{"id":274326,"date":"2022-09-23T15:00:01","date_gmt":"2022-09-23T09:30:01","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=274326"},"modified":"2022-09-23T15:00:01","modified_gmt":"2022-09-23T09:30:01","slug":"justice-indira-banerjee-powering-and-empowering-her-way-to-the-top","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2022\/09\/23\/justice-indira-banerjee-powering-and-empowering-her-way-to-the-top\/","title":{"rendered":"Justice Indira Banerjee – Powering and Empowering Her Way to the Top"},"content":{"rendered":"
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“Equality means no discrimination, equity means fair treatment, empowerment means infusing women with power. It is the power to take decisions with regard to their own life, subject to the provisions of law. It contemplates positive action with respect to preventing discrimination,<\/i>“<\/span><\/p>\n

: – Justice Indira Banerjee on Breaking the Bias \u2014 A Constitutional, Legal & Policy Lens1<\/sup><\/a><\/span><\/p>\n

Once there was time when people never could have imagined women entering and succeeding in various \u201cmanly professions<\/i>\u201d such as corporate, army or law. However, times change and so do people’s imaginations and expectations. Now that women are slowly and steadily shattering that proverbial glass ceiling in every field, the legal field too is seeing a rise vis-a-vis female participation.<\/p>\n

The year 1989 became a landmark year for the Supreme Court when Justice Fatima Beevi2<\/sup><\/a> became the first woman to be appointed as a Supreme Court Judge. Ever since its proper establishment in 1950, the halls of the Supreme Court of India have been graced by 11 female Judges so far3<\/sup><\/a>.<\/p>\n

Justice Indira Banerjee joined the league of Supreme Court’s Wonder Women in 2018 and for four years her wisdom shone nice and bright through her various decisions. Sadly, however, all good things come to an end. As Justice Indira Banerjee bids adieu to the hallowed halls of the Supreme Court, we endeavor to take you on journey down the aisle of time and take a peek into Justice Banerjee’s life and tenure; and therein we shall see that how she became one of the brightest beacons for women in law.<\/p>\n

Early Life and Ignition of Interest in Law <\/span><\/p>\n

Justice Indira Banerjee was born on 24-09-1957. She passed her Indian School Certificate Examination from Loreto House, Calcutta and graduated with History (Hons.) from Presidency College, (then affiliated to Calcutta University)4<\/sup><\/a>.<\/p>\n

Born in a Bengali household with no prior background, inclination or interest in law, Justice Banerjee’s life took a massive turn when she started interacting with Late Shri Somnath Chatterjee \u2014 a noted politician, lawyer at the time and a family friend. A young Indira Banerjee’s frequent interaction with Somnath Chatterjee ignited within her a desire that wasn’t there before. She was fascinated with the idea of well- maintained crisp law books, plush and exuberant chambers5<\/sup><\/a>. The fire having lit, Justice Banerjee took to pursuing her legal education from Calcutta University, College of Law.<\/p>\n

*Did you Know? Justice Banerjee – the third girl child, was also a First-Generation lawyer in her family6<\/sup><\/a>. <\/span><\/p>\n

Advocacy<\/p>\n

She was enrolled as an Advocate on 05-07-1985 and practiced both in the Original and Appellate Sides of the Calcutta High Court, with exception to Criminal law. Justice Banerjee also practiced in the Supreme Court and other Courts and Tribunals7<\/sup><\/a>.<\/p>\n

*Did you Know? During her years as an advocate, Justice Banerjee was often paid her due fees in gold mohars8<\/sup><\/a>.<\/span> <\/span><\/p>\n

Judgeship of the High Courts [2002- 2018]<\/span><\/p>\n

On 05-02-2002, Justice Indira Banerjee was elevated as a permanent Judge of Calcutta High Court9<\/sup><\/a>. After 14 years of judgeship at the Calcutta High Court, Justice Banerjee was appointed as a Judge of the Delhi High Court<\/a> on 08-08-2016.<\/p>\n

On 05-04-2017, Justice Banerjee was sworn in as Chief Justice of Madras High Court.<\/a><\/p>\n

*Did you Know? Justice Indira Banerjee became the second female Judge to assume the post of Chief Justice of Madras High Court. Justice Kanta Kumari Bhatnagar was the first CJ of Madras HC10<\/sup><\/a>. <\/span><\/p>\n

Notable High Court Decisions<\/span><\/p>\n

Calcutta High Court<\/p>\n

Madan Das v. Lt. Governor, 2011 SCC OnLine Cal 2374<\/a><\/span><\/p>\n

The 7-Judge Bench of Jainarayan Patel, C.J. and Bhaskar Bhattacharya, Pinaki Chandra Ghose, Kalyan Jyoti Sengupta, Indira Banerjee, Aniruddha Bose and Sambuddha Chakrabarti, JJ., deliberated over \u201cPower of Review\u201d under Section 114 & Order 47, Rule 5 of CPC. It was held that unless special circumstances mentioned in Rule 5 of Order 47 subsist, Judge who delivered original judgment or order sought to be reviewed alone can take up Application for review. The Bench further held that the Court can annul, alter or add to any of the Rules of First Schedule of CPC, but cannot alter or deviate from the body of Code.<\/p>\n

Divine Grace Apartments Owners’ Welfare Association v. Mussammat Anis Fatma Begum, 2008 SCC OnLine Cal 307<\/a><\/span><\/p>\n

The Division Bench of Surinder Singh Nijjar, C.J. and Indira Banerjee, J., deliberated over the scope of interference under Art. 226 of the Constitution in civil\/ private disputes. It was held that orders for police intervention to resolve disputes, which are essentially civil, could open a Pandora’s box, with policemen intervening with impunity in civil disputes and locking and unlocking gates at their whims, by taking recourse to orders of Court as the source of their authority to do so, for an order for police intervention presupposes a finding of the breach of the duty of the police to intervene.<\/p>\n

Delhi High Court<\/p>\n

Tek Chand v. Union of India, 2017 SCC OnLine Del 7891<\/a><\/span><\/p>\n

The Division Bench of Indira Banerjee and V. Kameswar Rao, JJ., observed that Courts in exercise of jurisdiction under Arts. 226 and 227 of the Constitution, does not sit in appeal over findings in a Court of Enquiry and\/or disciplinary proceedings and or the stringency of the punishment. It is only in a case of blatant disproportionality that the Court interferes. Punishment of removal for leaving post without prior permission and without intimation and remaining absent for about 25 days, cannot be said to be so disproportionate to the gravity of the offence, as to warrant interference of this Court.<\/p>\n

Madras High Court<\/p>\n

M. Ramachandran v. Chairman, 2018 SCC OnLine Mad 13663<\/a><\/span><\/p>\n

The Bench of Indira Banerjee, C.J., and R. Subbiah and Abdul Quddhose, JJ., considered the question that whether a student can be denied admission to the Three Year LLB course in the Tamil Nadu Dr. Ambedkar Law University only on the ground that he cleared the Higher Secondary Examination 5\/6 years after his Secondary School Leaving Certificate Examination without going to any recognized school, for attending Classes XI and XII. It was observed that the Bar Council of India has, in its wisdom, chosen to frame rules whereunder prosecution of a regular course is mandatory only in respect of the Senor Secondary Certificate for admission to the Integrated Degree Course and in respect of graduation for admission to the Three Years LLB course. It was further observed that once a recognized university or a recognized board issues a certificate, it is not for any other authority to question the certificate on the ground of ineligibility to obtain the certificate, until and unless the certificate is cancelled by an appropriate authority and\/or by a Court of law.<\/p>\n

S.K. Muruganantham v. Union of India, 2017 SCC OnLine Mad 36079<\/a><\/span><\/p>\n

The Division Bench of Indira Banerjee, C.J. and M. Sundar, J., considered this petition praying for the issuance of the writ of mandamus to stop the usage of \u201cMahatma<\/i>\u201d before Gandhi in currency notes, coins and postal stamps in India. It was held that there is no infringement of any provision of the Constitution or of law in respectfully describing an important luminary as \u2018Mahatma’<\/i> considering the selfless sacrifice made by him for the nation. It was reiterated that the State has not conferred any title on the leader. The Bench also berated the petitioner for wasting precious time of the Court- \u201cWrit petitions of this kind, which clog the business of the Courts and consume judicial time when other more important issues affecting the rights of the people are awaiting adjudication, should be thoroughly discouraged<\/i>\u201d.<\/p>\n

Star India Private Limited v. Department of Industrial Policy and Promotion, 2018 SCC OnLine Mad 662<\/a><\/span><\/p>\n

The Division Bench of Indira Banerjee, C.J. and M. Sundar, J., considered the instant case revolving around Regulations issued by TRAI via which it regulated the industry of writ petitioners by saying that channels when given in bouquets should not be a mix of pay channels and free to air channels. Indira Banerjee, CJ., dissented with the opinion stated by M. Sundar, J., and stated that impugned provisions neither touch upon the content of programmes of broadcasters, nor liable to be struck down. However, the clause putting cap of 15% to the discount on the MRP of a bouquet is arbitrary.<\/p>\n

Indira Industries v. CIT, 2018 SCC OnLine Mad 1850<\/a><\/span><\/p>\n

A Division Judge Bench comprising of Indira Banerjee, CJ. and M. Sundar, J., allowed a writ appeal filed against the order of the learned Single Judge wherein he dismissed assessee’s challenge to the show-cause notice issued<\/a> by principal Commissioner of Income Tax (revenue).<\/p>\n

The Supreme Court [2018- 2022]<\/span><\/p>\n

After 16 years of Judgeship in the esteemed High Courts of Calcutta, Delhi and Madras, Justice Banerjee was elevated as Judge of Supreme Court<\/a> on 07-08-2018.<\/p>\n

*Did you Know? With her elevation, Justice Indira Banerjee became the 8th<\/span> female Judge in the history of the Supreme Court of India11<\/sup><\/a>. <\/span><\/p>\n

Notable Judgments <\/span><\/p>\n

*Did you Know? Justice Banerjee’s elevation in 2018 created a history as her elevation completed the trio\/panel of sitting female Judges in the Supreme Court. The other two Judges were Justice R. Banumathi and Justice Indu Malhotra.12<\/sup><\/a><\/span><\/p>\n

In her 4-year tenure as a Supreme Court Judge, Justice Indira Banerjee has been a part of approximately 500+ decisions amongst which she authored 90 of them13<\/sup><\/a>. Some of her notable decisions are as follows-<\/p>\n

The binding nature of a judgment depends on the Bench Strength and not numerical strength of the Judges taking majority view<\/span><\/h4>\n

Explaining the doctrine of precedents<\/a>, the 5-judge Constitution Bench of Indira Banerjee*, <\/span>Hemant Gupta*,<\/span> Surya Kant, MM Sundresh and Sudhanshu Dhulia, JJ., in Trimurthi Fragrances (P) Ltd. v. State (NCT of Delhi), <\/span>2022 SCC OnLine SC 1247<\/a> held that the numerical strength of the Judges taking a particular view is not relevant, but the Bench strength is determinative of the binding nature of the Judgment.<\/p>\n

State legislature can’t enact a law that touches the jurisdiction of the Supreme Court<\/p>\n

The 5-judge Bench of Arun Mishra, Indira Banerjee*,<\/span> Vineet Saran, MR Shah and S. Ravindra Bhat, JJ., in Rajendra Diwan v. Pradeep Kumar Ranibala,<\/span> (2019) 20 SCC 143<\/a> declared Section 13(2) of the Chhattisgarh Rent Control Act, 2011<\/a> that Act purports to confer a right of statutory Second Appeal to the Supreme Court, ultra vires<\/i> the Constitution of India. The Court said that a provision which mandates the Supreme Court to consider an appeal is clearly beyond the legislative competence of the State Legislature<\/i>.<\/span><\/p>\n

POCSO| Is investigation of disclosure of victim’s identity permissible without Magistrate’s permission?<\/span><\/h4>\n

The Bench of Indira Banerjee and JK Maheshwari, JJ., in Gangadhar Narayan Nayak v. State of Karnataka, <\/span><\/span>2022 SCC OnLine SC 337,<\/a> gave a <\/span>split verdict<\/a> on the issue as to whether the Special Court is debarred from taking cognizance of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and obliged to discharge the accused under Section 227 CrPC, only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offence. Justice Indira Banerjee<\/span> opined that-<\/span><\/p>\n

\u201cPOCSO not only protects children from sexual offences but also protects the interests of children in general, as victims as well as witnesses. The right of a child to dignity not only requires that the child be protected from offences of sexual assault, sexual harassment and pornography but also requires that the dignity of a child be safeguarded\u201d.<\/span><\/p>\n

IBC’s Section 53 does not override Section 48 of Gujarat Value Added Tax Act<\/span><\/h4>\n

The Bench of Indira Banerjee*<\/span> and AS Bopanna, JJ., in State Tax Officer (1) v. Rainbow Papers Ltd.,<\/span> 2022 SCC OnLine SC 1162<\/a>, reversed the NCLAT order wherein it was held that the Government cannot claim first charge over the property of the Corporate Debtor, as Section 48 of the Gujarat Value Added Tax, 2003 (GVAT Act), which provides for first charge on the property of a dealer in respect of any amount payable by the dealer on account of tax, interest, penalty etc. under the said GVAT Act, cannot prevail over Section 53<\/a> of the Insolvency and Bankruptcy Code, 2016 (IBC).<\/p>\n

Party willing to pay but has no funds: Will it amount to readiness and willingness for specific performance of a contract?<\/span><\/h4>\n

In a suit for specific performance the Division Bench of Indira Banerjee*<\/span> and Hrishikesh Roy, JJ., in U.N. Krishnamurthy v. A.M. Krishnamurthy, <\/span>2022 SCC OnLine SC 840<\/a>, explained the terms willingness and readiness to pay<\/a>. Reversing the concurrent orders of the Courts below, the Court held that the Respondent Plaintiff may have been willing to perform his part of the contract, it however appears that he was not ready with funds and was possibly trying to buy time to discharge his part of the contract. The Court noted, \u201c<\/span>Making a subsequent deposit of balance consideration after lapse of seven years would not establish the Respondent Plaintiff’s readiness to discharge his part of the contract.<\/span>\u201d<\/span><\/p>\n

IBC \u2014 Section 7(5)(a) | NCLT \u201cmay\u201d reject Financial Creditor’s CIRP application even in case of Corporate Debtor’s default in payment of debt<\/span><\/h4>\n

The Bench of Indira Banerjee*<\/span> and JK Maheshwari, JJ., in Vidarbha Industries Power Ltd. v. Axis Bank Ltd.,<\/span> 2022 SCC OnLine SC 841<\/a>, rejected the view of NCLT and NCLAT that once it is found that a debt existed, and a Corporate Debtor is in default in payment of the debt there would be no option to the Adjudicating Authority (NCLT) but to admit the petition under Section 7 of the IBC. Going by the scheme of IBC and the legislative intent, the Court observed that the Adjudicating Authority (NCLT)<\/a> would have to exercise its discretion to admit an application under Section 7 of the IBC of the IBC and initiate CIRP on satisfaction of the existence of a financial debt and default on the part of the Corporate Debtor in payment of the debt, unless there are good reasons not to admit the petition.<\/p>\n

Can an establishment employing about 8000 workers be shut down for not obtaining Environmental Clearance, even when it acts in compliance with required pollution norms?<\/span><\/h4>\n

The Division Bench comprising of Indira Banerjee*<\/span>and J.K. Maheshwari, JJ., in Pahwa Plastics (P) Ltd. v. Dastak NGO,<\/span> 2022 SCC OnLine SC 362<\/a>, held that although to protect future generations and to ensure sustainable development, it is imperative that pollution laws be strictly enforced, were the adverse consequences of denial of ex post facto approval of Environment Clearance<\/a> outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and\/or Notifications.<\/p>\n

Impact of COVID-19 pandemic over Corporate Insolvency, Claims against Corporate Debtor and Period of Limitation<\/span><\/h4>\n

In a case relating to Corporate Insolvency, the Division Bench comprising of Indira Banerjee*<\/span> and J.K. Maheshwari, JJ., in GPR Power Solutions (P) Ltd. v. Supriyo Chaudhuri<\/span>, 2021 SCC OnLine SC 1328<\/a>, quashed the order of NCLAT rejecting the application under S. 60(5) of IBC. The Bench held that the NCLAT and NCLT had failed to consider the law laid down by the Court with regard to extension of limitation period due to Covid-19<\/a> pandemic.<\/p>\n

Levy of building cess on a contract for supply and delivery of equipment and materials- whether permissible?<\/span><\/h4>\n

In U.P. Power Transmission Corpn. Ltd. v. CG Power & Industrial Solutions Ltd., <\/span>(2021) 6 SCC 15<\/a>, where Uttar Pradesh Power Transmission Corporation Ltd. had levied cess on CG Power and Industrial Solutions Limited based only on CAG report, and, had withheld dues in respect of other contracts, the Bench of UU Lalit and Indira Banerjee*,<\/span> JJ., termed such levy a forcible extraction of cess<\/a> and held,<\/p>\n

\u201c\u2026 the Cess Act and\/or statutory rules framed thereunder prescribe the mode and manner of recovery of outstanding cess under the Cess Act. It is well settled that when statute requires a thing to be done in a particular manner, it is to be done in that manner alone. UPPTCL could not have taken recourse to the methods adopted by it.<\/i>\u201d<\/span><\/p>\n

Can a conditional acceptance of an offer be considered a concluded contract?<\/p>\n

The Bench of Navin Sinha and Indira Banerjee*<\/span>, JJ., in Padia Timber Co. (P) Ltd. v. Visakhapatnam Port Trust, (2021) 3 SCC 24<\/a>, held that when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition.<\/a><\/p>\n

However laudable the purpose is, Executive cannot deprive a person of his property without specific legal authority<\/span><\/h4>\n

The 2-judge bench of Indira Banerjee*<\/span> and Indu Malhotra, JJ., in Hari Krishna Mandir Trust v. State of Maharashtra,<\/span> (2020) 9 SCC 356<\/a>, held that Section 88 of Maharashtra Regional and Town Planning Act, 1966 cannot be read in isolation from the other provisions of the Act, particularly Sections 65, 66, 125 and 126 thereof. It further, said, \u201chowever laudable be the purpose, the Executive cannot deprive a person of his property<\/a> without specific legal authority, which can be established in a court of law.\u201d <\/span><\/p>\n

Can Family Court convert petition for maintenance under Section 125 CrPC to one under Muslim Women’s Protection Act?<\/span><\/h4>\n

The bench of R Banumathi and Indira Banerjee, JJ., in Rana Nahid v. Sahidul Haq Chisti,<\/span> (2020) 7 SCC 657<\/a>, gave a split verdict<\/a> on the issue whether a Family Court can convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The matter has, hence, been referred to a larger bench.<\/p>\n

Justice Indira Banerjee<\/span> noted that there can be no dispute that the Family Court alone has jurisdiction in respect of personal and family matters relating to women and men, irrespective of their religion. Family matters of Muslim women pertaining inter alia to marriage, divorce etc. are decided by Family Courts, as also claims of Muslim wives to maintenance under Section 125 of the Cr.P.C.<\/p>\n

\u201cThere could be no reason to single out divorced Muslim wives to deny them access to the Family Courts, and that in my view, was never the legislative intent of the 1986 Act for Muslim Women.\u201d<\/span><\/span><\/p>\n

Triple Talaq| No bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act, 2019<\/span><\/h4>\n

The 3-judge bench of Dr. DY Chandrachud*<\/span>, Indu Malhotra and Indira Banerjee, JJ., in Rahna Jalal v. State of Kerala, <\/span>(2021) 1 SCC 733<\/a>, held that there is no bar on granting anticipatory bail<\/a> for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail.<\/p>\n

Even a woman of easy virtue has the right to refuse to have sexual intercourse<\/span><\/h4>\n

The Bench comprising of R. Banumathi* and Indira Banerjee, JJ., in State (NCT of Delhi) v. Pankaj Chaudhary<\/span>, (2019) 11 SCC 575<\/a>, set aside the judgment of the Delhi High Court<\/a> which had reversed the conviction under Section 376(2)(g), IPC recorded by the trial court, stating that, \u201cEven assuming that the prosecutrix was of easy virtue, she has a right to refuse to submit herself to sexual intercourse to anyone.\u201d<\/span><\/p>\n

Whether there should be any \u201cCooling off Period\u201d for civil servants to contest elections post resignation\/retirement?<\/span><\/h4>\n

The Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., in Vivek Krishna v. Union of India,<\/span> 2022 SCC OnLine SC 1040<\/a>, dismissed a PIL seeking issuance of writ of Mandamus on the Union of India, to impose restrictions to prevent Civil Servants from contesting elections to the Legislature<\/a>, Central or State, on a political party ticket, immediately after retirement or resignation from service, by imposing a \u201cCooling off Period\u201d.<\/p>\n

No time limit could be fixed while granting anticipatory bail<\/p>\n

In a significant ruling rendered by the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ., in Sushila Aggarwal v. State (NCT of Delhi), <\/span>(2020) 5 SCC 1<\/a>, it was unanimously ruled that the protection granted to a person under Section 438<\/a> Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.<\/p>\n

Accused under NDPS Act not entitled to acquittal as a blanket rule merely because the complainant is the investigating officer<\/span><\/h4>\n

The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ., in Mukesh Singh v. State (NCT of Delhi),<\/span> (2020) 10 SCC 120<\/a>, held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule<\/a> merely because the complainant is the investigating officer.<\/p>\n

Sub-classification of Scheduled Castes| Revision of E.V. Chinnaiah decision needed<\/span><\/h4>\n

5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., in State of Punjab v. Davinder Singh,<\/span> (2020) 8 SCC 1<\/a>, observed that SC decision of E.V. Chinnaiah v. State of A.P.,<\/span> (2005) 1 SCC 394<\/span><\/a>, is required to be revisited, referred the matter to a larger bench<\/a>. While doing so, the Court observed, \u201cReservation was not contemplated for all the time by the framers of the Constitution. On the one hand, there is no exclusion of those who have come up, on the other hand, if sub- classification is denied, it would defeat right to equality by treating unequal as equal<\/i>.\u201d<\/span><\/p>\n

Andhra Pradesh’s 100% reservation for Scheduled Tribe candidates for the post of teachers without rhyme or reason<\/span><\/h4>\n

Holding the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates<\/a> out of whom 33.1\/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, unconstitutional, the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., in Chebrolu Leela Prasad Rao v. State of A.P.<\/span>, (2021) 11 SCC 401<\/a>, has held that there was no rhyme or reason with the State Government to resort to 100% reservation.<\/span><\/p>\n

The constituents of \u201cconsent\u201d with respect to Section 375 of Penal Code, 1860<\/p>\n

The Bench of D.Y. Chandrachud and Indira Banerjee, JJ., in Pramod Suryabhan Pawar v. State of Maharashtra,<\/span> (2019) 9 SCC 608<\/a>, held that \u201cconsent<\/i>\u201d with respect to S. 375, IPC involves an active understanding of circumstances, actions and consequences of proposed act. Individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as various possible consequences flowing from such action or inaction, consents to such action. Where a woman does not \u201cconsent\u201d to sexual acts described in main body of S. 375, offence of rape has occurred. While S. 90, IPC does not define \u201cconsent\u201d; \u201cconsent\u201d based on a \u201c<\/i>misconception of fact\u201d is not consent in the eye of law. Thus, in case of woman engaging in sexual relations on false promise to marriage, her \u201cconsent\u201d is based on \u201cmisconception of fact\u201d, and such sexual act(s) will amount to rape.<\/i><\/p>\n

Notable Dissents<\/p>\n

Officers designated under Section 53 of the NDPS Act are \u201cPolice Officer\u201d within the meaning of section 25 of the Evidence Act<\/span><\/h4>\n

In a 2:1 verdict rendered by the bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ., in Tofan Singh v. State of T.N.,<\/span> (2021) 4 SCC 1<\/a>, it was held that the officers who are invested with powers under section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) are \u201cpolice officers\u201d within the meaning of section 25 of the Evidence Act, 1872, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.<\/p>\n

Justice Indira Banerjee<\/span> gave a dissenting opinion<\/a> on the issue and observed that \u201cA crime under the NDPS Act is a crime against society and not just an individual or a group of individuals. While the safeguards in the NDPS Act must scrupulously be adhered to prevent injustice to an accused, the Court should be vigilant to ensure that guilty offenders do not go scot free by reason of over emphasis on technicalities. Substantial justice must be done. Every piece of evidence should be objectively scrutinized, evaluated and considered to arrive at a final decision<\/i>.\u201d<\/span><\/p>\n

Membership of Committees\/ Authorities and Miscellaneous14<\/sup><\/a><\/p>\n