The Lawyer's Digest: Supreme Court Judgments passed in October 2023

The Lawyer's Digest is a collection of concise summaries of judgments passed by the Supreme Court of India over the course of a month.

Topics have been sub-divided into areas of law for ease of reading. Here are the summaries of judgments passed in October 2023.

In Chennai Metro Rail Limited Administrative Building v. M/s Transtonnelstrol Agcons (JV) & Anr, it was held that the judgment in ONGC v. AFCONS Gunasa JV was clear that fee could be increased only with the agreement of parties and that in the event of disagreement by one party, the tribunal was obliged to continue with the previous arrangement or decline to act as arbitrator. However, it was held that a breach of that rule by insisting that the increase of fee should prevail does not render the arbitral ineligible to the extent of voiding or terminating the Tribunal’s mandate.

[S Ravindra Bhat J., Aravind Kumar J.]

[Keywords: bias, impartiality, neutrality, arbitrator’s fees, Section 12, 13, 14 and 15 of the Arbitration And Conciliation Act 1996, subject matter bias, pecuniary bias, personal bias, Halliburton Company v. Chubb Bermuda Insurance Limited 2021 [2] All ER 1175]

In M/s Unibros v. All India Radio, the bench held that if a party wanted to support a claim for loss of profit arising from a delayed contract or missed opportunities from other available contracts that it could have earned elsewhere, such a party would have to substantiate the presence of a viable opportunity through compelling evidence in a manner that such evidence should convincingly demonstrate that had the contract been executed promptly, the party could have secured supplementary profits utilizing its existing resources elsewhere. The bench further listed some material which could serve as an illustration as to what could constitute good evidence to prove such a claim. The bench categorically held that formulae such as Hudson’s Formula could not be used to prove loss of profit and to prove such a claim, "one would be required to establish the following conditions: first, there was a delay in the completion of the contract; second, such delay is not attributable to the claimant; third, the claimant’s status as an established contractor, handling substantial projects; and fourth, credible evidence to substantiate the claim of loss of profitability."

[S Ravindra Bhat J., Dipankar Datta J.]

[Keywords: loss of profit, Associated Builders v. Delhi Development Authority (2015) 3 SCC 49, Bharat Cooking Coal Limited v. L.K. Ahuja (2004) 5 SCC 109, The Project Director, NHAI v. M. Hakeem and Another (2021) 9 SCC 1, M/s AT Brij Paul Singh & Ors. v. State of Gujarat (1984) 4 SCC 59, McDermott International Inc. vs. Burn Standard Co. Ltd. and Ors(2006) 11 SCC 181, Hudson’s Formula, public policy of India, ONGC v. Saw Pipes (2003) 5 SCC 705, ex proprio vigore]

In Solaris Chem Tech Industries v. Asst. Executive Engineer, Karnataka Urban Water Supply and Drainage Board, the appellant entered into periodic agreements with the Karnataka Water Supply Board, which is a statutory body, for availing a continuous supply of water for industrial and non-industrial use. The last of the said agreements was executed on November 11, 2011 which prescribed the tariffs payable for availing water supply. A dispute arose when the Board issued a notice citing two Government Orders revising the tariff rates with effect from July 20, 2011 and claiming the difference in bills and arrears from the appellant. The appellant’s writ petition was dismissed by the High Court on account of Clause 11 of the agreement between the parties which prescribed that all disputes shall be referred to the Chief Engineer of the respondent Board. The appellant’s writ appeal also came to be dismissed on the same ground. The Supreme Court disagreed the High Court's decision to uphold the referral of the dispute to Chief Engineer. The Supreme Court concluded that no valid arbitration clause existed between the parties as the same would require adjudication by an impartial third party. Taking note of the judgments of the Supreme Court in Jaipur Jila Dugdh Utpadak Sahkari Sangh Limited vs Ajay Sales and Suppliers, Ellora Paper Mills v. State of M.P and Voestalpine Schienen GmBH v. DMRC, the Court allowed the appeal and remanded the matter back to the High Court.

[D.Y Chandrachud CJ, J.B Pardiwala J, Manoj Misra J]

[Keywords: valid arbitration clause, disqualification/ineligibility under section 12(5), trappings of an arbitral forum]

In Tottempudi Salalith v. State Bank of India & Ors, the respondent initiated CIRP against the appellant for a composite claim, which also included the sums reflected in three recovery certificates issued under the SARFAESI Act in 2015 and 2017. Before the NCLAT, the appellant had taken the plea of limitation and challenged the maintainability of the IBC proceedings on the basis of the doctrine of election of remedies. The Supreme Court rejected the appellant’s contention that initiation of proceedings under the SARFAESI Act would preclude the respondents from initiating proceedings under IBC, by holding that a recovery certificate issued in the SARFAESI proceedings would itself give rise to a fresh cause of action entitling the respondent to initiate the CIRP. It was also held that a recovery certificate issued by DRT under SARFAESI Act is a deemed decree, which ought to entitle the certificate holder to initiate an action under IBC within twelve years as opposed to the period of three years being the limitation period for debts. Holding thus, the Court also ventured further to mould the relief under Article 142 of the Constitution to hold that even if the appellate tribunal refuses to recognize the 2015 recovery certificate as a debt, the same ought to be considered  by the CoC as a claim made pursuant to a public announcement.

[Aniruddha Bose J, Vikram Nath J]

[Keywords: composite claim, recovery certificate, independent cause of action, deemed decree, doctrine of election, SARFAESI proceedings, CIRP]

In Vishal Chelani & Ors v. Debashis Nanda, the question that arose before the Supreme Court was whether a Resolution Professional was justified in rejecting the claims of a class of homebuyers who had successfully obtained a favorable order from the Adjudicating Authorities under the UP RERA Act for refund of deposit, by treating them as a separate sub-class of homebuyers during insolvency proceedings initiated against the respondent construction company. The appellants relied on the definition of a financial creditor under Section 5(8)(f) of the Insolvency and Bankruptcy Code as amended in 2018, and the order of NCLT Mumbai bench in Mr. Natwar Agrawal (HUF) vs. Ms. Sakash Developers & Builders Pvt. Ltd to state that the IBC does not contemplate a distinction between homebuyers who elected to pursue alternative remedies and those who did not. The Court interpreted Section 5 of the IBC read with Section 18 of the UP RERA Act to hold that homebuyers who avail alternative remedies under the UP RERA Act cannot be ipso facto treated as a separate class for the purposes of IBC, specifically in view of the non-obstante clause under Section 238 of the IBC. Holding thus, the appeal was allowed.

[S.Ravindra Bhat J, Aravind Kumar J]

[Keywords: homebuyers, financial creditors, hyper-technical classification, status of the party under IBC, non-obstante clause, UP RERA Act]

In Infrastructure Leasing and Financial Services Ltd. v. HDFC Bank Ltd. & Anr., the bench held that amounts payable on a future date, such as rents, are “property” and capable of transfer. Such an amount, being a “debt”, was an actionable claim under Section 3 of the Transfer of Property Act 1882 and transferrable under Section 130, 131 and 132 of the Transfer of Property Act 1882. On facts, the bench held that the rents had been “assigned” and not “pledged."

[S Ravindra Bhat J., Dipankar Datta J.]

[Keywords: actionable claim, security, due payment, receivables, pledge, Lease Rental Discounting Agreement, Insolvency and Bankruptcy, NCLAT]

In Aditya Khaitan & Ors. v. IL and FS Financial Services Limited, the bench held that as its own order dated March 8, 2021 in In Re: Cognizance for Extension of Limitation, it had not only extended the period of limitation but also extended the periods within which the court or tribunal could condone delay.

[JK Maheshwari J., KV Viswanathan J.]

[Keywords: In Re: Cognizance for Extension of Limitation, lockdown, Covid-19, Vigilantibus non dormientibus jura subveniunt, Sagufa Ahmed case]

In Kum. Geetha, D/o Late Krishna & Ors v. Nanjundaswamy & Ors., the bench held that it was impermissible under law to reject a plaint in part in exercise of a court’s powers under Order VII Rule 11. The impugned order was also set aside as the court below was stated to have judged the matter on merits at the stage of Order 7 Rule 11.

[Pamidighantam Sri Narasimha J., Sudhanshu Dhulia J.]

[Keywords: rejection of plaints, Order VII Rule 11]

In MA Biviji v. Sunita & Ors., it was reiterated that there were three essential ingredients in determining an act of medical negligence which were a duty of care extended to the complainant, breach of that duty of care, and resulting damage, injury or harm caused to the complainant attributable to the said breach of duty. It was noted that a medical practitioner will be held liable for negligence only in circumstances when their conduct fell below the standards of a reasonably competent practitioner. The bench further held that to hold a medical practitioner liable for negligence, a higher threshold limit must be met.

[Hrishikesh Roy J., Manoj Mishra J.]

[Keywords: Nasotracheal Intubation, medical negligence, Jacob Mathew v. State of Punjab, Kusum Sharma v. Batra Hospital]

In Mrs Kalyani Rajan v. Indraprastha Apollo Hospital, the Court was dealing with a case where the patient had been examined by multiple doctors after her operation, treated with medicine, and no evidence was produced by the complainant to establish that the heart attack suffered by the patient had any connection with the operation or that it was on account of negligent post operative care. The Court upheld the order of the NCDRC that the hospital and the doctors were not liable for medical negligence.

[Prashant Kumar Mishra J]

[Keywords: Section 2(c)(iii) of the Consumer Protection Act 1986, medical negligence, post operative medical care]

In Abhishek Sharma v. State of NCT of Delhi, the Supreme Court clarified the procedure to be followed where a case involves multiple dying declarations. In the instant case, the trial court noted no inconsistency between the four dying declarations of the deceased which named the accused by his first name as the cause of death. According to these declarations, the accused had set the deceased on fire upon learning of her rejection of his romantic interest. The trial court found all the four dying declarations to be consistent and the convict-appellant’s contrary version as untrustworthy. The said conclusion was upheld by the High Court. Upon reiterating the essential requirements of a credible dying declaration, the Supreme Court observed that inconsistencies between two dying declarations must be material for their credibility to be shaken, and if so, the prosecution can still corroborate the dying declaration with independent witnesses. The Court observed that testimonies of interested witnesses can be accepted to form the basis of a conviction, provided that such a testimony is carefully scrutinized. On facts, the Court observed that each of the dying declarations on their own suffer from certain drawbacks which affect their credibility, as they do not address the questions arising from the context in which they were made and were silent on material particulars. Therefore, the Court proceeded to acquit the appellant-accused.

[Abhay S. Oka J, Sanjay Karol J]

[Keywords: dying declarations, interested witnesses, material inconsistencies, fit state of mind, presence of magistrate, corroboration from independent witnesses, last seen theory]

In Manish Sisodia v. Central Bureau of Investigation, the bench held that a person can be said to “possess” proceeds of crime when s/he has both dominion and control over the same. In a very factual judgment, the bench found that the only allegation that was free from any perceptible legal challenge was the allegation of unlawful gains to a private person at the cost of public exchequer. The bench concluded by stating that “…detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious.”

[Sanjiv Khanna J., SVN Bhatti J.] [Key Words: Deputy Chief Minister, Aam Aadmi Party, Prevention of Corruption Act, Delhi Liquor Scam, Pernod Ricard, Vijay Madanlal Choudhary, P. Chidambaram v. Directorate of Enforcement]

In Sharanappa @ Sharanappa v. State of Karnataka., the appellant’s conviction under Sections 302 and 201 of the IPC was upheld by the High Court. On appeal, it was held that if the case is based on circumstantial evidence, it is the duty of the prosecution to establish all the circumstances forming a part of the chain. Since the version of the prosecution witness was an improvement over his statement recorded under Section 161 CrPC, his testimony was held to be unreliable.

[Abhay S Oka J., Pankaj Mithal J.] [Key Words : circumstantial evidence, last seen, prosecution, life imprisonment]

In Ambala Parihar v. State of Rajasthan and Ors., the Court took a very serious view of the the respondent (nos. 2 to 4) having filed a civil writ petition for clubbing of eight FIRs against them and obtaining an order of no coercive steps, after no interim relief was granted by the roster judge in the criminal writ petition filed by them under Section 482, CrPC seeking the quashing of the FIRs. The Court held that this was a classic case of forum hunting and gross abuse of the process of law, and the said approach was adopted to avoid the roster judge who had declined the interim relief earlier. Taking up a case not specifically assigned by the Chief Justice in the roster is an act of gross impropriety. The Court added that though a civil writ petition was filed, the learned Judge ought to have converted it into a criminal writ petition.

[Abhay S. Oka J., Pankaj Mithal J.]

[Keywords : forum hunting, gross abuse of process, imposition of costs, roster judge, Section 482 Cr.P.C., quashing and clubbing of FIRs]

Munilakshmi v. Narendra Babu and Anr. arose out of an order of the High Court whereby it granted regular bail to the respondent for offences under Sections 109, 120B, 201, 302, 450 and 454 of the IPC. On an appreciation of facts, it was held that there were overwhelming circumstances indicating the misuse of the concession of bail, and therefore, such concession ought to be forthwith withdrawn. The most vital witnesses turning hostile within a period of 20 days of their examination-in-chief was held not to be a mere coincidence. The Court exercised its power under Article 142 read with Section 311, CrPC to direct recalling of witnesses for a fresh cross examination after ensuring a congenial environment, free from any kind of threat. The bail granted to the respondent was also cancelled.

[Surya Kant J., Dipankar Datta J.]

[Keywords : cancellation of bail, hostile witness, recalling of witness, power under Section 311 Cr.P.C., Article 142 Constitution of India]

In Balvir Singh & Anr. v. State of Uttarakhand, a complaint was made against the first appellant-husband by the father of the deceased wife, who has passed away under mysterious circumstances. Upon conducting a post mortem and forensic analysis of the deceased woman's viscera, traces of aluminum phosphide were discovered. The trial court convicted the appellants upon not receiving a satisfactory answer to the question as to how poison was found, except for the bare statement that the deceased was a heart patient and that the poison is a result of her medication. The trial court disbelieved the narrative of the appellant-accused who maintained that the deceased had passed away while being taken to a hospital in Delhi for treatment. However, no evidence was led by the appellant on the facts of admission to the hospital and the procedures administered upon her. Noting that the cause of death was aluminum phosphide, which could not have been formed by the consumption of the medicines, and that the accused had failed to rebut a reasonable inference of his guilt with a satisfactory explanation of the facts which were especially within his knowledge, the Court upheld the High Court’s order and dismissed the appeal.

[J.B Pardiwala J, Prashant Kumar Mishra J]

[Keywords: cause of death, facts especially within the knowledge of the accused, rebuttal of the presumption of guilt, prima facie case, dubious conduct]

In Ranjan Kumar Chadha v. State of Punjab, the Supreme Court was confronted with the question of whether the rigors of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 should apply for contraband seized by police officers from the bag of an accused person. The Court undertook the exercise of analyzing the phrase “to search any person” and reiterated the judgments of the Court, commencing from State of Punjab v. Balbir Singh (1994) 3 SCC 229. After noting the divergence in the jurisprudence from subsequent judgments which expanded the meaning of ‘person’ to include objects in immediate possession which are inextricably linked to the person, the Court refused to apply the said standard in the present case and held that ‘person’ would mean only the body of the person and not the bag carried by him as per the plain language of the provision.

[J.B Pardiwala J, M.M Sundresh J]

[Keywords: search of the person, immediate possession, inextricably linked to the person, search in the presence of a magistrate, casus omissus, information of rights, recovery memo]

In Bhisham Lal Verma v. State of UP, the question that arose before the Supreme Court was whether a second petition under Section 482 of the Criminal Procedure Code is maintainable on grounds which were available even earlier. In the instant case, the petitioner is an Additional District Magistrate who was accused of embezzlement of public funds in a construction project. The petitioner initially moved the Allahabad High Court under Section 482, CrPC seeking to challenge only the order sanctioning investigation, which was dismissed upon withdrawal with liberty to file the same before a trial court. However, the petitioner again approached the High Court with a modified prayer seeking to quash the sanction order, chargesheet as well as the proceedings. Noting that the chargesheet was already on record at the time of filing of the first quash petition, the Court held that the petitioner cannot file multiple quash petition for grounds which were already available.

[C.T Ravikumar J, Sanjay Kumar J]

[Keywords: Quash petition, available pleas, stalling of proceedings, abuse of process]

In Kamal Prasad & Ors v. State of Madhya Pradesh (Chattisgarh), the charge against the accused was that they had caused the death of the deceased father and son by using country made bombs and inflicting injuries using clubs and lathis. The trial court and the High Court found that the prosecution was successful in establishing guilt of the accused beyond reasonable doubt. In the Supreme Court the accused took two pleas, one relating to the delay in filing of the FIR based on the information given by a prosecution witness (PW-3), and the second relating to non-consideration of the alibi presented by the accused. As regards the first plea, the Court reiterated that no fixed timeline can be prescribed for filing an FIR, so long as the delay is not inordinate, casting doubts on the motive of the prosecution. On facts, it was observed that the delay was not fatal to the prosecution’s case and at the same time, the alibi presented by the accused deserved to be dismissed since no evidence was led to rebut the unimpeachable eyewitness account forming basis of the conviction. The appeals were accordingly dismissed

[Abhay S. Oka J, Sanjay Karol J]

[Keywords: delay in filing FIR, probable alibi, testimonies inspiring confidence, reasonable time to provide information]

In Siby Thomas v. M/s Somany Ceramics Ltd, the Supreme Court reiterated the essential requirements to invoke vicarious liability under Section 141 of the Negotiable Instruments Act, 1881. The instant case concerned a respondent who initiated a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act where the appellant was named as one of the partners of the firm which had issued a cheque that was dishonored. The appellant’s application to quash the complaint and process under Section 482 of the Criminal Procedure Code came to be dismissed by the High Court. The Court noted that except for the statement that the appellant was responsible for the day-to-day affairs of the company in question, there were no specific averments vis-à-vis the appellant which warrants an invocation of vicarious liability. Reiterating the principles laid down in the judgments of Anita Malhotra v. Apparel Export Promotion Council & Anr and Ashok Shewakramani & Ors. v. State of Andhra Pradesh & Anr, the Court allowed the appeal and quashed the proceedings qua only the appellant.

[C.T Ravikumar J, Sanjay Kumar J]

[Keywords: Negotiable Instruments Act, vicarious liability, requirement to disclose an offence, bald statement, day-to-day management of the affairs, manner in which the Director was in charge]

In Manak Chand @ Mani v. State of Haryana, the appellant approached the Supreme Court challenging his conviction and sentence under Section 376 of the Indian Penal Code for the offence of rape. The prosecutrix, at the time of the rape, was 16 years old and the appellant was related to the prosecutrix by virtue of his older brother’s marriage to the prosecutrix’s older sister. The instance of rape was disclosed to the prosecutrix’s parents only a month after the incident and thereafter, attempts were made to settle the issue by marriage. On failure of the same, the prosecutrix’s father had lodged a first information report. The Supreme Court noted that while a conviction on the sole basis of prosecutrix’s testimony is permissible, the same must inspire confidence. Noting that it does not in the present case, the Court proceeded to examine the supporting evidence and noted that there existed a dispute over the exact age of the prosecutrix, and that the school register evidencing her age was not sufficiently proved. Holding thus, the appeal was allowed, and the conviction was set aside.

[Sanjay Kishan Kaul J, Sudhanshu Dhulia J, C.T Ravikumar J]

[Keywords: factum of rape, age of consent prior to 2013 amendment, bone ossification test, age of the prosecutrix] 

In Purushottaman v. State of Tamil Nadu, the advocate of the appellant-accused sought an adjournment before the appellate court which had enlarged him on bail for a conviction under the POCSO Act. The ground stated by the appellant’s advocate was found to be untenable and High Court had cancelled the bail. Noting that the accused cannot be penalized for the error made by the advocate of the accused, and that the directions laid down in Bani Singh v. State of UP ought to be followed in such cases, the Supreme Court proceeded to quash the impugned order and restored the order granting bail to the accused. 

[Abhay S. Oka J, Pankaj Mithal J]

[Keywords: Adjournment on untenable grounds, penalizing the accused, cancellation of bail]

In Birbal Nath v. State of Rajasthan, the Supreme Court held that the credibility of the witnesses must be assessed carefully when there are contradictions in two or more statements given by such a witness, and as such, contradictions per se may not be sufficient to discredit the testimony of such a witness. The case involved the acquittal of all the accused by the High Court following their conviction for charges of murder and grievous hurt by the trial court. The Supreme Court reiterated its earlier ruling in the case of Rammi v. State of M.P. (1999) 8 SCC 649. On facts, the Court noted that the witness in question was an injured eyewitness and from a rural agrarian background. In such a context, the Court observed that discrepancies between earlier statements given to the police and the statements given in examination in chief ought not to be given too much value. Holding thus, the High Court’s order acquitting the accused was set aside.

[Sanjay Kishan Kaul J, Sudhanshu Dhulia J]

[Keywords: Material inconsistency, injured eyewitness, contradictions between earlier and later statements, grounds for acquittal]

In Dharma @ Dharam Singh v. Union of India, the Court held that where the eye witnesses had not identified the accused in court, the accused ought not to have been convicted. Therefore, the Court acquitted the accused.

[AS Oka J., Pankaj Mithal J.]

[Keywords: S. 302 IPC read with S. 34, conviction, concurrent findings]

In M/s Iveco Magirus Brandshutztechnik GMBH v. Nirmal Kishore Bhartiya, the Court held that when a magistrate takes cognisance of an offence under Section 200 of the CrPC based on a prima facie satisfaction that a criminal offence is made out, the magistrate must be satisfied by looking in to the allegations in the complaint, the statements made by the complainant in support of the complaint, the documentary evidence in support, and witness statements. The magistrate is not required to convince themselves that the material is sufficient for conviction. While the accused is not present before the court at such stage, the court may entertain its discretion and also look into whether a defence under the exceptions to the Section is made out.

[Bela M Trivedi J, Dipankar Datta J]

[Keywords: S. 482 CrPC, defamation, magistrate, cognizance, application of judicial mind]

In Rajesh Jain v. Ajay Singh, the Court held that the presumption under Section 139 Negotiable Instruments Act, 1881 can be rebutted by the accused asking the Court to consider the whether the non-existence of a debt / liability is so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt / liability does not exist on a preponderance of probability standard. An accused is not required to prove the negative that the instrument is not issued in discharge of any debt / liability, the Court said. The evidence that the accused leads need not necessarily be direct evidence but may comprise circumstantial evidence or presumption of law or fact. However, as the accused had neither replied to the demand notice nor led any rebuttal evidence in this case and had only stated that he could not pay the entire sum in one go, the Court ruled that there was no credibility perceivable in his defence.

[Aravind Kumar J, SVN Bhatti J]

[Keywords: Negotiable Instruments Act 1881, evidential burden]

In Naresh @ Nehru v. State of Haryana, the Court held that evidence of the eye-witness should be of sterling quality and caliber and it should not only instill confidence in the court to accept the same but it should also be a version of such nature that it can be accepted at its face value. The Court proceeded to set aside a criminal conviction for murder and being part of an unlawful assembly as the police did not record the statement of a person who was allegedly in the company of the accused during the incident.

[S Ravindra Bhat J, Aravind Kumar J]

[Keywords: convictions under S. 302 read with S. 149 IPC]

In Yusuf @ Asif v. State, the Court held that the mere drawal of samples in the presence of a gazetted officer and not a magistrate is insufficient for compliance with Section 52A(2) of the NDPS Act and that where there was an absence of material on record to establish that the samples of the seized contraband were drawn in the presence of the magistrate and that the inventory of the seized contraband was duly certified by the magistrate, such contraband an samples would not be valid piece of primary evidence in trial.

[AS Oka J, Pankaj Mithal J]

[Keywords: Narcotics Control Bureau, heroin, Mahazar, Section 52A Narcotic Drugs and Psychotropic Substances Act 1985]

In Harvinder Singh @ Bachhu v. The State of Himachal Pradesh the Court held that courts cannot declare the reputation of a person based on its opinion merely because a person is educated and god fearing, and that circumstantial evidence should unerringly lead and point to the accused to convict him. While dealing with the facts of the case, the Court also noted that a failure to examine a material witness would not vitiate a trial. The Court proceeded to restore an order of conviction in this case.

[MM Sundresh J, JB Pardiwala J]

[Keywords: conviction, Sections 302, 376, 511, 454, 380 34 IPC, reputation as a fact under Section 3 of the Indian Evidence Act 1872]

In State of Gujarat v. Dilipsinh Kishorsinh Rao, the Court held that the revisional court cannot sit as an appellate court and start appreciating evidence by finding out inconsistency in the statements of witnesses.

[S Ravindra Bhat J, Aravind Kumar J]

[Keywords: Prevention of Corruption Act 1988, Sections 397 and 401 CrPC, order of sanctioning authority]

In Mohd. Rijwan v. State of Haryana, the Court held that where the prosecution’s case was based solely on circumstantial evidence of last seen together and the recovery of the body of the deceased at the instance of the accused, and where the witness did not know the accused prior to the incident and where no test identification parade was conducted, the conviction was liable to be set aside.

[AS Oka J., Pankaj Mithal J.]

[Keywords: conviction, Ss. 34, 201, and 302 IPC, rigorous imprisonment] 

In Pankaj Bansal v. Union of India & Ors., the bench held that the mere passing of an order of remand would be insufficient to validate the appellants’ arrest under Section 19 of the PMLA, 2002, if the same was not in conformity to Section 19 of the Act of 2002. On the facts, the bench found that the remand order was bad in law as the judge failed to ascertain compliance with Section 167, CrPC. The bench held that in order to effect “the true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest,” it would be necessary to furnish to the accused a written copy of grounds of arrest without exception. Since such written communication was not provided to the accused, the bench held that the ED’s acts vitiated Article 22(1) of the Constitution and Section 19(1) of the Act of 2002. The Court further reiterated that the purpose of custodial interrogation was not to extract a confession. The bench found the investigating agency’s behaviour to be unprofessional, clandestine and highhanded. 

[AS Bopanna J., Sanjay Kumar J.] 

[Keywords: Section 19 of the Prevention of Money Laundering Act, 2002, Directorate of Enforcement, M3M Group, Vijay Madanlal Choudhary Versus Union of India & Ors.]

In State of Rajasthan v. Gautam s/o Mohanlal, the bench held that the factum of the accused being a habitual offender or not, under Section 376 IPC read wither the POCSO Act, was entirely irrelevant in view of Section 376E. It was further held that in case of serious crimes, caste cannot per se be a relevant criterion and neither should the financial condition of the accused especially when both the accused and the victim/survivor belonged to the same strata. Sentencing should be focused on both the accused and the crime itself. In the case before it, the bench did not restore the life sentence in view of the age of the accused (22 years old) and since he had already undergone the punishment imposed by the High Court. The bench further directed the Rajasthan High Court to stop the practice of publishing the caste of the accused in its daily cause lists.

[Abhay S Oka J., Pankaj Mithal J.]

[Keywords: POCSO, enhancement of sentence, Section 376(2)(1) IPC]

In Indrakunwar v. The State of Chhattisgarh, the bench acquitted a lady accused of murdering her new-born child. The Supreme Court criticised the approach of the courts below by holding that the accused woman’s right to privacy had been severely hampered and that it was “…apparent that the guilt has been placed on her without any solid foundation thereto since no relationship of any nature whatsoever could be established between her and the deceased child discovered in the dabri." The Court held that the trial court and the High Court’s conclusions were drawn "simply on the basis that the convict-appellant was a woman living alone and had been pregnant.” The Court further noted that “thrusting upon a woman the guilt of having killed a child without any proper evidence, simply because she was living alone in the village, thereby connecting with one another two unrelated aspects; reinforces the cultural stereotypes and gendered identities which this Court has explicitly warned against."

[Abhay S Oka J., Sanjay Karol J.]

[Keywords: privacy, women’s rights, woman's fundamental right to equality and privacy, Section 313 CrPC, circumstantial evidence, Sharad Birdhichand Sarda]

In Initiatives for Inclusion Foundation & Anr. v. Union of India & Ors., the bench passed a slew of directions for the effective implementation of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 read with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules 2013.

[S Ravindra Bhat J., Dipankar Datta J.]

[Keywords: POSH, coordination between Union Government and State/UT Governments, nodal officer, public authorities, reporting authority, fine collecting authority, training and capacity building, larger efforts towards awareness, annual compliance reports, appointment of district officers]

In Naveen @ Ajay v. The State of Madhya Pradesh, the bench set aside the death penalty awarded to the accused on the charge of rape and murder of a minor child. The bench noted the trial was conducted with undue haste and the “Trial Court treated the accused as if he is carrying a magic wand which is available to produce highly qualified experts, who are government servants, on a phone call” and that there “was no opportunity, in the real sense, to the appellant to cross-examine the experts.” The Court directed a de novo trial and noted that since the case was based on circumstantial evidence, each and every piece of evidence had to be proved, particularly the DNA report, the FSL report and viscera report. The Court also held that it was not possible to define what a fair trial was and that it was depended on facts and circumstances of each case.

[BR Gavai J., Pamidighantam Sri Narsimha J., Prashant Kumar Mishra J.]

[Keywords: rape, Protection of Children from Sexual Offences Act 2012, Sections 363, 366-A, 376(A), 376(2)(i), 376(2)(j), 376(2)(k), 376(2)(m), 302 and 201 IPC, Section 5(m), 5(i) read with Section 6 of POCSO, Section 174 CRPC, Bashira vs. State of U.P., AIR 1968 SC 1313, legal aid, amicus curiae, Anokhilal vs. State of Madhya Pradesh, (2019) 20 SCC 196, Best Bakery trial, judicial calm, evidentiary value of a DNA Report]

In Paranagouda and Another v. The State of Karnataka and Another, the Court acquitted the appellants for offences punishable under Section 304B of the IPC and Sections 3 and 4 of the Dowry Prohibition Act. However, the Court convicted the appellants for the offences punishable under Section 306 and Section 498A read with Section 34 IPC. The Court noted that while the deceased’s dying declaration was of unimpeachable character, though not conclusive of any “proximate nexus to the act of committing suicide on account of preceding demand for dowry or in other words the demand of dowry on any particular date having triggered the deceased to commit the suicide or forced her to self-immolate”, the deceased person's parents and other witnesses, who had recorded their statement before the Investigating Officer with regard to alleged demand of dowry, had turned hostile and that they did not support the prosecution and had denied having made any such statement before police.

[S Ravindra Bhat J, Aravind Kumar J.]

[Keywords: failure to frame charge, “soon before her death”, dowry death]

In Ruchir Rastogi v. Pankaj Rastogi and Others Etc., it was held that the violation of an injunction order to preserve certain assets till the passing of an arbitral award amounted to theft under Section 378 of the IPC.

[Vikram Nath J., Ahsanuddin Amanullah J.]

[Keywords: collusive litigation, theft, criminal intimidation, quashing, Section 482 CrPC]

In Dasanglu Pul v. Lupalum Kri, the bench advocated a purposive interpretation of election laws and held that the appellant, being the third wife of the late Chief Minister of Arunachal Pradesh, Khaliko Pul, was not guilty of non-disclosure of her assets since her alleged non-disclosure about her late husband’s assets did not pertain to properties that devolved upon her. In other words, the appellant was held not guilty of non-disclosure since she was not the legal heir of the properties that the respondent alleged that she ought to have disclosed about.

[AS Bopanna J., Pamidighantam Sri Narsimha J.]

[Keywords: Khaliko Phul, Representation of People Act 1951, corrupt practices, Conduct of Election Rules 1961, defect of substantial character, Mishmi tribe]

In Debashis Paul v. Amal Boral, the appellant landowners filed a suit for eviction against the respondent tenant, who had belatedly filed an application under Section 7 of the West Bengal Tenancy Act which was rejected by the trial court for being barred by limitation. However, the respondent succeeded before the High Court which permitted him to contest the suit for eviction on the basis of Section 5 of the Limitation Act. The reason provided by the respondent for delay in preferring a Section 7 application was improper legal advice. The appellant contended that Section 7(b) of the West Bengal Act prescribes a lesser time period of one month for deposit of arrears before an application can be filed and must prevail over the general law of limitation. Accepting the said contention and reiterating the legal position laid down in the case of Bijay Kumar Singh v. Amit Kumar Chamariya, the Supreme Court held that specific provisions of the West Bengal Tenancy Act must prevail over the general law of limitation. On facts, the Court noted that the respondent had not paid the rent for 142 months while remaining in possession. Holding thus, the Court set aside the High Court’s order.

[Sanjay Kishan Kaul J, Sudhanshu Dhulia J]

[Keywords: West Bengal Tenancy Act, deposit of arrears, recourse to the general provision under Limitation Act, combined reading of the two statutes]

In State of UP v. Ehsan, the Supreme Court held that possession is a question of fact and while there was no hard and fast rule that a question of fact cannot be determined in writ jurisdiction, in the event of a serious dispute on a question of fact, writ courts must ordinarily refrain from deciding it, especially where there is an alternative remedy. Additionally, it was observed that where the High Court had earlier declared that if actual possession of surplus land had not been taken prior to the cut-off date under the Urban Land (Ceiling and Regulation) Repeal Act 1999, the proceedings under the Ceiling Act, 1976 would abate and if actual possession had been taken by the cut-off date, the proceedings would not abate, then a court of competent jurisdiction could have entertained a suit and granted relief.

[PS Narasimha J, Manoj Misra J]

[Keywords: Urban Land (Ceiling and Regulation) Repeal Act 1999, writ remedy, exercise of writ jurisdiction]

In Pradeep Mehra v. Harjiwan J. Jethwa (D Thr. L.R), the Supreme Court reiterated that under Section 47 of the Civil Procedure Code, the executing court cannot go behind the decree. The appellant landowner filed a suit for eviction against the respondent in which a consent decree was drawn, which upon default became a decree in the appellant’s favour. Before the executing court, the respondents objected to the decree, which was made four years after the order of the court allowing execution. The executing court rejected the respondents’ objection, which was challenged in the revision court that then reversed the executing court’s order. The appellant’s writ petition before the High Court challenging the revision court’s order was dismissed. Noting the slow progress of civil suits in India and the rampant misuse of procedural laws such as section 47 of the Civil Procedure Code, the Supreme Court held that the decree had attained finality in the appellant’s favour and the executing court is barred by res judicata to entertain objections that would impeach the decree. Holding thus, the executing court’s order in appellant’s favour was restored.

[Sanjay Kishan Kaul J, Sudhanshu Dhulia J]

[Keywords: questions that can be decided by the executing court, res judicata, inordinate delay, decree attaining finality, maintainability of objection]

In Urban Improvement Trust, Bikaner v. Gordhan Dass (D) through LRs & Others, there was a split decision between two judges of the Supreme Court. Justice Hrishikesh Roy, replied on various academic journals and judgments alike to stress the importance of procedural safeguards in land acquisition. He held that in the absence of notice to the actual owner under Section 52 of the 1959 Act, land acquisition proceedings are legally vitiated and therefore the affected owner should be entitled to seek relief from the civil court. In contrast, Justice Manoj Mishra held that the civil suit was barred as it related to land covered by acquisition notification and that it was also barred by Section 207 and 256 of the Rajasthan Tenancy Act 1955.

[Hrishikesh Roy J., Manoj Mishra J.]

[Keywords: Rajasthan Urban Improvement Act 1959, eminent domain, colonial practices, fundamental judicial procedure, Anathula Sudhakar v P. Buchi Reddy, Joint Anti-Fascist Refugee Committee v Mc Grath, Section 114 illustration (e) of the Indian Evidence Act 1872, split decision]

In M/s Kewal Court Pvt Ltd v. State of West Bengal, the Court referred the interpretation of Sections 2(g), 2(q), and 11 of the Urban Land (Ceiling and Regulation) Act 1976 to a larger bench of the Supreme Court.

[Surya Kant J, Dipankar Datta J]

[Keywords: Urban Land (Ceiling and Regulation) Act 1976, Urban Land (Ceiling and Regulation) Repeal Act 1999, Article 252 of the Constitution of India Seventh Schedule to the Constitution, vacant land]

In Sheo Raj Singh v. Union of India, the Court held that condonation of delay was a discretionary power available to courts and the exercise of such discretion must necessarily depend upon the sufficiency of cause being shown or on the acceptability of the explanation (and not excuse), the length of the delay being immaterial.

[Bela M Trivedi J, Dipankar Datta J, ]

[Keywords: Section 5 of the Limitation Act 1963, Land Acquisition Act 1894]

In Karnataka State Electronics Development Corporation Ltd. V. Kumaon Entertainment and Hospitalities Pvt Ltd, the respondent was allotted land and wanted to change its use from that for IT-related industry to the hospitality sector in order to set up a hotel. The petitioner-corporation had initially stated a lower incorrect amount for conversion charges. The Court held that after the petitioner later realised that it was entitled to a higher sum, it could charge the higher sum in terms of extant regulations.

[Vikram Nath J, Ahsanuddin Amanullah J]

[Keywords: electronic city, allotment of land, Government Audit Party, loss to the public exchequer]

In The Central Warehousing Corporation v. Thakur Dwara Kalan Ul-Maruf Baraglan Wala (Dead) & Ors., the bench, on an analysis of various judgments, observed that the consistent view of the Supreme Court for awarding an annual increase to determine the just compensation varied from case to case and that the period to be applied was a major factor to be considered. In the case before it, the bench reduced the 8% annual increase with cumulative effect as the period was quite large, at eleven years. The bench noted that the interest rate could be higher if the period was shorter.

[Vikram Nath J., Ahsanuddin Amanullah J.]

[Keywords: fair and just compensation]

In Sanjay Kumar Agarwal v. State Tax Officer (1) & Anr., the bench dismissed a review petition against the Court’s judgment dated September 6, 2022 [2022 INSC 927]. It held that it was a well settled proposition of law that a co-ordinate bench cannot comment upon the discretion exercised or judgment rendered by another co-ordinate bench of the same strength. It was further held that if a bench does not accept as correct the decision on a question of law of another bench of equal strength, the only proper course to adopt would be to refer the matter to the larger bench for an authoritative decision. Otherwise, the law would be thrown into a state of uncertainty by reason of conflicting decisions. As regards the exercise of review jurisdiction of the Court, it was clarified that a review may be moved not necessarily by a party to the dispute but also a third party. The Court summarised its powers under Order 47 of the Supreme Court Rules 2013 read with Article 145 of the Constitution of India as under:

i. A judgment is open to review, inter alia, if there is a mistake or an error apparent on the face of the record.

ii. A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.

iii. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review.

iv. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected.”

v. A Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise.”

vi. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.

vii. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

viii. Even the change in law or subsequent decision/ judgment of a co-ordinate or larger bench by itself cannot be regarded as a ground for review.

[AS Bopanna J., Bela Trivedi J.]

[Keywords: review jurisdiction, waterfall mechanism, practice and procedure, Section 53 of the Insolvency and Bankruptcy Code 2016, Gujarat Value Added Tax Act]

In State Bank of India & Ors. v. P. Zadenga, the bench held that that a departmental proceeding pending criminal trial would not warrant an automatic stay unless a complicated question of law is involved. It was further held that an acquittal in a criminal case ipso facto would not be tantamount to closure or culmination of proceedings in favour of a delinquent employee. It was reiterated that a bank officer is required to exercise higher standards of honesty and integrity.

[Hrishikesh Roy J., Sanjay Karol J.]

[Keywords: simultaneous criminal and departmental proceedings, principles of natural justice, stay on disciplinary proceedings]

In UCO Bank and Ors v. M.B. Motwani (Dead) THR. LRS. and Ors., the challenge was to a judgment of the High Court setting aside the punishment of dismissal against the respondent no. 1. The Court noted that the employee had attained the age of superannuation on July 31, 1991, whereas the chargesheet was issued to him on December 7, 1991, and therefore, on the date of his superannuation, no disciplinary proceedings were pending against him. Accordingly, the order of punishment was set aside. As a sequel, all the service benefits due to him along with interest at the rate of 7% from the date of his retirement till the date of payment were directed to be paid by the bank.

[Hima Kohli J., Rajesh Bindal J.]

[Keywords : Disciplinary proceedings, superannuation, punishment of dismissal from service, service benefits, departmental proceedings]

M/s Mathosri Manikbai Kothari College of Visual Arts v. The Assistant of Provident Fund Commissioner concerned applicability of the Employee Provident Fund (EPF) Act to the two institutions run by the Ideal Fine Arts Society, that is, the Ideal Institute of Fine Arts, which employed eight persons, and Mathosri Manikbai Kothari College of Visual Arts, which employed eighteen persons, both being run in the same campus. Under the EPF Act, if any establishment employs 20 or more persons, the same shall be covered under Section 1(3)(b) of the EPF Act for grant of benefits to the employees. The Court relied, inter alia, upon Noor Niwas Nursery Public School (2001)1 SCC 1 to hold that since both the institutes were managed and controlled by the same management and run in the same campus, therefore, the EPF Act would apply. The fact that the two Institutes were established at different times was held to be not a relevant factor in determining the applicability of the Act.

[Hima Kohli J., Rajesh Bindal J.]

[Keywords: EPF Act, welfare legislation, functional integrity, unity of employment, common management, separate legal entities]

In Mohamed Ibrahim v. The Chairman and Managing Director and Ors., the challenge was to the dismissal of a writ petition by the High Court, whereby the petitioner had claimed arbitrariness in declining his candidature as Assistant Engineer on the ground that he was colour blind, though he had qualified in the recruitment process. The Court noted that TANGEDCO had nowhere indicated in express terms that colour vision deficiency in any form or degree is a bar to employment. It was held that TANGEDCO’s units and organisational structure have sufficient possibility of accommodating the appellant in a unit or department which may not require utilisation of skills that involve intense engagement with colour. Accordingly, the petitioner was granted full continuity of service with 50% of full arrears of salary and all other allowances.

[S Ravindra Bhat J., Aravind Kumar J.]

[Keywords: Colour blindness, TANGEDCO,  bar to employment, Rights of Persons with Disabilities Act, 2016, affirmative action, reasonable accommodation, continuity of service, arrears of salary]

In Director General of Police Tamil Nadu, Mylapore v. J. Raghunees., the Court held that though the respondent may be eligible for appointment, since he did not disclose the complete information with regard to his involvement in a criminal case, wherein he might have been acquitted earlier even before the verification, he cannot escape the guilt of suppressing material information in the verification form. Therefore, the decision of the Department to not give him the offer of employment on the said ground was upheld.

[Abhay S. Oka J., Pankaj Mithal J.]

[Keywords : suppression of material fact, character and antecedents, employment, honourable acquittal, acquittal for want of evidence, criminal case]

In Sudhir Singh v. State of UP, the appellants preferred an appeal against the High Court’s judgment rejecting their claim for the post of Village Development Officer announced by the UP Subordinate Services Commission. The appellants applied for the said post under the quota of ex-servicemen of the Indian Army. They were summoned by the respondent Commission prior to the issue of appointment letters on a temporary basis. In the interregnum, the respondent commission issued a show cause notice to the appellant to show to why their appointment was not invalid. The two grounds triggering the show cause notice concerned the employment of the appellant in the Indian Army as on the date of submission of application as well as lack of possession of a CC Certificate issued by NIELIT. The Supreme Court reiterated that eligibility of an applicant ought to be reckoned as on the date of cut/off  or the last date of submission of application forms. The Court proceeded to find the appellants were not ‘ex-servicemen’ as on date of the submission of application form. Noting that appellants cannot be deemed as ‘ex-servicemen’ from a prospective date, the ruling in Rakesh Kumar Sharma v State (NCT of Delhi), (2013) 11 SCC 58 was reiterated to hold that the impugned judgment warranted no interference.

[Vikram Nath J, Ahsanuddin Amanullah J]

[Keywords: deemed Ex-Servicemen from a prospective date, date of advertisement, eligibility, doctrine of equality]

In C Anil Chandran v. M.K Raghavan and Ors, the appellant was appointed as an Overseer Grade-III in the Irrigation Department in 1989. Subsequently, the Kerala High Court in 1992 directed his appointment as Assistant Engineer instead of Overseer Grade-III from the date he was appointed to that post on the ground that he is an engineering graduate. This was later challenged by the State. The High Court directed that the appellant was to be given seniority in the cadre of Assistant Engineer from the date of his appointment. Thereafter, the appellant was appointed as an Assistant Engineer (Mechanical) in the Irrigation Department on March 1, 1995. The private-respondents, who joined service as Overseer Grade-I and were holding the qualification of Diploma were promoted as Assistant Engineer (Mechanical) with effect from March 15, 1995. In 2004, a writ petition was filed by them in which the High Court directed that their cases for promotion in the quota reserved for their category be considered. Subsequently, the Chief Engineer, in a 2005 order, granted promotion to the private respondents as Assistant Engineers with effect from August 1, 1993 (a back date). The Division Bench observed that ante-dating of the promotion of the private respondents did not adversely affect the appellants. Hence, the High Court restored the 2005 order of the Chief Engineer granting seniority to the private respondents from back date. The apex court noted that the promotion of the private respondents did not prejudice the appellant, since they were prescribed different quotas for promotion as the appellant is a graduate degree holder and the private respondents were diploma holders.

[Hima Kohli J, Rajesh Bindal J]

[Keywords: ante-dating of seniority, different quotas, adverse effect on promotion]

In Bichitrananda Behera v. State of Orissa and Others, the bench held that the Supreme Court has repeatedly rendered judgments laying down that in service matters, delay and laches were vital, juxtaposed with the sign of acquiescence. The bench made a further interesting observation that, “it is not incorrect to point out that it is fairly well-known that schools are started much prior to getting official permission/recognition, which follows after many years, if at all."

[Vikram Nath J., Ahsanuddin Amanullah J.]

[Keywords: the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974, Delay, laches and acquiescence]

In Union of India v. Uzair Imran & Ors., it was reiterated that if qualifications mentioned in an advertisement inviting applications are at variance with statutorily prescribed qualifications, it is the latter that would prevail. Holding that the respondents had been discriminated against, the bench used its powers under Article 142 to absorb the respondent no. 3. The bench stated that though a candidate has no right to being appointed, s/he had the right to be considered under Article 16 and not to be discriminated against under Article 14.

[Bela M. Trivedi J., Dipankar Datta J.]

[Keywords: legitimate expectation, discrimination]

In Divya v. Union of India, the Court held that the benefit of reservation under the EWS category can be availed only upon possession of the income and asset certificate (I&AC) for the corresponding financial year, issued by a competent authority which had been submitted before the fixed date. The Court also held that the CSE Rules, 2022 had the force of law, the Court could not interfere with the rejection of certain candidates by the UPSC, and that mistake/omission/negligence of an applicant cannot be condoned to extend the deadline for production of documents.

[JK Maheshwari J, KV Vishwanathan J]

[Keywords: EWS, economically weaker section, reservation, Office Memoranda dated 19.01.2019 and 31.01.2019, Civil Services Examination Rules 2022, UPSC]

In Jammu Development Authority v. S Paramjeet Singh, the Court held that where an allottee failed to pay consideration within the stipulated timeline, the plot allotted to him ought to be re-auctioned and that the earnest money paid by such allotee ought to be forfeited.

[Sanjiv Khanna J. and SVN Bhatti J.]

[Keywords: deposit of earnest money, writ petition, public auction, fresh auction]

In Union Bank of India v. Rajat Infrastructure Pvt. Ltd. and Ors. and M/s. Sunview Assets Pvt. Ltd., the Court rejected the prayer of the applicant, made by way of a Miscellaneous Application, for a third extension of time to deposit the balance sale consideration towards the auction purchase since the relevant rules did not permit the same. It was further held, relying on Supreme Court Bar Association v. Union of India (1998) 4 SCC 409, that the Court cannot exercise powers under Article 142 of the Constitution of India in ignorance of any substantive statutory provision. 

[Bela M. Trivedi J., Aniruddha Bose J.]

[Keywords : Auction purchase, sale consideration, Miscellaneous Application, Article 142, plenary powers, statutory provisions]

In Yashpal Jain v. Sushila Devi and Ors., the issue concerned the right of the appellant to be brought on record as legal representative of the deceased plaintiff, which the Court allowed. More importantly, the Supreme Court issued certain general directions for speedy disposal of cases, including the following:

i. All courts at district and taluka levels shall ensure proper execution of the summons and in a time bound manner as prescribed under Order V Rule (2) of CPC and same shall be monitored by Principal District Judges and after collating the statistics, they shall forward the same to be placed before the committee constituted by the High Court for its consideration and monitoring.

ii. All courts at district and taluka level shall ensure that written statement is filed within the prescribed limit under Order VIII Rule 1 and assign reasons in writing as to why the time limit is being extended beyond 30 days.

iii. All courts at districts and talukas shall ensure that after the pleadings are complete, the parties should be called upon to appear on the day fixed as indicated in Order X and record the admissions and denials and at the option of the parties, shall fix the date of appearance. In the event of ADR not being fruitful, the trial would commence on the next day so fixed and would proceed on day-to-day basis.

iv. In the event of the party’s failure to opt for ADR, namely resolution of dispute as prescribed under Section 89(1), the court should frame the issues for its determination within one week preferably, in the open court.

v. Fixing of the date of trial shall be in consultation with the learned advocates appearing for the parties to enable them to adjust their calendar. Once the date of trial is fixed, the trial should proceed to the extent possible, on day-to-day basis.

vi. Trial judges shall maintain the diary for ensuring that only such number of cases as can be handled on any given day for trial so as to avoid overcrowding of the cases.

vii. The counsel representing the parties may be enlightened on the provisions of Order XI and Order XII so as to narrow down the scope of dispute and it would be also the onerous responsibility of the Bar Associations and Bar Councils to have periodical refresher courses, preferably by virtual mode.

viii. The trial courts shall, without fail, comply with the provisions of Rule 1 of Order XVII and once the trial has commenced it shall proceed day to day.

ix. The courts shall give meaningful effect to the provisions for payment of costs for ensuring that no adjournment is sought for procrastination of the litigation;

x. At conclusion of trial, the oral arguments shall be heard immediately and judgment be pronounced within the period stipulated under Order XX of CPC.

xi. The statistics relating to the cases pending in each court beyond 5 years shall be forwarded by every presiding officer to the Principal District Judge once in a month who shall forward it to the review committee constituted by the High Courts.

xii. The committee so constituted by the Hon’ble Chief Justice of the respective States shall meet at least once in two months and direct such corrective measures to be taken by concerned court as deemed fit and shall also monitor the old cases (preferably which are pending for more than 5 years) constantly.

[S. Ravindra Bhat J., Aravind Kumar J.]

[Keywords : legal heir, legal representative, speedy disposal, delay in trial, summons, framing of issues, day to day hearing, Review Committee]

In Nikesh Kumar v. Suman Devi., the Supreme Court granted divorce to the parties in exercise of power under Article 142(1) of the Constitution of India on the ground of irretrievable breakdown of marriage. In doing so, the Court reiterated the factors to be weighed in exercising this power, as laid down in Shilpa Sailesh v. Varun Sreenivasan (2023) SCCOnline SC 544, that is, the period of time the parties have cohabited after marriage, when the parties last cohabited, the nature of allegations made by the parties against each other and their family members, the cumulative impact on the personal relationship, attempts made to settle, the period of separation should be sufficiently long (six years or more).

[Sanjiv Khanna J., S.V.N. Bhatti J.]

[Keywords : divorce, irretrievable breakdown of marriage, Article 142, maintenance amount]

In Mumtaz Yarud Dowla Wakf v. M/S Badam Balakrishna Hotel Pvt. Ltd. and Ors., the Court relied, inter alia, upon Rashid Wali Beg v. Farid Pindari & Ors. (2022) 4 SCC 414, to hold that the Wakf Tribunal has got sufficient jurisdiction to try every suit pertaining to either a Wakf or a Wakf property, notwithstanding the nature of the relief concerned. It was further held that the 2013 amendment to the Wakf Act was procedural in nature, and therefore, had to be applied retrospectively in the context of change of forum and jurisdictional provisions.

[M.M. Sundresh J., Prashant Kumar Mishra J.]

[Keywords: removing the basis of judgment, procedural amendment, retrospective amendment, Wakf Tribunal, pleas of nullity, execution of decree]

In Sarvesh Mathur v. The Registrar General, Punjab and Haryana High Court, a three-judge bench of the Supreme Court issued directions to all High Courts and tribunals constituted under statutes to incorporate a Standard Operating Procedure for Video-Conferencing of hearings before such Courts and Tribunals. The Court had, on an earlier date, called upon the Registrar-generals of all the High Court to provide data on the level upto which hybrid hearings/ Virtual hearings are taking place. Noting the disparities between different High Courts and the overall low figure of virtual hearings, the Court proceeded to issue directions, inter alia, directing the State Governments to ensure adequate funding and infrastructural support to ensure that all High Courts allow for virtual hearings.

[D.Y Chandrachud CJ, J.B Pardiwala J, Manoj Misra J]

[Keywords: Virtual Conference/hybrid hearings, funding by state governments, Standard Operating Procedure, access to justice, digital infrastructure]

In Orbit Electricals v. Deepak Kishan Chhabria, the Supreme Court took exception to the conduct of a bench of the NCLAT. The instant case involved the NCLAT issuing a status quo order with respect to the AGM of the appellant company which came to be vacated by the Supreme Court. In its order vacating the NCLAT’s order, the Court observed that the scrutinizer appointed should disclose the result of the AGM on a particular resolution which was the bone of contention, while also directing that the NCLAT should be apprised of the fact of the AGM based on the scrutinizer’s report before the NCLAT could deliver a judgment. Despite the above direction, it was noted by the Supreme Court, on the basis of the affidavits tendered by the parties as well as the CCTV and transcript of the NCLAT proceedings on the relevant date, that the NCLAT proceeded to pass the judgment in respondent’s appeal, despite the Supreme Court’s order to the contrary. The Court opined that the NCLAT ought to have deferred the hearing until the Supreme Court’s order could be brought on record there, instead of passing the judgment.  The Court proceeded to censure the Member (Judicial) of the NCLAT bench after noting wilful defiance of the Supreme Court’s order.

[D.Y Chandrachud CJ, J.B Pardiwala J, Manoj Misra J]

[Keywords: Wilful defiance, vacation of interim stay, Report of the AGM, Order taken on record, transcript and CCTV footage, appraisal to the bench]

In Kishan Chand Jain v. Union of India, the Court directed that all State Information Commissions must provide hybrid modes of hearing to all litigants for hearing complaints and appeals and that the links to the same must be mentioned in the daily cause list of the Information Commissions across the country, that e-filing streamlining should be carried out and that such directions were to be operationalized by December 31, 2023.

[Dr DY Chandrachud CJI, JB Pardiwala J, Manoj Mishra J]

[Keywords: directions for the better functioning of State Information Commissions, RTI, Right to Information Act 2005, Fundamental Rights to expression and life]

Writ

In Pankaj Kumar Tiwari v. Indian Overseas Bank Asset Recovery Management Branch, the Court held that where an appeal was available under Order XLIII CPC, no writ under Article 226 ought to be entertained.

[AS Oka J, Pankaj Mithal J.]

[Keywords: nationalized bank, equitable mortgage, S. 14 SARFAESI Act 2002, Order XL Rule 1 CPC]

Electricity

In Nabha Power Limited v. Punjab State Power Corporation Limited, the Court imposed costs of ₹ 65 lakhs on the respondent for a failure to comply with previous orders of the Court.

[Sanjay Kishan Kaul J, Sudhanshu Dhulia J, Aravind Kumar J]

[Keywords: Electricity Act 2002, Notice of Dispute, contempt petition]

In M/s Dakshin Gujarat Vij Company Limited v. M/s Gayatri Shakti Paper and Board Limited, the Court held that as Rule 3(1)(a) did not prescribe a maximum threshold, a captive user owning 100% of the captive generating plant and consuming more than 51% of the electricity generated and a captive user owning 26% of the CGP and consuming 51% or more of the electricity would qualify as captive users. The Court also held that the person setting up the plant may be different from the consumer and that transfer of captive status through transfer of ownership was permitted under the Electricity Act 2003. The Court also held that the minimum ownership threshold and minimum consumption threshold had to be satisfied throughout the year and not just at the end of the relevant financial year. Additionally, the unitary qualifying ratio of the consumption to shareholding requirements had to be within a range of 1.764% to 2.156%. The Court held that weighted average should be applied when there is a change of ownership, shareholding, or consumption to ensure compliance of the proportional electricity consumption requirement. The Court also held that Rule 3(1)(b) gave flexibility and an option where a generating station incorporated as an SPV has multiple generating unites and that it does not override the eligibility criteria under Rule 3(1)(a).  

[Sanjiv Khanna J, MM Sundresh J]

[Keywords: interpretation of the Electricity Act 2003, Electricity Rules 2005, captive generating plant, captive user]

In Gridco Ltd. V. Western Electricity Supply Company of Orissa, the Court held that per Section 125 of the Electricity Act, an appeal to the Supreme Court could be entertained only on the grounds set out in Section 100 CPC; that the function of a State Electricity Regulatory Commission while fixing tariff is quasi-judicial in nature; that the Court ought to be slow in interfering with findings of the Commission or APTEL as the technical member in the APTEL has an experience of more than 25 years; that DISCOMS have locus standi to challenge BST tariff orders; that the APTEL was correct to conclude that GRIDCO ought to recover principal loan amounts from DISCOMS, as interest was cost incurred by GRIDCO, and that the cost of the same could be passed through to the consumer; and also upheld other rulings of the APTEL.

[Sanjay Kishan Kaul J, AS Oka J]

[Keywords: Electricity Act 2003, Orissa electricity Regulatory Commission, tariff]

In Assessing Officer Circle (International Taxation) 2(2)(2) v. M/s Nestle SA, the bench declared that:

i. A notification under Section 90(1) of the Income Tax Act,1961 is necessary and a mandatory condition for a court, authority, or tribunal to give effect to a Double Taxation Avoidance Agreement (DTAA), or any protocol changing its terms or conditions, which has the effect of altering the existing provisions of law.

ii. The fact that a stipulation in a DTAA or a Protocol with one nation requires same treatment in respect to a matter covered by its terms, subsequent to its being entered into when another nation (which is member of a multilateral organization such as OECD) is given better treatment, does not automatically lead to integration of such term extending the same benefit in regard to a matter covered in the DTAA of the first nation, which entered into DTAA with India. In such event, the terms of the earlier DTAA require to be amended through a separate notification under Section 90.

iii. The interpretation of the expression “is”, as appearing in Clause IV(2) of the India-Netherlands Double Tax Avoidance Agreement, has present signification. For a party to claim benefit of a “same treatment” clause, based on entry of DTAA between India and another State which is member of OECD, the relevant date is the date of entering into a treaty with India and not a later date, when, after entering into DTAA with India, such country becomes an OECD member in terms of India’s practice.

[S Ravindra Bhat J., Dipankar Datta J.]

[Keywords: interpretation of the word “is” in Clause IV(2) of the India Netherlands Double Tax Avoidance Agreement, treaty practice of India in relation to DTAA, Netherlands, France, Switzerland, Vienna Convention on Law of Treaties, Income Tax Act 1961, MFN, Most Favoured Nation]

In CIT, Delhi v. Bharti Hexacom Ltd., the Department challenged the judgment of the Delhi High Court confirming the ITAT judgment holding that the variable license fee paid by the assesses under the New Telecom Policy, 1999 is revenue expenditure and is to be deducted under Section 37 of the Income Tax Act, 1961. The Court held that apportionment of expenditure incurred towards establishing, operating and maintaining telecom services as partly revenue and partly capital by dividing the license fee into two periods, that is, before and after July 31, 1999 (the date set out in the Policy) was incorrect. It was held that the nature of payment being for the same purpose cannot have a different characterisation merely because of the change in the manner or measure of payment. Since it was a payment which was intrinsic to the existence of license as well as trade itself, it had to be characterised as a “capital expenditure.” The judgment of the High Court was, therefore, set aside.

[B.V. Nagarathna J., Ujjal Bhuyan J.]

[Keywords : Revenue expenditure, New Telecom Policy, 1999, entry fee, Annual Gross Revenue, capital expenditure, Income Tax Act, 1961, cellular mobile services, India Telegraph Act, 1885]

In Commissioner of Customs (Imports), Mumbai v. M/s Ganpati Overseas Through its Proprietor Through its Proprietor Shri Yashpal Sharma & Anr., the bench upheld the judgment of the CESTAT which said that the Customs Department could not be allowed to rely on mere photocopies without proving contents. It was held that the Department was under an obligation to provide cogent reasons before rejecting invoices inasmuch as when transaction value was rejected under Rule 4 of the Customs Valuation Rules 1988, in deviation from Rule 3, the Department was obligated to operate sequentially under Rules 5 to 8. The bench further held that since a customs officer was not a police officer, s/he was only entitled to serve summons upon a person to produce a document or other thing or to give evidence etc. for collecting evidence. However, s/he neither had the power to investigate a customs infringement as an offence nor the power to submit a report under the Code of Criminal Procedure. It was noted that a statement made before a customs official was covered under Section 108 of the Customs Act and not Section 161 of the CrPC as the person making such a statement was not an accused. However, such a statement could not be coerced.

[BV Nagarathna J., Ujjal Bhuyan J.]

[Customs Valuation (Determination of Price of Imported Goods) Rules 1988, intelligence input, Directorate of Revenue Intelligence, Section 108 of the Customs Act, Section 24 and 25 of the Indian Evidence Act 1872, natural justice]

In State of Telangana and Ors. v. M/S Tirumala Constructions., the issue involved interpretation of Section 19 of the Constitution (101st Amendment) Act, 2016, which introduced a framework to enable introduction of Goods and Services Tax (GST). The Court held as follows:

(i) Section 19 and Article 246A enacted in exercise of constituent power, formed part of the transitional arrangement for the limited duration of its operation, and had the effect of continuing the operation of inconsistent laws for the period specified by it and, by virtue of its operation, allowed State legislatures and Parliament to amend or repeal such existing laws.

(ii) Since other provisions of the said Amendment Act had the effect of deleting heads of legislation from List I and List II (of the Seventh Schedule to the Constitution), both Section 19 and Article 246A reflected the constituent expression that existing laws would continue and could be amended. As a result, there were no limitations on the power to amend.

(iii) The amendments in question, made to the Telangana VAT Act and the Gujarat VAT Act after July 1, 2017, were correctly held void for want of legislative competence, by the two High Courts (Telangana and Gujarat High Court). The judgment of the Bombay High Court was, for the above reasons, held to be in error. It was set aside and the amendment to the Maharashtra Act, to the extent it required pre-deposit, was held to be void.

[.S. Ravindra Bhat J., Aravind Kumar J.]

[Keywords: Goods and Services Tax, pre deposit, legislative competence, constituent power, Amendment Act, VAT, Ordinance, Indirect Taxation, Constitutional Amendment]

In Commr. Of Cen. Exc. Ahmedabad v. M/S Urmin Products P. Ltd. and Ors., the assesssee had sought to classify the product made by it as ‘Chewing Tobacco’ and not Zarda, which attracted a higher excise duty. The Court held that there was no misstatement, suppression, fraud or collusion with intent to evade payment of duty to invoke the provisions of Section 11A (4) of Central Excise Act, 1944. The Court upheld the decision of the CESTAT which had held that the product manufactured by the petitioner was ‘chewing tobacco’ and not ‘zarda/jarda scented tobacco’ as claimed by the Revenue. The Court noted that the Department did not provide evidence to determine the nature, characteristics and contents of the product. Therefore, no attempt can be made to determine the appropriate entry of classification for the product manufactured by the assessee at the relevant period of time. Relying on HPL Chemicals v. CCE Chandigarh (2006) 5 SCC 208, it was held that the burden of proof for change in classification of the product lies on the Department, particularly when it wishes to challenge a long accepted classification.

[S Ravindra Bhat J., Aravind Kumar J.]

[Keywords: chewing tobacco, zarda scented tobacco, classification, Indirect Taxation, burden of proof, CESTAT, suppression]

In Commissioner, Customs Central Excise and Service Tax, Patna v. M/s Shapoorji Pallonji and Company, the Court held that where the meaning of the provision was clear and unambiguous, ‘or’ could not be interpreted as ‘and.' Notably, the Court noted that the use of a semicolon was not trivial but a deliberate inclusion to differentiate two sub-clauses.

[Ravindra Bhat J, Dipankar Datta J]

[Key Words: definition of ‘governmental authority’, Mega Service Tax Exemption Notification, exemption from service tax, Finance Act 1994, interpretation, golden rule of interpretation]

In M/s Triveni Glass Limited v. Commissioner of Trade Tax, the Court held that ‘panes’ meant glass sheets in small sizes used in doors and windows. Additionally, the Court held that tinted glass sheets were different as during the process of manufacture, their radiation capacity increases, transparency and density change and the commodity does not remain the same after manufacturing.

[S Ravindra Bhat J, Aravind Kumar J]

[Keywords: classification of ‘tinted glass sheets’, Indian Standard Specification for Flat Transparent Sheet Glass (Third Revision) March 1988, Uttar Pradesh Trade Tax Act 1948, canons of construction, interpretation, determination of whether an article after subjecting it to manufacturing becomes a different article and the determination of the same basis how the product is identified by the class of people dealing with or using such product]

In M/s Harsh Automobiles Private Limited v. Indore Municipal Corporation, the Court held that the mere display of name of a product without such display soliciting customers would not amount to an advertisement.

[S Ravindra Bhat J Aravind Kumar J]

[Keywords: advertisement tax, Section 132(6)(1) of the Municipal Corporation Act, Black’s Law Dictionary]

In IFFCO-Tokio General Insurance Co. Ltd v. Geeta Devi, the case involved the respondent filing a claim before the Motor Vehicles Accident Tribunal for the death of her deceased husband. The tribunal directed that the compensation should be paid by the owners of the vehicle as the license of the driver was a fake license. On appeal, the Delhi High Court held that the Insurance company did not plead or prove the aspect of fake license and as such, it is not open for it to claim compensation from the vehicle owners. Citing the case of National Insurance Co. Ltd v. Swaran Singh, the Court held that in cases of fake licenses, the insurer’s liability would depend on whether the terms of the policy require the assured making representation on the genuineness of the license in question. Noting that the Insurance company did not lead evidence on the aspect of willful breach by the vehicle owners, the Court held that it is not open for the insurance company to claim that the policy is inapplicable unless it can show that the owner of the offending vehicle was guilty of willful breach of the terms of the policy.

[C.T Ravikumar J, Sanjay Kumar J]

[Keywords: Motor Vehicle accident, rash and negligent driving, proof of willful breach, duty of verification of the genuineness of license, fake license, recovery of compensation from vehicle owner]

In KM Krishna Reddy v. Vinod Reddy & Ors, the Supreme Court reiterated the settled principles of law governing when the relief for declaration ought to accompany a suit for injunction, in line with its dictum in Anathula Sudhakar Vs. P. Buchi Reddy (dead) by Lrs. And Others. On facts, the respondent took two pleas contesting the title of the appellant, being the plea of adverse possession and the plea of title by virtue of an agreement to sell between themselves and the appellant’s brother. The Court noted first, that both pleas of the respondents, that is, adverse possession and title by way of agreement to sell, were mutually irreconcilable. Secondly, the factum of partition vesting the subject property in the name of appellant’s brother was never proved. The Court held that in the present case, there was no need for the appellant to seek a declaration. Holding thus, the matter was remanded back to High Court for determination on substantial issues.

[Abhay S. Oka J, Pankaj Mithal J]

[Keywords: Adverse possession, agreement to sell, uninterrupted possession, suit for injunction and declaration, relief barred by limitation, amendment of plaint, mutually irreconcilable pleas]

In Dhani Ram (D) Thr. L.Rs v. Shiv Singh, the Supreme Court had the occasion to reiterate the fundamental principles governing the proof of execution of a valid will. The dispute concerned the legal representatives of the appellant who was the deceased testatrix’s brother, and the respondent who was the testatrix’s son. The will in question bequeathed the properties of the testatrix  to the appellant, which was attested by two witnesses. The trial court came to disbelieve the will and dismissed the appellant’s suit. The first appellate court reversed the trial court’s finding which was in turn set aside by the High Court in second appeal. On facts the Court has found that the two witnesses who have attested the will proffered contradicting statements on the manner in which the will came to be executed and registered. Importantly, one of the witnesses who attested the will was not present when the testatrix had executed the will and the other witness had attested to it. Noting that the essential requirements for a valid will under Section 63 of the Succession Act have not been met in the present case, the Court upheld the judgment of the High Court and dismissed the appeal.

[C.T Ravikumar J, Sanjay Kumar J]

[Keywords: Hindu Succession Act, 1956, attesting witnesses, registration of the will, disputed will, essential requirements in law to prove a will]

In Vikrant Kapila & Ors v. Pankaja Panda & Ors, the question that arose before the Supreme Court was the existence of a valid will as executed by the testatrix. The disputing litigants were the descendants of the testatrix. The parties were admittedly governed by Hindu Law on succession. However, there was a doubt cast on the existence of a will purporting to bequeath the property unto the father of the appellants (since deceased). A single judge of the High Court took the view that the will stands proved on account of an unequivocal admission by the respondent-plaintiffs who first filed a suit for partition of the suit property. The said view was affirmed by the division bench in appeal. Upon perusing the pleadings and the statements of admissions/denials filed by the parties before the single judge, the Court came to a conclusion that the fact of existence of the will has not been unequivocally admitted by the parties, resulting in a triable issue that needs to be proved by evidence. Holding thus, the matter was remanded to the single judge for rendering a finding on the existence of the will.

[Aniruddha Bose J, S.V.N Bhatti J]

[Keywords: Admission of fact, Admission of document, Order XII Rule 6, Intestate v. testamentary succession, manner of proving a will]

In Dr. Nirmal Singh Panesar v. Paramjit Kaur Panesar, the appellant and the respondent had been married since 1963. The appellant instituted a petition for divorce under Section 13 of the Hindu Marriage Act on grounds of cruelty and desertion by the respondent, for failing to accompany him in his transfer despite his advanced age. The High Court in second appeal had upheld the first appellate court’s order reversing the decree of divorce. However, a plea was taken before the Supreme Court that owing to the fact that the parties have been living separately for many years, with no intention to reconcile, the marriage has become irretrievably broken and the Court ought to exercise its discretion under Article 142 of the Constitution to grant the same. Reiterating the principles governing exercise of such jurisdiction as laid down by the Court in Shilpa Shailesh v. Varun Sreenivasan (2023) SCC Online SC 544, the Court observed that such discretion ought to be used sparingly, and the overarching objective of protecting the sanctity of marriage as an institution cannot be disregarded. Having observed thus, the Court dismissed the appeal.

[Aniruddha Bose J, Bela Trivedi J]

[Keywords: irretrievable breakdown of marriage, cruelty, desertion, unilateral decision, discretionary power, institution of marriage]

In X v. Union of India and Anr., the petitioner, a married woman aged 27 years, filed a petition under Article 32 for directions to permit a medical termination of her ongoing pregnancy of 26 weeks on two grounds, a) that she suffers from postpartum depression and is, therefore, unable to raise another child, and b) that her husband is the only earning member of their family and they already have two children and more dependants to take care of. The Court held that the power under Article 142 can be exercised in a case which was not an ordinary civil case but one concerning viability of a medical termination of a pregnancy and if there was immense urgency in the case. However, the Court denied the woman her prayer to medically terminate the pregnancy since neither “substantial foetal abnormalities” were diagnosed by the Medical Board in terms of Section 3(2B) of the Act, nor the termination was necessary to save the life of the petitioner in terms of Section 5. However, the Court permitted the petitioner and her husband to give the child up for adoption if they so desired after the delivery.

[Dr. D.Y. Chandrachud CJI., JB Pardiwala J., Manoj Misra J.]

[Keywords: Medical Termination of Pregnancy Act, 1971, Article 142, Review Petition, Medical Board, adoption, Registered Medical Practitioner]

In Supriyo @ Supriya Chakraborty v. Union of India, the Court held that the right to marry is not a fundamental right while turning down petitions seeking the legal recognition of marriages between LGBTQIA+ partners.

The Chief Justice of India, in a minority opinion, held:

• The Court had jurisdiction to hear the case;

• By recognizing a relationship as a marriage, the State grants material benefits exclusive to marriage;

• The State has an interest in regulating the intimate zone to democratize personal relationships;

• The issue of whether there was a constitutional right to marry did not arise in Justice KS Puttaswamy (9 Judges), Shafin Jahan, or Shakti Vahini;

• The Constitution did not expressly recognize a fundamental right to marry and an institution could not be elevated to a fundamental right;

• The Court cannot strike down or read into the Special Marriage Act due to institutional limitations and restraints on judicial legislation;

• The freedom of queer persons to enter into a union is protected by Part III of the Constitution and the State has an obligation to recognize such unions and grant them benefit under law;

• ‘Sex’ in Article 15 must be read to include sexual orientation as it is used as a marker of identity which cannot be read independent of social and historical context;

• The right to enter into a union cannot be restricted based on sexual orientation and such restriction would be violative of Article 15;

• Discrimination on the basis of sexual orientation would violate Article 15 and that the Navtej and Justice KS Puttaswamy (9 Judges) judgments recognized the right of queer couples to exercise choice to enter into a union;

• Transgender persons in heterosexual relationships and intersex persons (who identify as male or female) have the right to marry under existing law including personal laws which regulate marriage;

• State must enable the LGBTQ community to exercise its rights under the Constitution;

• Unmarried couples (including queer couples) could jointly adopt a child and Regulation 5(3) of the Adoption Regulations was ultra vires the Juvenile Justice Act, Articles 14 and 15. Regulation 5(3) was read down to exclude the word ‘marital’;

• The CARA circular disproportionately impacted the queer community and was violative of Article 15;

• The Union, State and UT Governments shall not discriminate against the freedoms of queer people;

• A committee headed by the Cabinet Secretary shall be constituted to consider enabling partners in a queer relationship to be treated as part of the same family for a ration card and to have the facility of a joint bank account with the option to name the partner as a nominee in the case of death and other rights;

In a separate opinion, Justices Ravindra Bhat and Hima Kohli noted that discriminatory of LGBTQIA+ persons could not be ignored and the State had a legitimate interest necessitating action, and that the form of action – such as a new umbrella legislation or amendment to extant law - were policy decisions left to the legislature and the executive, and:

• There is no unqualified right to marriage except as recognized by statute including space left by custom. However, there was a right of queer couples to mental emotional or sexual unions;

• The Court could not enjoin or direct the creation of a regulatory framework to grant legal recognition of the right to union;

• The challenge to the SMA on grounds of under-classification was not made out and the prayer to read various provisions in a gender neutral manner was not made out;

• The Union shall set up a committee as stated above;

• Transgender persons in heterosexual persons had the right to marry; and

• Regulation 5(3) of CARA was not void.

[DY Chandrachud Chief Justice of India, Sanjay Kishan Kaul J, Ravindra Bhat J, Hima Kohli J, PS Narasimha J]

[Keywords: marriage, equality, fundamental rights]

In Mathews J Nedumpara and Ors v. Union of India and Ors., the petitioners, who are practising advocates, challenged as unconstitutional the senior advocate designation practice under Sections 16 and 23(5) of the Advocates Act, 1961, as being violative of Articles 14, 19 and 21 of the Constitution of India. The Court held that Article 14 permitted reasonable classification of people by the legislature, and that the classification of advocates is premised on a standardised metric of merit aimed at forwarding the standards of the profession. It was further held that the designation of senior advocate is a recognition of merit by the Court, and that judgments passed in Indira Jaising cases (2017) 9 SCC 766 and (2023) 8 SCC 1 endeavoured to make the process more transparent. The challenge was, thus, dismissed.

[Sanjay Kishan Kaul J., C.T. Ravikumar J., Sudhanshu Dhulia J.]

[Keywords : Designation as senior advocate, merit, Advocates Act, Advocate-on-Record, Supreme Court Rules. Articles 14 and 19, Right to practice, independence of the Bar, contempt, National Law Schools]

In Dr. Balram Singh v. Union of India and Ors., a petition under Article 32 was filed seeking implementation of the provisions of Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 and the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013. The Court directed the Union Government to frame policies and issue directions to corporations, railways and cantonments to ensure that manual sewer cleaning is completely eradicated in a phased manner and issue directions that no contractor or agency shall require individuals to enter sewers for any purpose whatsoever. The Court also directed the Union to ensure that full rehabilitation, including employment to the next of kin, education to the wards and skill training, is given in respect of sewage workers and those who die due to undertaking manual scavenging activities.

[S Ravindra Bhat J., Aravind Kumar J.]

[Keywords : manual scavengers, sewer deaths, compensation, emancipatory provisions, socio-economic measures, Article 21, hazardous workers]

Tamil Nadu and Puducherry Paper Cup Manufactures Association v. State of Tamil Nadu and Ors. concerned a High Court judgment whereby a challenge to a government order banning manufacture, storage, supply, transport, sale, distribution and use of ‘one time use and throwaway plastics’ was dismissed. The appellants cited their rights under Article 14 and 19(1)(g), and the fact that the State recognised that the paper cups were recyclable, provided the paper and LDPE plastic layer were separated, which the Association was willing to support. Another issue which arose was as to whether the government notification ought to be set aside since a pre-decisional hearing was not given. The Court held that though the mandate of the rule called for pre-decisional hearing, given that the Rules were notified on June 25, 2018, but it was made effective only on January 1, 2019 and not immediately, given the efflux of time, the resultant likely injury to the public, and interest of justice required that such infraction should not result in the invalidation of the notification. On merits also, the ban on paper cups was upheld. However, the question as to inclusion of non-woven bags within single use plastic products ban was remanded for reconsideration since the 2016 Rules permitted non-woven bags above 60 GSM to be manufactured and used.  

[S. Ravindra Bhat J., Pamidighantam Sri Narasimha J.]

[Keywords : one time use and throwaway plastics, Environment Protection Act, 1986, Articles 14, 19(1)(g), public interest, pre-decisional hearing, plastic ban, fair hearing, expert committee, biodegradable plastics]

About the authors: Subhro Prokas Mukherjee, Sahil Tagotra, Abhinav Hansaraman and Venkata Supreeth K are advocates mainly practicing in Delhi before the Supreme Court of India.