JUDGMENTS
 (SUPREME COURT OF INDIA) 

Party(ies)'s Name(s) Short Notes Citations

Aruna Ramchandra Shanbaug Vs. Respondent: Union of India (UOI) and Or

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Equivalent Citation: AIR2011SC1290, 2011 (Suppl.) ACC 321, 2011(59)BLJR561, I(2011)CCR575(SC), ILR2011(1)Kerala913, [2011(2)JCR172(SC)], JT2011(3)SC300, 2011(2)KCCRSN123, 2011 (3) KLT(SN) 26, (2011)2MLJ735(SC), 2011(2)RCR(Criminal)167, 2011(1)RCR(Criminal)699, 2012(5)RCR(Criminal)706, 2011(3)SCALE298, (2011)4SCC454, (2011)2SCC(Cri)352, [2011]4SCR1057, 2011(1)UC622, 2011(2)UJ771 MANU/SC/0176/2011

Case Note: Constitution of India, 1950 - Article 32--Maintainability of petition--Held--Under Article 32 of Constitution petitioner has to prove violation of fundamental right--Right to life guaranteed by Article 21 of Constitution does not include the right to die--Petition is not maintainable."Brain Death"--Means complete absence of voluntary movements--This patient can only be maintained alive by advanced life support machine--These patients can be legally declared dead to allow their organs to be taken for donation."Coma" Patients--These patients are unconscious--They can not be awakened even by application of a painful stimules--They have normal heart beat and breathing and do not require advanced life support."Permanent vegetative stage"--In PVS complete absence of behavioral evidence for self or environmental awareness--They can not voluntarily control passing of urine and stools--They have normal heart beating and breathing--There is no threat to life and can survive for many years."Life--Scope of--Held--Life is not mere living in health and health is not the absence of illness but a glowing vitality."Withdrawal of life support"--Means and scope--Held--Withdrawal of life support by Doctor is in law, considered as an omission and not a positive steps to terminate life--Later would be euthanasia and a criminal offence."Active and Passive Euthanasia"--Held--Active euthanasia entails use of lethal substances or forces to kill a person while passive euthanasia entails with holding of medical treatment for discontinuance of life."Permanent Vegetative Stage"--Characteristic--Held--Distinguishing characteristic of PVS is that the brain stem remains alive and functioning while the cortex has lost its functions--So PVS patient Continues to breath unaided and his digestion continues to function--Though his eye are open but unable to see and hear.Indian Penal Code, 1860--Section 309--Attempt to suicide--Legality--Held--Although Section 309 I.P.C. has been held to be constitutional valid but time has come when it should be deleted by parliament as it has become anachronistic--A person attempt to suicide in a depression and needs help."Withdrawal of Life Support" of PVS Patient--Requisite--Held--A decision has to be taken to discontinue life support either by the parents or spouse or other close relatives or in the absence of any of them such a decision can be taken even by a person or a body of persons acting as a next friend--It can also be taken by doctor attending the patient--Decision should be taken bona fide in the best interest of the patient.Constitution of India, 1950--Article 226--Withdrawal of life support-Competent court--Held--It is the High Court under Article 226 of Constitution which can grant approval for withdrawal of life support to a competent person--High Court under Article 226 of Constitution is not only entitled to issue writ but is also entitled to issue directions and orders.Application for "withdrawal of life support"--Procedure to be adopted--Held--When application for withdrawal of life support is filed than the Chief Justice of High Court should forth with constitute a Bench of two Judges who should decide to grant approval or not--Before doing so Bench should seek opinion of experts--For this purpose a panel of Doctors in every city be prepared.


A.R. Antulay-Vs.-R.S. Nayak and Ors

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AIR1988SC1531, 1988 (25) ACC 448, 1988(90)BOMLR312, 1988CriLJ1661, 1988(2)Crimes753(SC), JT1988(2)SC325, (1988)2SCC602, [1988]Supp1SCR1 MANU/SC/0002/1988


Ashoka Kumar Thakur- Vs.- Union of India (UOI) and Ors

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Equivalent Citation: 2008(56)BLJR1292, 2008(3)CTC97, [2008(3)JCR176(SC)], JT2008(5)SC1, (2008)3MLJ1105(SC), 2008(3)PLJR1, 2008(5)SCALE1, (2008)6SCC1 MANU/SC/1397/2008

Case Note: K.G. Balakrishnan, C.J. Constitution - Reservation for Admission in educational institutions or for public employment - Challenge thereto - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 giving reservation to Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs) questioned as being destructive of basic structure of the Constitution and were sought to be declared ultra vires the Constitution - Whether the Constitution (Ninety-Third Amendment) Act, 2005 against the o?=basic structureo?= of the Constitution itself and abridging the equality principles guaranteed under Article 15 and other provisions of the Constitution - Whether Ninety-Third Amendment of the Constitution is against the o?=basic structureo?= of the Constitution - Held, No, the Constitution (Ninety-Third Amendment) Act, 2005 does not violate the o?=basic structureo?= of the Constitution so far as it relates to the state maintained institutions and aided educational institutions - Incase of o?=private unaidedo?= educational institutions, the issue left open to be decided in an appropriate case - Clause (5) of Article 15 of the Constitution inserted by the amending act is an enabling provision which states that nothing in Article 15 or in Sub-clause (g) of Clause (1) of Article 19 would prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the State - Minority educational institutions referred to in Clause (1) of Article 30 to be excluded - Act 5 of 2007 was enacted to provide reservation of seats for Scheduled Castes, Scheduled Tribes and SEBCs of citizens in Central Educational Institutions - o?=Central Educational Institutiono?= are the one as defined under Section 2(d) of the Act - Act 5 of 2007 does not intend to provide reservation in o?=private unaidedo?= educational institutions - Kesavananda Bharati's case clearly indicated about what is the basic structure of the Constitution - Basic structure of the Constitution is to be taken as a larger principle on which the Constitution itself is framed - If any Constitutional amendment is made which moderately abridges or alters the equality principle or the principles under Article 19(1)(g), it cannot be said that it violates the basic structure of the Constitution - If such a principle is accepted, the Constitution would not be able to adapt itself to the changing conditions of a dynamic human society - As has been previously held when a constitutional provision is interpreted, the cardinal rule is to look to the Preamble to the Constitution as the guiding star and the Directive Principles of State Policy as the 'Book of Interpretation' - Preamble embodies the hopes and aspirations of the people and Directive Principles set out the proximate grounds in the governance of this country - Hence, the Ninety-Third Amendment to the Constitution does not violate the o?=basic structureo?= of the Constitution so far as it relates to aided educational institutions Constitution - Reservation for Admission in educational institutions or for public employment - Whether Articles 15(4) and 15(5) are mutually exclusive and contradictoryo?= Whether Article 15(5) is to be held ultra vires - Held, Article 15(5) constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory - Both Article 15(4) and 15(5) are enabling provisions and operate in different areas - If the intention of the Parliament was to exclude Article 15(4), they could have very well deleted Article 15(4) of the Constitution - Minority institutions are also entitled to the exercise of fundamental rights under Article 19(1)(g) of the Constitution, whether they be aided or unaided - But in the case of Article 15(5), the minority educational institutions, whether aided or unaided, are excluded from the purview of Article 15(5) of the Constitution - Thus, both, being enabling provisions, would operate in their own field and the validity of any legislation made on the basis of Article 15(4) or 15(5) have to be examined on the basis of provisions contained in such legislation or the special provision that may be made under Article 15(4) or 15(5) Constitution - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether exclusion of minority educational institutions from Article 15(5) violative of Article 14 of Constitution - Held, No, as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions - Plea not tenable because the minority institutions have been given a separate treatment in view of Article 30 of Constitution - Such classification has been held to be in accordance with the provisions of the Constitution. The exemption of minority educational institutions has been allowed to conform Article 15(5) with the mandate of Article 30 of the Constitution. Moreover, both Article 15(4) and Article 15(5) are operative and the plea of non-severability is not applicable - Article 15(4) and Article 16(4) are not exceptions to Article 15(1) and Article 16(1) respectively - If at all there is any violation of Article 14 or any other equality principle, the affected educational institution should have approached the Court to vindicate their rights - No such petition was filed, therefore, the exclusion of minority educational institutions from Article 15(5) not violative of Article 14 of the Constitution Constitution - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution - Held, No, the Ninety-Third Amendment of the Constitution does not affect the executive power of the State under Article 162 of the Constitution and hence, procedure prescribed under Proviso to Article 368(2) not required to be followed - Powers of the Parliament and the State legislatures to legislate are provided for under Articles 245 to 255 of the Constitution - Under the proviso to Article 162, any matter with respect to which the legislature of the State and the Parliament have power to make laws, the executive power of the State shall be subject to and limited by the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union authorities thereof - Ninety-Third Constitutional Amendment does not expressly or impliedly take away any such power conferred by Article 162 - Further by virtue of the 42nd Amendment to the Constitution, o?=educationo?= which was previously in Entry No. 11 in List II was deleted and inserted in List III as Entry No. 25 as the field of legislation in List III - Ninety-Third Constitutional Amendment does not fall within the scope of proviso to Article 368 Constitution - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether the Act 5 of 2007 constitutionally invalid in view of definition of o?=Backward Classo?= and whether the identification of such o?=Backward Classo?= based on o?=casteo?= is constitutionally valid - Held, identification of o?=backward classo?= is not done solely based on caste - Other parameters are followed in identifying the backward class - Act 5 of 2007 therefore not invalid - In India, caste in a socio-organizational manner would mean that it is not characterized merely by the physical or occupational characteristics of the individuals who make it up rather; it is by its codes and its closeknit social controls - A social class is therefore a homogeneous unit, from the point of view of status and mutual recognition; whereas a caste is a homogeneous unit from the point of view of common ancestry, religious rites and strict organizational control - Thus the manner in which the caste is closed both in the organizational and biological sense causes it to differ from social class - In a social class, the exclusiveness would be based primarily on status and social classes divide homogeneous populations into layers of prestige and esteem, and the members of each layer are able to circulate freely with it - In a caste the social distance between members is due to the fact that they belong to entirely different organizations - Caste may be said as a horizontal division and a class, a vertical division - As pointed out the National and State Commission for the Backward Classes have prepared a list based on elaborate guidelines framed after studying criteria/indicators framed by the Mandal Commission - An elaborate questionnaire was prepared by the Commission and the answers in this questionnaire were considered in detail for inclusion/rejection in the list - Lists of socially and educationally backward classes of citizens thus clearly being prepared not solely on the basis of the caste and if caste and other considerations are taken into account for determining backwardness, it cannot be said that it would be violative of Article 15(1) of the Constitution - Thus, identification of SEBCs not violative of Article 15(1) of the Constitution Constitution - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether Creamy Layer is to be excluded from SEBCs - Held, yes, the o?=Creamy Layero?= is to be excluded from SEBCs - Identification of SEBCs would not be complete and without the exclusion of o?=creamy layero?= such identification may not be valid under Article 15(1) of the Constitution - Determination of backward class cannot be exclusively based on caste - Principle of o?=creamy layero?= is introduced merely to exclude a section of a particular caste on the ground that they are economically advanced or educationally forward - They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class - Principle of o?=creamy layero?= is applied not as a general principle of reservation but for the purpose of identifying the socially and educationally backward class Constitution - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Parameters to determine the o?=creamy layero?= group - Held, parameters contained in the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on 08.09.1993 may be applied - Definition of o?=Other Backward Classeso?= under Section 2(g) of the Act 5 of 2007 should be deemed to mean class or classes of citizens who are socially and educationally backward, and so determined by the Central Government; and if the determination is with reference to caste, then the backward class shall be after excluding the creamy layer - However, same principle of determining the creamy layer for providing 27% reservation for backward classes for appointment need not be strictly followed in case of reservation envisaged under Article 15(5) of the Constitution - Government can make a relaxation to some extent so that sufficient number of candidates may be available for the purpose of filling up the 27% reservation - It is for the Union Government and the State Governments to issue appropriate guidelines to identify the o?=creamy layero?= so that SEBC are properly determined in accordance with the guidelines given by this Court - If even by applying this principle, still the candidates are not available, the State can issue appropriate guidelines to effectuate the implementation of the reservation purposefully Constitution - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether the o?=creamy layero?= principle is applicable to Scheduled Tribes and Scheduled Castes - Held, No, o?=Creamy Layero?= principle is not applicable to Scheduled Castes and Scheduled Tribes - o?=Creamy layero?= principle is one of the parameters to identify backward classes - Therefore, principally the o?=creamy layero?= principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves - Scheduled Castes and Scheduled Tribes were treated as a separate category and nobody ever disputed identification of such classes - So long as o?=creamy layero?= is not applied as one of the principles of equality, it cannot be applied to Scheduled Castes and Scheduled Tribes - So far, it is applied only to identify the socially and educationally backward classes - For the purpose of reservation, the principles of o?=creamy layero?= not applicable for Scheduled Castes and Scheduled Tribes Constitution - Principles of Reservation - Validity enactment of Act 5 of 2007. Whether the principles laid down by the United States Supreme Court for affirmative action such as o?=suspect legislationo?=, o?=strict scrutinyo?= and o?=compelling State necessityo?= applicable to principles of reservation or other affirmative action contemplated under Article 15(5) of the Constitution - Held, No, the principles laid down by the United States Supreme Court not applicable for challenging the validity of Act 5 of 2007 or reservations or other affirmative action contemplated under Article 15(5) of the Constitution - Decisions of the United States Supreme Court were not applied in the Indian context as the structure of the provisions under the two Constitutions and the social conditions as well as other factors widely different in both the countries - Principles applied by the Supreme Court of the United States of America cannot be applied directly to India as the gamut of affirmative action in India fully supported by constitutional provisions - Principles of o?=suspect legislationo?= have not been applied so far and what have been followed is the doctrine that every legislation passed by the Parliament is presumed to be constitutionally valid unless otherwise proved - Challenge of Act 5 of 2007 on the ground that it does not stand the o?=strict scrutinyo?= test and there was no o?=compellable State necessityo?= to enact this legislation cannot be accepted Constitution - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether delegation of power to the Union Government to determine as to who shall be the backward class constitutionally valid - Held, the delegation of power not excessive delegation and such delegation is constitutionally valid - Backward class is not a new word as going by the Constitution, there are sufficient constitutional provisions to give an idea as to what o?=backward classo?= is - It is only for the purpose of Act 5 of 2007 that the Union of India has been entrusted with the task of determining the backward class with there already being National Commission and various State Commissions dealing with the affairs of the backward class of citizens in the country - Determination of backward classes itself a laborious task, which the Parliament cannot do it by itself - It is incorrect to state that the Union of India has been given wide powers to determine the backward classes and thus challenge of Act 5 of 2007 on this ground fails Constitution - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether the Act invalid as no time limit prescribed for its operation and no periodical review contemplated - Petitioners contended that the reservation of 27% provided for the backward classes in the educational institutions contemplated under the Act does not prescribe any time limit and this is opposed to the principle of equality - Petitioners contended that unless the period is prescribed, this affirmative action will continue for an indefinite period and would ultimately result in reverse discrimination - Held, No, the Act not invalid for the reason of there being no time limit prescribed for its operation, but a review can be made after a period of 10 years - At the outset, it may not be possible to fix a time limit or a period of time - Depending upon the result of the measures and improvements that have taken place in the status and educational advancement of the socially and educationally backward classes of citizens the matter could be examined by the Parliament at a future time but that cannot be a ground for striking down a legislation - Parliament however can certainly review the situation and even though a specific class of citizens is in the legislation, it is the constitutional duty of the Parliament to review such affirmative action as and when the social conditions are required - In the case of reservation of 27% for backward classes, there could be a periodic review after a period of 10 years and the Parliament could examine whether the reservation has worked for the good of the country - Therefore, the legislation cannot be held to be invalid on such ground but a review can be made after a period of 10 years Constitution - Reservation for Admission in educational institutions or for public employment - What would be the educational standard to be prescribed to find out whether any class is educationally backward - It was contended that under Article 15(5) of the Constitution, the reservation or any other affirmative action could be made for the advancement of only socially and educationally backward classes of citizens or Scheduled Castes or Scheduled Tribes - Further the educational standard to be assessed should be matriculation or 10+2 and not more than that - In reply attention was drawn to various steps taken by the Union Government to improve the primary school education and also the upper primary school - Held, though at the time of attaining Independence, the basic idea was to improve primary and secondary level education, but now, after a period of more than 50 years, it would be idle to contend that the backward classes shall be determined on the basis of their attaining education only to the level of 10+2 stage - It would be anachronistic to contend that primary or secondary education shall be the index for fixing backward class of citizens - Contention that educational standard of matriculation or (10+2) should be the benchmark to find out whether any class is educationally backward rejected Constitution - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved - Main contention raised by the Petitioners was that the entire Act is liable to be set aside as there was no necessity to provide any reservation to socially and educationally backward classes and most of the castes included in the list prepared as per the Mandal Commission are educationally very much advanced and the population of such group not scientifically collected - Held, providing 27% of seats for other backward classes not illegal and the Parliament must be deemed to have taken into consideration all relevant circumstances when fixing the 27% reservation - Quantum of reservation provided under the Act 5 of 2007 based on the detailed facts available with the Parliament o?=Though a caste-wise census not available, several other data and statistics available - Petitioners have not produced any documents to show that the backward class citizens are less than 27%, vis-o?=-vis, the total population of this country or that there was no requirement of 27% reservation for them - Parliament invested with the power of legislation and must be deemed to have taken into consideration all relevant circumstances when passing a legislation of this nature - It is futile to contend whether Parliament was not aware of the statistical details of the population of this country and, therefore 27% reservation provided in the Act not illegal and accordingly the Act not liable to be struck down Constitution - Validity of Constitutional amendment and plenary legislation - Determination of grounds of challenge thereto - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether legislation was intended to please a section of the community as part of the vote catching mechanism - Held, a legislation passed by the Parliament can be challenged only on constitutionally recognized grounds - Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires of the provisions of the Constitution - If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review - A legislation could also be challenged as unreasonable if it violates the principles of equality adumbrated in Constitution or it unreasonably restricts the fundamental rights under Article 19 of the Constitution - A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground - Validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law - Plea that the legislation was intended to please a section of the community legally not acceptable and hence rejectedDr. Arijit Pasayat and C.K. Thakker, JJ. Constitution - Exclusion of creamy layer - Reservation for Admission in educational institutions or for public employment - Whether the creamy layer be excluded from the 93rd Amendment (Reservation Act) - What would be the parameters for creamy layer exclusion - Whether creamy layer exclusion would be applicable to SC/ST - Held, Creamy layer must be excluded from the 93rd amendment as otherwise it would be ultra vires and invalid - For a valid method of creamy layer exclusion, the Government may use its post Sawhney-I criteria as a template in accordance to office Memorandum dated,, 8- 9-1993, para 2(c)/Column 3) o?=Government needs to periodically revise the O.M. so that changing circumstances can be taken into consideration while keeping constitutional goal in view - Further, Government needs to exclude the children of former and present Members of the Parliament and Members of Legislative Assemblies and the said O.M. be amended accordingly - In Indra Sawhney-I, creamy layer exclusion was only in regard to OBC - Similarly since in the instant case also entire discussion was confined only to Other Backward Classes, no opinion expressed with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes Constitution - Reservation - Whether Fundamental Right under Article 21A can be accomplished without great emphasis on primary education - Held, no it cannot - An inversion in priorities between higher and primary/secondary education would make compliance with Article 21A extremely difficult - Priorities needs to be changed - Total compliance of Article 21A needs to be ensured as the same means that good quality education is imparted and all children aged six to fourteen regularly attend schools - Government needs to enact legislation that (a) provides low-income parents/guardians with financial incentives such that they may afford to send their children to schools; (b) criminally penalizes those who receive financial incentives and despite such payment send their children to work; (c) penalizes employers who preclude children from attending schools; (d) penalty should include imprisonment; (e) until for children from six to fourteen years the object of free and compulsory education is accomplished, the Government should continue to increase the education budget and make earnest efforts to ensure that children go to schools and receive quality education; (f) Parliament should fix a deadline by which time free and compulsory education would reach every child Constitution - Reservation on unaided institutions - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether the 93rd Amendment violates the basic structure of the Constitution by imposing reservation on unaided institutions - Held, yes it does - Imposing reservation on unaided institutions violates the Basic Structure by stripping citizens of their fundamental right under Article 19(1)(g) to carry on an occupation - Establishment and running of an educational institution falls under the right to an occupation and right to select students on the basis of merit is an essential feature of the right to establish and run an unaided institution - Reservation is an unreasonable restriction that infringes this right by destroying the autonomy and essence of an unaided institution - Effect of the 93rd Amendment is such that Article 19 is abrogated, leaving the Basic Structure altered and to restore the basic structure, reference of 93rd Amendment to o?=unaidedo?= institutions is severed Constitution - Reservation - Identification of Socially and economically backward classes - Use of Caste - Whether the use of caste to identify SEBCs runs afoul of the casteless/classless society in violation of Secularism - Held, if reservation in education is to stay, it should adhere to a basic tenet of Secularism: it should not take caste into account - As long as caste is a criterion, objective of casteless society can never be achieved - Exclusively economic criteria should be used - Government needs to ensure that for a period of ten years caste and other factors such as occupation/income/property holdings or similar measures of economic power may be taken into consideration and thereafter only economic criteria should prevail Constitution - Reservation for Admission in educational institutions or for public employment - Whether Articles 15(4) and 15(5) are mutually contradictory, such that 15(5) is unconstitutional - Petitioners argued that Articles 15(5) and 15(4) are inconsistent to the extent that 15(5) exempts minority institutions from reservation and 15(4) incorporates aided minority institutions in the reservation scheme - Because both provisions contain o?=non-obstante clauseso?=, they render each other void - Held, Articles 15(4) and 15(5) to be read harmoniously - In the instant case, one of the express purposes of 15(5) was to exempt minority institutions and thus avoid conflict with Article 30(1), which is found in the text of Article 15(5) itself - Article 15(4) was not passed with an express intention to include minority institutions; nor did it arise out of a case in which minority institutions were a party - Since Article 15(5) is later in time and specific to the question presented, it must neutralize 15(4) in regard to reservation in education. - Article 15(4) still applicable to other areas in which reservation may be passed Constitution - Interpretation of Article 15(5) of the Constitution of India - Whether exemption given by Article 15(5) to minority institutions from the purview of reservation violate Article 14 of the Constitution - Held, given the inherent tension between Articles 29(2) and 30(1), the overriding constitutional goal of realizing a casteless/classless society should serve as atie-breaker - In the instant case, aided minority institutions stand to benefit from the Reservation Act: instead of having to admit a reasonable number of outsiders they would be exempted from reservation - Given the ultimate goal of furthering a classless/casteless society, there is no need to go out on a limb and rewrite them into the Amendment as such a ruling would subject even more institutions to caste-based reservation - This would be a step back for the Nation, furthering the caste divide and hence contention refused Constitution - Applicability of principles enunciated by foreign Courts - Whether standards of review laid down by the U.S. Supreme Court applicable in terms of review of affirmative action under Art 15(5) and similar provisions - Held, the principles enunciated by the American Supreme Court, such as, o?=Suspect Legislationo?= o?=Narrow Tailoringo?= o?=Strict Scrutinyo?= and o?=Compelling State necessityo?= not strictly applicable to challenge the impugned legislation - Cases decided by other countries though not binding but do have great persuasive value Constitution - Delegation of power - OBC identification - Whether the Reservation Act's delegation of power to the Union Government excessive - Held, No, it is not an excessive delegation - Views expressed in respect of the present issue with reasoning by the Hon'ble Chief Justice in the instant Judgment agreed Constitution - Validity of Constitution (Ninety-Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 - Whether the impugned legislation invalid as it fails to set a time-limit for caste-based reservation - Held, No - It is consistent with constitutional goal of achieving a classless/casteless society that a time-limit be set - A Larger Bench could certainly hold that only economic criteria could be used to identify SEBCs and that it should be done by a certain date Constitution - Eligibility for special provisions under Article 15(5) of the Constitution of India - At what point a student remains no longer educationally backward and thus no longer eligible for special provisions under 15(5) - Held, Once a candidate graduates from a university, the said candidate is educationally forward and is ineligible for special benefits under Article 15(5) of the Constitution for post graduate and any further studies thereafter Constitution - Reservation - Instituting OBC cut-off marks - Whether it would be reasonable to balance OBC reservation with societal interests by instituting OBC cut-off marks slightly lower than that of the general category - Held, it is reasonable to balance reservation with other societal interests - To maintain standards of excellence, cut off marks for OBCs should be set not more than 10 marks out of 100 below that of the general category Dalveer Bhandari, J. Constitution - Reservation - Higher Education and Public Employment - Exclusion of Creamy layer - Articles 14,15 and 16 of the Constitution - Whether the creamy layer be excluded from the 93rd Amendment (Reservation Act) - Held, yes it must. Apex Court in the matter of Indra Sawhney observed that reservation is given to backward classes until they cease to be backward and not indefinitely - To lump the creamy and non creamy in the same category is unreasonable classification - It violates the Right to equality mentioned in Articles 14,15,and 16 - As per the text of the Article 15(5) demands that recipients should be educationally backward - Creamy layer's status as socially advanced is sufficient to disqualify them from preferential treatment, as most of them were literate - Hence people belonging to this group do not require reservation - It is unreasonable to classify rich and poor OBCs as single entity violates the right to equality [para 22,25,27,30,34,35,43,44] Constitution - Exclusion of Creamy Layer - What are the parameters for exclusion of creamy layer - Held, for a valid method of creamy layer exclusion the Government may use its post-Sawhney I criteria - Government should periodically revise the O.M. so that changing circumstances can be taken into consideration while keeping constitutional goal in view - Government should consider excluding the children of former and present Members of the Parliament and Members of Legislative Assemblies and the said O.M. be amended accordingly [para 55,57] Constitution - Applicability of - Creamy layer on SC and ST - Held, in the matter of Indra Sawhney-I it was held that discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes - In the instant case, the entire discussion was confined only to Other Backward Classes - Therefore, no opinion with regard to the applicability of exclusion of creamy layer to the Scheduled Castes and Scheduled Tribes [para 34] Constitution - Reservation - Higher Education and Public employment - Compliance of Article 21 A of the Constitution - Can the fundamental Right under Article 21A be accomplished without emphasis on primary education - Held, No, it cannot - An inversion in priorities between higher and primary/secondary education would make compliance with Article 21A extremely difficult - It is not suggested that higher education needs no encouragement or that higher education should not receive more funds, but there has to be much greater emphasis on primary education - Nothing is really more important than to ensure total compliance of Article 21A [para 126,127,128,129,130,131] Constitution - Imposition of reservation on unaided institution amounts to - Violation of - Basic Structure of Constitution - Whether 93rd Amendment violates the Basic Structure of Constitution by imposing reservation on unaided institutions - Held, Yes, imposing reservation on unaided institutions violates the basic structure by obliterating citizens' 19(1)(g) right to carry on an occupation - T.M.A. Pai and Inamdar affirmed that the establishment and running of an educational institution falls under the right to an occupation - Reservation is an unreasonable restriction that infringes the right by destroying the autonomy and essence of an unaided institution - 93rd Amendment not only abrogates Article 19 but also altered the Basic Structure - For restoring the Basic Structure of Constitution the 93rd Amendment's reference to unaided institutions must be served [para 132o?=182] Constitution - Reservation - Higher Education and Public employment - Whether the use of caste to identify SEBCs runs afoul of the casteless/classless society in violation of Secularism - Held, use of caste is valid as per Sawhney I o?=If reservation in education is to stay, it should adhere to a basic tenet of Secularism: it should not take caste into account - As long as caste is a criterion, a casteless society will never be achieved - Exclusively economic criteria should be used - For a period of ten years caste and other factors such as occupation/income/property holdings or similar measures of economic power may be taken into consideration and thereafter only economic criteria should prevail otherwise would not be able to achieve the constitutional goal of casteless and classless India [para 194,195,231,248,251] Constitution - Reservation o?=Higher Education and Public Employment - Article 15(5) of the Constitution - Whether Article 15(4) and 15(5) mutually contradictory such that 15(5) is unconstitutional - Appellant contended that Article 15(5) and 15(4) were inconsistent to the extent that 15(5) exempts minority institutions from reservation and 15(4) incorporates aided minority institution in reservation scheme both the provision contains non-obstante clause hence void o?=Held, Article 15 (4) and 15(5) were read harmoniously o?=Article 15(5) is specific, it refers to special provisions that relate to admission in educational institutions, whereas 15(4) makes no such reference to the type of entity at which special provisions are to be enjoyed - 15(5) is later in time and specific to the question presented, it must neutralize 15(4) in regard to reservation in education - Constitutional articles are to be read harmoniously, not in isolation as per T.M.A.Pai - Courts interpretation is harmonious because Article 15(4) still applies to other areas in which reservation may be passed [para 252,253,254,255,256] Constitution - Reservation - Higher Education and Public Employment - Violation of - Fundamental Right - Does Article 15(5)'s exemption of minority institutions from the purview of reservation violate Article 14 of the Constitution - Held, minorities possess one right or privilege that non-minorities do not: establishing and administering institutions for their community - Right to admit students in aided minority institutions was subject to admitting a reasonable number of outsiders - In the instant case, aided minority institutions stand to benefit from the Reservation Act: instead of having to admit a reasonable number of outsiders they would be exempted from reservation - However, their non-minority counterparts would not - However, constitutional goal and philosophy must be kept in mind - Given the ultimate goal of furthering a classless/casteless society, there is no need to go out on a limb and rewrite them into the Amendment - It will be a wrong step if minority institutions (even those that are aided) are subject to reservation [para 268,269] Constitution - Reservation - Higher Education and Public Employment - Whether the standards of review laid down by the US Supreme Court applicable to our review of affirmative action under Article 15(5) and similar provision - Held, caste system is peculiar to this country - Perhaps the entire society has been divided on the basis of caste - This social problem can be compared to some extent with that of American society - Cases of affirmative action decided in the United States are relevant - They show us how that society has dealt with the problem of racial discrimination o?=Decisions of foreign countries are not binding on Indian Courts - Indian Courts have not adopted American standards of review - But the Judgments delivered by U.S. Courts on affirmative action have great persuasive value and they may provide broad guidelines to tackle prevailing condition - Let the path to our constitutional goals be enlightened by experience, learning, knowledge and wisdom from any quarter [para 183] Constitution - Reservation - Higher Education and Public Employment - Is the impugned legislation invalid as it falls to set a time limit for caste based reservation - Held, it is not invalid because it fails to set a time-limit - Given the Parliament's history of extending time-limits on other reservation schemes, the Parliament will forever continue to extend reservations o?=It was consistent with constitutional goal of achieving a classless/casteless society that a time-limit be set - As per Sawhney I only a Larger Bench could make such a ruling o?=A Larger Bench could certainly hold that only economic

Ratio Decidendi: "Principle of "creamy layer" is applied not as a general principle of reservation but for the purpose of identifying the socially and educationally backward class." "Legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground." "Validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law." "Establishment and running of an educational institution falls under the right to an occupation and right to select students on the basis of merit is an essential feature of the right to establish and run an unaided institution, reservation is an unreasonable restriction that infringes this right by destroying the autonomy and essence of an unaided institution." "Once a candidate graduates from a university, is said to be educationally forward and is ineligible for special benefits under Article 15(5) of the Constitution for post graduate and any further studies thereafter." "For the benefit of the 93rd Amendment the recipients should be educationally backward as per the text of the Article 15(5) of the constitution." "If reservation in education is to stay, it should adhere to a basic tenet of Secularism: it should not take caste


D.K. Basu -Vs.- State of West Bengal

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Equivalent Citation: 1997(21)ACR277(SC), AIR1997SC610, 1997(1)ALD(Cri)248, 2001 (Suppl.) ACC 912, 1998(1)BLJR161, I(1997)CCR81(SC), 1997CriLJ743, 1996(4)Crimes233(SC),(1997)2GLR1631, JT1997(1)SC1, 1997(1)RCR(Criminal)372, RLW1997(1)SC94, 1996(9)SCALE298,(1997)1SCC416, [1996]Supp10SCR284 MANU/SC/0157/1997


Danial Latifi and Ors.-vs.-Union of India (UOI)

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Equivalent Citation: 2001VIIIAD(SC)1, AIR2001SC3958, 2001(2)ALD(Cri)787, 2007 (Suppl.) ACC 656, 2007 (Suppl.) AC 656, 2001(4)ALLMR(SC)829, 2001 (45) ALR 426, 2001(2)ALT(Cri)327, 2002(1)BLJR745, IV(2001)CCR81(SC), 2002(3)CGLJ184, 2001CriLJ4660, II(2001)DMC714SC, 2001GLH(3)465, (2002)1GLR531, 2001(3)GLT1, JT2001(8)SC218, 2002-2-LW372, (2002)1MLJ40(SC), 2001(4)RCR(Criminal)468, 2001(6)SCALE537, (2001)7SCC740,

2002(1)UC3MANU/SC/0157/1997

Society for Un-aided Private Schools of Rajasthan -Vs.- Union of India (UOI) and Ors.

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Equivalent Citation: AIR2012SC3445, 2012 4 AWC4260SC, 114(2012)CLT862, 2012(3)ESC330(SC), 2012(2)J.L.J.R.324, 2012(3)KarLJ177, (2012)3MLJ993(SC), 2012(2)PLJR439, 2012(2)RCR(Civil)775, 2012(4)SCALE272, (2012)6SCC1 MANU/SC/0311/2012

Case Note: Constitution - Applicability of enactment - Article 21A, 30(1) of Constitution f India, 1950; Sections 2(n), 38 of Right of Children to Free and Compulsory Education Act, 2009 - Issue was with regard to applicability of Right of Children to Free and Compulsory Education Act, 2009 ("2009 Act") to unaided non-minority schools - Held, Article 21A of Constitution, casted an obligation on State to provide free and compulsory education to children of age of 6 to 14 years and not on unaided non-minority and minority educational institutions - Rights of children to free and compulsory education guaranteed under Article 21A of Constitution and RTE Act, could be enforced against schools defined under Section 2(n) of Act, except unaided minority and non-minority schools not receiving any kind of aid or grants to meet their expenses from appropriate governments or local authorities - Section 12(1)(c) of Act, was read down so far as unaided non- minority and minority educational institutions were concerned, holding that it could be given effect to only on principles of voluntariness, autonomy and consensus and not on compulsion or threat of nonrecognition or non-affiliation - No distinction or difference could be drawn between unaided minority and non-minority schools with regard to appropriation of quota by State or its reservation policy under Section 12(1)(c) of Act - Such an appropriation of seats could also not be held to be a regulatory measure in interest of minority within meaning of Article 30(1) of Constitution or a reasonable restriction within meaning of Article 19(6) of Constitution - Right established by Article 30(1) of Constitution, was a fundamental right declared in terms absolute unlike freedoms guaranteed by Article 19 of Constitution, which was subject to reasonable restrictions - Article 30(1) of Constitution, was intended to be a real right for protection of minorities in matter of setting up educational institutions of their own choice - However, Regulations might lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition. However, such Regulation must satisfy test of reasonableness and that such Regulation should make educational institution an effective vehicle of education for minority community or for persons who resorted to it - Appropriate Government and local authority had to establish neighbourhood schools as provided in Section 6 read with Sections 8 and 9 of Act, within time limit prescribed in Statute - Duty imposed on parents or guardians under Section 10 of Act, was directory in nature and it was open to them to admit their children in schools of their choice, not invariably in neighbourhood schools, subject to availability of seats and meeting their own expenses - Sections 4, 10, 14, 15 and 16 of Act, were held to be directory in their content and application - Concerned authorities should exercise such powers in consonance with directions/guidelines laid down by Central Government in that behalf - Provisions of Section 21 of Act, as provided, would not be applicable to schools covered under Sub-section (iv) of Clause (n) of Section 2 of Act - They should also not be applicable to minority institutions, whether aided or unaided - In exercise of powers conferred upon appropriate Government under Section 38 of RTE Act, Government should frame rules for carrying out purposes of this Act and in particular, matters stated under Section 38 (2) of RTE Act - Directions, guidelines and rules should be framed by Central Government, appropriate Government and/or such other competent authority under provisions of RTE Act, as expeditiously as possible and, in any case, not later than six months from date of pronouncement of this judgment - All State Governments which had not constituted State Advisory Council in terms of Section 34 of RTE Act, shall so constitute Council within three months from today - Council so constituted should undertake its requisite functions in accordance with provisions of Section 34 of Act and advise Government in terms of Clauses (6), (7) and (8) of this order immediately thereafter - Central Government and State Governments might set up a proper Regulatory Authority for supervision and effective functioning of Act and its implementation - Madrasas, Vedic Pathshalas etc. which predominantly provided religious instructions and did not provide for secular education stand outside purview of Act - Right of Children to Free and Compulsory Education Act, 2009 was constitutionally valid and should apply to following: (i) a school established, owned or controlled by appropriate Government or a local authority; (ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from appropriate Government or local authority; (iii) a school belonging to specified category; and (iv) an unaided nonminority school not receiving any kind of aid or grants to meet its expenses from appropriate Government or local authority - However, said 2009 Act and in particular Sections 12(1)(c) and 18(3) of Act, infringed fundamental freedom guaranteed to unaided minority schools under Article 30(1) and, consequently, applying R.M.D. Chamarbaugwalla v. Union of India, principle of severability, said 2009 Act should not apply to such schools - This judgment would apply from academic year 2012-13 - However, admissions given by unaided minority schools prior to pronouncement of this judgment should not be reopened - Petitions disposed of.


D.S. Nakara and Ors.-Vs.-Union of India (UOI)

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Equivalent Citation: AIR1983SC130, 1983(31)BLJR122, [1983(47)FLR42], 1983KLJ153, (1983)ILLJ104SC, 1982(2)SCALE1213, (1983)1SCC305, [1983]2SCR165, 1983(1)SLJ131(SC), 1983(2)SLR246(SC) MANU/SC/0237/1982

Case Note: Service - Superannuation or Retiring Pension - Article 14 of Constitution and Central Civil Services (Pension) Rules, 1972 - Present writ petitions have been filed against notification whereby petitioners were refuged for getting retiring pension - Held, there is no pension fund as it is found either in contributory pension schemes administered in foreign countries or as in Insurance-linked pensions - Non-contributory pensions under 1972 rules is a State obligation - In a chart submitted, Union of India has worked out pension to pensioners who have retired prior to specified date and comparative advantage, if they are brought within purview of liberalized pension scheme - Difference upto level of Assistant or even Section Officer is marginal keeping in view that old pensioners are getting temporary increases - It was said that if pensioners who retired prior to relevant date are brought within purview of liberalized pension scheme - Therefore, satisfied that increased liability is not too high to be unbearable or such as would have detracted Government from covering old pensioners under scheme - Being eligible for liberalized pension scheme and thereby dividing a homogeneous class, classification being not based on any discernible rational principle and having been found wholly unrelated to objects sought to be achieved by grant of liberalized pension and eligibility criteria devised being thoroughly arbitrary, view that eligibility for liberalized pension scheme of 'being in service on specified date and retiring subsequent to that date' in impugned memoranda, violates Article 14 of Constitution and is unconstitutional and is struck down - Both memoranda shall be enforced and implemented - New rates of pension are effective from relevant date and will be applicable to all service officers who became/become noneffective on or after that date - Let a writ to that effect be issued - Petitions are disposed of


Githa Hariharan and Ors.-Vs.- Reserve Bank of India and Ors.

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Equivalent Citation: AIR1999SC1149, 1999 (38) ACC 463, 1999(2)ALLMR(SC)416, 1999 (35) ALR 518, 1999(2)ALT1(SC), 1999(1)BLJR777, 2000(1)BomCR251, [1999]95CompCas913(SC), 1999(1)CTC481, (1999)152CTR(SC)479, I(1999)DMC337SC, [1999]236ITR380(SC), JT1999(1)SC524, 1999-2-LW723, 1999(2)MhLj703, (1999)IIMLJ62(SC), 1999(2)MPLJ1, 1999(1)PLJR97, 1999(2)RCR(Civil)59, 1999(1)SCALE490, (1999)2SCC228, [1999]1SCR669, [1999]104TAXMAN220(SC), 1999(2)UJ916 MANU/SC/0117/1999


Kharak Singh Vs. The State of U.P. and Ors.

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Equivalent Citation: AIR1963SC1295, 1963CriLJ329, [1964]1SCR332 MANU/SC/0085/1962


Bangalore Water Supply and Sewerage Board-Vs. Respondents:A. Rajappa and Ors.

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Equivalent Citation: AIR1978SC548, AIR1978SC969, [1978(36)FLR266], (1978)IILLJ73SC, (1978)ILLJ349SC, (1978)2SCC213, [1978]3SCR207 MANU/SC/0257/1978


: M. Nagaraj and Ors-Vs.- Union of India (UOI) and Ors.

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=Equivalent Citation: AIR2007SC71, 2007(2)ALT20(SC), 2006 (4) AWC 4054 (SC), 2006(5)ESC177(SC), [2007(1)JCR147(SC)], JT2006(9)SC191, 2006(6)KarLJ529, 2006(4)PLJR319, 2006(10)SCALE301, (2006)8SCC212, (2007)1SCC(LS)1013, [2006]Supp(7)SCR336, 2007(4)SCT664(SC) MANU/SC/4560/2006

Case Note: (1) Constitution of India - Articles 14, 16 and 335--Fundamental right to equal opportunity in public employment--Reservation--In Indra Sawhney, (1992) Supp (3) SCC 217, Supreme Court held that reservation applied to initial appointment and not to promotion- -Clause (4A) was inserted in Article 16 by Constitution (Seventy-Seventh Amendment) Act, 1995 to provide for reservation in promotion for SCs/STs only--'Consequential seniority' was also accorded to such promotion by Constitution (Eighty-Fifth Amendment) Act, 2001 by amending clause (4A)--Clause (4B) was inserted in Article 16 by Constitution (Eighty-First Amendment) Act, 2000 to provide for 'carry forward rule' in respect of unfilled reserved vacancies--By Constitution (Eighty-Second Amendment) Act, 2000, proviso was added to Article 335 providing for relaxation in qualifying marks or lowering standards of evaluation for reservation in matters of promotion of SCs/STs-- Constitutional validity of these amendments challenged--Constitution Bench of Supreme Court, after analysing its various earlier judgments upheld their constitutional validity-- And arrived at following conclusion. The impugned constitutional amendments by which Articles 16 (4A) and 16 (4B) have been inserted flow from Article 16 (4). They do not alter the structure of Article 16 (4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between O.B.C. on one hand and SCs and STs on the other hand as held in Indra Sawhney, 1992 Supp (3) SCC 217, the concept of post-based Roster with in-built concept of replacement as held in R. K. Sabharwal, (1995) 2 SCC 745. We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. (2) Other principles--Constitutional Bench laid down following principles : (a) The basic structure concept limits amending power of Parliament. (b) Theory of basic structure is based on concept of constitutional identity. (c) Judicial review is an essential feature of our Constitution. (d) 'Equality' is the essence of democracy and accordingly, a basic feature of the(e) The concept of 'equality of opportunity' in public employment concerns an individual. (f) Equality in law is different from equality in fact. (g) Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in country. (h) It cannot be said that by insertion of 'Consequential seniority' in Article 16 (4A) in respect of reservation in promotion for SCs/STs, structure of Article 16 (1) stands destroyed or abrogated. (i) Principles of service jurisprudence are different from constitutional limitations. (j) Clause (4A) of Article 16 will be governed by two compelling reasons--'Backwardness' and 'inadequacy of representation', as mentioned in Article 16 (4). If the said two reasons do not exist, then the enabling provision in Article 16 (4A) cannot come into force. Apart from 'backwardness' and 'inadequacy of representation', the State shall also keep in mind 'overall efficiency'. (Article 335) (k) By Clause (4B) of Article 16, the "carry-forward"/"unfilled vacancies" of a year is kept out and excluded from overall ceiling limit of 50% reservation. (l) For carry-forward of unfilled reserved vacancies under Article 16 (4B), the time-scale has to be imposed in interest of efficiency in administration as mandated by Article 335 and posts cannot remain vacant for years. (m) It is law declared by the Supreme Court which is sought to be changed by impugned constitutional amendments. Said amendments are enabling in nature. Impugned amendments neither render obliteration of any constitutional limitations nor make any alteration in existing structure of equality Code. (n)There is no violation of the basic structure of the Constitution by any of the impugned amendments. Constitutional limitation under Article 335 is relaxed and not obliterated. (o) As long as boundaries mentioned in Article 16 (4), namely, backwardness, inadequacy in representation and efficiency of administration are retained in Articles 16 (4A) and 16 (4B) as controlling factors, constitutional invalidity to these enabling provisions cannot be attributed. (p)Efficiency in administration is held to be constitutional limitation on discretion vested in the State to provide for reservation. (q) The boundaries of width of power, namely, ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are not obliterated by the impugned amendments. (r) Equality as a concept is retained even under Article 16 (4A) which is carved out of Article 16 (4). (s) If the extent of reservation is excessive, then it makes an inroad into the principle of equality in Article 16 (1). JUDGMENT Constitution.


Central Board of Secondary Education and Ors.- Vs-Aditya Bandopadhyay and Ors.

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Equivalent Citation: 2011(106)AIC187, 2011 (88) ALR 701, 2011 (6) AWC 5567 (SC), 2011 (3) CG.L.R.W. 95, 2011(3)CLJ(SC)85, 2011(4)ESC600(SC), [2011(4)JCR14(SC)], 2011(4)JKJ32[SC], JT2011(9)SC212, 2011(4)KCCRSN463, 2011 (3) KLT(SN) 117, 2011-4-LW289, (2011)7MLJ1237(SC), 2011(5)MPHT1, 2011(III)MPJR(SC)212, 2011(II)OLR(SC)746, 2011(4)PLJR226, 2011(3)RCR(Civil)914, 2011(8)SCALE645, (2011)8SCC497, [2011]11SCR1028, 2011(4)UJ2765 MANU/SC/0932/2011 /p>

Case Note: Right to Information o?= Right to inspect evaluated answer books - Right to Information Act, 2005 - Appeal against order of High Court holding that evaluated answer-books of an examinee writing a public examination conducted by statutory bodies like CBSE or any University or Board of Secondary Education being a 'document, manuscript record, and opinion' fell within definition of "information" under Act and therefore directed CBSE to grant inspection of answer books to examinees who sought information o?= Whether an examinee's right to information under Act included a right to inspect his evaluated answer books in a public examination or taking certified copies thereof o?= Held, o?=When a candidate participates in an examination and writes his answers in an answer-book and submits it to examining body for evaluation and declaration of result, answer-book was a document or record - When answer-book was evaluated by an examiner appointed by examining body evaluated answer-book became a record containing 'opinion' of examiner o?= Therefore, evaluated answer-book was also an 'information' under Act - Right of citizens to access any information held or under control of any public authority should be read in harmony with exclusions/exemptions in Act - Unless examining bodies were able to demonstrate that evaluated answer-books fell under any of categories of exempted 'information', they would be bound to provide access to information and any applicant could either inspect document/record, take notes, extracts or obtain certified copies thereof Right to Information o?= Right to inspect evaluated answer books - Right to Information Act, 2005 - Whether decisions of this Court in Maharashtra State Board ofSecondary Education v. Paritosh B. Shetho?=and subsequent decisions following same in any way affect or interfere with right of an examinee seeking inspection of his answer books or seeking certified copies thereof o?= Held, Principles laid down in decisions such as Maharashtra State Board depend upon provisions of Rules and Regulations of examining body - If Rules and Regulations of examining body provided for re-evaluation, inspection or disclosure of answer-books then none of principles in Maharashtra State Board or other decisions following it would apply or be relevant - Provision barring inspection or disclosure of answer-books or re-evaluation of answer-books and restricting remedy of candidates only to re-totalling was valid and binding on examinee - Provisions of Act would prevail over provisions of bye-laws/rules of examining bodies in regard to examinations - Unless examining body was able to demonstrate that answer-books fell under exempted category of information, examining body would be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books even if such inspection or taking copies was barred under rules/bye-laws of examining body governing examinations - Therefore, decision of Court in Maharashtra State Board of Secondary Education v. Paritosh B. Shetho?=and subsequent decisions following same would not affect or interfere with right of examinee seeking inspection of answer-books or taking certified copies thereof o?= Issue answered. Right to Information o?= Right to inspect evaluated answer books - Section 8(1) of Right to Information Act, 2005 - Whether an examining body had evaluated answer books "in a fiduciary relationship" and consequently had no obligation to give inspection of evaluated answer books under Sectiono?=8(1)(e)o?=of Act o?= Held, Term 'fiduciary relationship' was used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transactions - Fiduciary was expected to act in confidence and for benefit and advantage of beneficiary, and use good faith and fairness in dealing with beneficiary or things belonging to beneficiary - Examining bodies could be said to act in a fiduciary capacity with reference to students who participated in an examination o?= Examining body cannot be in a fiduciary relationship either with reference to examinee who participated in examination and whose answer-books were evaluated by examining body - In furnishing copy of an answer-book, there was no question of breach of confidentiality, privacy, secrecy or trust - Examining body was 'principal' and examiner was agent entrusted with work of evaluation of answer-books - Examining body does not hold evaluated answer-books in a fiduciary relationship o?= Therefore, exemption under Sectiono?=8(1)(e)of Act o?=was not available to examining bodies with reference to evaluated answer-books o?= Therefore, examining bodies would have to permit inspection sought by examinees Right to Information o?= Right to inspect evaluated answer books - Section 8(3) of Right to Information Act, 2005 - If examinee was entitled to inspection of evaluated answer books or seek certified copies thereof, whether such right was subject to any limitations, conditions or safeguards - Held, o?=right to access information does not extend beyond period during which examining body was expected to retain answer-books - If rules and regulations governing functioning of respective public authority require preservation of information for only a limited period, applicant for information will be entitled to such information only if he seeks information when it was available with public authority - Sectiono?=8(3)o?=of Act was not a provision requiring all 'information' to be preserved and maintained for twenty years or more nor does it override any rules or regulations governing period for which record, document or information was required to be preserved by any public authority - Where information sought was not a part of record of a public authority and where such information was not required to be maintained under any law or rules or regulations of public authority, Act does not cast an obligation upon public authority to collect or collate such non-available information and then furnish it to an applicant - Order of High Court directing examining bodies to permit examinees to have inspection of their answer books affirmed subject to clarifications regarding the scope of Act and safeguards and conditions subject to which 'information' should be furnished - Appeals disposed of. Ratio Decidendi: o?=Examining body does not hold evaluated answer-books in a fiduciary relationship.o?=


Centre for Public Interest Litigation and Ors.- Vs- Union of India (UOI) and Ors.

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Equivalent Citation: AIR2012SC3725, AIR2013SC3725, (2012)1CompLJ497(SC), (2012)1CompLJ497(SC), JT2012(2)SC154, (2012)2MLJ111(SC), 2012(2)SCALE180, (2012)3SCC104MANU/SC/0932/2011

Case Note: Media and Communication - Licence - Challenge thereto - Articles 14, 38, 39, 39(b), 48, 48A, 51A and 51A(g) of Constitution of India, 1950 - Petitioners questioned grant of UAS Licences to private Respondents - Whether Government had right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with fundamentals of equality clause enshrined in Constitution - Whether recommendations made by Telecom Regulatory Authority of India (TRAI) on 28th August, 2007 for grant of Unified Access Service Licence (UAS Licence) with 2G spectrum in 800, 900 and 1800 MHz at price fixed in 2001, which were approved by Department of Telecommunications (DoT), were contrary to decision taken by Council of Ministers on 31st October, 2003 - Whether exercise undertaken by DoT from September 2007 to March 2008 for grant of UAS Licences to private Respondents in terms of recommendations made by TRAI was vitiated due to arbitrariness and malafides and was contrary to public interest - Whether policy of first-come-first-served followed by DoT for grant of licences was ultra vires provisions of Article 14 of Constitution and whether said principle was arbitrarily changed by Minister of Communications and Information Technology (Minister of C&IT), without consulting TRAI, with a view to favour some of Applicants - Whether licences granted to ineligible applicants and those who failed to fulfil terms and conditions of licence were liable to be quashed - Held, even though there was no universally accepted definition of natural resources, they were generally understood as elements having intrinsic utility to mankind - They might be renewable or non renewable - A natural resource's value rest in amount of material available and demand for it - Latter was determined by its usefulness to production - Natural resources belong to people but State legally owned them on behalf of its people and from that point of view natural resources were considered as national assets, more so because State benefits immensely from their value - State was empowered to distribute natural resources - While distributing natural resources, State was bound to act in consonance with principles of equality and public trust and ensure that no action was taken which might be detrimental to public interest - Like any other State action, constitutionalism must be reflected at every stage of distribution of natural resources - In Article 39(b) of Constitution it had been provided that ownership and control of material resources of community should be so distributed so as to best sub-serve common good, but no comprehensive legislation had been enacted to generally define natural resources and a framework for their protection - Ownership regime relating to natural resources could also be ascertained from international conventions and customary international law, common law and national constitutions - In international law, it rest upon concept of sovereignty and sought to respect principle of permanent sovereignty of peoples and nations over their natural resources - Common Law recognized States as having authority to protect natural resources insofar as resources are within interests of general public - State was deemed to have a proprietary interest in natural resources and must act as guardian and trustee in relation to same - Constitutions across world focus on establishing natural resources as owned by, and for benefit of, country - Spectrum had been internationally accepted as a scarce, finite and renewable natural resource which was susceptible to degradation in case of inefficient utilization - It had a high economic value in light of demand for it on account of tremendous growth in telecom sector - Although it did not belong to a particular State, right of use had been granted to States as per international norms - In India, Courts had given an expansive interpretation to concept of natural resources and had from time to time issued directions, by relying upon provisions contained in Articles 38, 39, 48, 48A and 51A(g), for protection and proper allocation/distribution of natural resources and had repeatedly insisted on compliance of constitutional principles in process of distribution, transfer and alienation to private persons - Doctrine of public trust, which was evolved in case of Illinois Central Railroad Company v. People of State of Illinois, had been held by this Court to be a part of Indian jurisprudence in case of M.C. Mehta v. Kamal Nath and had been applied in certain cases - Natural resources were public goods - Hence, doctrine of equality, which emerged from concepts of justice and fairness, must guide State in determining actual mechanism for distribution of natural resources - In this regard, doctrine of equality had two aspects - First, it regulated rights and obligations of State vis-a-vis its people and demands that people be granted equitable access to natural resources and/or its products and that they were adequately compensated for transfer of resource to private domain - And second, it regulated rights and obligations of State vis-a-vis private parties seeking to acquire/use resource and demands that procedure adopted for distribution was just, non-arbitrary and transparent and that it did not discriminate between similarly placed private parties - State was legal owner of natural resources as a trustee of people and although it was empowered to distribute same, process of distribution must be guided by constitutional principles including doctrine of equality and larger public good - Entire approach adopted by TRAI was lopsided and contrary to decision taken by Council of Ministers and its recommendations became a handle for then Minister of C&IT and officers of DoT who virtually gifted away important national asset at throw away prices by willfully ignoring concerns raised from various quarters including Prime Minister, Ministry of Finance and also some of its own officers - This became clear from fact that soon after obtaining licences, some of beneficiaries off-loaded their stakes to others, in name of transfer of equity or infusion of fresh capital by foreign companies, and thereby made huge profits - TRAI was an expert body assigned with important functions under 1997 Act - But, it could not make recommendations overlooking basic constitutional postulates and established principles and make recommendations which would deny people from participating in distribution of national wealth and benefit a handful of persons - Recommendations made by TRAI were flawed in many respects and implementation thereof by DoT resulted in gross violation of objective of NPT 1999 and decision taken by Council of Ministers on 31st October, 2003 - TRAI had decided not to recommend standard option for pricing of spectrum in 2G bands keeping in view level playing field for new entrants - It was impossible to approve decision taken by DoT to act upon those recommendations - Recommendations made by TRAI in this regard were contrary to decision of Council of Ministers that DoT would discuss issue of spectrum pricing with Ministry of Finance along with issue of incentive for efficient use of spectrum as well as disincentive for sub-optimal usages - Being an expert body, it was incumbent upon TRAI to make suitable recommendations even for 2G bands - There was a fundamental flaw in first-come-firstserved policy inasmuch as it involved an element of pure chance or accident - In matters involving award of contracts or grant of licence or permission to use public property, invocation of first-come-first-served policy had inherently dangerous implications - Wherever a contract was to be awarded or a licence was to be given, public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition - State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle claim of worthy Applicants - When it came to alienation of scarce natural resources like spectrum etc., it was burden of State to ensure that a non-discriminatory method was adopted for distribution and alienation, which would necessarily result in protection of national/public interest - A duly publicised auction conducted fairly and impartially was perhaps best method for discharging this burden and methods like first-come-first-served when used for alienation of natural resources/public property were likely to be misused by unscrupulous people who were only interested in garnering maximum financial benefit and had no respect for constitutional ethos and values - While transferring or alienating natural resources, State was duty bound to adopt method of auction by giving wide publicity so that all eligible persons could participate in process - Exercise undertaken by officers of DoT between September, 2007 and March 2008, under leadership of then Minister of C&IT was wholly arbitrary, capricious and contrary to public interest apart from being violative of doctrine of equality - Material produced before Court showed that Minister of C&IT wanted to favour some companies at cost of Public Exchequer - When it was clearly demonstrated that policy framed by State or its agency/instrumentality and/or its implementation was contrary to public interest or was violative of constitutional principles, then it was duty of Court to exercise its jurisdiction in larger public interest and reject stock plea of State that scope of judicial review should not be exceeded beyond recognised parameters - It became duty of Court to exercise its power in larger public interest and ensure that institutional integrity was not compromised by those in whom people had reposed trust and who had taken oath to discharge duties in accordance with Constitution and law without fear or favour, affection or ill will and who, as any other citizen, enjoy fundamental rights and, at same time, were bound to perform duties enumerated in Article 51A of Constitution - Licences granted to private Respondents on or after 10th January, 2008 and subsequent allocation of spectrum to licensees were declared illegal and were quashed - Petitions allowed


In Re: Special Reference No. 1 of 2012

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Equivalent Citation: (2012)4CompLJ225(SC), (2012)4CompLJ225(SC), 2012(4)J.L.J.R.230, JT2012(9)SC457, (2012)7MLJ532(SC), 2012(4)PLJR143, 2012(4)RCR(Civil)680, 2012(9)SCALE310, (2012)10SCC1, [2012]9SCR311 MANU/SC/0793/2012

Case Note: Constitution - Reference for opinion - Section 11A of Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) - Whether only permissible method for disposal of all natural resources across all sectors and in all circumstances is by conduct of auctions - Held, enactment of MMDR Act deals exclusively with natural resources - Section 11A of MMDR Act had been chosen as illustrative provision, to demonstrate how a forthright legitimate legislative policy, may take shape of an illegitimate stratagem - Choice of Section 11A of MMDR Act is on account of fact that it was added to MMDR Act only on 13.2.2012, and as such, there may not have been, as of now, any actual allocation of coal lots based thereon - For grant of a mining lease in respect of an area containing coal, provision leaves no room for any doubt, that selection would be made through auction by competitive bidding - No process other than auction, could therefore be adopted for grant of a coal mining lease - Section 11A of MMDR Act also defines zone of eligibility, for participation in such competitive bidding - To be eligible, contender must be engaged in production of iron and steel, or generation of power, or washing of coal obtained from a mine, or an activity notified by Central Government - Only those satisfying legislatively prescribed zone of eligibility, were permitted to compete for a coal mining lease - Legislative policy limiting zone of consideration could be subject matter of judicial review - In absence of any such challenge, legislative policy would be binding and enforceable - Policy of allocation of natural resources for public good could be defined by legislature -Likewise, policy for allocation of natural resources may also be determined by executive - Parameters for determining legality and constitutionality of two were exactly same - In aforesaid view of matter, there could be no doubt about conclusion recorded in "main opinion" that auction which was just one of several price recovery mechanisms, could not be held to be only constitutionally recognized method for alienation of natural resources - That should not be understood to mean, that it could never be a valid method for disposal of natural resources - Court would therefore conclude by stating that no part of natural resource could be dissipated as a matter of largess, charity, donation or endowment, for private exploitation - Each bit of natural resource expended must bring back a reciprocal consideration - Consideration might be in nature of earning revenue or might be to "best subserve common good" - It may well be amalgam of two - There could not be a dissipation of material resources free of cost or at a consideration lower than their actual worth - One set of citizens could not prosper at cost of another set of citizens, for that would not be fair or reasonable.


Kihoto Hollohan -Vs.-Zachillhu and Ors.

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Equivalent Citation: AIR1993SC412, JT1992(1)SC600, 1992(1)SCALE338, 1992Supp(2)SCC651, [1992]1SCR686 MANU/SC/0753/1992

Case Note: Constitution - validity of amendment - Constitution (52nd Amendment) Act, 1985 - petition challenging insertion of 10th schedule to Constitution - para 7 of 10 Schedule which brings about change in operation of Articles 136, 226 and 227 made without ratification of State Legislature as provided under Article 368 (2) invalid - non observance of such condition precedent does not affect severability of Para 7 from other parts of amendment - 52nd amendment excluding para 7 valid - para 2 of 10th Schedule neither violate democratic rights of elected members nor freedom of speech and freedom of vote and conscience - Para 2 is not violative of Articles 105 and 194 - Speakers/Chairmen under 10th Schedule exercise power of Tribunal to adjudicate rights and obligations of elected members and their decisions amenable to judicial review - judicial review does not cover any stage prior to making decisions by Presiding Officers - interlocutory interference can be made when interlocutory disqualifications or suspension may have grave, immediate and irreversible repercussion and consequence - concept of statutory finality of decisions of Presiding Officers in Para 6 (2) does not affect right of judicial review under Articles 136, 226 and 227 based on violation of constitutional mandates, mala fides, noncompliance with Rules of natural justice and perversity - deeming provision in Para 6 (2) would attract immunity analogous to that of Articles 122 (1) and 212 (1) as explained in Kesav Singh's case.


Nandini Sundar and Ors. -Vs.- State Of Chattisgarh

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Equivalent Citation: 2011 (1) KHC 608, 2011(2)SCALE37, (2011)13SCC46 MANU/SC/0187/2011


Naga People's Movement of Human Rights- Vs.- Union of India (UOI)

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Equivalent Citation: AIR1998SC431, 1998(1)ALD(Cri)220, 1997 (Suppl.) ACC 162, JT1997(9)SC431, 1997(7)SCALE210, (1998)2SCC109, [1997]Supp5SCR469 MANU/SC/0906/1998


:Pradeep Kumar Biswas and Ors.- Vs.-Indian Institute of Chemical Biology and Ors

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Equivalent Citation: 2002(2)BLJR1197, (2002)3CompLJ20(SC), JT2002(4)SC146, 2002(4)PLJR81, 2002(3)SCALE638, (2002)5SCC111, [2002]3SCR100, 2002(2)SCT1067(SC), 2002(3)SLJ42(SC), 2002(3)SLJ58(SC), 2002(3)SLR433(SC), (2002)2UPLBEC1798 MANU/SC/0330/2002


Minerva Mills Ltd. and Ors.-Vs.-Union of India (UOI) and Ors.

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Equivalent Citation: AIR1980SC1789, (1980)3SCC625, (1980)2SCC591, [1981]1SCR206, 1980(12)UJ727 MANU/SC/0075/1980

Case Note: (i) Constitution - amendment - Articles 13, 14, 19, 31-A, 31-B, 31-C, 32, 38, 132, 133, 134, 141, 226, 352 and 368 of Constitution of India - vires of Articles 368 (4) and 368 (5) introduced by Section 55 of Constitution of India (43rd Amendment) Act under challenge - Article 368 (5) conferred upon Parliament unlimited power to amend Constitution - Article 368 (4) deprived Courts of its power of judicial review over constitutional amendments - Article 368 (5) struck down as Parliament had only limited amending power - such limited power cannot be enlarged into absolute power - by expanding its amending powers Parliament cannot destroy its basic structure - donee of limited power cannot convert such power into unlimited one - Article 368 (4) prohibiting judicial review violates basic structure - held, Articles 368 (4) and 368 (5) unconstitutional. (ii) Directive principles of State policy - whether directive principles can have supremacy over fundamental rights - merely because directive principles are non-justiciable it does not mean that they are subservient to fundamental rights - destroying fundamental rights in order to achieve goals of directive principles amounts to violation of basic structure - giving absolute primacy to one over another disturbs harmony - goals of directive principles should be achieved without abrogating fundamental rights - directive principles enjoy high place in constitutional scheme - both fundamental rights and directive principles to be read in harmony - held, amendments in Article 31C introduced by Section 4 of 42nd Amendment Act unconstitutional.


Rupa Ashok Hurra- Vs.- Ashok Hurra and Ors

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Equivalent Citation: AIR2002SC1771, (2002)2CompLJ193(SC), (2002)2CompLJ193(SC), (2002)IIIGLR2138, (2002)3GLR290, JT2002(3)SC609, 2002(3)SCALE406, (2002)4SCC388, [2002]2SCR1006, 2002(3)SCT527(SC) MANU/SC/0910/2002


: S.B.P. and Co.- Vs.- Patel Engineering Ltd. and Ors.

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Equivalent Citation: AIR2006SC450, AIR2006SC450, 2006(1)ALD10(SC), 2005(3)ARBLR285(SC), 2006 (1) AWC 538 (SC), 2006(1)BomCR585, [2005]128CompCas465(SC), (2006)2CompLJ7(SC), (2006)2CompLJ7(SC), 2005(5)CTC302, 2006GLH(1)105, (2006)3GLR2097, [2006(1)JCR190(SC)], JT2005(9)SC219, 2006-1-LW73, (2006)1MLJ1(SC), 2006(1)MPHT1, 2006(1)MPJR(SC)1, 2006(1)PLJR74, 2005(4)RCR(Civil)747, RLW2006(2)SC1386, 2005(9)SCALE1, (2005)8SCC618, 2006(1)UJ156 MANU/SC/1787/2005

Case Note: Arbitration and Conciliation Act, 1996 - Section 11--Appointment of Arbitrator by Chief Justice--Whether Chief Justice exercises judicial power or administrative power?--Held, by Majority of 6 : 1 that Chief Justice exercises judicial power--Scope of Section 11 (6) delineated by majority and minority. The Majority, speaking through P. K. Balasubramanyan, J. held : (i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11 (6) of the Arbitration and Conciliation Act, 1996 is not an administrative power. It is a judicial power. (ii) The power under Section 11 (6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court. (iii) In case of designation of a Judge of the High Court or of the Supreme Court, the power that is exercised by the designated, Judge would be that of the Chief Justice as conferred by the statute. (iv) The Chief Justice or the designated Judge will have the right to decide the preliminary aspects. These will be, his own jurisdiction, to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the Judge designated would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11 (8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the Judge designate. (v) Designation of a District Judge as the authority under Section 11 (6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act. (vi) Once the matter reaches the arbitral tribunal or the sole arbitrator, the High Courtwould not interfere with orders passed by the arbitrator or the arbitral Tribunal during the course of the arbitration proceedings and the parties could approach the Court only in terms of Section 37 of the Act or in terms of Section 34 of the Act. (vii) Since an order passed by the Chief Justice of the High Court or by the designated Judge of that Court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution of India to the Supreme Court. (viii) There can be no appeal against an order of the Chief Justice of India or a Judge of the Supreme Court designated by him while entertaining an application under Section 11 (6) of the Act. (ix) In a case where an arbitral Tribunal has been constituted by the parties without having recourse to Section 11 (6) of the Act, the arbitral Tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act. (x) Since all were guided by the decision of the Supreme Court in Konkan Railway Corpn. Ltd. and another v. Rani Construction Pvt. Ltd., (2000) 8 SCC 159 and orders under Section 11 (6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or arbitral Tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11 (6) of the Act. (xi) Where District Judges had been designated by the Chief Justice of the High Court under Section 11 (6) of the Act, the appointment orders thus far made by them will be treated as valid ; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the concerned High Court or a Judge of that Court designated by the Chief Justice. Decision in Konkan Railway Corporation Ltd. v. Rani Construction (P.) Ltd., 2001 (1) AWC 59 (SC) : (2000) 8 SCC 159, overruled. C. K. Thakker, J., in his minority opinion, held: (i) The function performed by the Chief Justice of the High Court or the Chief Justice of India under sub-section (6) of Section 11 of the Act (i.e. Arbitration and Conciliation Act, 1996) is administrative, -pure and simple-, and neither judicial nor quasi-judicial. (ii) The function to be performed by the Chief Justice under sub-section (6) of Section 11 of the Act may be performed by him or by 'any person or institution designated by him.' (iii) While performing the function under sub-section (6) of Section 11 of the Act, the Chief Justice should be prima facie satisfied that the conditions laid down in Section 11 are satisfied. (iv) The Arbitral Tribunal has power and jurisdiction to rule 'on its own jurisdiction' under sub-section (1) of Section 16 of the Act. (v) Where the Arbitral Tribunal holds that it has jurisdiction, it shall continue with the arbitral proceedings and make an arbitral award. (vi) A remedy available to the party aggrieved is to challenge the award in accordance with Section 34 or Section 37 of the Act. (vii) Since the order passed by the Chief Justice under sub-section (6) of Section 11 of the Act is administrative, a writ petition under Article 226 of the Constitution is maintainable. A letters patent appeal/Intra-court appeal is competent. A special leave petition under Article 136 of the Constitution also lies to the Supreme Court. (viii) While exercising extraordinary jurisdiction under Article 226 of the Constitution, however, the High Court will be conscious and mindful of the relevant provisions of the Act, including Sections 5, 16, 34 to 37 as also the object of the legislation and exercise its power with utmost care, caution and circumspection. (ix) The decision of the Constitution Bench in Konkan Railway Corporation Ltd. II, to the extent that it held the function of the Chief Justice under sub-section (6) of Section 11 of the Act as administrative is in consonance with settled legal position and lays down correct law on the point. (x) The decision of the Constitution Bench in Konkan Railway Corporation Ltd. II, to the extent that it held Clause 7 of "The Appointment of Arbitrators by the Chief Justice of India Scheme, 1996" providing for issuance of notice to affected parties as "beyond the term of Section 11'' and bad on that ground is not in accordance with law and does not state the legal position correctly. (xi) Since the Chief Justice is performing administrative function in appointing an Arbitral Tribunal, there is no 'duty to act judicially' on his part. The doctrine of 'duty to act fairly', however, applies and the Chief Justice must issue notice to the person or persons likely to be affected by the decision under sub-section (6) of Section 11 of the Act. (xii) All appointments of Arbitral Tribunals so far made without issuing notice to the parties affected are held legal and valid. Henceforth, however, every appointment will be made after issuing notice to such person or persons. In other words, this judgment will have prospective operation and it will not affect past appointments or concluded proceedings. JUDG


Sodan Singh and Ors.- Vs.-New Delhi Municipal Committee and Ors.

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Equivalent Citation: AIR1989SC1988, 1989(87) ALJ 1097, JT1989(3)SC553, 19892RRR387, 1989(2)SCALE430, (1989)4SCC155, [1989]3SCR1038, 1990(1)UJ187 MANU/SC/0521/1989


State of Maharashtra and Ors.- Vs.- Sangharaj Damodar Rupawate and Ors

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Equivalent Citation: 2010(58)BLJR958, 2010(5)BomCR646, 2010CriLJ4290, JT2010(7)SC216, 2010(6)SCALE667, (2010)7SCC398, [2010]8SCR328, 2010(6)UJ3131 MANU/SC/0466/2010

Case Note: Criminal - Forfeiture - Section 95 (1) of Code of Criminal Procedure, 1973 (Cr. PC) - Appellant State issued notification forfeiting book on grounds of derogatory statement against Shri Chhatrapati Shivaji Maharaj - High Court Set aside notification - Held, entire edifice of the impugned notification is based on the registration of the FIR which was set aside by the Apex Court - Statement in the notification to the effect that the book is "likely to result in breach of peace and public tranquillity and in particular between those who revere Shri Chhatrapati Shivaji Maharaj and those who may not" is too vague a ground to satisfy the validity test of notification and it cannot be found out from the notification as to which communities got outraged by the publication of the book or it had caused hatred and animosity between particular communities or groups - Notification of forfeiture, dated, 20th December, 2006, does not fulfil the mandatory requirements of Section 95 (1) of Cr. PC therefore, invalid.Criminal - Forfeiture Notification: Test Guidelines - Section 95 (1) of Code of Criminal Procedure, 1973 - Held, (i) Statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture; (ii) Grounds of opinion must mean conclusion of facts on which opinion is based;(iii) Validity of the order of forfeiture would depend on the merits of the grounds; (iv) State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited; (v) The intention of the author has to be gathered from the language, contents and import of the offending material; (vi) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153A of the IPC that the writing contains a truthful kind of past events or is otherwise supported by good authority;(vii) Ingredients of the offences stated in the notification should "appear" to the Government to be present and it does not require that it should be "proved" to the satisfaction of the Government that all requirements of punishing sections, including mens rea, were fully established; (viii) Onus to dislodge and rebut the prima facie opinion of the Government that the offending publication comes within the ambit of the relevant offence, including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof; (ix) Effect of the words used in the offending material must be judged from the standards of reasonable;, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.

Ratio Decidendi: "To withstand the legal test a notification under Section 95 (1) must satisfy the mandatory requirements of provided therein."


State of West Bengal and Ors.- Vs.- The Committee for Protection of Democratic Rights, West Bengal and Ors

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Equivalent Citation: 2010(4)ADJ158, 2010(87)AIC1, AIR2010SC1476, 2010 (68) ACC 985, 2010 6 AWC6073SC, (2010)3CALLT6(SC), 2010(2)CTC84, 2010(2)GLT1, JT2010(2)SC352, 2010(2)KCCR785, 2010(1)KLT723(SC), 2010(I)OLR(SC)584, 2010(2)RCR(Criminal)141, RLW2010(1)SC822, 2010(2)SCALE467, (2010)3SCC571, [2010]3SCR979, 2010(1)UC444, 2010(2)UJ1047 MANU/SC/0121/2010

Case Note: Constitution - Power of High Courts to Issue certain Writs - Article 226 of the Constitution of India, 1950 - FIR lodged by complainant for offences under Sections 148/149/448/436/364/302/201 of the Indian Penal Code, 1860 read with Sections 25/27 of the Arms Act, 1959 and Section 9(B) of the Explosives Act, 1884 against around 50-60 miscreants - No effective step taken by the state investigating authorities for investigation of the alleged offence - Writ Petition filed in High Court for transfer of investigation from state machinery to Central Bureau of investigation (CBI) for the protection of fundamental Rights of the victims - Whether High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the CBI, established under the Delhi Special Police Establishment Act, 1946 ,to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government - Held, Fundamental Rights, are inherent and cannot be extinguished by any constitutional or Statutory provision and any law that abrogates or abridges such rights would be violative of the basic structure doctrine - Also, Being the protectors of civil liberties of the citizens, Apex court and the High Courts have not only the power and jurisdiction but also an obligation to protect the Fundamental Rights, guaranteed by Constitution - In the present case where the violation of Fundamental Rights of the citizens are in issue, a direction by the High Court to the CBI to investigate a cognizable offence which is violative of Fundamental Right of the citizen and alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be perfectly valid in law - No inflexible guidelines can be laid down to decide whether or not such power should be exercised but such extra-ordinary power must be exercised sparingly, cautiously and in exceptionalsituations as per the facts of the case - Matter referred to bench for disposal accordingly Constitution - Judicial Review - Article 226 of the Constitution of India, 1950 - Validity of - Whether the doctrine of separation of powers curtail the power of judicial review, conferred on the constitutional Courts even in situations where the Fundamental Rights are sought to be abrogated or abridged on the ground that exercise of such power would impinge upon the said doctrine - Held, Courts a the guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation of Fundamental Rights - Violation of Fundamental Rights cannot be immunised from judicial scrutiny on the touchstone of doctrine of separation of powers between the Legislature, Executive and the Judiciary - Any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure or doctrine of separation of power - But such extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations - Matter referred to bench for disposal accordingly Ratio Decidendi: "The doctrine of separation of powers cannot curtail the power of judicial review conferred on the constitutional Courts specially in situations where the fundamental rights are sought to be abrogated or abridged under the garb of these doctrines." "Violation of Fundamental Rights cannot be immunised from judicial scrutiny under Article 226 or under Article 32 on the touchstone of doctrine of separation of powers between the Legislature, Executive and the Judiciary."


Selvi and Ors.- Vs.-State of Karnataka

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Equivalent Citation: AIR2010SC1974, 2010(2)ALD(Cri)401, II(2010)CCR311(SC), 2010(2)Crimes241(SC), 2010GLH(2)357, JT2010(5)SC11, 2010 (2) KHC 412, 2010(2)RCR(Criminal)896, RLW2010(2)SC1688, 2010(4)SCALE690, (2010)7SCC263, 2010(4)UJ2128 MANU/SC/0325/2010

Case Note: Constitution - Right against self-incrimination - Constitutionality of Involuntary administration of Narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) - Article 20(3) of Constitution of India, 1950 - Whether the involuntary administration of the Narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) violates the 'right against self-incrimination' enumerated in Article 20(3) of the Constitution - Held, circumstances that could 'expose a person to criminal charges' amounts to incrimination' for the purpose of Article 20(3) - Article 20(3) aims to prevent the forcible 'conveyance of personal knowledge that is relevant to the facts in issue' - Protective scope of Article 20(3) extends to the investigative stage in criminal cases - Since, the underlying rationale of the 'right against self-incrimination' is to ensure the reliability as well as voluntariness of statements that are admitted as evidence, the compulsory administration of the impugned techniques violates the 'right against self-incrimination - Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory - Results obtained from each of the impugned tests bear a 'testimonial' character and they cannot be categorised as material evidence - Hence, test results cannot be admitted in evidence if they have been obtained through the use of compulsion - Appeal Disposed ofConstitution - Right against self-incrimination' - Who can avail Right against self-incrimination - Held - 'Right against self-incrimination ' available to persons who have been formally accused as well as those who are examined as suspects in criminal cases - Extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated - Appeal Disposed ofConstitution - 'Testimonial Compulsion' - Whether the results derived from the impugned techniques amount to 'testimonial compulsion' thereby attracting the bar of Article 20(3) of the Constitution of India, 1950 - Held, reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators not barred - Narcoanalysis technique involves testimonial act as the subject is encouraged to speak in a drug-induced state such - Hence, compulsory administration of the narcoanalysis technique amounts to 'testimonial compulsion' and thereby triggers the protection of Article 20(3) - Appeal Disposed ofConstitution - Inter-relation between Right to fair trial and 'personal liberty' - Article 21 of the Constitution of India,1950 - Whether the involuntary administration of the impugned techniques a reasonable restriction on 'personal liberty' as understood in the context of Article 21 of the Constitution - Held, inter-relationship between the 'right against self- incrimination' and the 'right to fair trial' has been recognised under Article 21 - Forcing an individual to undergo any of the impugned techniques violates the standard of 'substantive due process' which is required for restraining personal liberty - Compulsory administration of these techniques an unjustified intrusion into the mental privacy of an individual which amount to 'cruel, inhuman or degrading treatment' - Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the 'right against self-incrimination - Thus, no individual to be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise - Appeal Disposed ofCriminal - Derivative evidence - Admissibility of - Section 27 Evidence Act, 1872 and Article 20(3) of Constitution of India, 1950 - Permissibility of extracting statements which may furnish a link in the chain of evidence and hence create a risk of exposure to criminal charges - Whether such derivative use of information extracted in a custodial environment is compatible with Article 20(3) - Held, Section 27 of Evidence Act, permits the derivative use of custodial statements in the ordinary course of events - Provisions of Section 27 of the Evidence Act are not within the prohibition under Article 20(3) unless compulsion has been used in obtaining the information - Thus, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act - Appeal Disposed of

Ratio Decidendi: "Compulsory involuntary administration of the Narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) violates the 'right against self-incrimination' enumerated in Article 20(3) of the Constitution as the subject does not exercise conscious control over the responses during the administration of the test.""Article 20(3) not only a trial right but its protection extends to the stage of investigation also.""Provisions of Section 27 of the Evidence Act are not within the prohibition under Article 20(3) unless compulsion has been used in obtaining the information and any information or material that is subsequently discovered with the help of voluntary administered test results to be admitted."


Swami Shraddananda- Vs.- State of Karnataka

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Equivalent Citation: AIR2008SC3040, 2008(56)BLJR2507, III(2008)CCR186(SC), 2008CriLJ3911, 2008(3)Crimes215(SC), JT2008(8)SC27, 2009-1-LW(Crl)1, 2008(4)PLJR122, 2008(3)RCR(Criminal)772, 2008(10)SCALE669, (2008)13SCC767 MANU/SC/3096/2008

Case Note: Criminal - Murder - Conviction - Alteration of punishment - Death Sentence vis-o?=-vis Imprisonment for life - Section 302 and 201 of the Indian Penal Code, 1860 - Appellant was convicted for the offence of murder by the Session Judge and a term of 5 years for causing disappearance of evidence and in default of payment of fine was to undergo simple imprisonment for one year - Appellanto?=s appeal against the Order of the Trial Court and the reference made by the Session Judge under Section 366 were heard together o?= High Court confirmed the death penalty and accepted the reference made by Trial Court - On appeal Division Bench unanimously upheld the Appellanto?=s conviction for both the offences but there was difference of opinion about the punishment meted out to the Appellant - Hence present appeal - Whether in the facts and circumstances of the case death penalty can be awarded to Appellant - Held, in the matter of Bachan Singh the expression o?=special reasonso?= in the context of the provision of Section 354(3) obviously means o?=exceptional reasonso?= founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal - On conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases - Death penalty ought not to be imposed save in the rarest of rare cases when the alternative option is unquestionably foreclosed - Expressions o?=special reasonso?=, o?=exceptional reasonso?=, o?=founded on the exceptional grave circumstanceso?=, o?=extreme caseso?= and o?=the rarest of the rare caseso?= unquestionably indicate a relative category based on comparison with other cases of murder - In the present case Appellant killed the deceased in a planned and cold blooded manner but devised the plan so that the victim could not know till the end and even for a moment that she was betrayed by the one she trusted most - Further, the killing did not cause any mental or physical pain to the victim - Also, the Appellant confessed his guilt partially before the High Court - Crime committed by the Appellant was not very grave or the motive behind the crime was not highly depraved - Hence death penalty awarded to him by the Trial Court and confirmed by the High Court could not be upheld - Appeal disposed ofCriminal - Murder - Conviction - Death Sentence - Computation and remission of sentences - Sections 302 and 201 of the Indian Penal Code, 1860 (the Act) - Section 366, 432, 433 of the Code of Criminal Procedure, 1973 (the Code) - Whether the death penalty can be substituted by the life imprisonment with the further direction that the convict would not be released for the rest of life - Held, the issue of sentencing has two aspects, a sentence may beexcessive and unduly harsh or it may be highly disproportionately inadequate - When an Appellant comes to this Court carrying a death sentence awarded by the Trial Court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence - But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate - Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all - Good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the Order - Appeal disposed of

Ratio Decidendi: o?=On conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases.o?=


Vishaka and Ors. Vs. Respondent: State of Rajasthan and Ors.

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Equivalent Citation: AIR1997SC3011, 1997(2)ALD(Cri)604, 1997(2)ALT(Cri)579, 1997((2))ALT(Cri)579, 1997(5)ALT14(SC), 1998(1)BLJR228, III(1997)CCR126(SC), [1997]27CLA321(SC), 1997(3)Crimes188(SC), [1997(77)FLR297], JT1997(7)SC384, 2013(3)KarLJ546, 1998(2)LLN965(SC), 1997-2-LW(Crl)604, 1997(4)RCR(Criminal)187, RLW1997(3)SC373, 1997(5)SCALE453, (1997)6SCC241, [1997]Supp3SCR404 MANU/SC/0786/1997


Vellore Citizens Welfare Forum- Vs.-Union of India (UOI) and Ors

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Equivalent Citation: AIR1996SC2715, (1996)5CompLJ40(SC), JT1996(7)SC375, (1996)5SCC647,[1996]Supp5SCR241 MANU/SC/0686/1996


Zahira Habibulla H. Sheikh and Ors.- Vs.-State of Gujarat and Ors.

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Equivalent Citation: 2004(3)ACR2126(SC), 2004(18)AIC931, AIR2004SC346, 2004 (49) ACC 238, 2004(3)BLJR1971, II(2004)CCR187(SC), 2004CriLJ2050, (2004)2GLR1078, JT2004(Suppl1)SC94, 2004(2)RCR(Criminal)836, 2004(4)SCALE375, (2004)4SCC158, [2004]1SCR1050, 2004(2)UJ1041 MANU/SC/0322/2004

Case Note: Criminal - Criminal Procedure Code (CrPC), 1973 - Sections 161, 173(8), 309, 311, 385(2), 386, 391 and 406; Evidence Act, 1872 - Section 165 - Best Bakery Case - Appeal against acquittal - Prayer for Retrial and adduction of Additional evidence - "Best Bakery" a business concern at Vadodra burnt down by an unruly mob of large number of people - Attacks alleged to be retaliatory action to avenge killing of 56 persons burnt to death in Sabarmati express - Zahira star witness lost family members including helpless women and innocent children - Prosecution of accused persons after framing charge sheet - Eyewitnesses including Zahira resiling from statements made during investigation - Acquittal by Trial Court - Challenged by appeals filed by Zahira, State - Appeal by Zahira, star witness alleging that during trial she was forced to depose falsely and turn hostile due to threats and coercion -Applications filed by appellant State under Sections 391, 311 for adduction of additional evidence and for examination of certain persons as witnesses - High Court dismissing appeals, revision and applications - Validity - Submission of appellant State and Zahira that since large number of witnesses having turned hostile although raised reasonable suspicion that witnesses were being threatened or coerced, however, no steps taken by public prosecutor to protect star witness and no request made by public prosecutor to hold trial in a camera - Non examination of eyewitnesses on one pretext or other - Non exercise of power by Trial Court under Section 311 and Section 165 Indian Evidence Act - Non examination of injured witnesses - Non acceptance of Additional evidence relating to affidavits filed by injured witnesses, who were forced not to tell truth - Plea of accused that courts were right in holding that additional evidence was not necessary after analyzing existing evidence held unsustainable - Held that High Court erred in refusing to accept application for adduction of additional evidence in the facts and circumstances of the case - Held that if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings - There being several infirmities in investigation and High Court having come to a definite conclusion that the investigation carried out by the police was dishonest and faulty, ought to have directed a re-trial of the case - High Court erred in holding on its own about false implication without concrete basis and that too merely on conjectures - When the circumstances clearly indicated that there was some truth or prima facie substance in the grievance made, appropriate course for the Courts was to admit additional evidence for final adjudication so that the acceptability or otherwise or evidence tendered by way of additional evidence could be tested properly and legally tested in the context of probative value of the two versions - As the provisions under Section 391 of the Code are by way of an exception, the Court has to carefully consider the need for and desirability to accept additional evidence - Held to be fit and proper case, for retrial in the background of the nature of additional evidence sought to be adduced and the perfunctory manner of trialconducted on the basis of tainted investigation - Direction given for retrial in a competent court in the jurisdiction of Bombay High Court and appointment of another public prosecutor


T.M.A. Pai Foundation and Ors.-Vs.- State of Karnataka and Ors.

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Equivalent Citation: 2003(1)AIC809, AIR2003SC355, 2003(1)BLJR158, JT2002(9)SC1, 2003(1)KarLJ1, 2003(1)PLJR1, 2002(8)SCALE1, (2002)8SCC481, 2003(1)SCT236(SC), 2002(6)SLR627(SC), (2002)3UPLBEC2817

Case Note:Constitution of India - Articles 14, 15, 25, 26, 28, 29 (2) and 30-- Education--Right of minorities to establish and administer educational institutions of their choice--Scope of Article 30 (1)--Meaning of 'minority'--Whether Article 29 (2) and Article 30 (1) applies to aided/ unaided minority educational institutions?-- How and when State can regulate minority educational institutions?--Majority answering questions as follows -- S. S. Mohammed Quadri, J. concurring with majority except on interplay between Articles 29 (2) and 30 (1) and concurring with Ruma Pal, J.--Ruma Pal, J. differing from majority on its view on Articles 29 (2) and 30 (1) and also on determination of 'minority status' with reference to State--S. N. Variava, J. concurring with majority, differing from S. S. Mohammed Quadri and Ruma Pal, JJ. and also from majority on final conclusion on balancing. B. N. Kirpal, C.J.I. (Majority view) : (1) Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since reorganization of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State-wise. (2) Article 30 (1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by Article 30. (3) Admission of students to unaided minority educational institutions, viz., schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the concerned State or university, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30 (1) are not substantially impaired and further the citizens' rights under Article 29 (2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The concerned State Government has to notify the percentage of the non-minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common 4 thesoci entrance test held by the State agency is necessary to seek admission. As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the State agency followed by counselling wherever it exists. (4) A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. (5) While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students. The merit may be determined either through a common entrance test conducted by the concerned university or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the university or the Government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the society. (6) So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff. Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee. (7) The basic ratio laid down by the Supreme Court in the St. Stephen's College case, (1992) 1 SCC 558, is correct, as indicated in this judgment. However, rigid percentage cannot be stipulated. It has to be left to authorities to prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities. (8) The scheme framed by the Supreme Court in Unni Krishnan's case, (1993) 1 SCC 645 and the direction to impose the same, except 5 thesocialhwhere it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering. (9) The expression "education" in the Articles of the Constitution means and includes education at all levels from the primary school level upto the postgraduate level. It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove. The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19 (1) (g) and 26, and to minorities specifically under Article 30. All citizens have a right to establish and administer educational institutions under Articles 19 (1) (g) and 26, but this right is subject to the provisions of Articles 19 (6) and 26 (a). Ruma Pal, J. (Minority view) : (1) The protection under Article 30 is against any measure, legislative or otherwise, which infringes the rights granted under that Article. The right is not claimed in a vacuum - it is claimed against a particular legislative or executive measure and the question of minority status must be judged in relation to the offending piece of legislation or executive order. If the source of the infringing action is the State, then the protection must be given against the State and the status of the individual or group claiming the protection must be determined with reference to the territorial limits of the State. If however the protection is limited to State action, it will leave the group which is otherwise a majority for the purpose of State Legislation, vulnerable to Union Legislation which operates on a national basis. When the entire nation is sought to be affected, surely the question of minority status must be determined with reference to the country as a whole. (2) The right to admit mio?=nority students to a minority educational institution is an intrinsic part of Article 30 (1). To say that Article 29 (2) prevails over Article 30 (1) would be to infringe and to a large extent wipe out this right. There would be no distinction between a minority educational institution and other institutions and the rights under Article 30 (1) would be rendered wholly inoperational. It is no answer to say that the rights of unaided minority institutions would remain untouched because Article 29 (2) does not reo?=late to unaided institutions at all. Whereas, if one reads Article 29 (2) as subject to Article 30 (1) then effect can be given to both. And it is the latter approach which is to be followed in the interpretation of constitutional provisions. In other words, as long as the minority educational institution is being run for the benefit of and catering to the needs of the members of that community under Article 30 (1), Article 29 (2) would not apply. But once the mio?=nority educational institution travels beyond the needs in the sense of requirements of its own community, at that stage it is no longer exerciso?=ing rights of admission guaranteed under Article 30 (1). To put it differo?=ently, when the right of admission is exercised not to meet the need of the minorities, the rights of admission given under Article 30 (1) is to that extent removed and the institution is bound to admit students for the balance in keeping with the provisions of Article 29 (2). Article 29 (2) pertains to the right of an individual and is not a class right. It would, therefore, apply when an individual is denied admission into any educational institution maintained by the State or receiving aid from the State funds, solely on the basis of the ground of religion, race, caste, language or any of them. It does not operate to create a class interest or right in the sense that any educational institution has to set apart for non-minorio?=ties as a class and without reference to any


Vodafone International Holdings B.V.- Vs.-Union of India (UOI) and Ors.

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Equivalent Citation: [2012]107CLA63(SC), [2012]170CompCas369(SC), (2012)1CompLJ225(SC), (2012)1CompLJ225(SC), (2012)247CTR(SC)1, [2012]341ITR1(SC), [2012]341ITR1(SC), JT2012(1)SC410, (2012)2MLJ913(SC), 2012(1)SCALE530, (2012)6SCC613, [2012]204TAXMAN408(SC), 2012(1)UJ334 MANU/SC/0051/2012

Case Note: S.H. Kapadia, C.J.I. and Swatanter Kumar, J. Direct Taxation - Capital gains - Revenue had sought to tax the capital gains arising from the sale of the share capital of CGP on the basis that CGP, whilst not a tax resident in India, holds the underlying Indian assets - Whether the decision rendered in Union of India v. Azadi Bachao Andolan needs to be overruled insofar as it departs from McDowell and Co. Ltd. v. CTO principle for the (a) Para 46 of McDowell judgment has been missed which reads as, "on this aspect Chinnappa Reddy, J. Has proposed a separate opinion with which we agree" (i.e. Westminster principle is dead) and (b) That, Azadi Bachao failed to read paras 41-45 and 46 of McDowell in entirety. Held, the majority judgment in McDowell held that "tax planning may be legitimate provided it is within the framework of law" (para 45). In the latter part of para 45, it held that "colourable device cannot be a part of tax planning and it is wrong to encourage the belief that it is honourable to avoid payment of tax by resorting to dubious methods". It is the obligation of every citizen to pay the taxes without resorting to subterfuges. The above observations should be read with para 46 where the majority holds "on this aspect one of us, Chinnappa Reddy, J. has proposed a separate opinion with which we agree". The words "this aspect" express the majority's agreement with the judgment of Reddy, J. only in relation to tax evasion through the use of colourable devices and by resorting to dubious methods and subterfuges. Thus, it cannot be said that all tax planning is illegal/illegitimate/impermissible. Moreover, Reddy, J. himself stated that he agrees with the majority. In the judgment of Reddy, J. there were repeated references to schemes and devices in contradistinction to "legitimate avoidance of tax liability" (paras 7-10, 17 & 18). Although Chinnappa Reddy, J. made a number of observations regarding the need to depart from the "Westminster" and tax avoidance, these were clearly only in the context of artificial and colourable devices. It was held that while reading McDowell, in cases of treaty shopping and/or tax avoidance, there was no conflict between McDowell and Azadi Bachao or between McDowell and Mathuram Agrawal. Direct Taxation - Determination of conclusive effect of a relationship between Holding Company andSubsidiary Company. Held, it was held as generally accepted that the group parent company is involved in giving principal guidance to group companies by providing general policy guidelines to group subsidiaries. However, the fact that a parent company exercises shareholder's influence on its subsidiaries does not generally imply that the subsidiaries are to be deemed residents of the State in which the parent company resides. Further, if a company is a parent company, that company's executive director(s) should lead the group and the company's shareholder's influence will generally be employed to that end. This obviously implies a restriction on the autonomy of the subsidiary's executive directors. Such a restriction, which is the inevitable consequences of any group structure, is generally accepted, both in corporate and tax laws. However, where the subsidiary's executive directors' competences are transferred to other persons/bodies or where the subsidiary's executive directors' decision making has become fully subordinate to the Holding Company with the consequence that the subsidiary's executive directors are no more than puppets then the turning point in respect of the subsidiary's place of residence comes about. Similarly, if an actual controlling Non-Resident Enterprise (NRE) makes an indirect transfer through "abuse of organisation form/legal form and without reasonable business purpose" which results in tax avoidance or avoidance of withholding tax, then the Revenue may disregard the form of the arrangement or the impugned action through use of Non-Resident Holding Company, recharacterise the equity transfer according to its economic substance and impose the tax on the actual controlling Non-Resident Enterprise. Thus, whether a transaction is used principally as a colourable device for the distribution of earnings, profits and gains, is determined by a review of all the facts and circumstances surrounding the transaction. It is in the above cases that the principle of lifting the corporate veil or the doctrine of substance over form or the concept of beneficial ownership or the concept of alter ego arises. There are many circumstances, apart from the one given above, where separate existence of different companies, that are part of the same group, will be totally or partly ignored as a device or a conduit (in the pejorative sense). The common law jurisdictions do invariably impose taxation against a corporation based on the legal principle that the corporation is "a person" that is separate from its members. It is the decision of the House of Lords in Salomon v. Salomon that opened the door to the formation of a corporate group. If a "one man" corporation could be incorporated, then it would follow that one corporation could be a subsidiary of another. This legal principle is the basis of Holding Structures. It is a common practice in international law, which is the basis of international taxation, for foreign investors to invest in Indian companies through an interposed foreign holding or operating company, such as Cayman Islands or Mauritius based company for both tax and business purposes. In doing so, foreign investors are able to avoid the lengthy approval and registration processes required for a direct transfer (i.e. without a foreign holding or operating company) of an equity interest in a foreign invested Indian company. However, taxation of such Holding Structures very often gives rise to issues such as double taxation, tax deferrals and tax avoidance. In this case, we are concerned with the concept of GAAR. In this case, we are not concerned with treaty shopping but with the anti-avoidance rules. The concept of GAAR is not new to India since India already has a judicial anti-avoidance rule, like some other jurisdictions. Lack of clarity and absence of appropriate provisions in the statute and/or in the treaty regarding the circumstances in which judicial antiavoidance rules would apply has generated litigation in India. Holding Structures are recognized in corporate as well as tax laws. Special Purpose Vehicles (SPVs) and Holding Companies have a place in legal structures in India, be it in company law, takeover code under SEBI or even under the income tax law. When it comes to taxation of a Holding Structure, at the threshold, the burden is on the Revenue to allege and establish abuse, in the sense of tax avoidance in the creation and/or use of such structure(s). In the application of a judicial anti-avoidance rule, the Revenue may invoke the "substance over form" principle or "piercing the corporate veil" test only after it is able to establish on the basis of the facts and circumstances surrounding the transaction that the impugned transaction is a sham or tax avoidant. To give an example, if a structure is used for circular trading or round tripping or to pay bribes then such transactions, though having a legal form, should be discarded by applying the test of fiscal nullity. Similarly, in a case where the Revenue finds that in a Holding Structure an entity which has no commercial/business substance has been interposed only to avoid tax then in such cases applying the test of fiscal nullity it would be open to the Revenue to discard such interpositioning of that entity. However, this has to be done at the threshold. In this connection, we may reiterate the "look at" principle enunciated in Ramsay in which it was held that the Revenue or the Court must look at a document or a transaction in a context to which it properly belongsto. It is the task of the Revenue/Court to ascertain the legal nature of the transaction and while doing so it has to look at the entire transaction as a whole and not to adopt a dissecting approach. The Revenue cannot start with the question as to whether the impugned transaction is a tax deferment/saving device but that it should apply the "look at" test to ascertain its true legal nature (Craven v. White which further observed that genuine strategic tax planning has not been abandoned by any decision of the English Courts till date). Applying the above tests, every strategic foreign direct investment coming to India, as an investment destination, should be seen in a holistic manner. While doing so, the Revenue/Courts should keep in mind the following factors: the concept of participation in investment, the duration of time during which the Holding Structure exists; the period of business operations in India; the generation of taxable revenues in India; the timing of the exit; the continuity of business on such exit. The onus will be on the Revenue to identify the scheme and its dominant purpose. The corporate business purpose of a transaction is evidence of the fact that the impugned transaction is not undertaken as a colourable or artificial device. The stronger the evidence of a device, the stronger the corporate business purpose must exist to overcome the evidence of a device. Direct Taxation - Whether the approach of the High Court (acquisition of CGP share with "other rights and entitlements") was correct? Held, it was stated that the subject matter of the transaction has to be viewed from a commercial and realistic perspective. The present case concerns an offshore transaction involving a structured investment. This case concerns "a share sale" and not an asset sale. It concerns sale of an entire investment. A "sale" may take various forms. Accordingly, tax consequences will vary. The tax consequences of a share sale would be different from the tax consequences of an asset sale. A slump sale would involve tax consequences which could be different from the tax consequences of sale of assets on itemised basis. "Control" is a mixed question of law and fact. Ownership of shares may, in certain situations, result in the assumption of an interest which has the character of a controlling interest in the management of the company. A controlling interest is an incident of ownership of shares in a company, something which flows out of the holding of shares. A controlling interest is, therefore, not an identifiable or distinct capital asset independent of the holding of shares. The control of a company resides in the voting power of its shareholders and shares represent an interest of a shareholder which is made up of various rights contained in the contract embedded in the Articles of Association. The right of a shareholder may assume the character of a controlling interest where the extent of the shareholding enables the shareholder to control the management. Shares, and the rights which emanate from them, flow together and cannot be dissected. In the felicitous phrase of Lord MacMillan in IRC v. Crossman, shares in a company consist of a "congeries of rights and liabilities" which is a creature of the Companies Acts and the Memorandum and Articles of Association of the company. Thus, control and management is a facet of the holding of shares. Applying the above principles governing shares and the rights of the shareholders to the facts of this case, this case concerns a straightforward share sale. VIH acquired Upstream shares with the intention that the congeries of rights, flowing from the CGP share, would give VIH an indirect control over the three genres of companies. If one looks at the chart indicating the Ownership Structure, one finds that the acquisition of the CGP share gave VIH an indirect control over the tier I Mauritius companies which owned shares in HEL totalling to 42.34 per cent; CGP India (Ms), which in turn held shares in TII and Omega and which on a pro rata basis (the FDI principle), totalled up to 9.62 per cent in HEL and an indirect control over Hutchison Tele Services (India) Holdings Ltd. (Ms), which in turn owned shares in GSPL, which held call and put options. Although the High Court has analysed the transactional documents in detail, it has missed out this aspect of the case. It has failed to notice that till date options have remained un-encashed with GSPL. Therefore, even if it be assumed that the options under the Framework Agreements 2006 could be considered to be property rights, there has been no transfer or assignment of options by GSPL till today. Even if it be assumed that the High Court was right in holding that the options constituted capital assets even then Section 9(1)(i) was not applicable as these options have not been transferred till date. Call and put options were not transferred vide SPA dated 11th February, 2007 or under any other document whatsoever. Moreover, if, on principle, the High Court accepts that the transfer of the CGP share did not lead to the transfer of a capital asset in India, even if it resulted in a transfer of indirect control over 42.34 per cent (52 per cent) of shares in HEL, then surely the transfer of indirect control over GSPL which held options (contractual rights), would not make the transfer of the CGP share taxable in India. Acquisition of the CGP share which gave VIH an indirect control over three genres of companies evidences a straightforward share saleand not an asset sale. There is another fallacy in the impugned judgment. On examination of the impugned judgment, we find a serious error committed by the High Court in appreciating the case of VIH before FIPB. On 19th March, 2007, FIPB sought a clarification from VIH of the circumstances in which VIH agreed to pay US$ 11.08 bn for acquiring 67 per cent of HEL when actual acquisition was of 51.96 per cent. In its response dated 19th March, 2007, VIH stated that it had agreed to acquire from HTIL for US$ 11.08 bn, interest in HEL which included a 52 per cent equity shareholding. According to VIH, the price also included a control premium, use of Hutch brand in India, a non-compete agreement, loan obligations and an entitlement to acquire, subject to the Indian FDI rules, a further 15 per cent indirect interest in HEL. According to the said letter, the above elements together equated to 67 per cent of the economic value of HEL. This sentence has been misconstrued by the High Court to say that the above elements equated to 67 per cent of the equity capital (See para 124). 67 per cent of the economic value of HEL is not 67 per cent of the equity capital. If VIH would have acquired 67 per cent of the equity capital, as held by the High Court, the entire investment would have had breached the FDI norms which had imposed a sectoral cap of 74 per cent . In this connection, it may further be stated that Essar had 33 per cent stakes in HEL out of which 22 per cent was held by Essar Mauritius. Thus, VIH did not acquire 67 per cent of the equity capital of HEL, as held by the High Court. This problem has arisen also because of the reason that this case deals with share sale and not asset sale. This case does not involve sale of assets on itemised basis. The High Court ought to have applied the look at test in which the entire Hutchison structure, as it existed, ought to have been looked at holistically. This case concerns investment into India by a holding company (parent company), HTIL through a maze of subsidiaries. When one applies the "nature and character of the transaction test", confusion arises if a dissecting approach of examining each individual asset is adopted. As stated, CGP was treated in the Hutchison structure as an investment vehicle. As a general rule, in a case where a transaction involves transfer of shares lock, stock and barrel, such a transaction cannot be broken up into separate individual components, assets or rights such as right to vote, right to participate in company meetings, management rights, controlling rights, control premium, brand licences and so on as shares constitute a bundle of rights. Further, the High Court failed to examine the nature of the following items, namely, noncompete agreement, control premium, call and put options, consultancy support, customer base, brand licences etc. On facts, the High Court, in the present case, ought to have examined the entire transaction holistically. VIH has rightly contended that the transaction in question should be looked at as an entire package. The items mentioned hereinabove, like, control premium, non-compete agreement, consultancy support, customer base, brand licences, operating licences etc. were all an integral part of the Holding Subsidiary Structure which existed for almost 13 years, generating huge revenues, as indicated above. Merely because at the time of exit capital gains tax becomes not payable or exigible to tax would not make the entire "share sale" (investment) a sham or a tax avoidant. The High Court failed to appreciate that the payment of US$ 11.08 bn was for purchase of the entire investment made by HTIL in India. The payment was for the entire package. The parties to the transaction have not agreed upon a separate price for the CGP share and for what the High Court calls as "other rights and entitlements" (including options, right to non-compete, control premium, customer base etc.). Thus, it was not open to the Revenue to split the payment and consider a part of such payments for each of the above items. The essential character of the transaction as an alienation cannot be altered by the form of the consideration, the payment of the consideration in installments or on the basis that the payment is related to a contingency ("options", in this case), particularly when the transaction does not contemplate such a split up. Where the parties have agreed for a lump sum consideration without placing separate values for each of the above items which go to make up the entire investment in participation, merely because certain values are indicated in the correspondence with FIPB which had raised the query, would not mean that the parties had agreed for the price payable for each of the above items. The transaction remained a contract of outright sale of the entire investment for a lump sum consideration (see: Commentary on Model Tax Convention on Income and Capital dated 28th January, 2003 as also the judgment of this Court in the case of CIT (Central), Calcutta v. Mugneeram Bangur and Company (Land Deptt.). Thus, it is necessary to "look at" the entire Ownership Structure set up by Hutchison as a single consolidated bargain and interpret the transactional documents, while examining the Offshore Transaction of the nature involved in this case, in that light. Direct Taxation - Whether Section 9 of the Income Tax Act, 1961 is a "look through" provision as submitted on behalf of the Revenue? Held, Section 9(1)(i) gathers in one place various types of income and directs that income falling under each of the sub clauses shall be deemed to accrue or arise in India. Broadly there are four items of income. The income dealt with in each sub clause is distinct and independent of the other and the requirements to bring income within each sub-clause, are separately noted. Hence, it is not necessary that income falling in one category under any one of the sub-clauses should also satisfy the requirements of the other sub-clauses to bring it within the expression "income deemed to accrue or arise in India" in Section 9(1)(i). In this case, the concerned provision is last sub-clause of Section 9(1)(i) which refers to income arising from "transfer of a capital asset situate in India". Thus, charge on capital gains arises on transfer of a capital asset situate in India during the previous year. The said sub-clause consists of three elements, namely, transfer, existence of a capital asset, and situation of such asset in India. All three elements should exist in order to make the last sub-clause applicable. Therefore, if such a transfer does not exist in the previous year no charge is attracted. Further, Section 45 enacts that such income shall be deemed to be the income of the previous year in which transfer took place. Consequently, there is no room for doubt that such transfer should exist during the previous year in order to attract the said sub clause. The fiction created by Section 9(1)(i) applies to the assessment of income of non residents. In the case of a resident, it is immaterial whether the place of accrual of income is within India or outside India, since, in either event, he is liable to be charged to tax on such income. But, in the case of a nonresident, unless the place of accrual of income is within India, he cannot be subjected to tax. In other words, if any income accrues or arises to a non resident, directly or indirectly, outside India is fictionally deemed to accrue or arise in India if such income accrues or arises as a sequel to the transfer of a capital asset situate in India. Once the factum of such transfer is established by the Department, then the income of the non-resident arising or accruing from such transfer is made liable to be taxed by reason of Section 5(2)(b) of the Act. This fiction comes into play only when the income is not charged to tax on the basis of receipt in India, as receipt of income in India by itself attracts tax whether the recipient is a resident or non resident. This fiction is brought in by the legislature to avoid any possible argument on the part of the non-resident vendor that profit accrued or arose outside India by reason of the contract to sell having been executed outside India. Thus, income accruing or arising to a non-resident outside India on transfer of a capital asset situate in India is fictionally deemed to accrue or arise in India, which income is made liable to be taxed by reason of Section 5(2)(b) of the Act. This is the main purpose behind enactment of Section 9(1)(i) of the Act. Necessity is to give effect to the language of the section when it is unambiguous and admits of no doubt regarding its interpretation, particularly when a legal fiction is embedded in that section. A legal fiction has a limited scope. A legal fiction cannot be expanded by giving purposive interpretation particularly if the result of such interpretation is to transform the concept of chargeability which is also there in Section 9(1)(i), particularly when one reads Section 9(1)(i) with Section 5(2) (b) of the Act. What is contended on behalf of the Revenue is that under Section 9(1)(i) it can "look through" the transfer of shares of a foreign company holding shares in an Indian company and treat the transfer of shares of the foreign company as equivalent to the transfer of the shares of the Indian company on the premise that Section 9(1)(i) covers direct and indirect transfers of capital assets. For the above reasons, Section 9(1)(i) cannot by a process of interpretation be extended to cover indirect transfers of capital assets/property situate in India. To do so, would amount to changing the content and ambit of Section 9(1)(i). Section 9(1)(i) cannot be re-written. The legislature has not used the words indirect transfer in Section 9(1)(i). If the word indirect is read into Section 9(1)(i), it would render the express statutory requirement of the 4th sub-clause in Section 9(1)(i) nugatory. This is because Section 9(1)(i) applies to transfers of a capital asset situate in India. This is one of the elements in the 4th sub-clause of Section 9(1)(i) and if indirect transfer of a capital asset is read into Section 9(1)(i) then the words capital asset situate in India would be rendered nugatory. Similarly, the words underlying asset do not find place in Section 9(1)(i). Further, "transfer" should be of an asset in respect of which it is possible to compute a capital gain in accordance with the provisions of the Act. Moreover, even Section 163(1)(c) is wide enough to cover the income whether received directly or indirectly. Thus, the words directly or indirectly in Section 9(1)(i) go with the income and not with the transfer of a capital asset (property). Lastly, it may be mentioned that the Direct Tax Code (DTC) Bill, 2010 proposes to tax income from transfer of shares of a foreign company by a non-resident, where at any time during 12 months preceding the transfer, the fair market value of the assets in India, owned directly or indirectly, by the company, represents at least 50 per cent of the fair market value of all assets owned by the company. Thus, the DTC Bill, 2010 proposes taxation of offshore share transactions. This proposal indicates in a way that indirect transfers are not covered by the existing Section 9(1)(i) of the Act. In fact, the DTC Bill, 2009 expressly stated that income accruing even from indirect transfer of a capital asset situate in India would be deemed to accrue in India. These proposals, therefore, show that in the existing Section 9(1)(i) the word indirect cannot be read on the basis of purposive construction. The question of providing "look through" in the statute or in the treaty is a matter of policy. It is to be expressly provided for in the statute or in the treaty. Similarly, limitation of benefits has to be expressly provided for in the treaty. Such clauses cannot be read into the Section by interpretation. For the foregoing reasons, Section 9(1)(i) held to be as not a "look through" provision. Direct Taxation - Issue of Situs of the CGP Share - Determination thereof. Held, according to the Revenue, under the Companies Law of Cayman Islands, an exempted company was not entitled to conduct business in the Cayman Islands. CGP was an "exempted company". According to the Revenue, since CGP was a mere holding company and since it could not conduct business in Cayman Islands, the situs of the CGP share existed where the "underlying assets are situated", that is to say, India. That, since CGP as an exempted company conducts no business either in the Cayman Islands or elsewhere and since its sole purpose is to hold shares in a subsidiary company situated outside the Cayman Islands, the situs of the CGP share, in the present case, existed "where the underlying assets stood situated" (India). No merits in the arguments were found to be present. Be that as it may, under the Indian Companies Act, 1956, the situs of the shares would be where the company is incorporated and where its shares can be transferred. In the present case, it has been asserted by VIH that the transfer of the CGP share was recorded in the Cayman Islands, where the register of members of the CGP is maintained. This assertion was neither rebutted in the impugned order of the Department dated 31st May, 2010 nor traversed in the pleadings filed by the Revenue nor controverted in the current proceedings. In the circumstances, it the arguments of the Revenue that the situs of the CGP share was situated in the place (India) where the underlying assets stood situated held to be not acceptable. K.S. Radhakrishnan, J. Direct Taxation - Correctness of decision as laid down in the Azadi Bachao case. Held, Justice Chinnappa Reddy had started his concurring judgment in McDowell by mentioning that, "While I entirely agree with my brother Ranganath Mishra, J. in the judgment proposed to be delivered by me, I wish to add a few paragraphs, particularly to supplement what he has said on the "fashionable" topic of tax avoidance." The quoted portion showed that he entirely agreed with Justice Mishra and has stated that he is only supplementing what Justice Mishra has spoken on tax avoidance. Justice Reddy, while agreeing with Justice Mishra and the other three judges, has opined that in the very country of its birth, the principle of Westminster has been given a decent burial and in that country where the phrase "tax avoidance" originated the judicial attitude towards tax avoidance has changed and the Courts are now concerning themselves not merely with the genuineness of a transaction, but with the intended effect of it for fiscal purposes. Justice Reddy also opined that no one can get away with the tax avoidance project with the mere statement that there is nothing illegal about it. Justice Reddy has also opined that the ghost of Westminster (in the words of Lord Roskill) has been exercised in England. What transpired in England is not the ratio of McDowell and cannot be and remains merely an opinion or view. The confusion had arose (see Paragraph 46 of the judgment) when Justice Mishra has stated after referring to the concept of tax planning as, "On this aspect, one of us Chinnappa Reddy, J. Has proposed a separate and detailed opinion with which we agree." Since, Justice Reddy, himself has stated that he is entirely agreeing with Justice Mishra and has only supplemented what Justice Mishra has stated on Tax Avoidance, therefore, one has to go by what Justice Mishra has spoken on tax avoidance. Justice Reddy has depreciated the practice of setting up of Tax Avoidance Projects rightly because the same is/was the situation in England and Ramsay and other judgments had depreciated the Tax Avoidance Schemes. The ratio of the judgment is what is spoken by Justice Mishra for himself and on behalf of three other judges, on which Justice Reddy has agreed. Justice Reddy has clearly stated that he is only supplementing what Justice Mishra has said on Tax avoidance. Justice Reddy has endorsed the view of Lord Roskill that the ghost of Westminster had been exorcised in England and that one should not allow its head rear over India. If one scans through the various judgments of the House of Lords in England, one thing is clear that it has been a cornerstone of law, that a tax payer is enabled to arrange his affairs so as to reduce the liability of tax and the fact that the motive for a transaction is to avoid tax does not invalidate it unless a particular enactment so provides (Westminster Principle). Needless to say if the arrangement is to be effective, it is essential that the transaction has some economic or commercial substance. Lord Roskill's view is not seen as the correct view so also Justice Reddy's. A five Judges Bench judgment of this Court in Mathuram Agrawal v. State of Madhya Pradesh after referring to the judgment in B.C. Kharwar as well as the opinion expressed by Lord Roskill on Duke of Westminster stated that the subject is not to be taxed by inference or analogy, but only by the plain words of a statute applicable to the facts and circumstances of each case. Revenue cannot tax a subject without a statute to support and in the course we also acknowledge that every tax payer is entitled to arrange his affairs so that his taxes shall be as low as possible and that he is not bound to choose that pattern which will replenish the treasury. Revenue's stand that the ratio laid down in McDowell is contrary to what has been laid down in Azadi Bachao Andolan, accordingly held to be unsustainable and, therefore, called for no reconsideration by a larger branch. Direct Taxation - Determination of conclusive effect of a relationship between Holding Company and Subsidiary Company. Held, the subsidiary companies are the integral part of corporate structure. Activities of the companies over the years have grown enormously of its incorporation and outside and their structures have become more complex. Multi National Companies having large volume of business nationally or internationally will have to depend upon their subsidiary companies in the national and international level for better returns for the investors and for the growth of the company. When a holding company owns all of the voting stock of another company, the company is said to be a WOS of the parent company. Holding companies and their subsidiaries can create pyramids, whereby subsidiary owns a controlling interest in another company, thus becoming its parent company. Legal relationship between a holding company and WOS is that they are two distinct legal persons and the holding company does not own the assets of the subsidiary and, in law, the management of the business of the subsidiary also vests in its Board of Directors. In Bacha F. Guzdar v. CIT, it was held that shareholders' only rights is to get dividend if and when the company declares it, to participate in the liquidation proceeds and to vote at the shareholders' meeting. Holding company, if the subsidiary is a WOS, may appoint or remove any director if it so desires by a resolution in the General Body Meeting of the subsidiary. Holding companies and subsidiaries can be considered as single economic entity and consolidated balance sheet is the accounting relationship between the holding company and subsidiary company, which shows the status of the entire business enterprises. Shares of stock in the subsidiary company are held as assets on the books of the parent company and can be issued as collateral for additional debt financing. Holding company and subsidiary company are, however, considered as separate legal entities, and subsidiary are allowed decentralised management. Each subsidiary can reform its own management personnel and holding company may also provide expert, efficient and competent services for the benefit of the subsidiaries. The U.S. Supreme Court in United States v. Bestfoods had explained that it is a general principle of corporate law and legal systems that a parent corporation is not liable for the acts of its subsidiary, but the Court went on to explain that corporate veil can be pierced and the parent company can be held liable for the conduct of its subsidiary, if the corporal form is misused to accomplish certain wrongful purposes, when the parent company is directly a participant in the wrong complained of. Mere ownership, parental control, management etc. of a subsidiary is not sufficient to pierce the status of their relationship and, to hold parent company liable. In Adams v. Cape Industries Plc., the Court of Appeal emphasized that it is appropriate to pierce the corporate veil where special circumstances exist indicating that it is mere fao?=ade concealing true facts. Courts, however, will not allow the separate corporate entities to be used as a means to carry out fraud or to evade tax. Parent company of a WOS, is not responsible, legally for the unlawful activities of the subsidiary save in exceptional circumstances, such as a company is a sham or the agent of the shareholder, the parent company is regarded as a shareholder. Multi-National Companies, by setting up complex vertical pyramid like structures, would be able to distance themselves and separate the parent from operating companies, thereby protecting the multinational companies from legal liabilities. Direct Taxation - Whether the approach of the High Court (acquisition of CGP share with "other rights and entitlements") was correct? Held, the High Court has reiterated the common law principle that the controlling interest is an incident of the ownership of the share of the company, something which flows out of holding of shares and, therefore, not an identifiable or distinct capital asset independent of the holding of shares, but at the same time speaks of change in the controlling interest of VEL, without there being any transfer of shares of VEL. Further, the High Court failed to note on transfer of CGP share, there was only transfer of certain off-shore loan transactions which is unconnected with underlying controlling interest in the Indian Operating Companies. The other rightsinterests and entitlements continue to remain with Indian Operating Companies and there is nothing to show they stood transferred in law. The High Court has ignored the vital fact that as far as the put options are concerned there were pre-existing agreements between the beneficiaries and counter parties and fresh agreements were also on similar lines. Further, the High Court has ignored the fact that Term Sheet Agreement with Essar had nothing to do with the transfer of CGP, which was a separate transaction which came about on account of independent settlement between Essar and Hutch Group, for a separate consideration, unrelated to the consideration of CGP share. The High Court committed an error in holding that there were some rights vested in HTIL under SHA dated 5th July, 2003 which is also an agreement, conferring no right to any party and accordingly none could have been transferred. The High Court had also committed an error in holding that some rights vested with HTIL under the agreement dated 1st August, 2006, in fact, that agreement conferred right on Hutichison Telecommunication (India) Ltd., which is a Mauritian Company and not HTIL, the vendor of SPA. The High Court has also ignored the vital fact that FIPB had elaborately examined the nature of call and put option agreement rights and found no right in presenti has been transferred to Vodafone and that as and when rights are to be transferred by AG and AS Group Companies, it would specifically require Government permission since such a sale would attract capital gains, and may be independently taxable. Direct Taxation - Whether Section 9 of the Income Tax Act, 1961 is a "look through" provision as submitted on behalf of the Revenue? Held, Section 9(1)(i) covers only income arising or accruing directly or indirectly or through the transfer of a capital asset situated in India. Section 9(1)(i) cannot by a process of "interpretation" or "construction" be extended to cover "indirect transfers" of capital assets/property situate in India. On transfer of shares of a foreign company to a nonresident off-shore, there is no transfer of shares of the Indian Company, though held by the foreign company, in such a case it cannot be contended that the transfer of shares of the foreign holding company, results in an extinguishment of the foreign company control of the Indian company and it also does not constitute an extinguishment and transfer of an asset situate in India. Transfer of the foreign holding company's share off-shore, cannot result in an extinguishment of the holding company right of control of the Indian company nor can it be stated that the same constitutes extinguishment and transfer of an asset/ management and control of property situated in India. The Legislature wherever wanted to tax income which arises indirectly from the assets, the same has been specifically provided so. For example, reference may be made to Section 64 of the Indian Income Tax Act, which says that in computing the total income of an individual, there shall be included all such income as arises directly or indirectly: to the son's wife, of such individual, from assets transferred directly or indirectly on and after 1st June, 1973 to the son's wife by such individual otherwise than for adequate consideration. The same was noticed by this Court in CIT v. Kothari (CM). Similar expression like "from asset transferred directly or indirectly", is available in Sections 64(7) and (8) as well. On a comparison of Section 64 and Section 9(1)(i) what is discernible is that the Legislature has not chosen to extend Section 9(1)(i) to "indirect transfers". Wherever "indirect transfers" are intended to be covered, the Legislature has expressly provided so. The words "either directly or indirectly", textually or contextually, cannot be construed to govern the words that follow, but must govern the words that precede them, namely the words "all income accruing or arising". The words "directly or indirectly" occurring in Section 9, therefore, relate to the relationship and connection between a non-resident assessee and the income and these words cannot and do not govern the relationship between the transaction that gave rise to income and the territory that seeks to tax the income. In other words, when an assessee is sought to be taxed in relation to an income, it must be on the basis that it arises to that assessee directly or it may arise to the assessee indirectly. In other words, for imposing tax, it must be shown that there is specific nexus between earning of the income and the territory which seeks to lay tax on that income. Reference may also be made to the judgment of this Court in IshikawajmaHarima Heavy Industries Ltd. v. Director of Income Tax, Mumbai and CIT v. R.D. Aggarwal. Section 9 has no "look through provision" and such a provision cannot be brought through construction or interpretation of a word 'through' in Section 9. In any view, "look through provision" will not shift the situs of an asset from one country to another. Shifting of situs can be done only by express legislation. Federal Commission of Taxation v. Lamesa Holdings BV (LN) gives an insight as to how "look through" provisions are enacted. Section 9, thus, has no inbuilt "look through mechanism". Direct Taxation - Issue of Situs of the CGP Share - Determination thereof. Held, situs of shares situates at the place where the company is incorporated and/ or the place where the share can be dealt with by wayof transfer. CGP share is registered in Cayman Island and materials placed before us would indicate that Cayman Island law, unlike other laws does not recognise the multiplicity of registers. Section 184 of the Cayman Island Act provides that the company may be exempt if it gives to the Registrar, a declaration that "operation of an exempted company will be conducted mainly outside the Island". Section 193 of the Cayman Island Act expressly recognises that even exempted companies may, to a limited extent trade within the Islands. Section 193 permits activities by way of trading which are incidental of off shore operations also all rights to enter into the contract etc. The facts in this case as well as the provisions of the Caymen Island Act would clearly indicate that the CGP (CI) share situates in Caymen Island. The legal principle on which situs of an asset, such as share of the company is determined, is well settled. Reference may be made to the judgments in Brassard v. Smith, London and South American Investment Trust v. British Tobacco Co. (Australia). Erie Beach Co. v. Attorney-General for Ontario, R. v. Williams [1942] AC 541. Situs of CGP share, therefore, situates in Cayman Islands and on transfer in Cayman Islands would not shift to India. Direct Taxation - Shareholders' Agreement - Meaning and scope vis-a-vis the view taken in the case of V. B. Rangaraj v. V. B. Gopalakrishnan and Ors. Held, Shareholders' Agreement (SHA) is essentially a contract between some or all other shareholders in a company, the purpose of which is to confer rights and impose obligations over and above those provided by the Company Law. SHA is a private contract between the shareholders compared to Articles of Association of the Company, which is a public document. Being a private document it binds parties thereof and not the other remaining shareholders in the company. Advantage of SHA is that it gives greater flexibility, unlike Articles of Association. It also makes provisions for resolution of any dispute between the shareholders and also how the future capital contributions have to be made. Provisions of the SHA may also go contrary to the provisions of the Articles of Association, in that event, naturally provisions of the Articles of Association would govern and not the provisions made in the SHA. The nature of SHA was considered by a two Judges Bench of the Apex Court in V. B. Rangaraj v. V. B. Gopalakrishnan and Ors. In that case, an agreement was entered into between shareholders of a private company wherein a restriction was imposed on a living member of the company to transfer his shares only to a member of his own branch of the family, such restrictions were, however, not envisaged or provided for within the Articles of Association. This Court has taken the view that provisions of the Shareholders' Agreement imposing restrictions even when consistent with Company legislation, are to be authorised only when they are incorporated in the Articles of Association, a view we do not subscribe. This Court in Gherulal Parekh v. Mahadeo Das Maiya held that freedom of contract can be restricted by law only in cases where it is for some good for the community. Companies Act 1956 or the FERA 1973, RBI Regulation or the I.T. Act do not explicitly or impliedly forbid shareholders of a company to enter into agreements as to how they should exercise voting rights attached to their shares. Shareholders can enter into any agreement in the best interest of the company, but the only thing is that the provisions in the SHA shall not go contrary to the Articles of Association. The essential purpose of the SHA is to make provisions for proper and effective internal management of the company. It can visualise the best interest of the company on diverse issues and can also find different ways not only for the best interest of the shareholders, but also for the company as a whole. In S. P. Jain v. Kalinga Cables Ltd., the Apex Court held that agreements between non-members and members of the Company will not bind the company, but there is nothing unlawful in entering into agreement for transferring of shares. Of course, the manner in which such agreements are to be enforced in the case of breach is given in the general law between the company and the shareholders. A breach of SHA which does not breach the Articles of Association is a valid corporate action but, as we have already indicated, the parties aggrieved can get remedies under the general law of the land for any breach of that agreement.,


The Pharmacy Council of India Vs. Respondent: Dr. S.K. Toshniwal Educational Trusts, Vidarbha Institute of Pharmacy and Ors

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Equivalent Citation: 2021(2)ABR488, AIR2021SC843, 2021(1)ALLMR799, 2020 (5) SCJ 94 MANU/SC/0531/2020

Case Note: Administrative Law - Applicability of law - Pharmacy Courses - Pharmacy Act, 1948 versus All India Council of Technical Education Act, 1987 (hereinafter referred to as the AICTE Act) - Respondent Colleges increased intake capacity of students, based upon the requisite permission/ approval obtained from the AICTE - Increase was allowed by respective High Courts by concluding that AICTE is the supreme authority between the two bodies, namely, AICTE and PCI (Pharmacy Council of India) and decision of AICTE would prevail upon PCI - Whether AICTE Act would prevail upon the Pharmacy Act, 1948 in relation to the subject of Pharmacy, including approval of courses of study, minimum standards of education required for qualification as a Pharmacist, registration as a Pharmacist, Regulation of future professional conduct etc.? Whether the intake capacity increased by AICTE valid? Facts: The issue that came up for adjudication was to determine the overriding effect of AICTE Act, 1987 and Pharmacy Act, 1948 over each other. PCI Submitted that having regard to the statutory scheme contained in the Pharmacy Act, the jurisdiction for regulating the standards of education in the subject of pharmacy and subsequent professional conduct of pharmacists vests entirely in the PCI and AICTE does not have any jurisdiction or power in this behalf. AICTE on the other hand submitted that it was set up by a Government resolution as a National Expert Body to advise Central and State Government for ensuring the coordinated development and technical education in accordance with approved standards and was playing effective role. In order to enable the AICTE to play its role effectively, it was recommended that council should be given the statutory power. Once enacted, it was claimed to have supremacy over Pharmacy Act. This was confirmed by respective High Courts as well in various proceedings before it and hence the present appeal to adjudicate whether the mandate of PCI or that of the AICTE would prevail on the question of granting approval and related matters to any institution for conducting pharmacy education course, if there was any conflict/contradictions in the opinions of these two bodies. Held, while disposing of the appeal: (i) Considering the various provisions of the Pharmacy Act and the Regulations made therein, it can be said that the Pharmacy Act is a complete Code in itself in the subject of pharmacy. The PCI has been constituted as a body empowered to regulate the education and profession of pharmacy in India. It cannot be disputed that the subject of pharmacy is a special and not a general subject. From the relevant provisions of the Pharmacy Act, more particularly, the provisions referred to hereinabove, the Pharmacy Act exclusively covers all areas inclusive of approval of courses, laying down course content, eligibility conditions for students as well as teachers, evaluation standards of examination, grant of registration, entry of higher qualifications in the same discipline, taking action for infamous conduct etc. It also contains a penal provision. Thus, the legislative intent in enacting the Pharmacy Act seems to be to ensure that there is seamless Regulation of the profession. To carry out the objective and purpose for enacting the Pharmacy Act, the Legislature has established under the Statute the autonomous statutory authority i.e. Pharmacy Council of India. Thus it can be said that in the field of pharmacy, the Pharmacy Act is a special law. On the other hand, the AICTE Act can be said to be a general law applicable to the technical institutions and technical education. AICTE Act was originally set up by a Government Resolution as a National Expert Body to advise the Central and State Government for ensuring the coordinated development of technical education in accordance with the approved standards. Accordingly, the powers and functions assigned to the AICTE, inter alia, provide laying down norms and standards for programmes and institutions, giving approval for setting up of technical institutions, prescribing guidelines for admission of students and the charging of fees, and inspecting and evaluating institutions periodically with a view to maintaining standards and to provide recognition or withhold recognition of programmes and institutions. AICTE Act can be said to be a general law with respect to the technical education. [13] (ii) PCI constituted under the provisions of the Pharmacy Act, consisting of the experts in the field of pharmacy and/or related subjects would prevail. Consequently, the norms and Regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by an institution imparting education for degrees and diplomas in pharmacy. [18] (iii) Even in the AICTE Act there is no specific repeal of the Pharmacy Act, 1948. As observed hereinabove, there is not even 'implied repeal'. Therefore, reliance placed upon Article 372 of the Constitution was held to be misconceived. [19] (iv) In the field of Pharmacy Education and more particularly, the recognition of degrees and diplomas of Pharmacy Education, the Pharmacy Act, 1948 would prevail. The norms and Regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned institutions imparting education for degreesand diplomas in Pharmacy, including the norms and Regulations with respect to increase and/or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. [21] (v) The conflict and the dispute arose because despite refusal by the PCI, the AICTE increased the intake capacity in the respective institutions, which were not approved by the PCI. By the interim orders, this Court and the respective High Courts directed to allow those students to appear in the examinations and to register them as pharmacists. Such Interim Orders were also made final. Therefore, the present decision would not affect those students admitted in the increased intake capacity and/or pursuant to the interim orders passed by this Court and/or final judgments and orders passed by the respective High Courts. PCI was directed to give consequential benefit of registration to such students. However, at the same time, all pending applications for increase in intake capacity and/or for recognition and/or approval of course/institutions in the pharmacy would be as per the provisions of the Pharmacy Act, 1948 and the Regulations, if any, thereunder and as per the norms and Regulations fixed by the PCI. It was further directed to the concerned institutions who increased their intake capacity as approved by AICTE and their increase in intake capacity was not approved by PCI, would apply afresh for increase in intake capacity and/or evening shift for the next academic year within the time specified and the same would be considered by the PCI in accordance with the Pharmacy Act, 1948 and Rules and Regulations framed therein [22]


Swaraj Abhiyan and Ors.- Vs.-Union of India (UOI) and Ors.

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Equivalent Citation: AIR2016SC2953, (2016)4MLJ729, 2016(3)RCR(Civil)444, 2016(3)RCR(Civil)324, 2016(5)SCALE506, 2016(5)SCALE491, 2016(5)SCALE478, (2016)7SCC498, 2016 (5) SCJ 408, 2016(5)SLR35(SC) MANU/SC/0589/2016

Case Note: Civil - Implementation of Act - Persons affected by drought - Sections 2(14), 10, 14 and 15 of National Food Security Act, 2013 - Petitioner made prayer relating to implementation of National Food Security Act, 2013 pertaining to necessity to ensure food security to persons affected by drought - Whether any direction could be made regarding implementation of Act, 2013 Facts: The Petitioner made a prayer relating to the implementation of the National Food Security Act, 2013 (NFS Act). The Petitioner submitted that it was necessary to ensure food security to the persons affected by the drought. In that regard, the Petitioner made four suggestions. Firstly, all households should be provided with 5 kg food grains per person per month irrespective of whether or not they fall in the category of priority households as defined in Section 2(14) of NFS Act read with Section 10 thereof. The provision for food grains should be in addition to and not in derogation of any other entitlement in any other government scheme. Secondly, households that do not have a ration card or family members left out of existing ration cards should be issued special and temporary coupons on production of an appropriate identity card or any other proof of residence. Thirdly, each household affected by the drought should be provided certain amount of grains and edible oil at a fixed price through the Public Distribution System. In this regard, reference was made to a similar scheme which is said to be working quite well in a State. Fourthly, children affected by the drought should be provided food under the Mid-Day Meal Scheme.In addition to this, the Mid-Day Meal Scheme should continue during the summer vacation period in schools so that children are not deprived of their meals, including eggs or milk, as the case may be. Held: (i) The implementation of a law enacted by Parliament such as the NFS Act is left to the whims and fancies of the State Governments, and it has taken more than two years after the NFS Act came into force for one State to implement it and another State had only implemented it partially. [12] (ii) In matters involving financial issues and prioritization of finances, present Court should defer to the priorities determined by the State, unless there is a statutory obligation that needs to be fulfilled by the State. For example, in the matter of construction of roads present Court has left the prioritization to the State. [17] (iii) The provision of food grains as per the provisions of the NFS Act is a statutory obligation on the State. This Court can certainly direct the State to faithfully implement the provisions of the NFS Act. However, there was no statutory or constitutional obligation on the State to provide edible oils and lentil to people in distress. [19] (iv) Unacceptable contention on behalf of the Union that fiscal constraints or an increase in the food subsidy bill can be a reason for denying relief to persons in drought affected areas. Constitutional jurisprudence had travelled an enormous distance over the years to even think of attempting a roll-back. [23] (v) The children are the future of our country and if there is some stinginess in providing them with adequate nutrition, the country as a whole is deprived in future of taking the benefit of their potential. Therefore, the calorific and nutritional requirements mentioned by the Union cannot be treated as the maximum requirements but only as the minimum requirements. [28] (vi) Direction was made that each of the States shall establish an internal grievance mechanism and appoint or designate for each district a District Grievance Redressal Officer as postulated by Section 14 and Section 15 respectively of the NFS Act. [30] (vii) There was no informal capping of funds although it did appear that the Central Government was not prone to easily release funds for the projects under the Scheme. [60] (viii) Unacceptable delay on the part of the Government of India in the release of funds both under the wage component as well as under the material component. There was no worthwhile justification forthcoming from the Additional Solicitor General, that delay in payment of wages acts as a disincentive to those persons who are intending to take the benefit of the Scheme. [69] (ix) The State Governments ought to present a realistic budget which should then be pragmatically considered by the Empowered Committee. This procedure will avoid any unnecessary controversy between the State Governments and the Government of India about the release of funds under the Scheme. 77 (x) The quantum of monetary relief to be given to a farmer is again a matter of policy. 96 (xi) Similarly, issues regarding establishing fodder banks or restructuring bank loans, the extent to which restructuring should be carried out are all issues that are required to be decided by experts. [97]


Swapnil Tripathi and Ors.- Vs.-Supreme Court of India and Ors.

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Equivalent Citation: AIR2018SC4806, 253(2018)DLT546, 2018 (4) KHC 729, 2018(4)RCR(Civil)632, 2018(11)SCALE475, (2018)10SCC639, 2019 (3) SCJ 22, (2019)2WBLR(SC)31 MANU/SC/1066/2018

Case Note: Constitution - Live court proceedings - Directions thereto - Present petitions filed for declaration that Supreme Court case proceedings of constitutional importance having impact on public at large or large number of people should be live streamed in manner that was easily accessible for public viewing - Further direction was sought to frame guidelines to enable determination of exceptional cases that qualify for live streaming and to place those guidelines before Full Court of this Court - Whether directions need to be issued in respect of live streaming of court proceedings. Facts: The Petitioners and interventionists, claiming to be public spirited persons, have sought a declaration that Supreme Court case proceedings of constitutional importance having an impact on the public at large or a large number of people should be live streamed in a manner that was easily accessible for public viewing. Further direction was sought to frame guidelines to enable the determination of exceptional cases that qualify for live streaming and to place those guidelines before the Full Court of this Court. Held, while disposing off the petition: A.M. Khanwilkar, J. (i) Courts in India are ordinarily open to all members of public, who are interested inwitnessing the court proceedings. However, due to logistical issues and infrastructural restrictions in courts, they may be denied the opportunity to witness live Court proceedings in propria persona. To consummate their aspirations, use of technology to relay or publicize the live court proceedings can be a way forward. By providing virtual access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and including the right of justice at the doorstep of the litigants. Open justice, after all, can be more than just a physical access to the courtroom rather, it was doable even virtually in the form of live streaming of court proceedings and have the same effect. [12] (ii) Publication of court proceedings of the Supreme Court is a facet of the status of this Court as a Court of Record by virtue of Article 129 of the Constitution, whose acts and proceedings are enrolled for perpetual memory and testimony. Further, live streaming of court proceedings in the prescribed digital format would be an affirmation of the constitutional rights bestowed upon the public and the litigants in particular. While doing so, regard must be had to the fact that just as the dignity and majesty of the Court was inviolable, the issues regarding privacy rights of the litigants or witnesses whose cases were set down for hearing, as also other exceptional category of cases of which live streaming of proceedings may not be desirable as it may affect the cause of administration of justice itself, were matters which need to be identified and a proper regulatory framework must be provided in that regard by formulating Rules in exercise of the power under Article 145 of the Constitution. It must be kept in mind that in case of conflict between competing Constitutional rights, a sincere effort must be made to harmonise such conflict in order to give maximum expression to each right while minimizing the encroachment on the other rights. In terms of Section 327 of Code of Criminal Procedure and Section 153-B of Code of Civil Procedure, only court-directed matters could be heard in camera and the general public could be denied access to or to remain in the court building used by the Court. Until such direction was issued by the Court, the hearing of the case is deemed to be an open court to which the public generally may have access. The access to the hearing by the general public, however, would be limited to the size and capacity of the court room. By virtue of live streaming of court proceedings, it would go public beyond the four walls of the court room to which, in a given case, the party or a witness to the proceedings may have genuine reservations and may claim right of privacy and dignity. Such a claim would have to be examined by the concerned Court and for which reason, a just regulatory framework must be provided for, including obtaining prior consent of the parties to the proceedings to be live streamed. [13] (iii) This court generally agree with the comprehensive guidelines for live streaming of Court proceedings in the Supreme Court suggested by the learned Attorney General for India. The project of live streaming of the court proceedings of the Supreme Court on the internet and/or on radio and TV through live audio-visual broadcasting/telecasting universally by an official agency, such as Doordarshan, having exclusive telecasting rights and/or official website/mobile application of the Court, must be implemented in a progressive, structured and phased manner, with certain safeguards to ensure that the purpose of live streaming of proceedings was achieved holistically and that it does not interfere with the administration of justice or the dignity and majesty of the Court hearing the matter and/or impinge upon any rights of the litigants or witnesses. The entire project would have to be executed in phases, with certain phases containing sub-phases or stages. Before the commencement of first phase of the project, formal Rules would have to be framed by this Court to incorporate the recommendations made by the Attorney General for India. [14]Dr. D.Y. Chandrachud, J. (i) Public confidence in the judiciary and in the process of judicial decision making is crucial for preserving the Rule of law and to maintain the stability of the social fabric. Peoples' access to the court signifies that the public is willing to have disputes resolved in court and to obey and accept judicial orders. Open courts effectively foster public confidence by allowing litigants and members of the public to view courtroom proceedings and ensure that the judges apply the law in a fair and impartial manner. [27] (ii) The impact of open courts in our country is diminished by the fact that a large segment of the society rarely has an opportunity to attend court proceedings. This is due to constraints like poverty, illiteracy, distance, cost and lack of awareness about court proceedings. Litigants depend on information provided by lawyers about what has transpired during the course of hearings. Others, who may not be personally involved in a litigation, depend on the information provided about judicial decisions in newspapers and in the electronic media. When the description of cases is accurate and comprehensive, it serves the cause of open justice. However, if a report on a judicial hearing is inaccurate, it impedes the public's right to know. Courts, though open in law and in fact, become far removed from the lives of individual citizens. This is anomalous because courts exist primarily to provide justice to them. [33] (iii) Advancement in technology and increased internet penetration has facilitated transmission of live or pre-recorded video feed to devices like computers, tabs and mobiles. Live-webcast or streaming of court proceedings in real time can be implemented through available technological solutions. Live-webcast or streaming is the fastest method for communicating and is most suited for connecting geographically dispersed audiences. The time had come for this Court to take a step further in adopting technology and to enable live-streaming of its proceedings. Live-streaming of courtroom proceedings was an extension of the principle of open courts. Live-streaming will have the ability to reach a wide number of audiences with the touch of a button. It would enable litigants and members of the public to have a virtual experience of courtroom proceedings even outside the courtroom premises. [37] (iv) Live-streaming of proceedings was crucial to the dissemination of knowledge about judicial proceedings and granting full access to justice to the litigant. Access to justice can never be complete without the litigant being able to see, hear and understand the course of proceedings first hand. Apart from this, live-streaming was an important facet of a responsive judiciary which accepts and acknowledges that it was accountable to the concerns of those who seek justice. Live-streaming was a significant instrument of establishing the accountability of other stake-holders in the justicing process, including the Bar. Moreover, the government as the largest litigant has to shoulder the responsibility for the efficiency of the judicial process. Full dissemination of knowledge and information about court proceedings through live-streaming thus subserves diverse interests of stake holders and of society in the proper administration of justice. [43] (v) Proceedings involving the hearing of cases before the Supreme Court shall be livestreamed in the manner provided that a) Cases falling under the following categories shall be excluded as a class from livestreaming: (i) Matrimonial matters, including transfer petitions (ii) Cases involving sensitive issues as in the nature of sexual assault and (iii) Matters where children and juveniles are involved, like POCSO cases. b) Apart from the general prohibition on streaming cases falling in the above categories, the presiding judge of each courtroom shall have the discretion to disallow live-streaming for specific cases where, in his/her opinion, publicity would prejudice the interests of justice. This may be intimated by the presiding judge in advance or live-streaming may be suspended as and when a matter is being heard and c) Where objections were filed by a litigant against live-streaming of a case on grounds of privacy, confidentiality, or the administration of justice, the final authority on livestreaming the case shall lie with the presiding judge. In addition to live-streaming of courtroom proceedings, the following events may also be live-streamed in future subject to the provisions of the Rules: (a) Oath ceremonies of the Judges of the Supreme Court and speeches delivered by retiring judges and other judges in the farewell ceremony of the respective Supreme Court Judges and (b) Addresses delivered in judicial conferences or Full Court References or any event organized by the Supreme Court or by advocate associations affiliated to the Supreme Court or any other events. [46]


Subhash Kashinath Mahajan Vs. Respondent: The State of Maharashtra and Ors.

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Equivalent Citation: 2018(186)AIC145, AIR2018SC1498, 2018 (1) ALD(Crl.) 629 (SC), 2018 (103) ACC 908, 2018ALLMR(Cri)1773, 2018(2)ALT50, 2018 (1) ALT (Crl.) 332 (A.P.), 2018(2)BomCR(Cri)593, II(2018)CCR1(SC), 126(2018)CLT250, 2018CriLJ3422, 2018(2)Crimes169(SC), 2018(2)CTC779, 248(2018)DLT39, ILR2018(2)Kerala423, 2018(2)J.L.J.R.141, 2019(2)KarLJ147, 2018 (2) KHC 207, 2018(2)KLT33, 2018(2)MLJ(Crl)728, 2018(2)N.C.C.422, 2018(II)OLR45, 2018(2)PLJR126, 2018(2)RCR(Criminal)552, 2018(1)RLW840(SC), 2018(4)SCALE661, (2018)6SCC454, 2018 (7) SCJ 311, 2018(1)SLJ387(SC), 2018(1)UC479 MANU/SC/0275/2018

Case Note: Criminal - False Implication - Article 21 of Constitution of India - Present appeal filed against order wherein High Court rejected Appellants appeal of quashing proceedings against him - Whether directions be issued to protect fundamental right under Article 21 of Constitution against false implication and arrests Facts: The Appellant was serving as Director of Technical Education. The second Respondent was an employee of the department. Dr. Satish Bhise and Dr. Kishor Burade, who were his seniors made adverse entry in his annual confidential report that his integrity and character was not good. The second Respondent lodged FIR against the said two officersunder the Atrocities Act. The Investigating Officer applied for sanction against them to the Director of Technical Education which was refused by the Appellant. Because of this, 'C' Summary Report was filed against Bhise and Burade which was not accepted by the Court. Aggrieved by a complainant was filed against the Appellant stating that he was not competent to grant/refuse sanction as the above two persons were Class-I officers and only the State Government could grant sanction. The Appellant filed a petition to the High Court for quashing the proceedings which was rejected. Hence, present appeal was filed. Held, while allowing appeal: (i) There could be no dispute with the proposition that mere unilateral allegation by any individual belonging to any caste, when such allegation was clearly motivated and false, could not be treated as enough to deprive a person of his liberty without an independent scrutiny. Thus, exclusion of provision for anticipatory bail could not possibly, by any reasonable interpretation, be treated as applicable when no case was made out or allegations were patently false or motivated. If this interpretation was not taken, it might be difficult for public servants to discharge their bona fide functions and, in given cases, they could be black mailed with the threat of a false case being registered under the Atrocities Act, without any protection of law. This could not be the scenario in a civilized society. Similarly, even a non public servant could be black mailed to surrender his civil rights. This was not the intention of law. Such law could not stand judicial scrutiny. It would fall foul of guaranteed fundamental rights of fair and reasonable procedure being followed if a person was deprived of life and liberty. [59 ] (ii) Innocent citizens are termed as accused, which was not intended by the legislature. The legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance. The Act was also not intended to deter public servants from performing their bona fide duties. Thus, unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there was no prima facie case was made out, there would be no protection available to innocent citizens. Thus, limiting the exclusion of anticipatory bail in such cases was essential for protection of fundamental right of life and liberty Under Article 21 of the Constitution. [67 ] (iii) The Present Court had no hesitation in holding that exclusion of provision for anticipatory bail would not apply when no prima facie case was made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, the present Court was reiterating a well established principle of law that protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest. [68 ] (iv) The under privileged need to be protected against any atrocities to give effect to the Constitutional ideals. The Atrocities Act has been enacted with this objective. At the same time, the said Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens as has been found on several occasions. Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This Court must enforce such a guarantee. Law should not result in caste hatred. The preamble to the Constitution, which is the guiding star for interpretation, incorporates the values of liberty, equality and fraternity. [75]


The Director General (Road Development) National Highways Authority of India Vs. Respondent: Aam Aadmi Lokmanch and Ors.

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Equivalent Citation: 2020(5)ABR114, AIR2020SC3471, 2020(3)RCR(Civil)218 MANU/SC/0520/2020

Case Note: Environment - Damages - Degradation of environment - Illegal hill cutting - Restitution charges and penalty for causing damage to the environment - Liability - Determination thereof Facts: On 06 June, 2013, when Ms.VishakhaWadekar, was driving her car with her young daughter, when over-mining at the height of 75 x 30 ft, in Gut No. 112, resulted in the destruction of a small hill by the side of the national highway. The resultant debris and a part of the hill collapsed and slid down to the road, claiming the lives of Ms.Vishakha and her daughter. NGT, in its impugned order held that the hills in the concerned land were illegally cut without permission and extract minor mineral, which reduced height of hill, circumference of the hill and or peripheral nature, surface of the hill in question. This made the area of hill fragile, susceptible to danger to the ecology and support of natural soil. In such a case, mere recovery of additional royalty would not be a proper remedial measure. The Respondent Nos. 5, 6 and 9 were directed to pay amount of Rs. 50 Lakhs as joint penalty imposed on them for causing environmental damage due to the hill-cutting. They were further held as jointly and severally pay amount of Rs. 15 Lakhs towards compensation to the legal representatives of deceased and her daughter and further payment of Rs. 10 Lakhs for plantation of trees in order to restore damage caused to environment. The Respondent Nos. 1, 2, 3, 4, 7 and 8 were directed to give instructions to the concerned revenue officials working within all districts to have regular vigil within their areas to verify whether fringes or nearby any hill or hill-top construction is/are noticed and if found to be so, due inquiry may be made as to whether it is authorized or unauthorized. By the impugned common judgment, the High Court held that there was no denial that the power to issue such directions or circulars existed by way of the amended Section 154 and that such power was essential. The court further held that no individual or entity could claim any absolute right and contend that he could develop or construct anywhere and that the directions contained in the notification supplemented bye-laws and building codes already in place in Mumbai and Pune. In the present appeals four issues arose for consideration. Firstly, the jurisdiction of the NGT to award compensation; secondly the merits and soundness of the NGT's decision to award compensation and the legal principles applicable; thirdly, the NGT's wide directions with respect to the ban on construction in and around foothills and lastly, the vires of the directions/notifications issued Under Section 154, MRTP ActHeld, while disposing of the appeal: Jurisdiction of the NGT (i) Tribunal possesses two kinds of power and jurisdiction: one, primary jurisdiction Under Sections 14-15, and appellate jurisdiction under Section 16. A conjoint reading of Sections 14, 15 and the Schedules would lead one to infer that the NGT has circumscribed jurisdiction to deal with, adjudicate, and wherever needed, direct measures such as payment of compensation, or make restitutionary directions in cases where the violation (i.e. harm caused due to pollution or exposure to hazards, etc.) are the result of infraction of any enactment listed in the first schedule. [33], [36] (ii) The expression "environment" and "environmental pollution" have to be given a broader meaning, having regard to Parliamentary intent to ensure the objective of the EPA. It effectuates the principles underlying Article 48A of the Constitution of India. The EPA is in essence, an umbrella legislation enacting a broad framework for the central government to coordinate the activities of various central and state authorities established under other laws, such as the Water Act and Air Act. The EPA also effectively enunciates the critical legislative policy for environment protection. It changes the narrative and emphasis from a narrow concept of pollution control to a wider facet of environment protection. The expansive definition of environment that includes water, air and land "and the interrelation which exist among and between water, air and land, other human creatures, plants, micro-organisms and property" give an indication of the wide powers conferred on the Central Government. A wide net is cast over the environment related laws. The EPA also empowers the central government to comprehensively control environmental pollution by industrial and related activities. For these reasons, and in view of the above discussion, it is held that the NGT correctly assumed jurisdiction, having regard to the nature of the accident in the facts of this case.[51] Was the direction to pay compensation towards death, and damages towards restitution justified? (i) Having regard to the duty imposed on the NHAI by virtue of Sections 4 and 5 of the Highways Act, read with Section 16 of the NHAI Act, there can be no manner of doubt that the NHAI was responsible for the maintenance of the highway, including the stretch upon which the accident occurred. The report of the sub-divisional officer clearly showed that inspection reports were furnished to the NHAI shortly before the incident, highlighting the deficiencies; also, the NHAI's correspondence with Rathod, and the local administration, reveal that it was aware of the danger and likelihood of risk to human life, and the foreseeability of the event that actually occurred later. Further, letters addressed by the local administration and the NHAI to Rathod similarly show that it was incumbent upon him to take remedial action. The failure of the NHAI to ensure remedial action, and likewise the failure by Rathod to take measures to prevent the accident, prima facie, disclose their liability.[65] (ii) The initiation of civil action did not mean that the NGT had to either reject the application (as far as it claimed relief for the accident), or await the outcome of the civil suit. [66] (iii)Application without impleading the legal heirs cannot be rejected. At the most, the tribunal has to implead all legal heirs. In the present case, that procedure was not followed. However, the legal heirs had instituted a suit. The ends of justice would be served if that suit is directed to revive and continue it; a direction is issued to the concerned court. The directions in this regard by the NGT, towards payment of compensation regarded as indicative of a prima facie determination. Consequently, the direction to the NHAI and Rathod, jointly making them liable to pay Rs. 15 lakhs was justified. It was clarified that the civil suit would now proceed, and based on evidence, the court would finally decide the issue of liability, and make such further consequentialorders or decrees as may be found necessary in this regard, towards apportioning of liability of the NHAI, Rathod, the state or any other party (including the concessionaire). [67] Correctness of NGT's directions contained in Para 17 (e) of its impugned order, and the legality of the order/notification of the state of Maharashtra, issued Under Section 154, MRTP Act (i) The power and jurisdiction of the NGT Under Sections 15(1)(b) and (c) are not restitutionary, in the sense of restoring the environment to the position it was before the practise impugned, or before the incident occurred. The NGT's jurisdiction in one sense is a remedial one, based on a reflexive exercise of its powers. In another sense, based on the nature of the abusive practice, its powers can also be preventive.[71] (ii) As a quasi-judicial body exercising both appellate jurisdiction over regulatory bodies' orders and directions (under Section 16) and its original jurisdiction Under Sections 14, 15 and 17 of the NGT Act, the tribunal, based on the cases and applications made before it, is an expert regulatory body. Its personnel include technically qualified and experienced members. The powers it exercises and directions it can potentially issue, impact not merely those before it, but also state agencies and state departments whose views are heard, after which general directions to prevent the future occurrence of incidents that impact the environment, are issued.[72] (iii) The impugned judgment of the Bombay High Court was set aside. Consequently, the directions in the notification under Section 154 (dated 14.11.2017) were quashed.CA 6932/2015 and CA 5971/2019 were disposed of in terms of the directions in judgment. The other appeals by special leave by third parties, against the NGT's order, and the order of the NGT, were partly allowed in the above terms. [92], [91].


V. Krishnakumar- Vs.-State of Tamil Nadu and Ors.

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Equivalent Citation: 2015(5)ABR179, 2015ACJ2028, 2015VII AD (S.C.) 512, 2015(154)AIC221, AIR2015SC2836, 2015(5)ALD123(SC), 2015(5) ALJ 250, 2015(5)ALLMR(SC)474, 2015 (113) ALR 227, 2015 (4) AWC 4257 (SC), 2015(5)BomCR345, 2016(1)CDR97(SC), 121(2016)CLT345, III(2015)CPJ15(SC), 2015 (3) CPR 104 , 2016 (1) CPR 443 , 2018 (4) CPR 240 , 2017(I)CLR(SC)407, 2015GLH(2)634, 2015(3)J.L.J.R.542, 2016-1-LW26, 2016(2)MhLj555, (2015)5MLJ613(SC), 2016(2)MPLJ52, 2015(4)PLJR32, 2015(3)RCR(Criminal)544, 2015(3)RLW2316(SC), 2015(7)SCALE275, (2015)9SCC388, 2015 (6) SCJ 265 MANU/SC/0727/2015

Case Note: Consumer - Deficiency in service - Appellant's daughter born premature at Respondent No. 2 hospital - Appellant's daughter born in 29th week weighed 1250 grams - Under the care of Respondent No. 3 and Respondent No. 4 - Appellant's daughter given 90-100% oxygen and underwent blood transfusion - Test for Retinopathy of Prematurity (ROP) not conducted on Appellant's Daughter during stay at Respondent No. 2 - Respondent No. 3 and 4 did not suggest check for ROP during hospital stay or at subsequent contact - ROP observed by paediatrician after 4 months at Stage 5 - NCDRC finds medical negligence by the Respondents - Whether the onset of ROP was foreseeable - Whether the conduct of the Respondents constituted medical negligence negligent Civil - Computing compensation - Appellant's daughter rendered blind for life - Appellant incurs expenditure on travel for examination of daughter by several doctors - Expenses incurred taking daughter for surgery in United States - Appellant sole breadwinner - NCDRC awards Rs. 5,00,000 - Whether the award of compensation by the NCDRC was correct - Whether inflation should be apportioned in the lump sum payment - In what proportion will the Respondents satisfy the compensation award Facts The Appellant's wife gave premature birth to a daughter in the government hospital, Respondent No. 2. Appellant's daughter was administered 90-100% oxygen at the time of birth and later underwent a blood exchange transfusion, under the care of Respondent No. 3 and Respondent No. 4, doctors at Respondent No. 2. Follow up treatment was administered at the Appellant's home by Respondent No. 4, and the Appellant's daughter was under his care from fourth to thirteenth week of birth. The only advice given by Respondent No. 4 to the Appellant was to keep their daughter isolated and confined to the sterile room to protect her from infection. In the 14th - 15th week, Respondent No. 3 performed a check up of Appellant's daughter at his clinic. Neither Respondent No. 3 nor Respondent No. 4 suggested a checkup for Retinopathy of Prematurity (ROP). ROP was discovered by a paediatrician after over 4 months of birth. Subsequent examinations determined ROP was at its terminal stage and the Appellant's daughter was blind. The Appellant incurred enormous expensesfor surgery in the United States but to no avail. The NCDRC held that at no stage was the Appellant warned or told about the possibility of occurrence of ROP by the Respondents, even though it was their duty to do so. It gave a finding of medical negligence against Respondent No. 1 - State of Tamil Nadu, Respondent No. 2 - the government hospital and Respondent Nos. 3 and 4 - doctors at the hospital, and awarded Rs. 5,00,000 to the Appellant. Hence, the present appeals. Appellant appeals for enhancement of compensation. Respondent No. 1 and 2 appeal against the judgment of the NCDRC. Held, allowing the appeal 1. The discharge summary neither disclosed a warning to the Appellant that the infant might develop ROP against which certain precautions must be taken, nor any signs that the Respondents themselves were cautious of the dangers of development of ROP. The onset of ROP was reasonably foreseeable. ROP develops 2 to 4 weeks after birth, when it is mandatory to do the first screening of a child. The Appellant's daughter was admitted for a period of 25 days with Respondent No. 2 and there was no reason why the mandatory screening was not done. The negligence began under the supervision of Respondent No. 2. Respondent Nos. 3 and 4 were also negligent in not advising screening for ROP.[9],[10],[11] and[13] 2. Using the multiplier method for calculating damages in medical negligence cases is ruled out. The aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event. The award is suitably enhanced.[17] 3. The medical costs of treatment of the Appellant's daughter will not remain static, but are likely to rise substantially in future years. Her present age is about 18 1/2 years. If her life expectancy is taken to be about 70 years, for the next 51 years, it is imperative to account for inflation in the compensation award to ensure that the present value of award for future medical costs is not unduly diluted.[22] and[23] 4. It is settled law that the hospital is vicariously liable for the acts of its doctors. It is not possible to absolve Respondent No. 1, which establishes and administers such hospitals from its liability.[27]


Union of India (UOI) Vs. Respondent: Mool Chand Khairati Ram Trust

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Equivalent Citation: AIR2018SC5426, 2018 6 AWC5785SC, 251(2018)DLT316, (2018)7MLJ37, 2018(8)SCALE648, (2018)8SCC321, 2018 (10) SCJ 65 MANU/SC/0716/2018

Case Note: Civil - Free treatment - Imposition of condition - Government issued circular whereby it intimated hospitals that Government had taken policy decision that all hospitals which had been provided land by Land & Development Officer (L&DO) had to strictly follow policy of providing free treatment - High Court had quashed conditions regarding free treatment in hospitals - Hence, present appeal - Whether High Court erred in quashing conditions pertaining to free treatment. Facts: The Government issued a Circular whereby it intimated the hospitals to implement the judgment of High Court with regard to free treatment to the weaker Sections of the society in terms of the judgment of High Court. Thereafter, the Land and Development Officer (L&DO) passed an order wherein it was stated that the Government of India had taken a policy decision that all the hospitals which had been provided land by L&DO had to strictly follow the policy of providing free treatment as provided in it. The High Court had quashed the imposition of conditions. Held, while allowing the appeal: (i) When the Government land had been allotted to the hospitals, they would not be doing free service but being a recipient of Government largesse at concessional rates and continue to enjoy it, they owe a duty to act in public interest. Respondent hospitals had obtained the land at a concessional rate, the other two hospitals, had also obtained land at a lower pre-determined rate, not at market rate. [57] (ii) The State could also impose such obligation when the Government land was held by such hospitals and it is the constitutional obligation imposed upon such hospitals. Under Article 47 of Constitution, State has to make constant endeavor to raise the level of nutrition and the standard of living and to improve public health. It is also one of the fundamental duties enshrined in Article 51A(h) to develop the scientific temper, humanism and the spirit of inquiry and reform. It would be inhuman to deny a person whois not having sufficient means or no means, the life-saving treatment, simply on the ground that he is not having enough money. Due to financial reasons, if treatment is refused, it would be against the very basic tenets of the medical profession and the concept of charity in whatever form we envisage the same, besides being unconstitutional would be violative of basic human rights. When the State largesse was being enjoyed by these hospitals in the form of land beside it is their obligation by the very nature of the medical services to extend the reciprocal obligation to the public by providing free treatment as envisaged in the impugned order. In case they want to wriggle out of it and not to comply with it, they had to surrender the land and urge out the benefit which they have received by virtue of holding the Government land in an aforesaid manner. [63] (iii) The High Court had erred in law in holding that such stipulation could have been imposed only by a statutory law. It was not a restriction on the right to carry on medical profession, the medical profession had obligated itself by such conditions by very nature of its professional activity and when the State land was being held which is for the public good with no profit motive, such land was held for the charitable purpose of public good. The charitable purpose would include the said obligation of free treatment to the persons of economically weaker strata of the society. It was not a restriction but the very purpose of existence of medical profession and very purpose of policy/Rules to grant land to institutions without public actions that would have fetched market rate and does not amount to putting any fetter to practice the medical profession or to carry on occupation. On due consideration of the very object of the medical activity its professional and other obligations for the proper treatment of the persons of economically weaker Sections of the society deprived of the fruits of development. The benefits of various welfare schemes hardly reach to them in spite of efforts made, economic disparity is writ large and persists. They could not afford such treatment and thus in lieu of holding land of Government at concessional rate and enjoying huge occupancy benefits inter alia for aforesaid reasons, the hospitals can be asked to impart free treatment as envisaged in the Government order. [83] (iv) Such stipulation for free treatment does not amount to restriction under Article 19(6) of Constitution on the right enshrined uder Article 19(1)(g) of Constitution and even otherwise it was not necessary to enact a statutory provision by the Government in view of existing liability as per policy/rules/statutory provisions as to ethical standards and other statutory provisions in force. [95]


Vikas Yadav -Vs.-State of U.P. and Ors

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Equivalent Citation: 2016(3)ACR3487, 2016(168)AIC158, AIR2016SC4614, 2016 (2) ALD(Crl.) 1010 (SC), 2016(6) ALJ 514, 2016 (97) ACC 957, 2017 (1) ALT (Crl.) 117 (A.P.), 2016(4)BomCR(Cri)770, IV(2016)CCR140(SC), 2017CriLJ1111, 2016(4)Crimes214(SC), 2017(2)KLT303, 2016(3)N.C.C.650, 2016(4)RCR(Criminal)546, 2016(9)SCALE549, (2016)9SCC541, 2016 (9) SCJ 556 MANU/SC/1167/2016

Case Note: Criminal - Conviction - Fixed term sentence - Validity thereof - Sections 34, 201, 302 and 364 of Indian Penal Code, 1860 - Appellants were convicted for offences under Sections 302, 364, 201 read with Section 34 of Code, 1860 - Hence, present appeal - Whether present appeal rightly questioned propriety of sentence as High Court had imposed fixed term sentence Facts: The Trial judge sentenced Appellants/1st and 2nd Accused to life imprisonment as well as fine of one lakh each under Section 302 of Indian Penal Code, 1860. They were sentenced to undergo simple imprisonment for ten years and fine for their conviction under Section 364 read with Section 34 of Code, 1860 and rigorous imprisonment for five years and fine each under Section 201 read with Section 34 of Code, in default, simple imprisonment for three months. All sentences were directed to run concurrently. 3rd Accused who was tried separately because of his abscondence was convicted for the offences under Sections 302 and 364 read with Section 34 of Code, 1860 and Section 201 of Code, 1860. The State preferred an appeal for enhancement of sentence of imprisonment of life to one of death for the offence under Section 302 of Code, 1860. The High Court imposed a fixed term sentence, i.e., 25 years for the offence under Section 302 of Code, 1860 and 5 years for offence under Section 201 of Code, 1860 with the stipulation that both the sentences would run consecutively Held, while disposing off the appeal: (i) Though the power exercised under Article 71 and Article 161 of the Constitution is amenable to judicial review in a limited sense, yet the Court cannot exercise such power. As far as the statutory power under Section 433A of Code of Criminal Procedure, 1973 is concerned, it can be curtailed when the Court is of the considered opinion that the fact situation deserves a sentence of incarceration which be for a fixed term so that power of remission is not exercised. [35(ii) The power to grant remission is an executive power and it cannot affect the appeal or revisional power of the court. The powers are definitely distinct. However, the language of Section 433A of Code, 1973 of Criminal Procedure empowers the executive to grant remission after expiry of 14 years and it only enables the convict to apply for remission. [39] (iii) The prosecution had preferred an appeal under Section 377 of Code, 1973 before the High Court for enhancement of sentence of imposition of life to one of death. On a reading of the said provision, there can be no trace of doubt that the High Court could have enhanced the sentence of imposition of life to death. The High Court thought it appropriate instead of imposing death sentence to impose the sentence as it haD done. Therefore, the sentence imposed by the High Court could not be found fault on that score. [47] (iv) A convict is not permitted to submit an application under Section 433A of Code, 1973 because of sentence imposed by a Court. There is no abrogation of any fundamental or statutory right. If the imposition of sentence is justified, as a natural corollary the principle of remission does not arise. The principle for applying remission arises only after expiry of 14 years if the Court imposes sentence of imprisonment for life. When there is exercise of expanded option of sentence between imprisonment for life and death sentence, it comes within the sphere or arena of sentencing, The said exercise of expanded option is permissible. [55] (v) The High Court took note of the facts that the deceased and sister of 1st and 2nd Accused were in an intimate relationship aiming towards permanency; that the family members of sister including 1st and 2nd Accused were opposed to this relationship; that the aversion stemmed from the reason that the deceased did not belong to the same caste, that his family belonged to the service class and belonged to economically lower strata; that 2nd and 3rd Accused had not been invited to the wedding and had no reason for being there, other than perpetration of the crime; that the deceased was abducted from the wedding venue by the Accused with the common intention to murder him; that in furtherance of their common intention the deceased was thereafter murdered by the Appellants; that after murdering the deceased, the Appellants removed his clothes, wrist watch and mobile from his person and set aflame his dead body with the intention of preventing identification of the body and destroying evidence of the commission of the offence; that immediately after the incident, the three Accused absconded; that the dead body of deceased was found in a completely burnt, naked and unidentifiable condition; that the body was having a lacerated wound on the head, a fracture in the skull, laceration and hematoma in the brain immediately below the fracture; that 1st and 2nd Accused deliberately misled the police; that the 3rd Accused absconded for over three and half years. From these findings recorded by the High Court it was vivid that crime was committed in a planned and cold blooded manner with the motive that had emanated due to feeling of some kind uncalled for and unwarranted superiority based on caste feeling that has blinded the thought of "choice available" to a sister-a representative of women as a class. The High Court unequivocally held that it was a "honour killing" and the said findings apart from being put to rest, also gets support from the evidence brought on record. The circumstantial evidence by which the crime had been established, clearly lead to one singular conclusion that the anger of the brother on the involvement of the sister with the deceased, was the only motive behind crime. [60] and[61] (vi) The conduct during the trial had also been emphasized by the High Court because it was not an effect to protect one-self, but the arrogance and the impunity shown in which they set up false defense and instilled shivering fear in the mind and heard of witnesses with the evil design of defeating the prosecution case. In fact, as had been recorded by the High Court, the public prosecutor was also not spared. The criminal antecedents of 1st Accused was referred to in detail by the High Court. [70] and[71] (vii) The High Court, while dealing with 1st and 2nd Accused had opined that they had misused the process of law while in jail and in their conduct there was no sign of any kind of remorse or regret. As far as the 3rd Accused was concerned, the High Court had taken his conduct in jail which had been chastened and punishment was imposed once. The High Court had taken note of the fact that 3rd Accused was the employee of the father of 1st Accused and he was a married man with five children and on account of his incarceration,his family was in dire stress. A finding had been returned that he was not a person of substantial means and has lesser paying capacity. On the basis of these facts and circumstances, the High Court had drawn a distinction and imposed slightly lesser sentence in respect of 3rd Accused. The imposition of fixed term sentence on the Appellants by the High Court could not be found fault with. [74] and[74A] (viii) The Trial Court imposed the life sentence and directed all the sentences to be concurrent. The High Court declined to enhance the sentence from imprisonment for life to death, but imposed a fixed term sentence. It curtails the power of remission after fourteen years as envisaged under Section 433A of Code, 1973. The High Court had not directed that the sentence under Section 201/34 of Code, 1860 shall run first and, thereafter, the fixed term sentence will commence. A direction that the sentence imposed for the offence punishable under Section 201/34 of Code, 1860 shall run concurrently with the sentence imposed for other offences by the High Court. Adequate compensation is required to be granted. The High Court had considered all the aspects and enhanced the fine, determined the compensation and prescribed the default clause. [78] and[79]]


: Vikash Kumar- Vs.-Union Public Service Commission and Ors.

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Equivalent Citation: AIR2021SC2447, (2021)2MLJ247, 2021(1)SCT647(SC) MANU/SC/0067/2021

Case Note: Service - Facility of scribe - Entitled to - Sections 2(r), 2(s), 31, 32, 33, 34, 36 and 37 of Rights of Persons with Disabilities Act, 2016 - Appellant had disability in form of dysgraphia, commonly known as a Writer's Cramp - Respondent-Commission issued notification for CSE - Department of Personnel and Training issued CSE Rules 2018 providing for manner and conduct of examination - In his online application for CSE, Appellant declared himself to be person with benchmark disability of forty percent or more - Appellant requested Commission to provide him with scribe for examination - Commission rejected request on ground that scribe could be provided only to blind candidates and candidates with locomotor disability or cerebral palsy with impairment of at least forty percent and Appellant did not meet this criterion - Aggrieved by denial of services of scribe for CSE, Appellant moved Tribunal - Tribunal dismissed application filed by Appellant on ground that, since Hospital had refused to issue disability certificate, Appellant could not claim access to scribe as disabled candidate - Appellant instituted writ petition before High Court and challenged legality of CSE Rules 2018 - Meanwhile, he obtained medical certificate declaring that he had Writer's Cramp and would require scribe during his examinations -Division Bench of High Court declined to interfere with order of Tribunal on ground that Appellant had not qualified at Preliminary Examination for CSE 2018 and thus, relief seeking amendment of CSE Rules 2018 to provide scribes to candidates with specific disabilities was rendered otiose - Hence, present appeal - Whether Appellant would be entitled to facility of scribe for appearing at Civil Services Examination and any other competitive selection conducted under authority of government. Facts: The Appellant had a disability in the form of dysgraphia, commonly known as a Writer's Cramp. The Respondent-Commission issued notification for the CSE. The Department of Personnel and Training issued the CSE Rules 2018 providing for the manner and conduct of the examination. The general instructions provided that all candidates must write their papers in their own hand and will not be allowed the help of a scribe. Exceptions to this Rule were provided for blind candidates candidates with locomotor disability and cerebral palsy where the dominant (writing) was affected to the extent of slowing the performance of function (minimum of forty impairment). Candidates within the exception were allowed the help of a scribe. An additional compensatory time of twenty minutes per hour was also to be granted to such candidates. In his online application for the CSE 2018, the Appellant declared himself to be a person with a benchmark disability of forty percent or more. By his email, the Appellant requested the Commission to provide him with a scribe for theexamination. The Respondent-Commissioner rejected the request on the ground that a scribe could be provided only to blind candidates and candidates with locomotor disability or cerebral palsy with an impairment of at least forty percent and the Appellant did not meet this criterion. Aggrieved by the denial of the services of a scribe for the CSE 2018, the Appellant moved the Tribunal. The Tribunal dismissed the application filed by the Appellant on the ground that, since Hospital had refused to issue a disability certificate, the Appellant could not claim access to a scribe as a disabled candidate. The Appellant instituted a writ petition before the High Court of Delhi and challenged the legality of the CSE Rules 2018. Meanwhile, he obtained a medical certificate from National Institute of Mental Health and Neuro Sciences (NIMHANS), declaring that he had a Writer's Cramp and would require a scribe during his examinations. A Division Bench of the High Court of Delhi by an order declined to interfere with the order of the Tribunal on the ground that the Appellant had not qualified at the Preliminary Examination for CSE 2018 and thus, the relief seeking an amendment of the CSE Rules 2018 to provide scribes to candidates with specific disabilities was rendered otiose. Held, while allowing the appeal: (i) MSJE was the nodal ministry which was entrusted with implementing the provisions of the RPwD Act, 2016. As the nodal ministry, it had formulated guidelines. These guidelines, confine access to a scribe, reader or lab assistant to candidates having benchmark disabilities within the meaning of Section 2(r). Yet, as the nodal ministry, it recognizes that these guidelines are not exhaustive of the circumstances or conditions in which a scribe could be provided. On the contrary, the MSJE had recognized the prevalence of other medical conditions not identified as disabilities per se but which may hamper the writing capability of a person. It specifically leaves it open to every examining body to consider such cases for the grant of scribe, extra time or other facilities in consultation with the Ministry of Health and Family Welfare against the production of a medical certificate, in line with those prescribed for candidates with benchmark disabilities. [23] (ii) The concept of benchmark disabilities under the RPwD Act, 2016 has specifically been adopted in relation with the provisions of Chapter VI and Chapter VII. Chapter VI contains special provisions for persons with benchmark disabilities. Among those provisions was Section 31 (free education for children with benchmark disability), Section 32 (reservation in higher educational institutions), Section 33 (identification of posts for reservation), Section 34 (reservation), Section 36 (Special Employment Exchange) and Section 37 (Special Schemes and Development Programmes). Chapter VII contains special provisions for persons with benchmark disabilities in need of high support. Thus, the concept of benchmark disabilities had been adopted by the legislation bearing in mind specific provisions which were contained in the law for persons meeting this description. [30] (iii) Conflating the rights and entitlements which inhere in persons with disabilities with the notion of benchmark disabilities does dis-service to the salutary purpose underlying the enactment of the RPwD Act 2016. Worse still, to deny the rights and entitlements recognized for persons with disabilities on the ground that they did not fulfill a benchmark disability would be plainly ultra vires the RPwD Act 2016. [31] (iv) The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. The concept of reasonable accommodation was developed in Section (H) below. For the present, suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 would ring hollow if they were not given this additional support that helps make these rights real and meaningful for them. Reasonable accommodation was the instrumentality-are an obligation as a society-to enable the disabled to enjoy the constitutional guarantee of equality and nondiscrimination. [35] (v) When the government in recognition of its affirmative duties and obligations under the RPwD Act 2016 makes provisions for facilitating a scribe during the course of the Civil Services Examination, it could not be construed to confer a largesse. Nor does it by allowing a scribe confer a privilege on a candidate. The provision for the facility of a scribwas in pursuance of the statutory mandate to ensure that persons with disabilities were able to live a life of equality and dignity based on respect in society for their bodily and mental integrity. There was a fundamental fallacy on the part of the UPSE/DoPT in proceeding on the basis that the facility of a scribe shall be made available only to persons with benchmark disabilities. This was occasioned by the failure of the MSJE to clarify their guidelines. The whole concept of a benchmark disability within the meaning of Section 2(r) was primarily in the context of special provisions including reservation that are embodied in Chapter VI of the RPwD Act 2016. Conceivably, the Parliament while mandating the reservation of posts in government establishments and of seats in institutions of higher learning was of the view that this entitlement should be recognized for persons with benchmark disabilities. As a matter of legislative policy, these provisions in Chapter VI had been made applicable to those with benchmark disabilities where a higher threshold of disability was stipulated. Except in the specific statutory context where the norm of benchmark disability had been applied, it would be plainly contrary to both the text and intent of the enactment to deny the rights and entitlements which were recognized as inhering in persons with disabilities on the ground that they did not meet the threshold for a benchmark disability. A statutory concept which had been applied by Parliament in specific situations could not be extended to others where the broader expression, persons with disability, was used statutorily. The guidelines which had been framed could by no means be regarded as being exhaustive of the situations in which a scribe could be availed of by persons other than those who suffer from benchmark disabilities. The MSJE did not in its counter affidavit before this Court treat those guidelines as exhaustive of the circumstances in which a scribe could be provided for persons other than those having benchmark disabilities. This understanding of the MSJE was correct for the simple reason that the rights which emanate from provisions such as Section 3 extend to persons with disability as broadly defined by Section 2(s). [41] (vi) Therefore, DoPT and UPSC had fundamentally erred in the construction which has been placed on the provisions of the RPwD Act 2016. To confine the facility of a scribe only to those who have benchmark disabilities would be to deprive a class of persons of their statutorily recognized entitlements. To do so would be contrary to the plain terms as well as the object of the statute. [42] (vii) Insofar as the case of the Appellant was concerned, his condition has been repeatedly affirmed by several medical authorities including National Institute of Mental Health and Neuro Sciences (NIMHANS), Bangalore and AIIMS. The AIIMS report which was pursuant to the order of this Court was clear in opining that the Appellant has a specified disability inasmuch as he had a chronic neurological condition. This condition Forms part of Entry IV of the Schedule to the RPwD Act 2016. The writer's cramp has been found successively to be a condition which the Appellant had, making it difficult for him to write a conventional examination. To deny the facility of a scribe in a situation such as the present would negate the valuable rights and entitlements which are recognised by the RPwD Act 2016. [73] (viii) Therefore, the Appellant would be entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the government. [74] (ix) Cases such as the present offer this court an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India. A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life. [81] (x) Therefore, set aside the impugned judgment and order of the High Court. [82]


Vinod Kumar-Vs.- Ashok Kumar Gandhi

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Equivalent Citation: 2019 6 AWC5401SC, 262(2019)DLT253, (2019)7MLJ815, 2019(2)RCR(Rent)264, 2019(10)SCALE357, (2019)17SCC237, 2019 (9) SCJ 639 MANU/SC/1028/2019

Case Note: Tenancy - Eviction application - Maintainability - Section 14(1)(e) of Delhi Rent Control Act, 1958 - Present appeals had been filed against judgment of High Court dismissing Rent Control Revisions filed by Appellants in which order passed by Rent Controller rejecting application filed by Appellants-tenants seeking leave to defend in a petition under Section 14(1)(e) of Act, 1958 had been challenged - Whether judgment of present Court in Satyawati Sharma(Dead) by LRs. v. Union of India (UOI) and Anr. needed reference to larger bench or not Facts: The Appellants at the very outset challenge the maintainability of eviction petitions filed by the landlord under Section 14(1)(e) on the ground of bonafide need. The Appellant is a tenant of a shop. The Respondent-landlord of the premises filed an Eviction Petition to obtain possession of the shop on the ground that son of the landlord was without any job and the premises in question are bonafide required by his son to start business of sale of readymade garments and accessories. It was further pleaded in the application that the landlord has planned to make a passage of around six feet wide throughout the length of the property, from the front side, to have access to the stairs case in the rear side of the property. The Rent Controller after receipt of the said application issued notice to the Appellant-tenant. Appellant filed an application seeking leave to defend along with a detailed affidavit in support thereof. The landlord filed a reply to the application alongwith counter-affidavit. The Additional Rent Controller vide order rejected the application seeking leave to defend filed by the Appellant. Aggrieved by theorder of the Additional Rent Controller revision petition was filed by the Appellant under Section 25-B(8) of the Act, 1958 challenging the order or Additional Rent Controller. The High Court vide its judgment dismissed the revision petition filed by the Appellant. Aggrieved by the judgment of the High Court, this appeal has been filed by the Appellant. Held, while interpreting need for reference to larger bench 1. A perusal of the various grounds available to a landlord to recover possession of any premises indicates that although several grounds are available both for residential and non-residential premises but few grounds are available only for premises let for residential purposes. The provision of Section 14(1) (e) which needs consideration confine to the premises let for residential purposes which may be required bonafide by the landlord for occupation as a residence for himself or for any member of his family dependent on him. The explanation explains that premises let for residential purposes which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes are also included in residential premises. [10] 2. The provisions of Section 14(1)(e) were resorted by the landlord for seeking recovery of possession only with regard to residential premises till part of Section 14(1)(e) has been struck down in Satyawati Sharma case. This Court held that, Section 14(1)(e) of Act, 1958 is violative of the doctrine of equality embodied in Article 14 of the Constitution in so far as it discriminates between the premises let for residential and non-residential purposes, when the same are required bonafide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the landlord's right to seek eviction of the tenant from the premises let for residential purposes only. This Court clarified that, it is not totally striking down of Section 14(1)(e) of the Act in its entirety but it has struck down only the discriminatory portion of Section 14(1)(e). [11] 3. It is on the strength of the judgment of this Court in Satyawati Sharma that, after the said judgment landlords of non-residential premises have also filed application for eviction under Section 14(1)(e) which are dealt with by the Rent Controller as per procedure contained in Chapter III-A of the Act, 1958. Chapter III-A contains 'Summary Trial of Certain Applications'. The Rent Controller treating the said procedure applicable on applications filed by the landlords under Section 14(1)(e) has issued summons to the tenants in the form prescribed in the Third Schedule and have passed order either rejecting the leave to defend or granting leave to defend which orders, were challenged in the High Court giving rise to these appeals. [12] 4. There can be no distinction in so far as bona fide need of the landlord is concerned regarding residential and commercial premises. The observations of threeJudge Bench in The State of Maharashtra and Anr. v. Super Max International Pvt. Ltd. and Ors. are not obiter but are the judicial dicta which has reconfirmed the principles in Satyawati Sharma case. There is nothing in the Satyawati Sharma judgment which can be said to be per incuriam. The Appellant is asking this Court to violate certainty of law and comity of the Courts. There is no ground today to refer the judgment of Satyawati Sharma case for consideration of a larger Bench. The judgment of this Court in Satyawati Sharma case is just, reasonable and protects both landlord and tenant. The provision of Section 14(1)(e) which was enacted at the time when circumstances were different can no longer be said to be reasonable and valid and has rightly done away with the unjust classification between residential and commercial in so far as eviction on the ground of bona fide need of the landlord was concerned. [18] 5. The Judgment of this Court in Satyawati Sharma has stood test of time and at this distance of time, this Court cannot revive the unjust classification between residential and non-residential premises in so far as landlord's right of eviction is concerned on the ground of bona fide need. [19] 6. The question is as to whether non-consideration of Section 25B by Satyawati Sharma renders judgment of Satyawati Sharma per incuriam. Satyawati Sharma was considering the challenge to provisions of Section 14(1)(e) in so far as the ground of bona fide need of landlord is also available for commercial premises. Section 25B being related to only procedure for considering the application Under Section 14(1) (e) has no bearing on the issue which had propped up before this Court in Satyawati Sharma. Nothing in Section 25B can be read which runs counter to what has been laid down by Satyawati Sharma. Whether a procedure giving more flexibility to tenants of commercial premises should be provided for is another subject but non-reference of Section 25B by Satyawati Sharma does not render the judgment per incuriam. [35] 7. The judgment of Satyawati Sharma was, thus, not a case of reading down of Section 14(1)(e) rather it was a case where portion of Section 14(1)(e) was struck down as discriminatory and violative of Article 14 of the Constitution. [54] 8. The Legislature itself notices the need for providing a ground for eviction to landlord on bona fide need with regard to residential as well as non-residential premises. Thus, what was said in Gian Devi Anand in paragraph 39 was duly accepted by Legislature. It is another matter that Delhi Rent Act, 1995 even though it received assent of the President could not be enforced. Writ Petition was filed in Delhi High Court for issuance of mandamus to Central Government to enforce Act, 1995 which was dismissed. What was observed by Gian Devi Anand v. Jeevan Kumar and Ors. was also accepted by the Legislature in providing for eviction from both the residential and non-residential premises on the ground of bona fide need in Act, 1995. Although, said Act could not be enforced, the Legislation is complete when the Act is passed by the Legislature and receives the assent of the President. [55] 9. There is no good ground to refer the judgment of this Court in Satyawati Sharma for reconsideration by a larger Bench. [57]


Reena Banerjee and Ors.- Vs.-Govt. of NCT of Delhi and Ors.

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Equivalent Citation: AIR2017SC1250, 2017 1 AWC194SC, 237(2017)DLT519, 2017(2)RCR(Criminal)1006, 2016(12)SCALE584, (2017)2SCC94, (2017)1UPLBEC585 MANU/SC/1565/2016

Case Note: Civil o?= Government run Home o?= Condition thereof o?= Principal issue argued by Appellants before High Court was about pitiable and pathetic condition of sole Government run Home for differently abled men, women and children o?= Appellants highlighted various issues o?= Appellants essentially relied on media reports to buttress their plea about pathetic condition and cruel treatment meted out at hands of staff members o?= High Court directed parties to convene joint meeting and submit proposal about reforms required, if any o?= Government submitted report about action already taken and proposed to be taken thereat o?= After adverting to commitment made by State Government in report, High Court opined that proposed action would go long way in improving condition of Home o?= On that basis, High Court disposed of matter o?= As regards suggestions given by Appellants in respect of proposed action, High Court clarified that Government Authorities may consider same o?= Appellants approached present Court o?= Whether High Court ought not to have mechanically accepted suggestions given by State Government in totoFacts: The appeal arose from the judgment of the High Court. The Appellants filed an intervention application in the High Court, in a disposed of suo moto writ petition. This intervention application, however, was directed to be delinked from the disposed of suo moto writ petition and to be registered as a fresh writ petition. Accordingly, the application was registered as writ petition. The principal issue argued before the High Court was about the pitiable and pathetic condition of Home (the sole Government run Home) for differently abled men, women and children. The Home comprises of six institutions within a complex of four buildings for mentally retarded children and adults. The Appellants highlighted the issues such as inadequate medical treatment, medical services and access to Doctors, skewed ratio of staff to look after the inmates, overcrowding, poor distribution and consumption of dietary, clothing, bedding and other items and also about the abuses of various kinds to the mentally challenged persons residing in the said Home, in particular the female residents. The Appellants essentially relied on the media reports to buttress their plea about the pathetic condition and the cruel treatment meted out at the hands of staff members. When the matter progressed before the High Court, the management of the Home agreed to consider the suggestions given by the Appellants and also to chalk out a holistic action plea to remedy the deficiencies. They said that they were not treating the proceedings as an adversarial litigation. The High Court, therefore, directed the parties to convene a joint meeting and submit a proposal about the reforms required, if any. The Government, accordingly, submitted a report about the action already taken and proposed to be taken thereat. After adverting to the commitment made by the State Government in the report, the High Court opined that the proposed action would go a long way in improving the condition of Home. On that basis, the High Court disposed of the matter by expressing a hope that the Authorities concerned will implement the proposed action within assured time frame. As regards the suggestions given by the Appellants in respect of the proposed action, the High Court clarified that the Government Authorities may consider the same. The Appellants approached the present Court. The principal grievance of the Appellants was that the High Court ought not to have mechanically accepted the suggestions given by the State Government in toto; and more particularly because the past experience showed that the Authorities had never fulfilled their commitments made before the High Court in previous writ petitions. Further, there was an imminent need to drastically improve the condition of the Home for mentally challenged persons, keeping in mind the suggestions given by the Appellants before the High Court. The High Court ought to have examined the suggestions presented in writing by the Appellants. Besides the Appellants disputed the correctness of the factual position about the condition of the Home. Held, while disposing off the appeal: (i) Analyzing the affidavit of each State/Union Territory would be a cumbersome exercise, if not entail in entering upon a roving enquiry. A comprehensive mechanism and dispensation is predicated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Rules framed thereunder. Besides the Act, 1995 even the Mental Health Act, 1987 postulates a dispensation mandating the appropriate Government to establish institutions for the care of mentally challenged persons and maintenance and management thereof with a view to create an equal opportunity and social security to them. The Authorities so created have been fastened with a duty to ensure that the Homes are maintained properly; and the inmates as well as outdoor patients are looked after properly and also to create equal opportunity and social security in the matter of education and employment of such persons. [10] (ii) The functions of the State Coordination Committee are also to serve as the State focal point on disability matters and to facilitate the continuous evaluation of a comprehensive policy towards solving the problems faced by persons with disabilities. [11] (iii) Suffice it to observe that the Act, 1995 as well as Act, 1987 make ample provision for not only establishment of Homes for the admission, treatment and care of mentally ill persons but also about the maintenance and conditions and facilities to be provided to the inmates, to ensure that the Homes are properly equipped and are being run in accordance with the statutory scheme. Authorities for monitoring and supervision are also in place (Central Coordination Committee at the top of the pyramid in so far as Homes established by the Central Government or permitted to be established by it). Similarly, for the Homes established by the State Government or permitted to be established by it, the State Coordination Committee is at the top of the pyramid of the organizational structure within the State. The provisions clearly articulate the manner of providing proper conditions in Hospitals/Homes established under the concerned enactment and also for its maintenance. [17] (iv) Reverting to the Act, 1995 there are ample provisions in this Act to ensure proper functioning of the Homes accommodating mentally challenged persons. This Act deals with the aspirations of persons inflicted with disability generally. [20] (v) The direction issued by the Central Coordination Committee would be binding on the concerned State Coordination Committee. In case, direction given by the State Government to the concerned State Coordination Committee is in any manner inconsistent with the direction given by the Central Coordination Committee, that matter must be referred to the Central Government for its decision, as mandated by the proviso to Clause (b) of Section 23 of the Act, 1995. This exercise be completed within a reasonable time but not later than six months. The State Coordination Committee is primarily responsible for ensuring compliance of the mandate regarding the infrastructure and other facilities to be provided in the Homes established under the Act, 1995 and also for overseeing that the same are properly maintained from time to time and comply with the policies and programmes designed for achieving equality and full participation of persons with disabilities. The provisions of the Act, 1995 provide for checks and balances for which hierarchy of Authorities have been created to ensure that persons with disabilities are provided with opportunity of full participation and equality in the region. That being the obligation of the State, must be implemented through these Authorities. [21] and[23] (vi) A six months time frame given to the Central Coordination Committee and the concerned State Coordination Committee is sufficient to enable them to take necessary remedial measures and ensure that deficiencies in the respective institutions established under the Act, 1995 are cured within such period. In addition to the issues that have come on record in the form of affidavit of the concerned State and also other material which has come on record in the present proceedings or any further inputs to be received by the Committee(s) and including after conducting inspection of the institution(s), the concerned Committee/Authority must take sufficient measures to remedy the deficiencies within the time frame of not later than six months. [27] (vii) The Central Authority for Mental Health Services shall cause to inspect and evaluate the conditions of the psychiatric hospital and psychiatric nursing home and other Mental Health Service Agencies under the control of the Central Government. Similarly, the concerned State Authority for Mental Health Services shall cause to inspect and evaluate the conditions of the psychiatric hospitals and psychiatric nursing homes and other Mental Health Service Agencies under the control of the State Government. [29]


: Re: Exploitation of Children in Orphanages in the State of Tamil Nadu- Vs.-Union of India (UOI) and Ors

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Equivalent Citation: 2017(2)ACR1554, AIR2017SC2546, 2017 (2) ALD(Crl.) 397 (SC), 2017 (3) ALT (Crl.) 327 (A.P.), II(2017)CCR506(SC), 2017CriLJ3217, 2017(3)Crimes1(SC), 121(1)CWN110, 2017-2-LW(Crl)588, (2017)4MLJ358, 2017(3)N.C.C.678, 2017(2)RCR(Criminal)887, 2017(5)SCALE787, (2017)7SCC578, 2017 (6) SCJ 19 MANU/SC/0577/2017

Case Note: Criminal - Child abuse - Orphanage - Article with caption "Orphanage or Places for Child Abuse" was published in newspaper - Article was forwarded to present Court - Article mentioned that orphanages were reportedly involved in systematic sexual abuse of children - Article writer suggested that problem of sexual abuse of children especially in government institutions has become serious problem and requires immediate redressal - She made some suggestions - Present petition was taken up on basis of that Article - Whether any direction could be issued pertaining to problem of sexual abuse of children especially in government institutions Facts: The present petition was taken up on the basis of an Article with the caption "Orphanage or Places for Child Abuse" published in the newspaper. The Article was forwarded to the present Court along with a letter. That was the genesis of the present petition which was registered as a Public Interest Litigation. The Article mentioned that orphanages, run by NGOs as well as government institutions were reportedly involved in systematic sexual abuse of children. A sting operation indicated that sexual services of children were being provided to foreigners as well as Indian tourists and that the rates of children whose sexual services were being taken were fixed over telephone or in a meeting at the orphanage. Further, in a program organized by the State Commission for Women, representatives of the National Commission for Women participated and it was acknowledged that government schools have become unsafe for girl students due to sexual abuse. The then Ministry of Family and Child Welfare along with UNICEF brought out a report on the condition of children in which it was reported that 53% of children suffered from sexual abuse. Children were reported to be the subject of institutional abuse as well as by relatives. On these broad facts the writer suggested that the problem of sexual abuse of children especially in government institutions has become a serious problem and requires immediate redressal. She made some suggestions including a Counseling Cell in each school where children are taught how to recognize abuse and providing a complaint mechanism accessible to children in case of any such incident. The present Court passed several orders and also mentioned that certain other issues such as trafficking of children, schools being occupied by Central Para Military Forces and the right to education guaranteed to children require consideration. The present Court sought to expand the scope of the PIL to include the rights of children in general. Hence, the further proceedings. Held: (i) Since the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) is intended for the benefit of children and is intended to protect and foster their rights, the definition of a child in need of care and protection must be given a broad interpretation. It would be unfortunate if certain categories of children are left out of the definition, even though they need as much care and protection as categories of children specifically enlisted in the definition. A misstep in the very first stage could have a chain reaction and perhaps disastrous consequences in some cases as was evident from the incidents of child abuse in institutions as brought out by the writer. [18] and[26] (ii) It is the constitutional obligation of the State to ensure that for safeguarding and fostering the rights of children, adequate funds are available particularly for children who are in need of care and protection. The State cannot conflate non-availability of funds to shirk their obligations with inefficient utilization of grants. [34] (iii) It is obligatory on the part of the Union Government as well as of the State Governments to ensure that the provisions of laws enacted by Parliament are faithfully and sincerely implemented and the statutory Commissions constituted under the provisions of the Preamble to the Commissions for Protection of Child Rights Act, 2005 (CPCR) Act must be allowed to function as independent statutory bodies under the provisions of the said Act, the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) as well as the JJ Act. [41] (iv) One of the problems faced in introducing restorative justice is that a child in a child care institution is treated as a number and no effort is made to introduce any individual child care plan. The importance of quality training can best be understood by giving a negative example, which is that unless proper training is imparted to the concerned personnel, it is quite possible that strange practices and procedures may evolve due to the absence of proper guidance. [46] and[48] (v) The High Courts have a constitutional obligation to ensure that the rights of all citizens, including children, as guaranteed under the Constitution are preserved, protected and respected. The importance of the Juvenile Justice Committee in the High Court cannot be overemphasized. Judges are no longer required to remain in an ivory tower. It is equally the obligation of the concerned officials of the State, including the police, to render all assistance to each Juvenile Justice Committee to ensure that the goals envisaged by the JJ Act and the constitutional vision are successfully achieved in the shortest possible time. [52] and[53] (vi) For the purposes of ensuring that the implementation of the JJ Act is proceeding in the right direction, it is necessary that a social audit be conducted every year. Social audits give reasons for introspection as well as for improvement in the services. [54] (vii) The definition of the expression "child in need of care and protection" Under Section 2(14) of the JJ Act should not be interpreted as an exhaustive definition. The definition is illustrative and the benefits envisaged for children in need of care and protection should be extended to all such children in fact requiring State care and protection. The Union Government and the governments of the States and Union Territories must ensure that the process of registration of all child care institutions is completed positively by 31st December, 2017 with the entire data being confirmed and validated. The Union Government and the governments of the States and Union Territories are directed to enforce the minimum standards of care as required by and in terms of the JJ Act and the Model Rules positively on or before 31st December, 2017. The governments of the States and Union Territories should draw up plans for full and proper utilization of grants (along with expenditure statements) given by the Union Government under the Integrated ChildProtection Scheme. It is imperative that the Union Government and the governments of the States and Union Territories must concentrate on rehabilitation and social reintegration of children in need of care and protection. There are several schemes of the Government of India including skill development, vocational training etc which must be taken advantage of keeping in mind the need to rehabilitate such children. The governments of the States and Union Territories were directed to set up Inspection Committees as required by the JJ Act and the Model Rules to conduct regular inspections of child care institutions and to prepare reports of such inspections so that the living conditions of children in these institutions undergo positive changes. The preparation of individual child care plans is extremely important and all governments of the States and Union Territories must ensure that there is a child care plan in place for every child in each child care institution. Wherever the State Commission for Protection of Child Rights has not been established or though established is not fully functional in the absence of a Chairperson or any one or more Members, the governments of the States and Union Territories must ensure that all vacancies are filled up with dedicated persons on or before 31st December, 2017. The training of personnel as required by the JJ Act and the Model Rules is essential. It is time that the governments of the States and Union Territories consider de-institutionalization as a viable alternative. The importance of social audits cannot be over-emphasized. While the Juvenile Justice Committee in each High Court is performing its role in ensuring the implementation of the JJ Act and Model Rules, there is no doubt that each Committee will require a small Secretariat by way of assistance. [62]


Shatrughna Baban Meshram Vs. State of Maharashtra

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Citation: 2021ALLMR(Cri)715, 2021 (1) ALT (Crl.) 282 (A.P.), 2021(1)BomCR(Cri)1, 2021(1)J.L.J.R.414, 2020(6)JKJ190[SC], 2021(1)MLJ(Crl)38, 2021(1)PLJR434, (2021)1SCC596 MANU/SC/0822/2020

Case Note: Criminal - Death sentence - Commutation of - Sections 302, 376A and 376(1)(2)(f)(m) of Indian Penal Code, 1860 and Section 6 of Protection of Children from Sexual Offences Act, 2012 - Appellant was tried by Trial Court for having committed offences punishable under Sections 376(1)(2)(f)(m), 376A, 302 of Code and under Section 6 of POCSO Act - Trial Court found that circumstances established guilt of Appellant and convicted Appellant - Trial Court, by its order passed on same day awarded Death Sentence to Appellant on two counts, i.e. under Section 302 of Code and under Section 376-A of Code - High Court upheld conviction and sentence as recorded by Trial Court and confirmed Death Sentence - Hence, present appeal - Whether impugned death sentence awarded to Appellant warrant any interference. Facts: The Appellant was tried by the Trial Court in Special Case (POCSO Act) for having committed offences punishable under Sections 376(1)(2)(f)(m), 376A, 302 of Indian Penal Code and under Section 6 of the POCSO Act. The Trial Court found that the circumstances established the guilt of the Appellant. After declaring the Accused guilty for the offences punishable under Section 376(1)(2)(f)(i)(m) of Indian Penal Code, under Section 376-A of Indian Penal Code, under Section 302 of Indian Penal Code, and under Section 6 of Protection of Children from Sexual Offences Act, the Trial Court by its order passed on the same day awarded Death Sentence to the Appellant on two counts, i.e. under Section 302 of Indian Penal Code and under Section 376-A of Indian Penal Code; Rigorous Imprisonment for life under two counts, i.e. Section 376(1)(2)(f), (i) and (m) of Indian Penal Code and under Section 6 of POCSO Act. The Death Sentence was subject to confirmation by the High Court. The High Court upheld the conviction and sentence as recorded by the Trial Court and confirmed the Death Sentence. Held, while partly allowing the appeal: (i) According to the prosecution, on the day in question when the victim was with her grandfather, on the pretext that the father of the victim had asked the Appellant to bring the victim, the Appellant, who was maternal uncle of the victim, took her away. This part of the evidence was conclusively established through the testimony of the grandfather. This version finds mention in the FIR which was recorded within few hours of the incident and in the statement of grandfather recorded under Section 164 of the Code. There wasnothing on record to doubt the veracity of said version. It was true that some other witnesses were not examined by the prosecution but the strength of the testimony of grand father did not get diminished on any count nor can it be said that his testimony loses its weight because the witness was the grandfather of the victim. The version coming through this witness is cogent, consistent and also figured in prompt reporting of the FIR. Therefore, no hesitation in accepting that the first circumstance as noted by the Trial Court stands conclusively established. [18.1] (ii) As deposed by prosecution witnesses, the Appellant was found by the side of the victim at the spot. The victim was having various injuries whereafter she was taken for medical attention. Soon after the incident, the Appellant was also medically examined and Report showed injury on his body. Even if PW9 had turned hostile and some other witnesses were not examined, the fact that the victim was always in the custody of Appellant till she was found at the spot alongside the Appellant was quite clear. The proximity in terms of time and the promptitude in reporting were crucial factors and the evidence in that behalf was completely trustworthy. Thus, the second and third circumstances were also fully established. [18.2] (iii) Soon after his arrest, the Appellant was produced for medical examination before doctor, who found injury on private parts of the Appellant. The approximate time of said injury as given in the opinion was consistent with the case of prosecution. The submission however was that the Appellant was also examined by another medical professional and that report was not placed on record. The reference to the medical examination of the Appellant in terms of Section 53A of the Code was not to any other medical professional but to doctor. No explanation, not even a suggestion came from the Appellant how there could be an injury on his body as noticed in Report. [18.3] (iv) It must be stated that as per record, the chappals were not proved to be that of the Appellant and the pieces of flesh found at the spot of incident were also not proved to be that of a human being. However, the fact that the pant of the victim was found at the spot of incident is well established on record, and the circumstance must be taken to be proved only with respect to the recovery of the pant of the victim. [18.4] (v) There was nothing on record to show that the stains of semen found on clothing referred to in sixth circumstance, were medically proved to be that of, or could be associated with the Appellant. The sixth circumstance could not therefore be taken to be pointing against the Appellant. [18.5] (vi) It was true that the injuries on the lips of the victim showed that the margins were clean cut and given the nature of evidence in that behalf, it could not be said with certainty that those injuries could be taken to be the result of human bites. But the other injuries on the body of the victim were definitely by human bites and as such the absence of clarity with regard to the injuries on the lips did not render the case of the prosecution doubtful in any manner. Again, the absence of association of vaginal, cervical and anal swabs with the Appellant did not in any way diminish the strength of evidence against the Appellant. [20] (vii) The circumstances proved on record were not only conclusive in nature but completely support the case of the prosecution and were consistent with only one hypothesis and that was the guilt of the Appellant. They form a chain, so complete, consistent and clear, that no room for doubt or ground arises pointing towards innocence of the Appellant. It was, therefore, established beyond any shadow of doubt that the Appellant committed the acts of rape and sexual assault upon the victim and that injury was the cause of death of the victim. [21] (viii) The Appellant was thus guilty of having committed offences punishable under Clauses (f), (i) and (m) of Sub-section (2) of Section 376 of Indian Penal Code and also, under Clauses (j) and (m) of Section 5 read with Section 6 of the POCSO Act. Since according to medical opinion, the death was because of injury, the Appellant was also guilty of having committed offence punishable under Section 376A of Indian Penal Code. [22] (ix) Considering the age of the victim in the present case, the Accused must have known the consequence that his sexual assault on a child would cause death or such bodily injury as was likely to cause her death. The instant matter thus comes within the parameters of Clause fourthly to Section 300 Indian Penal Code and the question posed at the beginning of the discussion on this issue must be answered against the Appellant. The Appellant was therefore guilty of having committed the offence of culpable homicide amounting to murder. [28] (x) Though the Appellant was guilty of the offence punishable under Section 302 Indian Penal Code, since there was no requisite intent as would bring the case under any of the first three clauses of Section 300 Indian Penal Code, the offence in the present case did not deserve death penalty. [54] (xi) The offence was committed and just few days before such commission, Section 376A was inserted in Indian Penal Code by the Ordinance. The ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with Sub-Article (1) of Article 20 of the Constitution. The Appellant is thus definitely guilty of the offence punishable under Section 376A Indian Penal Code. But the question remains whether punishment lesser than death sentence gets ruled out or not. As against Section 302 Indian Penal Code while dealing with cases under Section 376A Indian Penal Code, a wider spectrum is available for consideration by the Courts as to the punishment to be awarded. On the basis of the same aspects that weighed while considering the appropriate punishment for the offence under Section 302 Indian Penal Code, in view of the fact that Section 376A Indian Penal Code was brought on the statute book just few days before the commission of the offence, the Appellant did not deserve death penalty for said offence. At the same time, considering the nature and enormity of the offence, it must be observed that the appropriate punishment for the offence under Section 376A Indian Penal Code must be rigorous imprisonment for a term of twenty five years. [55] (xii) Consequently, while affirming the view taken by the Courts below in recording conviction of the Appellant for the offences punishable under Sections 302 Indian Penal Code and 376A Indian Penal Code, this court commute the sentence to life imprisonment for the offence punishable under Section 302 Indian Penal Code and to that of rigorous imprisonment for twenty five years for the offence punishable under Section 376A Indian Penal Code. The conviction and sentence recorded by the Courts below for the offences punishable under Section 376(1), (2)(f), (i) and (m) of Indian Penal Code, and under Section 6 of the POCSO Act were affirmed. [57]


Shivakumar and Ors. -Vs.- Sharanabasappa and Ors

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Equivalent Citation: AIR2020SC3102, 2020(3)ALD39, 2020(4)BLJ24, 2020 (2) CCC 288 , 2020(4)CTC321, 2020(I)CLR(SC)1057, 2020(2)J.L.J.R.288, 2020(3)JKJ220[SC], (2020)5MLJ167, 2020(2)PLJR469, 2020(2)RCR(Civil)485, 2020 (4) SCJ 699 MANU/SC/0395/2020

Case Category: PERSONAL LAW MATTERS - MATTERS RELATING TO TESTAMENTARY SUCCESSION Case Note: Family - Will - Suspicion thereto - Suit was filed by Plaintiff-Appellants for declaration and injunction with submissions that they had required ownership rights in suit properties on basis of Will executed by owner of said properties and trust created by Defendants was illegal - Trial Court decided principal issue relating to said Will in favour of Plaintiffs and also proceeded to decree suit with declaration that trust created by Defendants was not binding on Plaintiffs - Judgment and decree so passed by Trial Court were questioned in High Court - High Court reversed decision of Trial Court on principal issue relating to genuineness of Will in question and held that alleged Will was not genuine document - Hence, present appeal - Whether High Court was right in reversing decision of Trial Court and in holding that contested Will was not genuine document. Facts: The civil suit was filed by the Plaintiff-Appellants for declaration and injunction, essentially with the submissions that they had required ownership rights in the suit properties on the basis of a Will executed by the owner of the said properties and that a trust created by the Defendants in relation to the suit properties, was illegal, void and not binding on the Plaintiffs. The contesting Defendants i.e., Defendant Nos. 1 to 5 refuted the claim so made by the Plaintiffs while questioning the genuineness of the alleged Will. The Defendant No. 7, one of the erstwhile trustees of the said trust, however, admitted and endorsed the claim of the Plaintiffs. After framing necessary issues and after taking the oral and documentary evidence adduced by the parties, the Trial Court, decided the principal issue relating to the said Will in favour of the Plaintiffs and, while also returning its findings on other necessary issues in favour of the Plaintiffs, proceeded to decree the suit with declaration that the trust created by the Defendants was not binding on the Plaintiffs, particularly in relation to the suit properties and that the Plaintiffs were owners of the suit properties as claimed. The Trial Court also issued injunction against Defendant Nos. 1 to 5 that they shall not interfere with the Plaintiffs' peaceful possession and enjoyment of the suit properties. The judgment and decree so passed by the Trial Court were questioned by the contesting Defendants in the High Court by way of the said first appeal. The High Court proceeded to allow the appeal while reversing the decision of Trial Court on the principal issue relating to the genuineness of the Will in question. The HighCourt found several unexplained suspicious circumstances as also discrepancies in the Will in question and held that the alleged Will was not a genuine document. Held, while dismissing the appeal: (i) The four unusual features of the document in question were evident on the face of the record. To recapitulate, the disturbing unusual features of the document in question were that it was typewritten on three different sheets of paper, the placement of signatures of the testator was not of uniformity and excessive space was seen between the typewritten contents and the signatures on page number one and page number five, different pens had been used for signatures on different pages with ink pen having been used for first and third signatures and ballpoint pen having been used for the second signature and all the typewritten pages did not carry the signatures of the testator, with there being no signature on page number two and page number four. It did not require any great deal of elaboration that in the ordinary, normal and usual course, such a typewritten document was expected to be on the sheets of paper drawn from the same stack there would be reasonable uniformity in placement of the signatures running through the document and every signature would be placed alongside or at a reasonable distance from the contents a single pen or instrument would be used for signing at all places and, ordinarily, a maker of the Will would not leave such ambiguity in expression of his intention as would arise by his signing three pages and not signing two other pages of the same document. In fact, in the normal and ordinary course of dealing, the maker of a Will was least expected to leave any page of the document unsigned. Although existence of some such unusual features could not be ruled out during the course of typing and signing of the document but when all such unusual features combine together, the document becomes too vulnerable and could not be readily accepted as a genuine document. [15.5] (ii) When all abnormal, curious and rather mysterious circumstances were put together, the inescapable conclusion was that the document in question could not be accepted as the last Will of the testator. The unexplained, unusual and abnormal features pertaining to the document only lead to the logical deduction that the document in question was prepared after the demise of the testator with use of blank signed papers that came in possession of the propounders and their associates. The High Court had stated such deduction after thorough examination of the material on record and rightly so. It was noticed that all the features and factors indicated were very much available on the face of the record. However, the Trial Court, even while dealing with several contentions in excessive details, either failed to notice some of the features indicated above or simply brushed aside the particular feature carrying abnormality with the observations to the effect that the propounders were not to be expected to remove the suspicions concerning the document when they had no role in its execution. The Trial Court having, obviously, misdirected itself on several of the key and pivotal factors, its decision could not have been approved. [19] (iii) The Trial Court had largely been swayed by the fact that the deceased testator was not inclined to give any property to the Defendant No. 1 and his family as had been the case of the earlier Will executed by him. Admittedly, the said Will was cancelled by testator. He perished in the vehicular accident. Whether he intended to bequeath any property to the Defendants or not was hardly of any bearing in relation to the suspicious circumstances. [22] (iv) Thus, the document in question could not be accepted to be the last Will of testator, it did not appear necessary to discuss several other shortcomings in the case of the Plaintiffs, including various other factors like that the Plaintiffs never took steps to get the statement of the one person recorded, who was otherwise referred to by all the material witnesses as being the person before whom the document was allegedly opened. [23] (v) The present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to and it had not been the case of the Plaintiff-Appellants that they were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. There had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. The High Court had meticulously


Shreya Singhal Vs. Respondent: Union of India (UOI)

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Equivalent Citation: 2015X AD (S.C.) 586, 2015(149)AIC224, AIR2015SC1523, 2015 (2) ALD(Crl.) 971 (SC), 2015 (2) ALT (Crl.) 251 (A.P.), 2015(2)BomCR(Cri)515, II(2015)CCR47(SC), (2015)2CompLJ143(SC), 218(2015)DLT370(SC), 2015GLH(1)741, 2015(2)J.L.J.R.161, 2015(2)KLJ292, 2015(2)KLT1(SC), (2015)3MLJ162(SC), 2015(3)N.C.C.169, 2015(2)PLJR138, 2015(2)RCR(Criminal)403, 2015(4)SCALE1, (2015)5SCC1, 2015 (4) SCJ 283, 2015(1)UC594 MANU/SC/0329/2015

Case Note: Constitution - Speech and expression - Freedom of - Infringement thereto - Sections 66A, 69 and 79 of Information Technology Act, 2000, Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and Section 118(d) of Kerala Police Act, Section 95 and 96 Code of Criminal Procedure, 1973 and Articles 19(1)A and 19(2) of Constitution of India - Present appeal filed to determine validity of Sections 66A, 69A and 79 of Act, Information Technology Rules, 2009 and Section 118(d) of Kerala Police Act - Whether Sections 66A, 69 and 79 of IT Act and Section 118(d) of Act required to be declared unconstitutional for being in violation of Article 19(1)(a) and not saved by Article 19(2) - Held, Petitioners were correct in saying that public's right to know was directly affected by Section 66A - Petitioners were right in saying that Section 66A in creating offence against persons who use internet and annoy or cause inconvenience to others very clearly affects freedom of speech and expression of citizenry of India at large - Section 66A arbitrarily, excessively and disproportionately invades right of free speech and upsets balance between such right and reasonable restrictions that may be imposed on such right - Therefore, hold Section 66A was unconstitutional also on ground that it takes within its sweep protected speech and speech that was innocent in nature - Therefore hold that no part of Section 66A was severable and provision as whole must be declared unconstitutional - Section 66A creates offence which was vague and overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2) - Kerala Police Act as whole would necessarily fall under Entry 2 of List II - Section 66A would apply directly to Section 118(d) of Act, as causing annoyance in indecent manner suffers from same type of vagueness and over breadth, that led to the invalidity of Section 66A - Section 118(d) also violates Article 19(1)(a) and not being reasonable restriction on said right and not being saved under any of subject matters contained in Article 19(2) (i) was hereby declared to be unconstitutional - Section 69A unlike Section 66A was narrowly drawn provision with several safeguards - Merely because certain additional safeguards such as those found in Section 95 and 96 Code were not available did not make Rules constitutionally infirm - Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79 - Thus, Section 66A of Act, 2000 was struck down in its entirety being violative of Article 19(1)(a) and not saved Under Article 19(2) - Section 69A and Information Technology Rules 2009 were constitutionally valid - Section 79 was valid subject to Section 79(3)(b) - Section 118(d) of Kerala Police Act was struck down being violative of Article 19(1)(a) and not saved by Article 19(2) - Petitions disposed of. [paras 20, 41, 44, 90, 98, 100, 105, 106, 109, 111, 117 and 119]


State of Punjab and Ors.- Vs.-Jagjit Singh and Ors

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Equivalent Citation: AIR2016SC5176, 2017(1)GLT47, 2016(II)ILR-CUT1127, ILR2016(4)Kerala419, 2016(4)J.L.J.R.349, 2017LabIC427, (2016)IVLLJ513SC, 2017(2)LLN562(SC), 2017(1)PLJR64, 2016(10)SCALE447, (2017)1SCC148, (2017)1SCC(LS)1, 2016 (10) SCJ 254, 2016(4)SCT641(SC), 2017(2)SLR682(SC) MANU/SC/1357/2016

Case Note: Labour and Industrial o?= Entitlement of temporary employees - Minimum pay-scale - Division Bench of Punjab and Haryana High Court o?= State of Punjab and Ors. v. Rajinder Singh and Ors. (LPA No. 337 of 2003) o?= Set aside in an intra-court appeal o?= Judgment by learned Single Judge of High Court o?= Rajinder Singh and Ors. v. State of Punjab and Ors. (CWP No. 1536 of 1988) o?= In above judgment, learned Single Judge directed the State o?= Pay to writ petitioners (daily wagers working as Pump Operators, Fitters, Helpers, etc.) o?= Minimum of pay-scale, revised from time to time o?= Permissible allowances being paid to similarly placed regular employees o?= Division Bench held o?= Temporary employees not entitled o?= Minimum of pay-scale o?= Being paid to similarly placed regular employees o?= Another division bench of same High Court o?= In State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009) o?= Dismissed an intra-Court appeal o?= Preferred by State of Punjab o?= Appeal arising out of judgment in Rajinder Kumar v. State of Punjab and Ors. (CWP No. 14050 of 1999) o?= Affirmed the decision of single judge o?= Letters patent bench held o?= Writ Petitioners entitled o?= Minimum pay-scale o?= Alongwith permissible allowances o?= Being given to similarly placed regular employees o?= Arrears payable to the concerned employees o?= Limited to three years prior to filing of writ petition o?= Division Bench in State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009) o?= Affirmed position adopted by learned single judge in CWP 1536 of 1988 o?= Instant division bench concluded conversely o?= Against judgment rendered in LPA No. 337 of 2003 o?= Noting conflict of views expressed o?= Judgments rendered by two division benches o?= Learned Single Judge of High Court o?= Referred matter for adjudication to a larger bench o?= Therefore, a full bench of High Court took up the issue o?= Avtar Singh v. State of Punjab - Resolved the dispute - Present cases challenge judgments o?= LPA No. 337 of 2003 o?= LPA No. 1024 of 2009 o?= Avtar Singh v. State of Punjab and Ors. o?= Issue for Courto?=s consideration o?= Regarding entitlement of temporarily engaged employees o?= Entitlement to minimum of regular pay-scale o?= Account of their performing duties o?= Same as discharged by those engaged on regular basis o?= Whether temporarily engaged employees (daily wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, alongwith dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts Facts: A division bench of the Punjab and Haryana High Court, in State of Punjab and Ors. v. Rajinder Singh and Ors. (LPA No. 337 of 2003, decided on 7.1.2009), set aside, in an intracourt appeal, the judgment rendered by a learned single Judge of the High Court, in Rajinder Singh and Ors. v. State of Punjab and Ors. (CWP No. 1536 of 1988, decided on 5.2.2003). In the above judgment, the learned single Judge had directed the State to pay to the writ Petitioners (who were daily-wagers working as Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars etc.), minimum of the pay-scale, revised from time to time, with permissible allowances, as were being paid to similarly placed regular employees; arrears payable, were limited to a period of three years, prior to the date of filing of the writ petition. In sum and substance, the above mentioned division bench held, that temporary employees were not entitled to the minimum of the pay-scale, as was being paid to similarly placed regular employees. Another division bench of the same High Court, in State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009, decided on 30.8.2010), dismissed an intra-Court appeal preferred by the State of Punjab, arising out of the judgment rendered by a learned single Judge in Rajinder Kumar v. State of Punjab and Ors. (CWP No. 14050 of 1999, decided on 20.11.2002), and affirmed the decision of the single Judge, in connected appeals preferred by employees. The letters patent bench held, that the writ Petitioners (working as daily-wage Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars, etc.), were entitled to minimum of the pay-scale, alongwith permissible allowances (as revised from time to time), which were being given to similarly placed regular employees. Arrears payable to the concerned employees were limited to three years prior to the filing of the writ petition. In sum and substance, the division bench in State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009) affirmed the position adopted by the learned single Judge in Rajinder Singh and Ors. v. State of Punjab and Ors. (CWP No. 1536 of 1988). It is apparent, that the instant division bench, concluded conversely as against the judgment rendered in State of Punjab and Ors. v. Rajinder Singh (LPA No. 337 of 2003), by the earlier division bench. Noticing a conflict of views expressed in the judgments rendered by two division benches in the above matters, a learned single Judge of the High Court, referred the matter for adjudication to a larger bench. It is, therefore, that a full bench of the High Court, took up the issue, for resolving the dispute emerging out of the differences of opinion expressed in the above two judgments, in Avtar Singh v. State of Punjab and Ors., alongwith connected writ petitions. The present bunch of cases, comprise of a challenge to the judgment rendered by the division bench of the High Court in State of Punjab and Ors. vRajinder Singh and Ors. (LPA No. 337 of 2003); a challenge to the judgment in State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009); as also, a challenge to the judgment rendered by the full bench of the High Court in Avtar Singh v. State of Punjab and Ors. The issue for Courto?=s consideration is regarding the entitlement of temporarily engaged employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular payscale, alongwith dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts. Held, while disposing of the appeal In view of all its conclusions, the decision rendered by the full bench of the High Court in Avtar Singh v. State of Punjab and Ors. (CWP No. 14796 of 2003), dated 11.11.2011, is liable to be set aside, and the same is hereby set aside. The decision rendered by the division bench of the High Court in State of Punjab and Ors. v. Rajinder Singh and Ors. (LPA No. 337 of 2003, decided on 7.1.2009) is also liable to be set aside, and the same is also hereby set aside. The Court affirmed the decision rendered in State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009, decided on 30.8.2010), with the modification, that the concerned employees would be entitled to the minimum of the payscale, of the category to which they belong, but would not be entitled to allowances attached to the posts held by them. [52] There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, Under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by the Court in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by the Court, yet again. [54] In Courto?=s considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. [55] Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires Courto?=s determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by the Court in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it was not difficult for the Court to record the factual position. The Court said so, because it was fairly acknowledged by the learned Counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment,the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees.[57] Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the Appellants, that the Respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by the Court in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post. [57] In view of the position expressed by it in the foregoing paragraph, the Court had no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (-at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post.[58] .


State of Bihar and Ors.- Vs.-The Bihar Secondary Teachers Struggle Committee, Munger and Ors.

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Equivalent Citation: AIR2019SC2521, 2019(3)ALT292, 2019(2)ESC558(SC), 2019(2)J.L.J.R.441, 2019LabIC2773, (2019)5MLJ560, 2019(2)PLJR454, 2019(8)SCALE124, (2019)18SCC301, 2019(3)SCT245(SC), 2019(2)SLJ278(SC) MANU/SC/0748/2019

Case Note: Service - Pay scale - Parity thereto - Articles 21A and 243 of Constitution of India, 1950 - Appeal was against impugned order of High Court observing that, action on part of State in denying pay-scales to Niyojit Teachers was arbitrary and unreasonable - Whether Niyojit Teachers were right in their submission that, they were entitled to and were rightly granted 'equal pay for equal work' - Whether State was justified in its approach and was right in claiming that, distinction made by it was correct and fair. Facts: In 1981, all nonGovernment Secondary Schools were nationalized and the management was taken over by State of Bihar. Consequently, all teaching and non-teaching staff were given salaries and emoluments at the Government scales. With the schemes like Sarva Shiksha Abhiyan, introduction of Article 21A in the Constitution and coming into force of the Right of Children to Free and Compulsion Education Act, 2009 ('RTE Act'), the State was required to induct large number of teachers in order to meet the required obligations. These teachers employed at Panchayat, Nagar Panchayat and Municipal levels were not given same salaries and emoluments like the teachers who were paid at the Government scales. The petitions seeking same salaries and emoluments on the principle of "equal pay for equal work" filed by the latter category of teachers, were allowed by the High Court. The view taken by the High Court is presently under challenge at the instance of the State. It was found that the admitted position was that both categories of teachers were discharging similar duties of imparting instructions in same schools and were having necessary qualifications as were possessed by the teachers appointed before 2006. Niyojit Teachers are regular teachers working in the nationalised school under the control of the State Government. The State Government has adopted two different pay-scales one for the Niyojit Shikshak and the other for the teachers known as regular teachers appointed prior to framing of 2006 Rules. Such discrimination in the pay-scale on the basis of artificial distinction is unreasonable. Held, while allowing the appeal 1. In the year 2002 itself, Scheme known as Sarva Shiksha Abhiyan was introduced at the Central level. In terms of the Scheme, the facilities of education and infrastructure were required to bespread through the length and breadth of the respective States. The steps taken in that behalf, specially in the present matter, indicate that sometime in 2002 more than one lakh Shiksha Mitras were appointed by the State. These Shiksha Mitras were not part of the regular cadre of Government Teachers, were not appointed through the regular process of selection and their services were engaged on a fixed salary. These Shiksha Mitras, who were outside the regular cadre of teachers, were entrusted with the job of manning schools in the remotest corners of the State. Sometime in 2006, certain decisions were taken by the Cabinet of Ministers, Government of Bihar. The control in respect of appointment of teachers in all nationalized schools and other aspects, which were hitherto before with the State Government, were given over to various Panchayat Raj institutions. This was in conformity with Articles 243G read with Serial No. 17 of the Eleventh Schedule in respect of Panchayats at the village, intermediate and at district levels and also in terms of Article 243W read with Serial No. 13 of the Twelfth Schedule in respect of Nagar Panchayats, Municipal Councils or Municipal Corporations. The decisions taken by the Cabinet were in accord with the constitutional mandate of enabling Panchayat Raj Systems on one hand while on the other, the decision also raised the number of teachers substantially so that national parameters on student: teacher ratio could be achieved by the State. [56] 2. The doctrine of 'equal pay for equal work' is not an abstract doctrine. The principle of 'equal pay for equal work' has no mechanical application in every case. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, makes a difference. The application of the principle of 'equal pay for equal work' requires consideration of various dimensions of a given job. Thus, normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Equation of posts and salary is a complex matter which should be left to an expert body. Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequences. Before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment. In a given case, mode of selection may be considered as one of the factors which may make a difference. [68] 3. Even, when the teachers from both the cadres were discharging similar duties and responsibilities, the decision of the State government to maintain different identities of these two cadres was not found objectionable by this Court and further there could be inter se distinctions between these two cadres. It is true that, both the cadres were enjoying same pay structure but the submission that the chances of promotion ought to be similar was not accepted by the Court. [74] 4. It was open to the State to have two distinct cadres namely that of 'Government Teachers' and 'Niyojit Teachers' with Government Teachers being a dying or vanishing cadre. The incidents of these two cadres could be different. The idea by itself would not be discriminatory. The pay structure given to the Niyojit Teachers was definitely lower than what was given to Government Teachers but the number of Government Teachers was considerably lower than the number of Niyojit Teachers. Presently there are just about 66,000 Government Teachers in the State as against nearly 4 lakh Niyojit Teachers. There is scope for further appointment of about 1 lakh teachers which could mean that as against 5 lakh teachers the number of State Teachers would progressively be going down. The parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadre. The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above. [76] 5. It is true that, the budgetary constraints or financial implications can never be a ground, if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider. [78] 6. There has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. Efforts on part of the State Government could not be labelled as unfair or discriminatory.The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which presently exists between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve. [79] 7. The teachers must be entitled to decent emoluments. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. [80] 8. Appeals allowed. [83]

Ratio Decidendi: Granting pay scales is a purely executive function and hence the court should not interfere with the same


State of Punjab and Ors. Vs. Respondent: Jagjit Singh and Ors.

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Equivalent Citation: AIR2016SC5176, 2017(1)GLT47, 2016(II)ILR-CUT1127, ILR2016(4)Kerala419, 2016(4)J.L.J.R.349, 2017LabIC427, (2016)IVLLJ513SC, 2017(2)LLN562(SC), 2017(1)PLJR64, 2016(10)SCALE447, (2017)1SCC148, (2017)1SCC(LS)1, 2016 (10) SCJ 254, 2016(4)SCT641(SC), 2017(2)SLR682(SC) MANU/SC/1357/2016

Case Note: Labour and Industrial o?= Entitlement of temporary employees - Minimum pay-scale - Division Bench of Punjab and Haryana High Court o?= State of Punjab and Ors. v. Rajinder Singh and Ors. (LPA No. 337 of 2003) o?= Set aside in an intra-court appeal o?= Judgment by learned Single Judge of High Court o?= Rajinder Singh and Ors. v. State of Punjab and Ors. (CWP No. 1536 of 1988) o?= In above judgment, learned Single Judge directed the State o?= Pay to writ petitioners (daily wagers working as Pump Operators, Fitters, Helpers, etc.) o?= Minimum of pay-scale, revised from time to time o?= Permissible allowances being paid to similarly placed regular employees o?= Division Bench held o?= Temporary employees not entitled o?= Minimum of pay-scale o?= Being paid to similarly placed regular employees o?= Another division bench of same High Court o?= In State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009) o?= Dismissed an intra-Court appeal o?= Preferred by State of Punjab o?= Appeal arising out of judgment in RajinderKumar v. State of Punjab and Ors. (CWP No. 14050 of 1999) o?= Affirmed the decision of single judge o?= Letters patent bench held o?= Writ Petitioners entitled o?= Minimum pay-scale o?= Alongwith permissible allowances o?= Being given to similarly placed regular employees o?= Arrears payable to the concerned employees o?= Limited to three years prior to filing of writ petition o?= Division Bench in State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009) o?= Affirmed position adopted by learned single judge in CWP 1536 of 1988 o?= Instant division bench concluded conversely o?= Against judgment rendered in LPA No. 337 of 2003 o?= Noting conflict of views expressed o?= Judgments rendered by two division benches o?= Learned Single Judge of High Court o?= Referred matter for adjudication to a larger bench o?= Therefore, a full bench of High Court took up the issue o?= Avtar Singh v. State of Punjab - Resolved the dispute - Present cases challenge judgments o?= LPA No. 337 of 2003 o?= LPA No. 1024 of 2009 o?= Avtar Singh v. State of Punjab and Ors. o?= Issue for Courto?=s consideration o?= Regarding entitlement of temporarily engaged employees o?= Entitlement to minimum of regular pay-scale o?= Account of their performing duties o?= Same as discharged by those engaged on regular basis o?= Whether temporarily engaged employees (daily wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, alongwith dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts Facts: A division bench of the Punjab and Haryana High Court, in State of Punjab and Ors. v. Rajinder Singh and Ors. (LPA No. 337 of 2003, decided on 7.1.2009), set aside, in an intracourt appeal, the judgment rendered by a learned single Judge of the High Court, in Rajinder Singh and Ors. v. State of Punjab and Ors. (CWP No. 1536 of 1988, decided on 5.2.2003). In the above judgment, the learned single Judge had directed the State to pay to the writ Petitioners (who were daily-wagers working as Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars etc.), minimum of the pay-scale, revised from time to time, with permissible allowances, as were being paid to similarly placed regular employees; arrears payable, were limited to a period of three years, prior to the date of filing of the writ petition. In sum and substance, the above mentioned division bench held, that temporary employees were not entitled to the minimum of the pay-scale, as was being paid to similarly placed regular employees. Another division bench of the same High Court, in State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009, decided on 30.8.2010), dismissed an intra-Court appeal preferred by the State of Punjab, arising out of the judgment rendered by a learned single Judge in Rajinder Kumar v. State of Punjab and Ors. (CWP No. 14050 of 1999, decided on 20.11.2002), and affirmed the decision of the single Judge, in connected appeals preferred by employees. The letters patent bench held, that the writ Petitioners (working as daily-wage Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars, etc.), were entitled to minimum of the pay-scale, alongwith permissible allowances (as revised from time to time), which were being given to similarly placed regular employees. Arrears payable to the concerned employees were limited to three years prior to the filing of the writ petition. In sum and substance, the division bench in State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009) affirmed the position adopted by the learned single Judge in Rajinder Singh and Ors. v. State of Punjab and Ors. (CWP No. 1536 of 1988). It is apparent, that the instant division bench, concluded conversely as against the judgment rendered in State of Punjab and Ors. v. Rajinder Singh (LPA No. 337 of 2003), by the earlier division bench. Noticing a conflict of views expressed in the judgments rendered by two division benches in the above matters, a learned single Judge of the High Court, referred the matter for adjudication to a larger bench. It is, therefore, that a full bench of the High Court, took up the issue, for resolving the dispute emerging out of the differences of opinion expressed in the above two judgments, in Avtar Singh v. State of Punjab and Ors., alongwith connected writ petitions. The present bunch of cases, comprise of a challenge to the judgment rendered by the division bench of the High Court in State of Punjab and Ors. v. Rajinder Singh and Ors. (LPA No. 337 of 2003); a challenge to the judgment in State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009); as also, a challenge to the judgment rendered by the full bench of the High Court in Avtar Singh v. State of Punjab and Ors. The issue for Courto?=s consideration is regarding the entitlement of temporarily engaged employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular payscale, alongwith dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts. Held, while disposing of the appeal In view of all its conclusions, the decision rendered by the full bench of the High Court in Avtar Singh v. State of Punjab and Ors. (CWP No. 14796 of 2003), dated 11.11.2011, is liable to be set aside, and the same is hereby set aside. The decision rendered by the division bench of the High Court in State of Punjab and Ors. v. Rajinder Singh and Ors. (LPA No. 337 of 2003, decided on 7.1.2009) is also liable to be set aside, and the same is also hereby set aside. The Court affirmed the decision rendered in State of Punjab and Ors. v. Rajinder Kumar (LPA No. 1024 of 2009, decided on 30.8.2010), with the modification, that the concerned employees would be entitled to the minimum of the payscale, of the category to which they belong, but would not be entitled to allowances attached to the posts held by them. [52] There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, Under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by the Court in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by the Court, yet again. [54] In Courto?=s considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. [55] Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires Courto?=s determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by the Court in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it was not difficult for the Court to record the factual position. The Court said so, because it was fairly acknowledged by the learned Counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment,the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees.[57] Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the Appellants, that the Respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by the Court in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post. [57] In view of the position expressed by it in the foregoing paragraph, the Court had no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (-at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post.[58]


Rakesh Kumar Agarwalla and Ors.- Vs.- National Law School of India University, Bengaluru and Ors.

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Equivalent Citation: AIR2020SC4461, 2021(1) AKR 50, 2020(3)ESC609(SC), (2020)7MLJ334, (2021)1SCC539, 2020 (9-10) SCJ 625 MANU/SC/0701/2020

Case Note: Education - Admission Notification - Online examination in the name of format 'NLAT' notified to be conducted - Challenge on the ground of being violative of Article 14 of the Constitution of India, 1950 - Writ challenging notification filed under Article 32 of the Constitution of India, 1950 - Notified admission test independent of Common Law Admission Test, 2020 (CLAT) - Notification challenged as being in violation of provisions o?=of National School of India University, Bengaluru by National Law School of India Act, 1986 ('the Act, 1986') - Maintainability of writ challenged for want of locus standi of Petitioners - Whether the admission test in the name and format of NLAT can be conducted besides CLAT? Facts: National Law School of India o?=University, Bengaluru (NLSIU) issued notification about conducting separate admission entrance examination in the name and format of NLAT. The petition was filed to seek direction against NLSIU to admit students only through Common Law Admission Test, 2020 (CLAT). The Notification notifying separate admission test 'NLAT' was challenged as being in o?=breach o?=of statutory o?=provisions o?=of National School of India University, Bengaluru by National Law School of India Act, 1986 ('the Act, 1986'). The maintainability of petition was questioned on the ground of Petitioner's locus standi to challenge the notification. Further, another point of dispute was whether the admission notification by Respondent No. 1 could have been issued only after recommendations by the Academic Council, the o?=statutory authority o?=under the Act, 1986 for admission of the students to the five year integrated B.A.LL.B. (Hons.) Programme 2020-2021. Then, whether the Respondent No. 1 being founder


Nikesh Tarachand Shah Vs. Respondent: Union of India (UOI) and Ors.

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2018(181)AIC200, AIR2017SC5500, 2018 (1) ALD(Crl.) 212 (SC), 2018 (102) ACC 960, 2018(1)BomCR(Cri)508, IV(2017)CCR302(SC), 2018CriLJ721, 2017(4)Crimes473(SC), 244(2017)DLT586, 2018(360)ELT203(S.C.), 2017(4)J.L.J.R.435, 2018(1)JCC114, 2018(1)JLJ45, 2018(2)N.C.C.57, 2018(1)PLJR46, 2018(2)RCR(Criminal)232, 2017(13)SCALE609, (2018)11SCC1, 2018 (2) SCJ 353, [2018]145SCL96(SC) MANU/SC/1480/2017


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