of the transaction.[14]

Thus, unequivocally, the Supreme Court in Acer case[15] equated the “substance over form” test as falling with the prescription against taxation “by inference or by analogy”. There are many similar declarations, to enlist a few;

(a) It was also exemplified in State of Rajasthan v. Basant Agrotech (India) Ltd.[16] wherein the Supreme Court quoted with approval the opinion of the Privy Council in the celebrated Bank of Chettinad v. CIT[17] and other leading decisions[18] to conclude that taxation based on “substance of the matter” was antithetical to the settled jurisprudential norms.

(b) A five-Judge Bench in Kone Elevator India (P) Ltd. v. State of T.N.[19] reversed an earlier three-Judge Bench decision[20] which had inter alia opined that “[i]t is settled law that the substance and not the form of the contract is material in determining the nature of transaction”.

(c) Similarly a three-Judge Bench in BSNL v. Union of India[21] reversed a two-Judge Bench decision in State of U.P. v. Union of India[22] which had stressed upon the substance test.[23]

Thus clearly, the substance over form debate has generally been rejected in its application in the realm of indirect taxes.

Having said that, it would not be correct to state that in the indirect tax realm the “substance” debate has never arisen. For illustration, tax benefits have been denied by the courts in situations where allegations of fraud and subterfuge have been factually demonstrated.[24] The issue with the decision in Northern Operating case[25], however, is that there is neither an allegation of deceit nor a finding that the legal arrangement between the parties was a “sham” warranting its disregard.

Our quest to position substance over form rule in indirect tax paradigm gets further thrust from a review of developments in the context of income tax law, wherein the restatement of law in Cape Brandy Syndicate v. IRC[26] and the IRC v. Duke of Westminster principle[27] were emphatically approved by the Supreme Court to the effect that “what is material in the tax jurisprudence is the evasion of the tax, not the beneficial lawful adjustment thereof”[28] and consistently genuine commercial transactions, even if leading to a reduction in tax liability, have been accepted without demur.[29] There is no dearth of such judicial opinion,[30] though it was interjected briefly by in McDowell and Co. Ltd. v. CTO[31], but only to be reiterated subsequently.[32] Subsequently, to quell the debate once and for all, the Parliament intervened and enacted the provisions (i.e. general anti-avoidance rules or GAAR[33]) which enable the tax authorities to invoke the substance over form rule and recharacterise the transaction. However, the application of GAAR is permitted only in the wake of an elaborate set of procedural regimentation and substantive declaration of safeguards of taxpayer’s rights. Thus, a question arises whether substance over form test is permissible within the confines of indirect tax laws given the Parliament’s abstinence to enact such laws in this space despite making amends in income tax framework.

  1. Conclusion

A larger critique of substance over form test is the overwhelmingly disproportionate emphasis on facts in this line of inquiry which virtually renders impossible a dispassionate evolution of legal principles, thereby rendering each case a precedent confined to its own factual setting. The same is the case with the Northern Operating[34] decision which premises the conclusion so deep on the factual paradigm that it would give little trouble to ingenuine lawyers in identifying factors which would distinguish its application. In another sense, such decisions also dilute (if not obviate) the precarious tax certainty which is craved upon not just by the stakeholders but judiciary alike,[35] rendering the outcome of the lis rests more on the subjective assessment of facts instead of an objective implementation of the legal standards.

 

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

[1] 2022 SCC OnLine SC 658.

[2] See generally, Larsen & Toubro Ltd. v. State of Karnataka, (2014) 1 SCC 708 : (2014) 303 ELT 3 wherein the Supreme Court acknowledged existence of certain decisions which tested the substance of the contract (in order to ascertain whether they were exigible to sales tax) to opine that such decisions have lost precedential value in view of a constitutional amendment.

[3] For illustration, in Great Eastern Shipping Co. Ltd. v. State of Karnataka, (2020) 3 SCC 354 : (2020) 32 GSTL 3 the Supreme Court referred to the “substance” test in order to determine the true nature of the lease of the ship where the transaction was characterised as a time charter agreement.

[4] For illustration, see CCE v. Hari Chand Shri Gopal, (2011) 1 SCC 236 : (2010) 260 ELT 3.

[5] 2022 SCC OnLine SC 658.

[6] The relevant clauses of the agreements, as reproduced in the Supreme Court’s decision.

[7] (2007) 7 SCC 1.

[8] (2009) 15 SCC 1.

[9] For illustration, see Chandna Impex (P) Ltd. v. Commissioner of Customs, (2011) 7 SCC 289 : (2011) 269 ELT 433; Nicholas Piramal India Ltd. v. CCE, (2010) 14 SCC 635 : (2010) 260 ELT 338; CCE v. Sai Mirra Innopharma (P) Ltd., 2015 SCC OnLine SC 1398 : (2015) 326 ELT 633.

[10] 2022 SCC OnLine SC 658.

[11] 2022 SCC OnLine SC 658.

[12] “[i]t is doubtful whether without the comfort of this assurance, they would agree to the secondment”.

[13] (2004) 8 SCC 173, 184 : (2004) 172 ELT 289. This decision was subsequently approved by a five-Judge Bench of the Supreme Court in CCE v. Grasim Industries Ltd., (2018) 7 SCC 233 : (2018) 360 ELT 769.

[14] Relying upon Union of India v. Playworld Electronics (P) Ltd., (1989) 3 SCC 181.

[15] (2004) 8 SCC 173 : (2004) 172 ELT 289.

[16] (2013) 15 SCC 1 :  (2014) 302 ELT 3.

[17] 1940 SCC OnLine PC 29 .

[18] Such as, A.V. Fernandez v. State of Kerala, AIR 1957 SC 657, Partington v. Attorney General, (1869) 4 HL 100.

[19] (2014 ) 7 SCC 1 : (2014) 304 ELT 161.

[20] State of A.P. v. Kone Elevators (India) Ltd., (2005) 3 SCC 389 :  (2005) 181 ELT 156.

[21] (2006) 3 SCC 1.

[22] (2003) 3 SCC 239 : (2004) 170 ELT 385.

[23] “The terminology employed to describe an activity as sale or service is not conclusive in itself. By calling sale as service or vice versa, the substance of the transaction will not get altered. The question has to be determined, by discerning the substance of the transaction in the context of the contract between the parties or in a case of statutory contract in the light of the relevant provisions of the Act and the Rules.” (2003) 3 SCC 239 : (2004) 170 ELT 385.

[24] For illustration, see Commr. of Customs v. Pundrick Ravindra Trivedi, (2015) 16 SCC 702 : (2015) 322 ELT 812, following Commr. of Customs v. Phoenix International Ltd., (2007) 10 SCC 114 : (2007) 216 ELT 503.

[25] 2022 SCC OnLine SC 658.

[26] (1921) 1 KB 64 that “[i]n a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used”. Cited with approval inter alia in Ranbaxy Laboratories Ltd. v. Union of India, (2011) 10 SCC 292; CCE v. Acer India Ltd., (2004) 8 SCC 173.

[27] 1936 AC 1 that “every man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than it otherwise would be”.

[28] CIT v. Sarabhai Holdings (P) Ltd., (2009) 1 SCC 28 : (2008) 307 ITR 89.

[29] For illustration, see Aruna Group of Estates v. State of Madras, 1961 SCC OnLine Mad 252 : (1965) 55 ITR 642 wherein it has been inter alia observed that “[a]voidance of tax is not tax evasion and it carries no ignominy with it for it is sound law and, certainly, not bad morality for anybody to so arrange his affairs as to reduce the brunt of taxation to a minimum”. See also CIT v. Sri Abhayananda Rath Family Benefit Trust, 2002 SCC OnLine Ori 307 : (2002) 255 ITR 436.

[30] For illustration, see CIT v. Calcutta Discount Co. Ltd., (1974) 3 SCC 260 : (1973) 91 ITR 8, CIT v. A. Raman & Co., AIR 1968 SC 49 :  (1968) 67 ITR 11.

[31] (1985) 3 SCC 230 : (1985) 154 ITR 148.

[32] For illustration, see Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1 : (2003) 263 ITR 706; CIT v. Walfort Share and Stock Brokers (P) Ltd., (2010) 8 SCC 137 : (2010) 326 ITR 1.

[33] Income Tax Act, 1961, Ch. X-A.

[34] 2022 SCC OnLine SC 658.

[35] For illustration, see Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613 : (2012) 341 ITR 1.