The sight of Senior Advocate Indu Malhotra stepping out of her car was what greeted me yesterday at gate C of the Supreme Court. Malhotra, whose name was recommended for Supreme Court judgeship, had stopped her law practice in deference to her proposed judgeship. However, thanks to the Central Government’s defiance to take a decision one way or the other with respect to the file concerning her elevation, Malhotra’s expected judgeship seems to have hit a roadblock. While it could not be confirmed whether she has withdrawn her consent for judgeship, her presence in Supreme Court is a pointer to […]

Vikas Mahendra and Pradeep Nayak A division bench of the Hon’ble Supreme Court in Board of Control for Cricket in India v Kochi Cricket Pvt. Ltd., has held that the amendments to the Arbitration and Conciliation Act 1996 that came into effect on October 23, 2015, are prospective, but will have a significant impact even on court proceedings relating to arbitrations commenced before the coming into force of the amendments. The policy rationale underlying the decision is welcome and signifies a pro-arbitration stance that has been the pillar of most recent decisions coming from the Supreme Court. However, the reasoning […]

A Constitution Bench of the Supreme Court yesterday ruled in favour of Passive Euthanasia, holding that the Right to Life under Article 21 includes easing the process of dying in case of a terminally ill patient or a person in persistent vegetative state with no hope of recovery. The Court facilitated Passive Euthanasia by allowing enforcement of an ‘Advance Directive’, which has been synonymously used with the term “living will”. In its judgment the Court held,

In this edition of Recusal Watch, we look at instances of recusals by Supreme Court judges between February 12 and 23. On February 20, Justice RK Agrawal recused from hearing the case of AP Housing Board v. Azamunisa Begum (D) Thru LRS and others, a civil SLP pending since 2010. Categorised as an Ordinary Civil Matter – Others, this case has 35 respondents. Since March 27 last year, the case had been listed before a Bench presided by Justice Agrawal fifteen times. The case history shows that parties have been seeking adjournments either on account of personal difficulty, or because […]

This edition of Judgment Reserved deals with the cases heard by different Benches of the Supreme Court from February 5 to 23. It is rare for a Bench to permit counsel to make further oral submissions, after arguments have been concluded, and judgment reserved. However, this happened in Court room 5 of the Supreme Court on February 23, when Senior Counsel, Kapil Sibal placed such a request before the Bench of Justices AK Sikri and Ashok Bhushan, in the case of Bimal Gurung v Union of India. The Bench had concluded its hearing and reserved its judgment in the case only the previous […]

The Supreme Court Bench of Justices AK Sikri and Ashok Bhushan today held that retired judicial officers can be appointed as High Court judges as per Article 217 of the Constitution. Towards the end of the 31-page judgment authored by Justice Bhushan, the Bench makes some pertinent remarks regarding the delay in processing judicial appointments. While hearing a petition challenging the appointments of Justices VK Mathur . . . Facebook Comment To read the entire article, get a premium account With a premium account you get: One year of unrestrcited access to previous interviews, columns and articles One year access […]

It was over a month ago that four senior judges of the Supreme Court resorted to an unprecedented step by convening a press conference to highlight their grievances against the functioning of the office of Chief Justice of India. Haphazard listing of cases and departure from recognized conventions when listing matters etc. were some issues raised by the four judges. Judges in India fiercely shield themselves from media attention and rarely engage with scribes. Thus, many in the legal fraternity familiar with the working of the Supreme Court hailed the act of the four judges in coming out in the […]

The new Supreme Court Judges’ Roster effective from February 5 applies only to fresh cases, according to the notification on the Supreme Court website. Although there is nothing to prevent the twelve presiding judges from continuing to hear the pending cases before them, there is a possibility that some judges are recusing from hearing them further, perhaps in deference to the new roster. Take for instance Justice RK Agrawal’s recusal from hearing Jagrit Adivasi Dalit Sangathan v. The State of Madhya Pradesh and Others, a civil SLP filed last year. Although the case was listed before his bench ten times […]

The roster for fresh cases notified by the Supreme Court, with effect from February 5, is an exhaustive compilation of categories of cases, distributed among the 12 Benches of the Supreme Court. The roster reveals that there are 42 broad subject categories. Of these, some are listed exclusively before only one Bench. There are 15 such categories.  They are as follows: Letter Petition & PIL: CJI Election Matters: CJI Habeas Corpus: CJI Appointment etc. of Constitutional Functionaries: CJI Statutory Appointments & Appointment of other Law Officers: CJI Commission of Enquiry: CJI Admiralty and Maritime Laws: Justice Jasti Chelameswar State Excise-Trading […]

That the Judiciary and the Executive have been at loggerheads over judicial appointments for a very long time is no secret. And the latest victim of this tussle, if news reports are to be believed, is Chief Justice of the Uttarakhand High Court, Justice KM Joseph. It has been widely reported that the Central government is not keen on giving its assent to the Supreme Court Collegium’s recent recommendation to elevate Justice Joseph to the Supreme Court. No such reservations have been expressed thus far regarding the other name recommended by the Collegium, that of Senior Advocate Indu Malhotra. Ever […]

In this edition of Recusal Watch, we find that five Supreme Court judges recused from hearing six cases. The new Judges Roster in the Supreme Court, effective from February 5, might work differently in practice, owing to recusal by judges. Take, for example, The State of Maharashtra v. Sachin, a civil SLP, which is categorised as 0816 – Letter Petition & PIL matters: SLPs filed against judgments/orders passed by the High Courts in Writ petitions filed as PIL. As per the Roster, this subject category would come under the Bench presided by Chief Justice of India Dipak Misra. The matter, which […]

Kanu Agrawal The Supreme Court has seen a dramatic increase in the number of ‘intervention’ applications being filed before it. This practice of intervention is further accentuated in cases that have a large impact and are being reported in the print and digital media. From Constitutional matters to group litigation (class actions), intervention applications are commonplace, with most Courts allowing persons/pleaders to address the Court with little to no prior assessment of the locus standi or the authorisation supposed to be provided in the prescribed format. Before adverting to the de-facto problems with this intervention culture, it is necessary to […]

Ajit Warrier A Division Bench of the Supreme Court of India has decided to examine the correctness of a judgment of the National Consumer Disputes Redressal Commission, New Delhi (“NCDRC”) in Aftab Singh and others vs. Emaar MGF Land Limited and others[1], which has inter alia held that consumer disputes are not capable of being settled by arbitration. The batch of matters is expected to be taken up for final disposal on February 7, 2018. This article explores whether the line of reasoning preferred by the NCDRC is likely to invite a more critical scrutiny by the Supreme Court. The […]

The Supreme Court bench of justices RK Agrawal and AM Sapre took four and a half months to deliver its judgment in Karnataka Live Band Restaurants Association v State of Karnataka, after reserving it on September 5 last year. This was one of the nine judgments, authored by Justice Sapre, of the total of 18 judgments delivered by different benches during the week from January 22 to January 25. Eight of the nine authored by Justice Sapre were reserved during the previous week. The judgment in Karnataka Live Band Restaurants Association, in which the bench held that the welfare of […]

Sometimes, the end result of a recusal is achieved by means other than recusal. For instance, the Chief Justice of India, as the master of the roster, can achieve the same result by simply transferring a part-heard matter from one bench to another, without any explanation. That this has been happening very often in the Supreme Court was the thrust of the press conference held by the four senior most judges of the Supreme Court on January 12. Another instance of this phenomenon came to light on Tuesday, under the very shadow of this presser, and was missed by the […]

The 2017 survey report by research organisation DAKSH, titled Paths to Justice: Surveying Judicial and Non-judicial Dispute Resolution in India, draws attention to significant trends in accessing court and non-court dispute resolution channels in India. Responses were collected from 50,000 households across India. The respondents were selected on a random sampling approach, based on 2011 census data. The survey was aimed at collecting information pertaining to the kinds of disputes that people have faced, the modes of dispute resolution they choose, reasons why some people prefer to not resolve their disputes, experiences with the police, and costs of resolving their […]

While the Supreme Court has, on more than one occasion, allowed settlement after admission of cases under the Insolvency and Bankruptcy Code, 2016 (IBC), it has done so with a caveat that the tribunals don’t have inherent powers to do so. The Supreme Court under Article 142 of the Constitution has the power to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” But the NCLT and NCLAT don’t. The first time this question arose before the NCLAT, was in the case of Lokhandwala Kataria Construction, where the […]

The judgment in the case of Maharashtra State Electricity Distribution Co Ltd v. M/s Datar Switchgear, an arbitration matter heard by Justices AK Sikri and Ashok Bhushan, took more than five months to be delivered after getting reserved. It was reserved on August 10 last year, but could be delivered only on January 18. The timeline of the case itself indicates a huge delay. The respondent was awarded a contract for installation of Low Tension Load Management Systems (LTLMS) at various locations by the appellant during the year 1993-1994. Because of complaints that the LTLMS supplied by the respondents were […]

The Telangana and Andhra Pradesh High Court today took the Andhra Pradesh government to task for its lackadaisical approach towards complying with a judicial order asking it to provide details on the number of Execution Applications (EAs) pending in land acquisition matters. The Bench headed by Acting Chief Justice Ramesh Ranganathan had by an order dated December 26, 2017, directed the state governments of Telangana and Andhra Pradesh to file reports furnishing details as to the number of EA’s pending before District Courts, in . . . Facebook Comment To read the entire article, get a premium account With a premium […]

The absence of a transparent and orderly roster of Supreme Court judges has led to a host of issues before the Court, including the latest crisis triggered by the four senior judges’ presser on January 12. The four judges’ demand for transparency in the roster stems from their concern that the Chief Justice of India, as the master of the roster, should not arbitrarily allocate cases to preferred benches. CJI Dipak Misra apparently conceded the merits of their demand when on January 19, he directed the listing of the petitions filed by Tehseen Poonawalla, and Bandhuraj Lone, seeking an independent probe into […]

If you thought last week’s tumultuous events would have had an impact on the Supreme Court’s productivity, think again. In this edition of Judgment Reserved, we find that the crisis the apex court’s functionaries have been facing appears to have had little disruptive effect on its hearing and disposal of matters. What does the data from January 4 to 12 tell us? The Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud in Court No.1 alone heard and reserved judgments in nine cases, whereas four other benches separately heard and reserved judgments in eight cases. This, despite the fact that the CJI […]

Harpreet Singh Giani On Friday, Justices Chelameswar, Gogoi, Lokur and Joseph came out and addressed us directly. Breaking a self-imposed convention, they spoke in one voice about their concern at the unholy shenanigans going on in the Supreme Court. It falls now to us, to consider not only their words, but also their motive in appealing to us directly. They have told us that they have failed to clean out the Aegean Stables and so now they have placed their faith in us directly. And we are failing them. Justice Chelameswar has had to restrain himself on many occasions. For […]

Harpreet Singh Giani Caesar’s wife, it was said must be above suspicion. History tells us that after Publius Clodius Pulcher was prosecuted for gaining admittance to Pompeia’s house with the intention to seduce her, Caesar divorced Pompeia, saying that “my wife ought not even to be under suspicion”. Received wisdom tells us that Caesar found it irrelevant that Pulcher was acquitted of the charge. He believed that it was impermissible for Caesar to remain married to anyone remotely connected with a scandal. Contemporary wisdom has taken the idiom and turned it on its head. Contemporary wisdom decrees that just because […]

No matter which side you are on, January 12, 2018 will go down as a significant date in the history of the Indian Judiciary, and more specifically, the Supreme Court. The decision of four of the senior most judges to come out publicly in their criticism of the functioning of the apex court only confirms the trouble that has been slowly brewing within the body responsible for making judicial appointments. What makes these public revelations all the more surprising is the fact that historically, the working of the highest echelons of the judiciary has been shrouded in mystery. The Judges […]

By Varun Marwah & Zacarias Kanjirath Joseph Introduction In yet another landmark judgment for the bankruptcy regime in India, the Bombay High Court has ruled that an Application under the Insolvency and Bankruptcy Code, 2016 (IBC) may be made even in cases where a Winding-Up petition has been admitted by a Company Court. Such an Application under the IBC, would not be permitted, only in the event that a final order of Winding-Up is passed under Section 481 of the Companies Act, 1956. The Corporate Debtor in this case, PSL Limited (PSL), filed an application with the Bombay High Court, […]

In this second part and final part of the yearly Recusal Watch, we take a look at some more data regarding recusal of Supreme Court judges in 2017. When six judges recused from hearing the same case The hearing of the civil writ petition No.793 of 2015, Suraksha Foundation v Union of India, a PIL, has turned out to be bizarre. Filed by Sanjay Jain, advocate, on behalf of the NGO, the petitioner had made the following prayer: “Issue a writ of mandamus or certiorari, any other appropriate writ, order or directions thereby striking down the exemption granted to transport […]

Meera Emmanuel and Chandan Goswami Another eventful year at the Supreme Court of India has come to a close. Like the previous year, 2017 had its fair share of highs and lows, as the apex court grappled with the Executive over judicial appointments, and faced allegations of impropriety against two Chief Justices. With the retirement of former Chief Justice of India, TS Thakur and the appointment of Justice JS Khehar as the new CJI, the equation between the Central government and the Supreme . . . Facebook Comment To read the entire article, get a premium account With a premium […]

Unexpected verdicts, commuting of death sentences, and even celibate peacocks; High Courts across the country spent a considerable amount of judicial time hearing and ruling on issues that ranged from grave, to downright bizarre this year. Here is a wrap of some of the highlights that dotted and blotted the legal landscape in 2017. Justice is Mute The Allahabad High . . . Facebook Comment To read the entire article, get a premium account With a premium account you get: One year of unrestrcited access to previous interviews, columns and articles One year access to all archival material Access to […]

By Aankhi Ghosh “I often wonder whether we do not rest our hopes too much upon Constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it” – Judge Learned Hand.         The battle for power between the various organs of the State in general, and the Executive and the Judiciary in particular, is as old as the Constitution itself. While there are several prominent cases that immediately come to mind for having hastened […]

As Bar & Bench continues its Recusal Watch series, a point commonly raised is that to say that a judge has recused from a case means nothing, unless we also report the reasons for the recusal. While we agree with the broad tenor of this criticism, it also underlines the importance of making intelligent guesses about the reasons for the recusals, given that the judges, in general, tend to be reticent about them. Independence and impartiality, it is said, are the two pillars without which justice cannot stand, and the purpose of judicial recusal is to underpin them. But despite […]