Landmark Constitutional Law Judgments in 2024 by the Supreme Court of India [Part I of III]

This article in three parts is a round-up of all the landmark constitutional law judgments delivered by the Supreme Court of India from January to May 2024 inclusive of all that showcased consideration, interpretation and evolution of important constitutional law principles. The judgments in Part I are as follows:

Abbreviations for various common terminologies in the judgments

Art. — Article	Assn. — Association
GoUP — Government of Uttar Pradesh	CB — Constitution Bench
COI — Constitution of India	CO — Concurring
HC — High Court	LC — Lower courts
SCBA — Supreme Court Bar Association	SC — Supreme Court
SL — State Legislature	UOI — Union of India
GoI Act — Government of India Act	SPA — Shimla Planning Area
RS — Rajya Sabha	Govt. — Government
SG — State Government	SOP — Standard operating procedure
WP — Writ petition	AP — Andhra Pradesh
FPI — Foreign portfolio investments	PMLA — Prevention of Money-Laundering Act, 2002
ONGC — Oil and Natural Gas Corporation	IOCL — Indian Oil Corporation Ltd.
The VAT Act — Assam Value Added Tax Act, 2003	Entry 48, List II — (for short, “E-48, L-II”)
EC — Expert Committee	The Sales Tax Act — Assam General Sales Tax Act, 1993
Entry 54, List II — (for short, “E-54, L-II”)	UOI — Union of India
DDP — Draft Development Plan	NGT — National Green Tribunal
u/s — under section	GoM — Government of Maharashtra
SPA — Shimla Planning Area	T&CP Act — Himachal Pradesh Town & Country Planning Act, 1977
FC Act — Forest (Conservation) Act, 1980	w.e.f. — with effect from
DB — Division Bench	SB — Single Bench
MAT — Maharashtra Administrative Tribunal	NCL — Non-creamy layer
MoEFCC — Ministry of Environment, Forests and Climate Change	CPCB — Central Pollution Control Board
GoI — Government of India	SPCB — State Pollution Control Board
Seiaa — State Environment Impact Assessment Authorities	CG — Central Government
OBC — Other Backward Class	CEC — Central Empowered Committee
JB — Judge Bench	SoGA — Sales of Goods Act, 1930
Scdrc — State Consumer Dispute Redressal Commission	DCRC — District Consumer Redressal Commission
CHB — Chandigarh Housing Board	UT — Union Territory
PO — Presiding Officer	Sec. — Section

***

The judgments are as follows:

(1) State of U.P. v. Assn. of Retired Supreme Court & High Court Judges¹

(Delivered on 3-1-2024)

Coram: 3-Judge Bench of Justices Dr D.Y. Chandrachud, C.J., J.B. Pardiwala and Manoj Misra; JJ.

Majority Opinion Authored by: Dr Justice D.Y. Chandrachud

The appeals arose from orders of the Allahabad High Court, with the issue revolving around separation of powers, exercise of criminal contempt jurisdiction and the practice of frequently summoning government officials to court.

Earlier in April 2023 the High Court had directed the Government of Uttar Pradesh for notifying rules proposed by the Chief Justice pertaining to staff and allowances payable to former Judges of the Allahabad High Court. An application was moved seeking recall of the aforesaid order passed by the High Court on behalf of the Government of Uttar Pradesh, which application was treated as contemptuous and criminal contempt proceedings were accordingly initiated by the High Court. Officials including the senior government officials were taken into custody with bailable warrants having been issued against the Chief Secretary and the Additional Chief Secretary. All the orders were passed in writ petition instituted in 2011 by the association of retired Supreme Court and High Court Judges at Allahabad. The Supreme Court had earlier in the judgment of P. Ramakrishnam Raju v. Union of India², issued detailed directions and guidelines pertaining inter alia to the post-retiral benefits payable to former Judges of the High Courts, on the lines of scheme formulated by State of Andhra Pradesh, recommending other States also to toe the line. Contempt petitions were also instituted before the Supreme Court for non-compliance of the Court’s directions, in which States were directed to file affidavits detailing all the steps taken towards compliance of the Court’s earlier orders.

In the above backdrop Government of Uttar Pradesh had issued an order in July 2018 revising the post retiral benefits for former Judges, whilst increasing the domestic help allowance payable to them, from Rs 15,000-20,000 per month. An application was filed by the association before the High Court seeking parity in the State of Uttar Pradesh with the scheme framed by the Andhra Pradesh Government. In this backdrop, the Chief Justice of the Allahabad High Court “Rules for providing domestic help to former Chief Justices and former Judges of Allahabad High Court”, under Article 229³ of the Constitution of India, wherein provisions for selection, appointment and other financial matters were included in the aforesaid rules. The High Court in the above backdrop heard the writ petition and summoned various officials of the Government of Uttar Pradesh, passing various orders including the two orders assailed before the High Court. In the first order, the High Court directed notification of the rules, as also personal presence of Additional Chief Secretary before it. In the second order, when the Government of Uttar Pradesh moved recall application, it was held that the same constituted “ex facie criminal contempt”, for non-compliance of the first impugned order. Directions for taking into custody the Special Secretary Finance and others were accordingly passed as aforestated which were assailed before the Supreme Court.

The Court accordingly framed three broad questions of law for its consideration, which were as follows:

(i) whether the High Court had the power to direct the State Government to notify rules proposed by the Chief Justice pertaining to post-retiral benefits for former Judges of the High Court;

(ii) whether the power of criminal contempt could be invoked by the High Court against officials of the Government of Uttar Pradesh on the ground that the application for recall was “contemptuous”; and

(iii) the broad guidelines that must guide courts when they direct the presence of government officials before the Court.

In re: Powers of the High Courts to direct notifications of the rules

Interpreting Article 229 of the Constitution of India, it was held that the same pertains only to the service conditions of “officers and servants” of the High Courts and does not include Judges, either sitting or retired. Thus, the Chief Justice does not possess any powers under Article 229 for making rules pertaining to the post panel benefits able to form a Chief Justice and Judges of the High Court. Thus, the rules were clearly outside the competence of the Chief Justice and reliance upon Article 229 in the Preamble was clearly misplaced. Insofar as reliance upon the judgment of P. Ramakrishnam Raju case⁴ was concerned, it was held that the scheme as applicable in Andhra Pradesh was never directed by the Supreme Court to be adopted in toto, “but depending on the local conditions”. The direction was issued to the State Government, without conferring any powers on the Chief Justices, acting on the administrative side to frame rules about post retail benefits or allowances for formal Judges, which could have been mandatorily notified only by the State Government. The High Court could not have compelled the State Government on the judicial side who have notified rules as policymaking by the Government and envisages various steps and the consideration of various factors including local conditions, financial considerations and approval from various departments. The rules promulgated by the Chief Justice at the highest amounted to inputs to the State Government, with the State Government being free to constructively consider the desirability of the rules within its own decision-making apparatus. The Court accordingly held that the High Court has acted beyond its jurisdiction under Article 226⁵, whilst issuing directions to the notifying the aforesaid rules.

In re: Criminal contempt cannot lie for availing the legal remedies and raising legal challenges to any order

Referring to the provisions of the Contempt of Courts Act, 1971⁶, specifically the definition of “criminal contempt” vide Section 2(c), it was held that the threshold for criminal contempt is much higher and more stringent. Thus, the assessment of the High Court even if assumed to be correct could never have constituted criminal contempt, but at the most civil contempt. There was no reasoning as to how the standards of criminal contempt were met with a non-compliance of the first impugned order (regarding notification of the rules). Even the standards for civil contempt were not met out in the facts of the case as the power of the High Court’s cannot be used to obstruct the parties or their Councils from availing legal remedies. The Government of Uttar Pradesh in the present case was availing its legal remedy of filing a recall application, which could have never been treated as a legal obstacle in complying with the first impugned order. Thus, this conduct never construed any “civil contempt”, much less “criminal contempt”. The summary procedure of summoning of government officials on the ground of commission of such alleged contempt under Section 14⁷ of the Contempt of Courts Act, 1971 could not have been invoked as a matter of routine and reserved for only extraordinary circumstances. Referring to the judgment of Leila David (6) v. State of Maharashtra⁸, it was held that personal presence of any contemnors, cannot be directed as a matter of routine. Thus, the Court held that invocation of criminal contempt, for taking the government officials into custody was clearly never warranted.

In re: Summoning of government officials before courts

The Court held that the appearance of government officials before courts must not be reduced to a routine measure wherever Government is a party but must be resorted to in limited circumstances. The power to summon government officials cannot be used as a tool to pressurize the Government, particularly under the threat of contempt. Without consent on affidavit or instructions to law officers in writing courts must also refrain from relying on mere oral undertakings by government officials in the courts. Referring to the judgment of Mohd. Iqbal Khanday v. Abdul Majid Rather⁹, it was held that courts must primarily deal with law officers acting as primary point of contact between courts and the Government. Thus, in the present case the issuance of bailable moments of the High Court against the government officials, including the Chief Secretaries who were not even summoned in the first place was an attempt clearly to unduly pressurize the Government.

Referring to the judgment of State of U.P. v. Manoj Kumar Sharma¹⁰, it was stated that frequent summoning of government officials “at the drop of a hat” was already frowned upon earlier. Respect to the Court has to be commanded and not demanded, which never gets enhanced by calling the public officials. The presence of a public officer at the cost of other official engagements demanding their attention as many important tasks entrusted to them get delayed. Rather courts across the country must foster an environment of respect and professionalism, duly considering the constitutional provisional mandate of law officers.

Accordingly, the Court framed a standard operating procedure addressing the appearance of the officials before the courts, aiming to serve as a guiding framework, steering the Court away from arbitrary and frequent summoning of government officials and promoting maturity in their functioning. This standard operating procedure provided for the following:

(i) personal presence pending adjudication of a dispute;

(ii) procedure prior to directing personal presence;

(iii) procedure during the personal presence of government officials;

(iv) time for compliance with judicial orders by the Government; and

(v) Personal presence for enforcement/contempt of Court proceedings.

Accordingly, in the above impugned orders passed by the High Court were set aside by the Court, whilst granted liberty to hear the writ petition in view of the observations made in the judgment.

* * *

(2) Vishal Tiwari v. Union of India¹¹

(Delivered on 3-1-2024)

Coram: 3-Judge Bench of His Majesty Justices Dr D.Y. Chandrachud, J.B. Pardiwala and Manoj Misra;

Majority Opinion Authored by: His Majesty Justice Dr D.Y. Chandrachud

The writ petitions were filed under Article 32¹² of the Constitution of India raising concerns over precipitated decline in investor wealth and volatility in the share market due to a fall in the share prices of the Adani Group of Companies. The petition alleged lack of adequate redressal available and disbursement of loans to the Adani Group without due procedure that led to instabilities in the securities market, premised upon the Hindenburg Report. The petition accordingly sought the constitution of the Committee monitored by a retired Judge of the Supreme Court.

In March 2023, accordingly the Supreme Court constituted an Expert Committee chaired by former Judge of the Supreme Court for providing an overall assessment of the situation including the causal factors that led to volatility in the securities market; for suggesting measures to strengthen investor awareness and other issues. However, the Expert Committee was constituted to oversee and work in collaboration with the Securities and Exchange Board of India (SEBI), without divesting it of its powers and responsibility whilst continuing with the investigation. The Expert Committee submitted its report to the Court, as also the SEBI.

The petitioners contended that there was price and stock market manipulation by the Adani Group by overvaluation of the import of power equipment, which was ignored by the SEBI. SEBI failed to check the regulatory non-compliances and legal violations by the Adani Group promoters. That the members of the Expert Committee had conflict of interest, leading to a likelihood of bias and thus the report was vitiated.

The SEBI in turn argued that 22 out of 24 investigations conducted by the SEBI were complete and penal proceedings would be initiated wherever applicable. Events pertaining to the present batch of petitions lead to only one set of entities in the market, without any significant impact on the systemic level. If the wider Indian market was being seen, it had shown full resilience.

Scope of judicial review over SEBI’s regulatory domain

The Court held that tenor of the writ petitions was aimed at seeking directions in relation to both the regulatory and delegated legislative powers of the SEBI, which is a specialised regulator.

Tracing the history of the SEBI, which was established as India’s principal capital markets regulator aimed to protect the interest of investors and securities, The Court held that the SEBI had been constituted to promote the development and regulation of the securities market in India, its powers being wide ranging from delegated legislative, administrative to adjudicatory powers. Referring to the judgment of IFB Agro Industries Ltd. v. SICGIL India Ltd.¹³, the Court stated that primacy of the SEBI as a forum to adjudicate violation of its regulations has already been affirmed in the past. Governance of certain sectors through independent regulatory bodies is far more effective than being under the direct control and supervision of ministries or departments of the Government, wherein the SEBI can formulate regulations having a bearing on the securities market. Whilst protecting investor wealth, the provisions introduced by the SEBI are ever evolving. Its adjudicatory as well as regulatory powers were also delineated in the judgment of IFB Agro Industries Ltd. case¹⁴. Accordingly, the Court held that being an expert body, it cannot therefore substitute its own view by supplanting the role of the SEBI or act as an appellate authority over the administrative decisions of the statutory regulator. Merely because there is a better alternative available, the Court would not be inclined to interfere.

Accordingly, the Court held that the scope of judicial review whilst examining any policy frame by specialised regulator would be delimited to scrutinise whether it violates the fundamental rights of its citizens; contrary to the provisions of the Constitution, opposed to statutory provisions or manifestly arbitrary. When technical questions arise, in the domain of economic or financial matters, the Court ought not to interfere.

No apparent regulatory failure of the SEBI

The petitioners had alleged that foreign portfolio investments investing in Adani Groups stocks were shell companies based outside India owned by the brother of Chairperson of the Adani Group. They were having unclear ownership pattern and seemed to only trade in Adani’s stock to give a disguised appearance of good financial health and solvency. It was further alleged that the SEBI had introduced amendments in the SEBI (Foreign Portfolio Investors) Regulations, 2014. In 2018 and 2019 by removing the requirements of disclosing ownership of the foreign portfolio investors by the natural person, which amounts to regulatory failure on the SEBI’s part. Earlier declaration of the “ultimate beneficial owner” under SEBI Regulations was required to conform to the disclosure of “beneficial owner” under the Prevention of Money-Laundering Act, 2002.

However, the SEBI on its side claimed no disability in its investigation attributable to the amendments to the SEBI (Foreign Portfolio Investors) Regulations, 2014. It argued rather that SEBI (Foreign Portfolio Investors) Regulations, 2014 nowhere prohibit opaque structures. The difficulties it faces in obtaining information regarding holders of economic interest in foreign portfolio investors does not changes regardless of amendments in the SEBI (Foreign Portfolio Investors) Regulations, 2014, but the same arises due to differing regulations and jurisdictions where entities with economic interest in any foreign portfolio investors operate. In differing jurisdictions, therefore identification of actual investing entities within economic interest becomes difficult and regulations therefore are not intended to be framed to create any difficulty, nor can be labelled as arbitrary under the Constitution of India.

The Court held that no grounds for interference with the amendments to the Regulations by the SEBI were made out, since neither they were assailed specifically as ultra vires the apparent legislations or the Constitution, nor were challenged as arbitrary, unreasonable or capricious. Accordingly, the prayer was repelled.

Transfer of investigation from the SEBI to another agency or SIT

The Court examined the prayer of the petitioner seeking transfer of investigation from the SEBI to another agency or special investigation team (SIT). The Court held that unless the statutorily invested body with the power to investigate portrays a glaring, wilful and deliberate inaction in carrying out an investigation, it cannot be supplanted or divested of the powers to investigate. Referring to the judgment of Himanshu Kumar v. State of Chhattisgarh¹⁵, it was stated that a power to transfer an investigation must be invoked only in rare and exceptional cases and not as a matter of routine.

The Court found that the SEBI has prima facie conducted a comprehensive investigation wherein out of the 24 investigations so convened, 22 already had been concluded, with the investigations being approved by the competent authority under the SEBI’s procedure. The details of the 24 investigations so undertaken did not indicate any inactions taken by the SEBI, rather to the contrary inspired confidence that there are comprehensive investigations being convened. Thus, the Court found no prima facie, no deliberate inaction or inadequacies in investigation of the SEBI.

Insofar as Organised Crime and Corruption Reporting Project (Occrp) Report and the Directorate of Revenue Intelligence’s (DRI) letter was concerned, Court held that unsubstantiated reports in the newspapers could not gain credence over investigations done by the statutory regulator whose investigations were not doubted. Regarding the letter of DRI, it was held that the issue has travelled up to Customs, Excise and Service Tax Appellate Tribunal (Cestat), which had concluded that allegations of overvaluation were not proved. Besides, the Expert Committee constituted by the Court had also not discovered any failure on the part of the SEBI.

Allegations of conflict-of-interest against Expert Committee members

It was alleged that certain members of the Expert Committee had conflict of interest, that was not revealed to the Court (against Mr Somasekhar Sundaresan). The allegation was that Mr Sundaresan has appeared in May 2007 on behalf of one of the companies of Adani Group, which was held by the Court to not reflect bias or even likelihood of bias since acceptance of a professional brief by a lawyer 16 years before shows clear absence of proximity both in terms of time as well as the subject-matter. Also, the petitioner waited for the Expert Committee to submit its report before raising the said objections, which at such a belated stage could not be considered. Accordingly, the allegations of conflict of interest were repelled by the Court.

The Court thereafter examined and issued directions on other recommendations of the Expert Committee relating to suggestions and measures for strengthening investor awareness; strengthening the statutory and regulatory framework and other such aspects. Accordingly, the Court referred to the observations and recommendations of the Expert Committee under the following:

(i) Volatility and short selling.

(ii) Investors awareness.

(iii) Strengthening regulatory framework and compliances to protect investors, etc.

Accordingly, the writ petition was disposed of without interfering with the SEBI’s report or recommendations of the Expert Committee. Court underscored that public interest jurisprudence developed and expanded under Article 32 of Constitution of India served as a tool to secure justice and ensure accountability on many occasions wherever ordinary citizens approached the Court with well-meant petitions highlighting a clear cause of action. However, petitions lacking adequate research, relying on unverified and unrelated material tend to be counterproductive was a word of caution sounded by the Court to one and all.

* * *

(3) Bilkis Yakub Rasool v. Union of India¹⁶

(Delivered on 8-1-2024)

Coram: 2-Judge Bench of Justices B.V. Nagarathna, Ujjal Bhuyan; JJ.

Majority Opinion Authored by: Her Majesty Justice B.V. Nagarathna

The judgment relates to the remission of convicted persons in grotesque and diabolical crime driven by communal hatred. Respondents 3 to 13 against whom the Special Judge, Greater Mumbai, vide judgment dated 21-1-2008 convicted them and sentenced to life imprisonment for the commission of the offences of gang rape and murder of petitioner’s relatives. Later on appeals before the High Court and Supreme Court were dismissed and the sentence awarded by the Special Judge was affirmed. Thereafter, Respondents 3 to 13 were allowed remission by the State of Gujarat through the impugned order dated 10-8-2022 and the writ petitions under Article 32 of the Constitution of India were filed seeking quashing of these remission orders before the Supreme Court. It was contended that in the present case, the remission was granted to the convicts without application of mind and examining the nature and gravity of the crime and the impact of the remission order upon the victim and her family, witnesses and society at large. The Bench after hearing all the contentions from both the sides formed following points of consideration:

(1) Whether the petition filed by one of the victims in criminal writ petition No. 491 of 2022¹⁷ under Article 32 of the Constitution is maintainable?

(2) Whether the writ petitions filed as public interest litigation (PIL), assailing the impugned orders of remission dated 10-8-2022 are maintainable?

(3) Whether the Government of the State of Gujarat was competent to pass the impugned orders of remission?

(4) Whether the impugned orders of remission passed by the respondent State of Gujarat in favour of Respondents 3 to 13 are in accordance with law?

(5) What further orders need to be passed in regard to Respondents 3 to 13?

Writ petition under Article 32 is maintainable

The judgment states that the object and purpose of Article 32 of the Constitution of India adheres to the expanded notion of access to justice which also includes speedy remedy, and the petition filed by the petitioner in the present writ petition cannot be dismissed on the ground of availability of any alternative remedy under Article 226 or on the ground of maintainability under Article 32 of the Constitution of India. Also, earlier one of the respondents, namely, Respondent 3 had preferred writ petition invoking Article 32 of the Constitution of India and sought direction for the State of Gujarat to consider his case for remission under the policy of 1992. With respect to that petition, the Bench issued a categorical direction to that effect which the respondent State understood as a command or a direction to grant remission within a period of 2 months. That being so, the High Court of Gujarat would not have been able to entertain the aforesaid contention in view of the categorical direction issued by the Supreme Court and therefore for this reason also, petition under Article 32 was maintainable.

Are PILs also maintainable

With regard to the issue of maintainability of PILs, the judgment stated that as one of the victims, Bilkis Bano had already filed a writ petition invoking Article 32 of the Constitution of India assailing the orders of remission, which have already been held to be maintainable and the consideration of that petition on its merits would suffice in the instant case. The question of the maintainability of PILs is wholly academic and does not require an answer in the present case and therefore must be kept open to be considered in any other appropriate case.

State of Gujarat is not the appropriate Government

The judgment took into consideration the definition of the expression “appropriate government” provided under Section 432(7)¹⁸ of the Criminal Procedure Code, 1973 (CrPC). It clearly states that where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; in other cases, the Government of the State within which the offender is sentenced or the said order is passed. Therefore, it is apparent that the Government of the State within which the offender is sentenced, or the said order is passed is the appropriate Government and that the conviction and sentence of the Court which had tried the case assumes significance. The judgment further stated that the intention of the Parliament that the Government of the State within which the offender was tried and sentenced is the appropriate Government, is also clear from the language of the provision of Section 432(7) CrPC. Also, the combined reading of sub-sections (1) and (2) of Section 432 CrPC, it is clear that the appropriate Government may have to seek the opinion of the Presiding Judge of the Court before which the conviction took place, before passing an order of remission.

In the instant case, the investigation and the trial of Respondents 3 to 13 was transferred from the State of Gujarat to the State of Maharashtra and was conducted in the State of Maharashtra. The fact of transfer of proceedings, as per Section 432(7) would not be a relevant consideration when deciding as to which State has the competency to pass an order of remission. Thus, the definition also takes within its scope and ambit a circumstance wherein the trial is transferred by the Supreme Court. Therefore, it is still the State of Maharashtra within which the offender was sentenced, which is the appropriate Government having the jurisdiction as well as the competency to pass an order of remission under Section 432 CrPC.

Referring to the judgments of Laxman Naskar v. Union of India¹⁹ and State v. Nalini²⁰ wherein it was observed that the phrase “appropriate Government” under Section 432(7)(a), allows discretion for remission to that State in whose jurisdiction the offender is sentenced or the sentence or order is passed, the judgment stated that even if an offence is committed in State A, but the trial takes place and the sentence is passed in State B, it is the latter State which shall be the appropriate Government. The judgment further stated that when the State of Gujarat in the present case did not have the jurisdiction to deal with a matter or it was not within the powers of the authority to be the appropriate Government to pass orders of remission under Section 432 CrPC, the orders of remission would have no legs to stand.

Referring to the decision of Anisminic Ltd. v. Foreign Compensation Commission²¹, the Bench stated that just as an order passed by a Court without jurisdiction is a nullity, in the same vein, an order passed or action taken by an authority lacking in jurisdiction is a nullity and is non est in the eye of the law, and on this ground alone the orders of remission can be quashed as the Government of State of Gujarat lacked in the aspect of competency and authority to pass such orders, thus the orders of remission are nullity and non est in the eye of the law.

Order obtained through fraud is null and void

At this juncture, the Bench pointed out the fraud and misrepresentation played by Respondent 3 by misrepresenting the order of the Court. It observed that Respondent 3 had felt aggrieved by the order of the Gujarat High Court and it was open for him to challenge that order before the Supreme Court by filing a special leave petition (SLP), but instead of he complied with the order of the Gujarat High Court by filing remission application before the Government of Maharashtra where, not only the process for consideration of the remission prayer was initiated, but opinions of various authorities were also obtained. When the opinions were found to be negative, Respondent 3 filed a writ petition under Article 32 before the Court seeking a direction to the State of Gujarat to consider his remission application suppressing the above material facts. Referring to the decision in Naresh Shridhar Mirajkar v. State of Maharashtra²², the Bench stated that Respondent 3 misrepresented and suppressed relevant facts and played fraud on the Court. Therefore, neither the order of the Gujarat High Court could have been challenged or set aside in a proceeding under Article 32.

The judgment pointed out that only Respondent 3 had approached the Court by filing a writ petition under Article 32 of the Constitution of India seeking a direction to the State of Gujarat to consider his premature release and none of the other convicts i.e. Respondents 4 to 13 had approached the Court or any High Court seeking such a relief and with respect to the petition filed by Respondent 3. The Bench further stated that the writ proceedings before the Court is pursuant to suppression and misleading the Court, as a result of suppressio veri suggestio falsi and the said order dated 13-5-2022 was obtained by fraud played upon the Court and declared it as null and non est in law.

Vested powers must be exercised in accordance with law

The Bench observed that the appropriate Government had not only the jurisdiction and authority to exercise its powers, but it must be exercised in accordance with law i.e. not in an arbitrary or perverse manner without regard to the actual facts or which would lead the Court to believe that there has been an improper exercise of discretion. If there is an improper exercise of discretion, then it is an instance of an abuse of discretion. It will only happen where there is failure to apply discretion owing to mechanical exercise of power, non-application of mind, acting under dictation or by seeking assistance or advice or where there is an usurpation of power. Usurpation of power arises when a particular discretion vested in a particular authority is exercised by some other authority in whom such power does not lie.

The Bench observed that the above finding upon the impugned orders of remission in the case of Respondents 3 to 13 regarding the definition of “appropriate Government is an instance of usurpation of power. The Bench pointed out that the State of Gujarat had correctly submitted before this Court that the appropriate Government in the instant case was State of Maharashtra and not the State of Gujarat but it failed to file a review petition seeking correction of the order of the Court and complied with the said order thereby giving to an instance of usurpation of power when the provision clause (b) of sub-section (7) of Section 432 states otherwise.

Instead, the State of Gujarat acted in tandem and was complicit with what Respondent 3 herein had sought before the Court and misled the Court to issue directions contrary to law based on suppression and misstatements made by Respondent 3 herein. This being a classic case where the order of this Court has been used for violating the rule of law while the orders of remission were passed in the favour of Respondents 3 to 13 in the absence of any jurisdiction, by the State of Gujarat. Thus, without going into the manner in which the power of remission was exercised, the Bench struck down the orders of remission on the ground of usurpation of powers by the State of Gujarat.

Sentence in default of fine was ignored before remission

Referring to the decisions in Sharad Hiru Kolambe v. State of Maharashtra²³ and Shahejadkhan Mahebubkhan Pathan v. State of Gujarat²⁴ the Bench observed that the sentence of imprisonment awarded to a person for committing an offence is distinct from the imprisonment order which is to be undergone in default of payment of fine. Thus, the latter is not a substantive sentence for commission of the offence but is in the nature of penalty for default in payment of fine. The judgment on the basis of the arguments made before it, pointed out that Respondents 3 to 13 had not paid the fine and therefore, in the absence of payment of fine, the default sentence ought to have been undergone by the respondents and this aspect of the matter had been lost sight of or ignored before granting the orders of remission.

The Bench stated that the question whether the default sentence or penalty had to be undergone by the respondents, was a crucial consideration before recommending remission of the convicts to the State Government by the Jail Advisory Committee. In the instant case, this had not been taken into consideration by the State Government before passing the impugned orders for remission. Realising thereafter, the respondent convicts paid the fine amount while the writ petitions were pending before the Court. However, this fact did not alter the consideration of the case of Respondents 3 to 13, as the payment of fine ought to have been made prior to the passing of the impugned orders of remission, as there could be no relaxation in the sentence regarding payment of fine.

Remission of the sentence, which is for the reduction of the period of imprisonment, cannot however relate to the payment of fine at all. Since there was non-application of mind in this regard, the impugned orders of remission were contrary to law and were held liable to be quashed on this ground as well.

Factors to be taken into account while entertaining an application for remission under CrPC

The judgment outlined following factors, though not exhaustive, that must be taken into account before entertaining an application for remission under CrPC:

(a) The application for remission under Section 432 CrPC could be only before the Government of the State within whose territorial jurisdiction the applicant was convicted (appropriate Government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred.

(b) A consideration for remission must be by way of an application under Section 432 CrPC which has to be made by the convict or on his behalf. In the first instance, whether there is compliance of Section 433-A²⁵ CrPC must be noted in as much as a person serving a life sentence cannot seek remission unless fourteen years of imprisonment has been completed.

(c) The guidelines under Section 432(2) with regard to the opinion to be sought from the Presiding Judge of the Court which had convicted the applicant must be complied with mandatorily. While doing so it is necessary to follow the requirements as stated in the said provision.

(d) The policy of remission applicable would therefore be the policy of the State which is the appropriate Government, and which has the jurisdiction to consider that application. The policy of remission applicable at the time of the conviction could apply and only if for any reason, the said policy cannot be made applicable a more benevolent policy, if in vogue, could apply.

(e) While exercising discretion in an application for remission, the aspects as mentioned in Laxman Naskar case²⁶, are necessary to bear in mind.

(f) There has also to be consultation in accordance with Section 435²⁷ CrPC wherever the same is necessitated.

(g) The Jail Advisory Committee which has to consider the application for remission may not have the District Judge as a Member inasmuch as the District Judge, being a judicial officer may coincidently be the very Judge who may have to render an opinion independently in terms of sub-section (2) of Section 432 CrPC.

(h) Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order:

(i) When an application for remission is granted under the provisions of the Constitution, the following among other tests may apply to consider its legality by way of judicial review of the same:

(i) that the order has been passed without application of mind;

(ii) that the order is mala fide;

(iii) that the order has been passed on extraneous or wholly irrelevant considerations;

(iv) that relevant materials have been kept out of consideration; and

(v) that the order suffers from arbitrariness.

Summary of conclusions

The judgment after discussing all the above contentions at length concluded as follows:

(a) We hold that the WP (Crl.) No. 491 of 2022²⁸ filed under Article 32 of the Constitution before this Court is maintainable and that it was not mandatory for the petitioner therein to have filed a writ petition under Article 226 of the Constitution of India before the Gujarat High Court.

(b) In view of Section 432(7) read with Sections 432(1) and (2) CrPC, we hold that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of Respondents 3 to 13 herein as it was not the appropriate Government within the meaning of the aforesaid provisions. Hence, the orders of remission dated 10-8-2022 made in favour of Respondent 3 to 13 herein are illegal, vitiated and therefore, quashed.

(c) While holding as above, the Bench also held that the judgment dated 13-5-2022 passed by the Court is a nullity and is non est in law since the said order was sought by suppression of material facts. In addition to the above, the said order, being contrary to the larger Bench decisions of the Court, is per incuriam and is not a binding precedent. Hence, the impugned orders of remission dated 10-8-2022 are quashed on the above grounds.

(d) Without prejudice to the aforesaid conclusions, the Bench further held that the impugned orders of remission dated 10-8-2022 passed by the respondent State of Gujarat in favour of Respondents 3 to 13 are not in accordance with law for the following reasons:

(i) That the Government of the State of Gujarat had usurped the powers of the State of Maharashtra which only could have considered the applications seeking remission. Hence, the doctrine of usurpation of powers applies in the instant case.

(ii) That while considering the applications seeking remission, the Jail Advisory Committee, Dahod and the other authorities had lost sight of the fact that Respondents 3 to 13 herein had not yet paid the fine ordered by the Special Court, Mumbai which had been confirmed by the Bombay High Court. Ignoring this relevant consideration also vitiated exercise of discretion in the instant case.

Rule of law will prevail over right to liberty

The Bench, after setting aside the orders of remission faced a question that whether Respondents 3 to 13 be sent back to the prison. The Bench observed that the principle of justice is an inbuilt requirement of the justice delivery system and laxity on the part of the courts would be an unauthorised exercise of jurisdiction and would affect the faith of the people in the efficacy of law as a saviour and succour for the sustenance of the rule of law.

The Bench stated that it would not be appropriate to ignore the rule of law and instead aid persons who are beneficiaries of orders which are null and void and therefore non est in the eye of the law. Further, it was stated that it could not be unseen that the process of law and the Court have also been abused in obtaining order of remission. Therefore, in complying with the principles of rule of law which encompasses the principle of equal protection of law as enshrined under Article 14²⁹ of the Constitution of India, the Bench held that the “deprivation of liberty” vis-à-vis Respondents 3 to 13, is justified as the respondents had, erroneously and contrary to law, been set to liberty.

The Bench passed an order to maintain status quo ante and that Respondents 3 to 13 have to report to the jail authorities concerned within 2 weeks from the date of order, as also they have to be inside the jail to further seek remission from the State of Maharashtra. Ultimately, the Bench observed that the rule of law will prevail over the impugned orders of remission and therefore the orders of remission were quashed.

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(4) K.P. Mozika v. ONGC Ltd.³⁰

(Delivered on 9-1-2024)

Coram: 2-Judges Bench of Justices Abhay S. Oka and Rajesh Bindal; JJ.

Majority Opinion Authored by: His Majesty Justice Abhay S. Oka

The batch of appeals pertained to tax liability arising under the provisions of the Assam General Sales Tax Act, 1993, the Assam Value Added Tax Act, 2003, whereunder the assessees under a contract agreed to provide different categories of motor vehicles for transportation or delivery of their petroleum products to Indian Oil Corporation Ltd. /Oil and Natural Gas Corporation.

The broad issue was “whether by hiring these motor vehicles/cranes, there is a transfer of the right to use the said leased out vehicles and thus whether it amounts to sale in terms of Article 366(29-A)(d)³¹ of the Constitution of India”. In other words, if the transactions do not fall within the definition of “Sale”, they would cease to attract tax liability under the Assam General Sales Tax Act, 1993 or the Assam Value Added Tax Act, 2003. The appellants (the lessors of the vehicles) approached the High Court when the Oil and Natural Gas Corporation attempted to deduct tax at source under the Assam Value Added Tax Act, 2003 in respect of the services provided by the appellant. The Division Bench of the High Court dismissed the writ appeals holding that vide the agreements in question, there was a transfer of the right to use the goods covered by the contract, and thus tax liability under the Assam General Sales Tax Act, 1993 and the Assam Value Added Tax Act, 2003 was attracted.

The Court referring to Entry 48 List II (duties in respect of succession to agricultural land) and Entry 54 List II (taxes on mineral rights, subject to any limitations imposed by Parliament by law relating to mineral development) of the Schedule 7 to the Constitution of India held that expression “sale of goods” will have to be given the same meaning as defined in the Sale of Goods Act, 1930. Referring to the judgments of State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.³² and K.L. Johar & Co. v. CTO³³, Court discussed the earlier position prior to the 46th Amendment to the Constitution of India wherein State Legislature was empowered to levy tax on the sale of goods only, when there was a sale within the meaning of the Sale of Goods Act, 1930, the necessary ingredient of which is a transfer of property in the goods constituting subject-matter of sale from the seller to the buyer. However, vide the 46th Amendment of Constitution of India, with effect from February 1983, Clause 29-A titled as “tax on sale or purchase of goods”, was introduced and added to Article 366, the relevant extract of which read as under:

(29-A) “tax on the sale or purchase of goods” includes—

(a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration;

(b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;

(c) a tax on the delivery of goods on hire-purchase or any system of payment by instalments; and

(d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;

Thus, tax on the sale or purchase of goods included an arrangement wherein the right to use said goods was transferred for any purpose. The Assam Value Added Tax Act, 2003 introduced with effect from April 2005 repealed the earlier applicable Assam General Sales Tax Act, 1993 and was introduced in conformity with the amended Article 366 as per the 46th Amendment to the Constitution of India. The Court in the batch of appeals was dealing with the following categories of agreements, whilst examining whether the transaction covered under the said agreements constituted the sale under Clause 29-A(d) to Article 366 of Constitution of India. The categories of cases were as follows:

(a) agreements for hiring cranes;

(b) agreements for hiring trucks;

(c) agreements for hiring of buses;

(d) agreements for transportation of petroleum products by vehicles;

(e) agreements for hiring trailers;

(f) agreements for hiring water tankers; and

(g) agreements for hiring of scrapping winch chassis.

Clause 29-A was thus held to have introduced the concept of “deemed sale”, whereunder the transfer of the rights to use goods, even without the actual sale/transfer of the goods per se was also treated as exigible to sales tax. The Constitution Bench judgment of 20th Century Finance Corpn. Ltd. v. State of Maharashtra³⁴ was referred to in the above context for interpreting the ambit and scope of Clause 29-A. However, the precise issue before the Constitution Bench was “the actual situs of the taxable event on the transfer of right to use goods, in the event of inter-State transfer (transfer in different States)”. The Constitution Bench held that levy of tax under Clause 29-A(d) is not on the “use of goods”, but on the “transfer of the right to use goods” and therefore wherever the right to use goods accrues by virtue of the transfer, the taxable event would be presumed to have happened in such State. This is regardless of the situs of delivery of goods or the venue of the execution of the written agreement between the parties. But in an oral or an implied transfer of the right to use goods, without any written agreement, the taxable event would be presumed to have happened where the delivery of goods is affected.

Another judgment in BSNL v. Union of India³⁵ was referred to for interpreting Clause 29-A of Article 366. Various tests and determining factors were laid down vide paras 74 and 75 in the judgment of BSNL case³⁶ for determining situs of the taxable event (the site of transfer of the use of goods) were laid down. It was broadly held that to attract Clause 29-A(d), not only the goods must be available at the time of transfer, but they must be deliverable and delivered at some stage. The following broad tests were laid down in the judgment of BSNL case³⁷, for determining the happening of transaction of the transfer of the right to use the goods:

(a) the transferee should have a legal right to use the goods — consequently all legal consequences of such use including any permissions or licences required therefor should be available to the transferee;

(b) for the period during which the transferee has such legal right, it has to be the exclusion to the transferor — this is the necessary concomitant of the plain language of the statute, viz. a “transfer of the right to use” and not merely a licence to use the goods; and

(c) having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same rights to others.

The aforementioned factors were also popularly termed as the “panchratna test”.

Accordingly, the Court held that the levy of tax under Article 366(29-A)(d) has to be on the transfer of the right to use goods, which accrues only on the account of the transfer of the right and not necessarily on the delivery or transfer of possession of the goods. The right to use the goods arises only on the transfer of such rights to use the goods, to the complete exclusion of the lessor. The Court accordingly in the backdrop of above principles examined whether the agreements constituting the subject-matter of the disputes constituted a “deemed sale” under Article 366(29-A)(d) to return the following findings.

Salient features of the agreement, which weighed against the presumption of transfer of right to use the goods from the lessor to the lessee (that is the appellant to the Oil and Natural Gas Corporation/Indian Oil Corporation Ltd.) were as follows:

(a) In case of a crane turning defective during use, immediately another crane of similar specifications would be offered as a replacement by the contractor, meaning thereby that contract does not remain confined only to the two cranes described under the agreement, but the contract extends beyond them to include the replaced cranes as well.

(b) The operational staff such as driver, crane operator, rigour slinger, khalasi, cleaner, etc. are all to be provided by the contractor, which are obligated to operate the cranes with requisite safety accessories. All these safety accessories and measures have to be undertaken regarding safety in the usage of the cranes by the contractor at his own cost and expenses, which are not being defrayed separately by the Oil and Natural Gas Corporation/Indian Oil Corporation Ltd.

(c) The responsibility to ensure that vehicles supplied under the agreement conform to the statutory provisions, norms and standards as laid down under the Motor Vehicles Act, 1988³⁸, rules and regulations framed thereunder are also entirely that of the contractor, including the responsibility of taking insurance, which also is on the shoulders of the latter.

In view of the aforementioned clauses, after analysing them threadbare the Court held that the contract was at the highest only for providing the services of supply/hiring of motor vehicles to the Oil and Natural Gas Corporation/Indian Oil Corporation Ltd. and could not have been treated as tantamounting to transfer of the right to use the cranes. The stipulations in the agreement did not meet the five panchratna tests as laid down in the judgment of BSNL case³⁹.

The Court in the same vein accordingly examined the various agreements of other contracting parties of various categories/subject-matter and held that even the covenants therein did not amount to transfer of the right to use, attracting tax liability under Article 366(29-A)(d).

The Court then referred to Section 65(105)(zzzzj) of the Finance Act, 1994, which introduced taxable services pertaining to supply of tangible goods including machinery, equipment and appliances for use. It was held that since there was no transfer/sale having taken place under the agreements in question as aforestated, the transactions were in the nature of rendering service within the meaning of Section 65(105)(zzzzj) of the Finance Act, 1994. Accordingly, the Court allowed all the appeals of the assessees by holding that contracts were not covered by the relevant provisions of the Assam General Sales Tax Act, 1993 or the Assam Value Added Tax Act, 2003 and accordingly the demand notices issued thereunder were cost. However, liberty was given to the Union of India to initiate proceedings towards recovery of service tax under the amended provisions of Section 65(105)(zzzzj) of the Finance Act, 1194. The batch of appeals were accordingly disposed of.

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(5) State of H.P. v. Yogendera Mohan Sengupta⁴⁰

(Delivered on 11-1-2024)

Coram: 2-Judges Bench of Justices B.R. Gavai and Aravind Kumar; JJ.

Majority Opinion Authored by: His Majesty Justice B.R. Gavai

Challenge was made to the judgment an order of the National Green Tribunal, wherein various directions were issued pertaining to development/master plan framed for the Shimla Planning Area. National Green Tribunal first restrained the State from taking any further steps in pursuance of the Draft Development Plan and through the second order held that the Draft Development Plan conflicting with its previous order was illegal and resultantly unforeseeable. The National Green Tribunal had banned all types of construction activities in the green belt areas of Shimla which were notified and covered under earlier notification of December 2000. Thereafter the ambit of the said order was enlarged banning all types of construction activities in the entire Shimla Planning Area, beyond 2 storeys. These sweeping directions passed by the National Green Tribunal constituted the core of the challenge before the Supreme Court. The Supreme Court whilst considering the challenge discussed various facets of scope of interference in the town planning and urban administration matters by the National Green Tribunal.

Legislative scheme and nature of powers under the Himachal Pradesh Town & Country Planning Act, 1977

Referring to various provisions of the Himachal Pradesh Town & Country Planning Act, 1977, Court held that development plan consists of various factors, inter alia the proposals for general landscaping and preservation on natural areas; measures for flood control, protection against landslides, prevention of air and water pollution and other such facets as also mentioned under Section 18.

The perusal of the whole Act leaves no manner of doubt that the Himachal Pradesh Town & Country Planning Act, 1977 is a complete code, whereby final plan is given effect to after inviting objections and suggestions at 2 stages. Firstly, under Section 19 where a Director invites objections and suggestions to the Draft Development Plan and secondly, under Section 20 when the State Government extends an opportunity of hearing before final approval to the Draft Development Plan. Thus, the nature of powers vested with the Director and the State Government are for enacting a piece of delegated legislation. Referring to the judgment of Union of India v. Cynamide India Ltd.⁴¹, it was held that exercise of legislation is a process of formulating the general rule of conduct without reference to particular cases and usually operating in future. Exercise of administration, to the contrary, is performing of acts, of issuing orders or of making decisions which apply general rules to particular cases. The exercise of legislation involves rule-making as a norm towards formulation of requirements having a general application to all the members of a broadly identifiable class, whilst the exercise of administration is application and adjudication of the aforesaid normative rules to specific individuals or situations. The distinction between the two usually is explained as the one between the general and the particular. Applying the aforesaid principle accordingly it was held that preparation, consideration of objection and finalisation of the Draft Development Plan under the provisions of the Himachal Pradesh Town & Country Planning Act, 1977 by the Director and the State Government are all legislative functions, which would later have a general application to all the members of the broadly identifiable classes. The Court referred to the judgment of Tulsipur Sugar Co. Ltd. v. Notified Area Committee⁴², wherein declaration under Section 3 of the Uttar Pradesh Town Areas Act, 1914 was held to be possessing legislative character in nature. Likewise, reference was made to the judgments of Sundarjas Kanyalal Bhatija v. Collector⁴³, Pune Municipal Corpn. v. Promoters and Builders Assn.⁴⁴ and BDA v. Aircraft Employees Coop. Societies Ltd.⁴⁵, to hold that procedural requirement of hearing would not be implied in the exercise of legislative power by any statutory authority, unless the statute itself so provides for. Thus, the preparation, finalisation and approval of the Draft Development Plan is a power exercised by the delegatee for enacting a subordinate piece of legislation and a facet of legislative powers.

Sustainability of directions by the National Green Tribunal to exercise legislative functions/powers in a particular manner

The Court next examined whether the National Green Tribunal could have issued directions to the Shimla Planning Area to enact the development plan in a particular manner, more so when such powers were inherently legislative in nature. Referring to the judgment of V.K. Naswa v. Union of India⁴⁶, the Court held that courts in exercise of judicial powers can neither legislate, nor issue any direction to the legislature to enact any provision in a particular manner. Courts cannot usurp functions assigned to the executive under the Constitution requiring them to exercise their law-making power in any manner. Assumption of supervisory role over the rule-making power of the executive under the constitutional provisions of legislative powers entrusted to the delegatee under statute cannot be performed by the courts. The primary role of the courts is to interpret the law admittedly and not make the loss. Referring further to the judgment of Manoj Narula v. Union of India⁴⁷, wherein the question before the Constitution Bench was whether by taking recourse to the doctrine of advancing constitutional culture, could the Court read and add a disqualification to the already expressed disqualifications existing under the Constitution of India or the Representation of the People Act, 1951⁴⁸, the Constitution Bench held that the said would tantamount to crossing the boundaries of judicial review. Thus, when the Supreme Court or the High Courts in their extraordinary powers under Articles 32 and 226 cannot issue any directions for filling the legislative vacuum left open intentionally by the legislature. A tribunal like the National Green Tribunal constituted under statute possessing a limited jurisdiction cannot all the more do so. Accordingly, the Supreme Court set aside the orders and directions of the National Green Tribunal on the short ground that it transgressed its limitations, attempting to encroach upon the field reserved for the delegatee which is vested with the powers of framing delegated legislation. The National Green Tribunal could not have clearly imposed factors on such powers directing the delegatee under the statute to exercise powers in a particular manner.

Discussion on Development Plan 2041 of Shimla Planning Area

The Court noted that whilst preparing the Draft Development Plan, the suggestions and directions given by National Green Tribunal were complied with and incorporated. Insofar as direction pertaining to greenbelt areas was concerned, only reconstruction would be permissible, that too on old lines and complete prohibitions were proposed for new constructions. Qua forest lands, no construction upon them was permissible, unless clearance under the Forest (Conservation) Act, 1980 is procured. Similarly, recommendations with respect to sinking and sliding areas were also duly incorporated and unless a soil investigation report was provided by the applicant before construction/reconstruction of the building for the areas falling in sinking and sliding zones, construction would be impermissible. The Court thus found that due care had been taken to ensure that environmental aspects are taken care of whilst preparing the development plan by the Himachal Pradesh Town & Country Planning Act, 1977. The National Green Tribunal could not have directed the delegatee of the statutory powers under the Himachal Pradesh Town & Country Planning Act, 1977 to do so in a particular manner and directions of the National Green Tribunal tantamounted to imposition of additional fetters on the exercise of its powers, not mentioned in the parent statute.

Further, when the High Court was already seized of the very same issue with the proceedings challenging the Draft Development Plan pending before it, the National Green Tribunal ought not to have jumped into the issue. Referring to the judgment of L. Chandra Kumar v. Union of India⁴⁹, it was held that powers of judicial review vested in the constitutional courts under Articles 32 and 226 of the Constitution of India are integral and essential features of the Constitution of India, constituting part of its basic structure. However, in the case of tribunals, if the subject-matter of the legislation falls within its jurisdiction, then they are competent even to test the vires of the said legislation. Thus, the continuation of proceedings by the National Green Tribunal during the pendency of the writ proceeding before the High Court was not in conformity with the principles of judicial propriety. Both the orders of the National Green Tribunal were therefore unconstitutional, being unsustainable more so on the grounds of judicial impropriety.

Balancing development vis-à-vis environmental protection

The Court held that the balance between development on one hand and environmental protection/preservation of the ecology is a delicate one but has to be made by the courts. Referring to the judgment of Indian Council for Enviro-Legal Action v. Union of India⁵⁰, it was held that while economic development should not be allowed to take place at the cost of ecology, at the same time the necessity to preserve ecology and environment should not be hampering economic and other developments. The developmental activities must be carried out in such a way that unnecessary environmental degradation does not happen and at times it is to prevent ecological imbalance and degradation itself that developmental activity is being regulated. Referring further to the judgment of Essar Oil Ltd. v. Halar Utkarsh Samiti⁵¹ and N.D. Jayal v. Union of India⁵², Court held that balance between environmental protection and developmental activities could be maintained by following the principles of “sustainable development”; a development strategy that caters to the needs of the present without negotiating the ability of upcoming generations to satisfy the needs. It puts us on the path which ensures development while protecting the environment, a path that works for all and for all generations. Accordingly, while ensuring developmental activities for meeting the demands of the burgeoning population, issues of environmental and ecological protection must be also properly addressed too.

Conclusion

The Court accordingly concluded that there are sufficient safeguards that balance the development as well as environmental and ecological concerns. The development plan has been finalised after inputs from various experts from various fields, after taking recourse to statutory provisions and undergoing the rigors there too. The same therefore cannot be stalled in its entirety putting the entire developmental activities to a standstill. The Court accordingly allowed the civil appeal, setting aside the orders passed by the National Green Tribunal. It permitted the State of Himachal Pradesh to proceed with the implementation of the development plan, however giving liberty to any person to raise the grievance before appropriate forum in relation to any specific provision in the development plan, if found detrimental to the ecology. The pending applications were accordingly disposed of.

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(6) Priyanka Prakash Kulkarni v. Maharashtra Public Service Commission⁵³

(Delivered on 29-1-2024)

Coram: 2-Judges Bench of Justices Vikram Nath and Satish Chandra Sharma; JJ.

Authored by: His Majesty Justice Vikram Nath

Challenge was laid to the decision of the Bombay High Court, dismissing the writ petition and affirming the decision of the Maharashtra Administrative Tribunal. The petitioner participated in the selection and recruitment process carried out by the Government of Maharashtra. The advertisement contemplated the benefit of female reservation to the female candidates on satisfying two conditions: (i) that the candidate must be a domicile of Maharashtra; and (ii) that the candidate must belong to the non-creamy layer. Vide Clauses 5.10 and 5.14, the candidate was obligated to submit a non-creamy layer certificate issued by the competent authority, valid as on the last date of submission of the application form i.e. 1-6-2022. The petitioner in the present case applied for the aforesaid examination under the “open general category” on account of her inability to produce a valid non-creamy layer certificate, but admittedly and undoubtedly the appellant was otherwise eligible to apply under “reserved female category” qua the underlying examination. In the meanwhile, during the progress of the selection process, the Other Backward Classes (OBC) Department of the State issued a corrigendum enabling candidates to submit non-creamy layer certificate valid in the current financial year as against the non-creamy layer certificate valid on the last date of submission of the application form. The petitioneraccordingly obtained a non-creamy layer certificate in March 2023, who was otherwise eligible as on 1-6-2022. The appellant thereafter made representation to the respondent to consider her candidature as a “reserved female category” candidate, which was rejected. This led to proceedings before the Maharashtra Administrative Tribunal and the Bombay High Court up to which the petitioner was unsuccessful. It was stated before the Supreme Court that a number of other candidates who were not eligible on the date of application had been granted the benefit by virtue of the corrigendum without a valid non-creamy layer certificate. Court found that appellant never indulged into any misrepresentation or furnishing of incorrect information of being in possession of valid non-creamy layer certificate as she participated against the “open general category”. The Court thus held that appellant could not have been unfairly deprived of the benefit of female reservation, when admittedly she was otherwise eligible for the same. Courts should not adopt a hypertechnical interpretation of the instructions in the advertisement without appreciating that such an interpretation would nullify the effect of the corrigendum issued by the State Government. Since the appellant is a meritorious candidate, having cleared the mains examination under the “open general category”, despite being otherwise eligible for the benefit of female reservation, the Supreme Court balanced the equities and invoking extraordinary powers under Article 142⁵⁴ of the Constitution of India directed the respondent to forthwith treat the appellant under the head of “reserved female category”. The SLP was accordingly disposed of.

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(7) T.N. Godavarman Thirumulpad v. Union of India⁵⁵

(Delivered on 31-1-2024)

Coram: 3-Judges Bench of His Majesty Justices B.R. Gavai, P.S. Narasimha and Prashant Kumar Mishra; JJ.

Authored by: His Majesty Justice P.S. Narasimha

The judgment related to institutionalisation and reconstitution of the Central Empowered Committee. The Central Empowered Committee was constituted by the Supreme Court through its order dated 9-5-2002 as an ad hoc body. However, due to various circumstances in March 2023, the Supreme Court agreed to have a relook at the Central Empowered Committee’s functioning due to various circumstances to be detailed below. In the meanwhile, Ministry of Environment, Forests and Climate Change, Union of India through its notification of September 2023 issued under Section 3(3)⁵⁶ of the Environment (Protection) Act, 1986 constituted Central Empowered Committee as a permanent body for the purposes of monitoring and ensuring the compliance of orders of the Supreme Court in the matters of environment, forests and wildlife and related issues arising out of the said orders. The Court was thus called upon to lay down the way forward for the Central Empowered Committee after its institutionalisation and reconstitution as a statutory authority/body.

Original constitution and functioning of Central Empowered Committee till 2023

A series of orders were passed by the Supreme Court for the protection of forests and regulation of non-forest activities, commencing from the year 1996. Initially Committees at the State level were directed to be constituted for overseeing the compliance of the orders and directions of the Supreme Court, as also constitution of a High-Powered Committee for supervising the transportation of illegally cut timber, and other such connected aspects.

Eventually the Central Empowered Committee was constituted through order dated 9-5-2002 for monitoring the implementation of Supreme Court’s orders, presenting cases of non-compliance and stood constituted as a stop gap arrangement till the time Central Government constituted a statutory body under the provisions of the Environment (Protection) Act, 1986. The composition as well as powers and functions of the Central Empowered Committee were all finalised by the Supreme Court from time to time. From time to time the new members were directed to be appointed replacing the old members, whose term had expired.

Developments in 2023

The issue of reconstitution of the Central Empowered Committee was taken up in the context of a report filed regarding permission to construct a convention centre at Patnitop. The Court observed that Central Empowered Committee could not have given a report which questions the correctness or otherwise of the orders passed by the Court itself that constituted it, nor can Central Empowered Committee become an appellate authority regarding orders passed by the Supreme Court. A necessity was thus felt thereafter to have relatively younger personreplacing the present incumbents in the Central Empowered Committee. In the meanwhile, the Government of India came up with the proposal for the formalisation and reconstitution of the Central Empowered Committee as a statutory authority. In persons thereof the notification constituting the Central Empowered Committee as aforementioned under Section 3(3) of the BPA was issued on 5-9-2023. The mandate of the Central Empowered Committee under the notification is to monitor, supervise and ensure effective compliance of orders passed by the Supreme Court in the proceedings of T.N. Godavarman Thirumulpad v. Union of India⁵⁷. Thus, instead of being an ad hoc body, the Central Empowered Committee now stands as a permanent institutionalised body with its powers, functions, mandate, members, and all other such facets being clearly delineated statutorily. The Court accordingly directed the Central Empowered Committee further to adopt certain measures for promoting institutional transparency, efficiency and accountability in its functioning. These directions primarily related to formulation of operating procedures, delineating the role of its members; formulating guidelines about the public meetings it holds and making them absolutely transparent so as to boost public confidence in the said exercise of public participation; fixing of time-limits for preparation of reports and the manner of preparation of the said reports by the Central Empowered Committee, whichever and whenever are so required by the Supreme Court.

Environmental rule of law

The Court then explicated the principle of environmental rule of law as environmental governance that is guided by the fundamental tenets of rule of law. It ensures effective, accountable and transparent institutions; responsive, inclusive, participatory and representative decision-making and public access to information. Rule of law in environmental governance seeks to redress the issue of ineffective implementation of diversity of laws pertaining to environment, forest, wildlife, sustainable development, etc. Accountability of the authorities impressed with the duty to enforce and implement environmental and other ecological laws is an important facet of judicial governance. Referring to the judgment of Vijay Rajmohan v. CBI⁵⁸, Court stated that constitutional courts must undertake judicial review to ensure that institutions and regulatory bodies comply with the principles of environmental rule of law, whilst overseeing the three factors of accountability of the law-enforcing agencies: responsibility, answerability and enforceability.

Existing institutional governance of the environment in India

The Court then proceeded to refer to various bodies constituted under various different legislations concerning the environment, forests and wildlife. In the said exercise the Court referred to seven Boards/authorities and tribunals constituted as the principal bodies constituted for regulating the environment. These seven bodies are as follows:

(1) Central Pollution Control Board and State Pollution Control Board (SPCB).

(2) Authorities under the Wild Life (Protection) Act, 1972⁵⁹, including National Tiger Conservation Authority.

(3) Advisory Committee constituted under the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980⁶⁰.

(4) State Environment Impact Assessment Authorities constituted under the Environment (Protection) Act, 1986.

(5) National Biodiversity Authority and State Biodiversity Boards under the Biological Diversity Act, 2002⁶¹.

(6) National Green Tribunal under the National Green Tribunal Act, 2010⁶².

(7) National Coastal Zone Management Authority and State Coastal Zone Management Authority constituted on the directions of the Supreme Court in S. Jagannath v. Union of India⁶³.

(8) Central Groundwater Board constituted under Section 3(3) of the Environment (Protection) Act, 1986 on the directions of the Supreme Court in the matter of M.C. Mehta v. Union of India⁶⁴.

Apart from the above, the Court enlisted almost 26 statutory bodies constituted under various enactments involved in environmental governance, which are constituted with persons having expertise in the field. Accordingly, a question was posed by the Court how effectively these environmental bodies are functioning. This question arose because the precious time of constitutional courts is focused on decisions and actions taken by executive or private persons impacting the environment and ecology despite the presence of various authorities/courts/tribunals constituted under the environmental enactments. Despite so many bodies, their scrutiny had been found to be insufficient and wanting in credibility. The role of the constitutional courts is not to directly deal with the actions of the executive or private parties, but to monitor the proper institutionalisation of environmental regulatory bodies and authorities in a manner which ensures effective functioning of all of them and the implementation of environmental laws at the grassroot level. The Court accordingly propounded certain directions and guidelines for all such statutory bodies, authorities, regulators and executive offices enacted under the environmental enactments to function in a more streamlined and effective manner. These directions and guidelines were broadly as follows:

(i) The composition, qualifications, tenure, method of appointment and removal of the members of these authorities must be clearly laid down. Further, the appointments must be regularly made to ensure continuity, and these bodies must be staffed with people who have the requisite knowledge, technical expertise, and specialisation to ensure their efficient functioning.

(ii) The authorities and bodies must receive adequate funding, and their finances must be certain and clear. The mandate and role of each authority and body must be clearly demarcated so as to avoid overlap and duplication of work and the method for constructive coordination between institutions must be prescribed.

(iii) The authorities and bodies must notify and make available the rules, regulations, and other guidelines and make them accessible by providing them on the website, including in regional languages, to the extent possible. If the authority or body does not have the power to frame rules or regulations, it may issue comprehensive guidelines in a standardised form and notify them rather than office memoranda.

(iv) The authorities and bodies must notify norms for public hearing, the process of decision-making, prescription of right to appeal, and timelines. These bodies must prescribe the method of accountability by clearly indicating the allocation of duties and responsibilities of their officers.

(v) There must be a regular and systematic audit of the functioning of these authorities.

The Court accordingly concluded the proceedings on the aforesaid issue of the Central Empowered Committee.

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(8) Sushil Kumar Pandey v. High Court of Jharkhand⁶⁵

(Delivered on 1-2-2024)

Coram: Division Bench of His Majesty Justices Aniruddha Bose and Sanjay Kumar; JJ.

Majority Opinion Authored by: His Majesty Justice Aniruddha Bose

The two writ petitions were filed under Article 32 challenging the legality of selection process of District Judge cadre in the State of Jharkhand initiated in 2022. Based on cut-off marks specified in the advertisement as also in the Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001 (for short, “2001 Rules”) select list of 66 persons was published against 22 published vacancies applying the 1:3 ratio. The High Court, however, on its administrative side recommended only 13 candidates, against the declared vacancies of 22, on the basis of a resolution passed in a Full Court meeting of the High Court. One of the criteria in the advertisement was that the candidate must, irrespective of the marks obtained in the main examination, get at least 20 marks out of 40 in the viva voce test. The admitted position is that 9 candidates who were left out from being recommended by the Full Court for appointment had found place in the select list in terms of Rule 21 of the 2001 Rules. The writ petitions were filed questioning the exclusion of the 9 candidates by the High Court. The two primary arguments based on which the said selection process was challenged were as follows:

(a) The decision of the Full Court on the administrative side goes contrary to the recruitment rules and the advertisement.

(b) In any event after the performance of each of the candidate was known as also marks obtained by them in the examination are disclosed in aggregate, it was impermissible for the High Court to have introduced fresh cut-off marks, by relying upon the judgment of Sivanandan C.T. v. High Court of Kerala⁶⁶. The High Court administration has raised the bar in the aggregate marking and not in the viva voce perse.

Consideration of contentions by the Court

The Court held that the ratio of K. Manjusree v. State of A.P.⁶⁷, still holds the field, even though the issue has been referred to the larger Bench. Referring to Rule 18 of the 2001 Rules, Court held that task of setting the cut-off marks has been vested in the High Court under the Rules, but it has to be done before the start of the examination departure from the statutory Rules at a later stage is impermissible. Though the High Court administration’s argument is accepted that a candidate finding place in the select list acquires no vested legal right for being appointed to the post in question but precluding him from appointment without there being a finding on such candidate’s unsuitability is not only in violation of the recruitment Rules, but also falls foul of Article 14 test being inherently arbitrary. The very expression “aggregate marks” means combination of two or more processes and in the event the procedure for arriving at the aggregate has been laid down in the applicable rules and the advertisement, a separate criterion cannot be carved out for enabling change in the manner of making the aggregate marks. The High Court could not have been permitted to alter the selection criteria after the performance of the individual candidate was assessed and disclosed. Referring to Paras 14 and 15 of the Constitution Bench judgment in Sivanandan C.T. case⁶⁸, it was stated that High Court administration was not permitted to alter the selection criteria after the selection process stood concluded and marks declared of all the candidates.

Accordingly, the Court allowed the writ petitions whilst directing the High Court to make recommendations for all those candidates who had been successful as per merit or select list for filling up the remaining notified vacancies without applying the Full Court resolution requiring each candidate be 50% aggregate marks. Accordingly, the Full Court resolution was quashed through which candidates who had cleared the entire selection process were required to possess at least 50% marks in aggregate for being appointed to the post of District Judge. The writ petitions were allowed accordingly.

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(9) Chandigarh Housing Board v. Tarsem Lal⁶⁹

(Delivered on 7-2-2024)

Coram: 2-Judges Bench of Justices B.V. Nagarathna and Augustine George Masih; JJ.

Majority Opinion Authored by: Her Majesty Justice B.V. Nagarathna

The appeal came to Supreme Court against the judgment of the Punjab & Haryana High Court, which held that candidate from another State holding Scheduled Tribes certificate will not be debarred from availing the benefit of reservation for allotment of dwelling units under the policy of the State Government in the Union Territory of Chandigarh.

Necessary facts constituting the lis

The appellant Chandigarh Housing Board invited applications for allotment of houses exclusively for Scheduled Castes and Scheduled Tribes, which dwellings were reserved for that purpose. Vide the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 provisions for reservation of 12.5% of total number of dwelling units were made for Scheduled Castes and Scheduled Tribes. The eligibility clause required the applicant concerned to have been a domicile or regular resident of Union Territory of Chandigarh for a period of at least 3 years on the date of submission of the application. The matter travelled up to the High Court, which held that holder of Scheduled Tribe certificates from other States were not debarred from availing the reservation facility. It was contended in challenge to the aforesaid judgment of the High Court that no presidential order enlisting the list of Scheduled Tribes has been issued vis-à-vis the Chandigarh Union Territory.

Consideration by the Court

Referring to Articles 341⁷⁰ and 342⁷¹ of the Constitution of India, it was held that public notification of tribes or tribal communities by the President upon consultation with the Governor is a sine qua non for deeming such tribes or tribal communities to be Scheduled Tribes in relation to that State or Union Territory for the purposes of the Constitution of India. It was held that in the absence of specific mention of the caste/tribe under the provisions of Constitution (Scheduled Tribes) Order, 1950, it was impermissible to hold an inquiry by any authority and declare that any tribe or tribal community is entitled or deemed to have been included in the list of Scheduled Tribes. Reference in this respect for me was made to the Constitution Bench judgment of the Supreme Court in State of Maharashtra v. Milind⁷².

Likewise, it is not open to any judicial body to modify or vary the Constitution (Scheduled Tribes) Order, 1950 for grant or extension of any benefit to members of the Scheduled Tribe community. The word “Scheduled Castes” and “Scheduled Tribes” are used in the sense of definitions contained under Articles 366(24) and 366(25), and therefore, the precondition for extending any benefit of caste or tribe is the specification explicitly by the President. The Court further referred to the judgment of Marri Chandra Shekhar Rao v. Seth G.S. Medical College⁷³, wherein it was held that merely because given caste is specified in State A as Scheduled Caste, does not necessarily mean that another caste bearing the same nomenclature in another State B becomes equivalent and that privileges and benefits become admissible to members of the Scheduled Caste of the former. A person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste enjoying the same status of a Scheduled Caste in relation to any other State to which he migrates for the purposes of employment or education. Since the enlisting and issuance of notification by the President under Articles 341 and 342 is confined to the geographical territories of the State/Union Territory concerned, therefore the benefit/advantages available in one State cannot be transplanted or claimed in another State on the basis that the very same nomenclature is mentioned either as Scheduled Caste or Scheduled Tribe. It is the Parliament alone which has been vested with the power to vary, modify the notification issued by the President or extend the benefit of Scheduled Caste/Scheduled Tribe beyond one State in other States or Union Territory, that too by enactment of a law, and not otherwise. Any expansion/deletion of the list of Scheduled Castes/Scheduled Tribes, other than the Parliament, would be against the constitutional mandate and resultantly unconstitutional. The Court thus found that appellant Board had erroneously issued the advertisement inviting applications for allotment of houses from both Scheduled Castes and Scheduled Tribes, when no such reservation admittedly for Scheduled Tribes could have been made without strict compliance with Article 342. The advertisement was therefore found to have been issued without necessary jurisdiction and authority and therefore decrees issued on the said ground of the advertisement were clearly untenable and also liable to be set aside as a necessary consequence.

The Circular/departmental order of November 1985 therefore was held to be contrary to the law laid down by the Supreme Court since the circular enabled the person to claim benefit on the basis of his status as a Scheduled Tribe in the State of his origin, to the place where he had migrated. Therefore, the person cannot claim his status on the said basis, since the very advertisement was against the constitutional provisions. Accordingly, the judgment of the High Court as well as the lower courts were set aside and it was held that since there are no Scheduled Tribes were ever notified for Union Territory of Chandigarh, any reference made in the brochure, contrary to Article 342 of the Constitution of India shall not be sustainable. The appeal was accordingly allowed in the aforesaid terms.

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(10) Enforcement Directorate v. Bablu Sonkar⁷⁴

(Delivered on 9-2-2024)

Coram: 2-Judges Bench of Justices Abhay S. Oka and Ujjal Bhuyan; JJ.

Majority Opinion Authored by: His Majesty Justice Abhay S. Oka

The first respondent filed the writ petition before the Bombay High Court for quashment of the complaint filed by the Enforcement Directorate under the Prevention of Money-Laundering Act, 2002. In the writ petitions filed, there was no interim relief granted earlier pending the hearing of the petition. After the same was finally heard and reserved for final judgment on 21-4-2023, the roster of the Bench concerned was only up to 4-6-2023, which was changed to be vested with another Bench, with effect from 5-6-2023. However, on 26-6-2023, the writ petition of the respondent was listed for further hearing and the impugned order came to be passed in chambers on the said day. The Bench recorded that there were similar matters involving the same issue, and the judgment will have impact on other cases also which were pending. The Single Bench accordingly re-reserved the judgment after reopening it, whilst tagging it with other connected matters for being decided in accordance with law of similar nature. The respondent was, however, in the said in-chamber proceedings directed to be released on interim bail by the Special Court in relation to the said enforcement case information report (ECIR). It is this order which came to be challenged before the Supreme Court.

The Supreme Court found that on the date the case was released, the roster of the said writ petition was being notified to be dealt with by another Bench. The grant of bail whilst releasing the said writ petition is shocking, as even if such a prayer could have been made, the Bench was not competent to hear the said prayer for grant of bail, which could have been heard only by the roster Bench, as notified by the Chief Justice and none else. The bail was also granted in the said offence under the Prevention of Money-Laundering Act, 2002 without recording any reasons meeting the twin conditions, by vaguely observing that the same is being granted to “strike a balance”.

The Court further observed that the roster notified by the Chief Justice is not an empty formality, which binds all the Judges. Without any prayer for grant of bail, the Bench could not have heard the case unless it was so specifically assigned to it by the Bench of the Chief Justice. Accordingly, the impugned order granting bail was set aside by the Supreme Court, whilst directing the respondent to surrender and apply afresh for grant of bail before the roster Bench, so notified by the Chief Justice. Accordingly, the appeal was partly allowed.

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(11) Union of India v. Ex. Lt. Selina John⁷⁵

(Delivered on 14-2-2024)

Coram: 2-Judges Bench of Justices Sanjiv Khanna and Dipankar Dutta; JJ.

Majority Opinion Authored by: His Majesty Justice Dipankar Dutta

The Supreme Court affirmed the conclusions drawn in the judgment impugned before it of the Armed Forces Tribunal, Lucknow (for short, “AFT”). The AFT had held the respondent Ex. Lt. Selina John’s release from the Military Nursing Service as wrong and illegal, since she was released/discharged on the ground that she had got married. The respondent was a Permanent Commissioned Officer in the Military Nursing Service and was being removed by way of a rule which mandated termination of employment, whenever the women got married, which rule was held to be unconstitutional, suffering from the malaise of gender discrimination and inequality. The Supreme Court in turn held that acceptance of such a patriarchal rule undermines human dignity, right to non-discrimination and fair treatment. Referring to the judgment of Anuj Garg v. Hotel Assn. of India⁷⁶, it was held that laws and regulations based on gender-based bias are constitutionally impermissible. Referring to the judgment of C.B. Muthamma v. Union of India⁷⁷ it was held that rules making marriage of women employees and their domestic involvement a ground for disentitlement would also be resultantly unconstitutional. Pertinently, Army instruction on the same subject with the same stipulation for women officers had also been withdrawn earlier in August 1995. The Court however accordingly directed payment of compensation of Rs 60 lakhs to the respondent within a period of 8 weeks as against full and final settlement of all the claims of hers against the appellants. Accordingly, the AFT’s judgment⁷⁸ directing the reinstatement of the respondent with back-wages, etc. was treated as modified in terms of the above direction, wherein instead of reappointment/reinstatement, the compensation amount was directed to be paid and appeal disposed of.

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(12) Manoj Kumar v. Union of India⁷⁹

(Delivered on 20-2-2024)

Coram: 2-Judges Bench of Justices P.S. Narasimha and Sandeep Mehta; JJ.

Majority Opinion Authored by: His Majesty Justice P.S. Narasimha

The appeal was filed against the appellant seeking appointment as a primary school teacher, with both the Division Bench as well as Single Bench of the Delhi High Court having dismissed the writ applications. The petitioner participated in the appointment/recruitment process for the post of primary school teacher, the basic qualification of which was senior secondary with a two-year diploma or certificate course in Elementary Teacher Education (ETE)/IBT or Bachelor of Elementary Education (B ElEd). The candidate was required to have passed the secondary level with Hindi as a principal subject. Initially in the original advertisement, interview requirement was postulated, that was done away after the selection process commenced. Instead, a new criterion was introduced of prescribing additional marks for essential qualifications and additional qualifications. 10 marks were allocated for additional qualifications, the break-up for which was as follows:

SI. No.	Particulars		Marks
(1)	Marks for additional qualifications (maximum)		10
(a)	Postgraduate diploma	5
(b)	Postgraduate degree	6
(c)	Master of Philosophy/professional qualification in the field	7
(d)	Doctor of Philosophy	10

A person possessing a Master of Philosophy degree or professional qualification in the field was thus entitled to allocation of 7 marks for his/her additional qualification. When the result was declared, the appellant was denied the benefit of 6 marks as assured under Entry B (postgraduate degree) on the ground that his postgraduate degree was “not in the relevant subject”. Introduction of this new requirement of postgraduate degree in the “relevant subject” thus became the bone of contention. Had the 6 marks been awarded, he would have been highest in the list with an aggregate of 63.5 marks as against 57.5 marks allocated to him by denying the said 6 marks.

Whilst analysing the arguments of the institute, Court held that Clauses 14 and 19 of the vacancy circular whilst providing flexibility in the selection process to the recruiting authority did not provide room for unbridled discretion to pick and choose candidates by supplying new criteria at every stage of the selection process. Rather the present is a classic case of arbitrary action since Entry C of the table (Master of Philosophy/professional qualification in the field) specifically required qualification in the said field, with a separate mention of postgraduate degree vide Entry B, drawing which shows that the recruiting agency had never conceived postgraduate degree to be required in the relevant field. The Court held that when a citizen alleges arbitrariness in the executive action, the High Court must examine the issue even in academic matters and courts must not let arbitrary action pass through in the name of flexibility in executive functioning. Accordingly, the judgment of the Single Bench and Division Bench were both set aside, but the difficulty lay somewhere else.

The school in which the post had been advertised, and recruitment had been closed already in April 2023 and thus there was no vacancy in the post of primary teacher. Between 2018 to 2024, a lot of time had passed by. The Court then undertook the conceptual discussion of powers of the writ courts in granting reliefs to the litigants, when the subject-matter of the relief dries up during the pendency of the proceedings. It was held that the primary duty of the constitutional court remains in controlling power including setting aside administrative action that may be legally arbitrary. However, there must also be a secondary measure to address the injurious consequences arising from arbitrary and illegal action of the executive and this secondary measure is the concomitant duty to take reasonable measures to restitute the injured. Restitution of the injured is the overarching constitutional purpose whilst securing justice to the litigant, as also spelled out in the Preamble to the Constitution of India.

Identification and application ought to create remedial measures poses a significant challenge to constitutional courts blindly applicable to the dual variables of time and limited resources. The inherent difficulty in bridging the time gap between the illegal impugned action and restitution is certainly not rooted in deficiencies within law or legal jurisprudence, but rather in systemic issues inherent in the legal system and adversarial judicial process. In this stark reality and prevailing circumstances, that an appropriate system for preserving the rights of the parties till the final determination takes place must always be formulated and, in the alternative, when relief cannot be granted, a reasonable equivalent for restitution of the wrongful action be also formulated.

Accordingly, since the petitioner had spent substantial time from the year 2017 till 2024 just like the legendary Vikram (as elucidated in the famous Vetalapancavimshati and Kathāsaritsāgara work of the 11th century by Somadeva), the institute Respondent 2 was therefore directed to pay an amount of Rs 1 lakh as compensation to the appellant within a period of 6 weeks. The appeal was allowed, and both the judgments of the High Court were set aside.

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(13) Kuldeep Kumar v. State (U.T. of Chandigarh)⁸⁰

(Delivered on 20-2-2024)

Coram: 3-Judges Bench of Justices Dr D.Y. Chandrachud, C.J., J.B. Pardiwala and Manoj Mishra; JJ.

Majority Opinion Authored by: His Majesty Justice Dr D.Y. Chandrachud

The appeal was filed against the interim order of the Division Bench of the High Court which had declined to interfere in the alleged electoral malpractices by the Presiding Officer conducting the elections to the post of Mayor in the Chandigarh Municipal Corporation. The High Courts issued notices and listed the petition after 3 weeks, declining to stay result of the election or grant any other interim relief. The election to the post of Mayor was carried out under the provisions of Section 38 of the Punjab Municipal Corporation Act, 1976 (for short, “Act of 1976”). The meeting for the election of a Mayor was to be convened by the prescribed authority who shall nominate a Councillor to preside over the meeting under the applicable statutory provisions, in light of which the Deputy Commissioner of the Union Territory Chandigarh was designated as the presiding authority for the purpose of presiding over the meeting of election of the Mayor. The meeting was accordingly convened on 18-1-2024 of all the Councillors under Section 38 of the Act of 1976 for elections of the Mayor, Senior Deputy Mayor and Deputy Mayor. Before the meeting could take place, a writ petition came to be filed before the High Court with directions to the Presiding Officer of the Deputy Commissioner to ensure holding of free and fair elections for the said posts and for video recording of the entire election process. In pursuance thereof, it was directed that the meeting should be video recorded. The High Court also issued certain directions to ensure free and fair elections, issuing necessary instructions to the Chandigarh police as well for preventing any ruckus, untoward incident in or around the premises of election process.

On the date of election, votes were polled when two candidates were contesting for the post of Mayor and the Presiding Officer declared the result of the election in favour of the Bharatiya Janata Party candidate. Allegations of electoral malpractices were made in this whole process, wherein it was alleged that ballot papers were tampered with and affixed marks at the instance of the Presiding Officer, Mr Masih. The High Court declined to grant interim relief in the said petition alleging malpractices in the whole process, against which the unsuccessful candidate again approached the Supreme Court seeking interference in the whole process. The original records were requisitioned by the Supreme Court, in which it was discovered that besides signing of the ballot, papers marks were also placed in 8 ballot papers during the course of counting of the votes. The production of original ballot papers was also directed under the custody of the Registrar General of the High Court by the Supreme Court to be placed before it. The video footage was also produced before the Supreme Court and directed to be played on open screens during the hearing in Court proceedings.

The Court then undertook discussion on the provisions of the Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations, 1996, specifically Regulation 6 for testing the action and bona fides of the Presiding Officer presiding over the elections. The video footage disclosed that the Presiding Officer, Mr Masih had also placed certain marks on some of the ballot papers, besides signing them, during the counting of the votes. Pertinently, 8 ballot papers on whose marks were placed by Mr Masih were those which were cast in favour of the appellant and the marks were placed to render them invalid at the instance of the Presiding Officer. This was all done to ensure that the opponent contesting candidate wins the election and thus the whole election process had been initiated by such misconduct of the presiding authority. The election to the post of Mayor of Chandigarh had been therefore seriously impaired. The Court found it evident from the physical inspection of the 8 ballot papers that the Presiding Officer had tampered with the ballot papers to create a ground for treating them as having been invalidly cast. It was thus found that the Presiding Officer acted beyond the terms of his limit under the statutory regulations and thus guilty of serious misdemeanour in what he did as the Presiding Officer of the elections. The Presiding Officer had not only unlawfully altered the course of the Mayor’s election but also had expressed a patent falsehood before the Supreme Court despite being warned categorically. Accordingly, the result of elections so declared by the Presiding Officer was held to be plainly contrary to law and accordingly set aside. However, the Court declined to set aside the entire election process in its entirety, since the infirmity was only at the stage when the counting of votes took place and not from its inception. Allowing the entire election process to be set aside would further compound the destruction of fundamental democratic principles which had taken place as a consequence of the conduct of the Presiding Officer.

The Court then held that free and fair elections are part of the basic structure of the Constitution, wherein elections at the local participatory level act as a microcosm of the larger democratic structure in the country. Ensuring a free and fair electoral process therefore is imperative to maintain the legitimacy of and trust in representative democracy. The Court must in appropriate cases step in exceptional situations to ensure that basic mandate of electoral democracy at the participatory level is preserved. The one at hand was not found to be an ordinary case of alleged malpractice by a candidate in an election but electoral misconduct by the Presiding Officer himself. The Supreme Court accordingly ordered and held that the result declared by the Presiding Officer shall stand quashed and set aside and Kuldeep Kumar, the appellant was declared to be validly elected candidate for election as the Mayor of Chandigarh Municipal Corporation. The Court also directed the Registrar (Judicial) to initiate proceedings under Section 340⁸¹ CrPC for making false and incorrect statements and submissions before the Court in the course of judicial proceedings.

The Court also referred to the observations made by the Supreme Court earlier in the judgment of Mohinder Singh Gill v. Election Commission of India⁸² quoting Sir Winston Churchill on the purity and philosophy of democratic elections, which read thus:

2. At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper — no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.

If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men “dressed in little, brief authority”. For “be you ever so high, the law is above you”.

The Court accordingly held that in order to maintain the purity of the electoral process, “little cross” on the “little bit of paper” must be made only by the metaphorical “little man” walking into the “little booth” and no one else.

The writ petition pending before the High Court was accordingly disposed of and the civil appeal kept pending for monitoring the action being taken against the Presiding Officer, Mr Masih.

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(14) Lucknow Nagar Nigam v. Kohli Brothers Colour Lab. (P) Ltd.⁸³

(Delivered on 22-2-2024)

Coram: 2-Judges Bench of Justices B.V. Nagarathna and Ujjal Bhuyan; JJ.

Majority Opinion Authored by: His Majesty Justice B.V. Nagarathna

The issue before the Supreme Court was relating to the enemy properties acquired by the Union of India under the provisions of the Enemy Property Act, 1968⁸⁴ (for short, “Act of 1968”). The civil appeal had been filed by the Lucknow Municipal Corporation, aggrieved by the judgment of the Allahabad High Court which allowed the writ petition filed by the assessee holding that the assessee is exempt from payment of property tax under the provisions of the Uttar Pradesh Municipal Corporation Adhiniyam, 1959 (for short, “The Corporation Act, 1959”). Following issues arose and were considered by the Supreme Court:

(1) Whether statutory vesting of enemy property including the subject property in the Custodian amounts to expropriation and transfer of ownership so as to confer ownership of such enemy property on the Custodian?

(2) Consequently, if the ownership of such enemy property is conferred on the Custodian for Enemy Property, whether such property becomes Union property within the meaning of Article 285⁸⁵ of the Constitution and therefore, it is exempt from payment of property or other local taxes to the appellant Municipal Corporation under the provisions of the Corporation Act, 1959?

(3) Whether despite such enemy property becoming property of the Union, clause (2) of Article 285 of the Constitution enables appellant herein to impose property or other local taxes on the respondent which is lessee of the subject property?

Relevant facts and bird’s eye view of the whole controversy

The Custodian of the enemy property for India falling under the Ministry of Commerce, Government of India issued a certificate in October 2002 stating that the subject property situated in Hazratganj, Lucknow is enemy property vested with the Custodian. The certificate acquiring the said property also explicitly stated that the Custodian was obligated to pay house tax on behalf of this property. Historically prior to the fiscal year 1998-1999, the Municipal Corporation had imposed and collected taxes from the assessee, whereafter the property was being charged on commercial rates on being discovered that commercial establishments were being run from the premises. Referring to the theory of “social contract” of Jean-Jacques Rousseau, it was stated that “war is constituted by relation between things, not between man and man, but between State and State”. The general aim of the administration of enemy property is to eliminate enemy influence from the national economy with the means of custodianship instituted as a fiduciary administration of the said property. The raison d’être of a statutory regime seeking to administer enemy property to a custodianship is to preserve and protect the properties until the war is over. Referring to the history of which categories were treated as enemy property, the reference was made to the wars of 1962 with China, the Indo-Pak war of 1965 as enabling the Government to take over the enemy properties. The Enemy Property Act, 1968 after being enacted thus intended to continue the vesting and maintenance of the property by the Custodian until the Government of India arrived at the settlements with the Governments of enemy countries. In a way, thus the Enemy Property Act, 1968 provided for continued vesting of enemy property as being done earlier with the Custodian for Enemy Property of India under the erstwhile Defence of India Rules, 1962⁸⁶, 1971 and connected matters. The expression “enemy” is defined to mean any individual resident in the enemy territory. Analysing the various provisions, it was thus held that the Enemy Property Act, 1968 provided for continued vesting of enemy property so vested in the Custodian under the Defence of India Rules, 1962. Reference in this respect was made to Sections 3 to 8 of the Enemy Property Act, 1968⁸⁷. After analysing the various provisions and the Enemy Property Rules, 2015⁸⁸, the Court then referred to the provisions of the Municipal Corporation Act, 1959. Referring especially to Sections 172 to 181, the Court elaborated upon the classes to which the levy may be subjected to.

Legal status of the Custodian under the Enemy Property Act, 1968 and nature of ownership in his hands

Referring to Salmond on jurisprudence, the Court stated that “ownership” word used under the Enemy Property Act, 1968 has different implications. “ownership” in a generic sense extends to all classes of citizens, whether proprietary or personal, in rem or in personam, in re propria or in re aliena. A man may have ownership as opposed to possession and he may own a possessory right without owning it also. The third eventuality other than the previous two is the man having both ownership and possession. In the first category possession is a de facto relationship, while in the second it is de jure ownership or relationship. Referring to the provisions of the Transfer of Property Act, 1882⁸⁹, Court stated that acquisition of ownership in relation to any immovable property is by transfer or conveyance, inter vivos. Likewise transfer of ownership of movable property is by sale, gift or exchange, to which the provisions of the Sale of Goods Act, 1930 apply. Referring to the provisions of the various Land Acquisition Act, 1894, it was stated that under their provisions, ownership of the property gets divested, to be vested absolutely in the Government free from all encumbrances. Referring to the judgment of Fruit & Vegetable Merchants Union v. Delhi Improvement Trust⁹⁰, it was held that under the Land Acquisition Act, 1894, property acquired becomes the property of the Government, without any conditions or limitations either as to title or possession when it vests free from all encumbrances in the Government. Ownership is of distinct kinds, which includes also within its ken, both beneficial as well as trust ownership. Referring to Salmond, it was stated that trust property is that which is owned by two persons at the same time, the relation between the two owners being that one of them is under an obligation to use his ownership for the benefit of the other. The former is called the trustee (trust ownership) and the latter is called the beneficiary (beneficial ownership). The Court explicated the nature of trust ownership and role of trustee vis-à-vis the property under his dominion. The trusteeship therefore is to protect the rights and interests of the person who for any reason is unable to effectively protect them for themselves. Likewise, under the Enemy Protection Act, 1968, the Custodian acts as a trustee, whose trust ownership in the enemy property is to be used by him or on behalf of the real owner of the property, who has left the country for an enemy country.

Jurisprudential relationship between possession and ownership

Possession under the Enemy Protection Act, 1968 may vest constructively in the hands of the Custodian, but may be in fact in reality with the third party such as tenant or a mortgagee of the owner of such property. A trustee or Custodian under the Act may have possession of the enemy property, though he claims an exclusive right of the thing on behalf of another than himself. However, he definitely does not have the exclusive right of ownership over the enemy property possessed by him as the ownership of the said property also continues with the enemy. Possession is acquired whenever the two elements of “corpus” and “animus” come into coexistence, with the animus domini one of the essential features. Whenever the two elements of animus and corpus come into coexistence, possession is said to have been acquired. “Possession is the objective realisation of ownership.” Ownership is the guarantee of the law, while possession is the guarantee of the fact.

Analysis and answer to various issues

Interpreting Sections 2(c)⁹¹ and 5(3)⁹² of the Enemy Protection Act, 1968, the Court then answered the question about the nature and extent of rights, title and interest in or any benefit arising out of enemy property vested in the Custodian. Whether the Custodian becomes the absolute owner of the enemy property with vesting of all the rights, titles and interest in, or any benefit arising out of such enemy property. The Court held that such an interpretation of vesting of absolute ownership with the Custodian cannot be held to be arising, which ownership continues to vest with the enemy. The enemy, enemy subject as well as the enemy firm would continue to remain the owner of the property, which simply vests with the Custodian as a trustee. Referring to Sections 7 and 8, the Court then analysed the extent of powers of the Custodian. It was held that Custodian or his authorised person can carry on the business of the enemy; fix and collect the rent, etc. in respect of the enemy property; take action and recover any money due to the enemy; make any contract or execute any document, etc. These activities are being undertaken on behalf of the enemy to protect the business belonging to him who has left the country. All these activities are being done as a trustee, and therefore principles and legal doctrines applicable to the trustee shall be applicable to the Custodian, who can never be the absolute owner of the property.

The Court then explained the “jurisprudential aspect of vesting”. Referring to the judgments of Maharaj Singh v. State of U.P.⁹³ and M. Ismail Faruqui v. Union of India⁹⁴, it was held that “vest” or “vesting” has no precise definition, which has to be interpreted contextually. The vesting under the different enactments takes place at different stages as per the provisions of the statute. The vesting of enemy property in the Custodian is not free from encumbrances. Referring to the judgment of State of Gujarat v. Board of Trustees of Port of Kandla⁹⁵ (Trustees of Port of Kandla) Court held that vesting of property in a personal authority does not always mean transfer of absolute title in the property. The scheme of Section 8-A⁹⁶ of the Enemy Protection Act, 1968 is only to regulate the disposal of enemy property by the Custodian in terms of the directions/guidelines of the Central Government. It is therefore the duty of the Custodian as a trustee to ensure that enemy property is saved from attachment, seizure or sale in execution of a decree of a civil court or orders of any other authority. If the Custodian himself cannot be construed to be owner of the enemy property, the Union of India or the Government of India can also not be so considered.

Thus, when enemy property is not the property under ownership of the Union of India or Government of India, it does not fall within the parameters of Article 285 of the Constitution of India, consequent to which there cannot be any exemption from taxes imposed by the State or by any authority within the State. In light of Section 8(2)(vi), there is no exemption from the payment of property tax available to the Custodian and the property at his disposal is liable to tax in accordance with law including the municipal taxes under the Delhi Municipal Corporation Act, 1957.

The Court then examined the impact of Articles 285 and 289⁹⁷ and immunity from mutual taxation of both the Union and State properties. Referring to the landmark 9-Judge Bench Constitution Bench judgment in New Delhi Municipal Council v. State of Punjab⁹⁸, the Court stated that while the immunity created in the favour of the Union is absolute, the immunity correspondingly in favour of States is a qualified one. Article 289 does not prevent the Union from imposing any tax, authorised by the Parliament on the States. Likewise, immunity under Section 285 is only available qua the property and not the functions, trade or instrumentalities of the Union. Property has to be given the widest meaning to include both tangible as well as intangible one. The immunity from taxation of the property of the Union therefore depends upon the factum of the ownership of the property. For e.g., the State cannot levy road tax on the vehicles owned by the Central Government or the Railways, which all fall under the Government of India.

Accordingly, the Court held that when enemy property does not vest with the Union of India or Government of India as the owner, it cannot be exempted from taxes imposed by the State or by any authority within the State, unless otherwise provided by the Parliament by law. It had never been the intention under the Defence of India Rules, 1962 and 1971 that enemy subjects would lose all their right, title and interest in the properties once the said properties vested in the Custodian. Article 285 would therefore not be attracted.

Resultantly the view taken by the High Court was set aside and it was held that whatever tax amount had already been deposited by the respondent, the same shall not be refunded and from the current financial year of the judgment, the Lucknow Municipal Corporation was authorised to levy and collect the property tax as well as all other municipality taxes from the respondents.

Conclusions of the Court

In view of the above, the Court therefore returned the following conclusions finally after analysing various constitutional and statutory provisions:

(1) That the Custodian for enemy property in India, in whom the enemy properties vest including the subject property, does not acquire ownership of the said properties, but only as trustee for the management and administration of such properties.

(2) That the Central Government may, on a reference or complaint or on its own motion initiate a process of divestment of enemy property vested in the Custodian to the owner thereof or to such other person vide Rule 15 of the Rules. Hence, the vesting of the enemy property in the Custodian is only a temporary measure and he acts as a trustee of the said properties.

(3) Union of India, therefore, cannot assume ownership of the enemy properties once the said property is vested in the Custodian. Therefore, the enemy properties which vest in the Custodian are not Union properties.

(4) As the enemy properties are not Union properties, clause (1) of Article 285 does not apply to enemy properties. Clause (2) of Article 285 is an exception to clause (1) and would apply only if the enemy properties are Union properties and not otherwise. The High Court was therefore not right in holding that the respondent as occupier of the subject property is not liable to pay any property tax or other local taxes to the appellant.

The appeals were accordingly allowed with the above directions.

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(15) Ganeshkumar Rajeshwarrao Selukar v. Mahendra Bhaskar Limaye⁹⁹

(Delivered on 7-3-2024)

Coram: 3-Judges Bench of Justices Dr D.Y. Chandrachud, J.B. Pardiwala and Manoj Mishra; JJ.

Majority Opinion Authored by: His Majesty Justice Dr D.Y. Chandrachud

Detailed directions were issued by the Supreme Court earlier in March 2023 in Secretary Ministry of Consumer Affairs v. Mahindra Bhaskar Limaye¹⁰⁰ relating to appointment of the President and members of State Consumer Dispute Redressal Commission and the District Consumer Redressal Commission. The interlocutory applications were filed by the Union Government after discovering considerable difficulty faced in the working out of the directions under Article 142 of the Constitution of India, which had proposed to bring about amendments to the Consumer Protection (Qualification for Appointment, Method of Recruitment, Procedure for Appointment, Term of Office, Resignation and Removal of the President and Members of the State Commission and District Commission) Rules, 2020. The amendments related to the constitution of the Selection Committee added by the Government of India; exemption of requirement of written examination of the applicants applying for the office of President of the State Consumer Dispute Redressal Commission and District Consumer Redressal Commission. Insofar as remaining positions are concerned, the Selection Committee shall determine its own procedure for making the recommendations for appointments to the post of to the State Consumer Dispute Redressal Commission and District Consumer Redressal Commission.

Apart from the above, the amendment also proposed inclusion of the President of the State Commission in the Selection Committee, giving dominance to the judiciary in the appointment of the members of both the forums.

The Court found that written test would be impractical for the appointment to the post of President of State Consumer Dispute Redressal Commission and District Consumer Redressal Commission, for which only the former Judge of the High Court is eligible for appointment. The requirement of viva voce for the same shall also stand relaxed, which appointment must be made in consultation and subject to concurrence of the Chief Justice of the High Court. The composition of Selection Committee for appointment of other members of the State and the District Commission was directed to be as follows:

(i) the Chief Justice of the High Court or their nominee;

(ii) the President of the State Commission;

(iii) the Law Secretary; and

(iv) the Secretary in charge of the Ministry of Consumer Affairs, who will act as a convenor of the Selection Committee without voting rights.

The Union of India was accordingly directed to amend the rules suitably in terms of the directions mentioned above.

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(16) Nenavath Bujji v. State of Telangana¹⁰¹

(Delivered on 21-3-2024)

Coram: 3-Judges Bench of Justices Dr D.Y. Chandrachud, J.B. Pardiwala and Manoj Mishra; JJ.

Majority Opinion Authored by: His Majesty Justice Dr D.Y. Chandrachud

The appellant was preventively detained under Section 3(2)¹⁰² of the Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (for short, “Telangana Act, 1986”). The challenge laid before the High Court was rejected by the Division Bench, which declined to interfere with the order of preventive detention passed by the Commissioner of Police. Broadly, the grounds on which the appellant was detained were multiple instances of chain snatching, looting and theft of citizens and residents of the locality. Accordingly, finding that activities of the appellant detenu were prejudicial to the maintenance of public order, the appellant was categorised as “goonda” under Section 2(g)¹⁰³ of the Telangana Act, 1986 and accordingly, preventively detained. The High Court, rejecting the writ petition, held that appellant detenu had engaged himself in unlawful activities of serious nature and thus acted in a manner prejudicial to the “maintenance of public order”. What weighed with the High Court were the allegations (more than one) of chain snatching, creating a lot of fear and panic in the minds of the women folk. The High Court thus found sufficiently enough ground to detain the detenu.

The Supreme Court analysed the provisions of the Telangana Act, 1986, which were found to have been enacted to deal with habitual criminals, dangerous and desperate outlaws, so hardened and incorrigible that ordinary provisions of the penal laws and punishment of crime thereunder being not sufficient deterrence for them.

However, whilst interpreting Section 3(1), Court held that power can be invoked by the State Government or its delegatee to detain any person on its satisfaction that it is necessary to detain the person from acting in any manner prejudicial to the “maintenance of public order”. Referring to the judgment of Pushkar Mukherjee v. State of W.B.¹⁰⁴ it was held that contravention of any law may affect order, but it cannot always be set to affect “public order”. A line of demarcation must be drawn between serious and aggravated forms of disorder, that directly affect the community or public at large, vis-à-vis minor breaches of peace, which appertains to specific individuals. Mere disturbance of law and order leading to disorder is not necessarily sufficient for action under the Preventive Detention Act, 1950. Besides the person being classified as a “goonda”, his activities must be such which may have the potential of harming the “public order”. The power of preventive detention is qualitatively different from punitive detention, being a precautionary power exercised in reasonable anticipation. It was held that writ of “habeas corpus” would lie challenging the order of preventive detention.

Referring to the Halsbury’s Laws of England, Corpus Juris Secundum and Constitutional and Administrative Law by Hood Phillips & Jackson, the Court elucidated the meaning of writ of “habeas corpus”. The general purpose of this writ is to obtain production of the individual before a Court or a Judge, which serves as an effective relief for immediate release from unlawful and unjustifiable detention whether in prison or in private custody. Therefore, it becomes a duty of the constitutional courts to issue writ of “habeas corpus” for safeguarding the freedom of the citizens against the arbitrary and illegal detentions.

On the specific facts of the case, Court held that mere registration of 2 first information reports (FIRs) for the alleged offences of robbery, etc. against the appellant could not have been made the basis to invoke the provisions of the Telangana Act, 1986. “Public order” is the even tempo of the community taking the country as a whole or even a specified locality. The distinction between the areas of “law and order” and “public order” is one of degree and extent of the reach of the act in question on society. The Court held that in the case on hand, there was nothing to indicate that statements of people recorded before preventively detaining the appellant, more particularly the women of the locality concerned were never found to have been recorded. Thus, as such there was no material demonstrating the existence of an atmosphere of panic and fear in the minds of the people of the locality concerned. Relevant material was thus absent for the detenu authority to have arrived at its subjective satisfaction of preventively detaining the detenu. The detenu in the FIRs registered against him was not mentioned as the accused specifically but had been picked up by the police on suspicion. The suspicion was raised against the detenu on the basis of his confessional statement to the police.

However, the Court left the question of law open as to whether the confessional statement made by the detenu to the police officer in the criminal cases registered earlier can be made admissible in cases of detention under the Telangana Act, 1986 or any other Act relating to preventive detention.

The Court then examined various extraneous considerations that weighed with the detaining authority, which eventually vitiated the order of preventive detention in the present case. The detaining authority had stressed upon four FIRs registered in quick succession against the appellant for the offences of theft, robbery, chain snatching, etc. Out of the four however only two were taken into consideration by the detaining authority, alleged to have been committed within his territorial jurisdiction, which fact was also categorically specified in the order of detention. The other two FIRs were looked into only for ascertaining the criminal history of the appellant. Referring to Ameena Begum v. State of Telangana¹⁰⁵, the Court held that in the absence of clear indication of a causal connection of previous criminal activities of the detenu with the immediate need to detain him or the apprehended disturbance to “public order”, a mere reference to pending criminal cases cannot account for the requirements of Section 3. The detaining authority cannot simply refer to stale incidents, holding them as the basis of order of detention, as such stale material cannot have bearing on the probability of the detenu engaging in prejudicial activities in the future. It was thus held that when two FIRs were not taken into consideration out of the total four, then it was all the more obligatory for the detaining authority to have recorded the subjective satisfaction that incidents of the remaining two FIRs created public disorder. The State also did not make any endeavour for cancellation of the bail granted to the appellant by the competent court on the ground of having continued to indulge in nefarious activities and other FIRs being registered against him. Accordingly, the Court quashed the order of preventive detention passed against the appellant detenu.

Misuse of powers of preventive detention in the State of Telangana and role of the advisory board

The Court then dealt with frequency of litigation arising from the State of Telangana in the cases of preventive detention by referring to Mallada K. Sri Ram v. State of Telangana¹⁰⁶ and Ameena Begum case¹⁰⁷. It was held that five detention orders under the Telangana Act of 1986 were quashed for having been issued inappropriately and contrary to judgments of the Supreme Court. The State was accordingly directed to not pass orders of preventive detention in a routine manner without any application of mind.

Detailing the role of the Advisory Board, it was held that when detaining authority acts in an arbitrary manner, the role and duty of the Advisory Board becomes all the more imperative to check such capricious exercise of powers. Referring to Article 22(4)¹⁰⁸ of the Constitution of India. It was held that the constitution of an Advisory Board with sitting Judges of the High Court as its member is the constitutional requirement under Part 3 of the Constitution of India. The Advisory Board is obligated to form an opinion as to whether there is sufficient cause for such detention or not, after consideration of the entire material on record including the representation of the detenu. Thus, the Advisory Board must form its independent opinion about the sufficient cause warranting detention, based on all the material placed before it in terms of Section 10¹⁰⁹ of the Telangana Act of 1986. Wide powers are vested on the Advisory Board whilst reviewing the order of preventive detention by referring to the provisions of Sections 10 to 12 of the Telangana Act of 1986¹¹⁰. The creation of an Advisory Board under Article 22 is the constitutional vision of the framers of the Constitution for protecting individual liberty and that it cannot act as a mere rubber-stamping authority for an order of preventive detention. The Advisory Board whilst forming its independent opinion is required to:

(i) consider the material placed before it;

(ii) to call for further information, if deemed necessary;

(iii) to hear the detenu, if he desires to be heard and; and

(iv) to submit a report in writing as to whether there is sufficient cause for “such detention” or whether the detention is justified.

The Court further held that the Advisory Board cannot keep itself unconcerned or oblivious to the plethora of decisions of the Supreme Court, and that independent scrutiny envisaged under Article 22 includes ascertaining whether a detention order would withstand the scrutiny before the court of law. Therefore, the Advisory Board should not just mechanically proceed to approve detention orders but is required to keep in mind the mandate contained in Article 22(4) of the Telangana Act of 1986. Accordingly, the three Judge Bench allowed the appeal, quashing the order of detention.

(17) Mrinmoy Maity v. Chhanda Koley¹¹¹

(Delivered on 18-4-2024)

Coram: 2-Judge Bench of Justices P.S. Narasimha and Aravind Kumar; JJ.

Authored by: His Majesty Justice Aravind Kumar

The primary issue was justifiability of the judgment of the Division Bench of the High Court which had entertained the writ petition belatedly challenging the approval dated 3-6-2014 granted in favour of the appellant for starting the liquefied petroleum gas distributorship at Jamalpur, District Burdwan. Pertinently, the writ petition was filed after a delay of almost four years, challenging the decision of the Bharat Petroleum Corporation Ltd. (for short, “BPCL”) in allotment of the liquefied petroleum gas distributorship, permitting the appellant to commence the construction of the godown and showroom on the alternate land offered, different from one mentioned in the application for grant of distributorship.

The Single Bench on a challenge being mounted to the allotment of distributorship dismissed the same on the ground of delay and laches. Another ground for dismissal by the Single Bench was lack of locus standi of the writ petitioner, since she had participated in the selection process, against which the intra-court appeal came to be filed before the Division Bench. The Division Bench through the impugned judgment allowed the said appeal on the principal ground that the successful applicant (petitioner before the High Court) had not offered an unencumbered land for construction of godown and showroom and thus, it was in contravention of Clause 7.1 of the guidelines for selection of regular liquefied petroleum gas distributors. It was further held by the Division Bench that amendment to the said guidelines brought about subsequently cannot be made applicable retrospectively and resultantly, on the basis there of the LOI, LOA issued were all unsustainable.

The Supreme Court held that the writ petitioner ought to have been non-suited and the writ petition dismissed solitarily on the ground of delay and laches itself. In the process, the Court held that delay or latches is one of the important factors to be borne in mind by the High Court whilst exercising discretionary powers under Article 226 of the Constitution of India. Though there is no fixed period or limitation prescribed for filing the writ petition, however when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether the same has been invoked within a reasonable time and does not lead to revival of dead causes of action or resurrect the causes which have had a natural death. Though there cannot be any waiver of fundamental right, but even then, under Article 226, the High Court will have to necessarily take into consideration the delay and laches on the part of the applicant in approaching the writ court alleging even the violation of fundamental rights.

Referring to the judgments of Tridip Kumar Dingal v. State of W.B.¹¹² and Karnataka Power Corpn. Ltd. v. K. Thangappan¹¹³, it was held that even where violation of fundamental right is involved, the matter is still within the discretion of the Court to be exercised or not to be so done. If there is any such negligence or omission on the part of the applicant to assert his or her right.

Reference was further made to the judgment of Chennai Metropolitan Water Supply & Sewerage Board v. T.T Murali Babu¹¹⁴, to hold that writ court must weigh the explanation offered for delay and laches and acceptability of the same. Delay comes in the way of equity and an inordinate one would only invite disaster for the litigant who knocks belatedly at the doors of the Court. Law does not permit one to sleep and rise like a phoenix. Accordingly, it was held that since the allotment of the distributorship was made in favour of the appellant way back in 2014, yet it was challenged after an inordinate delay of three years in March 2017. This amounted to acquiescence of his rights in the Acts of the Corporation by the writ petition and on this ground itself the writ petition was bound to be dismissed. Accordingly, the appeal was allowed, and judgment of the Division Bench was set aside.

* * *

(18) Assn. for Democratic Reforms v. Election Commission of India¹¹⁵

(Delivered on 26-4-2024)

Coram: 2-Judge Bench of Justices Sanjiv Khanna and Dipankar Datta; JJ.

Authored by: His Majesty Justice Sanjiv Khanna

The writ petition public interest litigation (PIL) was filed seeking a relief of return to the paper ballot system or for an arrangement of giving of printed slip from the voter verifiable paper audit trail machine (for short, “Vvpat”) and put in the ballot box for counting. It was further prayed that in the elections, arrangements should be made for 100% counting of the Vvpats slips in addition to electronic counting by the control unit. Such writ petition was filed alleging possibility of manipulations in the electronic voting machines and suspicions surrounding the modification of Vvpat machines with the tampering of glass windows on the Vvpat. Thus, it was alleged that the voter is derived from knowing whether the vote cast by him was registered and counted, as a facet of which 100% counting of the Vvpat paper trail should be ensured.

History regarding electronic voting machines and various judgments regarding transparency in the overall electoral process.

Paper ballots were the norm in the Indian elections, till they were used for the first time in the Assembly Bye-elections in Kerala in 1982. Finally, the Representation of People Act 1951 (for short, “RP Act”) was amended in 1989 to allow opening the doors for usage of electronic voting machines, which were finally used for the first time in the general elections of 2004 and all the elections thereafter. Earlier, the challenge was raised to the usage of electronic voting machine without any legislative provisions in A.C. Jose v. Sivan Pillai¹¹⁶, whereafter the Parliament had enacted the legislative provisions. Independent studies have showcased that electronic voting machines have led to increase in voter participation, albeit they have also been objected to and questioned by various political parties and others. Resultantly, several litigations have been instituted in the past challenging the usage of electronic voting machines, which all have been rejected recording good grounds and reasons.

In Subramanian Swamy v. Election Commission of India¹¹⁷, it was held that paper trail was an indispensable requirement of free and fair elections to the electronic vote cast in the electronic voting machines with the intent to have fullest transparency in the system and to restore the confidence of the voters. Electronic voting machines must be set up with a Vvpat system since voting is nothing but an act of expression in a democratic system of the voter. Thereafter, in N. Chandrababu Naidu v. Union of India¹¹⁸, the Court directed that five electronic voting machines per assembly constituency or assembly segment in a parliamentary constituency would be subject to Vvpat verification randomly. The number of electronic voting machines that would be subjected for verification would be five per assembly constituency or assembly segments in a parliamentary constituency. Thereafter, number of writ petitions with, viz. Nyaya Bhoomi v. Election Commission of India¹¹⁹; Tech for All v. Election Commission of India¹²⁰; Prakash Joshi v. Election Commission of India¹²¹, had all rejected similar prayers with regard to modification of the procedure for counting of votes by use of electronic voting machines leaving it to the discretion of Election Commission of India. Recently styled as Sunil Ahya v. Election Commission of India¹²², another petition was dismissed seeking independent audit of the source code of electronic voting machines, on the ground that petitioner had placed no actionable material on the record of the Court to indicate that Election Commission of India had acted in breach of its constitutional mandate. Though it was open to the Court to dismiss the present petition, however it chose to put on record the procedure and safeguards adopted by the Election Commission of India to ensure free and fair elections and maintain the integrity of the electoral process whilst using electronic voting machines. The Court in the process referred voluminously and comprehensively to the features of electronic voting machines which make it immune from any tampering, influence or management by third parties.

The Court also examined the manufacturing, composition and various technological features of the three units of electronic voting machines, viz. the ballot unit, the control unit and the Vvpat. Undertaking a detailed discussion, it was held that the overall control unit of the electronic voting machine is agnostic to any candidate name or political party symbol but only recognises the button/key pressed on the ballot unit. Discussion by the Court also veered around how verified electronic voting machines undergo a two-stage randomisation process before being circulated to various constituencies prior to voting process and elections. Not even the manufacturer of the electronic voting machines knows the allotment of any machine to any State or constituency. This randomisation process further eliminates the possibility of any candidate maneuvering or manipulating the electronic voting machines. The Court also noted various advantages of the electronic voting machine Vvpat mechanism, spelled out at length vide paras 32 and 33 of the judgment. Accordingly, it was concluded that the possibility to hack or tamper with the agnostic firmware in the burnt memory of the electronic voting machine is unfounded as also the suspicion that they can be configured/manipulated for repeated or wrong recording of votes to favour any candidate is also equally misfounded.

The Court then referred to statutory provisions under Part IV Chapter II of the Conduct of Elections Rules, 1961, detailing the process of voting through electronic voting machines. Specifically mentioning about Rules 49-M and 49-S, it was held that the Presiding Officer is under statutory obligation to periodically check the total number of votes cast as recorded in the control unit with the data as recorded under Form 17-A. The Form 17-C also requires the Presiding Officer (for short, “PO”) to give details of the total number of votes recorded per voting machine, which must tally with the total number of votes entered in Form 17-A. The Court accordingly after referring to various facts, figures and statistics held that it would be therefore, necessary to exercise care and caution whilst considering aspersions raised on the integrity of the electoral process. The fundamental right of the voters to ensure their vote is accurately recorded and counted, cannot be equated with the right to have 100% counting of Vvpat slips or right to physical access to the Vvpat slips. The former is the right itself, whereas the latter is a plea to protect on how to secure the right. The entire electoral process, protocol and the checks as well as empirical data ensure meaningful exercise of the right to franchisee by the voter. An overly liberal approach to interpretation of fundamental rights and stretching them beyond the limits would lead to confusion and delay-hindering the election process and dissuading others from casting their votes itself. An over complex voting system may engender doubt and certain uncertainty, thereby easing the chances of manipulation, accompanied by voters’ disenchantment and disinterest in the process. However, two directions were issued by the Court, as felt by it to be necessary to further strengthen the integrity of the election process and streamline the same, which were as follows:

(a) On completion of the symbol loading process in the Vvpats undertaken on or after 1-5-2024, the symbol loading units shall be sealed and secured in a container, to be kept thereafter in the strongroom along with the electronic voting machines at least for a period of 45 days post the declaration of results.

(b) The burnt memory/microcontroller in 5% of the electronic voting machines, that is, the control unit, ballot unit and the Vvpat, per Assembly Constituency/Assembly segment of a parliamentary constituency shall be checked and verified by the team of engineers from the manufacturers of the electronic voting machines, post the announcement of the results, for any tampering or modification, on a written request made by candidates who are at Sl. No. 2 or Sl. No. 3, behind the highest polled candidate. Such candidates or their representatives shall identify the electronic voting machines by the polling station or serial number. All the candidates and their representatives shall have an option to remain present at the time of verification on a request made within a period of 7 days from the date of declaration of the results. The District Election Officer, in consultation with the team of engineers, shall certify the authenticity/intactness of the burnt memory/microcontroller after the verification process is conducted.

Concurring opinion on Justice Dipankar Dutta

The concurring opinion recorded that prayer of the PIL petitioners of reverting to the “paper ballot system” of the bygone era reveals their real intention of derailing the whole electoral process that is underway by creating unnecessary doubts in the minds of the electorate. The Court underscored the recent trend of vested groups endeavouring to undermine the achievements and accomplishments of the nation earned through the hard work and dedication of its sincere workforce. The Court also criticised the mechanical comparison of working of electronic voting machines in the European nations with that in India, when it was not demonstrated that machines put to use in the electoral system of such European nations are similar and what was said by its Court applies ex proprio vigour to India. It was found that the exercise of tallying 5% Vvpat slips with votes cast by the electors has not till date resulted in any mismatch, nor has the assertion of Election Commission of India been proved to be incorrect by the petitioners by referring to any credible material or data.

The Court then dealt with the contention of the petitioners regarding the right of the voter to know about the votes cast by them under Article 19(1)(a)¹²³ of the Constitution of India. It was noted that the voter can see his Vvpat slips after the vote cast by him for 7 seconds through an illuminated glass window, which is sufficient enough for the voter to know the outcome of his vote. It cannot be said that Vvpat slip is momentarily visible to the voter.

Referring to Rule 49-M of the conduct of Election Rules, 1961, the Court mentioned that seven seconds of display is enough time for the voter. There are other safeguards also provided under the rules already referred to in the lead judgment. The petitioners were found to have failed to demonstrate how use of electronic voting machines in elections violate the principles of free and fair elections, nor being able to establish a fundamental right to 100% Vvpat slips tallying with the votes cast. More so when reverting to the paper ballot system rejecting the inevitable march of technological advancement and burdening the Election Commission of India with the onerous task of 100% Vvpat slips would be a folly when the challenges faced in conducting elections are of such gargantuan scale.

Maintainability of the writ petition on suspicion or apprehension of breach of fundamental right

The concurring opinion then undertook the discussion about maintainability of writ petition on mere suspicion of infringement of any right/fundamental right. The Court answered it in the negative. Suspicion that a right could be infringed and an imminent apprehension/real threat of infringement of a right are distinct and different. To maintain a claim under Article 32 or Article 226, the plea cannot be based on suspicion but must be supported by credible/trustworthy material on record to suggest that adverse action affecting a right is reasonably imminent in the form of a real potential threat guaranteed by law to the person concerned.

Reference in this respect was made in the two landmark judgments of D.A.V. College v. State of Punjab¹²⁴ and Adi Saiva Sivachariyargal Nala Sangam v. State of T.N.¹²⁵ Accordingly, it was held that until and unless threat or apprehension of infringement of any right is not well founded, the same cannot be based merely on assumption and presumptions. Likewise in the present case, mere suspicion that there may be mismatch in votes cast through electronic voting machines, without any sufficient ground, credible material or evidence to demonstrate or to buttress the said suspicion, the writ petitions cannot be held to be maintainable. Without any evidence of malice, arbitrariness, breach of law, or the genuine threat to invasion of rights, the writ petitions ought to be dismissed as not maintainable.

Application of res judicata under Section 11 CPC to writ petitions under Articles 32/226 of the Constitution of India

Referring to the judgment of Daryao v. State of U.P.¹²⁶ and Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra¹²⁷, the Court held that the inclusion of the term/phrase “public right” in Explanation VI of Section 11¹²⁸ of the Civil Procedure Code, 1908¹²⁹ aims to avoid redundant legal disputes concerning public rights.

The principle underlying Section 11 would apply equally to PIL presented through writ petitions. The Court held that though the principle is not rigid in cases of substantial public interest, and constitutional courts are empowered to adopt a flexible approach overlooking the power of res judicata under Section 11, however, it is applicable only when substantial evidence is presented to validate the irreversible harm or detriment to the public good resulting from the action impugned. The Court must be convinced that the petition is not just an old wine in a new bottle but rather raises substantial grounds not previously addressed in litigation.

Therefore, blindly distrusting any aspect of the system can breed unwarranted skepticism and impede the progress of the nation. Instead, a critical yet constructive approach, guided by evidence and reason should be followed to make room for meaningful improvements and to ensure the system’s credibility and effectiveness. With each pillar fortified, our democracy stands robust and resilient.

The concurring opinion accordingly concluded by expressing its agreement with the lead opinion.