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Section 33 of the Arbitration Act, 1940 allowed any party to the arbitration agreement to file an application before the courts challenging the existence or validity of an arbitration agreement. Earlier, the Supreme Court of India consistently held that the question as to the existence or validity of an arbitration agreement was to be decided only by application to courts and not by the arbitral tribunal. This position has now undergone a complete metamorphosis in the present legislation. Section 16 of the Arbitration Act, which is based on Article 16 of the Model Law, recognizes the doctrine of competence‑competence in Indian arbitration law. Section 16 empowers the arbitral tribunal to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. The parties have a right under Section 16(2) and 16(3) to challenge the jurisdiction of the arbitral tribunal on grounds such as the non‑existence or invalidity of the arbitration agreement. The arbitral tribunal is obligated to decide on the challenge to its jurisdiction, and where it rejects the challenge, it can proceed with the arbitral proceedings and make an arbitral award. Once the arbitral tribunal makes an award, Section 16(6) allows the aggrieved party to make an application for setting aside the award under Section 34. Sections 16(5) and 16(6) further show that Parliament has completely ousted the jurisdiction of courts to interfere during the arbitral proceedings; courts can intervene only after the tribunal has made an award., Section 34 of the Arbitration Act deals with applications for setting aside arbitral awards. Section 34(2) provides that an arbitral award may be set aside by the Supreme Court of India only if the party making the application establishes, on the basis of the record of the arbitral tribunal, any of the following grounds: (i) a party was under some incapacity; (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law in force; (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission, provided that if the decisions on matters submitted to arbitration can be separated from those not so submitted, only the part of the award dealing with non‑submitted matters may be set aside; (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement conflicts with a provision of Part I from which the parties cannot derogate, or, failing such agreement, was not in accordance with Part I. Moreover, the Supreme Court of India can set aside an arbitral award if it finds that (i) the subject‑matter of the dispute is not capable of settlement by arbitration under the law in force; or (ii) the arbitral award is in conflict with the public policy of India., The scheme of the Arbitration Act shows that although an arbitral tribunal is given priority to determine all issues pertaining to its jurisdiction based on the principle of competence‑competence, the tribunal’s decision is subject to judicial review at the stage when an award is challenged. One of the grounds on which an arbitral award can be set aside is that the arbitration agreement is not valid under law, indicating that the Arbitration Act does not contemplate the court determining the validity of an arbitration agreement at a pre‑arbitral stage. In Indian Farmers Fertilizer Cooperative Limited v. Bhadra Products, the Supreme Court of India considered whether a decision on the issue of limitation would go to the root of the jurisdiction of the arbitral tribunal and therefore be covered by Section 16. The Court observed that the arbitral tribunal may rule on its own jurisdiction, including whether it may embark upon an inquiry into the issues raised by the parties., In Uttarakhand Purv Sainik Kalyan Nigam Ltd v. Northern Coal Field, the Supreme Court of India examined whether a referral court at the stage of appointment of arbitrators would be required to decide the issue of limitation or leave it to the arbitral tribunal. A two‑Judge Bench held that the doctrine of competence‑competence is intended to minimise judicial intervention so that the arbitral process is not thwarted at the threshold when a preliminary objection is raised. The Court held that Section 16 is an inclusive provision of very wide ambit and that the issue of limitation, being a jurisdictional issue, must be decided by the arbitrator and not by the High Court at the pre‑reference stage under Section 11 of the Arbitration Act. Once the existence of the arbitration agreement is not disputed, all issues, including jurisdictional objections, are to be decided by the arbitrator., Jurisdiction is generally defined as the power of a court or tribunal to hear and determine a cause and to adjudicate any judicial power in relation to such cause. In Official Trustee, West Bengal v. Sachindra Nath Chatterjee, the Supreme Court of India held that for a court to have jurisdiction to decide a particular matter, it must not only have jurisdiction to try the suit but also the authority to pass the orders sought. In NTPC v. Siemens Aktiengesellschaft, the Court observed that any refusal to go into the merits of a claim may be in the realm of jurisdiction, and that the issue of limitation goes to jurisdiction because a tribunal can refuse to exercise its jurisdiction if a claim is barred by limitation. Section 35 of the Stamp Act mandates that an unstamped instrument cannot be acted upon unless it is duly stamped. The question is whether a tribunal can effectively exercise its jurisdiction to settle the claims between the parties until stamp duty is paid on the underlying instrument. In view of the decision in Uttarakhand Purv Sainik Kalyan Nigam Ltd, the scope of an arbitral tribunal’s authority is wide enough to comprehend all preliminary issues affecting its jurisdiction, including the issue of sufficiency of stamping., The doctrine of negative competence‑competence, recognised in both international arbitration law and domestic law, prioritises the arbitral tribunal by permitting it to initially decide challenges to its authority instead of the courts. The policy behind this approach is twofold: first, to recognise the mutual intention of the parties to choose the arbitrator to resolve all disputes concerning substantive rights and obligations arising out of the contract; and second, to prevent parties from initiating parallel proceedings before courts and delaying the arbitral process. This is the positive aspect of the doctrine of competence‑competence. The negative aspect instructs the courts to limit their interference at the referral stage by deferring to the jurisdiction of the arbitral tribunal in issues pertaining to the existence and validity of an arbitration agreement. Thus, the negative aspect suggests that courts should refrain from entertaining challenges to the jurisdiction of the arbitral tribunal before the arbitrators themselves have had an opportunity to do so., In Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc., the Supreme Court of India considered whether the court at the referral stage under Section 45 is required to determine the validity of an arbitration agreement. The Court recognised that the doctrine of competence‑competence has both positive and negative aspects. While the positive aspect enables the arbitrator to rule on its own jurisdiction, the negative aspect deprives the courts of jurisdiction. However, the Court noted the absence of a provision similar to Section 16 in Part II and concluded that the referral court is not required to test the ingredients of Section 45 at the threshold stage. Subsequently, in Vidya Drolia, the Court held that the doctrine of competence‑competence has both negative and positive connotations. As a positive implication, arbitral tribunals are declared competent and authorised by law to rule on their jurisdiction and decide non‑arbitrability questions. As a negative implication, the statute governs and should be followed, curtailing court interference at the referral stage except when expressly permitted by legislation., In ArcelorMittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal Ltd., the Supreme Court of India held that negative competence‑competence prohibits courts from hearing disputes which the parties have mutually intended to submit to the jurisdiction of an arbitral tribunal. As held in the preceding sections, the issue of stamping is a jurisdictional issue. The principle of negative competence‑competence therefore requires the courts to leave the issue of stamping to be decided by the arbitral tribunal in the first instance., When parties enter into an arbitration agreement, it is their mutual and unequivocal intention to submit their disputes to an arbitral tribunal. The arbitration law recognises this aspect by granting autonomy to the parties to adopt a procedural mechanism for the appointment of arbitrators. Party autonomy has also been expressly recognised by international arbitration covenants as well as national arbitration legislations. For instance, Article 11(2) of the Model Law states that parties to an arbitration agreement are free to agree on a procedure for appointing the arbitrator or arbitrators. In a situation where the agreed procedure of the parties fails, the Model Law permits the national courts to appoint arbitrators on a request of a party. The power of appointment of arbitrators is vested with national courts to resolve deadlock in appointment., As discussed in the preceding sections, Section 5 of the Arbitration Act disallows a judicial authority from intervening unless expressly provided under Part I. In the present proceedings, the exercise of powers by the courts or judicial authorities as provided under Section 8 and Section 11 becomes particularly relevant. Section 8 provides that when an action is brought before a judicial authority in a matter which is the subject of an arbitration agreement, such judicial authority shall refer the parties to arbitration on an application made by a party to the arbitration agreement or any person claiming through or under him, not later than the date of submitting their first statement on the substance of the dispute. Section 8 mandates the judicial authority to refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. Section 8 is based on Article 8 of the Model Law, which provides that a court before which an action is brought in a matter which is the subject of an arbitration agreement shall refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. It is evident that Section 8 has made a departure from Article 8 by using the expansive term ‘judicial authority’ rather than ‘court’., According to the UNCITRAL Working Group Commentary on the Model Law, Article 8 enshrines the negative effect of an arbitration agreement, giving effect to the intention of the parties to submit their disputes to arbitration to the exclusion of courts, irrespective of whether such exclusion is expressed in the agreement. Similar provisions have been incorporated in English and French national laws. Section 9(4) of the English Arbitration Act, 1996 provides that a court can stay legal proceedings unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed. Article 1458 of the French Civil Code provides that a state court is incompetent to decide on issues pertaining to an arbitration agreement unless the agreement is manifestly null and void. Thus, the standard of review that a court should adopt at the pre‑arbitral stage differs considerably across jurisdictions., One of the major bottlenecks in the smooth functioning of arbitral proceedings is the inability of the parties to ensure the constitution of the arbitral tribunal once a dispute has arisen. To prevent such disagreement from derailing the arbitral process, international covenants and national laws allow judicial authorities to assist the parties in appointing arbitrators. For example, Article 1444 of the French Civil Code provides that if a dispute has arisen and problems occur with regard to the constitution of the arbitral tribunal due to the behaviour of a party or the implementation of the appointment method, the arbitrator or arbitrators shall be appointed by the President of the Tribunal de Grande Instance. The provision further states that the President shall declare that there is no basis for appointment if the arbitration clause is manifestly null and void or insufficient to constitute an arbitral tribunal. This judicial intervention is intended to ensure that courts do not mechanically appoint arbitrators where the arbitration lacks any contractual basis., Section 11 of the Arbitration Act deals with the appointment of arbitrators. It recognises the autonomy of the parties to agree upon a procedure for appointment. Section 11 requires the intervention of the court only when there is a deadlock or failure of the parties to follow the agreed procedure. In an arbitration with three arbitrators, each party appoints one arbitrator and the two appointed arbitrators appoint the third. Section 11(6) confers powers on the Supreme Court of India and the High Court, as the case may be, on the failure of the parties to comply with the agreed appointment procedure. Section 11(6) enumerates three possible defects: (i) a party fails to act as required by the agreed procedure; (ii) the parties or the two appointed arbitrators fail to reach an agreement expected of them; or (iii) a person, including an institution, fails to perform any function entrusted to them under the agreed procedure., The scope of the powers under Section 11(6) has been examined by the Supreme Court of India. In SPB & Co. v. Patel Engineering Ltd., a seven‑Judge Bench held that the power exercised by the Chief Justice of India or a Chief Justice of a High Court under Section 11(6) is a judicial power. The Court analysed the scope of the powers and authority of the referral court under Section 11(6) and noted that Sections 8 and 11 are complementary. Consequently, if the judicial authority acting under Section 8 must mandatorily decide the issue of jurisdiction before referring the parties to arbitration, the same standard of scrutiny applies to the reference under Section 11. The Court concluded that the Chief Justice or his designate at the referral stage under Section 11(6) has the right to determine all preliminary issues, including the existence of a valid arbitration agreement, the existence of a live claim, the condition for the exercise of his power, and the qualifications of the arbitrator or arbitrators., The extent of judicial interference at the referral stage was scrutinised by a two‑Judge Bench in National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd. The Supreme Court of India held that when intervention under Section 11 is sought, the following categories of issues arise before the referral court: (i) issues the Chief Justice or his designate is bound to decide, such as whether the applicant has approached the appropriate High Court and whether a valid arbitration agreement exists; (ii) issues the Chief Justice or his designate may choose to decide or leave to the arbitral tribunal, such as whether the claim is dead‑blocked or live and whether the parties have concluded the contract by final payment without objection; and (iii) issues the Chief Justice or his designate should leave exclusively to the arbitral tribunal, such as whether a claim falls within the arbitration clause and any merits of the claim., The decisions in Patel Engineering and Boghara Polyfab allowed for greater judicial interference at the pre‑arbitral stage, encouraging referral courts to conduct mini‑trials instead of summarily dealing with preliminary issues. The Law Commission of India observed that judicial intervention in arbitral proceedings is a pervasive problem in India, leading to significant delays. The Commission noted that Section 11 applications were kept pending for years by the courts. To remedy the situation, the Commission proposed changing the existing scheme of the power of appointment from the Chief Justice to the High Court and the Supreme Court and clarified that the power of appointment of arbitrators ought not to be regarded as a judicial act., The Law Commission further recommended limiting the scope of judicial intervention at the referral stage under Sections 8 and 11 to situations where the court or judicial authority finds that the arbitration agreement does not exist or is null and void. It suggested inserting a new sub‑section 6A under Section 11, which would read: ‘Any appointment by the High Court or the person or institution designated by it under sub‑section (4), (5) or (6) shall not be made unless the High Court finds that the arbitration agreement does not exist or is null and void.’ In response, Parliament passed the Arbitration and Conciliation (Amendment) Act, 2015, incorporating Section 11(6‑A)., The Statement of Objects and Reasons of the 2015 Amendment Act states that sub‑section (6A) is inserted in Section 11 to provide that the Supreme Court of India or the High Court, while considering an application under sub‑section (4) to (6), shall confine its examination to the existence of an arbitration agreement. With the coming into force of the 2015 Amendment Act, the nature of preliminary examination at the referral stage under Section 11 was confined to the existence of an arbitration agreement. The amendment also incorporates a non‑obstatum clause covering any judgment, decree or order of any court, thereby taking away the basis of the position laid down in the earlier decisions of Patel Engineering and Boghara Polyfab. Parliament deliberately omitted the expression ‘or is null and void’ suggested by the Law Commission, indicating an intention to minimise judicial intervention at the pre‑arbitral stage., The effect and impact of the 2015 Amendment Act was subsequently clarified by the Supreme Court of India in Duro Felguera, S.A. v. Gangavaram Port Ltd. Justice Kurien Joseph noted that the legislative intention in incorporating Section 11(6A) was to limit the scope of the referral court’s jurisdiction to only the existence of an arbitration agreement. To determine the existence of such an agreement, the court need only examine whether the underlying contract contains a clause providing for arbitration of the disputes that have arisen between the parties. The Court further held that Section 11(6A) embodies the principle of minimal judicial intervention: after the amendment, courts need only ascertain whether an arbitration agreement exists and nothing more., In 2017, the High‑Level Committee to Review the Institutionalisation of Arbitration Mechanism in India submitted a report noting that while the 2015 amendment facilitated the speedy disposal of Section 11 applications, it failed to limit judicial interference in arbitral proceedings.
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Accordingly, the High Level Committee recommended the amendment of Section 11 to provide for appointment of arbitrators solely by arbitral institutions designated by the Supreme Court in case of international commercial arbitrations or the High Court in case of all other arbitrations. In view of the report of the High Level committee, Parliament enacted the Arbitration and Conciliation (Amendment) Act 2019 omitting Section 11(6A) so as to leave the appointment of arbitrators to arbitral institutions. Section 1(2) of the 2019 Amendment Act provides that amended provisions shall come into force on such date as notified by the Central Government in the official gazette. However, Section 3 of the 2019 Amendment Act which amended Section 11 by omitting Section 11(6A) is yet to be notified. Till such time, Section 11(6A) will continue to operate., In Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, a three‑Judge Bench of the Supreme Court of India affirmed the reasoning in Duro Felguera (supra) by observing that the examination under Section 11(6A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense. Moreover, it held that the position of law prior to the 2015 Amendment Act, as set forth by the decisions of the Supreme Court of India in Patel Engineering (supra) and Boghara Polyfab (supra), has been legislatively overruled. Thus, the Supreme Court of India gave effect to the intention of the legislature in minimizing the role of the courts at the pre‑arbitral stage to the bare minimum., Thereafter, in Vidya Drolia (supra), another three‑Judge Bench of the Supreme Court of India affirmed the ruling in Mayavati Trading (supra) that Patel Engineering (supra) has been legislatively overruled. In Vidya Drolia (supra), one of the issues before the Supreme Court of India was whether the court at the reference stage or the arbitral tribunal in the arbitration proceedings would decide the question of non‑arbitrability. The Supreme Court of India began its analysis by holding that an arbitration agreement has to satisfy the mandate of the Contract Act, in addition to satisfying the requirements stipulated under Section 7 of the Arbitration Act to qualify as an agreement., In the course of the decision, one of the questions before the Supreme Court of India in Vidya Drolia (supra) was the interpretation of the word existence as appearing in Section 11. It was held that existence and validity are intertwined. Further, it was observed that an arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements. Therefore, the Supreme Court of India read the mandate of a valid arbitration agreement contained in Section 8 into the mandate of Section 11, that is, existence of an arbitration agreement., At the outset, Vidya Drolia (supra) noted that Section 11 has undergone another amendment vide Act 33 of 2019 with effect from 9‑8‑2019. The purport of the omission of the said clause was further explained in the following terms: Omission of sub‑section (6A) by Act 33 of 2019 was with the specific object and purpose and is relatable to by substitution of sub‑sections (12), (13) and (14) of Section 11 of the Arbitration Act by Act 33 of 2019, which, vide subsection (3A) stipulates that the High Court and the Supreme Court of India shall have the power to designate the arbitral institutions which have been so graded by the Council under Section 43I, provided where a graded arbitral institution is not available, the High Court concerned shall maintain a panel of arbitrators for discharging the function and thereupon the High Court shall perform the duty of an arbitral institution for reference to the Arbitral Tribunal. Therefore, it would be wrong to accept that post omission of sub‑section (6A) of Section 11 the ratio in Patel Engg. Ltd. would become applicable., Vidya Drolia (supra) proceeds on the presumption that Section 11(6A) was effectively omitted from the statute books by the 2019 Amendment Act. This is also reflected in the conclusion arrived at by the Supreme Court of India, as is evident from the following extract: Ratio of the decision in Patel Engg. Ltd. on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23‑10‑2015) and even post the amendments vide Act 33 of 2019 (with effect from 9‑8‑2019), is no longer applicable., We are of the opinion that the above premise of the Supreme Court of India in Vidya Drolia (supra) is erroneous because the omission of Section 11(6A) has not been notified and, therefore, the said provision continues to remain in full force. Since Section 11(6A) continues to remain in force, pending the notification of the Central Government, it is incumbent upon the Supreme Court of India to give true effect to the legislative intent., The 2015 Amendment Act has laid down different parameters for judicial review under Section 8 and Section 11. Where Section 8 requires the referral court to look into the prima facie existence of a valid arbitration agreement, Section 11 confines the court’s jurisdiction to the examination of the existence of an arbitration agreement. Although the object and purpose behind both Sections 8 and 11 is to compel parties to abide by their contractual understanding, the scope of power of the referral courts under the said provisions is intended to be different. The same is also evident from the fact that Section 37 of the Arbitration Act allows an appeal from the order of an arbitral tribunal refusing to refer the parties to arbitration under Section 8, but not from Section 11. Thus, the 2015 Amendment Act has legislatively overruled the dictum of Patel Engineering (supra) where it was held that Section 8 and Section 11 are complementary in nature. Accordingly, the two provisions cannot be read as laying down a similar standard., The legislature confined the scope of reference under Section 11(6A) to the examination of the existence of an arbitration agreement. The use of the term examination in itself connotes that the scope of the power is limited to a prima facie determination. Since the Arbitration Act is a self‑contained code, the requirement of existence of an arbitration agreement draws effect from Section 7 of the Arbitration Act. In Duro Felguera (supra), this Supreme Court of India held that the referral courts only need to consider one aspect to determine the existence of an arbitration agreement whether the underlying contract contains an arbitration agreement which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement. Therefore, the scope of examination under Section 11(6A) should be confined to the existence of an arbitration agreement on the basis of Section 7. Similarly, the validity of an arbitration agreement, in view of Section 7, should be restricted to the requirement of formal validity such as the requirement that the agreement be in writing. This interpretation also gives true effect to the doctrine of competence‑competence by leaving the issue of substantive existence and validity of an arbitration agreement to be decided by the arbitral tribunal under Section 16. We accordingly clarify the position of law laid down in Vidya Drolia (supra) in the context of Section 8 and Section 11 of the Arbitration Act., The burden of proving the existence of an arbitration agreement generally lies on the party seeking to rely on such agreement. In jurisdictions such as India, which accept the doctrine of competence‑competence, only prima facie proof of the existence of an arbitration agreement must be adduced before the referral court. The referral court is not the appropriate forum to conduct a mini trial by allowing the parties to adduce the evidence in regard to the existence or validity of an arbitration agreement. The determination of the existence and validity of an arbitration agreement on the basis of evidence ought to be left to the arbitral tribunal. This position of law can also be gauged from the plain language of the statute., Section 11(6A) uses the expression examination of the existence of an arbitration agreement. The purport of using the word examination connotes that the legislature intends that the referral court has to inspect or scrutinize the dealings between the parties for the existence of an arbitration agreement. Moreover, the expression examination does not connote or imply a laborious or contested inquiry. On the other hand, Section 16 provides that the arbitral tribunal can rule on its jurisdiction, including the existence and validity of an arbitration agreement. A ruling connotes adjudication of disputes after admitting evidence from the parties. Therefore, it is evident that the referral court is only required to examine the existence of arbitration agreements, whereas the arbitral tribunal ought to rule on its jurisdiction, including the issues pertaining to the existence and validity of an arbitration agreement. A similar view was adopted by the Supreme Court of India in Shin‑Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., In Shin‑Etsu (supra), the Supreme Court of India was called upon to determine the nature of adjudication contemplated by unamended Section 45 of the Arbitration Act when the objection with regards to the arbitration agreement being null and void, inoperative or incapable of being performed is raised before a judicial authority. Writing for the majority, Justice B N Srikrishna held that Section 45 does not require the judicial authority to give a final determination. The court observed that there are distinct advantages in veering to the view that Section 45 does not require a final determinative finding by the court. First, under the Rules of Arbitration of the International Chamber of Commerce (as in force with effect from 1‑1‑1998), the arbitral tribunal is vested with the power to rule upon its own jurisdiction. Even if the court takes the view that the arbitral agreement is not vitiated or that it is not invalid, inoperative or unenforceable, based upon purely a prima facie view, nothing prevents the arbitrator from trying the issue fully and rendering a final decision thereupon. If the arbitrator finds the agreement valid, there is no problem as the arbitration will proceed and the award will be made. However, if the arbitrator finds the agreement invalid, inoperative or void, this means that the party who wanted to proceed for arbitration was given an opportunity of proceeding to arbitration, and the arbitrator after fully trying the issue has found that there is no scope for arbitration. Since the arbitrator’s finding would not be an enforceable award, there is no need to take recourse to the judicial intercession available under Section 48(1)(a) of the Arbitration Act., When the referral court renders a prima facie opinion, neither the arbitral tribunal, nor the court enforcing the arbitral award will be bound by such a prima facie view. If a prima facie view as to the existence of an arbitration agreement is taken by the referral court, it still allows the arbitral tribunal to examine the issue in depth. Such a legal approach will help the referral court in weeding out prima facie non‑existent arbitration agreements. It will also protect the jurisdictional competence of the arbitral tribunals to decide on issues pertaining to the existence and validity of an arbitration agreement., One of the cardinal principles of the interpretation of statutes is to discover and give effect to the legislative intention. If a statute is susceptible to two interpretations, the court will have to reject the construction which will defeat the plain intention of the legislation. The court has to ascertain the intention of the legislation by considering not only the clause to be interpreted, but also the entirety of the statute. The legislature often enacts a statute to give effect to legislative policy. When enacting a statute, the legislature often endeavors to ensure that the provisions of a statute do not contradict the provisions of the same statute or provisions of another statute. However, inconsistencies or contradictions may nonetheless arise between statutes. In such situations, it is left to the Supreme Court of India to bring about a harmony between the working of such statutes., In Sultana Begum v. Prem Chand Jain, the Supreme Court of India analysed the relevant decisions of the Supreme Court of India and laid down the following principles pertaining to the harmonious construction of statutes: (a) It is the duty of the courts to avoid a head‑on clash between two sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them; (b) The provisions of one section of a statute cannot be used to defeat the other provisions unless the court, in spite of its efforts, finds it impossible to effect reconciliation between them; (c) When there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of harmonious construction; (d) The courts have also to keep in mind that an interpretation which reduces one of the provisions to a dead letter or useless lumber is not harmonious construction; and (e) To harmonize is not to destroy any statutory provision or to render it otiose., In Kandla Export Corporation v. OCI Corporation, the issue before the Supreme Court of India was whether an appeal which was not maintainable under Section 50 of the Arbitration Act was nonetheless maintainable under Section 13(1) of the Commercial Courts Act 2015. Section 50 of the Arbitration Act provides that no appeal shall lie from the order refusing to: (a) refer the parties to arbitration under section 45; and (b) enforce a foreign award under section 48. Section 13(1) of the Commercial Courts Act, 2015 allows any person aggrieved by the decision of the Commercial Court or Commercial Division of a High Court to file an appeal before the Commercial Appellate Division of that High Court., The Supreme Court of India referred to the objects of both statutes to observe that the Arbitration Act is meant to effectuate a speedy resolution of disputes between parties, while the Commercial Courts Act 2015 is for the speedy resolution of commercial disputes involving significant amounts of money. It was held that the provision of another appeal under Section 13(1) of the Commercial Courts Act, 2015 in matters of foreign arbitration would be against the object of speedy enforcement of foreign arbitral awards. Therefore, the Supreme Court of India held that any construction of Section 13 of the Commercial Courts Act, 2015 which would lead to further delay, instead of an expeditious enforcement of a foreign award must be eschewed: Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act, vis‑vis the more general statute, namely, the Commercial Courts Act, being left to operate in spheres other than arbitration., In Silpi Industries v. Kerala State Road Transport Corporation, the issue before the Supreme Court of India was whether a counter‑claim was maintainable in arbitration proceedings initiated under Section 18(3) of the Micro, Small and Medium Enterprises Development Act 2006. Section 18(3) provides that where the conciliation proceedings initiated by any party are not successful and stand terminated without any settlement between the parties, the Micro and Small Enterprises Facilitation Council shall either take up the dispute for arbitration or refer it to any institution or centre. The provision further states that the provisions of the Arbitration Act shall then apply to the disputes as if the arbitration was in pursuance of an arbitration agreement referred to in Section 7(1) of the Arbitration Act., The Supreme Court of India noted that Section 23(2A) of the Arbitration Act gives the respondent a right to submit a counter‑claim or plead a set‑off, which shall be adjudicated upon by the arbitral tribunal. It was held that since Section 18(3) of the MSME Act expressly provides that proceedings initiated under Section 18(3) shall be carried out as if they were in pursuance of an arbitration agreement under Section 7(1) of the Arbitration Act, the right to make a counter‑claim before the statutory authorities exists under the MSMED Act. In this way, the two statutes were harmonized., In the present reference, the challenge before the Supreme Court of India is to harmonize the provisions of the Arbitration Act and the Stamp Act. The object of the Arbitration Act is to inter alia ensure an efficacious process of arbitration and minimize the supervisory role of courts in the arbitral process. On the other hand, the object of the Stamp Act is to secure revenue for the state. It is a cardinal principle of interpretation of statutes that provisions contained in two statutes must be, if possible, interpreted in a harmonious manner to give full effect to both statutes. In providing a harmonious interpretation, the Supreme Court of India has to be cognizant of the fact that it does not defeat the purpose of the statutes or render them ineffective. The challenge, therefore, before the Supreme Court of India is to preserve the workability and efficacy of both the Arbitration Act and the Stamp Act., The Arbitration Act will have primacy with respect to arbitration agreements. As discussed in the preceding segments, the Arbitration Act is legislation enacted to inter alia consolidate the law relating to arbitration in India. It will have primacy over the Stamp Act and the Contract Act in relation to arbitration agreements for multiple reasons. (a) The Arbitration Act is a special law and the Indian Contract Act and the Stamp Act are general laws., It is trite law that a general law must give way to a special law. This rule of construction stems from the doctrine generalia specialibus non derogant. The Supreme Court of India held: In determining whether a statute is a special or a general one, the focus must be on the principal subject‑matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law., In Sundaram Finance Ltd. v. T. Thankam, the Supreme Court of India held: Once it is brought to the notice of the court that its jurisdiction has been taken away in terms of the procedure prescribed under a special statute, the civil court should first see whether there is ouster of jurisdiction in terms of compliance with the procedure under the special statute. The general law should yield to the special law generalia specialibus non derogant. In such a situation, the approach shall not be to see whether there is still jurisdiction in the civil court under the general law. Such approaches would only delay the resolution of disputes and complicate the redressal of grievance and of course unnecessarily increase the pendency in the court., The following position of law emerges from these precedents: (a) The principal subject‑matter as well as the particular perspective or focus illuminate the path to ascertain whether a law is a general law or a special law; and (b) The court should examine whether its jurisdiction has been ousted in terms of the procedure prescribed by a special law., To determine which of the three statutes that the Supreme Court of India is faced with is a special law, it is necessary to first refer to their subject‑matter: (a) The Stamp Act is a law governing the payment of stamp‑duty for all manner of instruments. Schedule I to the Stamp Act sets out various types of instruments which fall within the ambit of the legislation; (b) The Contract Act, as the name suggests, sets out the rules in relation to contracts in general. An arbitration agreement is one of the many different types of contracts to which it is applicable; and (c) The Arbitration Act contains the law relating to domestic arbitration, international commercial arbitration, the enforcement of foreign arbitral awards, and conciliation., Second, the particular perspective of this case pertains to whether an unstamped arbitration agreement is rendered unenforceable pending the payment of stamp‑duty so as to interpose a bar on the referral court to refer parties to arbitration. The issue is not whether all agreements are rendered unenforceable under the provisions of the Stamp Act but whether arbitration agreements in particular are unenforceable., The Arbitration Act is a special law in the context of this case because it governs the law on arbitration, including arbitration agreements Section 2(1)(b) and Section 7 of this statute define an arbitration agreement. In contrast, the Stamp Act defines instruments as a whole and the Contract Act defines agreements and contracts., It is not only the definition of arbitration agreement but also the other provisions of the Arbitration Act and the purpose for which it was enacted that makes it a special law. As observed by the Supreme Court of India in Bhaven Construction (supra), the Arbitration Act is a code in itself. It provides for a detailed mechanism by which arbitration may be conducted, with a view to ensuring its success as a speedy and efficacious alternative to the courts. The Statements of Objects and Reasons of the Arbitration Act record that the main objective of this law was to comprehensively cover international and commercial arbitration and conciliation as also domestic arbitration and conciliation., Section 5 of the Arbitration Act restricts the extent of judicial intervention in various matters governed by Part I of the Arbitration Act. The non‑obstante clause in this provision is of particular significance. It indicates that the rule in Section 5 (and consequently, the provisions of the Arbitration Act) must take precedence over any other law for the time being in force. Any intervention by the courts (including impounding an agreement in which an arbitration clause is contained) is, therefore, permitted only if the Arbitration Act provides for such a step, which it does not. Sections 33 and 35 cannot be allowed to operate in proceedings under Section 11 (or Section 8 as the case may be), in view of the non‑obstante clause in Section 5. This being the case, we are unable to agree with the decision in N N Global 2, that the court in a proceeding under section 11 must give effect to Sections 33 and 35 of the Stamp Act despite the interdict in Section 5., Section 5 is effectively rendered otiose by the interpretation given to it in N N Global 2. The court failed to provide a reason for holding that Section 5 of the Arbitration Act does not have the effect of excluding the operation of Sections 33 and 35 of the Stamp Act in proceedings under Section 11 of the Arbitration Act. The non‑obstante clause in Section 5 does precisely this. In addition to the effect of the non‑obstante clause, the Arbitration Act is a special law. We must also be cognizant of the fact that one of the objectives of the Arbitration Act was to minimise the supervisory role of courts in the arbitral process., In Hameed Joharan v. Abdul Salam, the Supreme Court of India made the following observations on the interplay between the Stamp Act and the Limitation Act. The intent of the legislature in engrafting the Limitation Act shall have to be given its proper weightage. Absurdity cannot be the outcome of interpretation by a court order and wherever there is even a possibility of such absurdity, it would be a plain exercise of judicial power to repel the same rather than encouraging it. The whole purport of the Indian Stamp Act is to make available certain dues and to collect revenue but it does not mean and imply overriding the effect over another statute operating in a completely different sphere., Parliament was aware of the Stamp Act when it enacted the Arbitration Act. Yet, the latter does not specify stamping as a pre‑condition to the existence of a valid arbitration agreement. Further, Section 11(6A) of the Arbitration Act requires the court to confine itself to the examination of the existence of the arbitration agreement. This provision stands in contrast to Section 33(2) of the Stamp Act which also uses the word examine. Section 33(2) requires the person before whom an instrument is produced, to examine whether it is stamped with a stamp of the value and description required by the law when such instrument was executed or first executed. Although Parliament was aware of the mandate of Section 33(2), it did not require the court acting under Section 11 to also undertake the examination required by Section 33(2)., In A. Ayyasamy v. A. Paramasivam, a two‑judge Bench of the Supreme Court of India of which one of us, DY Chandrachud, J, was a part emphasized that arbitration must provide a one‑stop forum for the resolution of disputes and held that (a) Courts must give effect to the commercial understanding of parties to arbitration agreements that arbitration is efficacious; and (b) This can be done by minimising judicial intervention: The basic principle which must guide judicial decision‑making is that arbitration is essentially a voluntary assumption of an obligation by contracting parties to resolve their disputes through a private tribunal. The intent of the parties is expressed in the terms of their agreement. Where commercial entities and persons of business enter into such dealings, they do so with a knowledge of the efficacy of the arbitral process. The commercial understanding is reflected in the terms of the agreement between the parties. The duty of the court is to impart to that commercial understanding a sense of business efficacy. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle., The decision of the majority in N N Global 2 assumes that the inadmissibility of the document in evidence renders it unenforceable. However, the effect of the principle of competence‑competence is that the arbitral tribunal is vested with the power and authority to determine its enforceability. The question of enforceability survives, pending the curing of the defect which renders the instrument inadmissible. By appointing a tribunal or its members, this Court (or the High Courts, as the case may be) is merely giving effect to the principle enshrined in Section 16. The appointment of an arbitral tribunal does not necessarily mean that the agreement in which the arbitration clause is contained as well as the arbitration agreement itself are enforceable. The arbitral tribunal will answer precisely these questions., In terms of Section 10 of the Contract Act, agreements are contracts if they are: (a) Made by the free consent of parties competent to contract; (b) For a lawful consideration; (c) With a lawful object; and (d) Not expressly declared to be void under its provisions., These requirements do not affect any law in force and not expressly repealed, which: (a) Requires contracts to be made in writing; (b) Requires contracts to be made in the presence of witnesses; or (c) Laws relating to the registration of documents., In addition, Section 7 of the Arbitration Act specifies the requirements for the existence of an arbitration agreement.
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It is the arbitral tribunal and not the court which may test whether the requirements of a valid contract and a valid arbitration agreement are met. If the tribunal finds that these conditions are not met, it will decline to hear the dispute any further. If it finds that a valid arbitration agreement exists, it may assess whether the underlying agreement is a valid contract., By enacting Section 16 of the Arbitration Act, Parliament has permitted an agreement to arbitrate to be preliminarily enforced even if it is only an agreement. After parties have been referred to arbitration under Section 8 of the Arbitration Act or after the appointment of arbitrators under Section 11 of the Arbitration Act, the arbitral tribunal will have jurisdiction to determine all questions and issues in dispute between the parties. The legitimate concerns of the revenue in the realization of stamp duty are not defeated because the arbitral tribunal has the jurisdiction to act in pursuance of the provisions of the Stamp Act., The corollary of the doctrine of competence‑competence is that courts may only examine whether an arbitration agreement exists on the basis of the prima facie standard of review. The nature of objections to the jurisdiction of an arbitral tribunal on the basis that stamp duty has not been paid or is inadequate cannot be decided on a prima facie basis. Objections of this kind will require a detailed consideration of evidence and submissions and a finding as to the law as well as the facts. Obligating the Supreme Court of India to decide issues of stamping at the Section 8 or Section 11 stage will defeat the legislative intent underlying the Arbitration Act., The purpose of vesting courts with certain powers under Sections 8 and 11 of the Arbitration Act is to facilitate and enable arbitration as well as to ensure that parties comply with arbitration agreements. The disputes which have arisen between them remain the domain of the arbitral tribunal (subject to the scope of its jurisdiction as defined by the arbitration clause). The exercise of the jurisdiction of the courts of the country over the substantive dispute between the parties is only possible at two stages: (a) if an application for interim measures is filed under Section 9 of the Arbitration Act; or (b) if the award is challenged under Section 34. Issues which concern the payment of stamp duty fall within the remit of the arbitral tribunal. The discussion in the preceding segments also makes it evident that courts are not required to deal with the issue of stamping at the stage of granting interim measures under Section 9., One of the intervenors, the Singapore International Arbitration Centre, submitted that the decision in N N Global 2 reversed the prima facie standard by observing that the court may refer a dispute to the arbitral tribunal if objections as to its being duly stamped are on the face of it wholly without foundation. We agree with this submission., Once the arbitral tribunal has been appointed, it will act in accordance with law and proceed to impound the agreement under Section 33 of the Stamp Act if it sees fit to do so. It has the authority to receive evidence by consent of the parties, in terms of Section 35. The procedure under Section 35 may be followed thereafter. In this manner, the competence‑competence doctrine is given life and arbitration proceedings can continue to remain a faster alternative to suits before the trial courts or other similar actions., Sections 33 and 35 of the Stamp Act use the word shall. While this ordinarily indicates that the provision is mandatory, it may be read as directory. In Sainik Motors v. State of Rajasthan, this Supreme Court of India held: The word shall is ordinarily mandatory, but it is sometimes not so interpreted if the context or the intention otherwise demands., In State of U.P. v. Babu Ram Upadhya, this Supreme Court of India held that the principles for the construction of statutes which use the mandatory word shall are as follows: When a statute uses the word shall, prima facie it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, the consequences which would follow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance that the statute provides for a contingency of non‑compliance, whether the non‑compliance is visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered., This Supreme Court of India must therefore interpret Sections 33 and 35 to assess whether they are mandatory in relation to a court presiding over proceedings under Section 8 or Section 11 by examining: (a) whether the context indicates that the provision is directory; (b) the scope of the statute; (c) the nature and design of the statute; (d) the consequences which would follow from construing it one way or another; (e) the impact of other provisions; (f) the consequences of non‑compliance; and (g) whether the object of the legislation will be furthered or destroyed., The decisions adverted to in the preceding paragraphs were delivered in the context of a single provision in a single statute. Additional factors must be considered in cases such as the present one, where multiple statutes appear to operate in relation to a single issue or a single agreement such as the arbitration agreement in the present case. To this list of considerations which must animate the Supreme Court of India's evaluation of whether a provision is mandatory or directory, we would add that the scope, nature, and design of all the statutes which appear to operate simultaneously must be considered. Their interplay and the intention of the legislature must be evaluated in the context of all such statutes. The question of whether the objects of the applicable legislations will be furthered or destroyed must also be considered in view of all such statutes., In N N Global 2, the majority judgment observed as follows: While the Stamp Act is a fiscal enactment intended to raise revenue, it is a law which is meant to have teeth. The point of time at which the stamp duty is to be paid is expressly provided for in Section 17 of the Stamp Act. There cannot be any gain in saying that because it is a fiscal enactment, it is intended to be implemented with full vigour. The duty of a Court must be to adopt an interpretation which results in the enforcement of the law, rather than allowing the law to be flouted with impunity. Once this principle is borne in mind, the task of the Court becomes less difficult., The interpretation accorded to the Stamp Act by this Supreme Court of India in the present judgment does not allow the law to be flouted. The arbitral tribunal continues to be bound by the provisions of the Stamp Act, including those relating to its impounding and admissibility. The interpretation of the law in this judgment ensures that the provisions of the Arbitration Act are given effect to while not detracting from the purpose of the Stamp Act., The interests of revenue are not jeopardised in any manner because the duty chargeable must be paid before the agreement in question is rendered admissible and the dispute between the parties adjudicated. The question is at which stage the agreement would be impounded and not whether it would be impounded at all. The courts are not abdicating their duty but are instead giving effect to: (a) the principle of minimal judicial intervention in Section 5 of the Arbitration Act; (b) the prima facie standard applicable to Sections 8 and 11 of the Arbitration Act; and (c) the purpose of the Stamp Act which is to protect the interests of revenue and not arm litigants with a weapon of technicality by which they delay the adjudication of the dispute. The interpretation of the law must give effect to the purpose of the Arbitration Act in addition to the Stamp Act., The decision of the Constitution Bench in N N Global 2 gives effect exclusively to the purpose of the Stamp Act. It prioritises the objective of the Stamp Act, i.e., to collect revenue at the cost of the Arbitration Act. As discussed previously, the purpose of the Arbitration Act is to ensure that a speedy and efficacious alternative dispute resolution system is available to parties both commercial and otherwise. This purpose is in danger of being undermined by the interpretation accorded to the Stamp Act in N N Global 2. The impounding of an agreement which contains an arbitration clause at the stage of the appointment of an arbitrator under Section 11 (or Section 8 as the case may be) of the Arbitration Act will delay the commencement of arbitration. It is a well‑known fact that courts are burdened with innumerable cases on their docket, which has the inevitable consequence of delaying the speed at which each case progresses. Arbitral tribunals, on the other hand, deal with a smaller volume of cases and are able to dedicate extended periods of time to the adjudication of a single case before them. If an agreement is impounded by the arbitral tribunal in a particular case, it is far likelier that the process of payment of stamp duty and a penalty (if any) and the other procedures under the Stamp Act are completed at a quicker pace than before courts., The genesis of the present issue stems from a two‑Judge Bench decision of this Supreme Court of India in SMS Tea Estates. In that case, the appellant and respondent executed a lease deed with respect to two tea estates in favor of the appellant. The lease deed provided for the settlement of disputes between the parties by arbitration. When the appellant sought to invoke the arbitration clause, the respondent opposed the same on the ground that the lease deed was unregistered and not duly stamped, and was therefore invalid, unenforceable, and not binding. The High Court dismissed the appellant’s application for the appointment of an arbitrator. On appeal, the following issues came for consideration before this Supreme Court of India: first, whether an arbitration agreement contained in an unregistered (but compulsorily registerable) instrument is valid and enforceable; and second, whether an arbitration agreement in an unregistered instrument which is not duly stamped is valid and enforceable., With regard to the first issue, the Court analysed Section 49 of the Registration Act. Section 49 provides that an unregistered document cannot be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. However, the proviso to Section 49 provides that an unregistered instrument can be used as evidence of any collateral transaction not required to be effected by such instrument. In view of the aforesaid provision, this Supreme Court of India held that an arbitration agreement contained in an unregistered instrument is a collateral term relating to the resolution of disputes, which is unrelated to the performance of the contract. Therefore, it was held that an arbitration agreement contained in an unregistered but compulsorily registerable document can be acted upon and enforced for the purpose of dispute resolution by arbitration., With regard to the second issue, it was noted that Section 35 of the Stamp Act does not contain a proviso like Section 49 of the Registration Act enabling the unstamped instrument to be used for a collateral purpose. Thereafter, this Court observed that Section 33 casts a duty upon every court, as also an arbitrator, before whom an unregistered instrument chargeable with stamp duty is produced to examine the instrument in order to ascertain whether it is duly stamped. If the Court or arbitrator concludes that the instrument is not duly stamped, it has to necessarily impound the document. The Court laid down the procedure to be adopted when an arbitration clause is contained in a document which is not duly stamped in the following terms: (a) the Court should, before admitting any document into evidence or acting upon such document, examine whether the instrument/document is duly stamped and whether it is an instrument which is compulsorily registerable; (b) if the document is found to be not duly stamped, Section 35 of the Stamp Act bars the said document being acted upon, consequently even the arbitration clause therein cannot be acted upon. The court should then proceed to impound the document under Section 33 of the Stamp Act and follow the procedure under Sections 35 and 38 of the Stamp Act; (c) if the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid, either before the court or before the Collector, and the defect with reference to deficit duty is cured, the court may treat the document as duly stamped., SMS Tea Estates allowed the courts to impound the document under Section 33 of the Stamp Act at the Section 11 stage. Thus, the courts were mandated to intervene at the pre‑arbitral stage before the arbitral tribunal could assume jurisdiction. SMS Tea Estates was decided in 2011. At that time, Patel Engineering and Boghara Polyfab held the field, which held that the referral courts had wide powers to decide a large number of preliminary issues, including the existence and validity of arbitration agreements., Pursuant to the recommendations of the Law Commission of India, Parliament incorporated Section 11(6A) which clarified that the scope of judicial intervention was limited to the examination of the existence of an arbitration agreement. The legislative note on Clause 11(6A) states that sub‑section (6A) is inserted to provide that the Supreme Court or the High Court while considering applications under sub‑section (4) to (6) shall confine to the examination of an arbitration agreement. More importantly, the provision contains a non‑obstante clause which reads: notwithstanding any judgment, decree or order of any Court., In Emmar MGF Land Ltd. v. Aftab Singh, this Supreme Court of India was examining the purport of Section 8 which included a similar non‑obstante clause as contained in Section 11(6A). This Court explained the purpose of the non‑obstante clause contained in Section 8 in the following terms: The words notwithstanding any judgment, decree or order of the Supreme Court or any court added by amendment in Section 8 were with intent to minimise the intervention of judicial authority in the context of arbitration agreement. As per the amended Section 8(1), the judicial authority has only to consider the question whether the parties have a valid arbitration agreement. The Court cannot refuse to refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. The amended provision thus limits the intervention by judicial authority to only one aspect, i.e., refusal by judicial authority to refer is confined to only one aspect, when it finds that prima facie no valid arbitration agreement exists., In Emmar MGF Land, this Supreme Court of India clarified that the expression notwithstanding any judgment referred to in Section 8(1) relates to those judicial precedents which explained the discretion and power of judicial authority to examine various aspects while exercising powers under Section 8. In a similar vein, Section 11(6A) intended to minimise judicial interference to the examination of the existence of an arbitration agreement. Accordingly, the non‑obstante clause contained in Section 11(6A) pertains to those judicial precedents which delved into the discretion and power of referral courts to intervene and examine the existence and validity of an arbitration agreement at the Section 11 stage. This includes SMS Tea Estates considering the fact that it mandated the referral court to judicially intervene in the arbitration process by impounding the unstamped instrument containing the arbitration agreement. Therefore, we hold that Section 11(6A) also legislatively altered the basis of SMS Tea Estates to the extent that it dealt with judicial intervention at the Section 11 stage., In Garware Wall Ropes, a Bench of two Judges of this Supreme Court of India was called upon to decide the effect of an arbitration clause contained in a contract which requires to be stamped. Since SMS Tea Estates was decided before the introduction of Section 11(6A) of the Arbitration Act, another pertinent issue before this Court was whether introduction of this provision removed the basis for the decision in SMS Tea Estates to the extent that an unstamped instrument could be impounded not by the referral court under Section 11 but by the arbitrator. This Court held that the referral court under Section 11(6A) would be bound by the mandatory provisions of the Stamp Act to examine and impound the unstamped instrument. It was further observed that since the Stamp Act applied to the instrument as a whole, it was not possible to bifurcate the arbitration clause contained in such instrument and give it an independent existence., This Court further analysed the purport of the word existence contained in Section 11 of the Arbitration Act. It was held that an arbitration agreement contained in an unstamped instrument would not exist in law. When an arbitration clause is contained in a contract, it is significant that the agreement only becomes a contract if it is enforceable by law. We have seen how, under the Stamp Act, an agreement does not become a contract, namely, that it is not enforceable in law, unless it is duly stamped. Therefore, even a plain reading of Section 11(6A), when read with Section 7(2) of the 1996 Act and Section 2(h) of the Contract Act, would make it clear that an arbitration clause in an agreement would not exist when it is not enforceable by law. This is also an indicator that SMS Tea Estates has, in no manner, been touched by the amendment of Section 11(6A)., Further, this Court noted Section 11(13) of the Arbitration Act which provides a timeline of sixty days for disposal of any application for appointment of an arbitrator. In view of Section 11(13), this Court held that the provisions of the Stamp Act and the Arbitration Act need to be harmoniously construed. Accordingly, the Court held that once the High Court impounds an unstamped instrument at the Section 11 stage, it shall hand it over to the relevant authority under the Maharashtra Stamp Act to be decided within a period of forty‑five days from which such authority receives the instrument. Once the stamp duty and penalty were paid, the High Court could proceed expeditiously to hear and dispose of the Section 11 application., The conclusions of this Court in Garware Wall Ropes can be summarized as follows: first, there was no legislative intent to overrule SMS Tea Estates because neither the Statement of Objects and Reasons of the 2015 Amendment Act nor the Law Commission of India Report, 2014 mentions it; second, the referral court at the Section 11 stage is only giving effect to the provisions of the Stamp Act and not deciding any preliminary issues between the parties; third, the separability presumption could only be applied for limited purposes. Since the Stamp Act applies to the instrument as a whole, it is not possible to bifurcate the arbitration clause contained in such agreement; and fourth, an arbitration clause in an unstamped contract would not exist, leading to the conclusion that Section 11(6A) has not overruled SMS Tea Estates., The Statement of Objects and Reasons of the 2015 Amendment Act are as follows: (iii) an application for appointment of an arbitrator shall be disposed of by the High Court or Supreme Court, as the case may be, as expeditiously as possible and an endeavour should be made to dispose of the matter within a period of sixty days. (iv) to provide that while considering any application for appointment of arbitrator, the High Court or the Supreme Court shall examine the existence of a prima facie arbitration agreement and not other issues., The above extract indicates that the Supreme Court or High Court at the stage of the appointment of an arbitrator shall examine the existence of a prima facie arbitration agreement and not other issues. These other issues not only pertain to the validity of the arbitration agreement, but also include any other issues which are a consequence of unnecessary judicial interference in the arbitration proceedings. Accordingly, the other issues also include examination and impounding of an unstamped instrument by the referral court at the Section 8 or Section 11 stage. The process of examination, impounding, and dealing with an unstamped instrument under the Stamp Act is not a time‑bound process, and therefore does not align with the stated goal of the Arbitration Act to ensure expeditious and time‑bound appointment of arbitrators. Therefore, even though the Law Commission of India Report or the Statement of Objects and Reasons of the 2015 Amendment Act do not specifically refer to SMS Tea Estates, it nevertheless does not make any difference to the position of law as has been set out above., Garware Wall Ropes relied on Patel Engineering to observe that it is difficult to accede to the argument made by the learned counsel on behalf of the respondent that Section 16 makes it clear that an arbitration agreement has an independent existence of its own, and must be applied while deciding an application under Section 11 of the 1996 Act. In view of this observation, it was held that the separability presumption cannot be applied in case of an unstamped instrument because the Stamp Act applies to the instrument as a whole. As discussed in the preceding segments, the separability presumption ensures the validity of an arbitration agreement notwithstanding the invalidity, illegality, or non‑existence of the underlying contract., The scope of authority of an arbitral tribunal under Section 16 is wide because it can deal with issues pertaining to the existence and validity of an arbitration agreement. In his dissenting opinion in N N Global 2, Justice Roy correctly observes that since Section 16 specifically deals with both existence and validity whereas Section 11 only deals with existence, the former should be given more weight. This observation comports with the stated goal of the Arbitration Act to minimise the supervisory role of courts in the arbitral process. Post the 2015 Amendment Act the referral courts are only required to prima facie determine the existence or validity of an arbitration agreement. The basis for such prima facie determination lies in the fact that the arbitral tribunal will later have the competence to rule on the issue of existence and validity of the arbitration agreement. Therefore, the separability presumption applies at the referral stage., In Intercontinental Hotels Group (India) (P) Ltd v. Waterline Hotels (P), the issue before a Bench of three Judges of this Supreme Court of India in a Section 11 application was: whether the court can proceed to appoint an arbitrator when the underlying contract is incorrectly stamped. In that case, it was observed that although stamp duty has been paid, whether it be insufficient or appropriate is a question that may be answered at a later stage as this Court cannot review or go into this aspect under Section 11(6)., The discussion in preceding segments has held that non‑stamping or insufficient stamping of an instrument does not render it invalid or non‑existent. Therefore, paragraphs 22 and 29 of Garware Wall Ropes, which held that an arbitration agreement contained in an unstamped or insufficiently stamped contract would be non‑existent in law, does not set forth the correct position of law., In N N Global 2, the majority considered the Appointment of Arbitrators by the Chief Justice of India Scheme, 1996. Paragraph 2 of the 1996 Scheme reads as follows: Submission of request – The request to the Chief Justice under sub‑section (4) or sub‑section (5) or sub‑section (6) of Section 11 shall be made in writing and shall be accompanied by (a) the original arbitration agreement or a duly certified copy thereof. The 1996 Scheme provides that an application under Section 11 for the appointment of an arbitrator shall be accompanied by the original arbitration agreement or a duly certified copy., In SMS Tea Estates, it was observed that a certified copy of the agreement/contract/instrument containing the arbitration clause should disclose the stamp duty that has been paid on the original. N N Global 2 has endorsed this view. In that case, this Supreme Court of India further referred to paragraph 5 of the 1996 Scheme which allows the Chief Justice or the person or the institution designated by him under paragraph 3 to seek further information or clarification from the party making request under the Scheme. Consequently, it was held that a Judge dealing with an application under Section 11 could seek further clarification or information with respect to the payment of stamp duty to satisfy the requirements as laid down in SMS Tea Estates., N N Global 2 also refers to the two‑Judge Bench decision of this Supreme Court of India in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao where it was held that Section 35 of the Stamp Act renders any secondary evidence of an unstamped or insufficiently stamped instrument inadmissible in evidence. It was further held that any secondary evidence of such instrument cannot be acted upon in terms of Section 35. Subsequently, a three‑Judge Bench of this Supreme Court of India in Hariom Agrawal v. Prakash Chand Malviya affirmed Jupudi Kesava Rao by observing that Sections 33 and 35 of the Stamp Act are not concerned with any copy of the instrument. The relevant paragraph is extracted below: It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Stamp Act, 1899., An arbitration agreement or its certified copy is not rendered void or unenforceable because it is unstamped or insufficiently stamped. We accordingly clarify that the position of law laid down in Jupudi Kesava Rao and Hariom Agrawal cannot constrain a referral court at Section 11 stage (as well as Section 8 stage) from acting upon a certified copy of an arbitration agreement and referring the parties to the arbitral tribunal., The discussion in preceding segments indicates that the referral court at Section 11 stage should not examine or impound an unstamped or insufficiently stamped instrument, but rather leave it for the determination by the arbitral tribunal. When a party produces an arbitration agreement or its certified copy, the referral court only has to examine whether an arbitration agreement exists in terms of Section 7 of the Arbitration Act. The referral court under Section 11 is not required to examine whether a certified copy of the agreement/instrument/contract discloses the fact of payment of stamp duty on the original. Accordingly, we hold that the holding of this Supreme Court of India in SMS Tea Estates, as reiterated in N N Global 2, is no longer valid in law., The genesis of these proceedings lies in N N Global 1 doubting the correctness of the finding in Vidya Drolia.
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N N Global 1 (supra) doubted the correctness of the view taken in paragraphs 146 and 147 of the 127‑coordinate Bench in Vidya Drolia (supra), where the three‑Judge Bench relied on Garware Wall Ropes (supra). In paragraph 146, this Supreme Court of India was dealing with the issue of whether the expression “existence” as contained in Section 11(6A) also presupposes the validity of an arbitration agreement. The Court answered this proposition by observing that an arbitration agreement exists only when it is valid and enforceable. Accordingly, it was held that existence of an arbitration agreement means an arbitration agreement which satisfies the requirements of both the Arbitration Act and the Contract Act. In the succeeding paragraphs, this Supreme Court of India sought to reinforce its conclusion. In the process, it referred to various precedents of this Supreme Court of India including Garware Wall Ropes (supra)., Paragraph 147.1 clarifies that it is referring to Garware Wall Ropes (supra) only for the purpose of establishing the correlation between existence and validity of an arbitration agreement. The relevant paragraph of Garware Wall Ropes (supra) refers to United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd. (175) in which the arbitration clause was triggered only if one of the parties admitted or accepted its liability. In that case, since the insurer did not accept its liability, the Court held that the arbitration clause did not exist in law although it existed in fact. Garware Wall Ropes (supra) relied on Hyundai Engg. (supra) to hold, albeit incorrectly, that an unstamped agreement would not exist as a matter of law until the underlying instrument is duly stamped. We are of the opinion that Vidya Drolia (supra) did not, in any manner, determine the effect of an unstamped or insufficiently stamped underlying contract on an arbitration agreement. It referred to Garware Wall Ropes (supra) only to buttress its interpretation that an arbitration agreement does not exist if it is invalid or illegal, which has been clarified in the above segments of this judgment., Significantly, a two‑Judge Bench of this Supreme Court of India in Career Institute Educational Society v. Om Shree Thakurji Educational Society (2023 SCC OnLine SC 586) clarified that Vidya Drolia (supra) referred to Garware Wall Ropes (supra) only to interpret the word “existence” and whether an invalid arbitration agreement can be said to exist. The two‑Judge Bench further clarified that Vidya Drolia (supra) did not decide the issue of the effect of an unstamped or insufficiently stamped underlying contract on the arbitration clause. The relevant extract is as follows: “The judgment in Vidya Drolia v. Durga Trading Corporation did not examine and decide the issue of effect of unstamped or under‑stamped underlying contract on the arbitration agreement. As this issue and question has not been decided in Vidya Drolia (supra), the decision is not a precedent on this question.”, We agree with these observations in Career Institute Educational Society (supra). Vidya Drolia (supra) did not deal with the issue of the effect of an unstamped or insufficiently stamped instrument on the existence or validity of an arbitration agreement. Therefore, the reasoning in Vidya Drolia (supra) does not lead to the conclusion that Garware Wall Ropes (supra) was rightly decided either on the aspect of examination and impounding of unstamped or insufficiently stamped instrument with respect to arbitration proceedings, or on the validity of an arbitration agreement contained in an unstamped or insufficiently stamped underlying contract., The conclusions reached in this judgment are summarised below: a. Agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable. b. Non‑stamping or inadequate stamping is a curable defect. c. An objection as to stamping does not fall for determination under Sections 8 or 11 of the Arbitration Act. The concerned court must examine whether the arbitration agreement prima facie exists. d. Any objections in relation to the stamping of the agreement fall within the ambit of the arbitral tribunal. e. The decisions in N N Global 2 (supra) and SMS Tea Estates (supra) are overruled. Paragraphs 22 and 29 of Garware Wall Ropes (supra) are overruled to that extent., The Registry is directed to take administrative directions from the Honorable Chief Justice of India for placing the matters before an appropriate Bench. I respectfully agree with the view expressed by the Honorable Chief Justice of India, Dr. D. Y. Chandrachud, in his elaborate exposition of the different contours which arise for consideration in the present reference. Complementing the same, I would like to provide additional justifications for the final conclusion, viz., unstamped or insufficiently stamped instruments inadmissible in evidence in terms of Section 35 of the Indian Stamp Act, 1899, are not rendered void and void ab initio; an objection as to the under‑stamping or non‑stamping of the underlying contract will not have any bearing when the prima facie test for the existence of an arbitration agreement is applied by the courts while deciding applications under Sections 8 or 11 of the Arbitration Act., Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement, shall, if a party to the arbitration agreement or any person claiming through or under him so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court of India or any court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. (2) The application referred to in sub‑section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub‑section (1), and the said agreement or certified copy is retained by the other party, then the applying party shall file such application along with a copy of the arbitration agreement and a petition praying the court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that court. (3) Notwithstanding that an application has been made under sub‑section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made., Appointment of arbitrators. (1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. (2) Subject to sub‑section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in sub‑section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. (4) If the appointment procedure in sub‑section (3) applies and (a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Supreme Court of India or, as the case may be, the High Court of India or any person or institution designated by such Court. (5) Failing any agreement referred to in sub‑section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree, the appointment shall be made, upon request of a party, by the Supreme Court of India or, as the case may be, the High Court of India or any person or institution designated by such Court. (6) Where, under an appointment procedure agreed upon by the parties, (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Supreme Court of India or, as the case may be, the High Court of India or any person or institution designated by such Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. (6A) The Supreme Court of India or, as the case may be, the High Court of India, while considering any application under sub‑section (4) or sub‑section (5) or sub‑section (6), shall, notwithstanding any judgment, decree or order of any Court, confine its examination to the existence of an arbitration agreement. (6B) The designation of any person or institution by the Supreme Court of India or, as the case may be, the High Court of India, for the purposes of this section shall not be regarded as a delegation of judicial power by the Supreme Court of India or the High Court of India., Section 33 – Examination and impounding of instruments. (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument chargeable with duty is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed. Provided that (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit to do so, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt, (a) the State Government may determine what offices shall be deemed to be public offices; and (b) the State Government may determine who shall be deemed to be persons in charge of public offices.\n\nSection 35 – Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Provided that (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act., Section 33 of the Stamp Act is cautiously worded so as not to over‑expand its ambit. The section applies to the production of an instrument before a person who by law or consent of the parties has the authority to receive evidence, and also when an instrument is produced before a person in charge of a public office. The proviso states that Section 33 shall not be deemed to require any Magistrate or Judge of a criminal court to examine or impound an instrument if he does not think fit to do so, except in proceedings under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898. Police officers are not public officers under Section 33 of the Stamp Act., Section 35 states that an instrument not duly stamped and chargeable with duty shall not be admitted in evidence by any person having by law or by consent of the parties the authority to receive evidence. The instrument cannot be relied upon for any collateral purpose either. The instrument shall not be acted upon, registered or authenticated by such person or any public officer unless it is duly stamped. The provision permits admission of an unstamped or under‑stamped instrument after the same instrument is duly stamped, provided that the chargeable duty and the prescribed penalty are paid before admission., Section 40(1)(b) of the Stamp Act provides for payment of proper duty if the instrument impounded is not duly stamped. Section 42(1) provides for certifying that proper duty has been paid on the impounded instrument. Sub‑section (2) of Section 42 provides that after certification the instrument shall be admissible in evidence, and may be registered, acted upon and authenticated as if it has been duly stamped., Sections 33 and 35 do not apply when an instrument is produced or acted upon by the parties themselves, or by a person who does not have authority by law or by consent of the parties to receive evidence, or a person who is not a public officer. Sections 33 does not authorise a police officer to examine and impound an instrument, even when insufficiently stamped. A Magistrate or a Judge of a criminal court may not examine or impound an instrument coming before him, and can admit an insufficiently stamped instrument in evidence, other than in the proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898. Thus, the same instrument may be admissible and acted upon before a criminal court, while being inadmissible before a civil court or public officer., The negative stipulations in Sections 33 and 35 are specific, albeit not so absolute as to make the instrument invalid in law. A void ab initio instrument, which is stillborn, has no corporeality in the eyes of law; it cannot confer rights or create obligations. However, an instrument which is inadmissible exists in law, albeit it cannot be admitted in evidence, registered, authenticated or acted upon by a public officer until it is duly stamped. As rightly observed by the Honorable Chief Justice, Section 35 deals with admissibility of an instrument and not its invalidity., Section 36 of the Stamp Act provides that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called into question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Consequently, where an instrument has been admitted in evidence, it cannot be impounded on the ground of insufficient stamping., An instrument which is void ab initio or void cannot be validated by mere consent or waiver unless the consent or waiver undoes the cause of invalidity. Section 36 incorporates the doctrine of waiver, estoppel and implied consent. After due stamping as per the Stamp Act, the unstamped or insufficiently stamped instrument can be admitted in evidence, or be registered, authenticated or acted upon by a public officer., In Javer Chand and Others v. Pukhraj Surana (1961), a four‑Judge Bench of this Supreme Court of India examined the interplay between Sections 35 and 36 of the Stamp Act and held that Section 36 is categorical: when a document has been admitted in evidence, such admission cannot be called into question on the ground of non‑stamping, except for the class of cases contemplated by Section 61 of the Stamp Act. Section 35 is a penal provision with far‑reaching effects, and parties must be circumspect to challenge the admissibility of an instrument before it is admitted in evidence., In The State of Bihar v. M/s Karam Chand Thapar and Brothers Ltd., a five‑Judge Bench held that the instrument that can be validated under Section 35 is only the original when it is unstamped or insufficiently stamped. A copy cannot be validated and acted upon, although multiple copies prepared and signed by respective parties each constitute an original instrument., In Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and Others, a two‑Judge Bench observed that the Indian Evidence Act, 1872 does not deal with admissibility of documents required to be stamped under the Stamp Act. The Court explained that Section 35 shuts out from evidence any instrument chargeable with duty unless it is duly stamped, and that the provision relating to acting upon the instrument also excludes secondary evidence of an unstamped document. The Court held that a copy of the instrument cannot be validated, overruling the view that Section 36 would apply to secondary evidence of an unstamped instrument., In Ham eed Joharan (Deceased) and Others v. Abdul Salam (Deceased) by learned counsel and others, this Supreme Court of India observed that the applicability of the Stamp Act is restricted to its own scheme. Being a fiscal statute, it requires strict construction and not liberal interpretation. Section 2(15) includes a decree of partition, and Section 35 bars unstamped or insufficiently stamped instruments from being admitted in evidence or acted upon. The Act does not suspend the limitation period for filing an appeal merely because a decree is drawn on stamp paper., In Dr. Chiranji Lal (Deceased) by learned counsel v. Hari Das (Deceased) by learned counsel, a three‑Judge Bench of this Supreme Court of India rejected the contention that an unstamped preliminary decree is not enforceable and that the period of limitation begins to run only when the decree is engrossed on stamp paper.
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The Stamp Act is a fiscal measure with the object to secure revenue for the State on certain classes of instruments. The Stamp Act is not enacted to arm the litigant with a weapon of technicality to meet the case of his opponent. As there is no rule which prescribes any time for furnishing of stamp paper or to call upon a person to pay stamp duty on a preliminary decree of partition, the proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereon was rejected., In Hariom Agrawal v. Prakash Chand Malviya, a three Judge Bench has referred to Kara m Chand Thapar (supra), Jupudi Kesava Rao (supra), to observe: It is clear from the decisions of the Supreme Court of India and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Stamp Act, 1899., In Shyamal Kumar Roy v. Sushil Kumar Agarwal, the Supreme Court of India observed that Section 36 is a standalone clause which categorically prohibits the court of law from reopening the matter with regard to the sufficiency or otherwise of the stamp duty paid on an instrument in the event the same has been admitted in evidence, the only exception being Section 61 providing for reference and revision. Reliance was placed on Javer Chand (supra)., Avinash Kumar Chauhan v. Vijay Krishna Mishra expounds the meaning of the words for any purpose used in Section 35 of the Stamp Act. These words are to be given natural meaning and effect. They would include collateral purpose, as was held in the decision of the Privy Council in Ram Rattan v. Parma Nand. Distinction was drawn between non‑effect of registration of a document in terms of Section 49 of the Registration Act, 1908, which does not bar use of an unregistered document for a collateral purpose. Section 35 is differently worded, and when applicable, bars use of insufficiently stamped instrument for a collateral purpose., It is necessary to affirm this legal position, as we enter into contracts or agreements several times in our interactions with others during the course of the day. Even written documents in the form of invoices, receipts or standard format agreements are often exchanged, and form the terms of the interactions. An unstamped or under‑stamped contract or agreement cannot be impounded, except when it is produced for being received in evidence before a person authorised to do so or a public officer in terms of Section 33 of the Stamp Act. To hold that insufficiently stamped instrument does not exist in law will cause disarray and disruption., Predictability and certainty are central tenets of law, especially in matters of commercial and routine nature. Adherence to the principle of stare decisis is essential for parties to be able to rely on the law to define their conduct in commercial or ordinary day‑to‑day dealings. Transient laws undermine public legitimacy and faith in the mandate of rule of law. The Supreme Court of India has previously observed that before reviewing and revising its earlier decision, the Court must satisfy itself whether it is necessary to do so in the interest of public good or for any other compelling reason, and the Court must endeavour to maintain certainty and continuity in the interpretation of the law in the country. On several occasions, the Supreme Court of India has emphasised certainty and consistency in judicial pronouncements as being the cornerstone of the administration of justice. Consistency in judicial decisions is conducive to reassuring parties of the consequences of the transactions forming part of their daily affairs., An instrument is to be stamped as per Section 33 when it is executed or first executed. The expressions executed and execution have been defined in clause (12) to Section 2 of the Stamp Act to mean signed or signature. It includes attribution of electronic record within the meaning of Section 11 of the Information Technology Act, 2000. I shall now analyse the relevance of execution or signature, with reference to an arbitration agreement as defined in Section 7 of the Arbitration Act., Section 7 of the Arbitration Act reads: Arbitration agreement. (1) In this Part, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract., Clause (12) of Section 2 defines executed and execution, used with reference to instruments, to mean signed and signature and includes attribution of electronic record within the meaning of Section 11 of the Information Technology Act, 2000. Section 11 provides that an electronic record shall be attributed to the originator if it was sent by the originator himself; by a person who had the authority to act on behalf of the originator in respect of that electronic record; or by an information system programmed by or on behalf of the originator to operate automatically. An arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or may arise between them. The disputes may be in respect of a defined legal relationship, whether contractual or not. An arbitration agreement has to be in writing., Sub‑section (4) to Section 7 specifies when an arbitration agreement can be said to be in writing. Clause (a) states that an arbitration agreement can be a document signed by the parties. According to clause (b), an arbitration agreement can be established or inferred from exchange of letters, telex, telegrams or other forms of communication, including communication through electronic means. The provision does not mention the need for execution or signatures of the parties. Similarly, clause (c) refers to exchange of statements of claim and defence, in which the existence of the arbitration agreement is alleged by one party and not denied by the other, and does not refer to an instrument which is signed by the parties. Clause (c) incorporates the principle wherein the parties by consent agree to the existence of an arbitration agreement, or impliedly agree by not denying its existence when alleged by one party and not denied by the other. An arbitration agreement is defined in the widest terms, and may be in the form of a clause in the underlying contract or separate from an underlying agreement. Significantly, even when it is a clause of the underlying agreement, it is treated as a separate agreement, an aspect to which I shall advert., Section 16 of the Arbitration Act empowers the arbitral tribunal to rule on its own jurisdiction. This includes the authority to decide the existence and validity of the arbitration agreement. As per Section 16, an arbitration agreement is an agreement independent of the other terms of the contract, even when it is only a clause in the underlying contract. The section specifically states that a decision by the arbitral tribunal holding the underlying contract to be null and void will not lead ipso jure to the invalidity of the arbitration clause. The existence of an arbitration agreement is to be ascertained with reference to the requirements of Section 7 of the Arbitration Act. In a given case the underlying contract may be null and void, but the arbitration clause may exist and be enforceable. Invalidity of an underlying agreement may not, unless relating to its formation, result in invalidity of the arbitration clause in the underlying agreement., In this connection, I may note a decision of the Singapore High Court in the case of BNA v. BNB and Another which holds that a defect in the arbitration agreement does not render it void ab initio unless the defect is so fundamental or irretrievable as to negate the parties' intent or agreement to arbitrate. This principle is based upon the observations of the Court of Appeal of Singapore in the judgment in Insigma Technology Co Ltd v. Alstom Technology Ltd., Jurisprudentially it is important to distinguish the terms and consequences of an agreement void ab initio, and a voidable agreement, and the effect of illegality and violation of law on an agreement., As per the Indian Contract Act, 1872, an agreement not enforceable by law is said to be void, and an agreement enforceable by law is a contract. A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable., The requirements of Section 10 of the Contract Act are that the contract should be made by parties competent to contract, for lawful consideration and with lawful object. Consent of the parties should be free. The contract should not be expressly declared to be void. Section 2 has to be read with Section 10 and not in isolation, in order to avoid contradiction and to harmoniously apply the two sections., Sections 11 and 12 deal with persons entitled to contract. In instances where a person is explicitly declared as incompetent or does not fall within the definition of a competent person under the aforesaid provisions, like a minor or a person of unsound mind, a contract entered into by such person would be void. An agreement is also rendered void when both parties are under mistake of fact. As per Section 24, agreements are void if consideration and objects are unlawful in part. This section does not have any application to the present issue, and neither are we concerned with Section 25, which relates to agreements without consideration and in which situation they have to be treated as void., Section 10 states that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void. Nothing herein contained shall affect any law in force in India and not expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents. Sections 11, 12, 20, 24 of the Indian Contract Act are referenced., Agreements which are in restraint of marriage or in restraint of trade are void. Agreements by way of wager are also void. Agreements, the meaning of which is not certain, or capable of being made certain, are void. Section 28 states that agreements in restraint of legal proceedings are void, but Exception 1 states that a contract by which parties agree for disputes arising between them to be referred to arbitration shall not render the contract illegal., Sections 13 to 19A relate to consent, free consent, coercion, undue influence, fraud, misrepresentation, voidability of agreements without free consent, and power to set aside contract induced by undue influence. The Contract Act declares contracts affected by the preceding provisions to be voidable at the option of the aggrieved party., Under Section 21, a contract is not voidable because it is caused by mistake as to law enforced in India, and a contract where mistake of fact is made by one party is also not voidable as per Section 22., According to Section 23 of the Contract Act, the consideration or object of an agreement is lawful unless it is forbidden by law or is of such nature as to defeat the provisions of law, or is fraudulent. Neither are these provisions applicable in case of unstamped or insufficiently stamped instruments, nor is the consideration or object unlawful as it involves or implies injury to a person or property of another. The last clause of Section 23 applies when the consideration or object of an agreement is regarded as immoral or opposed to public policy. An instrument whether unstamped or insufficiently stamped will not fall foul on the ground of consideration or object of the agreement being immoral, neither will it fall foul as opposed to public policy., In B.O.I. Finance Ltd. v. Custodian and Others the Supreme Court of India after examining the case law on the subject of public policy, observed that in pursuant to an agreement to do an illegal act, a transaction, in part, takes place which would otherwise be valid if there was no such prior agreement, then notwithstanding the illegality of the contract, the completed transaction itself cannot be regarded as invalid., Following this judgment, in Canara Bank and Others v. Standard Chartered Bank, it is held that for the contract to be declared void on the ground of public policy, it must be shown that the object and consideration of the contract was one which was illegal. Where the object and consideration of the contract is not illegal as in the case of sale or purchase of securities and payment of price, the contract will not be void on the ground of being opposed to public policy. The contention that the performance of contract in violation of law will be void on ground of public policy was rejected., A judgment by Justice S.S. Nijjar in Swiss Timing Ltd. v. Commonwealth Games 2010 Organising Committee has elaborately dealt with the terms void and voidable and states that they are used loosely and interchangeably with each other, though strictly in law, they are not so. It is also important to draw a distinction between contracts which are void, and those which are void ab initio due to lack of elements of offer or acceptance, which prevents a contract from coming into operation. Thus, a contract by a minor or by a person of unsound mind would be void due to lack of effectual offer or acceptance. But once the contract is made, that is to say where parties, whatever their innermost state of mind, have to all outward appearances, agreed with sufficient certainty in the same terms of the subject matter, then the contract is good unless and until it is set aside for failure of some condition on which the existence of contract depends, or for fraud, or on some other equitable ground. Neither party can rely upon its own mistake to say that it was a nullity from the beginning, no matter that it was a mistake which to his mind was fundamental, no matter that the other party knew that he was under a mistake., The judgment in Vidya Drolia and Others v. Durga Trading Corporation, after referring to Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd., draws a distinction between contract obtained through fraud, and post‑contract fraud or cheating. The latter falls outside the scope of Section 17 of the Contract Act. It observes that the fraud may permeate the entire contract and above all the agreement of arbitration, rendering it void. However, it may not be so when the allegations of fraud touch upon the internal affairs of the parties inter se, having no implication in the public domain., There are also two aspects of the judgment in Vidya Drolia which need to be noticed. First, I agree to and accept the error made by me in the judgment which observes that Section 11(6A) of the Arbitration Act has ceased to be operative in view of the enforcement of Section 3 of the Arbitration and Conciliation (Amendment) Act, 2019. As rightly observed by the Chief Justice, Section 3 of the Arbitration and Conciliation (Amendment) Act, 2019 relates to the amendment to Section 11. The judgment in ITC Ltd. v. George Joseph Fernandes and Another was under the Arbitration Act, 1940 and should not be applied to interpret the Arbitration and Conciliation Act, 1996. Section 11 has not been enforced. Secondly, as has been noted in the judgment of the Chief Justice and in Career Institute Educational Society v. Om Shree Thakurji Educational Society, the issue before the Supreme Court of India in Vidya Drolia was not the validity of an unstamped or under‑stamped arbitration agreement. No specific opinion was expressed on this question. The reference to the validity of an unstamped arbitration agreement, as mentioned in Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd., was only to serve the purpose of drawing a comparison between the existence and the validity of an arbitration agreement, and not a comment or opinion on the existence of unstamped or under‑stamped arbitration agreements., For the reasons set out in detail by the Chief Justice and recorded herein, I agree with the conclusions drawn, and referred to above. I also concur with the other findings and ratio in the judgment by the Chief Justice.
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Reportable Writ Petition (Civil) No. 961 of 2021 Neil Aurelio Nunes and Others Petitioners versus Union of India and Others Respondents. Writ Petition (Civil) No. 967 of 2021, Writ Petition (Civil) No. 1002 of 2021, Writ Petition (Civil) No. 1021 of 2021 and Writ Petition (Civil) No. 1105 of 2021. Dr Dhananjaya Y Chandrachud, Judge., This judgment has been divided into the following sections to facilitate analysis: Pendency of the Writ Petition instituted by Saloni Kumari, The Executive's power to introduce reservation in All India Quota seats, Factual Background. These writ petitions challenge the reservation for Other Backward Classes and the Economically Weaker Section in the All India Quota seats in the National Eligibility cum Entrance Test examination for undergraduate and postgraduate medical courses., The Directorate General of Health Services in the Union Ministry of Health and Family Welfare issued a notice on 29 July 2021 providing 27 percent reservation for Other Backward Classes (non‑creamy layer) and 10 percent reservation for Economically Weaker Section in the 15 percent undergraduate and 50 percent postgraduate seats in the All India Quota from the academic year 2021‑2022. By an order dated 7 January 2022, a two‑judge Bench of the Supreme Court of India upheld the constitutional validity of the Other Backward Classes reservation in All India Quota seats and posted the challenge to the validity of the Economically Weaker Section criteria for final hearing in the third week of March 2022. This judgment provides reasons for upholding the permissibility of reservations in the All India Quota seats and constitutionality of Other Backward Classes reservation in All India Quota seats., Some of the salient facts that have led to the implementation of Other Backward Classes reservation in All India Quota seats are set out to outline the broad contours of the controversy. While the history of the All India Quota and the evolution of an All‑India common entrance examination has been discussed in detail elsewhere, it is sufficient to highlight that the scheme of All India Quota seats was devised by the Supreme Court of India in Dr Pradeep Jain v. Union of India to provide domicile‑free seats in state‑run medical and dental institutions. The All India Quota scheme was further developed by the Supreme Court of India in Dinesh Kumar (I) v. Motilal Nehru Medical College and Dinesh Kumar (II) v. Motilal Nehru Medical College. Presently, under the All India Quota scheme, 15 percent undergraduate seats and 50 percent postgraduate seats in state‑run institutions are surrendered by the states to the All India Quota. The remaining seats in the state institutions are reserved for candidates domiciled in the respective states., The Constitution (Ninety‑Third Amendment) Act 2005 amended Article 15 of the Constitution by inserting clause (5) to empower the State to make special provisions (including reservation) for the advancement of socially and educationally backward classes (or the Other Backward Classes) relating to their admission in educational institutions. Article 15(5) reads thus: ‘Nothing in this article or in sub‑clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.’, In Abhay Nath v. University of Delhi, the Supreme Court of India held that reservations for Scheduled Castes and Scheduled Tribes candidates are permissible in the All India Quota seats. The Central Educational Institutions (Reservation in Admissions) Act 2006, which came into effect on 3 January 2007, was enacted to provide for reservation for students belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes in central educational institutions. The Act of 2006 provided that 15 percent seats shall be reserved for Scheduled Castes, 7.5 percent seats for Scheduled Tribes, and 27 percent seats for Other Backward Classes in central educational institutions. However, reservation for Other Backward Classes was not extended to state‑contributed seats for All India Quota in state‑run institutions., The State of Tamil Nadu granted 50 percent reservation to Other Backward Classes in state‑run medical institutions under the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993. Thus, the state quota seats were being filled according to the provisions of the Act of 1993. A writ petition was instituted before the Supreme Court of India by Dravida Munnetra Kazhagam seeking a mandamus to provide Other Backward Classes reservation in All India Quota. The Supreme Court of India, by its order dated 11 June 2020, directed that the issue be agitated before the Madras High Court. The Court observed that the learned senior counsel for the petitioners sought permission to withdraw these writ petitions with liberty to approach the High Court by filing writ petitions under Article 226 of the Constitution. Permission was granted and the writ petitions were dismissed as withdrawn with the aforesaid liberty., Pursuant to the above order, Dravida Munnetra Kazhagam instituted a writ petition before the Madras High Court arguing that the All India Quota seats available in state‑run medical and dental institutions in the State of Tamil Nadu must follow the reservation policy applicable under the Act of 1993. The Madras High Court, after issuing notice, accepted the argument of the Union Government that the hearing be deferred in view of the pendency of a writ petition before the Supreme Court of India on a similar issue. Aggrieved by the deferral, special leave petitions were instituted before the Supreme Court of India. By its order dated 13 July 2020, the Supreme Court of India disposed of the petitions holding that the issue raised in the writ petition pending before it is different from the one raised by the Dravida Munnetra Kazhagam before the Madras High Court and directed the High Court to proceed with the hearing of the case. The Court observed: Permission to file Special Leave Petition without certified/plain copy of the impugned order in Diary No. 13644/2020 is granted. These special leave petitions are directed against the order dated 22 June 2020 by which the High Court adjourned the matters in view of the pendency of Writ Petition No. 596 of 2015 in this Court. The order was passed on the basis of the stand taken by the Union of India that the points arising in the writ petitions filed in the High Court are similar to those that arose in Saloni Kumari and Another versus Director General of Health Services (Writ Petition No. 596 of 2015). The Supreme Court of India has perused the writ petition filed by Saloni Kumari, which is pending consideration. The issue in that writ petition pertains to the implementation of 27 percent seats for admission to postgraduate courses in the All India Quota. The petitioner contends that the seats in the 27 percent quota of Other Backward Classes should not be restricted to central government institutions. The writ petitions pending in the High Court involve a dispute concerning the percentage of reservation to be followed in the State of Tamil Nadu with respect to the surrendered seats in the All India Quota for postgraduate medical admissions. As the point raised in the High Court writ petitions is not similar to that in Saloni Kumari's case, the High Court can proceed to adjudicate the writ petitions on merits. The writ petitions are listed before the Madras High Court for final hearing on 17 July 2020, and the High Court is requested to decide the writ petitions expeditiously. Special Leave Petitions are disposed of accordingly., The Madras High Court, by its judgment dated 27 July 2020, disposed of the writ petition holding that there are no legal or constitutional impediments in extending reservation to Other Backward Classes in the All India Quota seats in the medical colleges in the State of Tamil Nadu. The High Court directed the Union Government to constitute an Expert Committee for implementing reservation for Other Backward Classes in the seats surrendered by the State of Tamil Nadu in the All India Quota. However, the High Court observed that the reservation should be implemented only from the academic year 2021‑2022 since it would disturb the selection process that had been set into motion for the academic year 2020‑2021. The State of Tamil Nadu challenged the order of the Madras High Court dated 27 July 2020 before the Supreme Court of India in a special leave petition on the limited ground that the High Court erred in denying implementation of the Other Backward Classes reservation for the academic year 2020‑2021. In its order dated 26 October 2020, the Supreme Court of India upheld the order of the High Court regarding the implementation of the Other Backward Classes reservation from the subsequent academic year 2021‑2022., The Ministry of Health and Family Welfare set up an Expert Committee to determine the modalities of granting reservation to Other Backward Classes candidates in All India Quota seats in undergraduate and postgraduate courses in state‑run medical colleges within the State of Tamil Nadu from the academic year 2021‑2022. The Committee recommended two options in its final report: either state‑specific reservation can be implemented for Other Backward Classes in All India Quota seats or Other Backward Classes reservation can be granted in terms of the provisions of the Act of 2006., A contempt petition was instituted by Dravida Munnetra Kazhagam before the Madras High Court against the Union of India for non‑implementation of Other Backward Classes reservation in All India Quota seats. Meanwhile, a notice dated 29 July 2021 was issued by the Directorate General of Health Services, Ministry of Health and Family Welfare to implement 27 percent Other Backward Classes reservation (non‑creamy layer) and 10 percent Economically Weaker Section reservation in the 15 percent undergraduate and 50 percent postgraduate All India Quota seats in the current academic session of 2021‑2022. The notice stated: ‘Urgent Attention Candidates of NEET‑UG and NEET‑PG: It has been decided by the Government of India to implement 27 percent Other Backward Classes reservation (non‑creamy layer) and 10 percent Economically Weaker Section reservation in the 15 percent All India Quota undergraduate seats and the 50 percent All India Quota seats (MBBS/BDS and MD/MS/MDS) contributed by the States/Union Territories. This reservation will take effect from the current academic session 2021‑2022. Consequently, the overall reservation in 15 percent undergraduate and 50 percent postgraduate All India Quota seats would be as follows: Other Backward Classes (non‑creamy layer) as per the Central Other Backward Classes list – 27 percent; Economically Weaker Section as per the Central Government norms – 10 percent; Persons with Disabilities – 5 percent; Horizontal reservation as per National Medical Commission norms.’, By its order dated 25 August 2021, the Madras High Court dismissed the contempt petition since the Union Government had complied with the order dated 27 July 2020 of the Madras High Court by constituting a committee. The High Court observed: Since the committee required to be constituted by the order dated 27 July 2020 was instituted and gave its opinion and the Union, or its appropriate agencies, have acted on the basis thereof, albeit not exactly in terms of the recommendations, no case of willful or deliberate violation of the order can be said to have been made out. Nonetheless, the High Court proceeded to scrutinize the validity of the notification dated 29 July 2021 providing reservation for Other Backward Classes and Economically Weaker Section candidates in All India Quota seats in medical and dental institutions. With respect to the reservation granted to Economically Weaker Section under the notification dated 29 July 2021, the High Court observed that such reservation can be permitted only with the approval of the Supreme Court of India. Special leave petitions were instituted before the Supreme Court of India challenging the order of the Madras High Court. The Supreme Court of India, by its order dated 24 September 2021, disposed of the petitions observing that the Madras High Court in its contempt jurisdiction could not have entered into a discussion on the validity of the Economically Weaker Section reservation provided by the notice dated 29 July 2021 and set aside the direction that the approval of this Court should be received before implementing reservation for the Economically Weaker Section category in All India Quota seats., We have traced the trajectory of the introduction of Other Backward Classes reservation in NEET All India Quota seats, which is challenged before the Supreme Court of India in the present batch of writ petitions. By its order dated 7 January 2022, the Supreme Court of India upheld the constitutional validity of the Other Backward Classes reservation in All India Quota medical and dental undergraduate and postgraduate seats. The constitutionality of the criteria used for the identification of the Economically Weaker Section category is yet to be decided. However, in the interim, the Court directed that the counselling in NEET‑PG 2021 and NEET‑UG 2021 be conducted by giving effect to the reservation provided by the notice dated 29 July 2021, including the 27 percent Other Backward Classes reservation and 10 percent Economically Weaker Section reservation. The challenge to the validity of the Other Backward Classes reservation in All India Quota seats is dealt with in this judgment., Pendency of the writ petition instituted by Saloni Kumari: We are aware that a writ petition was filed by Saloni Kumari seeking 27 percent Other Backward Classes reservation in All India Quota seats in state‑run medical institutions on the ground that such reservation should not be restricted to central education institutions in terms of the Act of 2006. The claim raised in that petition was of parity. The issue before us is the validity of the notification dated 29 July 2021 that provides for 27 percent Other Backward Classes reservation in the All India Quota seats in undergraduate and postgraduate seats from the academic year 2021‑2022. On account of the difference in the nature of the issues raised before the Supreme Court of India, we will proceed to rule on the validity of the notification dated 29 July 2021., Submissions of counsel: Mr Shyam Divan, learned Senior Counsel appearing for the petitioners, argued that there must be no reservation for the Other Backward Classes community in the All India Quota. He made the following submissions: (i) In Pradeep Jain v. Union of India, the Supreme Court of India raised serious concerns about reservation in postgraduate seats. Once a person is qualified as a doctor, he cannot be treated as belonging to a backward class; therefore, admission in postgraduate seats must be purely based on merit, without any reservation. (ii) At the level of postgraduate and super‑speciality, doctors are required to possess a high degree of skill and expert knowledge in specialised areas. This skill cannot be acquired by everyone. It would be detrimental to national interest to have reservations at this stage. Opportunities for such training are minimal and therefore should be available only to the most meritorious. (iii) The Supreme Court of India in Pradeep Jain created a right against reservation in the All India Quota seats. The judgment of the Court in Abhay Nath v. University of Delhi allowing reservations for Scheduled Castes and Scheduled Tribes categories in the All India Quota is per incuriam in light of the judgments in Pradeep Jain, Union of India v. R. Rajeshwaran and Union of India v. Jayakumar. (iv) The All India Quota scheme was conceived by the Supreme Court of India in Pradeep Jain and developed in Dinesh Kumar (I) and Dinesh Kumar (II). Therefore, only the Supreme Court of India can alter the reservation scheme in the All India Quota seats. The Union Government ought to have made an application to the Court apprising it of its intention to provide reservation for Other Backward Classes and Economically Weaker Section categories in the All India Quota, and the Court could decide to allow or deny permission. (v) It has been held by the Court in Dr Preeti Srivastava v. State of Madhya Pradesh and various other cases that reservation in postgraduate courses must be minimal. (vi) Even if reservation for the Other Backward Classes category in the All India Quota seats is constitutionally valid, it ought not to have been introduced for the academic year 2021‑22 since the notice on reservation for the Other Backward Classes category was introduced after the registration window was closed. It is a settled principle that the rules of the game cannot be changed after the game has begun. (vii) The candidates had registered for the exam against a certain seat matrix, having knowledge of the total number of seats for which they could compete. The impugned notification alters the seat matrix, changing the rules of the game after the game had begun. (viii) The phrase ‘as may be applicable’ in clause 11.1 of the information bulletin must be read to mean the reservation applicable as on the date of registration. The rules of the game were set when the registration closed. (ix) In specific branches of specialisation such as MD Radiology, MD Dermatology, MD Gynaecology, MS Psychiatry, MD Chest, MD Preventive and Social Medicine, MD Forensic Medicine, MS Microbiology, MS Pathology, MD Biochemistry, MS Anatomy, MS Orthopaedics, and MS ENT, no super‑speciality course is offered in India. Therefore, such courses are the end of the branch and there must be no reservation in such courses since they are equivalent to super‑speciality courses., The Union of India addressed the following arguments contending that the 27 percent reservation for the Other Backward Classes category in All India Quota seats is constitutionally valid. Mr Tushar Mehta, Solicitor General and Mr K. M. Nataraj, Additional Solicitor General made the following submissions: (i) The rules of the game were not changed after the process had begun since the reservation through the impugned notice issued on 29 July 2021 was introduced much prior to the date on which the examinations were conducted and before the commencement of the counselling process. The NEET‑PG examination schedule is as follows: (a) Release of Information Brochure: 23 February 2021; (b) Commencement of Registration Process: 23 February 2021; (c) Last date of Registration: 15 March 2021; (d) Scheduled examination date: 18 April 2021; (e) Postponement for four months on: 03 May 2021; (f) New date of examinations announced on: 13 July 2021; (g) New date for examination: 11 September 2021. Clause 11.1 of the information bulletin issued on 23 February 2021 states that reservation of postgraduate seats shall be as per the norms of the Central Government and the respective State Governments. Clause 11.2 states that a separate handbook providing information on the counselling process and applicable reservation shall be released by the designated counselling authority for NEET‑PG 2021. Therefore, the process begins only with the commencement of the counselling process and not when the registration closes. (ii) Reservation in All India Quota seats according to the impugned notice has been implemented for MDS admissions in the current academic year of 2021‑22. (iii) The All India Quota scheme was introduced in 1986 to provide domicile‑free admission to students from across the country. Till 2007, there was no reservation in the All India Quota. In 2007, the Supreme Court of India in the case of Abhay Nath permitted 15 percent reservation for Scheduled Castes and 7.5 percent reservation for Scheduled Tribes in the All India Quota seats. The Act of 2006 providing 27 percent reservation to Other Backward Classes, which came into force in 2007, was implemented in all central educational institutions, including medical colleges run by the Central Government. (iv) The All India Quota scheme is a central scheme. Therefore, the Central List of Other Backward Classes shall be used for implementing the reservation. Around 1,500 Other Backward Classes students in undergraduate and 2,500 in postgraduate will be benefitted through reservation for the Other Backward Classes category in All India Quota seats. (v) In the last six years, MBBS seats in the country have been increased by 56 percent from 54,348 in 2014 to 84,649 seats in 2020. The number of postgraduate medical seats has been increased by 80 percent from 30,191 seats in 2014 to 54,275 seats in 2020. (vi) Providing reservation for the All India Quota seats in medical/dental courses is a matter of policy. (vii) Though observations have been made by the Supreme Court of India on the desirability or otherwise of reservation in postgraduate courses, it has never been held to be unconstitutional. (viii) The Supreme Court of India in Pradeep Jain only held that there would be no domicile‑based reservation in the All India Quota seats. It was not held that no reservation otherwise would be impermissible in the All India Quota seats. Subsequent decisions of the Court (Saurabh Chaudri v. Union of India; Gulshan Prakash v. State of Haryana) have clarified that the Court in Pradeep Jain had only observed that the All India Quota seats shall be free from domicile reservation., Mr P. Wilson, learned Senior Counsel appearing for the Dravida Munnetra Kazhagam, submitted that the 27 percent reservation for the Other Backward Classes seats in the All India Quota is constitutionally valid. He made the following submissions: (i) Parliament, by the Constitution (Ninety‑Third Amendment) Act 2005, introduced clause (5) in Article 15 providing reservation for Scheduled Castes, Scheduled Tribes and socially and educationally backward classes (or the Other Backward Classes) in admission to educational institutions, including private educational institutions, aided or unaided by the State and other minority educational institutions. Pursuant to the amendment, the Union Government enacted the Act of 2006 providing 27 percent reservation for the Other Backward Classes category in central educational institutions. The Supreme Court upheld the constitutional validity of the Ninety‑Third Constitutional Amendment and the Act of 2006 in Ashoka Kumar Thakur v. Union of India. The Tamil Nadu State legislature enacted the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act 1993 providing 69 percent reservation. The enactment permits 50 percent reservation for backward classes and the most backward classes. Therefore, both the State legislature and Parliament allow reservation for the Other Backward Classes category. (ii) Regulation 9(IV) of the Postgraduate Medical Education Regulations 2000 and Regulation 5(5) of the Undergraduate Medical Education Regulations stipulate reservation for the categories based on the applicable laws prevailing in the States/Union Territories. Therefore, reservation must be applicable to all seats including the State‑contributed seats of the All India Quota. (iii) Merit cannot be measured solely in terms of marks. Merit must be construed in terms of the social value of a member in the medical profession (Pradeep Jain). (iv) In undergraduate courses, the States contribute 15 percent seats to the All India Quota. Of the 6,060 seats in the All India Quota contributed by the States, 1,636 seats (27 percent) ought to have been reserved for the Other Backward Classes category on the enactment of the Act of 2006. Similarly, 2,569 of the 9,515 seats contributed by the States to the All India Quota in postgraduate courses ought to have been reserved for the Other Backward Classes category. (v) The Madras High Court, in a judgment dated 27 July 2020 (in writ petition No. 8626 of 2020), observed that there was no legal or constitutional impediment in extending the benefit of reservation to the Other Backward Classes category in the All India Quota in postgraduate courses. The petitioners have not challenged the judgment of the Madras High Court. (vi) Clause 11 of the information bulletin for the NEET‑PG examination states that reservation would be as per the norms of the Government of India and the State prevailing at the time of counselling. Therefore, the argument of the petitioners that the rules of the game should not be changed in the middle of the game would be applicable only if the reservation was introduced after the counselling had begun. (vii) The submission of the petitioners that no reservation was provided at the level of super‑speciality in view of the judgment of the Court in Dr Preeti Srivastava is erroneous since the Act of 2006 only exempts reservations in institutions of excellence, research institutions, and institutions of national and strategic importance specified in the schedule of the Act, and Minority Educational Institutions as referred to under section 4 of the Act of 2006. Reservation is provided in super‑speciality courses in central educational institutions. (viii) Central medical institutions such as AIIMS and PGI hold their own examinations twice a year for postgraduate courses. There is no demarcation of State Quota and All India Quota in these central institutions. Therefore, the All India Quota postgraduate seats are different from postgraduate seats of central institutions. (ix) Reservation can be provided either through legislation or by an executive order such as a notification, order, or memorandum., The arguments of the petitioners are three‑fold: (i) Admissions to postgraduate courses must solely be based on open competition; (ii) the Supreme Court of India in Pradeep Jain and subsequent cases has held that there shall be no reservation in the All India Quota seats and that admission to the All India Quota seats shall be strictly by open competition; and (iii) as the Court evolved the concept of All India Quota seats, any reservation to be introduced in the All India Quota seats must only be pursuant to the direction of the Court., Analysis – Merit of reservation: On behalf of the petitioners, it was urged that at the level of postgraduate courses, a high degree of skill and expertise is required. Thus, such opportunities must be available to the most meritorious and providing any reservation for postgraduate seats would be detrimental to national interest. In effect, a binary was sought to be created between merit and reservation, where reservation becomes antithetical to establishing meritocracy. This is not a novel argument. There has been a longstanding debate over whether reservation for any class impinges on the idea of merit. In the Constituent Assembly Debates on draft Article 10, which has been incorporated as Article 16 of the Constitution, some members raised concerns on the inclusion of clause (3) to draft Article 10 (now Article 16(4) of the Constitution) which provided that the State is empowered to make reservation in appointments or posts in favour of any backward class of citizens who, in the opinion of the State, is not adequately represented in the services under the State. Certain members of the Constituent Assembly argued for the deletion of clause (3). For instance, Shri Loknath Misra stated that such a provision puts a premium on backwardness and inefficiency and no citizen had a fundamental right to claim a portion of State employment, which ought to go by merit alone. Shri Damodar Swarup Seth argued that reservation results in the very negation of efficiency and good government and appointments should be made on merit and qualification. However, the Constituent Assembly rejected these claims and adopted clause (3) of draft Article 10. Although there was debate on the meaning of backward classes, it was felt that there must be a provision that enables entry of those communities into administration since they were deprived of such access in the past and formal equality of opportunity would not suffice. However, the view that merit or efficiency in service is distinct from concerns of advancement of backward classes persisted for some members. Shri K. M. Munshi, a member of the Drafting Committee, observed that the clause seeks to secure two things: the highest efficiency in the services of the State and, in view of the conditions prevailing in several provinces, to give scope to truly backward classes in State services. Many members also recognized that merit cannot be separated from the function of existing inequalities in society. They envisaged that social justice must be read into the promise of equality of opportunity; otherwise the latter merely advances the interests of the privileged. During the debates on draft Article 286, which pertained to the functions of the Public Service Commission with regard to appointments to public posts, Dr. P. S. Deshmukh argued that people's capacities cannot be measured by mere passing of examinations or obtaining the highest possible marks. He noted that communities with the advantage of English education feared losing their monopoly and accused advocates of communalism, while those without educational opportunities were denied a place in public services as long as the present system lasts.
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Shri Phool Singh emphatically provided a conception of substantive equality when he stated that merit of candidates cannot be evaluated through an open competition without regard to their social positions. He further highlighted that the meaning of merit should also take into reference the task that is to be carried out. He stated thus: 32 Volume 9, Constituent Assembly of India Debates, 23 August 1949, available at s://-08-23. Much has been made of merit in this case; but equal merit presupposes equal opportunity, and it goes without saying that the toiling masses are denied all those opportunities which a few literate people living in big cities enjoy. To ask the people from the villages to compete with those city people is asking a man on a bicycle to compete with another on a motorcycle, which in itself is absurd. Then again, merit should also have some reference to the task to be discharged. Mister Tyagi interrupted Doctor Deshmukh by saying that it is a fight for the illiterates. I think, however sarcastic that remark may be, he was probably right. Self‑government, meaning a government by the people, and if the people are illiterate, a few leaders have no right to usurp all the power to themselves. This cry, this bogey of merit and fair‑play is being raised by those who are in an advantageous position and who stand to suffer if others also come into the picture., While these observations were made in the context of employment to public posts, the debate on conceptualisation of reservation as an exception to the principle of merit has relevance in regard to admission to educational institutions as well. The debates in the Constituent Assembly were limited to reservation in public posts because reservation in educational institutions was introduced through a subsequent constitutional amendment., On its part, the Supreme Court of India initially subscribed to the binary of merit and reservation. Articles 14, 15(1) and 16(1) were thought to embody the general principle of formal equality. Articles 15(4) and 16(4) were understood to be exceptions to this general principle, advancing the cause of social justice. The Supreme Court of India sought to balance these competing imperatives. In such an understanding, merit is equated to formal equality of opportunity which has to be balanced against the concerns of social justice through reservation., In M.R. Balaji v. State of Mysore, a Constitution Bench of the Supreme Court of India observed that Article 15(4) is an exception to Article 15(1), which was introduced because the interests of society at large would be served by promoting advancements of the weaker elements in the society. However, since Article 15(4) (or reservation) was considered at odds with the notion of formal equality under Article 15(1), which is broadly understood as complying with the principle of merit, the Supreme Court of India observed that there should be a cap on reservations, which it specified generally should be fifty percent., The Supreme Court of India stated: \Therefore, in considering the question about the propriety of the reservation made by the impugned order, we cannot lose sight of the fact that the reservation is made in respect of higher university education. The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by wholesale reservation of seats in all technical, medical or engineering colleges or institutions of that kind. Therefore, considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the question as to whether the special provision contemplated by Article 15(4) can be a special provision which excludes the rest of the society altogether. In this connection, it would be relevant to mention that the University Education Commission, which considered the problem of assistance to backward communities, observed that the percentage of reservation shall not exceed a third of the total number of seats, and added that the principle of reservation may be adopted for a period of ten years (p. 53).\, This view was followed by the Supreme Court of India in subsequent judgments where a special provision made for the benefit of a class was seen as a deviation from the principle of formal equality. However, the dominant view of the Supreme Court of India was challenged by Justice R. Subba Rao in his dissent in T. Devadasan v. Union of India, where the learned judge stated that Article 16(4) is not an exception but a facet of Article 16(1), which seeks to redress the historical disadvantage suffered by certain communities., Justice Subba Rao observed: \Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid. To make my point clear, take the illustration of a horse race. Two horses are set down to run a race; one is a first‑class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced clause (4) in Article 16. The expression 'nothing in this article' is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article.\, The view expressed by Justice Subba Rao was adopted by the Supreme Court of India in State of Kerala v. N.M. Thomas, which transformed the equality jurisprudence in India from that of formal equality to substantive equality, thus also changing the understanding of reservations. Chief Justice A.N. Ray, writing the judgment of the Supreme Court of India, held: \Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of Backward Classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and Scheduled Tribes, who are said by this Court to be Backward Classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Article 15(4) and 16(4) bring out the position of Backward Classes to merit equality. Special provisions are made for the advancement of Backward Classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept of equality is equality of opportunity for appointment. Preferential treatment for members of Backward Classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reason means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the Backward Classes in services with due regard to administrative efficiency is a permissible object and Backward Classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.\, Justice K.K. Mathew, in his concurring opinion, observed that while equality under Article 16(1) is individual‑centric (the view of the majority), the manner in which it is to be achieved is through the identification of groups that do not enjoy equal access to certain rights and entitlements. He stated: \There is no reason why the Supreme Court of India should not also require the State to adopt a standard of proportional equality which takes account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims. The concept of equality of opportunity in matters of employment is wide enough to include within it compensatory measures to put the members of the Scheduled Castes and Scheduled Tribes on par with the members of other communities which would enable them to get their share of representation in public service. How can any member of the so‑called forward communities complain of a compensatory measure made by the Government to ensure the members of Scheduled Castes and Scheduled Tribes their due share of representation in public services?\ He further noted that Article 16(4) specifically provides for reservation of posts in favour of Backward Classes, which includes the power of the State to make reservation at the stage of promotion, and that such reservation does not derogate from strict numerical equality because it serves to achieve equality of opportunity in result., Justice Krishna Iyer and Justice Fazal Ali, in their concurring opinions, went a step further to argue that the content of Article 16(1) is not individual‑centric but aims to provide equality of opportunity to sections that face structural barriers to their advancement. Justice Krishna Iyer invoked Article 46 of the Constitution, which although unenforceable, was employed for giving effect to Article 16(1). He observed: \Reservation based on classification of backward and forward classes, without detriment to administrative standards, is an application of the principle of equality within a class and grouping based on a rational differentia, the object being advancement of backward classes consistently with efficiency. Article 16(1) and (4) are concordant. This Court has viewed Article 16(4) as an exception to Article 16(1). Does classification based on desperate backwardness render Article 16(4) redundant? No. Reservation confers pro tanto monopoly, but classification grants under Article 16(1) ordinarily a lesser order of advantage. The former is more rigid, the latter more flexible, although they may overlap sometimes. Article 16(4) covers all backward classes; but to earn the benefit of grouping under Article 16(1) based on Articles 46 and 335, the twin considerations of terrible backwardness and maintenance of administrative efficiency must be satisfied.\, Justice Fazal Ali noted that equality of opportunity under Article 16(1) entails the removal of barriers faced by certain classes of society. He stated: \It is no doubt true that Article 16(1) provides for equality of opportunity for all citizens in the services under the State. It is, however, well‑settled that the doctrine contained in Article 16 is a hard and reeling reality, a concrete and constructive concept and not a rigid rule or an empty formula. Article 16 is merely an incident of Article 14; Article 14 is the genus of universal application whereas Article 16 is the species and seeks to obtain equality of opportunity in the services under the State. The theory of reasonable classification is implicit and inherent in the concept of equality because there can hardly be any country where all the citizens would be equal in all respects. Equality of opportunity would naturally mean a fair opportunity not only to one section or the other but to all sections by removing the handicaps if a particular section of the society suffers from the same. What Article 14 or Article 16 forbid is hostile discrimination and not reasonable classification. In order to provide equality of opportunity to all citizens of our country, every class of citizens must have a sense of equal participation in building up an egalitarian society, where there is peace and plenty, complete economic freedom and no pestilence or poverty, no discrimination and oppression, where there is equal opportunity to education, to work, to earn their livelihood so that the goal of social justice is achieved. Could we, while conferring benefits on the stronger and more advanced sections of society, ignore the more backward classes merely because they cannot meet the fixed standards? Such a course would lead to denial of opportunity to the backward classes resulting in complete annihilation of the concept of equality contained in Articles 14 and 16. The only manner in which the objective of equality as contemplated by the founding fathers of our Constitution and as enshrined in Articles 14 and 16 can be achieved is to boost up the backward classes by giving them concessions, relaxations, facilities, removing handicaps, and making suitable reservations so that the weaker sections may compete with the more advanced and, in due course, all may become equals and backwardness is banished forever.\, The view that special provisions made for a backward class are not an exception to the principle of equality was reaffirmed by a nine‑Judge Bench in Indira Sawhney v. Union of India. These observations were made in the context of Articles 16(1) and 16(4). In Dr. Jaishri Laxmanrao Patil v. Chief Minister, the Supreme Court of India observed that the principles applied for interpreting Article 16 are also to be used for the interpretation of Article 15. Thus, Articles 15(4) and 15(5) are nothing but a restatement of the guarantee of the right to equality stipulated in Article 15(1)., The crux of the above discussion is that the binary of merit and reservation has now become superfluous once the Supreme Court of India has recognized the principle of substantive equality as the mandate of Article 14 and as a facet of Articles 15(1) and 16(1). An open competitive exam may ensure formal equality where everyone has an equal opportunity to participate. However, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system. Special provisions such as reservation enable disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensure substantive equality., The privileges that accrue to forward classes are not limited to having access to quality schooling, tutorials and coaching centres, but also include social networks and cultural capital—communication skills, accent, books or academic accomplishments—that they inherit from their families. This cultural capital ensures that a child is unconsciously trained by the familial environment to pursue higher education or high posts commensurate with the family’s standing. This works to the disadvantage of first‑generation learners who come from communities whose traditional occupations do not transmit the necessary skills required to perform well in open examinations. They have to put in surplus effort to compete with their peers from forward communities., In B.K. Pavithra v. Union of India, a two‑Judge Bench of the Supreme Court of India, of which one of us was a part (Justice D.Y. Chandrachud), observed how apparently neutral systems of examination perpetuate social inequalities. The Court noted that existing inequalities in society can lead to a seemingly neutral system discriminating in favour of privileged candidates. As Marc Galanter explains, three broad kinds of resources are necessary to produce the results in competitive exams that qualify as indicators of merit: (a) economic resources for prior education, training, materials and freedom from work; (b) social and cultural resources such as networks of contacts, confidence, guidance and information; and (c) intrinsic ability and hard work. The first two criteria are not products of a candidate’s own efforts but rather the structural conditions into which they are born. By adding upliftment of Scheduled Castes and Scheduled Tribes to the moral compass of merit in government appointments and promotions, the Constitution mitigates the risk that the lack of the first two criteria will perpetuate structural inequalities., This is not to say that performance in competitive examinations or admission to higher educational institutions does not require a great degree of hard work and dedication, but it is necessary to understand that merit is not solely of one’s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and socially valued talents aid an individual’s advancement. Consequently, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making., Ashwini Deshpande highlights that there is always a degree of separation between what examinations claim to measure and what they actually measure. She states that most examinations and tests have an inevitably indexical character; they claim to measure something more than (or other than) what is established by the actual tasks they set. For example, a candidate aspiring to join the civil service may take an entrance exam covering geology, philosophy and general knowledge. On the basis of performance in these papers, the entrance exam claims to predict the candidate’s potential ability to be a good civil servant, even though there is at best an indirect link between answering questions in those subjects and being an effective civil servant. Thus, the exam and the candidate’s performance serve as an indexical indicator of something else—potential to be a good civil servant., All examinations are more or less indexical, even those that have a large practical component involving activities that appear close to what successful candidates will eventually be doing professionally. All other things being equal, indexicality tends to weaken the diagnostic claims of the examination. Because of this, the higher the stakes, the greater the ideological energy spent on building up the prestige and popular deference accorded to the exam. That is why exams guarding the gateway to a prized profession or status are steeped in hyperbole and are socially required to be traumatic bloodbaths. Anything less would not only undermine the status of the position they are guarding, it would also endanger the main social function that such exams perform, which is to persuade the vast majority of aspirants to consent to their exclusion., The meaning of merit itself cannot be reduced to marks even if marks are a convenient way of distributing educational resources. When examinations claim to be more than systems of resource allocation, they produce a warped system of ascertaining the worth of individuals as students or professionals. Since success in examinations results in the ascription of high social status as a meritorious individual, they often perpetuate and reinforce existing ascriptive identities of certain communities as intellectual and competent by rendering invisible the social, cultural and economic advantages that increase the probabilities of success. Therefore, merit must be reconceptualised to include not only academic achievement but also propriety of actions and dedication to public service., The Supreme Court of India, in Pradeep Jain, observed: \But let us understand what we mean when we say that selection for admission to medical colleges must be based on merit. What is merit which must govern the process of selection? It undoubtedly consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic subjects and infinite capacity for hard work, but that is not enough; it also calls for a sense of social commitment and dedication to the cause of the poor. We agree with Justice Krishna Iyer, when he says in the Jagdish Saran case that merit must be coupled with a sense of social responsibility.\
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If potential for rural service or aptitude for rendering medical attention among backward people is a criterion of merit and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tears then, surely, belonging to a university catering to a deprived region is a plus point of merit. Excellence is composite and the heart and its sensitivity are as precious in the scale of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases. Merit cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor as the head in assessing the social value of a member of the medical profession. This is also an aspect which may, to the limited extent possible, be borne in mind while determining merit for selection of candidates for admission to medical colleges though concededly it would not be easy to do so, since it is a factor which is extremely difficult to judge and not easily susceptible to evaluation., However, after contextualising the meaning of merit, in the next paragraph the Supreme Court of India reverted to equating the selection process adopted for admission to merit. Irrespective of the true purport of merit, the Supreme Court notes that the selection process for admission must satisfy the test of equality. The Court observed: We may now proceed to consider what are the circumstances in which departure may justifiably be made from the principle of selection based on merit. Obviously, such departure can be justified only on equality‑oriented grounds, for whatever be the principle of selection followed for making admissions to medical colleges, it must satisfy the test of equality. The concept of equality under the Constitution is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination. Equality must not remain a mere idle incantation but must become a living reality for the large masses of people. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground that every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him., We cannot countenance such a suggestion, for to do so would make the equality clause sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities. Where, therefore, there is inequality, legal equality always tends to accentuate it. As the poet William Blake said, 'One law for the Lion and the Ox is oppression.' Those who are unequal cannot be treated by identical standards; that may be equality in law but it would certainly not be real equality. It is therefore necessary to take into account de facto inequalities which exist in society and to take affirmative action by giving preference to the socially and economically disadvantaged persons or by inflicting handicaps on those more advantageously placed, in order to bring about real equality., Such affirmative action, though apparently discriminatory, is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so that each member of the community, whatever his birth, occupation or social position, may enjoy equal opportunity of using to the full his natural endowments of physique, character and intelligence. In Ahmedabad St. Xavier's College Society v. State of Gujarat [(1974) 1 SCC 717, 799 : AIR 1974 SC 1389 : (1975) 1 SCR 173] (SCC p. 799, para 132) it is obvious that equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations. We cannot, therefore, have rigid equality which does not take into account the social and economic disabilities and inequalities from which large masses of people suffer in the country., Equality in law must produce real equality; de jure equality must ultimately find its raison d'être in de facto equality. The State must, therefore, resort to compensatory State action for the purpose of making people who are factually unequal in their wealth, education or social environment equal in specified areas. As Justice Krishna Iyer observed in Jagdish Saran case [(1980) 2 SCC 768 : AIR 1980 SC 820 : (1980) 2 SCR 831] (SCC p. 782, para 29), the State should weave those special facilities into the web of equality which, in an equitable setting, provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity. Equality is not negated where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit. The scheme of admission to medical colleges may, therefore, depart from the principle of selection based on merit where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals., It is important to clarify that after the decision in N.M. Thomas there is no constitutional basis to subscribe to a binary of merit and reservation. If open examinations present equality of opportunity to candidates to compete, reservations ensure that the opportunities are distributed in such a way that backward classes are equally able to benefit from such opportunities which typically evade them because of structural barriers. This is the only manner in which merit can be a democratizing force that equalises inherited disadvantages and privileges. Otherwise claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements., If merit is a social good that must be protected, we must first critically examine the content of merit. As noted above, scores in an exam are not the sole determinant of excellence or capability. Even if, for the sake of argument, scores reflect excellence, they are not the only value that is considered a social good. We must look at the distributive consequences of merit. Accordingly, how we assess merit should also encapsulate whether it mitigates or entrenches inequalities. As Amartya Sen argues: If, for example, the conceptualisation of a good society includes the absence of serious economic inequalities, then in the characterisation of instrumental goodness, including the assessment of what counts as merit, note would have to be taken of the propensity of putative merit to lessen or generate economic inequality. In most versions of modern meritocracy, the selected objectives tend to be almost exclusively oriented towards aggregate achievements without any preference against inequality, and sometimes the objectives chosen are even biased, often implicitly, towards the interests of more fortunate groups. This can reinforce and augment the tendency towards inequality that might be present even with an objective function that, inter alia, attaches some weight to lower inequality levels., A similar understanding of merit was advanced by this Court in BK Pavithra, where the Court held: Once we understand merit as instrumental in achieving goods that we as a society value, we see that the equation of merit with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value. An oppositional paradigm of merit and reservation serves to entrench inequalities by relegating reserved candidates to the sphere of incompetence and diminishing their capabilities. While examinations are a necessary and convenient method to allocate educational resources, they are not effective markers of merit. The way we understand merit should not be limited to individual agency or ability, which in any event is not solely of our own doing, but should be envisioned as a social good that advances equality because that is the value that our Constitution espouses. Equality here does not merely have a redistributive dimension but also includes recognising the worth and dignity of every individual. The content of merit cannot be devoid of what we value in society. Based on the above discussion, we find it difficult to accept the narrow definition of merit (that is, decontextualised individual achievement). We believe such a definition hinders the realisation of substantive equality., Coming to the issue of whether reservation can be permitted in postgraduate courses, Article 15(5) does not make a distinction between undergraduate and postgraduate courses. Article 15(5) reads: Nothing in this article or in sub‑clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. The Constitution enables the State to make special provisions for the advancement of socially and educationally backward classes for admission to educational institutions at both the undergraduate and postgraduate levels. While on certain occasions this Court has remarked that there cannot be any reservation in super‑specialty courses, this Court has never held that reservations in medical postgraduate courses are impermissible. In Pradeep Jain, this Court did not hold that reservation in postgraduate courses is altogether impermissible. In Dr Preeti Srivastava, this Court was not concerned with the issue of reservation in postgraduate courses; rather it was concerned with the question whether it is permissible to prescribe a lower minimum percentage of qualifying marks for reserved category candidates in comparison to the general category candidates. In AIIMS Student Union v. AIIMS, this Court was concerned with the question of reservation based on institutional preference in postgraduate courses and held that limited preference to students of the same institution can be given at the postgraduate level. In Saurabh Chaudhri v. Union of India, a Constitution Bench of this Court observed that reservation in postgraduate courses to a reasonable extent did not violate the equality clause. Mr Divan had urged that for many individuals postgraduate study is the end of the road and therefore the postgraduate courses should be equated with super‑specialty courses and no reservation should be allowed in postgraduate courses. We find it difficult to accept this argument when this Court has time and again permitted reservation in postgraduate courses. The argument merely seeks to create an artificial distinction between the courses offered at the postgraduate level. Moreover, only certain medical fields do not have super‑specialty courses and on that basis we cannot deem that reservation is impermissible in postgraduate courses as a whole. Crucially, the issue is whether after graduation an individual is entitled to reservation on the ground that he belongs to a class that suffers from social and educational backwardness. It cannot be said that the impact of backwardness simply disappears because a candidate has a graduate qualification. Indeed, a graduate qualification may provide certain social and economic mobility, but that by itself does not create parity between forward and backward classes. There cannot be an assertion of over‑inclusion where undeserving candidates are said to be benefitting from reservation because OBC candidates who fall in the creamy layer are excluded from taking the benefit of reservation. Thus, we find that there is no prohibition in introducing reservation for socially and educationally backward classes (or the OBCs) in postgraduate courses., The Court and the All India Quota seats. In order to address the argument of the petitioners that this Court in Pradeep Jain and the subsequent cases has held that there shall be no reservation in the All India Quota seats, it is necessary to chronologically refer to the development of the concept of All India Quota seats by various cases. In Pradeep Jain, a three‑Judge Bench of this Court was deciding on the constitutional validity of reservation based on domicile and institutional preference in medical colleges or institutions of higher learning. Referring to State of U.P. v. Pradip Tandon and Nookavarapu Kanakadurga Devi v. Kakatiya Medical College, where reservation for the people of the hills in Uttarakhand and Telangana was held to be permissible since they were backward regions which would fall within the ambit of socially and educationally backward classes in Article 15(4), it was held that reservation or any other affirmative action programme based on residence or domicile is not arbitrary and violative of Article 14. However, it was also observed that it is desirable to admit students to the MBBS course on an all‑India basis, in furtherance of merit, without any classification based on residence., It was observed that, however, in view of the inequality in society where a few areas within a State, and a few States in comparison to others, are backward, admission based on an all‑India examination will lead to inequality: Theoretically, if admissions are given on the basis of an all‑India national entrance examination, each individual would have equal opportunity of securing admission, but that would not take into account diverse considerations such as differing levels of social, economic and educational development of different regions, disparity in the number of seats available for admission to the MBBS course in different States, difficulties experienced by students from one region who might have to compete on an all‑India basis for admission to the MBBS course in another region far remote from their own, and other allied factors. There can be no doubt that the policy of ensuring admissions to the MBBS course on an all‑India basis is highly desirable, based as it is on the postulate that India is one nation and every citizen of India is entitled to equal opportunity for education and advancement, but it may not be realistically possible in the present circumstances, for it cannot produce real equality of opportunity unless there is complete absence of disparities and inequalities—a situation which simply does not exist in the country today., In order to balance between the claims of legal and factual equality, it was observed that even if the Union Government decides to conduct an all‑India entrance examination for admission to medical courses, a certain percentage of seats may be reserved for candidates based on residence. It was further held that wholesale reservation of one hundred percent based on domicile for admission in educational institutions is unconstitutional. The Court declared such wholesale reservation to be unconstitutional and void as being in violation of Article 14 of the Constitution., The Court then determined the quantum of reservation based on residence and institutional preference. It observed that reservation based on residence in MBBS shall not exceed seventy percent of the total seats available, after taking into account other reservations validly made. It was also observed that the Indian Medical Council must consider revising the percentage of reservation based on the residence criteria every three years. The remaining thirty percent of seats were available for admission on an all‑India basis irrespective of the residence of the candidate. The Court clarified that the outer limit of reservation based on residence or institutional preference should not exceed seventy percent of the total number of open seats after taking into account other kinds of reservations validly made. The Medical Education Review Committee suggested that the outer limit should not exceed seventy‑five percent but the Court fixed it at seventy percent, subject to reduction by the Indian Medical Council. The Court directed the Indian Medical Council to consider within nine months whether the outer limit of seventy percent needs to be reduced and, if a shorter outer limit is determined, it will be binding on the States and Union Territories. The outer limit shall be subject to reconsideration at the end of every three years but in no event should it exceed seventy percent fixed by the Court. Consequently, at least thirty percent of the open seats shall be available for admission of students on an all‑India basis irrespective of the State or university from which they come, and such admissions shall be granted purely on merit on the basis of either an all‑India entrance examination or an entrance examination to be held by the State. Even where reservation on the basis of residence requirement or institutional preference is made in accordance with the directions given in this judgment, admissions from the source indicated by such reservation shall be based only on merit, because the object must be to select the best and most meritorious students from within such sources., The Court then distinguished admission to the MBBS course (undergraduate) and the MD course (postgraduate). It observed that at the postgraduate level, merit cannot be compromised since compromising the standard of medical facilities would be detrimental to national interest. The Court referred to the submissions of the Medical Education Review Committee according to which all admissions to postgraduate courses in any institution should be open to candidates on an all‑India basis and there should be no restriction regarding domicile in the State or Union Territory in which the institution is located. The policy statement filed by the Government of India was that admission to institutions of postgraduate colleges and special professional colleges should be entirely on the basis of all‑India merit subject to constitutional reservations in favour of Scheduled Castes and Scheduled Tribes., It was consequently held that it would be desirable not to provide reservation based on residence in postgraduate medical courses, though there shall be a maximum of fifty percent reservation based on institutional preference. Therefore, a doctor who has passed the MBBS course from a certain college may be given preference in the same college for admission to a postgraduate course. The Court observed: It is of the view that, as far as admissions to postgraduate courses such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. However, having regard to broader considerations of equality of opportunity and institutional continuity in education, a certain percentage of seats may, in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed the MBBS course from a medical college or university may be given preference for admission to the postgraduate course in the same medical college or university, but such reservation on the basis of institutional preference should not in any event exceed fifty percent of the total number of open seats available for admission to the postgraduate course., The Bench in Pradeep Jain clarified its decision in Dinesh Kumar (I). It was observed that admission to the All India Quota seats (thirty percent in undergraduate and fifty percent in postgraduate) shall only be through a uniform all‑India examination. The suggestion of the Union Government that admission to the All India Quota seats in undergraduate and postgraduate medical courses could be made through marks received in the individual qualifying examinations was rejected, observing: It would be wholly unjust to grant admissions to students assessing their relative merits with reference to the marks obtained by them, not at the same qualifying examination where the standard of judging would be reasonably uniform, but at different qualifying examinations held by different State Governments or Universities where the standard of judging would necessarily vary and not be the same. That would be blatantly violative of the concept of equality enshrined in Article 14 of the Constitution., The Court also clarified the demarcation of seats for the All India Quota. It was observed that thirty percent of the total number of seats were not demarcated for the All India Quota. Rather, after deducting the seats filled by reservation, thirty percent of the remaining seats are reserved for the All India Quota. For example, if there are one hundred seats available, of which thirty percent are reserved for Scheduled Castes and Scheduled Tribes (that is thirty seats), then thirty percent of the remaining seventy seats (that is twenty‑one seats) must be filled by the All India Quota., Pursuant to the directions given by the Bench in Dinesh Kumar (I), the Medical Council of India formulated a scheme for holding an all‑India medical entrance examination for admission to the All India Quota seats in undergraduate and postgraduate courses. However, difficulties arose in the implementation of the scheme. The Supreme Court thought it necessary to iron out the creases and, by an order dated 16 September 1985, directed the Government of India, Ministry of Health, to convene a meeting of the Deans of Medical colleges, representatives of the Medical Council of India and the Dental Council of India. A revised scheme was formulated and submitted to the Court for approval. Various State Governments raised objections to the revised scheme before a two‑Judge Bench in Dinesh Kumar (II) v. Motilal Nehru Medical College. The State of Tamil Nadu submitted that since the total percentage of reservation varies in different States, if the All India Quota seats are calculated after deducting the seats in which reservations are validly made, the total All India Quota seats in a medical college in the State would be inversely proportional to the percentage of reservation in the State. The Court addressed this submission and observed that it would then be open to the State Governments to reduce the number of seats available in the All India Quota by increasing the percentage of reservation in the State. Therefore, the Court altered the formula for seat matrix adopted in Pradeep Jain and clarified in Dinesh Kumar (I). The Court held that for undergraduate courses, fifteen percent of the total seats in each medical college or institution shall be demarcated for the All India Quota, without taking into account any reservation validly made. For postgraduate courses, twenty‑five percent of the total seats would be reserved for the All India Quota, without taking into account reservation validly made.
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We therefore agree with the Government of India that the formula adopted by us in our main judgment dated June 22, 1984 (Dr Pradeep Jain v. Union of India, (1984) 3 SCC 654) for determining the number of seats which should be made available for admission on the basis of All‑India Entrance Examination should be changed. We would direct, in accordance with the suggestion made in the Scheme by the Government of India, that not less than 15 per cent of the total number of seats in each medical college or institution, without taking into account any reservations validly made, shall be filled on the basis of All‑India Entrance Examination. This new formula is, in our opinion, fair and just and brings about real equality of opportunity in admissions to the MBBS/BDS course without placing the students in one State in an advantageous or disadvantageous position as compared to the students in another State. The same formula must also apply to admissions to the postgraduate courses and, instead of making available for admission on an All‑India basis 50 per cent of the open seats after taking into account reservations validly made, we would direct that not less than 25 per cent of the total number of seats, without taking into account any reservations, shall be made available for being filled on the basis of All‑India Entrance Examination. This suggestion of the Government of India deserves to be accepted and the objection to it must be overruled., As opposed to the clarification issued in Dinesh Kumar (I) (supra), where reservation based on residence was against the total seats available after reservation made for backward classes under Article 15, Dinesh Kumar (II) applies reservation based on residence against the total number of seats available without excluding the reserved seats. In Rajeshwaran (supra), the respondent filed a writ petition before the Madras High Court seeking a direction to the Union of India to provide reservation for the SC and ST categories in the All‑India Quota (AIQ) seats set aside for MBBS and BDS courses. The Madras High Court prima facie observed that there was no specific order by the Supreme Court of India not to apply reservation as under Article 15 in the AIQ seats. It further observed that the AIQ seats were demarcated only to overcome reservation based on residence. The Madras High Court allowed the writ petition directing the Central Government to provide 15 per cent reservation for SC and ST in the AIQ seats. The Union of India filed an appeal against the order of the Madras High Court. The Supreme Court of India, referring to the judgment in Dinesh Kumar (II) (supra), observed that since the Supreme Court of India has settled the scheme, it would not be appropriate to determine if candidates of SC and ST categories are entitled to reservation in the AIQ seats because (i) each State will have different categories of SC and ST, and the Central list would also vary making it difficult to adjust seats; and (ii) States anyway provide reservation for SC and ST categories in the 85 per cent seats demarcated for them., It was observed that, in respect of the undergraduate course, the scheme works out like this: if a State has a total of 100 seats and in that State 15 per cent of the seats are reserved for Scheduled Castes and 10 per cent for Scheduled Tribes, the State will fill up 15 per cent seats for Scheduled Caste candidates and 10 per cent for Scheduled Tribe candidates; of the remaining 75 seats, 60 seats will be filled by the State Government as unreserved and 15 seats will be earmarked for the All‑India quota. Inasmuch as a 15 per cent All‑India quota has been earmarked under the scheme framed by the Supreme Court of India and that scheme itself provides the manner in which the same should be worked out, we do not think it would be appropriate to travel outside the said provisions to find out whether a person in the position of the petitioner would be entitled to plead in the manner sought for because each of the States could also provide for reservation for the Scheduled Caste and Scheduled Tribe category in respect of 85 per cent of the seats available with them. If we meddle with this quota fixed, we are likely to land in innumerable and insurmountable difficulties. Each State will have different categories of Scheduled Castes and Scheduled Tribes and the Central Government may have a different category and hence adjustment of seats would become difficult. The direction fixing a 15 per cent quota for All‑India basis takes note of reservations and hence the Madras High Court need not have made any further directions., A Constitution Bench of the Supreme Court of India in Saurabh Chaudri (supra) decided on the constitutional validity of reservation based on domicile and institutional preference in admission to postgraduate courses in Government‑run medical colleges. The Supreme Court of India held that there was no reason to depart from the ratio laid down in Pradeep Jain (supra) that reservation based on institutional preference and residence in postgraduate courses is constitutionally valid. The Court observed: \We, therefore, do not find any reason to depart from the ratio laid down by this Court in Dr Pradeep Jain. The logical corollary of our finding is that reservation by way of institutional preference must be held to be not offending Article 14 of the Constitution of India.\ The Constitution Bench also increased the total percentage of AIQ seats from 25 per cent (as held in Dinesh Kumar (II) (supra)) to 50 per cent of the seats, reasoning that the situation has improved to a great extent and that the country has produced numerous postgraduate doctors with the passage of time., In Buddhi Prakash Sharma v. Union of India, the writ petitioners challenged the communication issued by the Directorate General of Health Services on 7 December 2004 directing the States to provide information on the total number of postgraduate medical seats under the 50 per cent AIQ seats after excluding the seats reserved for SC and ST categories. By an order dated 21 February 2005, the Supreme Court of India directed the States to provide the total number of seats in postgraduate medical courses, without any exclusion. The Court observed that the DGHS was not permitted to change the basis of the seat distribution by identifying the AIQ seats after applying reservation for the SC and ST categories. The Court observed that the total seats in AIQ would be 50 per cent of the total number of available seats, without any exclusion. It was noted that till 2004‑2005, when the All‑India quota of seats was 25 per cent, the number of postgraduate seats was worked out on the basis of total seats without any exclusion. The letter dated 7‑12‑2004 requiring information about 50 per cent of All‑India quota after excluding the reserved seats created the present mess. Some States had not furnished the requisite information to DGHS. The Court directed that the total number of postgraduate seats on an All‑India basis would be 50 per cent of the total number of seats without any exclusion and that the calculation of seats would be done on the same basis which was adopted when the All‑India quota was 25 per cent. The Chief Secretaries of States/Union Territories who have not supplied the requisite information to DGHS on this basis were directed to supply the same latest by 5.00 p.m. on 1‑3‑2005 and file a compliance affidavit in the Supreme Court of India. Failure to supply the information would be seriously viewed as a violation of the Supreme Court of India's direction. The counselling will commence on the dates already announced., In Jayakumar (supra), an appeal was filed before the Supreme Court of India against the judgment of the Madras High Court in a Public Interest Litigation seeking reservation for SC and ST candidates in the 15 per cent AIQ seats in the undergraduate medical course. The Madras High Court disposed of the PIL observing that reservation was a constitutional mandate and that the Government could implement reservation in the AIQ seats in the future. The Supreme Court of India allowed the appeal in terms of the decision in Rajeshwaran (supra) where it was held that there shall be no reservation for the AIQ seats. The Court observed: \In our considered opinion, the question has been directly considered in the decision of this Court in R. Rajeshwaran, referred to supra, and it has been indicated how incongruous it would be if the provisions of reservation were made applicable to the seats meant for being filled up on the basis of All‑India entrance examination. Following the judgment of this Court in R. Rajeshwaran as well as in Dr Dinesh Kumar we hold that the Madras High Court was wholly in error in observing that the requirement of reservation should also apply to the seats to be filled up on the basis of All‑India entrance examination.\, In Abhay Nath (supra) the Union of India sought clarification of the order passed in Buddhi Prakash Sharma (supra) wherein it was held that the 50 per cent seats for AIQ seats shall exclude reservation. A three‑judge Bench reviewed the order and held that there may be reservation for the SC and ST students in the AIQ. The order of the Supreme Court of India was as follows: 1. In Pradeep Jain (Dr.) v. Union of India [(1984) 3 SCC 654] the Court directed that out of the postgraduate seats to be filled up by the various colleges in India, 50 per cent of the seats shall be admitted on the basis of All‑India Entrance Examination, and that 50 per cent of the open seats shall be filled up by All‑India Entrance Examination. 2. In Dinesh Kumar (Dr.) v. Motilal Nehru Medical College [(1985) 3 SCC 22] it was explained that after providing for reservation validly made, whatever seats remain available for non‑reserved categories, at least 30 per cent of such seats should be left free for open competition, and admission to such 30 per cent open seats should not be based on residence requirement or institutional preference but should be open to students from all over the country. For example, if there are 100 seats and 30 per cent are validly reserved for Scheduled Castes and Scheduled Tribes, 70 seats remain for non‑reserved categories; 30 per cent of 70, i.e., 21 seats, must be filled by open competition, not 30 per cent of the total 100 seats. 3. In Dinesh Kumar (Dr.) (II) v. Motilal Nehru Medical College [(1986) 3 SCC 727] it was clarified that not less than 25 per cent of the total number of seats, without taking into account any reservations, shall be made available for being filled on the basis of All‑India Entrance Examination. This suggestion of the Government of India deserves to be accepted and the objection to it must be overruled. 4. In Saurabh Chaudri v. Union of India [(2003) 11 SCC 146] the percentage of seats to All‑India Entrance Examination was increased to 50 per cent. 5. In Buddhi Prakash Sharma v. Union of India [(2005) 13 SCC 61] an order dated 28‑2‑2005 stated that the total number of postgraduate seats on an All‑India basis would be worked out on the basis of 50 per cent of the total number of seats without any exclusion, and that the seats allocated to the All‑India Entrance Examination shall not be excluded on reservation. 6. The Additional Solicitor General pointed out that in the All‑India quota of 50 per cent seats, if 22.5 per cent are reserved for SC/ST students, it would be difficult for the State to give the entire percentage to reservation out of the 50 per cent seats left for them to be filled up, and equally difficult for DGHS to have the entire 22.5 per cent reservation out of the 50 per cent of the seats allotted to be admitted in the All‑India Entrance Examination. Therefore, it was suggested that the Union of India decided to provide 22.5 per cent reservation for SC/ST candidates in the All‑India quota from the academic year 2007‑2008 onwards. 7. The Union of India seeks clarification of the order passed on 28‑2‑2005 to the effect that 50 per cent seats for All‑India quota shall exclude the reservation. The Court reviewed that order and made it clear that the 50 per cent of the seats to be filled up by All‑India Entrance Examination shall include the reservation to be provided for SC/ST students. The order of 28‑2‑2005 is therefore clarified., In Gulshan Prakash v. State of Haryana, a writ petition was filed seeking to quash the prospectus issued by Maharishi Dayanand University, Rohtak, Haryana for the academic session 2007‑2008 to the extent that it did not provide any reservation of seats for SC and ST candidates. One of the contentions raised by the petitioners was that the Supreme Court of India in Abhay Nath (supra) had directed that reservation for SC and ST candidates be provided in postgraduate medical courses. However, the three‑Judge Bench in Gulshan Prakash (supra) clarified that the directions in Abhay Nath (supra) would be applicable only to AIQ seats and would have no bearing on admissions in the State quota for the postgraduate course. It was further clarified that if the State of Haryana has decided not to provide reservation in postgraduate medical courses for seats in the State quota, the Supreme Court of India cannot direct the State to provide such reservation. The Court observed: \Inasmuch as the Government of Haryana has not prescribed any reservation for the postgraduate courses, neither the University nor any other authority can be blamed for approving and publishing the prospectus which does not contain reservation for postgraduate courses. The clarificatory order of this Court in Abhay Nath [(2009) 17 SCC 705] is applicable for institutes managed by the Central Government and unless the State Government takes any decision for granting reservation in MD/MS/PG diploma and MDS courses, it cannot be made applicable. The State Government is competent to make the reservation to a particular class or category, and until it decides, as a policy matter, there cannot be any direction to provide reservation at the postgraduate level. The State of Haryana has explained that reservation in undergraduate medical courses is being provided strictly as per their policy. The postgraduate degree/diploma in medical education is governed by the Medical Council of India, which has not followed strict adherence to the rule of reservation policy in admission for SC/ST category at the postgraduate level.\, Having traced the evolution of the AIQ in undergraduate and postgraduate medical and dental courses, we answer the following questions: (i) whether the Supreme Court of India in Pradeep Jain (supra) held that the AIQ seats that were to be filled by an open All‑India examination should be free of reservation for the socially and educationally backward classes, and SC and ST as enabled by Article 15(4); and (ii) whether reservation in the AIQ can be provided only pursuant to a direction of the Supreme Court of India., The Supreme Court of India in Pradeep Jain (supra) was deciding on the constitutional validity of reservation based on domicile/residence. Having held that residence‑based reservation is constitutionally valid, the next question was adjudicating the quantum of residence‑based reservation that could be permitted. Referring to the decision of the Supreme Court of India in Jagdish Saran v. Union of India, it was held that there cannot be wholesale reservation (that is, 100 per cent reservation). A certain percentage of seats must be filled by open merit through an All‑India examination without reservation based on residence. The Medical Education Review Committee had suggested that 75 per cent of the seats in a medical college shall be reserved for residents of the State; the Court decided that it would be fair to reserve 70 per cent of the seats for residents of the State, leaving 30 per cent of the seats to be filled through an All‑India examination. The Court observed that such reservation should in no event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made (paragraph 21). The Bench further observed that at least 30 per cent of the open seats shall be available for admission of students on an All‑India basis irrespective of the State or university from which they come, and such admissions shall be granted purely on merit on the basis of either All‑India entrance examination or an entrance examination to be held by the State (paragraph 21). The observation that AIQ seats must be filled purely on the basis of merit cannot be interpreted to mean that there shall be no reservations in the AIQ seats. Merit must be socially contextualised and reconceptualised according to its distributive consequences where it furthers substantive equality in terms of Articles 15(4) and 15(5) of the Constitution. Justice P.N. Bhagwati, writing for a three‑judge Bench, formulated the question: whether, consistently with constitutional values, admissions to a medical college or any other institution of higher learning situated in a State can be confined to those who have domicile within the State or who are resident within the State for a specified number of years, or whether any reservation in admissions can be made for them so as to give them precedence over those who do not possess domicile or residential qualification within the State, irrespective of merit., While discussing the constitutional validity of domicile‑reservation, it was observed that selection of candidates for admission based on the All‑India open examination would further merit since it would permit the selection of the best minds in the country. The Court noted two claims that would weigh with the Supreme Court of India in justifying departure from the principle of merit‑based selection: (i) claim of State interest, where students, by virtue of their residence, are expected to settle down and serve their State; and (ii) the region's claim of backwardness (paragraph 16). It was further observed that, though theoretically admissions in medical colleges should be based on an All‑India examination because it would further merit and provide equality of opportunity to candidates across the country, factual equality would not be attained given the differing levels of social, economic, and educational development in different areas. Therefore, the observation in paragraph 21 that AIQ seats shall be filled through an All‑India examination purely on merit must be interpreted only with reference to the discussion on residence‑based reservation and the necessity of an All‑India examination for admission to medical and dental courses. References to merit must be read in the context of merit vis‑à‑vis residence reservation. The Bench thought it fit that admission through an All‑India entrance examination would further merit, enabling the best minds all over the country to study medicine. The observations of the Bench extracted below also aid the interpretation: \The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must therefore always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country, and no citizen can legitimately, without serious detriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set‑up. Moreover, it would be against national interest to admit in medical colleges or other institutions giving instruction in specialties less meritorious students when more meritorious students are available, simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not, though both categories are citizens of India. Exclusion of more meritorious students on the ground that they are not resident within the State would likely promote substandard candidates and bring about a fall in medical competence, injurious in the long run to the very region. It is no blessing to inflict quacks and medical midgets on people by wholesale sacrifice of talent at the threshold. Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation. The primary consideration in selection of candidates for admission to the medical colleges must, therefore, be merit. The object of any rules which may be made for regulating admissions to the medical colleges must be to secure the best and most meritorious students.\, This aspect was further clarified by the Bench in Dinesh Kumar (I) where the Supreme Court of India observed that the Union Government and the Medical Council of India had not taken any initiative to conduct an All‑India entrance examination for admissions to the AIQ seats. The suggestion that admission to the AIQ could be made based on the marks obtained in the qualifying examination held by different States or Universities was rejected on the ground that the standard of assessment would not be uniform. It is thus evident that the intention of the Supreme Court of India in Pradeep Jain (supra) in creating an AIQ was solely to provide candidates from across the country the opportunity to study medicine in colleges in other parts of the country as well, owing to the unequal number of medical colleges and opportunities in different States., Reference was made to reservation of backward classes only for the limited purpose of determining the seat matrix. The observation in paragraph 21 in Pradeep Jain (supra) on the calculation of the seat matrix was clarified in Dinesh Kumar (I) (supra). The Bench clarified that after reservations (for the SC, ST and OBC provided by the States) validly made, 30 per cent of the remaining seats would be reserved for AIQ. According to the clarification in Dinesh Kumar (I) (supra), the first bifurcation should be between reserved and non‑reserved seats, and the seats remaining in the open category must be bifurcated into State Quota and AIQ, resulting in a three‑fold vertical reservation, with the reserved category not being considered within either the AIQ or the State Quota. Different States provide varying percentages of reservation, so the total percentage of unreserved seats would inversely depend on the percentage of reservation provided by the State. The State of Tamil Nadu raised this objection in Dinesh Kumar (II) (supra). Pursuant to this, it was held that the AIQ seats shall be determined without excluding any reservation validly made. The seats were first bifurcated into State quota and AIQ, and vertical and horizontal reservations (for example, for persons with disabilities) were accommodated within the State quota. When the judgment in Dinesh Kumar (II) (supra) was pronounced, the Union Government had not yet made any decision on providing reservation in AIQ seats. In 2009 the Union Government took a policy decision to provide reservation for the SC and ST categories in the AIQ. In Rajeshwaran (supra) the Supreme Court of India declined to ascertain if a person would be entitled to reservation in the AIQ seats, observing that providing reservation for SC and ST categories in the AIQ seats would cause difficulty in adjusting seats since the State and the Central lists would differ. However, when the Union Government submitted before the Supreme Court of India in Abhay Nath (supra) that it had taken the decision to reserve seats in the AIQ, it was clarified that there was no impediment against the implementation of such reservation., General Category: In Buddhi Prakash Sharma (supra) there was a slight deviation from the settled jurisprudence. The Supreme Court of India held that the total number of postgraduate seats in AIQ would be 50 per cent of the total seats without any exclusion for reservation. The Bench interpreted the observation in Dinesh Kumar (II) (supra) that the AIQ seats would be determined without excluding reservations (as depicted by Figure 1) to mean that there would be no reservation in the AIQ. Therefore, since Pradeep Jain (supra) did not preclude the AIQ seats from reservation, a three‑Judge Bench in Abhay Nath (supra) clarified that the 50 per cent AIQ seats in postgraduate medical and dental seats would be inclusive of reservation for SC and ST categories., D.3 The Executive's power to introduce reservation in AIQ seats: We next address the argument of the petitioners that the Union Government should have filed an application before the Supreme Court of India before notifying reservations in the AIQ since the AIQ scheme is a creation of the Supreme Court of India. We are unable to agree to this argument. The Union Government in Abhay Nath (supra) had made a submission to the Supreme Court of India of its intention to provide reservations in the AIQ for the SC and ST candidates because, until then, there was confusion on demarcation of the seat matrix and no clarity on whether reservations could be provided in the AIQ. The Supreme Court of India in Abhay Nath (supra) clarified that reservations are permissible in the AIQ seats. Therefore, the order in Abhay Nath (supra) was only clarificatory in view of the earlier observations in Buddhi Prakash Sharma (supra). Interpreting the order to mean that the Union of India sought the permission of the Supreme Court of India before providing reservation would amount to aiding an interpretation that would foster judicial overreach. Hence, the argument that the Union Government should have approached the Supreme Court of India before notifying the reservations for the OBC and EWS categories in the AIQ seats is erroneous., In Abhay Nath (supra) the Union Government apprised the Supreme Court of India of its decision to provide reservation for the SC and ST categories in the AIQ and, as a policy decision, decided to provide reservation only for the SC and ST categories. Parliament enacted the Central Educational Institutions (Reservation in Admission) Act 2006 in view of the enabling provision in Article 15(5). Section 3 stipulates that there shall be 15 per cent reservation for the SC, 7.5 per cent reservation for the ST, and 27 per cent reservation for the OBC category in Central Educational Institutions. A Constitution Bench in Ashoka Kumar Thakur v. Union of India upheld the constitutional validity of the 27 per cent reservation for the OBC category provided under the Act of 2006.
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Though the Act of 2006 would not be applicable to the seats earmarked for All India Quota in State‑run institutions since it would not fall within the definition of a Central educational institution under the Act, the Union of India, in view of Article 15(5) of the Constitution, has the power to provide reservations for Other Backward Classes in the All India Quota seats. It is not tenable for the States to provide reservation in the All India Quota seats since these seats have been surrendered to the Centre. It would also lead to the anomaly highlighted in Dinesh Kumar (II) (supra) because the percentage of reservation provided by different States differs, which would lead to an unequal percentage of seats available in the All India Quota in different States. This is also coupled with the fact that the Scheduled Castes, Scheduled Tribes and Other Backward Classes lists are not uniform across States. Thus, it is the Union Government’s prerogative to introduce reservation in All India Quota seats., Changing the Rules of the Game – The impugned notice providing reservation for Other Backward Classes and Economically Weaker Sections categories in the All India Quota was issued on 29 July 2021, after the registration for the examination had closed on 18 April 2021. The petitioners contend that the rules of the examination could have only been changed before the last date for registration and that candidates registered for the exam having a particular seat matrix in mind would find a change in the seat matrix after registration arbitrary. The Union Government argues that Clause 11 in the Information Bulletin released by the National Board of Examinations during the registration process provided that information regarding seat matrix would be separately released by the counselling authority. Clause 11 reads as follows: 11.1. Reservation of postgraduate seats shall be as per the norms of the Government of India and respective State Governments as may be applicable. 11.2. A separate handbook informing details of the counselling process and applicable reservation shall be released by the designated counselling authority. It is evident from a reading of Clause 11.2 that applicants are informed of the seat matrix (that is, the applicable reservation) only when a separate handbook is released by the counselling authority; the candidates would possess no knowledge of the seat matrix at the time of registration., In Manjusree v. State of Andhra Pradesh, the selection of candidates to ten vacant posts of District and Session Judges (Grade II) in the Andhra Pradesh State Higher Judicial Service was the subject‑matter of the appeal. The selection and appointments to the post of District & Session Judges (Grade II) are governed by the Andhra Pradesh State Higher Judicial Service Rules, 1958, which prescribe that one‑third of the posts are to be filled by direct recruitment, but the method of recruitment is not prescribed in the Rules. Consequently, the High Court determines the method of selection when the vacancies are notified. An advertisement was issued on 28 May 2004 calling for applications. The Administrative Committee, by its resolution dated 30 November 2004, decided to conduct a written examination for seventy‑five marks and an interview for twenty‑five marks, and prescribed minimum category marks for the written examination. The exam was held on 30 January 2005 and the results were declared on 24 February 2005. The merit list was prepared by aggregating the marks obtained in the written examination out of 100 and the interview for 25 marks. However, the Supreme Court of India did not agree with the selection list and another committee of judges was constituted to prepare the list. The committee observed that the selection list changed the proportion of marks of the written exam to the interview from 3:1 to 4:1 since the written exam marks (out of 100) were not converted to 75 marks. The sub‑committee also directed that there must be minimum marks for the interview component, in the same cut‑off percentage as applied to the written test component. A revised selection list was prepared on the basis of the revised criteria. Candidates whose names were featured in the first selection list but were absent in the second list challenged the second selection list. A three‑judge Bench of the Supreme Court of India held that the scaling down of marks in the written exam in proportion to the maximum of 75 marks was valid because it was in consonance with the resolution dated 30 November 2004. However, it was observed that introducing minimum marks in the interview component after the entire selection process (consisting of written examination and interview) was completed would amount to changing the rules of the game after the game was played, which is clearly impermissible. The facts of Manjusree differ from the factual matrix before us since the impugned notice notifying reservation in the All India Quota was introduced even before the examination was held, and there was no change in the selection criteria., In Maharashtra State Road Transport Corporation v. Rajendra Bhimrao Mandve, the selection to the post of drivers and conductors was in question. The writ petitioners satisfied the qualifications and possessed the requisite experience. A total of 12.5 percent marks was initially allotted to the personal interview component. However, a change in the criteria for selection was introduced after the driving test was conducted. The Supreme Court of India held the new criteria invalid because it proposed to change the rules of the game after the game had begun. In Umrao Singh v. Punjabi University, the Supreme Court of India held that the selection norms for posts of lecturers could not have been relaxed after the last date for making the application and after the process for selection had started. In Tej Prakash Pathak v. Rajasthan High Court, the Rajasthan High Court had called applications for the post of translators. According to the Rajasthan High Court Staff Service Rules, 2002, 100 marks was prescribed for the written exam and 50 marks for the personal interview. After the exam was conducted, 75 percent marks was prescribed as the qualifying marks in the written examination. Justice Chelameshwar, writing for a three‑judge Bench, observed that changing the rules of the game mid‑stream or after the game has been played is an aspect of retrospective law‑making power. The Supreme Court of India held that the principle applied in Manjusree, without further scrutiny, would not further public justice and efficient administration. The Court referred the question to a larger Bench, stating that it is a salutary principle not to permit the State or its instrumentalities to tinker with the rules of the game insofar as the prescription of eligibility criteria is concerned, in order to avoid manipulation of the recruitment process and its results. The matter was ordered to be placed before the Hon’ble Chief Justice of India for appropriate orders., In Dr. Preeti Sharma v. Dr. Bilu, the information bulletin for NEET‑SS 2020 was issued on 3 August 2020. The examination was held on 15 September 2020 and the results were declared on 25 September 2020. Clause 5.16 of the information bulletin, released when the registration process had begun, stipulated that there would be no reservation in the Super‑Speciality (SS) courses. The counselling committee issued the counselling scheme for All India Quota for NEET‑SS 2020‑21, mentioning that there would be no reservation for the SS courses by referring to the judgments of this Court in Dr. Preeti Srivastava (supra) and Dr. Sandeep Sadashivrao v. Union of India. The counselling for the SS course was postponed. The State of Tamil Nadu issued Government Order No. 462 dated 7 November 2020 stipulating that 50 percent of the SS seats in Government medical colleges in the State would be reserved for in‑service candidates. The Supreme Court of India observed that when the process for admissions to the SS courses had begun, it was notified through the information bulletin that there would be no reservation in the SS courses. Therefore, it held that reservation for in‑service doctors shall not be permitted for the current academic year., The impugned notice providing reservation for the Other Backward Classes and Economically Weaker Sections categories in the All India Quota seats was issued after the registration had closed but before the examination was conducted. Thus, it does not amount to altering the rules of the game for the following reasons: (i) The judgments cited by the counsel for the petitioner on changing the rules of the game midway referred to changes in the selection criteria or the procedure for selection. Those cases are distinguishable because the impugned notice did not alter the selection criteria; (ii) The cited judgments applied the principle of not changing the rules of the game after the selection process (exams and interviews) was completed; and (iii) Clause 11 of the information bulletin specifies that the reservation applicable would be notified by the counselling authority before the beginning of the counselling process, unlike the facts in Dr. Preeti Sharma. Candidates applying for NEET‑PG are not provided any information on the distribution of the seat matrix; such information is provided by the counselling authority only before the counselling session begins., Conclusion – In view of the discussion above, the Supreme Court of India holds that the reservation for Other Backward Classes candidates in the All India Quota seats for undergraduate and postgraduate medical and dental courses is constitutionally valid for the following reasons: (i) Articles 15(4) and 15(5) are not an exception to Article 15(1), which sets out the principle of substantive equality; thus, Articles 15(4) and 15(5) restate a particular facet of substantive equality. (ii) Merit cannot be reduced to narrow definitions of performance in an open competitive examination that only provide formal equality of opportunity; competitive examinations assess basic current competency but do not reflect the social, economic and cultural advantages that accrue to certain classes. (iii) High scores are not a proxy for merit; merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality. (iv) Articles 15(4) and 15(5) employ group identification as a method to achieve substantive equality, acknowledging that individual differences may exist within identified groups. (v) The All India Quota scheme was devised to allot seats in State‑run medical and dental institutions in which students from across the country could compete. The observations in Pradeep Jain that the All India Quota seats must be filled by merit are limited to merit vis‑à‑vis residence reservation; the Supreme Court of India in Pradeep Jain did not hold that reservation in All India Quota seats is impermissible. (vi) The Union of India filed an application before this Court in Abhay Nath placing the policy decision of the Government to provide reservation for the Scheduled Castes and Scheduled Tribes categories in the All India Quota seats, since there was confusion on demarcation of seat matrix. The Union Government was not required to seek the permission of this Court before providing reservation in All India Quota seats; therefore, providing reservation is a policy decision subject to judicial review like any reservation policy. (vii) It was clarified in Dinesh Kumar (II) that the total seats demarcated for All India Quota shall be determined without excluding reservation, as earlier directed by Pradeep Jain and clarified in Dinesh Kumar (I). The Supreme Court of India in Buddhi Prakash Sharma had erroneously construed the clarification in Dinesh Kumar (II) to mean that there should be no reservation in All India Quota seats. Hence, the order in Abhay Nath was only clarificatory. (viii) Clause 11 of the information bulletin specifies that the reservation applicable to NEET‑PG would be notified by the counselling authority before the beginning of the counselling process; therefore, candidates are not provided any information on the seat matrix at the time of registration, and it cannot be argued that the rules of the game were set when registration closed., The challenge to the constitutional validity of Other Backward Classes reservation in All India Quota seats introduced through the notice dated 29 July 2021 is rejected. Any pending applications, if any, relating to the issue of Other Backward Classes reservation implemented through the notice dated 29 July 2021 stand disposed of. [Dr. Dhananjaya Y. Chandrachud] [A. S. Bopanna] New Delhi; January 20, 2022. Reportable Writ Petition (C) No. 961 of 2021 – Neil Aurelio Nunes and Ors. v. Union of India and Ors.; Writ Petition (C) No. 967 of 2021; Writ Petition (C) No. 1002 of 2021; Writ Petition (C) No. 1021 of 2021; and with Writ Petition (C) No. 1105 of 2021., Union Government’s Decision to Revisit the Economically Weaker Sections Criteria – Genesis of the Controversy. These writ petitions challenge the reservation for Other Backward Classes and Economically Weaker Sections in the All India Quota seats in the National Eligibility cum Entrance Test (Post‑Graduate) examination. The criteria for the determination of the Economically Weaker Sections for the ten percent reservation in pursuance of the Constitution (One Hundred and Third Amendment) Act, 2019 have come under challenge. The permissibility of reservations in the All India Quota seats was addressed in the judgment dated 20 January 2022. This order deals only with the challenge to the criteria for determination of the Economically Weaker Sections category., An information brochure was released on 23 February 2021 scheduling the NEET‑PG 2021 examination on 18 April 2021. The registration process commenced on 23 February 2021 and the last date for registration was 15 April 2021. However, in view of the second wave of the COVID‑19 pandemic, the Ministry of Health and Family Welfare issued a notice dated 15 April 2021 postponing the examination until further notice. By an official statement issued on 3 May 2021, the NEET‑PG 2021 examination was postponed by another four months. The National Board of Examinations in Medical Sciences, New Delhi issued a notice on 13 April 2021 rescheduling the NEET‑PG 2021 examination to 11 September 2021. The Directorate General of Health Services, Ministry of Health and Family Welfare issued a notice on 29 July 2021 to implement twenty‑seven percent Other Backward Classes reservation (non‑creamy layer) and ten percent Economically Weaker Sections reservation in the fifteen percent undergraduate and fifty percent postgraduate All India Quota seats in the current academic session of 2021‑22. The notice stated: “Urgent Attention Candidates of NEET‑UG and NEET‑PG: It has been decided by the Government of India to implement 27 % Other Backward Classes reservation (non‑creamy layer) and 10 % Economically Weaker Sections reservation in the 15 % All India Quota undergraduate seats and the 50 % All India Quota seats (MBBS/BDS and MD/MS/MDS) contributed by the State/UTs. This reservation will take effect from the current academic session 2021‑22. Consequently, the overall reservation in 15 % undergraduate and 50 % postgraduate All India Quota seats would be as follows: Other Backward Classes (non‑creamy layer) – 27 %; Economically Weaker Sections – 10 %; Persons with Disabilities – 5 % (horizontal reservation as per NMC norms).”, The Constitution was amended by the Constitution (One Hundred and Third Amendment) Act, 2019, including Articles 15(6) and 16(6). Article 15(6) states that special provisions (including reservation) shall be made for the advancement of the Economically Weaker Sections in classes other than those mentioned in clauses (4) and (5). An explanation to Article 15 was also included, which reads: “Explanation – For the purposes of this article and article 16, economically weaker sections shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.” The Department of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Government of India, on 17 January 2019, in pursuance of the explanation to Article 15(6), issued Office Memorandum No. 36039/1/2019 defining the criteria for identification of Economically Weaker Sections. The relevant extract of the Office Memorandum is as follows: “4.1 Persons who are not covered under the scheme of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes and whose family has gross annual income below Rs 8 lakh (Rupees eight lakh only) are to be identified as Economically Weaker Sections for benefit of reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc., for the financial year prior to the year of application. Also, persons whose family owns or possesses any of the following assets shall be excluded from being identified as Economically Weaker Sections, irrespective of the family income: (i) five acres of agricultural land and above; (ii) residential plot of 1,000 square feet and above; (iii) residential plot of 100 square yards and above in notified municipalities; (iv) residential plot of 200 square yards and above in areas other than the notified municipalities. 4.2 The property held by a “Family” in different locations or different places/cities would be clubbed while applying the land or property holding test to determine Economically Weaker Sections status. 4.3 The term “Family” for this purpose will include the person who seeks benefit of reservation, his/her parents and siblings below the age of 18 years as also his/her spouse and children below the age of 18 years.”, The petitioners are doctors who appeared for the NEET‑PG 2021 examination. They filed a writ petition on 24 August 2021 challenging the validity of the notice issued on 29 July 2021 providing reservation for the Other Backward Classes category and Economically Weaker Sections category in the NEET‑PG examination and sought quashing of the notice. One of the arguments raised by the petitioners was that the criteria under the Office Memorandum for the determination of the Economically Weaker Sections category is arbitrary., Issues raised by the Supreme Court of India: (i) Notice was issued on 6 September 2021; NEET‑PG results were declared on 28 September 2021. The arguments were heard in part on 7 October 2021. The Bench questioned the basis of using Rs 8 lakh as the income limit for identifying Economically Weaker Sections. Two weeks were granted to the Union Government to file an affidavit clarifying the basis for adopting the Rs 8 lakh income criteria. (ii) When the petitions were called for hearing on 21 October 2021, the Union Government had not filed an affidavit. The learned Additional Solicitor General, Mr. K. M. Nataraj, informed the Bench that he would be in a position to file the affidavit in two days. The Bench formulated specific questions on the Rs 8 lakh income limit and required disclosure from the Union Government. The order dated 21 October 2021 stated: “The specific issues on which a disclosure shall be made in the affidavit are as follows: (a) Whether the Union Government undertook an exercise before arriving at the criteria for the determination of the Economically Weaker Sections category; (b) If yes, whether the criteria are based on the report submitted by Major General Sinho (2010). If so, a copy of the report should be placed on the record; (c) Whether the Economically Weaker Sections category is over‑inclusive; (d) The income limit in the criteria for the determination of the creamy layer of the Other Backward Classes category and the Economically Weaker Sections category is the same, namely Rs 8 lakh. While the creamy layer in the Other Backward Classes category is identified for excluding a section of the community that has economically progressed to such an extent that the social backwardness of the community diminishes, the Economically Weaker Sections category is identified to include the segment which is poorer when compared to the rest of the community. Therefore, (i) the income criterion in respect of the Other Backward Classes category is aimed at exclusion, whereas in the case of the Economically Weaker Sections category, it is aimed at inclusion; and (ii) the Other Backward Classes category is socially and educationally backward and therefore has additional impediments to overcome as compared to those belonging to the general category. In these circumstances, would it be arbitrary to provide the same income limit for both categories? (e) Whether the differences in the GDP/per‑capita income of different States have been accounted for while arriving at the Rs 8 lakh income limit; (f) Whether the differences in the purchasing power between rural and urban areas have been accounted for while fixing the income limit; and (g) According to the notification of the Union Government (Office Memorandum No. 36039/1/2019), families which have an income lower than Rs 8 lakh would be excluded from the Economically Weaker Sections category if the family holds assets of (i) five acres of agricultural land and above; (ii) a residential plot of 100 square yards and above in notified municipalities and 200 square yards and above in areas other than notified municipalities; and (iii) a residential flat of 1,000 square feet and above. In this context, a disclosure may be made on the following aspects: (i) On what basis has the asset exception been arrived at and was any exercise undertaken for that purpose; (ii) Whether municipalities as required under the exception have been notified; (iii) The reason why the residential flat criterion does not differentiate between metropolitan and non‑metropolitan areas.” The Court granted liberty to the Union Government to place its affidavit on record making a full disclosure on the issues raised., Initial stand of the Union Government: On 25 October 2021, the Union Government deferred counselling due to the pendency of the petitions. The Union Government filed an affidavit on 26 October 2021, making the following submissions: (i) An exercise was undertaken by the Union Government to determine the Economically Weaker Sections category after due deliberation within the Ministry of Social Justice and Empowerment and all concerned stakeholders. Even before the Office Memorandum dated 17 January 2019 was issued, the Union Government had set up the Major Sinho Commission in 2005 for identification of the Economically Weaker Sections and determining the constitutional permissibility of reservation for the class; (ii) The criteria for the determination of the Economically Weaker Sections category does not suffer from over‑inclusiveness. Any cut‑off criteria is likely to have some degree of assumption. The fixation of Rs 8 lakh is based on the criteria for the determination of the creamy layer of the Other Backward Classes. The Major General Sinho Commission recognised that the income limit for the creamy layer of the Other Backward Classes could be used for the identification of the Economically Weaker Sections. The Office Memorandum provides further checks in the form of the assets exemption so that only the needy receive the benefit of reservation under Articles 15(5) and 16(6); (iii) The same income limit criteria used for determining both the Economically Weaker Sections and the creamy layer of Other Backward Classes is not arbitrary: the exercise conducted to determine the creamy layer for the purpose of the Other Backward Classes reservation would be equally applicable for the determination of the Economically Weaker Sections category since the premise is that persons having substantial economic standing may not receive the benefits of reservation. The courts can only determine if there is some material for arriving at the income criteria; (iv) Urban‑rural and State divide: Though there will be differences in purchasing power and GDP of different areas, it is sufficient if the criteria is based on some material. There is no need to prescribe different income limits for rural and urban families since Economically Weaker Sections is intended mostly for students in higher education and employment; (v) Asset exception: The assets exception is provided to ensure that reservation is provided only to the needy. Notified municipalities refers to all municipalities legally constituted; and (vi) Other arguments: The total seats have been increased by fifty‑six percent in MBBS and by eighty percent in postgraduate courses in the last six years. Therefore, the total number of seats available for the general category has increased. The issue of whether reservation for the Economically Weaker Sections would violate the law laid down in Indra Sawhney v. Union of India since it exceeds the fifty percent reservation cap is the subject matter of reference to a five‑judge Bench in Janhit Abhiyan v. Union of India, which is adjudicating upon the constitutional validity of the Constitution (One Hundred and Third Amendment) Act, 2019., Major Sinho Commission Report – (details to follow in subsequent paragraphs).
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At this stage, a reference must be made to the Major Sinho Commission report since the Union Government has strongly relied on the observations in the report on using the income limit for identifying the creamy layer of the Other Backward Classes for determining the Economically Weaker Sections. The Major Sinho Commission was constituted for determining the Economically Weaker Sections among the unreserved categories. Chapter III of the Commission's report noted that the welfare measures (excluding reservation which would require other considerations) may be extended to the Economically Weaker Sections category. Chapter IV of the report discusses the parameters to determine the Economically Weaker Sections category. The relevant parameters for the identification of Economically Weaker Sections were enumerated as follows: Monthly Per Capita Expenditure; Below Poverty Line Category; Occupational Pattern and Backwardness; Educational Backwardness; Status of Health and Nutrition; and Housing Conditions. Analysing the above parameters across categories, the Commission arrived at the following conclusions: The Report noted, on the basis of the above, this Commission gathers the constitutional and legal understanding that Backward Classes cannot be identified for providing reservation in employment and admission in educational institutions on the basis of economic criteria and hence Economically Backward Classes can be identified by the State for extending welfare measures only and in order to provide any quantum of reservation to them two essential aspects need to be considered: social, educational and economic backwardness, and until a different direction is given by the Supreme Court of India or a constitutional amendment is made, the 50 per cent limit for reservation makes a binding on the State for any further increase in the quantum of reservation to any class., A part of the general category formed a class of poor along with poor of other social groups. Poor households resulted from landlessness, high women illiteracy, marginal farm holdings and part‑time/temporary work in the unrecognised sector. Such people have to cope with kutcha housing, poor hygiene and inability to spend on basics; socio‑economic condition of the general category is better than other social groups but segments within the general category are equivalent to or worse off than the Other Backward Classes; and the general category has a deeper creamy layer than the Other Backward Classes. The lower end of the spectrum of the general category and the Other Backward Classes are comparable., The Major Sinho Commission made the following recommendations for the identification of the Economically Weaker Sections: socio‑economic backwardness prevails at a community level. However, economic backwardness prevails at a family level. Thus, the family should be the unit for identification of Economically Weaker Sections; and the Below Poverty Line families must be identified as Economically Weaker Sections. This view was also expressed by various States. While the creamy layer criteria could be used for the identification of Economically Weaker Sections, the creamy layer was a concept exclusive to a class that suffers both social and educational backwardness. The economic needs of Economically Weaker Sections differ and hence just one criterion of Below Poverty Line or setting creamy layer of Other Backward Classes as the upper limit would not be effective to ensure intended benefits to Economically Weaker Sections. The percentage of Below Poverty Line among the general category was less compared to the backward class, however the poor of the general category (though above Below Poverty Line) still suffered from malnutrition, poor health, and low standard of living. Therefore, families with income less than the current non‑taxable limit of Rs. 1,60,000 (as may be revised from time to time) and the Below Poverty Line families should be identified as Economically Weaker Sections., Union Government's decision to revisit the Economically Weaker Sections criteria. On 28 October 2021, the learned Solicitor General sought an adjournment, requesting that the petitions be heard after the Diwali vacation. Thereafter, on 25 November 2021, the learned Solicitor General stated that the Union Government had taken a considered decision to revisit the criteria for determining Economically Weaker Sections in accordance with the provisions of the explanation to Article 15 of the Constitution inserted by the Constitution (One Hundred and Third Amendment) Act 2019. The Solicitor General submitted that a period of four weeks would be required to conduct this exercise and the counselling would remain suspended during such period. Acceding to the Union Government's request to revisit the criteria, the Supreme Court of India posted the petitions for hearing on 6 January 2022., The Union Government by its order dated 30 November 2021 constituted a Committee to review the criteria for determination of the Economically Weaker Sections category. The terms of reference of the committee stated thus: to revisit the criterion given in Office Memorandum dated 17 January 2019 in determining Economically Weaker Sections category keeping in view the observations of the Hon’ble Supreme Court of India in their order dated; to examine various approaches so far followed in the country for determining Economically Weaker Sections, and; to recommend criteria that may be adopted for identifying Economically Weaker Sections category in future. The Pandey Committee submitted its report to the Government on 31 December. Thereafter, the Union Government filed an affidavit before the Supreme Court of India submitting that it has accepted the recommendations of the Pandey Committee including its recommendation that the new criteria for identifying Economically Weaker Sections must be applied prospectively and not in the current admission year of 2021‑2022., The findings of the Pandey Committee. It is important to advert to the findings of the Pandey Committee on the issues raised by the Supreme Court of India by its order dated 21 October 2021. The Pandey Committee's short responses to the issues raised by the Supreme Court of India are given in the table below: based on prevailing conditions and economic disparity in the country, what should be the principles for determining criteria that may be used for identifying Economically Weaker Sections? A feasible criterion for defining Economically Weaker Sections can be based on income (family income). If income criteria is to be used then what would be the threshold for income for identifying Economically Weaker Sections? A threshold of Rs 8 lakhs of annual family income, in the current situation, seems reasonable for determining Economically Weaker Sections. Is there any justification for adopting a uniform income‑based threshold across the country for the identification of Economically Weaker Sections – especially in light of the disparity in purchasing power across the country? The desirability of a uniform income‑based threshold has been upheld by the Supreme Court of India, and it can be adopted across the country as a matter of economic and social policy, drawing authority from Article 254 and Article 73, read with Entry 20 of the Concurrent List. Is the current limit of annual family income of Rs 8 lakhs over‑inclusive? The current limit of annual family income of Rs 8 lakhs does not seem to be over‑inclusive as the available data on actual outcomes does not indicate over‑inclusion. It should be noted that income includes salary and agriculture as well. Should there be other criteria to determine economic weakness, in addition to income? Should residential or other assets be considered for Economically Weaker Sections? In case, inclusion of asset in the criteria for Economically Weaker Sections is justified, is the current asset limit adequate or does it require a review based on factors including differences in valuation due to location of the assets? It will be prudent to have only income criteria for Economically Weaker Sections. Residential asset criteria may be omitted altogether. However, the families holding more than 5 acres of land or more may be excluded from Economically Weaker Sections., The Pandey Committee observed that income limit is the most appropriate criteria to identify Economically Weaker Sections as opposed to a multiple‑criteria approach because the latter requires complex and large‑scale surveys. The periodic surveys may not be able to capture the evolving nature of the Economically Weaker Sections category. Further, over‑reliance on consumption patterns would result in beneficiaries hiding or avoiding the consumption of goods and services. The report stated thus: the problem with a multiple‑criteria approach is that it requires complex, large‑scale surveys. While it may be possible to periodically do such detailed socio‑economic surveys, it should be noted that our idea of Economically Weaker Sections keeps evolving. For example, using the refrigerator or a phone connection as one of the parameters may have been valid for exclusion in 2011 but may not be true today. Moreover, if we start to rely too heavily on certain consumption patterns to identify beneficiaries, we will end up with people gaming the system by hiding or avoiding certain goods and services., The Pandey Committee sought to justify the use of Rs 8 lakhs income‑cut off for determining the Economically Weaker Sections category by placing reliance on the Major Sinho Commission report, which it submitted, proposed using the concept of creamy layer in Other Backward Classes to determine the criteria for identifying Economically Weaker Sections among the general category. Further, it noted that despite having a similar threshold of Rs 8 lakhs, the criteria applied for the determination of creamy layer in Other Backward Classes and Economically Weaker Sections is different. The report contains the following table enumerating the differences between the two criteria: Table III: Creamy Layer among Other Backward Classes vs Economically Weaker Sections criteria – Parameters – Creamy Layer among Other Backward Classes – Economically Weaker Sections; Annual Family Income and Eligibility in years – Annual Income above Rs 8 lakh for 3 consecutive years will be excluded – Annual income should be less than Rs 8 lakhs in the preceding financial year will be included; Income from salaries or agricultural land – Excluded – Included; Persons working as artists or engaged in hereditary occupations – Excluded – Included; Definition of Family – Candidate, parents, minor children – Candidate, parents, minor siblings, spouse, minor children., The Pandey Committee also submitted that if adequate investments are made and deductions are taken advantage of, the effective income tax exemption limit is Rs 7 to 8 lakhs. The current annual income tax exemption limit is Rs 2,50,000. However, in February 2019 the Government through Finance Act amended the Income Tax Act 1961 to provide relief to low‑income individuals wherein anyone having taxable income up to five lakhs of rupees per annum was exempt from paying income tax. Whatever tax that was calculated for the income exceeding Rs 2,50,000 was given back to the taxpayer by way of rebate which effectively meant that individuals having taxable income up to Rs 5 lakhs had their entire income tax free. As a result, even persons having gross income up to Rs 6.5 lakhs are not required to pay any income tax if they make investments in provident funds, specified savings, insurance etc. In fact, with additional deductions such as interest on a home loan up to Rs 2 lakh, interest on education loans, National Pension Scheme contributions, medical insurance, medical expenditure on senior citizens etc., persons having even higher income do not have to pay any tax. In addition, salaried persons get an additional standard deduction of Rs 50,000. Income from capital gain on listed shares/units up to Rs 100,000 too is exempt from tax. Effectively, a person earning up to around Rs 8 lakhs is not required to pay any income tax from the financial year 2019‑2020 onwards, provided he makes some specified savings etc. Further, income from agriculture too is not included for the purpose of income tax in this case., It should be noted that the Rs 8 lakh annual gross income limit for inclusion into Economically Weaker Sections is for the entire family as against the individual income tax exemption limit of Rs 5 lakhs which is without any deductions available under various provisions of income tax such as 80C, standard deductions etc., and includes agricultural income. The individual income tax exemption limit does not include agricultural income. As per current income tax norms, the effective income tax on individuals is zero for those with incomes up to INR 5 lakhs. After taking advantage of the various provisions for savings, insurance etc., the taxpayer may not need to pay any tax up to an annual income of INR 7‑8 lakhs. Thus, the Economically Weaker Sections cut‑off, if applied to just an individual, is in the ballpark of income tax requirements for zero tax liability. Once applied to include family income and farm income, however, it becomes much more demanding. In the Pandey Committee's opinion, a lower income limit would increase the risk of excluding deserving candidates. However, to avoid undeserving candidates from taking the benefit of reservation, a set of simple asset criteria should be introduced to weed out such candidates instead of lowering the income limit., The Pandey Committee submitted that uniform criteria should be imposed for identifying Economically Weaker Sections because prescribing different income limits based on the differences in purchasing power in urban and rural areas would create complications, especially on account of migration. It will also lead to administrative difficulty in implementation. The Committee is of the view having different income limits for different geographies or areas is neither feasible nor desirable., The Pandey Committee submitted that the Rs 8 lakhs cut‑off is not over‑inclusive because data shows that the majority of the candidates fall within the lower income brackets of below Rs 5 lakhs. The Committee relied on the data on household income distribution for qualified Economically Weaker Sections candidates in UPSC, NEET‑UG 2020 and JEE 2021 examinations. After analysing the data of the three different entrance examinations, the committee is of the view that there is no evidence that the current cut‑off of Rs 8 lakhs is leading to a major problem of the inclusion of undeserving candidates. Nonetheless, the committee observed that the distribution of the deserving candidates will have a long tail for various factors such as income volatility, size of family, the inclusion of agricultural income, high cost of living in certain locations and so on. Therefore, despite the fact that the bulk of the qualifying candidates is below Rs 5 lakhs, a somewhat higher threshold is needed which ensures that deserving beneficiaries in the tail of the distribution are not excluded. Thus, the committee is of opinion that the income criteria of INR 8 lakh per annum performs well based on evidence and should be kept unchanged for identifying Economically Weaker Sections., The Pandey Committee was of the view that there should be no interference with the existing criteria relating to exclusion of families having agricultural land of 5 acres or more from the category of Economically Weaker Sections even if their gross income is less than Rs 8 lakhs. The Committee observed that it is the marginal and small farmers who have farm holdings up to 5 acres whose monthly income is in the range of Rs 10,000. The situation is quite vulnerable for the marginal (less than 1 hectare) and small farmers (1‑2 hectares of land) as their income is way behind that of the medium and large farmers. A finer categorisation of farmers as per the size of land holdings reveals that the marginal and small farmers average monthly earnings are barely Rs 9,099 and Rs 11,000 respectively. Therefore, considering that the marginal and small farmers (having landholding up to 5 acres of land) are able to have monthly income only in the range of around Rs 10,000, the committee is of the view there is no need to interfere in the criterion of 5 acres of agricultural land., The Pandey Committee opined that the residential asset criteria for identifying Economically Weaker Sections must be removed. The Committee noted that there are practical difficulties in identifying a common denominator that can be used in rural and urban areas for determining Economically Weaker Sections. It could be difficult to apportion the share of the nuclear family in the residential house of a joint family. Further, in rural and semi‑rural areas, house plots are also used for storing grains, agricultural equipment and sheltering cattle. It will be difficult to demarcate the criteria of the residential house. In urban areas, various measurements are used like carpet area, built‑up area and super‑built‑up area. It will place an onerous burden on a candidate to get these areas measured and calculated for obtaining certificates from the designated authority. The Committee also observed that criteria of residential house or plot area does not encapsulate the value of the land which may differ according to geographic location. The Committee concluded: the Committee is therefore of the view that a similar approach could be adopted for Economically Weaker Sections wherein residential asset exclusion criterion may be omitted for simplicity, ease, and convenience. In short, an asset criterion on residential plot size or flat floor area should not be imposed unless there is clear evidence that the system is being widely gamed in practice. Even if there was evidence of misuse, the Committee is of the opinion that it may be easier to mine the wealth of digital information to establish real income rather than get caught in a complex debate about ownership and valuation., Thus, effectively the only revision that the Pandey Committee has recommended is the exclusion of the residential asset criteria in determining the category of Economically Weaker Sections. The Committee observed that applying the new criteria would disturb the ongoing admissions and lead to delay. It was further stated that since the present Economically Weaker Sections criteria was being applied since 2019, no serious prejudice would be caused if it is implemented in the present year as well. The Committee deliberated upon the vexed question as to from which year the criteria suggested in its Report should be used, adopted and made applicable. The Committee found that the existing criteria is in use since 2019. The question of desirability of the existing criteria arose and a possibility of its being revisited arose only recently in Neil Aurelio Nunes and others versus Union of India and others and a batch of petitions towards the later part of 2021. By the time this Hon’ble Supreme Court of India started examining the said question and the Central Government decided to revisit the criteria by appointing this Committee, the process with respect to some appointments/admissions had taken place or must have been at an irreversible and advanced stage. The existing system which is going on since 2019, if disturbed at the end or final stage of the process would create more complications than expected both for the beneficiaries as well as for the authorities. In case of admissions to educational institutions, sudden adoption of a new criteria inevitably and necessarily would delay the process by several months which would have an inevitable cascading effect on all future admissions and educational activities/teaching/examination which are time bound under various statutory/judicial time prescriptions. Under these circumstances, it is completely inadvisable and impractical to apply the new criteria (which are being recommended in this report) and change the goal post in the midst of the ongoing processes resulting in inevitable delay and avoidable complications. When the existing system is ongoing since 2019, no serious prejudice would be caused if it continues for this year as well. Changing the criteria midway is also bound to result in a spate of litigations in various courts across the country by the persons whose eligibility would change suddenly. The Committee, therefore, after analysing the pros and cons on this issue and after giving serious consideration, recommends that the existing and ongoing criteria in every on‑going process where Economically Weaker Sections reservation is available, be continued and the criteria recommended in this Report may be made applicable from the next advertisement/admission cycle., The petitions were listed on 5 January 2022 after a request for urgent listing was made by the Solicitor General. It was urged on behalf of the Union Government that the Other Backward Classes and Economically Weaker Sections reservation (following the old criteria) must be allowed to be implemented in the present admission year. This has been contested by the petitioners. By an order dated 7 January 2022, the Supreme Court of India upheld the constitutional validity of the Other Backward Classes reservation in All India Quota medical and dental Undergraduate and Postgraduate seats. The constitutionality of the criteria used for the identification of the Economically Weaker Sections category is yet to be decided. However, in the interim, the Supreme Court of India directed that the counselling in NEET‑PG 2021 and NEET‑UG 2021 be conducted by giving effect to the reservation provided by the notice dated 29 July 2021, including the 27 percent Other Backward Classes reservation and 10 percent Economically Weaker Sections reservation. The reasons for allowing Economically Weaker Sections reservation for the current academic year 2021‑2022 are provided in this order., Submissions of counsel. Mr. Arvind Datar, learned Senior Counsel appearing for the petitioners argued that the criteria fixed for determining the Economically Weaker Sections category in the Office Memorandum is prima facie arbitrary. In support of this argument, he made the following submissions: the Constitution was amended by the Constitution (One Hundred and Third Amendment) Act 2019 on 14 January 2019 to provide 10 percent reservation for the Economically Weaker Sections of the unreserved category. The Office Memorandum laid down the criteria for determining the Economically Weaker Sections category within three days of introducing the amendment. The Union Government did not undertake any study before notifying the criteria on 17 January 2019. It is evident from the report submitted by the Pandey Committee that no exercise was undertaken before notifying the criteria in 2019; the report of the Pandey Committee only justifies the criteria but does not submit the exercise that was undertaken for arriving at the criteria; the Rs 8 lakhs income limit prescribed for determining the Economically Weaker Sections category is arbitrary because: the income limit used to determine the creamy layer category of Other Backward Classes/Backward Classes/Most Backward Classes is used to identify Economically Weaker Sections. The Other Backward Classes category suffers from both social and economic backwardness unlike the unserved category. The criteria for exclusion cannot be used as the criteria for inclusion; the prescription of the Rs 8 lakhs income limit would amount to treating unequals equally. For example, the per capita income of States differs. Goa has a per capita income of Rs 4 lakhs, while Bihar has a per capita income of Rs 40,000. The Minister of State of the Ministry of Statistics and Programme Implementation, while answering a Parliamentary question, acknowledged the disparity in per capita income among States and the rural and urban populations. The 8 lakhs income criteria is higher than the per capita income of any of the States; the Rs 8 lakhs cap is on the higher end and does not cover the section of those who are economically weaker. The affluent of the general category would take away all the reserved seats available. Thus, the Rs 8 lakhs limit is over‑inclusive; the Major Sinho Commission was constituted for the purpose of determining the feasibility of providing reservation for the Economically Weaker Sections and the criteria for determining Economically Weaker Sections category. The Commission submitted its report in 2010 after extensive study and consultation with all States. After undertaking such an extensive study, it recommended that the criteria for the determination of Economically Weaker Sections shall be families that fall under the Below Poverty Line category and the families exempted from payment of income tax (that is Rs 1.6 lakhs at the relevant time); the common income limit of Rs 8 lakhs does not include factors such as income volatility, size of family, and high cost of living in certain locations; the current non‑taxable limit is Rs 2.5 lakhs. A person who saves Rs 2‑3 lakhs a year to avail benefits under Section 80C of the Income Tax Act 1961 cannot be termed as economically weak; according to the Seventh Pay Commission, a class IV employee receives a salary between Rs 18,000 to Rs 30,000. Therefore, the Rs 8 lakhs limit is over‑inclusive; the Rs 8 lakhs limit is a top‑down approach and not a bottom‑up approach. The Pandey Committee has erroneously interpreted the recommendations of the Major Sinha Commission., The Pandey Committee report does not have any reasons to reject the recommendation of the Major Sinha Commission. The report does not sufficiently address the issues raised by the Supreme Court of India by the order dated 21 October 2021 because: the report acknowledges the absence of reliable data; the report was submitted within three weeks without undertaking any study, unlike the Major Sinha Commission report which was submitted after four years of extensive research by placing reliance on data, survey reports, and feedbacks; the Pandey Committee did not consult with the State Governments/Union Territories while framing the report. Without any consultation, it is recommended that there should not be different income limits for different States or areas based on purchasing power; the report stated that the family income of Rs 8 lakhs does not seem to be over‑inclusive as the available data on actual outcomes does not indicate over‑inclusion. However, no data was submitted on actual outcomes to prove the claim; the justification in the report for not considering the varying costs of living in metropolitan and non‑metropolitan cities, rural and urban areas for determining the Economically Weaker Sections criteria was that it would create complications. Such a justification is not reasonable; the 5 acres agricultural land asset exemption is arbitrary since no exemption is made between wet and dry lands; and the Pandey Committee has determined the criteria by ignoring the relevant factors and taking into account irrelevant factors., The explanation to Article 15 states that for the purposes of Article 15 and Article 16, Economically Weaker Sections shall be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. Both the Union and the State Governments have the power to determine the Economically Weaker Sections. However, the Pandey Committee did not even consult the States before arriving at the criteria. The Kerala Government constituted a commission for determining the criteria for identifying the Economically Weaker Sections. The Commission chaired by Mr. K Sasidharan Nair submitted its report on 29 November 2019 recommending that Rs 4 lakhs gross family income must be used to identify the Economically Weaker Sections category in Kerala; the open category seats are filled by the members of the general category and the reserved categories. According to the Rajan committee report submitted in Tamil Nadu, only 2.3 percent of the open category seats are occupied by the forward community. By improperly identifying the Economically Weaker Sections, the injustice suffered by the forward community is being compounded; this Court in Indra Sawhney held that a class identified for the purposes of reservation under Articles 15 and 16 must have common traits. The Economically Weaker Sections class identified by the impugned criteria does not possess common traits; in the case of Shantistar Builders v. Narayan K. Totame, a three‑judge Bench of this Court held that the economic basis or the means test may be adopted as a working guideline for determining weaker sections of the society. In this case, a family having an annual income not exceeding Rs 18,000 was considered to be belonging to the weaker sections of the society., Mr. Anand Grover, senior counsel appearing for the intervenors made the following submissions challenging the criteria for the determination of Economically Weaker Sections: the explanation to Article 15 states that Economically Weaker Sections must be determined on the basis of family income and other indicators of economic disadvantage. Therefore, the criteria used for the identification of the class must encompass both the income and other indicators. However, the criteria devised does not use any other indicator for economic disadvantage; the Economically Weaker Sections category is identified by the income limit, and other indicators are used only to exempt a class falling within the income criteria. Indicators such as housing, literacy, education, and health have been ignored while identifying the Economically Weaker Sections category; the daily minimum wage in India is Rs 176 per day, which is not even half of what is recommended by the Parliamentary Committee. Around 76 percent of India’s population does not receive a minimum wage. Therefore, the criteria only identifies the creamy layer and not the poorest of the poor; the income criteria must be based on the income tax exemption slab that is Rs 2.5 lakhs.
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Considering that the cut‑off of Rs 2.5 lakhs was fixed in 2004, the amount may be increased by 10‑12 percent. The Pandey Committee report states that although the bulk of the qualifying candidates are below Rs 5 lakhs, a somewhat higher threshold is needed to ensure that deserving beneficiaries affected by factors such as income volatility, size of family and high cost of living in certain locations are not excluded. No other justification is given to prescribe Rs 5 lakhs as the income limit., On behalf of the Union of India, the Solicitor General, Mr Tushar Mehta, and the Additional Solicitor General, Mr K M Natraj, made the following submissions. The rules of the game were not changed after the game had begun since the reservation through the impugned notice issued on 29 July 2021 was introduced much prior to the date on which the examinations were conducted and before the commencement of the counselling process. The National Eligibility cum Entrance Test Post Graduate examination schedule is as follows: Release of Information Brochure – 23 February 2021; Commencement of Registration Process – 23 February 2021; Last date of Registration – 15 March 2021; Scheduled examination date – 18 April 2021; Postponement for four months – 03 May 2021; New date of examinations announced – 13 July 2021; New date for examination – 11 September 2021. Clause 11.1 of the information bulletin issued on 23 February 2021 states that reservation of postgraduate seats shall be as per the norms of the Central Government and the respective State Governments. Clause 11.2 states that a separate handbook providing information on the counselling process and applicable reservation shall be released by the designated counselling authority for the National Eligibility cum Entrance Test Post Graduate 2021. Therefore, the process begins only with the commencement of the counselling process and not when the registration closes., The reservation in All India Quota seats in terms of the notice dated 29 July 2021 has already been implemented in Master of Dental Surgery admissions for the academic year 2021‑2022 to comply with the order of the Supreme Court of India dated 11 August 2021 in Debraj Samanta & Ors. v. Medical Counselling Committee., The Economically Weaker Sections reservation is already in place and is now being extended to All India Quota seats for Undergraduate and Post Graduate admission in medical and dental courses. The EWS reservation has already been implemented for Indian Institutes of Technology and Central educational institutions, among others. The reservation is in compliance with Constitution (One Hundred and Third Amendment) Act 2019 and is based on the prescribed parameters of eligibility criteria, which include gross income., The reservation for Economically Weaker Sections was introduced on broader considerations of equality of opportunity and concerns of social justice. Around 550 EWS students for Bachelor of Medicine, Bachelor of Surgery and 1,000 EWS students for Post Graduate medical courses would benefit each year from this reservation., In the last six years, Bachelor of Medicine, Bachelor of Surgery seats have been increased by 56 percent from 54,348 seats in 2014 to 84,649 seats in 2020, and the number of Post Graduate seats has been increased by 80 percent from 30,191 seats in 2014 to 54,275 seats in 2020. In the same period, 179 medical colleges have been established and now there are 558 medical colleges in the country. Thus, the reservation for the Economically Weaker Sections category will not be at the expense of other categories., The challenge to the constitutional validity of the Constitution (One Hundred and Third Amendment) Act 2019 has been referred to a Constitution Bench by the order dated 5 August 2020 in Janhit Abhiyan v. Union of India & Ors. While referring the challenge to the Constitution Bench, the Supreme Court of India did not stay the operation of the constitutional amendment. Thus, the implementation of the constitutional amendment through the notice dated 29 July 2021 cannot be questioned in the present writ petitions., The criteria for reservation for admission in the All India Quota seats is a question of policy and is within the powers of the Union Government. The criteria depend on an overall assessment and survey of requirements of various categories of persons to whom it is essential to provide facilities of higher education. The contours of judicial review have been defined by the Supreme Court of India in B.K. Pavithra v. Union of India, which is the Barium Chemicals Test. Thus, unless the criteria for Economically Weaker Sections is so grossly unfair that no person with common sense would arrive at it, there is no reason for judicial interference., It is always possible to devise an alternative criteria. However, the judiciary is only required to assess whether the Government took into account relevant considerations, showed application of mind and did not adopt an absurd view that no person with common sense would adopt., The Union Government undertook an exercise for the determination of the Economically Weaker Sections criteria as stipulated in the Office Memorandum, which was arrived at after due deliberation within the Ministry of Social Justice and Empowerment and all concerned stakeholders. Even before the Office Memorandum came into existence, the Government had set up the Major General Sinha Commission in 2005. The Major General Sinha Commission, in its report dated July 2010, concluded that the creamy‑layer threshold among the Other Backward Classes can serve as the basis to decide the upper limit for identifying the economically backward category among the unreserved category. The criteria that apply to the OBC creamy layer are significantly different from the criteria applicable for identifying the Economically Weaker Sections, which are more stringent., The Pandey Committee has merely tweaked the Major General Sinha Commission report. It also considered relevant material including the Socio‑Economic and Caste Census 2011. Based on the material, it opined that economic weakness is a complex issue and no single indicator can capture the level of poverty. The Pandey Committee observed that a multi‑pronged criteria requires complex and large‑scale surveys. Since the Economically Weaker Sections is a dynamic concept and keeps evolving, it is suitable to have an income‑based criteria. A criteria based on consumption patterns would lead to people avoiding certain goods and services for the purpose of securing the reservation benefit., The Major General Sinha Commission report recommended using the income‑tax exemption limit. While the current income‑tax exemption limit is Rs 2.5 lakhs, an income of Rs 8 lakhs effectively falls within the exemption limit because a tax rebate is provided for income up to Rs 5 lakhs and, with sufficient savings and investments, such a rebate can be obtained. Further, the income‑tax exemption limit applies to individuals but the Rs 8 lakhs limit applies to families. If three members of a family each earn Rs 3 lakhs annually, they could fall outside the Economically Weaker Sections bracket., If a lower income limit for identifying Economically Weaker Sections is adopted, it will be under‑inclusive. To be eligible for EWS reservation, the beneficiary household income has to be less than Rs 8 lakhs in the preceding financial year. A single year of windfall income earned by a household can push it out of the EWS category., It is important to note that the state is not identifying the poor but rather those belonging to the economically weaker category. Such people may be above the poverty line., It would be difficult to adopt different income limits for urban and rural areas because of internal migration, which would lead to implementation issues. A uniform criteria can be used to provide reservation., It would be discriminatory if Economically Weaker Sections reservation is not implemented in medical and dental colleges, when it is being implemented in other educational institutions., The Pandey Committee highlighted that the certification process for determining the size of the residential plot is cumbersome and recommended doing away with the residential criteria for exemption from the Economically Weaker Sections category. It also recommended that the new criteria should apply prospectively. The EWS candidates would have prepared their respective certificates to satisfy the EWS criteria, which are to be submitted once the counselling process begins for this admission cycle. Thus, no hardship would be caused to them for applying this year. On the other hand, if the new criteria were implemented from this year, it would disturb the entire admission process because candidates who qualify under the new criteria would need additional time to satisfy it and participate in the counselling process., It has been brought to our notice that the counselling for Master of Dental Surgery courses has already begun, where the reservation for Economically Weaker Sections in All India Quota has been provided. On behalf of the petitioners, Mr Shyam Divan urged that a completely separate exercise be conducted for MDS courses, submitting that a separate notification is issued for admission to MDS courses and a different schedule for examination and counselling is followed. Nevertheless, medical and dental courses have been treated on the same footing with respect to the creation of All India Quota seats. The decision of the Supreme Court of India in Pradeep Jain v. Union of India clarified that the observations and directions made with regard to Bachelor of Medicine, Bachelor of Surgery and MD/MS courses would equally apply to Bachelor of Dental Surgery and Master of Dental Surgery courses. The notification dated 29 July 2021 introduced reservation for the Other Backward Classes and Economically Weaker Sections categories for All India Quota seats in both medical and dental courses, establishing parity between the two streams. Mr Divan also submitted that a separate challenge has been mounted to the notification dated 29 July 2021 by doctors possessing a Bachelor of Dental Surgery degree, which is being heard with the current batch of petitions. This argument supports the conclusion that while reservation in both medical and dental courses has been challenged, any interim stay on the implementation of reservation for the former, in view of the pending counselling process, would create a position of disparity between the two streams that have always been treated alike. Therefore, a stay on reservation for this academic year for medical courses would lead to differential treatment of dental candidates who are similarly placed., On behalf of the petitioners, it has been urged that the rules of the game cannot be changed midway and hence the notification dated 29 July 2021 is liable to be set aside because it was issued after the registration for the examination was closed. We have dealt with this argument in detail in the judgment delivered on 20 January 2022 in the current batch of petitions on the validity of OBC reservation in All India Quota seats. The information bulletin dated 23 February 2021 issued for the purpose of conducting the National Eligibility cum Entrance Test specifically mentioned that the counselling authority would issue a separate handbook relating to details of the counselling process and applicable reservation. Thus, during the registration process which commenced on 23 February 2021 and ended on 15 March 2021, the candidates knew that the details relating to the seat matrix would only be available during the counselling process. The notification dated 29 July 2021 was issued much before the examinations were conducted and before the counselling process was to begin. It cannot be said that the rules for the game were set when the registrations closed on 15 March 2021, as urged by the petitioners., In the judgment pronounced on 20 January 2022 on the validity of OBC reservation in All India Quota seats, we dealt with the challenge to the power of the Union Government to implement reservation in All India Quota seats. The Union of India, in view of Article 15(5) and Article 15(6) of the Constitution, has the power to provide reservation in All India Quota seats since these seats have been surrendered to the Centre., The argument of the petitioners on the validity of Economically Weaker Sections reservation was not limited to the permissibility of reservation in the All India Quota seats. Rather, the petitioners challenged the very criteria for the determination of the Economically Weaker Sections, which would require us to hear the matter at length and to hear all interested parties. However, in view of the delay in the counselling process due to the pendency of this petition, we deem it necessary to allow the counselling session to begin with the existing criteria for the identification of the Economically Weaker Sections category. Judicial propriety would not permit us to pass an interim order staying the criteria for determination of the Economically Weaker Sections category. It is a settled principle of law that in matters involving a challenge to the constitutionality of legislation or a rule, the Supreme Court of India must be wary to pass an interim order unless it is convinced that the rules are prima facie arbitrary., At this stage, without hearing all the interested parties at length on arguments such as (i) the extent of judicial review of materials relied on for providing reservation under Article 15; (ii) the power of the States to determine Economically Weaker Sections in view of the explanation to Article 15 and an alternative criteria proposed by the committee formed by the Government of Kerala; and (iii) the meaning of Economically Weaker Sections – the identification of the poor or the poorest, as discussed in Heart of Millions v. Union of India, 2014 (14) SCC 496, it would be impermissible for us to form a prima facie opinion on the alleged arbitrariness of the criteria. These arguments indicate the wide range of issues that have been raised before us, which require proper consideration given their constitutional and societal implications on equality and the law., Any judicial intervention that would have changed the stated reservation policy for the academic year 2021‑2022 would have delayed the admission process. The notification introducing reservation for Other Backward Classes and Economically Weaker Sections was issued on 29 July 2021. Subsequently, a notice dated 6 August 2021 allowed candidates to change their category and EWS status, with the window for editing one’s status between 16 August 2021 and 20 August 2021. The examination was conducted on 11 September 2021. Candidates who qualify for the Economically Weaker Sections category would have prepared the necessary documentation to satisfy the eligibility criteria for reservation. Any change in the eligibility status at this stage would have caused confusion and possible litigation, further delaying the process. We are still in the midst of the pandemic, and any delay in the recruitment of doctors would impact the ability to manage the pandemic. Hence, it is necessary to avoid further delays in the admission process and allow counselling to begin immediately. Accordingly, we allow the implementation of Economically Weaker Sections reservation in All India Quota seats in National Eligibility cum Entrance Test Undergraduate and Post Graduate seats for the academic year 2021‑2022. The Economically Weaker Sections category shall be identified in view of the criteria in Office Memorandum No. 36039/1/2019. The challenge to the validity of the criteria determined by the Pandey Committee for the identification of the Economically Weaker Sections category shall be listed for final hearing in the third week of March 2022.
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(Arising out of Special Leave Petition (Civil) No. 6732/2021) (Arising out of Special Leave Petition (Civil) No. 5930/2021) (Arising out of Special Leave Petition (Civil) No. 6733/2021) (Arising out of Special Leave Petition (Civil) No. 16448 of 2021) Diary No. 11655/2021 (Arising out of Special Leave Petition (Civil) No. 16449-16450 of 2021) Diary No. 13789/2021 (Arising out of Special Leave Petition (Civil) No. 16451 of 2021) Diary No. 13811/2021 (Arising out of Special Leave Petition (Civil) No. 16452-16453 of 2021) Diary No. 13890/2021 (Arising out of Special Leave Petition (Civil) No. 11426 of 2021) (Arising out of Special Leave Petition (Civil) No. 11427 of 2021) Diary No. 16948 of 2021 (Arising out of Special Leave Petition (Civil) No. 11798 of 2021) (Arising out of Special Leave Petition (Civil) No. 12669 of 2021) (Arising out of Special Leave Petition (Civil) No. 16454 of 2021) Diary No. 19534/2021., Leave granted in the Special Leave Petitions., The consideration to be made in these matters is whether the National Green Tribunal (NGT) has the power to exercise Suo Motu jurisdiction in discharge of its functions under the National Green Tribunal Act, 2010., In the lead case in this group, i.e., Civil Appeal No. 86 of 2019, the NGT noticed an article titled 'Garbage Gangs of Deonar: The Kingpins and Their Multi-Crore Trade' in the online news portal The Quint. The article spoke of how mismanagement of solid waste had an adverse impact on the environment, public health and lives of individuals living in the vicinity of the dumping ground in Mumbai city., The NGT took Suo Motu cognizance of the above article vide order dated 07.08.2018 and directed that the article writer Ankita Sinha be the applicant in the case OA No. 510 of 2018, registered at the NGT's instance. Thereafter, steps were taken for inspection of the Deonar Dumping site by the representative of the Central Pollution Control Board, Maharashtra Pollution Control Board, the District Collector of the area and also the representative of the Municipal Corporation of Greater Mumbai (MCGM). Pursuant to the report of the inspecting team, which highlighted that the landfill site failed to comply with the provisions of the Solid Waste Management Rules, 2016, the NGT vide order dated 30.10.2018 noted that damage to the environment and public health is self‑evident and ordered MCGM to pay compensation to the tune of Rs. 5 crore., Supreme Court of India while entertaining Civil Appeal No. 86/2019 of MCGM ordered a stay on the operation of the order passed by the NGT and thereafter arranged for analogous consideration of the related cases where the common threshold jurisdictional issue arises on whether the NGT has the power to exercise Suo Motu jurisdiction., Mr. Mukul Rohatgi, Mr. Dushyant Dave, Mr. Jaideep Gupta, Mr. Dhruv Mehta, Mr. Atmaram Nadkarni, Mr. Krishnan Venugopal, Mr. V. Giri, Mr. Sajan Poovayya and Mr. Sidhartha Dave, learned Senior Counsel together with Mr. E. M. S. Anam, Ms. Amrita Sharma and Mr. S. Thananjayan have taken a common stand. They have argued that the NGT is a tribunal and a creature of statute and, as such, it cannot act on its own motion or exercise the power of judicial review or act Suo Motu in discharge of its function. Being a creature of the statute, the forum cannot assume inherent powers as under Article 32 and Article 226 and its domain is circumscribed by the limitations so imposed. The learned counsel also argue that the NGT has an adjudicatory role to decide disputes which necessarily mean involvement of two or more contesting parties. Therefore, the NGT by acting Suo Motu cannot transpose itself to the shoes of one such party. The absence of a general power of judicial review with the NGT (which is available with superior courts) is highlighted to keep away Suo Motu power from the NGT. Various judgments relating to the tribunal's power and role are cited by the counsel and those would be discussed in later part of this order., Projecting the contrary view, Mr. Nidhesh Gupta, the learned Senior Counsel appearing for the aggrieved party in Special Leave Petition (Civil) No. 6732/2021, Mr. Sanjay Parikh, learned Senior Counsel for the Intervener in Civil Appeal No. 86/2019 and Mr. Gopal Sankaranarayanan, learned Senior Counsel appearing for the Impleader I.A. No. 71482/2021 in Special Leave Petition (Civil) No. 6732/2021, by referring to the special role envisaged for the NGT and the history of its incorporation, make equally powerful submission in support of exercise of Suo Motu jurisdiction by the NGT., Mr. Anand Grover, the learned Senior Counsel appointed as Amicus Curiae to assist the Supreme Court of India, was heard at length. The counsel acknowledges the NGT's role and position under the Act and its wide jurisdiction over environmental matters but Mr. Grover is of the view that the NGT is incapable of triggering action on its own. In other words, the NGT cannot act Suo Motu without someone moving the forum; otherwise the forum would be perceived to be judging its own cause. Since Suo Motu power is not conferred under the NGT Act, the specialized tribunal has to be moved by an outside party. However, the format of the application is not important and even a letter addressed by an interested party will clothe the NGT with power to take action, according to the concessional submission of Mr. Grover., Representing the Central Government, Ms. Aishwarya Bhati, the learned Additional Solicitor General of India, submitted that Suo Motu power is not exercisable by the NGT since the same has not been conferred on the forum under the NGT Act, unlike the situation in the now repealed National Environment Tribunal Act, 1995 (NET Act). The counsel refers to the provisions of the NGT Act and submits that the concept of locus standi was expanded for NGT's intervention under Section 18(2)(e) but the tribunal is not vested with Suo Motu power to take action on its own unlike the High Courts and the Supreme Court. The learned Additional Solicitor General, however, submits that even on receipt of a letter, the NGT can commence action on environmental matters. Thus, on exercise of epistolary jurisdiction by the NGT, the Additional Solicitor General is on the same page as the Amicus Curiae but, as earlier noted, both counsel argue for keeping away the Suo Motu power from the NGT., Having summarized the positions taken by the respective counsel, we may now refer to the specific grounds of challenge to keep away Suo Motu power from the NGT. The concerned counsel project that the NGT is a creature of the statute and, just like other such statutory tribunals, the NGT is also bound within statutory confines. They have relied upon Standard Chartered Ltd. v. Dharminder Bhohi wherein provisions of the Recovery of the Debts Due to Banks and Financial Institutions Act, 1993 were analysed to note the limitations of the Debt Recovery Tribunal and Appellate Tribunal. From the analysis of Justice Dipak Misra for the Division Bench, it can be inferred that the tribunal was given power under the statute to pass such other orders and give such directions to give effect to its orders or to prevent abuse of its process or to secure the ends of justice but, in discharge of its functions, the tribunal was required to confine itself within the statutory parameters. Thus, Section 19(25) conferred limited powers and the submission is that the tribunal does not have any inherent powers., Similarly, Justice S. H. Kapadia in Transcore Ltd. v. Union of India, opined on behalf of a Division Bench that, 'The DRT is a tribunal, it is the creature of the statute, it has no inherent power which exists in the civil courts.' The counsel also projects that, in the context of Consumer Forums, Justice Dalveer Bhandari speaking for a three‑judge bench in Rajeev Hitendra Pathak v. Achyut Kashinath observed: 'On a careful analysis of the provisions of the Act, it is abundantly clear that the tribunals are creatures of the statute and derive their power from the express provisions of the statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and the power of review and the powers which have not been expressly given by the statute cannot be exercised.', The second limb of contention is that the Act is applicable to disputes as necessarily referring to a lis between two parties. The counsel has relied upon Techi Tagi Tara v. Rajendra Singh Bhandari & Ors. wherein the term 'substantial question relating to environment' was interpreted in an attenuated fashion to mean a question arising as part of a dispute. The submission therefore is that a dispute must necessitate a claimant or an applicant. Further, this dispute must also be capable of settlement by the NGT. In the cited case the proposition is articulated as follows: 'There must be a substantial question relating to the environment and that question must arise in a dispute; it should not be an academic question. There must also be a claimant raising that dispute which is capable of settlement by the NGT by the grant of some relief which could be in the nature of compensation or restitution of property damaged or restitution of the environment and any other incidental or ancillary relief connected therewith.' In Prabhakar v. Department of Sericulture, the following definition of dispute was noted: 'To understand the meaning of the word dispute, it would be appropriate to start with the grammatical or dictionary meaning of the term: dispute – to argue about, to contend for, to oppose by argument, to call in question, to argue or debate with, about or over; a contest with words; an argument; a debate; a quarrel.' Black's Law Dictionary, 5th Edition defines dispute as: 'A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined.', The Amicus Curiae has also addressed this issue by defining a dispute as necessitating an assertion and a denial. By this reasoning, it is submitted that the function of Section 14 of the NGT Act is available only to adjudicate upon disputes, as in an adversarial system, but not for any other ameliorative, restorative or preventative functions., Thirdly, the lack of a general power of judicial review has been argued to show legislative intent to curb Suo Motu powers. Counsel have stated that the NGT, as a tribunal with prescribed authority under a statute, does not have any general power of judicial review. Thus, it is not within the category of writ courts as under Article 226 and Article 32 of the Constitution of India. In the relied upon judgment Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd., Justice R. F. Nariman, speaking about the NGT for a Division Bench of the Supreme Court of India, observed: 'Suffice it to say that the NGT is not a tribunal set up either under Article 323‑A or Article 323‑B of the Constitution, but is a statutory tribunal set up under the NGT Act. That such a tribunal does not exercise the jurisdiction of all courts except the Supreme Court is clear from a reading of Section 29 of the NGT Act. In the present case, it is clear that Section 16 of the NGT Act is cast in terms that are similar to Section 14(b) of the Telecom Regulatory Authority of India Act, 1997, in that appeals are against the orders, decisions, directions, or determinations made under the various Acts mentioned in Section 16. It is clear, therefore, that under the NGT Act, the tribunal exercising appellate jurisdiction cannot strike down rules or regulations made under this Act. Therefore, it would be fallacious to state that the tribunal has powers of judicial review akin to that of a High Court exercising constitutional powers under Article 226 of the Constitution of India.' The judgment further noted the distinction between a superior court of record and courts of limited jurisdiction, quoting Gajendragadkar, C. J., in Powers, Privileges and Immunities of State Legislatures, In re (1965) 1 SCR 413: 'We ought to make it clear that we are dealing with the question of jurisdiction and are not concerned with the propriety or reasonableness of the exercise of such jurisdiction... Prima facie, says Halsbury, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.' For this reason also, the State Government order made under Section 18 of the Water Act, not being the subject‑matter of any appeal under Section 16 of the NGT Act, cannot be judicially reviewed by the NGT. Following the Supreme Court of India judgment, we are of the view that the NGT has no general power of judicial review akin to that vested under Article 226 of the Constitution of India possessed by the High Courts of this country. Shri Sundaram's strong reliance on the NGT judgment dated 17‑7‑2014 in Wilfred J. v. Ministry of Environment & Forests must also be rejected as this NGT judgment does not state the law on this aspect correctly. This contention is also without merit, and therefore, rejected., The argument has been that the superior courts exercising discretionary powers under Article 32 and Article 226, to safeguard fundamental rights, can venture into judicial review. But such a power not being expressly conferred on the NGT would suggest the limited nature of the forum's powers, which would exclude any Suo Motu exercise., In order to understand the contours of jurisdiction of the NGT, we have thought it necessary to refer to the history of the legislation and also the Preamble and the Statement of Objects and Reasons of the NGT Act. The parliamentary intent which shaped the creation of the NGT and the broad issues that they sought to address through the specialized institution should now be brought to the fore., The precursor to the NGT Act was the 186th Report of the Law Commission of India dated 23 September 2003 where the Law Commission made the following pertinent observation espousing the case for the creation of a specialized court to deal with environmental issues: 'It is true that the High Court and Supreme Court have been taking up these and other complex environmental issues and deciding them. But, though they are judicial bodies, they do not have an independent statutory panel of environmental scientists to help and advise them on a permanent basis. They are prone to apply principles like the Wednesbury Principle and refuse to go into the merits. They do not also make spot inspections or receive oral evidence to see for themselves the facts as they exist on ground. On the other hand, if Environmental Courts are established in each State, these Courts can make spot inspections and receive oral evidence. They can receive independent advice on scientific matters by a panel of scientists. These Environmental Courts need not be Courts of exclusive jurisdiction. However, the High Courts, even if they are approached under Article 226 either in individual cases or in PIL cases, where orders of environmental authorities could be questioned, may refuse to intervene on the ground that there is an effective alternative remedy before the specialist Environmental Court. As of now, when we have consumer Courts at the District and State level, the High Courts have consistently refused to entertain writ petitions under Article 226 because parties have a remedy before the fora established under the Consumer Protection Act, 1986. We have also the example of special environmental courts in Australia, New Zealand and in some other countries and these are manned by Judges and expert commissioners. The Royal Commission in UK is also of the view that if environmental courts are established, the High Courts may refuse to entertain applications for judicial review on the ground that there is an effective alternative remedy before these Courts. It is for the above reasons we are proposing the establishment of separate environmental courts in each State. In Chapter IX, we propose to give the details of the constitution, power and jurisdiction of these Courts.', The above would suggest that the Law Commission was of the opinion that it is not convenient for the High Courts and the Supreme Court to make local inquiries or receive evidence. Moreover, the superior courts will not have access to expert environmental scientists on a permanent basis to assist them. Therefore, the NGT was conceived as a complementary specialized forum to deal with all environmental multidisciplinary issues both as original and also as an appellate authority, which complex issues were hitherto dealt with by the High Courts and the Supreme Court., The NGT, therefore, was intended to be the competent forum for dealing with environmental issues instead of those being canvassed under the writ jurisdiction of the courts. It was explicitly noted that the creation of the NGT would allow the Supreme Court and High Courts to avoid intervening under their inherent jurisdiction when an alternative efficacious remedy would become available before the specialized forum. The 186th Law Commission Report provided the following reasoning: 'Likewise, we have not thought it fit to enable the Environmental Courts to have judicial review powers exercised by the High Court under Article 226 of the Constitution of India. We have felt that it is sufficient to vest original civil jurisdiction as exercisable by a Civil Court, in the Environmental Courts. If we vest powers of judicial review as under Article 226, then there may be need to subject the orders to the writ jurisdiction of High Courts as held in L. Chandra Kumar v. Union of India, 1997 (3). No doubt, the Environment Court exercising powers of a Civil Court or as an appellate Court in civil jurisdiction, may be technically amenable to writ jurisdiction of the High Court but inasmuch as we are providing an appeal to the Supreme Court, the High Courts may decline to interfere on the ground that there is an effective alternative remedy of appeal on law and fact to the Supreme Court, as explained later in this Chapter.' Thus, the power of judicial review was omitted to ensure avoidance of High Courts interference with the tribunal's orders by way of a mid‑way scrutiny by the High Court, before the matter travels to the Supreme Court where NGT's orders can be challenged. The streamlining of the mechanism was to arrest the growing tide of litigation before High Courts and the Supreme Court and shift such issues to the domain of the NGT., This is how the proposed forum was made free from the rules of evidence and the NGT was permitted to lay down its own procedure to entertain oral and documentary evidence, consult experts etc. The observance of the principles of natural justice was however mandated., The Statement of Objects and Reasons of the NGT Act will now require attention. Paragraphs 2 to 6 are extracted hereinbelow: 2. India is a party to the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972, in which India participated, calling upon the States to take appropriate steps for the protection and improvement of the human environment. The United Nations Conference on Environment and Development held at Rio de Janeiro in June 1992, in which India participated, has also called upon the States to provide effective access to judicial and administrative proceedings, including redress and remedy, and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. 3. The right to a healthy environment has been construed as a part of the right to life under Article 21 of the Constitution. 4. The National Environment Tribunal Act, 1995 was enacted to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environmental Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damages to persons, property and the environment. However, the National Environment Tribunal, which had a very limited mandate, was not established. The National Environment Appellate Authority Act, 1997 was enacted to establish the National Environment Appellate Authority to hear appeals with respect to restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986. The National Environment Appellate Authority has a limited workload because of the narrow scope of its jurisdiction. 5. Taking into account the large number of environmental cases pending in higher courts and the involvement of multidisciplinary issues in such cases, the Supreme Court requested the Law Commission of India to consider the need for constitution of specialized environmental courts. Pursuant to the same, the Law Commission has recommended the setting up of environmental courts having both original and appellate jurisdiction relating to environmental laws. 6. In view of the foregoing paragraphs, a need has been felt to establish a specialized tribunal to handle the multidisciplinary issues involved in environmental cases. Accordingly, it has been decided to enact a law to provide for the establishment of the National Green Tribunal for effective and expeditious disposal of civil cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment., A reading of the Statement of Objects and Reasons shows that paragraph 4 refers to the National Environment Tribunal Act, 1995 (NET) which provided for strict liability and damages arising out of accidents occurring while handling hazardous substances. In the same context it was observed that the NET had a very limited and narrow mandate and jurisdiction. Thereafter, in paragraph 5 it has been recorded that a large number of environmental cases are pending in higher courts which involve multidisciplinary issues and, in such cases, the Supreme Court had requested the Law Commission of India to consider the need for constitution of specialized environmental courts., Significantly, the Statement of Objects and Reasons also refers to the right to a healthy environment being a part of the right to life under Article 21 of the Constitution of India. This was consistent with the earlier mentioned 186th Law Commission Report highlighting that the body so created would aim to achieve the objectives of Articles 21, 47, 48A, 51A(g) of the Constitution of India by means of a fair, fast and satisfactory judicial procedure. An institution concerned with a significant aspect of the right to life necessarily should be given the most liberal construction., Paragraph 2 of the Statement of Objects and Reasons refers to the United Nations Conference on the Human Environment held at Stockholm in June 1972 which called upon governments and peoples to exert common efforts for the preservation and improvement of the human environment when it involved people and for their posterity. Therefore, the municipal law enacted with such a laudatory objective of not only preventing damage to the environment but also to protect it, must be provided with the wherewithal to discharge its protective, preventive and remedial function towards protection of the environment. The mandate and jurisdiction of the NGT is therefore conceived to be of the widest amplitude and it is in the nature of a sui generis forum., Paragraph 5 of the Statement of Objects and Reasons refers to the United Nations Conference on Environment and Development held at Rio de Janeiro in June 1992 where India participated, impressed upon the States to provide effective access to judicial and administrative proceedings, lay out redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. The preamble of the Act significantly emphasized construing the right to a healthy environment as a part of the right to life under Article 21 of the Constitution, which was accepted by various judicial pronouncements in India. The National Green Tribunal was born in our country with such lofty dreams to deal with multidisciplinary issues relating to the environment., While adequate clarity is discernible in the phraseology employed under Section 14 and other provisions of the NGT Act, as shall be discussed in later parts of the judgment, the intention behind the statute should receive our careful attention. Tracing the legislative history for creation of the NGT it is seen that the NGT is intended to address wide‑ranging societal concerns and these have prompted us to opt for purposive interpretation. The statute will have to be read in its entirety and each provision of the Act must be given its due meaning by comprehending the mischief it intends to remedy. The chosen interpretive exercise is best understood from the treatise 'Interpretation of Statutes' authored by Justice G. P. Singh who explained: 'When the question arises as to the meaning of a certain provision in a statute, it is not only legitimate but proper to read that provision in its context. The context here means the statute as a whole, the previous state of the law, other statutes in pari materia, the general scope of the statute, and the mischief that it was intended to remedy.' This statement of the rule was later fully adopted by the Supreme Court of India. It is a rule now firmly established that the intention of the Legislature must be found by reading the statute as a whole. The rule is referred to as an elementary rule by Viscount Simonds, a compelling rule by Lord Sommervell of Harrow, and a settled rule by B. K. Mukherjee J. The Supreme Court of India agrees that one must look at the whole in order to give effect, if it be possible to do so, to the intention of the framer of it., The mischief that the NGT Act attempted to remedy was underscored in the legislative history, and the pronouncements of the constitutional courts flagging their environmental concerns., The application of Heydon's Rule could adequately aid us here as the rule directs adoption of that construction which shall suppress the mischief and advance the remedy, as was pertinently observed by Justice S. R. Das for a seven‑judge bench in Bengal Immunity Co. v. State of Bihar: 'The office of all judges is to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief; and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.', Francis Bennion, in his book 'Statutory Interpretation', described purposive interpretation as: 'A purposive construction of an enactment is one which gives effect to the legislative purpose by (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose.', Justice Frankfurter of the United States Supreme Court, in 'Some Reflections on the Reading of Statutes', elucidated on the principles to ascertain the contextual meaning of statutes: 'The purpose of construction being the ascertainment of meaning, every consideration brought to bear for the solution of that problem must be devoted to that end alone.' Judge Learned Hand speaks of the art of interpretation as the proliferation of purpose. Eventually, Justice Frankfurter relied upon Justice Benjamin Cardozo's phraseology in Panama Refining Co. v. Ryan, and the same is taken as a lodestar in our quest: 'The meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view.'
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The laudatory objectives for creation of the National Green Tribunal would implore us to adopt an interpretive process which will achieve the legislative purpose and eschew procedural impediment or incapacity. The precedents of the Supreme Court of India suggest a construction which fulfills the object of the Act. The choice for this Court would be to lean towards the interpretation that would allow fructification of the legislative intention and is forward looking. The provisions must be read with the intention to accentuate them, especially as they concern protections of rights under Article 21 and also deal with vital environmental policy and its regulatory aspects., Applying the chosen tool of interpretation to the statutory layout of the National Green Tribunal Act, the following provisions will require the Court's attention. Section 2(1)(c) defines the term 'environment'; Section 2(1)(m) defines 'substantial question relating to environment'. Chapter III relates to jurisdiction, power and proceedings of the Tribunal. Section 14 gives original jurisdiction to the National Green Tribunal to decide a substantial question relating to environment; Section 15 deals with relief, compensation and restitution whereby, besides providing relief to victims of pollution, the Tribunal can direct restitution of property damage and restitution of environment for such areas as the Tribunal may think fit. Section 16 gives appellate jurisdiction to the Tribunal against orders passed under various enactments. Section 17 provides for liability to pay relief or compensation in certain cases. Section 18 specifies who can move an application or appeal before the Tribunal, including any person aggrieved, any representative body or organization, and the locus standi is not limited only to the aggrieved party. Section 19 provides for procedure and powers of the Tribunal. Section 19(1) states that the Tribunal shall not be bound by procedures laid down in the Code of Civil Procedure and shall be bound by the Principles of Natural Justice. Section 19(2) provides that, subject to the provisions of the Act, the Tribunal shall have powers to regulate its own procedure. Section 19(3) mentions that the Tribunal shall not be bound by the rules of evidence contained in the Evidence Act, 1872. While discharging functions under Section 19(4), besides summoning, enforcing attendance, examining persons on oath, requiring discovery and production of documents, receiving evidence on oath, the Tribunal also has powers to review its decision, to pass interim orders as well as cease and desist orders. Section 20 says that while adjudicating issues, the Tribunal shall apply the environmental principles, namely, sustainable development principles, precautionary principle and polluter pays principle. Under Section 25, the Tribunal can execute its order or decision as a decree of a civil court and for that purpose shall have all the powers of a civil court. Section 29 bars the jurisdiction of civil courts to entertain all environmental matters covered by the Tribunal. Under Section 33, the National Green Tribunal Act has an overriding effect over other laws., The Central Government has framed the National Green Tribunal (Practice and Procedure) Rules, 2011 (for short the NGT Rules). Rule 24 is important and reads: 'Order and directions in certain cases – The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice.' The Rules make it clear that the Tribunal has been given wide discretionary powers to secure the ends of justice. This power is coupled with the duty to be exercised for achieving the objectives, namely, to preserve and protect the environment and matters connected thereto., By choosing to employ a phrase of wide import, i.e., 'secure the ends of justice', the legislature has nudged towards a liberal interpretation. Securing justice is a term of wide amplitude and does not simply mean adjudicating disputes between two rival entities; it also encompasses, inter alia, advancing causes of environmental rights, granting compensation to victims of calamities, creating schemes for giving effect to environmental principles and even hauling up authorities for inaction when need be., Unlike civil courts which cannot travel beyond the relief sought by the parties, the National Green Tribunal is conferred with power of moulding any relief. The provisions show that the Tribunal is vested with the widest power to appropriate relief as may be justified in the facts and circumstances of the case, even though such relief may not be specifically prayed for by the parties., Another distinguishing feature of the environmental forum is the aspect of locus standi, which is made as wide as is available to the High Courts and the Supreme Court. Thus, any person or organization interested in the subject matter is permitted to approach the Tribunal., The provisions of the National Green Tribunal Act and the NGT Rules demonstrate that myriad roles are to be discharged by the Tribunal, as encapsulated in the Law Commission Report, the Preamble and the Statement of Objects and Reasons. This is also forthcoming from the international obligation and commitment by India to implement the decisions taken at the Stockholm and Rio de Janeiro Conventions towards protection of environmental rights under Article 21 of the Constitution., The Parliament intended to confer wide jurisdiction on the Tribunal so that it can deal with the multitude of issues relating to the environment which were being dealt with by the High Courts under Article 226 of the Constitution or by the Supreme Court under Article 32 of the Constitution. The Tribunal is also expected to proceed with such matters with the understanding that environment and environmental principles are part of Article 21 of the Constitution. (See Vellore Citizens Welfare Forum vs.), The Schedule I of the National Green Tribunal Act is concerned with implementation of environmental enactments such as the Water Act, the Air Act, the Environment Act, the Forest Conservation Act etc. As one looks at these enactments, an expanded role for the Tribunal is clearly discernible. The activities of the Tribunal are not only geared towards protection of the environment but also to ensure that developments do not cause serious and irreparable damage to the ecology and the environment. This suggests a broad canvas for the Act as also its creation., For the environmental forum tasked with implementation of the statutes mentioned in Schedule I, the concept of lis is beyond the usual understanding in civil cases where there is a party disturbing the environment and another party concerned for protection. Therefore, the Tribunal is primarily concerned with protection of the environment and preservation of natural resources. As a specialized forum, the Tribunal is expected to take preventive action, besides settling and adjudicating disputes and passing orders on all environment‑related questions., The Tribunal is not just an adjudicatory body but has to perform wider functions in the nature of prevention, remedy and amelioration. This aspect was specifically flagged in the 186th Law Commission Report. The Environment Court must have power to frame schemes and monitor them and also have power to modify the schemes from time to time. Several Supreme Court directions indicate that such a power is necessary to provide environmental solutions to grave problems and to issue directions to various departments. A comprehensive jurisdiction is now being exercised both by the Supreme Court and High Courts, and the proposed courts must have similar powers, including monitoring and modification of schemes., The Tribunal is empowered to carry out restitutive exercise for compensating persons adversely affected by environmental events. The larger discourse which informs such functions is related to distributive and corrective justice. Even in the absence of harm inflicted by human agency, in a situation of a natural calamity, the Tribunal will be required to devise a plan for alleviating damage. An inquisitorial function is also available for the Tribunal, within and without adversarial significance. Many of these functions do not require an active dispute, but the formulation of decisions., With the constitution of the Tribunal, many cases pending before the High Courts were transferred to the Tribunal. Justice Swatanter Kumar, speaking for the three‑Judge Bench in Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India, highlighted the Tribunal's role, stating that all matters instituted after the coming into force of the Act and covered under its provisions or Schedule I should stand transferred and can be instituted only before the Tribunal to avoid conflict of orders between the High Courts and the Tribunal. He also cautioned that cases filed and pending prior to the Act, involving questions of environmental laws or any of the seven statutes specified in Schedule I, should also be dealt with by the specialised tribunal, and courts may be well advised to direct transfer of such cases to the Tribunal in their discretion., The Tribunal's exercise of suo motu powers is somewhat distinct from those exercised by the constitutional courts. The Supreme Court and High Courts can foray into any issues under their constitutional mandate, but the Tribunal cannot travel beyond its environmental domain in reference to the scheduled enactments. However, as long as the sphere of action is not breached, the Tribunal's powers must be understood to be of the widest amplitude., Explaining the purpose for constituting the special court to deal with environmental issues, in Mantri Techzone (P) Ltd. vs. Forward Foundation, Justice S. Abdul Nazeer, writing for the three‑Judge Bench, observed that the Tribunal has been established under a constitutional mandate provided in Schedule VII, List I, Entry 13 of the Constitution of India, to implement the decision taken at the United Nations Conference on Environment and Development. The Tribunal is a specialised judicial body for effective and expeditious disposal of cases relating to environmental protection, conservation of forests and other natural resources, including enforcement of any legal right relating to the environment. The right to a healthy environment has been construed as part of the right to life under Article 21, and therefore the Tribunal has special jurisdiction for enforcement of environmental rights., The Supreme Court, in paragraphs 44‑46 of the same judgment, expressed that an interpretation in favour of conferring jurisdiction should be preferred rather than one taking away jurisdiction. It noted that the breadth of the Tribunal's powers under the statutory provisions and the scheduled enactments leaves no doubt that the provisions should be read broadly in favour of cloaking the Tribunal with effective authority., In Rajeev Suri vs. DDA, the Court clarified that the Tribunal is not a plenary body with inherent powers of a residuary character. It is a statutory body with limited mandate over environmental matters as and when they arise. The Tribunal cannot directly adjudicate on violations of fundamental rights beyond its environmental jurisdiction, and its merits review cannot traverse beyond the scope vested in it by the statute., The need for an expert body with extensive functions was articulated in Andhra Pradesh Pollution Control Board v. Prof. M. V. Nayudu (Retd.) and Ors., where Justice M. Jagannadha Rao referred to the Land and Environment Court of New South Wales, Australia, as an ideal model. He noted that it is a superior court of record composed of judges and technical assessors, with jurisdiction combining appeal, judicial review and enforcement functions, and that such a composition is necessary and ideal in environmental matters., Statutory tribunals in India are categorized under four sub‑heads: Administrative Tribunals under Article 323A, Tribunals under Article 323B, Specialized sector Tribunals, and Tribunals to safeguard rights under Article 21. The duties of the National Green Tribunal bring it within the ambit of the fourth category, creating a compelling proposition for wielding broader powers as delineated by the statute., Justice Ashok Bhushan, in State of Meghalaya vs. All Dimasa Students Union, observed that the object for which the power is given is to fulfil the objective of the National Green Tribunal Act, 2010. The Tribunal must exercise a wide range of jurisdiction and possess a wide range of powers to do justice in a given case. The power is given for the benefit of those who have a right to a clean environment, which they must establish before the Tribunal. The power is coupled with a duty to exercise such powers for achieving the objects, as reflected in the judgment of L. Hirday Narain v. Commissioner of Income Tax, where the Court held that when a statute invests a public officer with authority, it is imperative to exercise that authority in a manner appropriate to the case., The National Green Tribunal has been recognized as one of the most progressive tribunals in the world. Chief Justice Brian Preston of the Land and Environment Court of New South Wales observed that the Tribunal is an example of a specialised court to better achieve the goals of ensuring access to justice, upholding the rule of law and promoting good governance., The Tribunal, being sui generis, warrants consideration of its unique role. In Paramjit Kaur vs. State of Punjab, Justice S. Saghir Ahmad explained that the concept of sui generis is applied in international law when conventions do not cover a particular area, and the body entrusted with arbitration acts on its own and not under any law., In DG NHAI vs. Aam Aadmi Lokmanch, Justice S. Ravindra Bhat noted that a conjoint reading of Sections 14, 15 and the Schedules would lead one to infer that the Tribunal has circumscribed jurisdiction to deal with, adjudicate, and where needed, direct measures such as payment of compensation or restitutionary directions in cases where violation results from infraction of any enactment listed in the first schedule. However, the Court held that the power and jurisdiction under Sections 15(1)(b) and (c) are not purely restitutionary; they are remedial and, depending on the nature of the abusive practice, can also be preventive., The Tribunal, as a quasi‑judicial body exercising both appellate jurisdiction over regulatory bodies' orders (under Section 16) and original jurisdiction under Sections 14, 15 and 17, is an expert regulatory body whose technically qualified members can issue directions that impact not only the parties before it but also state agencies and departments, including general directions to prevent future environmental incidents., The Tribunal was conceived as a specialised forum not merely as a substitute for a civil court but to take over all environment‑related cases from the High Courts and the Supreme Court. Many of those cases transferred to the Tribunal originated in the superior courts, and it would be appropriate to assume that similar power to initiate suo motu proceedings should also be available to the Tribunal., The Tribunal is a sui generis institution with all‑encompassing jurisdiction to protect the environment. Besides its adjudicatory role as an appellate authority, it is also conferred with the responsibility to act as a supervisory body and to decide substantial questions relating to the environment. The necessity of a specialised body with expertise to handle multidimensional environmental issues allows for an all‑encompassing framework for environmental justice. Technical expertise required to address evolving environmental concerns demands a flexible institutional mechanism for effective exercise., Given the multifarious role envisaged for the Tribunal and the purposive interpretation which ought to be given to the statutory provisions, it is fitting to regard the Tribunal as having the mechanism to set in motion all necessary functions within its domain and, consequently, to take suo motu cognizance of matters for effective discharge of its mandate., Section 14 of the National Green Tribunal Act provides: (1) The Tribunal shall have jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and such question arises out of the implementation of the enactments specified in Schedule I. (2) The Tribunal shall hear the disputes arising from the questions referred to in sub‑section (1) and settle such disputes and pass orders thereon. (3) No application for adjudication of dispute under this section shall be entertained unless it is made within six months from the date on which the cause of action first arose, provided that the Tribunal may, if satisfied that the applicant was prevented by sufficient cause, allow it to be filed within a further period not exceeding sixty days., The provision omits to specify that an application is necessary to trigger the Tribunal into action. When the three prerequisites of Section 14(1) – civil case, substantial environmental question, and implementation of Schedule I enactments – are satisfied, the jurisdiction and power of the Tribunal get activated. Therefore, the Tribunal is not required to be triggered by an aggrieved or interested party alone; it can self‑ignite action either towards amelioration or prevention of harm even in the absence of an application., Section 14(2) functions as a corollary and comes into play when a dispute arises from the questions referred to in Section 14(1). Section 14(3) deals with the limitation period for applications. Where adjudication is involved, the function under Section 14(2) applies. When a case warrants the Tribunal's intervention, the functions under Section 14(1) can be undertaken without any formal application or adjudicatory process. Care must be taken to ensure unrestricted discharge of responsibilities under Section 14(1)., Other pertinent provisions relating to jurisdiction, interim orders, payment of compensation and review do not require any application or appeal for the Tribunal to pass necessary orders. Requiring an application would reduce its effectiveness and defeat the legal mandate given to the forum., The Tribunal is required to pass awards and orders, and the statute repeatedly uses the word 'decision'. It is appropriate to correlate the word decision to the Tribunal in its non‑adversarial or inquisitorial role, as suggested by the Law Commission., The duty to safeguard Article 21 rights cannot stand on a narrow interpretation. Procedural provisions must be allowed to fall in step with the substantive rights invoked in the environmental domain, in the larger public interest. The specialised forum is bestowed with the responsibility to ensure protection of the environment. To be effective, the Tribunal must have a public responsibility to initiate action when required to protect the substantive right of a clean environment, and procedural law should not be obstructive., Principle 10 of the Rio Declaration speaks of three fundamental rights – access to information, public participation and access to justice – as key pillars of environmental governance. Access to justice may be curtailed by illiteracy, lack of mobility, poverty or lack of technical knowledge. Polluters may be powerful entities able to skirt regulations. Thus, it may not always be feasible for individuals to approach the Tribunal, and the Tribunal in such exigencies must not be made dysfunctional.
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Tracing the origin of the Precautionary Principle, Scott Lafranchi in his treatise has expounded on the proactive role of the authorities in the following passage: Many consider the German development of Vorsorgeprinzip to signify the true creation of the precautionary principle, in light of the attention it focuses on long term planning to avoid damage to the environment, early detection of dangers to health and environment through comprehensive research, and acting in advance of conclusive scientific evidence of harm., The precautionary foundation of Vorsorgeprinzip has been described as an action principle that holds public authorities responsible for protecting the natural foundations of life and preserving the physical world for the present and future generations, and can therefore be used to counter the short‑termism endemic in all democratic, consumption‑oriented societies., The origin of the Precautionary Principle itself is rooted as an institutional obligation, by holding them primarily responsible for the environmental concerns and remedies., As earlier seen, Section 20 of the National Green Tribunal Act which includes the term decision, in addition to order and award, also requires the Tribunal to apply the Precautionary Principle and the statutory mandate being relevant is extracted: Tribunal to apply certain principles. The Tribunal shall, while passing any order or decisions or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle., The principle set out above must apply in the widest amplitude to ensure that it is not only resorted to for adjudicatory purposes but also for other decisions or orders to governmental authorities or polluters, when they fail to anticipate, prevent and attack the causes of environmental degradation., Two aspects must therefore be emphasized i.e. that the Tribunal is itself required to carry out preventive and protective measures, as well as hold governmental and private authorities accountable for failing to uphold environmental interests. Thus, a narrow interpretation for National Green Tribunal's powers should be eschewed to adopt one which allows for full flow of the forum's power within the environmental domain., It is not only a matter of rhetoric that the Tribunal is to remain ever vigilant, but an important legal onus is cast upon it to act with promptitude to deal with environmental exigencies. The responsibility is not just to resolve legal ambiguities but to arrive at a reasoned and fair result for environmental problems which are adversarial as well as nonadversarial., It would be apposite here to refer to Justice Benjamin Cardozo of the United States Supreme Court, who in his seminal treatise, The Nature of the Judicial Process, stated thus, It is true that codes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided. The above could be a pointer towards the preemptive functions of the National Green Tribunal as a sui generis body., The conceptual frameworks of environmental justice and equity should merit consideration vis‑vis the National Green Tribunal's domain and how its functioning and decisions can have wide implications in socio‑economic dimensions of people at large. The concept of environmental justice is a trifecta of distributive justice, procedural justice and justice as recognition. Environmental equity as a developing concept has focused on the disproportionate implications of environmental harms on the economically or socially marginalized groups. The concerns of human rights and environmental degradation overlap under this umbrella term, to highlight the human element, apart from economic and environmental ramifications. Environmental equity thus stands to ensure a balanced distribution of environmental risks as well as protections, including application of sustainable development principles., Voicing concerns about the disproportionate harm for the poor segments, Lois J. Schiffer (then Assistant Attorney General, Environment & Natural Resources Division, United States Department of Justice) and Timothy J. Dowling (then Attorney at ENRD) in their Reflections on the Role of the Courts in Environmental Law wrote the following evocative passage on the concept of environmental justice. Schlosberg defines environmental justice as focusing on whether minorities and low‑income people bear a disproportionate burden of exposure to environmental harms and any resulting health effects. In the past ten to fifteen years, this issue has crystallized a grass‑roots movement that combines civil rights issues with environmental issues, with a goal of achieving “environmental justice” or “environmental equity,” which is understood to mean the fair distribution of environmental risks and protection from environmental harms., There is also a need to focus on the interconnection between principles of procedural justice and distributive justice. The concern is to create a system which is affirmative enough to balance the disproportionate wielding of power between polluters and affected people. Environmental justice starts with distributive injustice. The rich and powerful derive the most benefit while suffering the least harm from environmentally harmful activities; conversely, the poor and minorities derive the least benefit but suffer the most harm. Further, those who benefit cause harm to the places where people live, work, play, and go to school, whereas the people who reside there do little or nothing to harm their community., When substantive justice is elusive for a large segment, disengaging with substantive rights at the very altar, for a perceived procedural lacuna, would surely bring in a process, which furthers inequality, both economic and social. An equal footing conception may not therefore be feasible to adequately address the asymmetrical relationship between the polluters and those affected by their actions. Instead, a recognition of the historical experience of marginalized classes of persons while accessing and effectively using the legal system, will allow for necessary appreciation of social realities and balancing the arm of justice., The law must be interpreted in such a manner as to foster further development of existing legal concepts by incorporating this sense of equity. The issues which this Supreme Court of India has had the occasion to examine have highlighted the limitations of the mechanisms to reach to the heart of environmental concerns. This Supreme Court of India has previously moulded the jurisdictional jurisprudence in favour of larger societal interest, whether that be in the form of Public Interest Litigation or widening the scope of locus standi. The identification of potential environmental justice issues is very important in determining how our enforcement efforts are working in minority and low‑income communities, and whether they are comparable to the enforcement efforts in other communities., In the backdrop of the above weighty concerns, this Supreme Court of India should advert to what Schiffer and Dowling have stated on the Blindfold of Lady Justice, which symbolizes the ideal of administering equal justice to everyone who comes to our Courts, regardless of race, creed, or economic class. The relevance of this concept is particularly apposite when we consider the inability of most marginalized communities to access the legal machinery., Proceeding with the above understanding, we can comfortably place the National Green Tribunal within the rubric of the larger environmental jurisprudence which has been informing this unique institution. The role of this Supreme Court of India in establishing the legal connect between matters of environmental concern and fundamental rights of citizens, has produced much academic literature. Amongst others, Armin Rosencranz and Shyam Divan in their writing Environmental Law And Policy In India, have noted that the field of laws pertaining to environmental concerns has been a fairly fertile ground for judicial innovations by this Supreme Court of India; moving the concept of environmental law from the realm of torts to interlink it with fundamental rights, liberalizing the concept of locus standi in environmental matters, exercising suo motu powers to reign in polluters, using expert committees to monitor implementation of Court orders, etc., By expanding the scope of Articles 21, 32, 48A, 51A(g), this Supreme Court of India has guaranteed the right to a pollution free environment for a holistic existence. Most crucially, the expansion of Right to Life under Article 21 by this Supreme Court of India has become a touchstone to determine many environmental concerns. In Subhash Kumar v. State of Bihar, this Supreme Court of India explicitly held that right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life., Adopting international principles and moulding them to Indian realities also became a focal concern, given the lacunae in regimes which may be exploited by those who may not have much concern for environmental degradation. Creation of the Absolute Liability Principle by this Supreme Court of India is a well recognized testament for this. It would thus be appropriate to state that much of the principles, institutions and mechanisms in this sphere have been created, on account of this Supreme Court of India's initiative. The constitutionally protected fundamental right to life and liberty has been extended through judicial creativity to cover unarticulated but implicit rights such as the right to a wholesome environment. The right was recognized as part of the right to life in 1991. The Court has since fleshed out the right to a wholesome environment by integrating into Indian environmental jurisprudence not just established but even nascent principles of international environmental law., It has been noted that the Supreme Court of India adopted the role of an amicus environment by threading together human rights and environmental concerns, resultingly developing a sui generis environmental discourse. There were both procedural and substantive innovations made, by entertaining Public Interest Litigation petitions, seeking remedies, including guidelines and directions in the absence of legislation. Many of the landmark cases which hold the fort to this day, were in recognition of the at‑risk nature of some populations. The creation of the National Green Tribunal itself was due in large part to the need expressed by this Supreme Court of India for such a forum., Justice T.S. Doabia in Environmental & Pollution Laws in India, has highlighted the larger societal concerns which have informed this Supreme Court of India's deliberation when dealing with environmental matters. The Supreme Court of India, in its interpretation of Article 21 of the Constitution of India, has facilitated the emergence of an environmental jurisprudence in India, while also strengthening human rights jurisprudence. The Courts have successfully isolated specific environmental law principles upon the interpretation of Indian statutes and the Constitution, combined with a liberal view towards ensuring social justice and the protection of human rights. The principles have often found reflection in the Constitution in some form, and are usually justified even when not explicitly mentioned in the statute concerned., Environmental jurisprudence in India has therefore been intrinsic to advancing a democratic, welfare oriented legal regime. Issues affecting the ecology and the environment must have a broad perspective and should have a society centric approach. Furthermore, the very nature of ecological and environmental issues has the propensity for rapid deterioration. Many such sensitive matters, as has been noted, stood transferred to the National Green Tribunal, with the aim that those would be dealt with expediently with the required technical expertise and legal sophistication. The proactiveness of the superior Court was surely expected to be seen in the Tribunal's approach., Analyzing the concept of the functioning of the National Green Tribunal and its role within the broader concept of the environmental rule of law, Justice D.Y. Chandrachud speaking for a three‑judge Bench in H.P. Bus Stand Management & Development Authority v. Central Empowered Committee said that, The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges of how they have been shaped by humanity's interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity's actions have charted. The environmental rule of law seeks to facilitate a multidisciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognizes that the law element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts., It is this environmental rule of law that has been encapsulated with the National Green Tribunal's creation at this Supreme Court of India's behest. Professor Domenico Amirante in a comparative analysis of similar bodies across the world notes that, With reference to the judicial enforcement of environmental law which as we have seen should be considered an important condition not only for sustainable development but also for the sustainability of the legal environmental order the National Green Tribunal of India seems to be the most comprehensive and promising among the specialized environmental Courts created in Asia over the last decade. The National Green Tribunal therefore, is the institutionalization of the developments made by this Supreme Court of India in the field of environment law. These progressive steps have allowed it to inherit a very broad conception of environmental concerns. Its functions therefore, must not be viewed in a cribbed manner, which detracts from the progress already made in the Indian environmental jurisprudence., Before we set out our conclusion, we acknowledge the able contribution of Mr. Anand Grover as amicus curiae, assisted by Ms. Astha Sharma, AOR who were requested to assist the Supreme Court of India on the central issue of suo motu jurisdiction of the National Green Tribunal., The National Green Tribunal Act, when read as a whole, gives much leeway to the National Green Tribunal to go beyond a mere adjudicatory role. The Parliament's intention is clearly discernible to create a multifunctional body, with the capacity to provide redressal for environmental exigencies. Accordingly, the principles of environmental justice and environmental equity must be explicitly acknowledged as pivotal threads of the National Green Tribunal's fabric. The National Green Tribunal must be seen as a sui generis institution and not unus multorum, and its special and exclusive role to foster public interest in the area of environmental domain delineated in the enactment of 2010 must necessarily receive legal recognition of this Supreme Court of India., The environmental impacts on climate change are gaining increasing visibility in the shape of uncertain rains, species extinction, loss of natural habitat and so on. These also have the propensity to diminish fresh water resources, reduce agricultural yields and impact public health, particularly in the cities. The flooding and erosion in riverine and coastal areas are matters of serious concern. Governmental assessment of India's increased vulnerability to such changes in the near future also exists with many countries declaring climate emergencies and many others being urged to follow suit., Therefore, the nature of ecological imbalance which is visible even in our own times may cascade, and the unforeseen injustice of the future may not be capable of being handled within the frontiers set forth today. The long term and very often irreparable environmental damage which are expected to be arrested by the National Green Tribunal, urge this Supreme Court of India to advert to what is termed as the Seventh Generation sustainability principle, or the Great Law of the Iroquois which requires all decision making to withstand for the benefit of seven generations down the line., It is vital for the wellbeing of the nation and its people, to have a flexible mechanism to address all issues pertaining to environmental damage and resultant climate change so that we can leave behind a better environmental legacy, for our children, and the generations thereafter., In circumstances where adverse environmental impact may be egregious, but the community affected is unable to effectively get the machinery into action, a forum created specifically to address such concerns should surely be expected to move with expediency, and of its own accord. The potentiality of disproportionate harm imposes a higher obligation on authorities to preserve rights which may be waylaid due to such restrictive access. It is also noteworthy that the global impacts of climate change will fall disproportionately on minority and low‑income communities. Thus, an affirmative role, beyond mere adjudication at the instance of applicant, is certainly required for serving the ends of environmental justice, as the statute itself requires of the National Green Tribunal. We cannot validate an argument which furthers uncertainty to justify the role of a spectator, if not inaction, and would most assuredly result in injustice., The National Green Tribunal, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no‑one knocks on its door. The forum itself has correctly identified the need for collective stratagem for addressing environmental concerns. Such a society centric approach must be allowed to work within the established safety valves of the principles of natural justice and appeal to the Supreme Court of India. The hands‑off mode for the National Green Tribunal, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice., It would be procedural hairsplitting to argue that the National Green Tribunal could act upon a letter being written to it, but learning about an environmental exigency through any other means cannot trigger the National Green Tribunal into action. To endorse such an approach would surely be rendering the forum procedurally shackled or incapacitated., When the Registry of the National Green Tribunal does indeed receive a communication or letter, including matters published in media, it may cause to initiate suo motu action by inviting attention of the National Green Tribunal to such matters in the form of office report. Such circumstances would however require a notice to be given to the sender of the communication or author of the news item, as the case may be, to assist the National Green Tribunal in the course of hearing and to substantiate the factual matters. It must also be said that the exercise of suo motu jurisdiction does not mean eschewing the principles of natural justice and fair play. In other words, the party likely to be affected should be afforded due opportunity to present their side, before suffering adverse orders., One could admit to the argument of danger of suo motu jurisdiction, if the National Green Tribunal was acting outside its domain. But when it is legitimately working within the contours of its statutory mandate and with procedural safeguards clarified above in play, the nature of the trigger itself viz. a letter or a suo motu initiation, cannot be the basis to curtail the role and responsibility of the specialized forum., Institutions which are often addressing urgent concerns gain little from procedural nitpicking, which are unwarranted in the face of both the statutory spirit and the evolving nature of environmental degradation. Not merely should a procedure exist but it must be meaningfully effective to address such concerns. The role of such an institution cannot be mechanical or ornamental. We must therefore adopt an interpretation which sustains the spirit of public good and not render the environmental watchdog of our country toothless and ineffective., Let us now hark back to the dialogues of the two protagonists, in Waiting for Godot, the play written by Samuel Beckett with which we started this judgment. At the end of the deliberations, we find ourselves saying that the National Green Tribunal must act, if the exigencies so demand, without indefinitely waiting for the metaphorical Godot to knock on its portal. The preceding discussion advises us to answer the pointed question in the affirmative. It is accordingly declared that the National Green Tribunal is vested with suo motu power in discharge of its functions under the National Green Tribunal Act., Having answered the common legal issue involved in all these cases regarding the suo motu jurisdiction of the National Green Tribunal, we direct delinking of these cases for now being heard separately on merits. Indeed, if the cases emanate from same/common order of the National Green Tribunal, such cases be heard together. Registry may do the needful and post the matters on 25.10.2021 for direction and fixing date of hearing, before the Bench presided over by Justice A.M. Khanwilkar. For the purpose of further hearing, the respective cases shall not be treated as part‑heard before this Bench.
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In the High Court of Judicature at Bombay, Criminal Appellate Jurisdiction, Criminal Appeal No. 1301 of 2012, the State of Maharashtra, through Paud Police Station, Appellant, versus Dr. Anil Kacharu Shinde, Respondent. Mr. S. H. Yadav, APP for the appellant. Mr. Sandeep S. Salunkhe for the respondent. CORAM: Justice Jitendra Jain. Reserved on: 15th September 2023. Pronounced on: 3rd October 2023. This appeal is filed by the appellant/original complainant against the judgment dated 31st January 2012, delivered by the Special Judge (under the Prevention of Corruption Act, 1988), Pune, acquitting the respondent-original accused from charges under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988., On 27th September 1995, the respondent/accused was appointed for the post of medical officer under the orders of the Governor of the State of Maharashtra by the Principal Secretary. At the relevant time, the accused was posted as medical officer at Rural Hospital, Paud, District Pune. It is the claim of the complainant, Laxman Tukaram Pingale, that the respondent/accused sought a bribe of Rs.100 for the purpose of issuing a medical certificate to certify his injuries. Mr. Pingale stated that he was assaulted by his nephew on 12th February 2007 and, due to the injury, lodged a complaint with Paud Police Station against his nephew. The police officer, Shri Shaikh of Paud Police Station, gave him a requisition letter to go to Gramin Rugnalaya Paud and to get himself medically checked. The respondent/accused, Dr. Anil Shinde, treated him and when Mr. Pingale sought a medical certificate to submit to the Police Station, it is alleged that the respondent/accused demanded Rs.100 for the purpose of issuing the certificate. Mr. Pingale thereafter made a complaint to the Anti-Corruption Bureau and a trap was laid on 15th February 2007 by the Anti-Corruption Bureau. However, on 15th February 2007 when the team of the Anti-Corruption Bureau visited the hospital, they were informed that the respondent/accused was on leave and therefore the trap was called off., On 20th February 2007, Mr. Pingale and the officers of the Anti-Corruption Bureau laid a second trap and the respondent/accused fell into the trap; thereafter, proceedings were initiated to prosecute the respondent/accused under the Prevention of Corruption Act. The sanction for prosecuting the respondent/accused was granted on 6th December 2008 by Shri S. B. Bhoir, Under Secretary to the Government of Maharashtra. On 16th June 2011, the Special Judge, Pune, explained the charge to the respondent/accused that he was being charged for an offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act. The respondent/accused pleaded not guilty and the case was tried by the Special Judge. The prosecution led evidence of Shri Laxman Pingale (Witness 1), complainant; Shri Govind Nipunge (Witness 2), one of the Panch; Ms. Radhika Phadake (Witness 3), Inspector, Anti-Corruption Bureau, Pune; and Shri Sharad Bhoir (Witness 4), Under Secretary, Public Health Department. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was also recorded. The learned Special Judge, after perusing the evidence and hearing the public prosecutor for the State and the advocate for the accused, delivered the judgment acquitting the accused., Briefly, the Special Judge observed that the sanction for prosecuting the respondent/accused was granted by the Under Secretary, who was not the competent authority to grant the sanction as per Section 19(1)(b) of the Prevention of Corruption Act. Further, the sanction was granted without application of mind. The learned Special Judge also observed that the respondent/accused was present on 15th February 2007 when the first trap was laid and, therefore, the prosecution's claim that the respondent/accused was on leave on that date was found to be false. The Special Judge further observed that the respondent/accused had sent the medical certificate to the Police Station on 13th February 2007; therefore, the complainant's charge that he demanded a bribe for the issue of the certificate was not correct. The Special Judge also stated that a tape‑recorded conversation was not produced. In the light of these observations and reasoning, the Special Judge held that the prosecution failed to establish that the respondent/accused demanded illegal gratification by misusing his position as a public servant and, therefore, upheld the order of acquittal., Mr. Yadav, learned APP for the appellant/original complainant, and Mr. Salunkhe, learned advocate for the respondent/accused, were heard and, with their assistance, the records of the lower authorities were perused., Analysis and reasoning: It is important to reproduce relevant sections of the Prevention of Corruption Act before I propose to give my reasoning. Section 7 of the Prevention of Corruption Act, as it stood at the relevant time, reads as follows: “Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatsoever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.”, Section 13(1)(d) of the Prevention of Corruption Act, as it stood at the relevant time, reads: “Criminal misconduct by a public servant: (1) A public servant is said to commit the offence of criminal misconduct, (d) if he (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.” Section 13(2) reads: “Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.”, Section 19 reads as follows: “(1) No Court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction (save as otherwise provided in the Lokpal and Lokayuktas Act, 2013) – (a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government; (b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office.”, The respondent/accused was appointed by the Secretary to the Government of Maharashtra by appointment letter dated 27th September 1995. The sanction for prosecution was granted by Witness 4, Under Secretary to the State of Maharashtra. In his cross‑examination, Witness 4 admitted that he was fifth in the hierarchy after the Principal Secretary, Secretary, Joint Secretary and Deputy Secretary. He also admitted that, as per the Government Rules, only the appointing authority is empowered to remove the government servant. He admitted that he had not seen the appointment letter by which the respondent/accused was appointed by the Secretary to the State of Maharashtra. In his cross‑examination, he also admitted that in cases of minor offences, sanction of prosecution should not be granted and a departmental inquiry should be ordered. He admitted that he did not call for any papers relating to the matter nor did he put the note to the superior officer before granting the sanction to prosecute the respondent/accused. Section 19(1)(b) of the Prevention of Corruption Act provides that in the case of a person employed in connection with the affairs of the State and not removable from his office save by or with the sanction of the State Government, the sanction for prosecution should be granted by the State Government. Section 19(1)(c) provides that in the case of any other person, the sanctioning authority would be the authority competent to remove the accused from his office. In the instant case, Witness 4, Under Secretary, admitted that the appointing authority of the respondent/accused is the Principal Secretary. Therefore, under Section 19, the power to remove the respondent/accused lies with the Principal Secretary, who should have sanctioned the prosecution, not the Under Secretary. Consequently, the prosecution should not have been initiated under the Prevention of Corruption Act without obtaining the sanction of the appropriate authority., Therefore, the sanction having not been obtained by the competent authority, the impugned judgment acquitting the respondent/accused does not call for any interference. The view taken by me is supported by a decision of the Coordinated Bench of this Court in the case of State of Maharashtra v. Ramchandra Sudam Ingale and Gopal v. State of Maharashtra., Witness 4, in his cross‑examination, also admitted that he did not call for any papers relating to the matter nor had he discussed the issue with his superior before granting the sanction. He thereby admitted that he had not applied his mind to the facts of the case before granting the sanction. Therefore, even on this count, the sanction granted by the Under Secretary (assuming he is empowered) is without application of mind and such a mechanical sanction does not pass the test of Section 19 of the Prevention of Corruption Act for launching the prosecution., Witness 3, Inspector of the Anti‑Corruption Bureau, admitted after seeing the attendance sheet that the respondent/accused was on duty on the day when the first trap was arranged on 15th February 2007; therefore, the appellant/complainant's contention that the respondent/accused was absent on that date was found to be false. Witness 3 also accepted in cross‑examination that, as per rule, the MLC certificate is handed over to the Police. If that is so, then the case of Mr. Pingale, the complainant, appears not correct because, according to Mr. Pingale, the respondent/accused refused to give him the certificate except on payment of Rs.100, whereas the certificate was already handed over to the police station on 13th February 2007. Therefore, even on this ground the impugned judgment does not call for any interference., In the cross‑examination of Witness 2, the Panch who was a witness to the trap admitted that the respondent/accused did not demand money from the complainant, Mr. Pingale. He also admitted that he had signed the panchnama without being present at the time of laying the trap. In the light of this admission, the veracity of such a witness is in doubt to be relied upon by the Court for implicating the respondent/accused., Examination of the evidence recorded by the Special Judge, in my view, cannot be said to show that the appellant/original complainant has proved the charges under the Prevention of Corruption Act beyond doubt. As observed above, there are a lot of inconsistencies in the evidence of the witnesses; therefore, the order of acquittal does not require any interference by this Court., The advocate for the respondent/accused brought to my attention the evidence of Witness 3, Inspector of the Anti‑Corruption Bureau, wherein Witness 3, in her cross‑examination, stated that she was aware of a Government G.R. which states that if the bribe amount is up to Rs.100, it is considered a trivial amount. On a query raised by me to produce such a G.R., neither the advocate for the respondent/accused nor the advocate for the appellant could produce the same. However, provisions of Section 20 of the Prevention of Corruption Act give an indication about dealing with trivial matters. Section 20(1) provides that if, in trial punishable under Sections 7, 11, 13(1)(a) or 13(1)(b), the charges are proved, it shall be presumed that the accused, with motive or reward or inadequate consideration, has accepted gratification, etc. Similar presumption appears in Section 20(2) with regard to trial of offence under Sections 12 or 14(b). Section 20(3) provides that if gratification is trivial then no interference of corruption may be drawn. The issue to be examined is whether the offence in the present case is trivial. In the instant case, the allegation is acceptance of a bribe of Rs.100 in the year 2007. The amount appears to be too small in 2007 and, moreover, in 2023 when the appeal is being heard against the acquittal. Assuming that the appellant‑complainant is able to prove the charges (although I have already held that they have failed to prove the charges), in my view, after considering the quantum at the relevant time, this could be treated as a trivial matter to uphold the acquittal order. It is relevant to note the decision of this High Court in Bhagwan Jathya Bhoir v. State of Maharashtra, where the Court observed that in case of a trivial matter, the provisions of the Prevention of Corruption Act should not be invoked, but a departmental proceeding could have been initiated. In that case, the amount involved was Rs.30 and the appeal was decided in 1991. Applying that ratio, the amount of Rs.100 can be considered a trivial amount, so as not to call for any interference in the order of acquittal. I further draw support from the decision of the Coordinated Bench of this Court in Hanmantappa Murtyappa Vijapure v. State of Maharashtra, where the Court considered a bribe of Rs.150 as trivial for launching criminal prosecution and the appropriate action could have been departmental inquiry., The view taken by the trial court is a plausible view based on appreciation of evidence. Therefore, in view of the above discussion, the order of acquittal passed by the learned Special Judge would not require interference and the present appeal is to be dismissed.
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Case: Writ Petition No. 16336 of 2021. Petitioner: Shifa Hasan and another. Respondent: State of Uttar Pradesh and others. Counsel for petitioner: Satyendra Kumar Singh. Honourable Manoj Kumar Gupta, Judge. Honourable Deepak Verma, Judge. Heard learned counsel for the petitioners and learned Standing Counsel for the State respondents., The petitioners claim that they are in love with each other and are living together of their own free will. They belong to different religions and this fact is not acceptable to respondent number five, the father of petitioner number one., Both petitioners are adults. The date of birth of petitioner number one, as per high school mark sheet, is 25 June 2002 and that of petitioner number two is 20 August 1997, making them 19 and 24 years of age respectively. Petitioner number one filed an application for conversion from Muslim to Hindu on 17 February 2021. The District Magistrate called for a report from the concerned police station, which also confirmed that both are adults., The police report states that the father of petitioner number two is not agreeable to the marriage whereas his mother is ready for the same. It further states that both parents of petitioner number one are also not agreeable to their marriage., In this background, the petitioners have approached the Honourable High Court of Uttar Pradesh praying for a writ of mandamus commanding the State respondents to provide security to the petitioners as they apprehend a threat to their life., It cannot be disputed that two adults have the right of choice of their matrimonial partner irrespective of the religion professed by them. As the present petition is a joint petition by the two individuals who claim to be in love with each other and are adults, in our considered opinion, nobody, not even their parents, could object to their relationship., The writ petition is disposed of with direction to the third respondent to ensure that the petitioners are not subjected to any harassment by respondent number five or by any other person in connection with their relationship., This order will not be taken to mean that the Honourable High Court of Uttar Pradesh has expressed any final opinion regarding the age of the petitioners as the findings are only prima facie in nature for the purposes of deciding the present controversy. It is clarified that if any First Information Report is registered against any of the petitioners, the instant order will not impede investigation.
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Criminal Original Petition (Miscellaneous Division) No. 1344 of 2022 Muruganantham Petitioner. The Director General of Police, Police Headquarters, No. 1, Radhakrishnan Salai, Mylapore, Chennai 600004. The Deputy Inspector General of Police, Trichy Zone, Trichy. The Superintendent of Police, Thanjavur District, Thanjavur. The Inspector of Police, Thirukattupalli Police Station, Thanjavur District (Crime No. 40 of 2022). The Immaculate Heart of Mary Society constituted by the Roman Catholic Congregation of the Order of Immaculate Heart of Mary, Pondicherry, represented by its Provincial Rev. Dr. Sr. Rosari, daughter of Palraj, Respondents (fifth respondent impleaded by order dated 28 January 2022 in Criminal Miscellaneous Petition (Miscellaneous Division) No. 1250 of 2022). Prayer: Criminal Original Petition filed under Section 482 of the Criminal Procedure Code to transfer the investigation of Crime No. 40 of 2022 from the file of the fourth respondent to the Central Bureau of Investigation Department or any other independent investigating agency under the supervision of the first respondent and to complete the investigation and file a final report within a period to be fixed by the Madras High Court., For the petitioner: Mr. M. Karthikeya Venkatachalapathy. For the respondents: Mr. T. Senthil Kumar, Additional Public Prosecutor for respondents 1 to 4. For the intervenor: Dr. Fr. Xavier Arulraj, Senior Counsel, for Ms. Amala Irudhaya Mary and Mr. Menitto. This case concerns posthumous justice to a child who set the criminal law in motion and who is now deceased., The child was a student studying in the 12th standard at Sacred Heart Higher Secondary School, Michealpatti, and residing in St. Michaels Boarding, the hostel run by the school. She had been under the care of the institution since the 8th standard. On the evening of 9 January 2022, while in the hostel, she consumed pesticide and began to vomit shortly thereafter. The hostel cook took her to a local nurse who administered an injection and gave some tablets, but she continued vomiting. The hostel authorities informed the petitioner, her father, about her condition. The petitioner came to the hostel and took the child home. The child did not disclose to the hostel authorities or her parents that she had consumed pesticide. She was given treatment for stomach pain. As her condition worsened, she was taken to a local hospital and subsequently admitted to Thanjavur Medical College Hospital, Thanjavur on 15 January 2022 at around 5.00 p.m. Dr. Soundarya determined the actual cause after examining her scan report., An intimation was sent to Thirukattupalli Police Station from the Government Hospital. On 16 January 2022 at around 9.30 a.m., a trainee Sub-Inspector recorded the child's statement. Crime No. 40 of 2022 was registered for offences under Sections 305 and 511 of the Indian Penal Code and Sections 75 and 82(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015. On the same day, from 4.25 p.m. to 4.50 p.m., Judicial Magistrate No. I, Thanjavur, recorded her statement after obtaining a medical opinion from the duty doctor regarding her fitness. On 19 January 2022 at around 3.30 p.m., the child passed away. Subsequently, an alteration report was filed and the investigation was taken over by the Inspector of Police, All Women Police Station, Thiruvaiyaru., The following day, a video of the child alleging that the correspondent of the school had spoken to her parents about conversion to Christianity was circulated on social media. The petitioner submitted a complaint enclosing the video to the Superintendent of Police, Thanjavur District. Since the identity of the victim was not suppressed in the video, Thanjavur Police registered a criminal case in that regard. The Superintendent of Police held a press conference stating that the preliminary investigation conducted by the police ruled out the conversion angle., Initial directions issued by the Madras High Court: Mention was made on the afternoon of 21 January 2022 for emergent listing. Based on the submissions made by the petitioner's counsel, the Court directed that a forensic autopsy be performed. Later, the office of the Additional Public Prosecutor, Madurai Bench informed the Registry that the autopsy had already been done and sought clarification on whether a second postmortem had been directed. The Registry brought this to the notice of the Honorable Administrative Judge, who permitted a special sitting on 22 January 2022. After ascertaining the petitioner's views through video conferencing, the Court clarified that there was no need for a second autopsy. The petitioner also agreed to receive the child's body. The Court directed the recording of the statements of the petitioner and his wife under Section 164 of the Criminal Procedure Code., The matter was again listed on 24 January 2022. By then, the recorded statements of the parents had been received in a sealed cover. After reviewing their contents, the Madras High Court directed the Court Officer to hand them over to the investigation officer. The Court asked the petitioner who had recorded the video; the petitioner replied that, at his instance, one Muthuvel had recorded it. The Court sought from the investigation officer whether she suspected the authenticity of the video. The investigation officer stated that the voice was indeed that of the child, but for investigative purposes she required the original mobile phone and SIM card with which the video was recorded. Accordingly, the Court directed that Mr. Muthuvel appear before the Investigation Officer on 25 January 2022 and hand over the original mobile phone. Further directions were issued for the submission of forensic reports. The case was ordered to be called on 28 January 2022., When the matter was taken up on 28 January 2022, Shri Karthikeya Venkatachalapathy, the learned counsel appearing for the petitioner, submitted that, as a result of certain subsequent developments, the petitioner had completely lost faith in the State police. He prayed for transfer of the investigation to the Central Bureau of Investigation. The counsel pointed out that a senior minister had given a public interview absolving the school authorities of the charge of conversion. The Education Department had conducted a departmental enquiry and gave a clean chit to the school administration. He also argued that the State police had selectively leaked information to build a counter‑narrative. He filed additional typed papers and relied on a series of case laws., The learned Additional Public Prosecutor appearing for the State submitted that no case for transfer of investigation had been made out and that the investigation was proceeding on the correct lines. Immediately after receiving intimation from Thanjavur Medical College Hospital, the police promptly went to the victim and recorded her statement. The First Information Report was registered without delay. The investigation was taken up by Shri Govindarajan, Sub‑Inspector of Police, Thirukattupalli Police Station. He recovered the bottle of pesticide and the student handbook 2018‑19 in which the child had allegedly written that she was waiting for death. The recovered articles were sent for forensic analysis. The child's dying declaration was also recorded by the Judicial Magistrate on the same day. On 17 January 2022, nine witnesses were examined. The hostel warden against whom the child had made allegations was arrested on 18 January 2022 and remanded to judicial custody. Following the child's demise on 19 January 2022, an alteration report was filed. The investigation was taken over by the Inspector of Police, All Women Police Station, Thiruvaiyaru., At this stage, a video of the child apparently implicating the correspondent of the school was circulated on social media. The learned Additional Public Prosecutor commented that this was a mischievous act by vested interests and that, instead of handing over the privately taken video to the police, an edited version was circulated, generating controversy. The petitioner, under the influence of certain communal organisations, did not cooperate for the inquest and postmortem. Since a postmortem had to be conducted without delay in a case of this nature, it was performed by forensic doctors and the entire procedure was video‑graphed. Even thereafter, the petitioner was not willing to receive the body. As certain communal organisations had taken over the stage, the District Superintendent of Police held a press conference to dispel misgivings, stating that a careful reading of the transcript would show that the investigation was being conducted from all angles. He emphasized that the directions given by the Madras High Court had been scrupulously complied with. Although the Court had directed that forensic reports be obtained by 27 January 2022, the forensic laboratories sought an additional two weeks to submit their reports. Once the reports are received, further steps will be taken, while the examination of witnesses continues., The learned Additional Public Prosecutor seriously faulted the conduct of the petitioner and Mr. Muthuvel, who had recorded the video, for not cooperating with the investigation, stating that it would be unfair to prejudge the issue at this stage. The petitioner and a few communal organisations alleged that the school management attempted to convert the child to Christianity and, since the move was rebuffed, the child was harassed by the hostel warden in various ways, leading the child to take the extreme step. This allegation has been contested by the school management. The investigation cannot be expected to proceed on a single track; the investigator must act with an open mind. Many classmates have been examined and all stated that there was no pressure or suggestion to convert to Christianity. Local residents echoed the same. Several students reported that the child's mother died about eight years ago, her father remarried, and the child was harassed by the step‑mother. To escape the torture by the step‑mother, the child had joined the school as a hosteller and was unwilling to go home even during holidays. The Superintendent of Police has nominated a directly recruited Deputy Superintendent of Police, Ms. Brindha, to investigate the matter. According to him, the investigation is being conducted impartially and it is irresponsible to question it. He commented on the cryptic nature of the petition, which contained hardly three paragraphs, and called upon the Madras High Court to ignore the comments made across the bar and in the air. He also relied on the following case laws: AIR 1945 PC 18 (King Emperor v. Khwaja Nazir Ahmad), AIR 1968 SC 117 (Abhinandan Jha & Ors. v. Dinesh Mishra and Ors.), AIR 1970 SC 786 (S. N. Sharma v. Bipen Kumar Tiwari & Ors.), 1980 527 (State of Haryana and others v. Ch. Bhajan Lal and others), 1994 CriLJ 1981 (Joginder Kumar v. State of U.P. & Ors.), 1995 AIR SCW 2212 (Director, CBI & Ors. v. Niyamavedi rep. By its member K. Nandini, Advocate & Ors), AIR 2002 SC 1856 (P. Ramachandra Rao v. State of Karnataka), 2003 CriLJ 3117 (Union of India v. Prakash P. Hinduja & Anr.), (2003) 2 SCC 649 (M. C. Abraham and Anr. v. State of Maharashtra and Ors), AIR 2008 SC 1614 (Divine Retreat Centre v. State of Kerala & Ors), 2009 (10) SCC 488 (D. Venkatasubramaniam and Ors. v. M. K. Mohan Krishnamachari and Ors), (2019) 9 SCC 24 (P. Chidambaram v. Directorate of Enforcement), AIR 2020 SC 2386 (Arnab Ranjan Goswami v. Union of India), AIR 2021 SC 1918 (M/s. Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra)., The core submission of the Additional Public Prosecutor is that the Madras High Court will not be justified in interfering at the investigation stage and that it is not for the Court to micro‑manage the investigation or issue directions that the investigation proceed only on particular lines. The province of investigation is exclusively reserved for the executive. He urged the Court not to violate the sacred principle of separation of powers or indulge in judicial overreach and to throw out the petition as devoid of merit., The school in question is run by the Roman Catholic Congregation of the Order of Immaculate Heart of Mary, Pondicherry. It filed Criminal Miscellaneous Petition (Miscellaneous Division) No. 1250 of 2022 to implead in the present proceedings. Although the implead petitioner is neither the de facto complainant nor the accused, in the interest of justice the Court heard Dr. Fr. Xavier Arulraj, the learned Senior Counsel appearing for the Congregation. They filed two affidavits, one in support of the petition to implead and another by e‑mail, the latter styled as confidential, whose contents are circulating on social media. The learned Senior Counsel submitted that the Congregation was founded in 1844 and runs a number of schools and charitable institutions. Sacred Heart Primary School was established in 1859, upgraded to a middle school in 1923, became a high school in 1983, and a higher secondary school in 1998. It receives government aid for classes up to the 10th standard. Of the 786 students, 504 are Hindus, and in the hostel 42 of 52 students are Hindus. The Senior Counsel vehemently denied any allegation of attempting to convert the child to Christianity, stating that certain groups are trying to besmirch the school's reputation., The learned Senior Counsel launched a frontal attack on the petitioner and his wife, alleging that the petitioner is an alcoholic. He stated that the child's mother had died about eight years ago and the petitioner had remarried, and that the step‑mother had been treating the child cruelly. He noted that two years earlier the child helpline had received complaints and officials had conducted an enquiry. The child had shared her feelings about the domestic situation with friends and classmates and was also suffering from a dermatological issue for which she was receiving treatment. According to the Senior Counsel, the domestic situation must have been so depressing that it pushed her to commit suicide. He claimed that the so‑called dying declaration was engineered by the step‑mother and that the child had been tutored to falsely implicate Sister Saghayamary, who had been caring for the child as her own daughter and paying her school and hostel fees. He also alleged that Mr. Muthuvel, who recorded the video, is a hate‑monger and that a criminal case had previously been registered against him for fomenting communal trouble. The Senior Counsel added that the school management is extending its fullest cooperation and has intervened only to set the record straight., The petitioner is the father of the deceased child. In the petition, the original prayer was that the investigation be entrusted to the Central Bureau of Investigation Department or another agency under the supervision of the Director General of Police, Tamil Nadu, indicating that although the petitioner had lost faith in the District Police, he retained confidence in the State Police. However, in the final hearing, the original prayer was withdrawn and the request was for transfer of investigation in accordance with the legal principles governing transfer of investigation as laid down by the Honorable Supreme Court., In R. P. Kapur v. State of Punjab (AIR 1960 SC 866), it was observed that it is of utmost importance that the investigation into criminal offences be free from any objectionable features or infirmities that could legitimately lead to the grievance that the investigation is being conducted unfairly or with any ulterior motive. Although that decision referred only to the accused, subsequent decisions have held that a victim of crime is equally entitled to a fair investigation (see Nirmal Singh Kahlon v. State of Punjab and Others (2009) 1 SCC 441). Fair trial and fair investigation are now part of the constitutional rights guaranteed under Articles 20 and 21. Therefore, the investigation must be fair, transparent and judicious, as required by the rule of law. The investigating agency cannot be permitted to conduct a tainted or biased investigation; the investigation officer's impartial conduct must dispel any suspicion regarding its genuineness and must bring out the real unvarnished truth (see Babubhai v. State of Gujarat (2010) 12 SCC 254). In K. V. Rajendran v. Superintendent of Police, Central Bureau of Investigation Department (2013) 12 SCC 480, it was held that transfer of investigation can be ordered a) where it is necessary to do justice and instil confidence in the investigation, b) where a fair, honest and complete investigation is required, c) where investigation by the State police lacks credibility, d) where high State officials and authorities are involved and likely to influence the investigation, and e) where the investigation is tainted or biased. In Pooja Pal v. Union of India (2016) 3 SCC 135, it was held that justice should not only be done but also appear to have been done. This principle applies to investigations as well; if an agency appears unable to discharge its functions fairly, the Court can intervene to effect a transfer of investigation., There is no dispute regarding the timeline of events. The child consumed pesticide on 9 January 2022. Her statement was recorded by the police on 16 January 2022 at 9.30 a.m. In the evening of the same day, the Judicial Magistrate also recorded her dying declaration. In both the police statement and the statement before the Judicial Magistrate, the child unambiguously accused the hostel warden of burdening her with non‑academic chores, and, unable to bear them, she consumed the pesticide. Consequently, the hostel warden, Sister Saghayamary, was arrested and remanded to judicial custody on 18 January 2022. The child died at about 3.30 p.m. on 19 January 2022. On 20 January 2022, the private video implicating the correspondent was circulated on social media. The petitioner filed a fresh petition before the Superintendent of Police, Thanjavur, enclosing the video., Instead of filing an alteration report based on the petitioner's complaint, Crime No. 77 of 2022 was registered at the Thanjavur Medical College Hospital Police Station for offences under Sections 153, 504, 505(1)(b), 505(2) of the Indian Penal Code, read with Section 67 of the Information Technology Act, and Section 74(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Ms. Ravali Priya, I.P.S., Superintendent of Police, Thanjavur District, held a press conference. When questioned by a reporter, she asserted that the preliminary enquiry had not established a conversion angle. This statement was unwarranted because the private video was already in circulation and the child's parents had complained of an attempt to convert the child to Christianity. By stating that the conversion angle was ruled out, the Superintendent brushed aside the petitioner's written complaint supported by the video. Consequently, the petitioner was justified in fearing that an investigation by the District Police would be biased, although he retained faith in the State Director General of Police when he filed the petition., The author expresses puzzlement at the reaction of the Thanjavur Superintendent of Police, likening it to contact with a live electric wire, given that an allegation of attempted conversion had been made. The school is run by a religious congregation. The Holy Bible states: 'Therefore go and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything I have commanded you' (Matthew 28:19‑20). In Mark 16:14‑18, Jesus says: 'Go into all the world and preach the gospel to every creature. Whoever believes and is baptized will be saved, but whoever does not believe will be condemned.' This is referred to in Christian theology as the Great Commission. In a literary review published in The Hindu magazine on 30 January 2022, Sudipta Datta discusses Maria Aurora Couto's 'Goa: A Daughter's Story', which examines how Goan society developed links in response to conversion, Christianisation and colonisation, and how, despite being divided along religious lines by Portuguese colonial policies, Goan society retained communal harmony due to a strong sense of community., The film 'Serious Men', starring Nawazuddin Siddiqui, portrays the life of Ayyan Mani, a Tamil Dalit settled in Mumbai. In a scene, a dialogue occurs between Ayyan Mani and the principal of a Christian school. Ayyan Mani says, 'My son's IQ is 169. He is far too advanced for your syllabus. He is on a different level.' The principal replies, 'Yes, Mr. Mani. Jesus has given Adhi a great mind. Praise the Lord.' Ayyan Mani's wife adds, 'He is Goddess Meenakshi's blessing. I even trekked barefoot to Lord Ganesha's temple when I was pregnant.' The principal asks, 'Do you believe in Christ, Mr. Mani?' Ayyan Mani answers, 'I love Christ.' The principal says, 'Christ loves you too, Mr. Mani. But if you and Adhi could accept him formally, as per the school's policy for financially backward Christians, Adhi could get a special scholarship. In fact, I can promote him directly to the IX standard. Obviously, there is no compulsion. We never compel. You can check with your friend Mr. Satish, Sayali's father, how much benefit Sayali has received since his family accepted Christ. If you don't mind my being bold, I must tell you I really feel for the people of your community, Mr. Mani.' The principal concludes, 'We will give you free books, and we will add free transport.', The legendary K. Balachander film 'Kalyana Agathigal' tells the story of Ammulu, a devout Hindu girl who falls in love with Robert. Robert's parents are ready to accept Ammulu as their daughter‑in‑law if she agrees to accept Christ and become Emily. When Ammulu refuses to convert, an outraged Robert reminds her that his family never demanded dowry but merely wants her to accept their religion, to which she retorts, 'Instead of money, you are asking me to give up my religion. Isn't this a form of dowry too?' When Robert issues an ultimatum, Ammulu, in a stirring dialogue, proclaims her loyalty to the religion of her birth and walks out of the relationship., The author reflects on whether references to popular culture are appropriate in a constitutional court judgment, answering rhetorically, 'Why not?' Reviewing Irwin Allan Sealy's 'ASOCA: A Sutra' in the latest issue of Frontline, historian Shonaleeka Kaul confesses that her foray into early Indian research was inspired by watching a television serial on Chanakya telecast on Doordarshan in the 1990s. It is beyond dispute that art reflects life; while movies, particularly Tamil movies, are notorious for melodrama and exaggeration, they do contain a kernel of truth., When some state legislatures passed laws banning forcible conversions, they were challenged before the Honorable Supreme Court in Rev. Stainislaus v. State of Madhya Pradesh and Ors. (1977) 1 SCC 677. In paragraph 16, the Supreme Court noted that counsel for the appellant argued that the right to propagate one's religion, as enshrined in Article 25 of the Constitution, includes the right to convert a person to one's own religion. The Court rejected this submission, holding that the term 'propagate' in Article 25(1) does not encompass the right to convert and that there is no fundamental right to convert another person to one's own religion. The case was argued by Shri Frank Anthony, a member of the Constituent Assembly. Some Christian members of the Constituent Assembly had advocated the right to convert even minor children., The school is situated in an area known as Michealpatti, a name that may not be original. V. Sriram's work on Chennai discusses how various areas acquired their names, and a similar study could be undertaken for Michealpatti. Therefore, there is nothing inherently improbable about the allegation of an attempted conversion; it could be true or false, and the matter calls for investigation rather than outright rejection. However, the District Superintendent, instead of directing the jurisdictional police to conduct a thorough investigation, proclaimed that the preliminary investigation had ruled out the conversion angle. If she had only the First Information Report, the police video, and the dying declaration, such a statement might be justified. In reality, she also had the private video and the parents' petition, which she did not order the investigation officer to consider, and instead directed the local police to register an FIR against the person who recorded the video. The Superintendent correctly contended that circulating the video without suppressing the child's identity contravened Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015. While the First Information Report could have been limited to Section 74, it also included offences under Sections 153, 504, 505(1)(b) and 505(2) of the Indian Penal Code, indicating an intent to silence discussion of the conversion angle. This conduct aligns with the registration of Crime No. 77 of 2022. The person who shot the video did not commit an offence; only the subsequent sharing on social media without suppressing the child's identity attracted liability under Section 74. In this case, the shooting was done at the petitioner's (the father's) instance, and the video's authenticity has now been admitted. The Superintendent, with her experience, evidently knew the video was authentic, though it was truncated when circulated. Nevertheless, the video remains authentic. The Superintendent effectively threatened the person who shot the video, whereas she should have encouraged the investigation to consider the religious angle., As previously noted, when the petitioner approached the Madras High Court, his faith in the State Police was intact, but in the final hearing his counsel demanded a CBI investigation. The learned Additional Public Prosecutor mocked the petitioner for filing a brief and cryptic petition. The Court considered whether to dismiss the petition on that ground and concluded that it had a duty not to do so. The Honorable Supreme Court in Mithilesh Kumar Singh v. State of Rajasthan (2015) 9 SCC 795 held that transfer of investigation from the State police to the CBI can be allowed only in rare and exceptional circumstances when a fair investigation by the State police does not inspire confidence due to external influence or other reasons, and that there are no rigid parameters; the court must assess the facts of each case. The Supreme Court, concerned with the death of a young girl student, noted that the petitioner's allegations were not conclusive but that the circumstances warranted examination by an independent investigating agency such as the CBI to prevent an incomplete, indifferent, or ineffective investigation leading to a failure of justice. The Court did not blame the educational authorities or the local police but could not reject the petitioner’s apprehension and prayer for transfer of investigation. In the present case, although the pleadings may be defective, the petitioner’s counsel made effective submissions, and the Court remains free to shape relief based on the exigencies of the situation., The petition was filed on 21 January 2022, and the case was taken up for final hearing on 28 January 2022. The Hindu newspaper issue dated 24 January 2022 carried an interview with Shri Anbil Mahesh Poyyamozhi, the Honorable School Education Minister. He stated: 'Did the School Education Department order any inquiry into the death of a schoolgirl in Thanjavur? The Chief Educational Officer immediately conducted an inquiry. We also collected information from the Collector and the police. The police have recorded the girl's statement when she was in hospital and told us that it would be submitted in court. They have made it clear that pressure to convert was not the cause. I would appeal not to divert the issue. Though it is alleged that the warden caused the girl's mental agony, it is the warden who had paid her fees. Other issues will be known during the trial. We took action, the arrest of the warden, because the girl was agonised and forced to take the extreme step. We understand the pain of her parents and the sentiments of members of the public.'
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The BJP, citing a video clip of the girl, is claiming there was an attempt to convert the girl to Christianity. It was wrong. They should not have recorded the girl's statement. They had questioned her in a provocative manner and she had not given any clear‑cut answer. But a life has been lost, and whoever is responsible for it will be punished., The learned counsel appearing for the petitioner submitted that apart from the Hon'ble Education Minister, two other high‑ranking Ministers have also expressed opinions on the same lines. The Education Department has also come out with a statement exonerating the school management of the charge of conversion., The petitioner lost faith in the State police also for the reason that they deliberately leaked the materials which were in their exclusive possession. The Hon'ble First Bench of the Madras High Court in Murugasamy vs. State (2017) 2 LW (Criminal) 345 had held that the dying declaration recorded by the Judicial Magistrate should be kept confidential., In this case, the dying declaration was recorded on 16.01.2022 by Judicial Magistrate No. I, Thanjavur, a copy of which was made available to the investigation officer. However, Sun News telecasted the handwritten dying declaration on 21.01.2022. The petitioner's counsel alleged that the police leaked the contents of the dying declaration along with the copy to build a counter‑narrative. In the dying declaration given before the magistrate, the girl had not stated anything about conversion; it was confined only to the harassment caused by the hostel warden. The contents of the dying declaration were used by the school management to debunk the conversion allegation. According to the petitioner's counsel, the police willingly aided that and it was a rank illegality., Following the direction given by this Court, Mr Muthuvel handed over the original mobile phone along with the SIM card to the investigation officer on 25.01.2022. Thereafter, the Information Technology wing of the ruling party released portions of the private video that appear to exonerate the school authorities. This again raises considerable doubts about the credibility and impartiality of the investigation made by the State police. The original narrative is that the girl committed suicide unable to bear the treatment meted out to her by Sister Saghayamary, the hostel warden. The private video as well as the statements of the parents indicate that there was an attempt at conversion to Christianity. The father's complaint is that since the girl did not convert to Christianity, she was harassed by the hostel warden. Whether there is truth in the allegation is a matter for investigation and eventually for the Court to decide. A counter‑narrative is being built as if the father and the step‑mother of the child are responsible for the suicide. In social media, an allegation has been made that CHILDLINE received complaints some two years ago that the child was being cruelly treated by the step‑mother. Such deliberate leaks dent the credibility of the investigation. The statement of the child was recorded by the local police, who also video‑recorded her statement. Later, the Judicial Magistrate also recorded her dying declaration. In neither of the statements did the child make any allegation regarding her step‑mother; her only target of attack was Sister Saghayamary, the hostel warden., The attempt of the police appears to be to derail the investigation. One should not lose sight of the fact that the petitioner is not the de facto complainant; the deceased child herself was the de facto complainant. The information given by her to the police can also be taken as a dying declaration. In this case, there are three dying declarations: one given to the police, one given to the Judicial Magistrate and one privately recorded by Mr Muthuvel. It is well settled that there can be more than one dying declaration. The basic legal maxim is that the person who is going to meet the Maker shortly will not utter a lie. Even a conviction can be based solely on a dying declaration, but the Court will have to carefully scrutinise the veracity of its contents because the person is no longer available for cross‑examination. There is no contradiction between the police video and the private video; the private video contains extra material. Though the child consumed pesticide on 09.01.2022, she did not reveal the same to the hostel authorities, the parents or even the doctors. Only when the scan report revealed the truth did she speak about it. Therefore, no adverse inference can be drawn because the child did not disclose everything in the first instance. Both videos must be taken together and a final call can be made only after a thorough investigation or perhaps a thorough trial. It is too early for the police or the politicians to jump to conclusions, but they have done so. That is why the petitioner is apprehensive that if the investigation continues to remain in the hands of the State police, he will not get justice. His apprehension is justified., In the private video, to a specific question, the child exonerated the Headmistress. Her allegation was directed only against the hostel warden. She also mentioned that the school correspondent wanted her to convert. When asked about the Fathers (ordained male priests), the child replied in the negative. If the step‑mother had tutored the child, the private video would not have contained such contents. Since the authenticity of the private video is not in doubt, there is no basis for attacking the father and the step‑mother of the child. The learned counsel appearing for the petitioner submitted that since the mother of the child had died and the father had remarried, the maternal grandparents would obviously be upset. The police have sent summons to the maternal grandparents for statements adverse to the step‑mother. The petitioner's counsel's contention that the police, instead of finding out the truth of the allegations made by the deceased victim, have been trying to bolster the counter‑narrative has merit., Let us take the case of sexual harassment at workplaces. The victim employee who rebuffs the sexual advances of her superior will find that she is burdened with extra and difficult work. The work ambience will be made unbearable. The offender will not be sexually harassing the victim every day. This is the standard modus operandi. The petitioner's counsel wants to draw a similar analogy. The correspondent wanted the child to convert to Christianity. The offer was made to the parents. The parents rejected the proposal. As a consequence, through the warden, hostel life was made unbearable and suffocating for the child. I am not in a position to reject the hypothesis propounded by the learned counsel for the petitioner., In the unedited private video, the child is seen alleging that she was not allowed to go home even during holidays. She was made to do all kinds of work, look after the accounts and clean. The petitioner's father would allege that she was made to clean toilets. She secured 489 out of 500 in the 10th standard and was the school topper. Her father is a poor agriculturist. The girl dreamed of securing high marks in the 12th standard. Since she was burdened with other work, she was unable to concentrate on her studies, became apprehensive that she would not secure good marks, and, with board exams a short while away, became depressed and took her own life. That the child committed suicide is not in doubt. Even the parents did not allege that the death was homicidal. What led the child to commit suicide has to be investigated. Before the investigation officer, the dying declaration of the child is available and its authenticity is undoubted. Without doing so, the District Superintendent of Police wanted to completely suppress the conversion angle and initially fasten the entire blame on Sister Saghayamary. Now the parents are in the dock., This Court has a duty to render posthumous justice to the child. The foregoing circumstances cumulatively taken will definitely create an impression that the investigation is not proceeding on the right lines. Since a high‑ranking Hon'ble Minister himself has taken a stand, investigation cannot continue with the State Police. I therefore direct the Director, Central Bureau of Investigation, New Delhi to assign an officer to take over the investigation from the State Police. The criminal original petition is allowed on these terms. The Registry shall mark a copy of this order to the learned Assistant Solicitor General, Madras High Court, Madurai Bench for onward transmission to the Director, Central Bureau of Investigation. The Central Bureau of Investigation will undertake an independent investigation and shall not take into account any of the observations made in this order. Nothing set out in this order shall be construed as an opinion on the merits of the matter; the observations have been made only for the purpose of disposing of this transfer petition., Sister Saghayamary, the hostel warden, was arrested on 18.01.2022. Her continued incarceration may not serve any purpose. Her guilt or innocence will be decided later. Though the investigation has been ordered to be transferred, the formal process may take time. I therefore direct that the jurisdictional court can dispose of the bail petition of Sister Saghayamary based on the available materials and that formal notice to the Central Bureau of Investigation is dispensed with., Lord Vinayaka has been my favourite deity since childhood. Of course, there has been a steady addition to the pantheon. The latest is Lord Mahavira. I offer flowers daily to them. The Ganesha idol which I worship daily has been named Father Pillaiyar because it was gifted to me by the learned Senior Counsel who appeared for the Congregation. Doctor Father Xavier Arul Raj, the Senior Counsel, and Brother Benitto, the counsel on record, are genuine ambassadors of inter‑faith fraternity. When the learned Senior Counsel asserted that he does not believe in conversion, I knew that he was speaking from his heart. The question is whether Sister Saghayamary and Sister Rachel Mary are made of the same fibre. I hope the investigation by the Central Bureau of Investigation will bring out the truth., 31.01.2022. Index: Yes/No. Internet: Yes/No. Note: In view of the present lockdown owing to the COVID‑19 pandemic, a web copy of the order may be utilized for official purposes, but ensuring that the copy of the order that is presented is the correct copy shall be the responsibility of the advocate or litigant concerned., Director General of Police, Police Headquarters, No.1, Radhakrishnan Salai, Mylapore, Chennai 600004; Deputy Inspector General of Police, Trichy Zone, Trichy; Superintendent of Police, Thanjavur District, Thanjavur; Inspector of Police, Thirukattupalli Police Station, Thanjavur District; Director, Central Bureau of Investigation, New Delhi; Additional Public Prosecutor.
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Session Case No. 02/2020, CNR No. DLCT11-000321-2020, FIR No. 213/2020, Police Station Neb Sarai Versus Prakash Jarwal (the then Member of Legislative Assembly from Deoli/Devli, Delhi Constituency), Kapil Nagar, Harish Kumar Jarwal. Date of institution of case: 07.11.2020. Date of conclusion of arguments: 08.02.2024. Date of pronouncement of judgment: 28.02.2024., The factual matrix of the present case is that on 18.04.2020, a death diary No. 11A (Exhibit PW45/A, D5 on page 257) registered by Assistant Sub-Inspector Sudhir (PW45) at Police Station Neb Sarai was assigned for inquiry to Sub-Inspector Shiv Singh (PW47), who was on emergency duty that day. The diary was registered on the basis of a PCR call made by someone regarding the commission of suicide by his uncle. Sub-Inspector Shiv Singh, together with Head Constable Tejpal (PW40), reached the spot of incident at House No. A-144, Durga Vihar, Deoli, New Delhi and found that a person had committed suicide by hanging with a rope tied to the railing of a room built on the terrace of the house. The identity of the deceased was revealed as Dr. Rajendra Singh, a resident of the house, and it was found that he was already dead. The dead body of Dr. Rajendra Singh was brought down by cutting the rope from near the railing while leaving the piece of rope tied around the neck as it was. The remaining portion of rope with hook was seized by Sub-Inspector Shiv Singh vide seizure memo Exhibit PW1/F (D12 on page 307)., Sub-Inspector Shiv Singh (PW47) called the Crime Team led by Sub-Inspector Ajay Kumar (PW38) at the spot and got the crime scene inspected vide report Exhibit PW38/A (D10 on page 303). He also had the scene photographed through Head Constable Ravinder (PW24). The room of the deceased was searched in the presence of Sh. Hemant Singh (PW1) and Sh. Charan Singh (PW41), who are the son and brother respectively of the deceased, and during the search one diary, a six‑page suicide note and a bill book were found lying in a drawer of a table kept in the room and were seized by Sub-Inspector Shiv Singh vide seizure memo Exhibit PW1/E (D14 on page 311). The dead body of the deceased was deposited by Sub-Inspector Shiv Singh with All India Institute of Medical Sciences (AIIMS) Hospital for post‑mortem vide Medical Legal Case No. 3126/2020 (on page 3)., The six‑page suicide note (Exhibit PW1/D, available in an envelope on page 1291 of the file) was written on loose sheets and left by the deceased. The diary of the deceased (Exhibit PW1/B, available in an envelope on page 1355 of the file) was stated to consist of 161 pages in total and the contents on pages 11 to 51, except pages 40 and 46, were alleged to contain writings of the deceased concerning the circumstances leading to his suicide. The 39 writings are reproduced page‑wise in the record., Sh. Hemant Singh (PW1) subsequently gave a written complaint/application (Exhibit PW1/A, colly, D3 on pages 249‑252) in Police Station Neb Sarai on the same day. From the contents of the complaint, the spot inspection carried out by Sub‑Inspector Shiv Singh, the suicide note and diary writings, and the Medical Legal Case, commission of offences punishable under Section 306, Section 386, Section 506 and Section 34 of the Indian Penal Code was found disclosed. Sub‑Inspector Shiv Singh endorsed the rukka (Exhibit PW47/A, on page 253) on the complaint and got the FIR (Exhibit PW44/A, colly, D2 on pages 245‑247) of this case registered at Police Station Neb Sarai under the aforesaid sections of the Indian Penal Code., Investigation of the case was then assigned to Inspector Anil Kumar (PW49), who visited the spot along with other officials on the same day and prepared the site plan (Exhibit PW1/G, D6 on page 261) of the place of incident pointing out by Sh. Hemant Singh and Sub‑Inspector Shiv Singh. He also recorded supplementary statements of Sh. Hemant Singh and of Smt. Pramila Pandey, who was residing as a tenant in the terrace room of the deceased. Sh. Hemant Singh, in his statement under Section 161 of the Criminal Procedure Code, told the investigating officer that he was present at his house on the said date when, at around 5.45 am, their tenant Smt. Pramila Pandey suddenly started knocking their door forcefully. When he came out, Smt. Pramila Pandey told him that her father had committed suicide by hanging on the terrace of their house. He then ran upstairs and tried to lift the legs of his father with his hands while Smt. Pramila Pandey placed a chair below the legs. In the meanwhile, his uncle Sh. Charan Singh (PW41) and some other persons gathered there and one Sh. Revadhar Bhatt (PW19), who was working as a compounder/helper in the clinic of the father, called the police. Smt. Pramila Pandey, in her statement under Section 161 of the Criminal Procedure Code, also stated that she informed Sh. Hemant Singh, who was residing on the second floor, about the suicide committed by his father and about the police proceedings at the spot., The investigating officer (PW49) sent a request letter (Exhibit PW49/A, D31 on page 447) to the Head of Department, Forensic Department, All India Institute of Medical Sciences, through Sub‑Inspector Shiv Kumar, on the same day requesting a post‑mortem of the body of the deceased by a medical board. Since it was a half‑working day on 18.04.2020, the post‑mortem could not be conducted that day and was conducted on the next day, 19.04.2020. The sealed parcels of blood bottle, ligature material and clothing of the deceased, which were prepared by doctors at the time of post‑mortem and were produced by Sub‑Inspector Shiv Kumar, were seized by the investigating officer vide seizure memo Exhibit PW47/E (D13 on page 309)., During the investigation, the investigating officer recorded statements and supplementary statements of the police witnesses namely Sub‑Inspector Shiv Singh, Sub‑Inspector Ajay Kumar, Head Constable Tejpal and Head Constable Ravinder under the provisions of Section 161 of the Criminal Procedure Code. He also recorded statements of public witnesses Sh. Ramesh Kumar, Sh. Prem Pal Singh, Sh. Lalit, Sh. Rajbir Singh, Sh. Tilak Raj @ Sonu and Sh. Revadhar Bhatt, as well as supplementary statements of complainant Sh. Hemant Singh and a statement under Section 164 of the Criminal Procedure Code of witness Sh. Revadhar Bhatt. It came on record during the statements of Sh. Revadhar Bhatt that a threatening telephonic call made by the accused No. 1 (A‑1) Prakash Jarwal from his mobile No. 9999071851 to mobile No. 9811292950 of the deceased on 18.07.2019 was recorded in the mobile handset of Sh. Revadhar Bhatt, as the SIM of the deceased’s mobile was inserted in the witness’s handset due to a battery problem. After hearing the recording, the investigating officer seized the mobile handset of the witness vide seizure memo Exhibit PW1/H (D16 on page 315). The contents of the threatening call, as reproduced in the chargesheet, are: \Hello ji, Doctor Rajendra hai kya, sahab to nhi hai sahab ki tabiyat kharab hai ghar par hai, kiu kya ho gaya, sahab ko heart ki pareshani hai sir, Phon par bat kare ya phon par bat karna hi band kar diya, Nhi nhi wo ghar par hai phone mere pas hai doctor ne aaram karne ke liye kah rakha hai karlenge aap aap kon bol rahe hai, MLA bol raha hun Prakash Jarwal, Ji sir namashkar sir me boldunga sahab se kal bat karwa dunga sir, Kal tak agar unka phon nhi aaya to kah dena fir aisi taisi ho jayegi, Achchha, Parlok sidhar jayenge fir thike, Yen\., Further, during investigation the investigating officer seized some documents produced by an official of Corporation Bank in respect to account statements and account opening forms of the deceased and his family members vide seizure memo Exhibit PW33/A (D17 on page 317) and also seized other writings or paper slips produced by Sh. Hemant Singh vide seizure memo Exhibit PW1/J (D15 on page 313) as they were stated to have been written by the deceased., Thereafter, investigation of the case was transferred to the District Investigation Unit (DIU) from Police Station Neb Sarai vide an order dated 28.04.2020 of the Deputy Commissioner of Police concerned and further investigation was conducted by investigating officer Inspector Kumar Rajiv (PW64) of DIU. The investigating officer again made the complainant Sh. Hemant Singh, his mother Smt. Brahmwati and his cousin Sh. Jitan Singh join the investigation and recorded their statements and supplementary statements under Section 161 of the Criminal Procedure Code. During the recording, the complainant produced one Samsung keypad mobile phone of his deceased father, which was taken into possession vide seizure memo Exhibit PW1/I (D18 on page 319) by the investigating officer. The investigating officer also recorded statements or supplementary statements under Section 161 of the Criminal Procedure Code of witnesses Sh. Ramesh Kumar, Sh. Satvir Singh @ Satte and Sh. Rajbir Singh and statements under Section 164 of the Criminal Procedure Code of witnesses Sh. Rajbir Singh, Sh. Arvind Kumar (nephew of the deceased) and Sh. Chiranji Lal., On 12.05.2020, the complainant (PW1) came to the office of DIU and gave a written complaint (Exhibit PW1/L, D11 on page 305) to the investigating officer about extension of threats by the goons of A‑1 Prakash Jarwal. The investigating officer recorded his supplementary statement under Section 161 of the Criminal Procedure Code and also recorded supplementary statements of witnesses Sh. Jitan Singh and Sh. Revadhar Bhatt to this effect. During the investigation, the investigating officer also seized a record requisitioned from Muthoot Fincorp Limited, Khanpur Village Branch, New Delhi, in respect of a loan of approximately Rs 17.5 lacs taken by the deceased against mortgage of jewellery articles and collected the spot inspection report given to the crime team. He further sent notices under Section 41A of the Criminal Procedure Code to A‑1 Prakash Jarwal and A‑2 Kapil Nagar to join the investigation, but both accused absconded and could not be arrested or made to join investigation for some time despite raids; consequently, non‑bailable warrants were issued against them., A‑1 and A‑2 ultimately surrendered themselves to custody, were subjected to extensive interrogation and then arrested in the case. They allegedly confessed their involvement in the commission of the suicide of the deceased and in running an extortion racket in the area, and their disclosures were recorded by the investigating officer. Since A‑1 was a sitting Member of the Legislative Assembly of the Aam Aadmi Party ruling in Delhi, an intimation about his arrest was given to the Speaker of the Legislative Assembly. The house and office of A‑1 were searched by police and during the house search he produced one Samsung mobile phone from an almirah, which was seized vide seizure memo Exhibit PW50/G (D20 on page 323). It has been alleged that A‑1 intentionally did not produce his other mobile phone of make Apple and it could not be found despite police efforts. A mobile phone of make Samsung belonging to A‑2 was also seized by the investigating officer vide seizure memo Exhibit PW50/H (D19 on page 321)., During the investigation, the post‑mortem report and related documents (Exhibit PW37/A, D32 on pages 423‑431) of the deceased were collected by the investigating officer. As per the report, the cause of death of Dr. Rajendra Singh was \asphyxia due to antemortem hanging\. The investigating officer also recorded statements under Section 161 of the Criminal Procedure Code of witnesses Sh. Tilak Raj, Sh. Dharamveer Singh, Sh. Ram Kumar @ Kaale, Sh. Sukhvir Singh, Sh. Ajit Kumar, Sh. Rinku, Sh. Vinod Kumar, Sh. Ram Avtar, Sh. Sheesh Pal, Sh. Jitender and Sh. Ravinder Singh. Witness Sh. Ravinder Singh produced some delivery notes of vehicles, which were seized vide seizure memo Exhibit PW24/B (D29 on page 413). The investigating officer further seized relevant files and records of five tankers belonging to the deceased and his family members, as well as other tankers of the area, from the office of Delhi Jal Board (DJB) vide seizure memo Exhibit PW50/I (D22 on page 327). He also seized a record pertaining to the appointment of A‑1 as a member of DJB vide seizure memo Exhibit PW20/A (D23 on page 329) and sought information from the office of the Legislative Assembly regarding the appointment and relinquishment of charge by A‑1 as a member of DJB. One Sh. Pramod Kumar and Sh. Sanjay were also made to join the investigation and their statements under Section 161 of the Criminal Procedure Code were recorded. During the recording of Sh. Sanjay’s statement, he was shown one VIVO mobile phone, earlier produced by complainant Sh. Hemant Singh, and he identified this mobile as belonging to him and containing recordings of threatening calls made on different dates by A‑3 Harish Kumar Jarwal. The mobile was taken into possession vide seizure memo Exhibit PW1/K (D24 on page 355)., The transcriptions of audio recordings dated 15.04.2020 and 16.04.2020 between A‑3 and Sh. Sanjay, as stated in the chargesheet on pages 211‑217 and found in the VIVO mobile phone of Sh. Sanjay, are reproduced as follows: Recording 1 – Harish Jarwal: Hello; Harish Jarwal: Sanjay: Harish Jarwal: Sanjay: Recording 2 – Harish Jarwal: Hello; Harish Jarwal: , payment? Recording 3 – (no content). Recording 4 – (no content)., As per allegations made in the chargesheet, the extortion racket continued to be run by A‑3 Harish Kumar Jarwal and other associates of A‑1 even after the arrest of A‑1 and A‑2. The transcription of an audio recording dated 10.05.2020 between one Manoj, Sh. Sanjay and A‑3 Harish Jarwal, as stated in the chargesheet on pages 205‑211, is also reproduced herein., During investigation, the investigating officer also collected the Call Detail Records (CDRs) of mobile phones of A‑1, A‑2, A‑3 and the deceased and analyzed them. The involvement of A‑3 in the present case clearly emerged from the threatening calls recorded in the mobile phone of witness Sh. Sanjay and other material collected. A‑3 subsequently surrendered before the investigating officer on 13.07.2020 after his anticipatory bail applications were dismissed by the Learned Special Judge (Prevention of Corruption Act) CBI, Regional Administrative District Court (RADC), New Delhi, as well as by the Honorable High Court. He was then arrested in the present case and his disclosure statement was recorded., It transpired from the investigation that the accused persons were running a large extortion racket in their area and were extorting money from persons operating water tankers in association with Delhi Jal Board. Initially they extorted Rs 10,000 each for small water tankers and Rs 14,000 each for big water tankers; later these amounts were increased to Rs 15,000 and Rs 20,000 respectively around July‑August 2019. It also came on record that tanker owners/operators were further made to pay amounts of Rs 51,000 for small tankers and Rs 71,000 for big tankers to A‑1 as election fund after his assembly election held in December 2019., Further investigation revealed that although the deceased Dr. Rajendra Singh was forced to pay considerable extortion money by A‑1 and his associates for permitting him to operate his water tankers, A‑1 was not satisfied with the payments. He caused stoppage of payment of some pending bills of the deceased and his family members from the office of Delhi Jal Board and had their water tankers removed. The accused persons repeatedly pressured the deceased to pay extortion amounts, leading to mental torture. Consequently, the deceased ultimately committed suicide by hanging on 18.04.2020. The brother of A‑1, Sh. Anil Kumar Jarwal, was found not to be involved in the alleged offences. The involvement of A‑1 in other cases also emerged during investigation. On conclusion of investigation, a chargesheet for commission of offences punishable under Section 306, Section 386, Section 506 and Section 34 of the Indian Penal Code was prepared and filed by Sub‑Inspector Kamal Kishore (PW50) after obtaining approval of senior officers., On 11.09.2020, an e‑chargesheet against the accused persons was filed on the official e‑mail ID of the court of Learned Additional Chief Metropolitan Magistrate‑01, Regional Administrative District Court, New Delhi, and on 15.09.2020 a hard copy of the chargesheet, along with documents, was filed in the same court. Cognizance of the alleged offences was taken by the Learned Additional Chief Metropolitan Magistrate vide his order dated 25.09.2020. After compliance with the provisions of Section 207 of the Criminal Procedure Code, the Learned Additional Chief Metropolitan Magistrate committed the case for trial before a Delhi Sessions Court vide his order dated 27.10.2020, as the offence punishable under Section 306 of the Indian Penal Code is exclusively triable by a Sessions Court., Vide order dated 06.11.2020, the then Learned Officiating Principal District & Sessions Judge, Regional Administrative District Court, New Delhi, assigned the case for trial to the court of Ms. Geetanjali Goel, Learned Special Judge (Prevention of Corruption Act) CBI‑24, Regional Administrative District Court, New Delhi, which was one of the designated courts of this court complex for trial of cases pertaining to Members of Parliament and Members of Legislative Assembly. Subsequently, while the case was on the verge of completion of prosecution evidence, it was transferred to the present court for further trial and proceedings vide order dated 07.09.2022 of the Learned Principal District & Sessions Judge‑cum‑Special Judge (Prevention of Corruption Act) CBI, Regional Administrative District Court, New Delhi, as Ms. Geetanjali Goel, Learned Special Judge (Prevention of Corruption Act) CBI‑24, had recused herself on personal grounds., Three supplementary chargesheets against the accused persons were filed on record on 16.01.2021, 30.04.2021 and 28.08.2021 before the Learned predecessor of this court entrusted with trial of the case. These were filed in respect of Forensic Science Laboratory and Central Forensic Science Laboratory reports regarding examination of exhibits, i.e., the questioned and admitted signatures/initials and handwritings of the deceased and the questioned and specimen voice samples of some accused and witnesses. On 05.10.2021, an application on behalf of one of the accused led to the placement on record of the spectrograph and note sheets concerning examination of some of the voice samples. Another Forensic Science Laboratory report regarding examination of some exhibits, which could not be placed on record earlier, was also placed on record through an application moved by the prosecution on 17.12.2021, when prosecution evidence was in progress. Copies of all these reports and supplementary chargesheets were duly supplied to the accused persons as per record., Vide a detailed order dated 11.11.2021, the Learned predecessor of this court observed that a prima facie case was made out against A‑1 Prakash Jarwal and A‑2 Kapil Nagar for framing of charges for commission of the offence of criminal conspiracy punishable under Section 120B read with Sections 384, 386 and 506 of the Indian Penal Code and also for commission of the substantive offences punishable under Sections 384, 386 and 506 read with Section 120B of the Indian Penal Code as well as for commission of the substantive offence punishable under Section 306 and Section 34 of the Indian Penal Code. Regarding A‑3 Harish Kumar Jarwal, a prima facie case was made out only for commission of the offence punishable under Section 506 of the Indian Penal Code and he was discharged for the rest of the alleged offences. Charges for the aforesaid offences against the accused persons were also framed by the court on the same day., The prosecution, in support of its charges, examined on record a total of 64 witnesses. Their names and the purpose of examination, in brief, are as follows: i. Sh. Hemant Singh is the son of the deceased and complainant. He did not support the prosecution’s case, stating that he was at a friend’s house on the night of 17/18.04.2020 and learned of the suicide only from a neighbor named Sh. Satish. He admitted making a written complaint but said it was dictated by his uncle Sh. Ravinder and he did not know why his father committed suicide. He denied the other proceedings allegedly conducted in his presence and stated that his signatures on various seizure memos and the site plan were taken on blank papers. He was shown the handwriting of his father in the suicide note, diary and bill book and said the Hindi writing was similar to his father’s but could not comment on the English material. ii. Smt. Brahmwati is the wife of the deceased and, like her son, turned hostile and did not support the prosecution’s case, rescinding her statement. iii. Sh. Lalit claimed to be a driver of a water tanker of the deceased but denied supporting the prosecution’s case, stating he was residing in the area but did not drive a tanker of the deceased or have knowledge of the circumstances leading to the suicide, and denied making a statement under Section 161 of the Criminal Procedure Code. iv. Sh. Ramesh Kumar Goswami, a resident of the area and owner of some water tankers, stated that the deceased was their family doctor but denied knowing anything about the case or how the deceased expired, and denied making a statement under Section 161 of the Criminal Procedure Code. v. Sh. Satbir, a Beldar working with Delhi Jal Board, said he knew the deceased as he took his father for treatment to the clinic but did not know anything about the case or how the deceased expired, and denied making a statement under Section 161 of the Criminal Procedure Code. vi. Sh. Rajbir Singh, a driver with Delhi Jal Board, said he knew the deceased as he took his mother for treatment to the clinic but, like Sh. Satbir, did not know anything about the case or how the deceased committed suicide. He admitted making a statement under Section 161 of the Criminal Procedure Code but deposed that it was not made voluntarily. vii. Sh. Tilak Raj stated that he owned three tankers attached to Delhi Jal Board and knew the deceased as he took his parents to the deceased’s clinic for treatment. He was aware that the deceased committed suicide but could not say how or why, and denied making a statement under Section 161 of the Criminal Procedure Code. viii. Sh. Dharamvir Singh, who had attached his tanker with Delhi Jal Board during the relevant period, knew the deceased but did not know anything about the case or how the deceased expired, and denied making a statement under Section 161 of the Criminal Procedure Code. ix. Sh. Ram Kumar, a property dealer of the area, knew the deceased who committed suicide but did not know how or why it was committed, and denied making a statement under Section 161 of the Criminal Procedure Code. x. Sh. Sukhbir Singh, a resident of the same locality and operator of a water tanker attached with Delhi Jal Board, said the deceased was close to him. He knew about the suicide but said he had heard that the deceased had many loans and did not know anything else about the case, and denied making a statement under Section 161 of the Criminal Procedure Code. xi. Sh. Rinku, a driver residing in the area, said he knew the deceased as he visited him for medicines. He stated that the deceased committed suicide because of a large outstanding loan but did not know anything about the case, and denied making a statement under Section 161 of the Criminal Procedure Code. xii. Sh. Mohit Kumar, owner of another tanker, said the deceased had removed his tankers from Delhi Jal Board due to a sting conducted by IBN7. He was aware of the suicide but denied knowing anything about the case and said he heard the deceased had a large outstanding loan, denying a statement under Section 161 of the Criminal Procedure Code. xiii. Sh. Pramod, who had three water tankers attached with Delhi Jal Board, knew the deceased as he took medicines from him but did not know anything about the case or whether the deceased had any tankers, and denied a statement under Section 161 of the Criminal Procedure Code. xiv. Sh. Jitender, who had two water tankers attached with Delhi Jal Board at the relevant time, said he knew the deceased as his neighbour but stated the deceased did not have any tankers. He said the deceased committed suicide by hanging due to family problems, financial disturbance and a sting against the deceased.
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He also denied knowing anything about this case and making of his alleged statement marked PW14/1 under Section 161 of the Criminal Procedure Code to the police., PW15, Sh. Ajit Kumar, was having one self‑driven tanker attached with Delhi Jal Board and, though he stated that he had heard the name of the deceased, he denied knowing anything about this case or whether the deceased owned any tankers. He further stated that he heard that the deceased committed suicide by hanging and denied making his alleged statement marked PW15/1 under Section 161 of the Criminal Procedure Code to the police., PW16, Sh. Sanjay, a driver by profession and a material witness for the prosecution, stated that although he knew A‑3 Harish as his neighbour, he did not receive any threat from A‑3 at any time. He also denied knowing anything about this case and denied making statements marked PW16/1 and PW16/2 under Section 161 of the Criminal Procedure Code to the police. He further denied receiving any threatening call for extortion from A‑3 after the arrest of A‑1, allegedly made from the mobile of one Manoj. He refused to identify the voices in one voice recording played before him, although in another recording he identified the voices as his and that of another person., PW17, Sh. Vinod Kumar, a driver by profession, stated that he did not know the deceased or anything about this case and denied making his statement marked PW17/1 under Section 161 of the Criminal Procedure Code to the police., PW18, Sh. Shishpal, a contractor by profession and known to the deceased because he had been taking medicines from the deceased, stated that he did not know anything about this case or how the deceased died. He also denied making his alleged statement marked PW18/1 under Section 161 of the Criminal Procedure Code to the police., PW19, Sh. Revadhar Bhatt, a prime witness for the prosecution, was the person whose mobile phone recorded the threatening call made by A‑1 to the deceased, as the SIM of the deceased’s phone was being used in his mobile at the relevant time. He later turned hostile and rescinded his previous statements marked PW19/1 and PW19/3 recorded under Section 161 of the Criminal Procedure Code, as well as his statement marked PW19/2 recorded under Section 164 of the Criminal Procedure Code before a magistrate. He did not support the prosecution on material particulars, denied that his voice appeared in the recorded threatening call, denied his signatures on certain documents, and denied that the mobile phone pertained to him. He stated that he had worked in the clinic of the deceased and taken care of the deceased’s tankers, and he claimed that the deceased committed suicide because of poor financial condition, a heart problem, and outstanding loans., PW20, Ms. Jyoti Sharma, an official of Delhi Jal Board, proved on record the seizure memo Ex. PW20/A (D23 on page 329) containing her signatures, which was prepared for the seizure of photocopies of documents Ex. PW20/B (colly) (pages 331‑353) pertaining to the appointment and removal of A‑1 as a member of Delhi Jal Board, which she handed over to the Investigating Officer., PW21, Sh. Prem Pal, stated on record that he worked as a driver on a tanker of the deceased for about two years during 2008‑09 and later learned of the alleged suicide of the deceased. He subsequently rescinded his statement marked PW21/1 recorded under Section 161 of the Criminal Procedure Code by the police., PW22, Sh. Prem Singh, and PW23, Sh. Himmat Singh, both officials of Delhi Jal Board responsible for water distribution in Deoli and adjoining areas, stated that no tanker of the deceased was attached to Delhi Jal Board and they did not know anything about this case. They rescinded their statements marked PW22/1 and PW22/2 respectively recorded under Section 161 of the Criminal Procedure Code. PW23 admitted that his statement was recorded under Section 164 of the Criminal Procedure Code during investigation, but claimed during cross‑examination that he was under pressure from police to give the statement., PW24, Sh. Ravinder Singh, engaged in the sale and purchase of automobiles under the name M/s Bir Motors in Moti Nagar, New Delhi, proved on record three delivery receipts/notes Ex. PW24/A (colly) (pages 415‑419) handed over to the Investigating Officer via seizure memo Ex. PW24/B (D29 on page 413). The receipts relate to the purchase of three Tata 1109 vehicles, which he stated were purchased in the name of A‑2 by relatives and friends of the accused. He admitted making his statement Ex. PW24/C (page 1255) under Section 161 of the Criminal Procedure Code to the police, but denied its material contents., PW25, Sh. Jitan Singh, the nephew of the deceased, stated that he obtained his tanker attached to Delhi Jal Board through the deceased. He also stated that he was not at his house when the deceased committed suicide and could not explain why it was committed. He rescinded his statement marked PW25/1 recorded under Section 161 of the Criminal Procedure Code by the police., PW26, Sh. Surender Kumar, a Nodal Officer of Bharti Airtel Ltd., produced and proved records pertaining to two mobile numbers: 9650337380 belonging to A‑3 and 9971030682 belonging to A‑2. He exhibited the Customer Application Forms (CAFs) as Ex. PW26/A (page 2481) and Ex. PW26/C (page 3167) and Call Data Records (CDRs) for the period from 01‑06‑2019 to 12‑06‑2020 as Ex. PW26/B (colly) (pages 2483‑3165) and Ex. PW26/D (colly) (pages 3171‑4011). He also exhibited a location chart and a certificate of authenticity for the computerized data as Ex. PW26/E (colly) (pages 4013‑4097) and Ex. PW26/F (page 4099)., PW27, Sh. Naresh Kumar Kardam, Executive Engineer of Delhi Jal Board dealing with water distribution, stated that after A‑1 became a member of Delhi Jal Board there was no change in the system of water tanker operations and tanker owners never met him. He also stated that he did not know the deceased and denied making his statement marked PW27/1 under Section 161 of the Criminal Procedure Code to the police., PW28, Sh. Chiranji Lal, who had five tankers attached to Delhi Jal Board, stated that he did not know the deceased or A‑1 personally, although he knew that A‑1 was the Member of Legislative Assembly of their area. He denied making his statement marked PW28/1 under Section 161 of the Criminal Procedure Code to the police. He admitted that he was recorded under Section 164 of the Criminal Procedure Code and that his signatures appear on the statement Ex. PW28/A (pages 1831‑1833), but claimed that he gave the statement under pressure from police officers., PW29, Sh. Ajit Singh, Alternate Nodal Officer of M/s Vodafone Idea Ltd., produced records pertaining to two mobile numbers: 9999071851 belonging to Sh. Pradeep Kumar Shrivas and 9811292950 belonging to the deceased. He exhibited the CAFs as Ex. PW29/A (page 1839) and Ex. PW29/C (page 2045) and CDRs for the period from 01‑06‑2019 to 12‑06‑2020 as Ex. PW29/B (colly) (pages 1843‑2043) and Ex. PW29/D (colly) (pages 2047‑2435). He also exhibited a location chart and two certificates of authenticity for the computerized data as Ex. PW29/E (colly) (pages 2437‑2473), Ex. PW29/F (page 2475) and Ex. PW29/G (page 2477)., PW30, Sh. Sunil Dutt Sharma, Deputy Secretary in the Legislative Assembly of Delhi, stated that on request of the Investigating Officer, as contained in notices Ex. PW30/A (D45 on page 951) and Ex. PW30/D (page 1707), he supplied the information contained in replies Ex. PW30/B (page 957) along with a copy of the resignation letter of A‑1 Ex. PW30/C (page 959) and Ex. PW30/E (page 965). He identified his signatures on another reply dated 01‑07‑2020 Ex. PW30/F (page 953) given to the e‑mail dated 26‑06‑2020 of the Investigating Officer. He further stated that, vide e‑mail marked PW30/1, the resignation of A‑1 was communicated to the office of the Chief Minister and Chief Executive Officer of Delhi Jal Board. He also stated that the above replies were sent by him with the approval of the Speaker of the Assembly, as recorded in a notesheet dated 27‑04‑2022 Ex. PW30/G (page 1705)., PW31, Sh. Arvind Kaushik, then Secretary of Delhi Jal Board, on receipt of notice Ex. PW31/A (D42 on page 905), handed over to the Investigating Officer a copy of an e‑mail marked PW31/1 (page 909) along with a copy of the complaint made to the Lieutenant Governor by Sh. Ramesh Bidhuri, MP, South Delhi against A‑1, vide letter marked PW31/2 (page 917), both dated 18‑04‑2020., PW32, Sh. N. K. Sharma, Assistant Engineer (Civil) and Administrative Officer in the Vigilance Department of Delhi Jal Board, on receipt of a notice dated 20‑05‑2020 Ex. PW32/A (D43 on page 919), handed over certified copies of complaints dated 01‑05‑2020 and 04‑05‑2020 Ex. PW32/C (colly) (pages 927‑944) to the Investigating Officer through his reply dated 19‑06‑2020 Ex. PW32/B (page 921). He further handed over certified copies of letters Ex. PW32/D (colly) (pages 923‑925) sent by the Superintending Engineer, Vigilance, to the Deputy Secretary, Urban Development, GNCTD, when asked about action taken on the complaints., PW33, Sh. Harkesh, then official of the Deoli Branch of Corporation Bank, which later merged with Union Bank, handed over the account statement for the period from 01‑07‑2017 to May‑2020 marked PW33/1 (page 1709) along with the original account opening form Ex. PW33/B (colly) (pages 1295‑1307) of the deceased, vide seizure memo Ex. PW33/A (D17 on page 317). He subsequently handed over to the Investigating Officer four cheques Ex. PW33/C (colly) (pages 1309‑1317) containing the deceased’s signatures, vide another seizure memo Ex. PW33/D (D21 on page 325)., PW34, Sh. Arvind, nephew of the deceased and engaged in real estate, deposed briefly about the extortion of the deceased and other tanker owners by the accused persons and the commission of suicide by his uncle due to those extortions. He proved his statement under Section 164 of the Criminal Procedure Code as Ex. PW34/A (colly) (pages 1819‑1821), but was confronted on various counts with his previous statement made under Section 161 of the Criminal Procedure Code Ex. PW34/P1 (page 1713) recorded during the investigation., PW35, Sh. Pradeep Kumar Shrivas, stated that although he took mobile number 9999071851 in his name and gave it to a relative named Sh. Jagram, he could not tell whose possession the phone was in on 18‑07‑2019 as he did not enquire with his relative. He denied the contents of his alleged statement marked PW35/1 recorded under Section 161 of the Criminal Procedure Code by the police, which mainly alleged that the mobile number was subsequently given to or used by A‑1 at the relevant time. He identified A‑1 as the Member of Legislative Assembly of their area., PW36, Sh. Manoj Kumar, an employee of the Deoli Branch of Muthoot Finance Ltd., provided to the Investigating Officer account statements Ex. PW36/B (colly) (pages 367‑381) of the deceased and his family members in response to notice Ex. PW36/A (page 365) received by their branch manager. He also produced copies of their loan agreements as Ex. PW36/C (colly) (pages 1715‑1731)., PW37, Capt. (Dr.) Antara Debbarma, Senior Medical Officer in the Department of Forensic Medicine, All India Institute of Medical Sciences, New Delhi, and Chairperson of the medical board constituted for the post‑mortem of the deceased, proved on record the post‑mortem report of the deceased as Ex. PW37/A (colly) (D32 on pages 423‑431) and identified the exhibits – clothes, blood sample and ligature material – which were handed over after the post‑mortem., PW38, SI Ajay, In‑charge of the Crime Team, reached the spot on receipt of information about the commission of suicide by the deceased, inspected the crime scene and proved his report Ex. PW38/A (D10 on page 303)., PW39, Sh. Manoj Kumar, Manager of the Muthoot Finance Ltd., Khanpur Branch, New Delhi, proved the attestation of Sh. Kishore Kumar, Senior Branch Manager, on loan documents Ex. PW39/A (colly) (pages 383‑409) in the name of PW19 Sh. Revadhar Bhatt and Sh. Hemant Singh, which were handed over to the Investigating Officer by Sh. Kishore Kumar., PW40, HC Tejpal, participated in the initial inquiry and investigation with SI Shiv Singh upon receiving information about the commission of suicide by the deceased. He deposed about the same and proved the seizure memo Ex. PW1/E (D14 on page 311) of the diary and suicide note left by the deceased and the seizure memo Ex. PW1/F (D12 on page 307) of the rope with which the suicide was committed. He further identified the rope during his testimony before the Delhi High Court., PW41, Sh. Charan Singh, brother of the deceased, along with other family members and acquaintances, turned hostile and rescinded his statement marked PW41/1 recorded under Section 161 of the Criminal Procedure Code. He refused to identify his signatures on the dead‑body identification memo marked PW41/2 and on the writings of the deceased in the diary, bill book and suicide note Ex. PW1/B, Ex. PW1/C and Ex. PW1/D (envelopes bearing pagination numbers 1355, 1357 and 1291)., PW42, Dr. Girish Tyagi, Secretary of the Delhi Medical Council at the time of recording his statement, proved seizure memo Ex. PW42/A (D28 on page 411) of certain documents handed over by him to the Investigating Officer, which included a report about the closure of the clinic of the deceased and an application/statement dated 04‑05‑2016 given by the deceased to the council, later examined by a handwriting expert as an admitted writing of the deceased., PW43, HC Sukhbir Singh, is a witness to the arrest memo Ex. PW43/A (page 265) dated 09‑05‑2020 of A‑2 and also to the memo Ex. PW42/A (D28 on page 411) prepared regarding seizure of certain documents from the office of the Delhi Medical Council., PW44, WASI Shyam Kaur, duty officer at Police Station Neb Sarai on 18‑04‑2020, recorded the FIR Ex. PW44/A (colly) (D2 on pages 245‑247) and also DD No. 34A Ex. PW44/B (page 259) of this case. She proved these documents along with a certificate under Section 65B of the Indian Evidence Act (IEA) Ex. PW44/C (D4 on page 255) regarding the authenticity of the computerized contents of the FIR., PW45, ASI Sudhir, recorded another DD No. 11A Ex. PW45/A (D5 on page 257) concerning the commission of suicide by the deceased., PW46, Inspector Kailash, took PW23 Sh. Himmat Singh and PW6 Sh. Rajbir of Delhi Jal Board to the Delhi High Court on 20‑05‑2020 on instructions of the Investigating Officer Inspector Kumar Rajiv and got their statements recorded under Section 164 of the Criminal Procedure Code, already Ex. PW23/A (colly) (pages 1805‑1809) and Ex. PW6/B (colly) (part of D38 on pages 673‑677). He identified the witnesses vide his statements Ex. PW46/A (page 1801) and Ex. PW46/B (page 1795) at the time of recording and obtained copies thereof by moving application Ex. PW46/C (page …). On 21‑05‑2020, he also recorded a similar statement of PW34 Sh. Arvind, already Ex. PW34/A (pages 1819‑1821), and identified him vide his own statement Ex. PW46/D (page 1817), obtaining a copy of the statement via application Ex. PW46/E (page 1815). On 22‑05‑2020, he went to the office of the Delhi Medical Council and seized certain documents from PW42 vide memo Ex. PW42/A (D28 on page 411). On 02‑06‑2020, he went to the Forensic Science Laboratory, Rohini with PW19 Sh. Revadhar Bhatt and other police officials, collected a voice sample of the witness on an audio cassette and handed over the cassette, along with an extra copy, to the Investigating Officer, witnessing memo Ex. PW46/F (D30 on page 421). He deposited an envelope containing the seal of the Investigating Officer used in the seizure in the FSL via acknowledgment receipt Ex. PW46/G (D40 on page 693). On 18‑02‑2021, as per instructions of the Investigating Officer Inspector Satyabir Singh, he again visited the FSL, Rohini and collected a voice sample of A‑1, handing over two audio cassettes to the Investigating Officer and witnessing the seizure vide memo Ex. PW46/H (page 1439). On 02‑03‑2021, he also witnessed another seizure memo Ex. PW46/I (page 1443) of a pen drive, in which data extracted from the mobile phone of PW19 Sh. Revadhar Bhatt was opened and checked in the office of the Delhi Investigation Unit., PW47, SI Shiv Singh, conducted inquiry on DD No. 11A already Ex. PW45/A (D5 on page 257) registered about the commission of suicide by the deceased. He deposed about the proceedings conducted at the spot during the inquiry and obtained the FIR of the case by endorsing a rukka Ex. PW47/A (pages 252‑254) on the statement made by the son of the deceased. He also participated in and deposed about the initial investigation conducted by Inspector Anil Kumar at the spot after registration of the case, which included preparation of a site plan., PW48, ASI Devender, took three sealed pull‑boxes of this case containing case property from the malkhana of Police Station Neb Sarai to the Forensic Science Laboratory, Rohini on 04‑03‑2021 and, on 26‑03‑2021, brought three sealed pull‑boxes with FSL report from the FSL, Rohini and handed them over to Inspector Upadhyay Balashankaram. On instructions of the Investigating Officer, he further deposited these pull‑boxes in the malkhana of the police station, though the FSL report was retained by the Investigating Officer., PW49, Sh. Anil Kumar, Inspector, Anti‑Terror Officer in Police Station Neb Sarai and the initial Investigating Officer of the case, deposed about the proceedings conducted at the spot and proved certain documents prepared by him, including the site plan Ex. PW1/G (D6 on page 261), a letter Ex. PW49/A (D31 on page 447) for constitution of a medical board for the post‑mortem of the deceased, seizure memo of pull‑boxes prepared by doctors Ex. PW47/E (D13 on page 309), seizure memo of the mobile phone of PW19 Sh. Revadhar Bhatt containing a recording of a threat extended by A‑1 Ex. PW1/H (D16 on page 315), seizure memo Ex. PW33/A (D17 on page 317) of documents Ex. PW33/B (colly) (pages 1295‑1307) pertaining to the account of the deceased in Corporation Bank, and seizure memo Ex. PW1/J (D15 on page 313) of documents Ex. PW49/D (colly) (pages 1319‑1331) containing the handwriting of the deceased as produced by his son/complainant Sh. Hemant Singh. He also recorded statements of some witnesses under Section 161 of the Criminal Procedure Code and further recorded a statement under Section 164 of the Criminal Procedure Code of PW19 Sh. Revadhar Bhatt vide application Ex. PW49/B (page 1745), identifying the witness vide his statement Ex. PW49/C (page 1749) at the time of recording. He also identified the exhibits shown to him during his statement in the Delhi High Court., PW50, Inspector Kamal Kishore, Sub‑Inspector in the office of the Delhi Investigation Unit, participated in the investigation with Inspector Kumar Rajiv. He is a witness to the arrest of A‑1 and A‑2 vide memos Ex. PW50/A (D7 on page 263) and Ex. PW43/A (page 265), their personal search memos Ex. PW50/B (D8 on page 269) and Ex. PW50/C (page 271), and their disclosure statements Ex. PW50/D (colly) (D9 on pages 275‑279) and Ex. PW50/E (colly) (pages 287‑291). He stated that after the accused were taken into police custody from the court vide order dated 10‑05‑2020 Ex. PW50/F (colly) (pages 981‑985), their mobile phones were recovered vide seizure memos Ex. PW50/G (D20 on page 323) and Ex. PW50/H (D19 on page 321). He also witnessed supplementary disclosure statements Ex. PW50/J (colly) (pages 281‑285) and Ex. PW50/K (colly) (pages 293‑295) made by A‑1 and A‑2 respectively, and the seizure of files of five tankers belonging to the deceased from the office of Delhi Jal Board vide memo Ex. PW50/I (D22 on page 327). He also witnessed seizure of documents Ex. PW20/B (colly) (pages 331‑353) pertaining to the appointment of A‑1 as a member of Delhi Jal Board, four cheques Ex. PW33/C (colly) (pages 1309‑1317) produced by an employee of Corporation Bank vide memo Ex. PW33/D (D21 on page 325), the mobile phone of PW23 Sh. Sanjay produced by the complainant Sh. Hemant Singh vide memo Ex. PW1/K (D24 on pages 355), and documents pertaining to loans taken by the deceased, produced by an official of Muthoot Finance Ltd. via memos Ex. PW50/L (colly) (D25 on pages 357‑359) and Ex. PW50/M (D26 on page 361). He is also a witness to the arrest of A‑3 Harish Kumar vide memo Ex. PW50/N (page 267), his personal search memo Ex. PW50/O (page 273) and his disclosure statement Ex. PW50/P (colly) (pages 297‑301). He also witnessed the seizure of receipts/invoices regarding sale and purchase of some vehicles Ex. PW24/A (colly) (pages 415‑419) vide memo Ex. PW24/B (D29 on page 413)., PW51, HC Subhash Chander, and PW52, ASI Kamal Dev, visited the office of the Forensic Science Laboratory, Rohini on 14‑01‑2021 and 27‑04‑2021 respectively, on directions of the Investigating Officer, to collect FSL reports and, on return, handed over the reports and related exhibits to the Investigating Officer., PW53, Inspector Satyabir Singh, part of the Investigating Officer team, deposed that on being handed over the case file on 28‑12‑2020, he received the FSL report and exhibits collected through HC Subhash Chander and filed a supplementary charge‑sheet before the Delhi High Court. He subsequently obtained voice samples of A‑1, A‑3 and PW16 Sh. Sanjay collected in the FSL, Rohini and seized the cassettes via memos Ex. PW46/H (page 1439), Ex. PW53/A (page 1441) and Ex. PW53/B (page 1445). He also prepared a seizure memo Ex. PW46/I (page 1443) for a pen drive containing data extracted from the mobile phone of PW19 Sh. Revadhar Bhatt, which was opened and examined in the office of the Delhi Investigation Unit. He further identified the exhibits shown to him during his statement before the Delhi High Court., PW54, Inspector Upadhyay Balashankaram of the Delhi Investigation Unit, collected two reports from the Forensic Science Laboratory, Rohini on 26‑03‑2021 and 27‑04‑2021 and deposited the exhibits in the police malkhana. He recorded statements of the concerned police officials and filed a supplementary charge‑sheet. Subsequently, he sent some exhibits of the case to the Central Forensic Science Laboratory, CBI, collected the reports, and filed another supplementary charge‑sheet on 27‑08‑2021. He identified his signatures on memo Ex. PW54/A (page 1447) prepared for seizure of the pen drive containing data extracted from the mobile phone of PW16 Sh. Sanjay, which was opened and analyzed in the Delhi Investigation Unit, and prepared transcript Ex. PW54/B (colly) (pages 1449‑1497) of its contents. He also prepared a seizure memo Ex. PW54/C (page 1505) of the worksheet and spectrograph report pertaining to the voice examination, which he collected from the Forensic Science Laboratory, Rohini through ASI Vijay., PW55, Sh. Deepak Kumar Tanwar, PW56 Dr. Subrat Kumar Choudhury and PW58 Sh. Amitosh Kumar, all forensic experts posted in the Physics Division of the Central Forensic Science Laboratory, CBI, New Delhi, were members of the board of experts constituted with approval of their Director for examination of the questioned and specimen voice samples of PW19 Sh. Revadhar Bhatt, PW16 Sh. Sanjay Kumar, A‑1 and A‑3. They deposed about the process of examination and proved their report Ex. PW55/A (colly) (pages 1395‑1407) and note sheets and spectrography examination of the voices as Ex. PW55/B (colly) (pages 1507‑1669)., PW57, Dr. C. P. Singh, a forensic expert of the Physics Division of the Forensic Science Laboratory, Rohini, examined the questioned and specimen voice samples of PW19 Sh. Revadhar Bhatt and A‑1 and proved his report Ex. PW57/A (colly) (pages 1369‑1371), also identifying the exhibits shown to him in the Delhi High Court., PW59, Ms. Anjali Singh, forensic expert of the Forensic Science Laboratory, Rohini, Documents Division, examined the handwriting of the deceased appearing in the suicide note, diary etc., in comparison with his admitted writings seized during investigation. She proved her report Ex. PW59/A (colly) (pages 1285‑1287) and identified the exhibits shown to her in the Delhi High Court., PW60, Ms. Saloni Singh, Duty Metropolitan Magistrate in District South, Saket Court Complex, New Delhi, on 22‑04‑2020 recorded a statement under Section 164 of the Criminal Procedure Code as Ex. PW60/C (colly) (pages 1753‑1765) of PW19 Sh. Revadhar Bhatt and proved other documents pertaining to the recording. On 20‑05‑2020 she also recorded statements of PW23 Sh. Himmat Singh and Sh. Rajbir Singh, already Ex. PW23/A (colly) (pages 1805‑1809) and Ex. PW60/G (colly) (pages 1783‑1789), and proved additional documents., PW61, Sh. Anuj Kumar Singh, Duty Metropolitan Magistrate in District South, Saket Courts, New Delhi, on 21‑05‑2020 recorded the statement already Ex. PW34/A (colly) (pages 1819‑1821) of PW34 Sh. Arvind and proved other documents., PW62, Ms. Alka Singh, Duty Metropolitan Magistrate in District South, Saket Courts, New Delhi, on 26‑05‑2020, on an application Ex. PW62/E (page 1827) moved by the Investigating Officer, permitted recording of the statement already Ex. PW28/A of PW28 Sh. Chiranji Lal vide her order Ex. PW62/B (page 1829) and appended certificate Ex. PW62/D (page 1835) about correctness of its contents. A copy of the statement was allowed to be given to the Investigating Officer and the original proceedings were directed to be sent to the concerned court vide her order Ex. PW62/C (page 1835). The witness was identified during the statement by the Investigating Officer vide his statement Ex. PW62/A (page 1829)., PW63, Sh. Vishal Sawla Pandhare, Junior Forensic/Assistant Chemical Examiner‑cum‑Examiner of Electronic Evidence in the Forensic Science Laboratory, Rohini, Delhi, examined the contents of two mobile phones (make Samsung and OPPO) and their accessories seized during investigation, transferred the data to two separate pen drives, and proved two reports dated 06‑01‑2021 and 12‑04‑2021 regarding transfer and examination as Ex. PW63/A and Ex. PW63/D (page 1375). He also proved certificates under Section 65B of the Indian Evidence Act regarding authenticity of the retrieval process as Ex. PW63/B and Ex. PW63/E (page 1377), and letters forwarding the reports with exhibits back to the ACP as Ex. PW63/C and Ex. PW63/F (page 1373). He identified the Samsung phone as Mark‑X, its battery as Ex. PW63/X1, two SIM cards (Jio and Idea) as Ex. PW63/X2 and Ex. PW63/X3, and a 2 GB Micro SD card as Ex. PW63/X4. He identified the OPPO phone as Mark‑Y, a 2 GB Micro Plus memory card as Ex. PW63/X5, and the two pen drives as Ex. P1 and Ex. P2. He stated that the OPPO phone and accessories could not initially be opened; they were later examined after the password was provided by police officials. The original reports and certificates were taken on record by the Delhi High Court on 17‑12‑2021, and copies were exhibited as Ex. PW63/A, Ex. PW63/B and Ex. PW63/C.
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Kumar Rajiv is the main Investigating Officer and he stated that the investigation of the present case was transferred and the case file was received in the District Investigation Unit, South District from Police Station Neb Sarai on 30 April 2020, after which he examined the case file. He examined the complainant Shri Hemant Singh, his mother and other witnesses and recorded their statements under Section 161 of the Criminal Procedure Code. He arrested the accused Prakash Jarwal and Kapil Nagar from the office of Special Staff, Pushp Vihar on 9 May 2020 vide arrest memos already Exhibit PW50/A and Exhibit PW43/A, conducted their personal searches vide memos Exhibit PW50/B and Exhibit PW50/C, recorded their disclosure statements vide Exhibit PW50/D and Exhibit PW50/E and their supplementary disclosure statements subsequently vide Exhibit PW50/J and Exhibit PW50/K. He also seized the mobile phone of the deceased vide Exhibit PW1/I, various documents from officials of Muthoot Finance Corporation, Deoli and Khanpur branches vide seizure memos Exhibit PW50/L and Exhibit PW50/M, and the mobile phones of the two accused vide Exhibit PW50/G and Exhibit PW50/H. Additional items seized include documents and files from the office of Delhi Jal Board vide Exhibit PW50/I and Exhibit PW20/K, documents relating to tankers of accused A-2 vide Exhibit PW24/B, original cheques bearing the deceased’s signature from the office of Corporation Bank, Deoli Branch vide Exhibit PW33/D, and one mobile phone containing recordings of threats extended by accused A-3 vide Exhibit PW1/K. He also collected voice samples of witness Shri Revadhar Bhatt in the Forensic Science Laboratory, Rohini, and seized two sealed envelopes containing original and duplicate voice samples of the witness, as produced by Sub‑Inspector Kailash, vide seizure memo Exhibit PW46/F. He identified his signatures on other letters, notes and certified copies of documents seized during the investigation. Later he arrested accused A-3 Harish Jarwal, conducted his personal search and recorded his disclosure statement vide Exhibit PW50/N, Exhibit PW50/O and Exhibit PW50/P. He recorded statements under Section 164 of the Criminal Procedure Code of some witnesses, obtained the crime team report vide Exhibit PW38/A and collected the post‑mortem report of the deceased vide Exhibit PW37/A. After completing the investigation he prepared a charge‑sheet and submitted it for scrutiny of the prosecution branch, and during that period he was transferred from the District Investigation Unit to Police Station Vasant Kunj. He also exhibited on record a notice under Section 160 of the Criminal Procedure Code given to the Manager of Muthoot Finance Corporation (Exhibit PW64/A), letters of the Director of the Forensic Science Laboratory for recording voice samples of accused A-1 Prakash Jarwal and PW16 Shri Sanjay (Exhibit PW64/D and Exhibit PW64/E), a notice given to an official of Delhi Jal Board (Exhibit PW64/F) and documents received in response (Exhibit PW64/G), besides other documents and identification of case property., The incriminating evidence put on record by the prosecution was placed before the accused persons in their statements recorded by the Delhi High Court under the provisions of Section 313 of the Criminal Procedure Code. All of them denied the evidence, claiming it to be incorrect or beyond their knowledge, and asserted their innocence, alleging that they were falsely implicated by the deceased and his family members at the instance of a water‑tanker mafia. They claimed that the deceased had earlier been involved in a sting operation known as “Kala Paani” conducted in 2015, after which his tankers were black‑listed by the Delhi Jal Board. They alleged that the deceased believed the accused were behind that operation, leading his family to falsely implicate them. They further asserted that the deceased suffered a serious heart problem and other health issues, had taken loans from various banks due to family problems, and, being unable to repay those loans and suffering from depression, committed suicide. They maintained that some witnesses who deposed against them did so either falsely or under police pressure and had no role in the deceased’s suicide. They also expressed ignorance about the investigation or other proceedings conducted by the Investigating Officers, and about the preparation of various documents related to the investigation., Accused A-1 Prakash Jarwal and accused A-2 Kapil Nagar submitted that, to the best of their knowledge, the deceased was not a qualified doctor, that they had never met the deceased or his family members, and that they had no interaction with them. They claimed ignorance about the examination of exhibits by the Central Forensic Science Laboratory and the Forensic Science Laboratory experts, contending that those experts did not follow the prescribed procedure and that their reports were unreliable and could not be considered as evidence. Accused A-1 further stated that his identification by some witnesses was only because he was a known local MLA, that the deceased had been prosecuted by the Medical Council of India for running an unlicensed clinic and subsequently suffered a heart attack, and that the witnesses against him were interested and motivated, while the police investigation was misconducted on directions of superiors, ruining his social and political life. He also asserted that the deceased’s family members did not support the prosecution. Accused A-2 claimed to be a building‑material supplier, property dealer and worker of the Aam Aadmi Party, and reiterated that his false implication arose from the deceased’s and his family’s impression that he was behind the sting operation, which led the deceased to commit suicide due to depression, health issues and financial problems. Accused A-3 Harish Kumar Jarwal asserted that his actual name is Harish Kumar, that he has no relation to accused A-1, and that he was falsely implicated as a volunteer of the Aam Aadmi Party and because of the deceased’s impression. He admitted making a phone call to PW16 Shri Sanjay Kumar, which may have been recorded, but denied making any threatening call to the witness or the deceased, and specifically denied extending any threats to the deceased or his family., The Learned Additional Public Prosecutor, Shri Manish Rawat, argued that despite most witnesses, including the deceased’s family members, turning hostile on material aspects, the prosecution was able to establish the guilt of the accused beyond reasonable doubt through the testimonies of other witnesses and the reports of experts from the Central Forensic Science Laboratory, the Central Bureau of Investigation, New Delhi, and the Forensic Science Laboratory, Rohini, Delhi. He submitted that the complainant, Shri Hemant Singh, although not supporting the prosecution on the charge of commission of suicide by his father Dr. Rajendra Singh, nevertheless deposed that his father died by suicide and identified his own signatures on the complaint lodged with the police. He further stated that the complainant’s handwriting in the suicide note and diary resembled his father’s handwriting, and that a handwriting expert’s report corroborated this similarity, establishing that the writings were of the deceased. The prosecutor contended that the suicide was caused by abetment, threats and extortion by the accused, who were members of the water mafia of Deoli, Khanpur and adjoining areas, and who had caused the deceased’s tankers to be black‑listed and payments to be stopped., The Learned Counsel for the accused, Shri S. P. Kaushal, vehemently argued that the prosecution failed to prove any charge of criminal conspiracy or other substantive offences against his client, as there was no evidence on record. He highlighted that close family members of the deceased – Shri Hemant Singh, Smt. Brahmwati and Shri Charan Singh – did not support the prosecution’s case of abetment, and that their testimonies indicated the deceased took his own life due to poor health, family problems and financial constraints. He further challenged the credibility of witness PW34 Shri Arvind Kumar, describing him as an interested witness whose testimony contained material contradictions and could not be relied upon. The counsel for the accused also pointed out that the star witness, Shri Revadhar Bhatt, turned hostile and corroborated the family’s version that the suicide resulted from the deceased’s heart ailment and financial difficulties, not from any pressure by the accused. He argued that no tanker of the deceased’s family was attached to the Delhi Jal Board after the 2015 sting operation, undermining the prosecution’s claim of extortion., The Learned Counsel for the accused also contested the expert testimony of the Central Forensic Science Laboratory and the Forensic Science Laboratory, asserting that there were serious discrepancies, material contradictions and lack of proper worksheets to establish the authenticity of voice and handwriting comparisons. He maintained that the suicide note and diary were vague, undated, and reflected the deceased’s poor mental state, and that there was no temporal proximity between any alleged threat or extortion and the suicide. He further argued that documents and applications collected from the Delhi Jal Board showed that no payment was due to the deceased’s family at the time of his death, and that the deceased’s tankers had been black‑listed since 2015, making the allegation of stopped payments false. Consequently, the counsel submitted that the commission of suicide was purely due to the deceased’s ill health, family problems and financial constraints, and that the accused were falsely implicated because of the deceased’s and his family’s impression that they were behind the “Kala Paani” sting operation.
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Counsel that evidence on record nowhere shows that alleged delay in release of payments, if any, to family of deceased was because of influence or role played by A1 or any other accused. It is further his submission that no recovery of any part of amounts allegedly extorted from the deceased has been effected from any of the accused and there is also no proof of any actual payment of extortion money by the deceased or his family members to any of the accused., It is further the contention of learned Counsel representing these two accused that A-3 is not related to A-1 in any manner and he does not even use the surname 'Jarwal' as he is known by the name of 'Harish Kumar' only and there is nothing on record to show how he has been involved or implicated in this case with the surname 'Jarwal'. It is also his submission that it has been done only to show him in close relation with the main accused Prakash Jarwal (A-1). It is further his submission that even the expert evidence about comparison of voice of this accused in the threatening call allegedly extended by him to the deceased through witness 16 Sanjay is not admissible in evidence and it is not sufficient to establish that the voice appearing in the said threatening call is of this accused. It is also his submission that even admittedly, the said threat was not extended by this accused directly to the deceased or any other person of his family or even to a witness as witness 16 does not support the case of prosecution on the above aspect about extension of any threat to him by this accused or to the deceased or any other person through him., In support of his above arguments, learned Counsel for A-2 and A-3 has relied upon judgments in the cases of Shikha Gupta versus State (GNCT of Delhi), MANU/DE/0035/2019; Rajesh versus State of Haryana, SLP (Criminal) No. 8867/2017; V.V. Singara Velu and others versus State of Karnataka, MANU/KA/1445/2023; Neeraj Gupta versus State, 2006 (90) Delhi Law Journal 725; Suresh Dhirani and others versus State of Chhattisgarh, MANU/CG/1073/2023; Taranjeet Singh Gujral and others versus State of Madhya Pradesh, MANU/MP/1922/2023; V.P. Singh etc. versus State of Punjab, 2022 SCC Online SC 1999; S.S. Chheena (supra); Gurcharan Singh versus State of Punjab, 2020 SCC Online SC 796; Kanchan Sharma versus State of Uttar Pradesh and another, 2021 SCC Online SC 737; Manohar and others versus State of Maharashtra, MANU/MH/2983/2023; Colonel J.S. Ghura versus State of Rajasthan, 1996 Criminal Law Reporter (Rajasthan) 22; Suryakanth versus State of Karnataka, 2003 Indian Law Reports (Karnataka) 2720 and Sudhakar versus State of Maharashtra, 2000 (3) Crimes 122., The evidence led on record by prosecution in support of charges framed against the accused persons and the arguments advanced from both sides on the aspect of framing of charges can be broadly appreciated and considered under the following heads., As already discussed, Dr. Rajendra Singh died by hanging with a rope tied to the railing of a room built on the terrace of his house and admittedly his death was suicidal in nature and it did not amount to culpable homicide, intentional or otherwise. Though his immediate family members – his son witness 1 complainant Hemant and his wife witness 2 Brahmwati, his near relatives such as witness 25 Jitan Singh and witness 41 Charan Singh, who are his nephew and brother respectively, and various other witnesses examined on record did not support the prosecution case regarding instigation or abetment of the deceased by the accused persons for commission of suicide, it certainly emerges from their testimonies that the death by hanging was a suicide only and not a culpable homicide., Again, the fact that the deceased committed suicide is corroborated by the contents of his post‑mortem report Exhibit PW37/A (pages 423‑431), which has been duly proved on record through the testimony of witness 37 Captain (Doctor) Antara Debbarma, who was chairperson of the medical board of doctors of All India Institute of Medical Sciences constituted for conducting the post‑mortem of the deceased. As per the depositions of this witness and the post‑mortem report, the cause of death was asphyxia due to antemortem hanging., Although Smt. Pramila Pandey, who noticed the body of the deceased hanging on a rope tied to the railing of the room and who was living as a tenant on the upper portion of the house, was not examined as a witness during the trial, her non‑examination is not found to have adversely affected the prosecution case because she was only a witness to the fact of the hanging and had no further role. She did not see the deceased committing suicide and therefore is not an eye‑witness of the commission of suicide nor a witness of the reasons or grounds behind it., The non‑examination of witness Smt. Pramila Pandey was not due to any lapse or fault on the part of prosecution; she was not intentionally withheld but could not be traced because by the time she was summoned she had left the tenanted premises and was no longer residing at the address. Consequently, the learned Prosecutor, who was in charge of prosecution on 2 July 2022, had to drop her as a witness., The evidence led on record is required to be appreciated to find out whether the commission of suicide by the deceased was a result of abetment given by the accused persons or because of other reasons or factors., As stated above, a charge for commission of the offence punishable under Section 306 read with Section 34 of the Indian Penal Code has been framed by this Hon'ble Court against A-1 Prakash Jarwal and A-2 Kapil Nagar on allegations that the suicide of Dr. Rajendra Singh on 18 April 2020 at around 6 a.m. at his house No. A‑144, top floor, Durga Vihar, Deoli, New Delhi was the result of continuous harassment and torture by the two accused who were threatening him to pay extortion money. As per the charge, the deceased was threatened to pay Rs 15,000 for small and Rs 20,000 for big tankers monthly to the accused persons if he wanted to ply his tankers with Delhi Jal Board, and at the time of the 2020 Delhi Legislative Assembly elections the accused demanded Rs 51,000 for small and Rs 71,000 for big tankers as election expenditure, apart from the monthly charges. Further, the charge states that the deceased was threatened that if he did not pay the demanded amounts, he would not be able to ply his tankers in Delhi Jal Board, his tankers would be discontinued and his dues would not be cleared by Delhi Jal Board., Section 306 of the Indian Penal Code deals with punishment for the offence of abetment of suicide in the following words: “306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”, However, the word “abet” has not been defined by this section and recourse must be taken to Section 107 of the Indian Penal Code for its meaning. Section 107 defines abetment as: “107. Abetment of a thing. A person abets the doing of a thing who (i) first instigates any person to do that thing; or (ii) secondly engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (iii) thirdly intentionally aids, by any act or illegal omission, the doing of that thing.” Explanation 1: A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2: Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act., Thus, to “abet” the doing of a thing under Section 107, a person may do so in three ways: firstly by instigating the other person; secondly by engaging in a conspiracy where an act or illegal omission is carried out in pursuance of that conspiracy; and thirdly by intentionally aiding, by any act or illegal omission, the doing of that thing., Although a charge for the offence of criminal conspiracy punishable under Section 120B read with Sections 384, 386 and 506 of the Indian Penal Code was framed against A-1 and A-2, no charge for the offence punishable under Section 306 with the help of Section 120B was framed. The charge under Section 306 was framed with the help of Section 34 of the Indian Penal Code only, which deals with acts done by several persons in furtherance of their common intention. It was because no criminal conspiracy could be established between the accused persons for abetting the commission of suicide, although a conspiracy might have existed for extortion, threats or even murder. Since the prosecution case does not allege that the accused, by their acts or illegal omissions, intentionally added to the commission of suicide, the present case falls only within the first category of Section 107, i.e., instigation, and it must be seen whether the two accused, in furtherance of their common intention, instigated the deceased to commit suicide., In the celebrated case of Ramesh Kumar (supra), which has been relied upon on behalf of A-1 and is also referred to in several other judgments, the Full Bench of the Hon'ble Supreme Court explained the term “instigation” as follows: “Instigation is to goad, urge forward, provoke, incite or encourage to do an act. To satisfy the requirement of instigation it is not necessary that actual words must be used; what constitutes instigation must be suggestive of the consequence, yet a reasonable certainty to incite the consequence must be capable of being spelt out. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” (Emphasis supplied), The observations on “instigation” were reiterated in the Division Bench judgment of the Hon'ble Supreme Court in Chitresh Kumar Chopra versus State (2009) 16 SCC 605, where the meanings of “goad” and “urge” were explained: “To constitute ‘instigation’, a person who instigates another has to provoke, incite, urge or encourage the act by ‘goading’ or ‘urging forward’. The dictionary meaning of ‘goad’ is ‘a thing that stimulates someone into action: provoke to action or reaction’. ‘Urge’ means to advise or try hard to persuade somebody to do something or to make a person move more quickly in a particular direction, especially by pushing or forcing.” The Court further held that to prove abetment of suicide, it must be established that (i) the accused kept irritating or annoying the deceased by words, deeds or wilful omission until the deceased reacted, and (ii) the accused intended to provoke, urge or encourage the deceased to commit suicide. Presence of mens rea is a necessary concomitant of instigation. (Emphasis supplied), In light of the above legal position, it is necessary to examine whether the oral and documentary evidence on record is sufficient to prove the charge framed under Section 306 read with Section 34 against A-1 and A-2 for the offence of abetment of suicide, or whether the suicide was a result of abetment or instigation by them., Before dealing with the suicide note or diary writings of the deceased and issues of admissibility, it is first necessary to appreciate the oral evidence led on record in support of the allegations and the charge framed against the accused., Among the witnesses examined, witnesses 1 Hemant Singh, 2 Brahmwati, 25 Jitan Singh, 34 Arvind and 41 Charan Singh were the most important witnesses for the prosecution as they are immediate family members or close relatives of the deceased. Additionally, witnesses 3 Lalit, 19 Revadhar Bhatt and 21 Prem Pal were alleged to be witnesses; witnesses 3 and 21 were drivers employed on the deceased’s tankers and witness 19 was his employee working as a compounder in his clinic. It is a matter of record that the deceased Dr. Rajendra Singh, though not a qualified doctor, was running a small polyclinic at his residence., Except for witness 34 Arvind, whose testimony will be discussed separately, none of the other witnesses from the above list supported the prosecution case regarding the charges against the accused. They turned hostile during their examinations and denied their statements recorded under Section 161 of the Criminal Procedure Code by the Investigating Officer. Consequently, none of them deposed that the two accused had extended any threats for extortion in connection with the deployment or operation of the deceased’s tankers, nor that any amount was ever paid by the deceased to the accused, nor that any threats were made to the life or property of the deceased or his family., Besides these, various other prosecution witnesses such as witnesses 4 Ramesh Kumar Goswami, 7 Tilak Raj, 8 Dharamvir Singh, 10 Sukhbir Singh, 11 Rinku, 12 Mohit Kumar, 13 Pramod, 14 Jitender, 15 Ajit Kumar, 16 Sanjay, 17 Vinod Kumar and 28 Chiranji Lal were examined to establish the charges. However, all of them turned hostile and rescinded their earlier statements recorded under Section 161 by the Investigating Officer. They were owners, drivers or operators of other water tankers operating in Deoli and Khanpur in association with Delhi Jal Board. None of them stated that any of the accused demanded monthly sums or other amounts from them for tanker operation. Witness 28 Chiranji Lal admitted his signature on his statement Exhibit PW28/A (pages 1831‑1833) recorded under Section 164 of the Criminal Procedure Code but claimed it was not voluntary and was made under police pressure., Additional witnesses examined by the prosecution include witnesses 5 Satbir, 6 Rajbir Singh, 9 Ram Kumar and 18 Shishpal, who lived or worked in the vicinity and claimed to have visited the deceased’s clinic. Like the other witnesses, they did not support the prosecution case regarding the charges and expressed ignorance about the reasons for the deceased’s suicide., The prosecution also examined officials from the office of Delhi Jal Board, such as witness 20 Ms. Jyoti Sharma, 22 Prem Singh, 23 Himmat Singh, 27 Naresh Kumar Kardam, 31 Arvind Kaushik and 32 N.K. Sharma. These witnesses appeared in their official capacities and testified about the nature of their duties and certain documents, but none made any allegation against the accused or held them responsible for the suicide., Witnesses 22, 23 and 27 stated that they looked after water‑tanker distribution work in Deoli and surrounding areas, but also stated that no tanker of the deceased was deployed with Delhi Jal Board at the relevant time and they knew nothing about the reasons for the suicide. They denied their earlier statements recorded under Section 161 that alleged harassment by the accused, and denied any oral complaints by tanker owners about money demands or involvement of the accused in delaying payments. They also denied that after A-1 became a Member of Legislative Assembly and a member of Delhi Jal Board, there was any change in water distribution work., Witnesses 33 Harkesh of the Corporation Bank, 36 Manoj Kumar of the Deoli branch of Muthoot Fincorp Ltd., and 39 Manoj Kumar of the Khanpur branch of Muthoot Fincorp were official witnesses who handed over certain documents or statements of loan accounts of the deceased, his family members or other persons to the Investigating Officer. Their testimonies do not incriminate the two accused for the charge under Section 306/34, as they do not prove that the loan amounts were intended for payment of extortion to the accused, though they may be considered as a circumstance for appreciating the writings left by the deceased., Witness 34 Arvind, who is the nephew of the deceased, deposed that the deceased committed suicide because MLA Prakash Jarwal and Kapil Nagar were harassing him since Prakash Jarwal became an MLA and they were extorting him, leading to his suicide. During his examination‑in‑chief he made many specific depositions about payments made to the accused and identified all three accused in court. However, during cross‑examination by learned Counsel for A-1, his testimony was confronted with his earlier statement recorded under Section 161 of the Criminal Procedure Code (Exhibit PW34/P1, page 1713). The confrontations concerned material aspects and render those portions of his testimony unworthy of acceptance as they appear to be improvements over his earlier statement., The inconsistencies do not result in total rejection of his testimony. The court may accept the portions of his statement that inspire confidence and are trustworthy in light of the facts and other evidence, while rejecting the portions that appear false. This approach is consistent with the judgment of the Hon'ble Supreme Court dated 25 February 2009 in Mani @ Udattu Man and others versus State represented by Inspector of Police, Criminal Appeal Nos. 382‑384 of 2008, where the Court held that the maxim “falsus in uno, falsus in omnibus” has no application in India and that a witness’s testimony may be given weight selectively., During his examination‑in‑chief, witness 34 Arvind specifically stated that since A-1 became a Member of Legislative Assembly, both accused were harassing his uncle Dr. Rajendra Singh, who then committed suicide, and that both accused were extorting his uncle. He also produced his previous statement recorded under Section 164 of the Criminal Procedure Code (Exhibit PW34/A, pages 1819‑1821) and identified the three accused in court., The statement of witness 34 Arvind was recorded by witness 61 Anuj Kumar Singh, the then learned Duty Metropolitan Magistrate of District South, Saket Courts, New Delhi, who also deposed that the statement was recorded on an application Exhibit PW61/A (page 1817) moved by the Investigating Officer and on identification of the witness vide statement Exhibit PW46/B (page 1795) of the Investigating Officer/Superintendent of Police Kailash Chand. He also produced the certificate of correctness of the statement (Exhibit PW61/C, page 1823).
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PW34/A, the witness, stated that A-1 was continuously harassing his uncle since the time he became a Member of Legislative Assembly on ticket of the Aam Aadmi Party and he illegally demanded money from his uncle Dr. Rajendra Singh, who had been providing services of his tankers in Delhi Jal Board since the year 2005. PW34 further stated that his uncle had told him about it many times and he had even gone to meet A-1 and A-2 and talked to them telephonically, but the accused persons were clear in their demands. He also stated that he requested A-2 to reduce the demanded amount and when they went to meet A-1, A-1 refused to reduce the amount and told them that if they wanted to live there, they should continue to make the timely payments, otherwise the results would be bad for them. He further told the Learned Duty Metropolitan Magistrate Court in his statement that both accused kept on increasing the demanded amounts and started talking to him on WhatsApp and Facebook Messenger. It is also recorded in PW34’s statement that his deceased uncle had telephonically informed him, just two days prior to his suicide, that the accused had ruined him, had got his tankers discontinued and payments stopped and were demanding more money from him. PW34 was also told by his uncle that he was tired of paying money to the accused persons and that he possessed some recordings of threats and messages of the accused., It is observed that during his cross‑examination, PW34 was confronted on different aspects with the contents of his previous statement Ex. PW34/P1 (on page 1713) recorded under Section 161 of the Code of Criminal Procedure during the investigation, but there were no confrontations with any portion of his other statement Ex. PW34/A recorded under Section 164 of the Code of Criminal Procedure. Although the Learned Counsel for A‑1 suggested that his statement made during examination‑in‑chief before the court as well as his above statement Ex. PW34/A made under Section 164 contained drastic improvements over his other statement given to the police, the witness denied this suggestion as wrong and the Learned Defence Counsel failed to point out any material contradictions in the above statement Ex. PW34/A and the statement he made before the court. The defence also did not suggest that his above statement Ex. PW34/A given before the Learned Duty Metropolitan Magistrate Court was false, and therefore there is no challenge from the defence to the facts stated by this witness in his above statement Ex. PW34/A. The statement duly corroborates the testimony of the witness before the court that both accused had long been continuously harassing the deceased and were extracting different amounts of money from him in relation to deployment or running of his tankers with Delhi Jal Board. It also corroborates the depositions that both accused kept on increasing the amounts being demanded as extortion money, causing the deceased to be under tremendous mental pressure to pay the said amounts, ultimately leading him to commit suicide as he could not bear the pressure created because of such demands., The documentary evidence on record on the point of the above charge, as well as the other charges, can be divided into the following categories. As stated above, the deceased had left behind some writings in a note (suicide note), a diary and a bill book being kept and maintained by him, and these writings are stated to pertain to the reasons and causes resulting in the commission of suicide by him. The suicide note consisting of six pages left by the deceased is Ex. PW1/D on record (available in an envelope on page 1291) and the diary and bill book are Ex. PW1/B (available in an envelope on page 1355) and Ex. PW1/C (available in an envelope on page 1357) respectively. All these documents were seized from the house of the deceased by PW47, Sub‑Inspector Shiv Singh, who visited the place of incident on being assigned DD No. 11A Ex. PW45/A (D5 on page 257) recorded by PW45, Assistant Sub‑Inspector Sudhir at Police Station Neb Sarai on the basis of a PCR call. PW47 duly proved on record the seizure memo of the above documents as Ex. PW1/E (D14 on page 311), which was prepared by him and is found witnessed by PW40, Head Constable Tejpal, the complainant PW1 Shri Hemant and PW41 Shri Charan Singh. The memo and seizure of the above documents have been duly proved on record from the testimonies of the police witnesses, even though other witnesses to the memo denied seizure of the articles in their presence despite identifying their signatures thereon., The contents of the writings of the deceased contained in the six‑page suicide note and his diary have already been reproduced above and there is no doubt that these writings pertain to the reasons behind or the cause of death of the deceased. It has been observed that even the bill book Ex. PW1/C left by the deceased contains one writing pertaining to the commission of suicide by him and this writing, along with his writings in the suicide note and diary, was sent to the Forensic Science Laboratory, Rohini, Delhi for forensic analysis and comparison of questioned and admitted writings of the deceased. The contents of this writing of the deceased are also reproduced herein below: Mo 9811292950., Such writings of any person or witness are statements left by the person or witness and generally form a piece of hearsay evidence. However, if any such writing or statement falls in the different categories provided by Section 32 of the Indian Evidence Act, then such writing or statement can be admitted as a relevant piece of evidence as Sections 32 and 33 of the Indian Evidence Act are held to be exceptions to the general rule that hearsay evidence is not admissible. The reason behind exclusion of hearsay evidence is that it has always been considered desirable in the interests of justice that the person whose statement is being relied upon should be present in court for his examination in the regular way, in order to test the trustworthiness of the facts stated in the statement. It is only after the witness undergoes the test of cross‑examination successfully that any such statement made by the witness, or even the depositions made by him during his examination‑in‑chief, can be accepted and acted upon by the court., Section 32 of the Indian Evidence Act deals with cases in which statements containing relevant facts made by a person who is dead or whose presence cannot otherwise be procured by the court have been considered relevant. It provides as follows: “Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) when it relates to cause of death. When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”, Thus, it is clear from the provisions contained under Section 32 of the Indian Evidence Act that the writings contained in the diary, bill book and suicide note Ex. PW1/B, Ex. PW1/C and Ex. PW1/D respectively of the deceased are his statements falling under Section 32(1) as the maker thereof is no longer available due to his death and the same are relevant as they relate to the cause of his death or commission of suicide by him or to the circumstances resulting in his death, and the cause of his death is directly in question before this court. A suicide note in common parlance is known as a letter or writing in any other form that somebody leaves before he kills or tries to kill himself and to qualify such a letter or writing to be a statement under the ambit of Section 32(1) of the Indian Evidence Act, it should relate to the cause of death of such person or to the circumstances of the transaction resulting in his death. Further, as the name suggests, it should be made by a person who subsequently took his own life. A dying declaration is known as the last declaration or statement made by the deceased before he passes away and to be admissible under Section 32(1) of the Indian Evidence Act, such a declaration or statement has also to meet the same requirements. However, unlike a suicide note, the death of the person making the declaration can be either suicidal or homicidal., Thus, although technically a suicide note is different from a dying declaration made by a deceased, practically both fall in the category of statements made by persons who cannot be called as witnesses or are no longer available for making depositions before the court and hence, if the conditions laid down under Section 32(1) of the Indian Evidence Act are satisfied, both statements of the deceased are liable to be governed by the provisions of that section and become admissible as well as relevant in a case. There may be circumstances when a suicide note left by the deceased is liable to be considered as a dying declaration and the prime requirement for this is that the suicide note must be connected or related to the cause of death of such person or to any of the circumstances of the transaction which were the reasons for his death. Hence, the principles which broadly govern the credibility and acceptability of a suicide note or dying declaration are the same., It is settled that evidence in the form of a dying declaration, whether oral or in writing, has to be treated with care and caution since the maker thereof is no longer available and cannot be subjected to cross‑examination. This care and caution is required to a higher degree for considering an oral dying declaration of a deceased in comparison to a written dying declaration left by him, because in the case of an oral dying declaration the credibility of the person deposing about the oral declaration and the veracity of his testimony must first be tested before the declaration can be considered as vital evidence. The possibility cannot be ruled out that the person or witness who is deposing about such oral dying declaration of the deceased, or even the deceased who made such declaration, was or is trying to fix or frame the accused., Further, even in the case of a written dying declaration or suicide note, the prosecution has to prove first that the declaration was left by the deceased only, that it is an authentic piece of evidence and that there are no chances of it being planted by anyone else. It must also be shown that the declaration was made voluntarily by the deceased, that it inspires confidence, is credible and is consistent with the facts and circumstances of the case. If the prosecution is successful in establishing these requirements, the declaration can even form the sole basis for conviction of an accused without seeking any corroboration of the particulars stated therein. Reference in this regard can be made to the judgment of the Hon’ble Supreme Court in Atbir Vs. Government (NCT) of Delhi, (2010) 9 SCC 1, wherein the Court summed up the legal principles governing a dying declaration., The Court held that (i) a dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court; (ii) the Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination; (iii) where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration; (iv) it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (v) where a dying declaration is suspicious, it should not be acted upon without corroborative evidence; (vi) a dying declaration which suffers from infirmity such as the deceased being unconscious cannot form the basis of conviction; (vii) merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected; (viii) even if it is a brief statement, it is not to be discarded; (ix) when the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail; (x) if after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration., Similarly, in Ramakant Mishra @ Lalu etc. Vs. State of Uttar Pradesh, (2015) 3 SCALE 186, the Hon’ble Supreme Court observed that the admissibility of a dying declaration as evidence in a trial is governed by Section 32(1) of the Evidence Act, 1872. The Court noted that such statements are not made on oath and the maker is not available for cross‑examination, therefore they must be examined with great circumspection and care. Once a dying declaration is held to be authentic, inspiring full confidence beyond a reasonable doubt, voluntary, consistent and credible, it can be the exclusive basis for conviction without seeking any corroboration. The Court also explained that the sanctity attached to a dying declaration springs from the rationale that a person genuinely under the sense of imminent death would speak only the truth., The corroboration of particulars contained in a dying declaration or suicide note and the claims made by the deceased about the reasons for taking the extreme step of suicide is only a rule of prudence and not a rule of law. Corroboration is required merely to ensure that the commission of suicide was only because of the acts attributed to the accused and not because of any other reasons, and that the declaration or note was made voluntarily without tutoring, pressure or influence. The court must also be satisfied that at the time of making the statement the deceased was in a proper and fit mental state. Once these conditions are established, there is no need to look for any further corroboration of the contents of such a statement., In the present case, before the suicide notes or writings allegedly left by the deceased can be considered by this court, the prosecution must first establish that they are actually in the handwriting of the deceased himself and were not written by anyone else. The suicide note, diary and bill book containing these writings were seized by PW47 from the room of the deceased vide seizure memo Ex. PW1/E (D14 on page 311). During his examination in this court, the son of the deceased, Shri Hemant (PW1), was shown all the writings contained in the suicide note, diary and bill book recovered from his father's room and he stated that the writing in diary Ex. PW1/B as well as the writing appearing in bill book Ex. PW1/C in Hindi language was similar to his father's writing, though he was not sure about the material or words written in English in the bill book. He was also shown the suicide note Ex. PW1/D and stated in clear terms that it was in his father's handwriting. No other family member or relative was shown to have been a witness of identification of the deceased’s handwriting in these documents., Besides PW1, PW59 Ms. Anjali Singh is another material witness of the prosecution on this aspect as she is the concerned handwriting expert of the Forensic Science Laboratory, Rohini, who examined the questioned and admitted handwritings of the deceased. She deposed before this court that the exhibits of this case were received in the laboratory on 02.06.2020, were marked for examination and were examined by her. She stated that the documents containing the questioned writings of the deceased were numbered Q1 to Q86 and were on six ruled sheets and one diary, and the documents numbered A1 to A27 were the admitted documents of the deceased Dr. Rajendra Singh. During her examination in this court, she identified the questioned writings numbered Q1 to Q86 as appearing in the diary Ex. PW1/B and suicide note Ex. PW1/D, and also identified another writing of the deceased contained in the bill book Ex. PW1/C and marked as A27, together with other admitted writings marked A1 to A26., It has been observed on perusal of the record that the writings in Hindi language contained in the suicide note Ex. PW1/D and sent for forensic analysis were marked Q1 to Q8, and the writings in Hindi language appearing in the diary Ex. PW1/B were marked Q9 to Q52. The initials and signatures of the deceased in English language in the suicide note and diary are marked Q53 to Q55 and Q56 to Q79 respectively, and his full signatures in English as Rajendra Singh are marked Q80 & Q81 and Q82 to Q86 respectively. One other writing of the deceased in Hindi language contained in the bill book Ex. PW1/C and also containing his full signatures in Hindi was marked A27, and the other admitted writings marked A1 to A26 are on documents Ex. PW42/B, Ex. PW33/B, Ex. PW33/C (collated) and Ex. PW49/D (collated)., The application Ex. PW42/B (on page 1293) is an application given by the deceased in his own name to the Secretary, Delhi Municipal Corporation in response to a complaint made against him about running of the clinic and it contains his signatures in Hindi; the entire writing is marked as A1. The document Ex. PW33/B (on pages 1295‑1307) is a set of two account opening forms of Corporation Bank in the name of the deceased; only the initials of the deceased in English are marked as A2 to A10. The document Ex. PW33/C (collated) (on pages 1309‑1317) consists of four cheques of different amounts and one pay‑in slip of account No. 13130000101002046 maintained in Corporation Bank, Deoli Branch, New Delhi; the initials of the deceased in English on these documents are marked as A11 to A18. The documents Ex. PW49/D (collated) (on pages 1319‑1331) are some other applications given in the name of the deceased, his wife or other persons to different authorities in Delhi Jal Board and SHO Neb Sarai and contain the handwriting and signatures of the deceased; the contents have been numbered as A19 to A21, A23 and A24, while a portion containing a mix of Hindi and English words and figures was numbered as A22. A25 and A26 are two other writings stated to be of the deceased written on paper slips containing some sayings of wisdom., The application Ex. PW42/B was seized by PW46, Sub‑Inspector Kailash, during investigation vide seizure memo Ex. PW42/A (D28 on page 411) dated 22.05.2020, when it was handed over to him by PW42 Dr. Girish Tyagi, Secretary, Delhi Municipal Corporation, along with other documents. The seizure memo stands duly proved on record through the testimonies of these two witnesses. It is recorded in the testimony of PW42, on pointing out of the Investigating Officer, that out of the documents seized, only the application Ex. PW42/B was considered relevant by the Forensic Science Laboratory for the purpose of matching the handwriting of the deceased, and the other documents were not relied upon by them and were not filed with the charge sheet., The document Ex. PW33/B, together with one statement of the account of the deceased marked PW33/1, was handed over to police by PW33 Shri Harkesh of the Deoli Branch of Union Bank, formerly known as Corporation Bank, and was seized vide memo Ex. PW33/A dated 24.04.2020 (D17 on page 317) prepared by PW49, Inspector Anil Kumar. Further, as per the statement of PW33, he also handed over four original cheques dated 20.06.2018, 13.08.2018, 13.08.2018 and 10.01.2018 drawn on the said account of the deceased to the police vide another seizure memo Ex. PW33/D (D21 on page 325) dated 28.05.2020 prepared by Inspector Rajiv Kumar (PW64). Both memos have been duly proved on record through the testimonies of these witnesses. All the above documents, together with one deposit memo/pay‑in slip in respect of one of these cheques, are already Ex. PW33/C (collated) on record., The documents Ex. PW49/D (collated) consisting of seven pages were handed over to PW49 by the complainant PW1 Shri Hemant vide seizure memo Ex. PW1/J dated 26.04.2020 (D15 on page 313) and the memo stands duly proved on record from the statement made by PW49. Although the complainant denied handing over the documents to the Investigating Officer, he could not deny his signatures appearing on the memo., Thus, it can be said that the documents/writings marked A1 to A26 contain the admitted writings or signatures of the deceased Dr. Rajendra Singh and these writings and signatures were submitted or given by the deceased to different persons or authorities prior to the commission of his suicide in the usual course of transactions. No accused has challenged or argued that any of these documents does not contain the admitted writings or signatures of the deceased., However, as far as the admitted writing marked A27 of the deceased is concerned, it was a part of the bill book Ex. PW1/C seized from the room of the deceased and there is nothing on record to show how this piece of writing was kept by the Investigating Officer in the category of admitted writings of the deceased, while the other writings in the diary and suicide note were marked as questioned writings. The Learned Additional Public Prosecutor for the State has failed to answer this question. Consequently, the comparison of the questioned writings of the deceased with this alleged admitted writing marked A27, and the testimony of PW59, the handwriting expert, and her report Ex. PW59/A (pages 1285‑1287), do not carry any weight., PW59 Ms. Anjali Singh, the handwriting expert, examined the questioned and admitted handwritings/signatures of the deceased and gave her report Ex. PW59/A (pages 1285‑1287) regarding the comparisons. The report stands duly proved on record from her depositions before this court and bears her signature at point A on each page and her stamp on the last page, which were identified by the witness. During her statement in court, she specifically deposed that after examination of the documents, she gave the opinion that the person who wrote the red‑enclosed Hindi writings and English signatures marked A1 to A27 also wrote the red‑enclosed Hindi writings and English signatures marked Q1 to Q79. She further stated that no opinion could be expressed with regard to the rest of the questioned documents on the basis of the material provided to her., As discussed, the questioned handwritings of the deceased in Hindi appearing in the suicide note and diary Ex. PW1/D and Ex. PW1/B were numbered Q1 to Q8 and Q9 to Q52 respectively, and his full signatures in English appearing in these documents were numbered Q80 & Q81 and Q82 to Q86 respectively. According to the depositions of the witness and the contents of her report Ex. PW59/A, these writings and signatures of the deceased matched his admitted writings marked A1 to A27.
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However, as also discussed above, since prosecution failed to establish on record that the writing marked A27 appearing in the bill book Ex.PW1/C left by the deceased was an admitted handwriting of the deceased, the depositions of Person Witness 59 and the conclusions drawn by her in her report Ex.PW59/A are to be considered and appreciated accordingly. It can be taken to mean that the questioned writings and signatures of the deceased numbered Q1 to Q79 matched with his admitted handwritings and signatures marked A1 to A26., During her cross‑examination conducted on behalf of Accused‑1, the witness deposed that she looks at similar characters in admitted and questioned documents and compares the same to form an opinion. She stated that a minimum of eight to ten characters should be examined and that characters such as pen pressure, curvature and dots were examined before giving her opinion, which were mentioned as part of individual characters in the report. She explained that no enlarged photographs were prepared, but a juxtapose was prepared for the examination as per procedure. She denied the suggestion of Learned Counsel for the accused that at least sixteen characters should be available for comparison and also denied the suggestion that she did not examine the documents in accordance with the laid‑down norms or that her report was prepared mechanically., Thus, except for some unfounded suggestions, there is nothing on record to indicate that the witness failed to examine the questioned and admitted writings of the deceased as per existing guidelines, or that she carried out her examination mechanically. The fact that she prepared worksheets but did not file them because they were not required cannot be used to doubt or discard her report. Learned Defence Counsels made no request to place the worksheets on record, and therefore cannot now challenge the report on that ground. Even if no specific opinion could be given regarding the remaining questioned handwritings numbered Q82 to Q86, the depositions and report concerning the other questioned writings cannot be discarded and, in fact, demonstrate the fairness of the witness and her examination process., Person Witness 59, in her report Ex.PW59/A (pages 1285‑1287), specifically mentioned that in examining the questioned and admitted handwritings of the deceased marked Q1 to Q79 and A1, A19 to A27 respectively, similarities were observed in the formation of different characters and their minute, inconspicuous details in Hindi words, as well as in English alphabets used in the questioned and specimen initials/signatures marked Q53 to Q79 and A2 to A18. On the basis of these similarities, she opined that the writing habits were significant and could not be attributed to accidental coincidence, indicating that the same person wrote both the red‑enclosed Hindi writings and English signatures marked A1 to A27 and Q1 to Q79., Consequently, the contents of the report Ex.PW59/A, corroborated by her oral depositions before the Hon'ble High Court of Delhi, establish on record that the questioned writings of the deceased marked Q1 to Q52 in the suicide note and diary, and his English signatures/initials marked Q53 to Q79, were those of Dr. Rajendra Singh only., As already discussed, the writings and notes of the deceased are admissible and relevant in the present trial because they pertain to the cause of his death and the circumstances leading to it. The notes show that the deceased repeatedly wrote that he was leading a happy life with his family but that his life was spoiled and destroyed by Accused‑1 Prakash Jarwal and Accused‑2 Kapil Nagar, who had ruined him and his family. The writings specifically record continuous harassment, torture and threats to pay various amounts to the accused in connection with the operation of his water tankers with the Delhi Jal Board. Some notes contain specific amounts he had paid and mention a threat of being killed – being sent to \parlok\ or \yamlok\ – as extended by Accused‑1 on the evening of 18‑07‑2019, which the deceased claims was recorded., Further, the deceased wrote that he was fed up with the continuous threats to his life and the lives of his family members, and that the accused had left him no option but to take his own life. He recorded living under constant fear, having no hope of obtaining justice because the accused were influential persons. To meet the illegal extortion demands, he mortgaged family jewellery and sold land, yet the accused continued demanding more money and threatened to take his life at any time. He explicitly wrote that if anything happened to them, the accused would be responsible., The writings also show that Accused‑1 was instrumental in stopping payments for the deceased's tankers by using his influence with the Delhi Jal Board. Although the defence counsel disputes any involvement of the accused in the operation or payment of the tankers, it is admitted that Accused‑1 was a Member of the Legislative Assembly from Deoli constituency and a member of the Delhi Jal Board at the relevant time. He was nominated as a member of the Board for different terms and was serving in that capacity at the time of the suicide. This fact is proved by documents Ex.PW20/B (pages 331‑353), seized during investigation by Investigating Officer Person Witness 64, Inspector Kumar Rajiv, via seizure memo Ex.PW20/A dated 15‑05‑2020, and produced by Person Witness 20, Ms. Jyoti Sharma, an official of the Delhi Jal Board. The documents also show that Accused‑1 was appointed as a member of the Board for two years by notification dated 26‑02‑2020 and resigned through a letter addressed to the Hon'ble Speaker, Delhi Legislative Assembly, which was accepted on 18‑04‑2020, the day the deceased committed suicide., A copy of the resignation letter sent by Accused‑1 is part of the documents supplied by Person Witness 30, an officer of the Delhi Vidhan Sabha, to the Investigating Officer through reply Ex.PW30/B (page 957) in response to notice Ex.PW30/A (page 951). The copy, Ex.PW30/C (page 959), bears the endorsement of the Hon'ble Speaker, Legislative Assembly of Delhi. Although the letter is dated 17‑04‑2020, this court considers it anti‑dated because no evidence shows that it was actually submitted or forwarded on that date. Moreover, documents Ex.PW20/B show an application dated 18‑04‑2020 submitted by Shri Ramesh Bidhuri, Member of Parliament (Lok Sabha), South Delhi constituency, addressed to the Hon'ble Lieutenant Governor, demanding Accused‑1's resignation from the Board in light of his implication in the suicide notes, which were recovered only after the suicide on the early morning of 18‑04‑2020. If the resignation had truly been tendered on 17‑04‑2020, there would have been no need for Shri Bidhuri's demand on 18‑04‑2020. No explanation has been furnished by the accused for resigning on 17‑04‑2020, when he had been appointed only two months earlier. The resignation was forwarded by the Secretary, Legislative Assembly, Delhi to the Chief Minister and other authorities only on 18‑04‑2020., The deceased's suicide note and diary clearly show that he was continuously threatened with extortion for money and with threats to his life and the lives of his family members by the two accused, creating tremendous pressure that led him to believe suicide was the only option. The dying declarations demonstrate that the accused cornered him from different angles, forcing him to accede to their illegal demands. As a result, Accused‑1 not only had the deceased's tankers removed from the Delhi Jal Board but also stopped his pending dues, further aggravating his suffering. The evidence on these aspects, including the mortgage of jewellery and sale of land to meet extortion demands, will be discussed later as corroborative evidence to the dying declarations., Even without corroboration, dying declarations left by a deceased are sufficient to entail conviction of an accused if they satisfy the criteria laid down in judicial pronouncements. In the celebrated case of Ramesh Kumar (Supra), which the defence relied upon, the Hon'ble Supreme Court, although ultimately acquitting the accused for certain reasons, observed that it was not a case where the accused, by his acts, omission or continued conduct, created circumstances that left the deceased with no other option but to commit suicide. The Court further observed that if evidence shows such circumstances, instigation by the accused to push the deceased to suicide may be inferred., In the case of Chitresh Kumar Chopra (Supra), the observations made in Ramesh Kumar regarding instigation were reiterated and further principles were laid down. The Court held that the primary principle is that the accused repeatedly irritated or annoyed the deceased by words, deeds, willful omission or even silence, until the deceased reacted, or that the accused pushed or forced the deceased by his conduct to move more quickly towards suicide., In the case of Shikha Gupta (Supra), relied upon by the defence counsel for Accused‑2 and Accused‑3, the Hon'ble Supreme Court observations in Ramesh Kumar and Chitresh Kumar Chopra were reproduced by the Hon'ble High Court of Delhi. The Court also referred to judgments on Section 306 of the Indian Penal Code, including Praveen Pradhan v. State of Uttaranchal (2012) 9 SCC 734 and Amalendu Pal v. State of West Bengal (2010) 1 SCC 707. Relevant excerpts include: (i) \Instigation has to be gathered from the circumstances of a particular case. No strait‑jacket formula can be laid down to find out whether in a particular case there has been instigation which forced the person to commit suicide... an inference has to be drawn from the circumstances\ (Praveen Pradhan, SCC p. 741, para 18). (ii) \Before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances and assess the evidence to find out whether the cruelty and harassment left the victim with no other alternative but to end his life\ (Amalendu Pal, SCC p. 712, para 12)., It is observed by this court that most judgments cited on behalf of the accused contain similar observations, reiterating the basic requirements for proving an offence under Section 306 IPC as laid down in Ramesh Kumar and Chitresh Kumar Chopra. However, those cases usually involve a single oral or written dying declaration, whereas the present case involves around forty statements made at different times, each specifically implicating both accused and holding them responsible for extorting money and extending threats, thereby pushing the deceased to suicide. Consequently, this case cannot be equated with ordinary cases involving a single suicide note., The contents of these dying declarations clearly show that both accused shared a common intention to physically and mentally harass the deceased to such an extent that he was left with no other option but to commit suicide. The evidence on record establishes that the accused committed a series of acts and followed a continued course of conduct in furtherance of their common intention, creating circumstances that left the deceased with no option but to take his own life., There is nothing on record to show that the deceased's writings were not voluntary or that he was pressured or influenced by anyone else to make them. On the contrary, the writings demonstrate the extent of fear and pressure under which he lived because of continuous threats of extortion and death extended by the two accused., Learned Defence Counsels have questioned the physical and mental condition of the deceased, submitting that the writings are the result of his depressed state of mind, noting that he was a heart and sugar patient and faced financial difficulties. However, this court holds that no serious physical or mental ailment can be inferred from the evidence that would alone explain the suicide. While witnesses stated that the deceased was a heart patient, they also clarified that he was not a chronic heart patient, and no record of any chronic ailment has been produced by either side., Although the mental state of a person who commits suicide may be weaker than that of a normal person, it does not mean that suicide is solely due to mental weakness; otherwise Section 306 IPC would not exist. A holistic perusal of the suicide notes and dying declarations leaves no doubt that the commission of suicide was caused by the series of acts and continued conduct of the two accused, specifically their demands for extortion money and threats to his life and that of his family., The defence counsel's next challenge is the alleged lack of close proximity between the notes and the actual commission of suicide. They argue that most writings are undated, so it cannot be presumed that they were written immediately prior to the suicide, and therefore cannot be the basis for proving the charge against the accused., Only a few writings bear dates: two entries in the diary dated 01‑03‑2020 and 04‑03‑2020, and one entry in the suicide note dated 28‑08‑2019 (written as 28/8/9, likely a mistake). While the suicide notes were not written immediately before the suicide, this court holds that proximity must be assessed in view of the peculiar facts of each case and no general principle can be rigidly applied., Considering that the deceased wrote around forty statements over time, the gap between the last dated writing (04‑03‑2020) and the suicide on 18‑04‑2020 is about one and a half months. After the 04‑03‑2020 entry, he wrote approximately twenty more entries, which, although undated, were evidently written after that date, thereby reducing the temporal gap. Regarding admissibility under Section 32(1) of the Indian Evidence Act, the Hon'ble Supreme Court in Sharad v. State of Maharashtra (1985 SCR (1) 88) observed that the test of proximity cannot be applied literally as a fixed formula; the distance of time varies with the circumstances of each case, and statements forming an organic whole related to the death are admissible even if the time gap extends up to three to four months.
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The distance of time alone in such cases would not make the statement irrelevant. Thus, it is clear from the observations made by their Lordships of the Hon'ble Supreme Court of India that the test of proximity cannot be too literally construed and reduced to a cut‑and‑dried formula of universal application. Proximity or distance of time between the suicide or death of a person and his writings or declarations about his death must be considered in accordance with the peculiar facts and circumstances of each case. If the death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statements regarding each step directly connected with the end of the drama would be admissible under Section 32(1) of the Indian Evidence Act because the entire statements would have to be read as an organic whole and not torn from the context., Therefore, merely on the ground of proximity between the commission of suicide by the deceased Dr. Rajendra Singh and his statements or writings contained in the suicide note and diary, the same cannot be discarded and must be considered by the Delhi High Court as relevant for finding or establishing the reasons behind his death. In Vijay Singh versus State of Madhya Pradesh, 2000 Criminal Law Journal 650, the Hon'ble High Court of Madhya Pradesh held that for a statement to be attracted under Section 32(1) of the Indian Evidence Act, it is not necessary that death should have a fixed temporal nexus with the statement nor that the victim who made the statement should be in apprehension of immediate death. The conditions are that the statement should relate to circumstances surrounding the event (assault) which ultimately led to death, and there should be a nexus between the circumstances stated by the victim and his death., The defence counsel also contended that mens rea on the part of the accused persons for commission of an offence under Section 306 of the Indian Penal Code is an essential ingredient of the offence of abetment by way of instigation of the deceased for commission of suicide, and that if such mens rea is absent or not proved, the accused persons cannot be held guilty for abetting the suicide. They submitted that no mens rea on the part of the two accused for the commission of suicide by the deceased is evident from the record and therefore they are entitled to acquittal of the charge., However, this contention does not carry any force as far as acquittal is concerned because mens rea on the part of the accused to abet or instigate the deceased must be construed as an intent to carry out a series of acts that ultimately pushed the deceased to take the extreme step of suicide. This intent is not to be mechanically inferred from any individual act but must be gathered from the entire conduct attributed to the accused. The dying declarations of the deceased show that both accused, in furtherance of their common intention, were continuously demanding extortion of different amounts, extending threats to the deceased and his family, creating tremendous pressure on his mind. The deceased wrote around forty statements depicting this conduct, thereby establishing mens rea on the part of Accused‑1 and Accused‑2., It is only a rule of prudence, not a rule of law, that some corroborative evidence may be required in support of the details contained in a suicide note or dying declarations. In the present case, corroboration of the dying declarations of Dr. Rajendra Singh is first available in the oral testimony of his nephew, Witness 34, Shri Arvind. Although his statement before the court was confronted on various material aspects with his earlier statement recorded under Section 161 of the Criminal Procedure Code by the Investigating Officer, certain aspects of his testimony remain unchallenged and find corroboration from his earlier statement recorded under Section 164 of the Criminal Procedure Code. This witness substantially corroborates the deceased’s writings that he was continuously harassed by both accused and committed suicide because of the extortion demands., Another circumstance corroborating the reasons behind the suicide is the extension of threats to water‑tank‑er owners and operators and the stoppage of payments due in respect of water tankers of the deceased’s family members by officials of the Delhi Jal Board, allegedly at the instance of Accused‑1, Prakash Jarwal., The prosecution case states that the accused not only facilitated the removal of the deceased’s water tankers from the Delhi Jal Board but also, as a Member of Legislative Assembly and a member of the Delhi Jal Board, stopped pending payments and extended threats to all tanker owners and operators in the area. The defence asserts that no threats were extended, no tanker of the deceased or his family was deployed or attached to the Delhi Jal Board at the relevant time, and that the deceased himself was involved in black‑marketing of water, a claim allegedly revealed by a sting operation of a news channel. However, apart from these unsubstantiated claims, no independent evidence has been led on record by either side regarding the sting operation or its effects., The prosecution alleges that the deceased operated his water tankers with the Delhi Jal Board since around 2005‑2006, a fact specifically deposed by Witness 1, Shri Hemant Singh, and incorporated in the complaint Exhibit PW1/A filed by him concerning the commission of suicide by his father. Although no documentary evidence has been led to show up to which year the deceased continued to ply his tankers with the Delhi Jal Board, Witness 1 states that the tankers were operated until around 2018., The evidence led by the prosecution establishes that threats were frequently extended to tanker owners or operators in the area and that some tankers in the names of family members or other relatives of the deceased were still being plied with the Delhi Jal Board until the time of the suicide, with payments for their operation not being released by Delhi Jal Board officials. Various officials of the Delhi Jal Board were examined as prosecution witnesses, including Witness 5, Shri Satbir Beldar; Witness 6, Shri Rajbir Singh, Driver; Witness 20, Ms. Jyoti Sharma, Junior Assistant; Witness 22, Shri Prem Singh, Executive Engineer; Witness 23, Shri Himmat Singh, Junior Engineer; Witness 27, Shri Naresh Kumar Kardam, Executive Engineer; Witness 31, Shri Arvind Kaushik, Secretary; and Witness 32, Shri N. K. Sharma, Assistant Executive Engineer. Except for Witnesses 5, 6, 22, 23 and 27, the other officials are claimed to be witnesses of handing over certain records to the Investigating Officer in response to notices. Moreover, Witnesses 5, 6, 22, 23 and 27 turned hostile during their examination in this court, rescinding their earlier statements recorded under Section 161 of the Criminal Procedure Code, and denied making any statement under Section 164 regarding the accused’s extortion and removal of water tankers., Nevertheless, the record shows that Witness 32, Shri N. K. Sharma, in response to a notice dated 20 May 2020 (Exhibit PW32/A, page 919) received from the Investigating Officer, handed over certified copies of two complaints dated 1 May 2020 and 4 May 2020 (Exhibits PW32/C, pages 927‑939) to the Investigating Officer via his reply dated 19 June 2020 (Exhibit PW32/B, page 921). He also submitted certified copies of letters signed by Shri R. K. Lakhera, Superintending Engineer (Vigilance), forwarding the complaints to the Deputy Secretary (Urban Development), and exhibited these letters (Exhibit PW32/D, pages 923‑925) during his statement before the court. He identified Shri Lakhera’s signatures on the letters, stating that the copies were certified by him., On examination of these documents, one complaint dated 4 May 2020 was addressed to the Hon'ble Lieutenant Governor of Delhi and alleged harassment and extortion of tanker owners and operators in the Deoli area by Accused‑1, Prakash Jarwal, and his associates. The complaint was filed in the name of the Durga Vihar (Deoli Extension) Residents Welfare Committee and signed by various persons. The other complaint dated 1 May 2020 was addressed to the Station House Officer, Police Station Neb Sarai, containing similar allegations of extortion and threats, purportedly supported by video and audio recordings, and also bearing multiple signatures. Although none of the signatories were examined as witnesses, copies of these complaints were submitted to the Delhi Jal Board and dealt with by the office. These certified copies can be taken to support the dying declarations of the deceased, at least on the aspect that Accused‑1, with the help of his associates, was making extortion demands from tanker owners and operators and extending threats., The examination of the main Investigating Officer, Inspector Kumar Rajiv (Witness 64), revealed that in response to a notice (Exhibit PW64/F, page 451) issued to the Executive Engineer of the Delhi Jal Board, a reply dated 13 May 2020 was received along with relevant documents (Exhibit PW64/G, pages 455‑615). These documents contained details regarding tankers of various persons being plied with the Delhi Jal Board and the payments made to the concerned owners or operators. The defence counsel for Accused‑2, Kapil Nagar, and Accused‑3, Harish Jarwal, referred to these documents in support of the submission that the pending dues or payments for the operation of the deceased’s tankers between 2015 and 2020 had already been released by the Delhi Jal Board prior to the suicide. Hence, the admissibility of these documents is undisputed., These documents show that, contrary to the accused’s denial, five tankers in the names of family members or other relatives of the deceased were being operated by the Delhi Jal Board around the time of the suicide. Page 563 of the documents contains a note by Delhi Jal Board officials on an application filed by Witness 2, Smt. Brahmwati (the deceased’s wife), listing registration numbers DL 1M 5590, DL 1M 5216, DL 1GC 0291, DL 1LS 6791 and DL 1LR 1353. The note records that on 28 January 2020, payment in respect of all the listed water tankers was being made for the month of December 2019. Two of the tankers, DL 1M 5216 and DL 1GC 0291, are in the name of Smt. Brahmwati herself. The Investigating Officer’s notice (Exhibit PW64/F) sought details of these five tankers, and the Delhi Jal Board furnished the information in a letter (Exhibit PW64/G). The ledger accounts supplied show that payments for these tankers were long‑due, spanning the years 2016 to 2020, and were released only shortly before the suicide. This suggests that Accused‑1, Prakash Jarwal, played a role in delaying the payments to the family’s water tankers., Another corroborating circumstance relates to loans obtained by the deceased and his family members against mortgage of their jewellery articles. The dying declarations state that the deceased mortgaged his family’s jewellery and sold his land to meet the extortion demands. While no evidence was led regarding the sale of land, evidence was presented concerning the jewellery loans. Witnesses 36 and 39, both identified as Shri Manoj Kumar, appeared as Senior Branch Manager/Branch Head of the Deoli Branch of Muthoot Finance Corporation Ltd. (as Witness 36) and as Senior Branch Manager of the Khanpur Branch (as Witness 39). As Witness 36, he testified that in response to a notice (Exhibit PW36/A, page 365) received by the branch, he provided attested copies of account statements of Shri Hemant Singh, Shri Udayvir, Smt. Brahmwati, Shri Radha Vallabh Bhatt and Dr. Rajendra Singh (Exhibit PW36/B, pages 367‑381), each bearing his signature. He also produced original loan agreements (Exhibit PW36/C). He stated that eight loans were taken by Dr. Rajendra Singh, though many were in the names of his family members, and that the purpose of the loans was not mentioned in the documents., As Witness 39, he explained that documents (Exhibit PW39/A) were similarly handed over by Shri Kishore Kumar, also bearing Shri Kishore Kumar’s signatures, and that these were pledge and ledger copies in the names of Shri Revadhar Bhatt and Shri Hemant Singh. He clarified that the loans were sanctioned by Shri Kishore Kumar, with Dr. Rajendra Singh entered as a nominee on the basis of the borrower’s claim that he was the brother of the applicant. He also noted that no bill of jewellery worth Rs 4,89,000 was examined to verify the source or ownership of the jewellery, and the purpose of the loan was not mentioned., The documents submitted by the witnesses are photocopies of computer printouts; although they appear to be computer‑generated, a certificate under Section 65B of the Indian Evidence Act is required to prove their authenticity. Since the defence counsel challenged the admissibility of these documents for lack of such a certificate, the contents cannot be considered as evidence. Nevertheless, the oral testimonies of the two witnesses make it clear that different loans were taken by the deceased and his relatives by mortgaging jewellery articles. Although the purpose of the loans and their utilization for payment of extortion amounts remain unclear, the testimonies corroborate the deceased’s statements that he mortgaged his family’s jewellery to meet the extortion demands., The dying declarations and statements of the deceased, including the suicide note (Exhibit PW1/D) and diary (Exhibit PW1/B), specifically mention a threatening call made by Accused‑1, Prakash Jarwal, recorded on a mobile phone on 18 July 2019 at around 8:20 pm. Two additional threatening calls by the same accused are referenced on 19 July 2019 at 9:44 pm and 9:47 pm, although the contents of these calls are not available., The prosecution case states that the deceased was using mobile number 9811292950 at the relevant time, and that the threatening call of 18 July 2019 was allegedly made by Accused‑1 from mobile number 9999071851. The call was not recorded on the deceased’s phone but on the phone of Witness 19, Shri Revadhar Bhatt. Both the deceased and Witness 19 were using Samsung phones; the deceased’s phone was a white keypad model, while Witness 19’s phone was a silver Samsung J‑7., Both mobile phones were seized during the investigation. The Samsung J‑7 was produced before Inspector Anil Kumar (Witness 49) on 20 April 2020 by Witness 19 in the presence of the complainant, Witness 1, Shri Hemant Singh. The keypad Samsung phone was produced before Inspector Kumar Rajiv (Witness 64) by the complainant on 7 May 2020. The seizure memos (Exhibits PW1/H, page 315 and PW1/I, page 319) are on record. Although the two public witnesses denied handing over the phones to the Investigating Officers and Witness 19 denied his signature on memo PW1/H, the complainant’s signature is present and has been corroborated by other police witnesses. The seizure of the phones was not challenged by the accused., The seizure memos indicate that the phones were sealed in separate cloth parcels with seals of the respective Investigating Officers (AK and KK). The memo for the Samsung J‑7 notes that it contained an audio file of approximately 42 seconds, identified as Exhibit PW63/X1 (also marked as Exhibit PX and Mark X) by Witness 49 and other witnesses during trial. Voice samples were later taken: on 2 June 2020, Witness 46, Sub‑Inspector Kailash, accompanied by Constable Sukhbir and Assistant Sub‑Inspector Raghunath, took a voice sample of Witness 19 at the Forensic Science Laboratory, Rohini, and handed two cassettes (original and duplicate) to the Investigating Officer, who sealed them with seal KK (seizure memo PW46/F). On 18 February 2021, at the instance of Inspector Satyabir Singh (Witness 53), Witness 46, together with HC Subhash, took a voice sample of Accused‑1, Prakash Jarwal, and handed the cassettes to Inspector Satyabir Singh, who sealed them with seal SB (seizure memo PW46/H). These sealed parcels containing the voice samples were deposited intact with the Forensic Science Laboratory, Rohini, by Assistant Sub‑Inspector Devender (Witness 48) on 4 March 2021., Expert Witness 63, Shri Vishal Sawla Pandhare, working with the Forensic Science Laboratory, Rohini, extracted the data containing the threatening call of 18 July 2019 between Accused‑1 and Witness 19 from mobile phone Exhibit PW63/X1, along with other data, and transferred it to a pen drive marked PD1.
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He had also duly proved on record his report dated 06.01.2021 given to this effect as Exhibit PW63/A. The mobile phone of make Samsung J-7 was marked as Mobile Phone 1 (MP1) during the process. Along with this phone, two SIM cards (SIM Card 1 and SIM Card 2) and one memory card (Memory Card 1) were examined and the data transferred to a pen drive of make HP. The witness also stated that another mobile phone of make OPPO marked Mobile Phone 2 (MP2) and its memory card (Memory Card 2) were to be analysed, but the phone could not be opened because it was password protected., The questioned and specimen voice samples of Accused 1 (A-1) and Prosecution Witness 19 Shri Revadhar Bhatt (PW19) were first examined by Prosecution Witness 57 Dr. C. P. Singh, another expert of the Forensic Science Laboratory, Rohini. He proved on record his report as Exhibit PW57/A (pages 1369‑1371). The specimen voice sample of PW19 was marked as Exhibit S1 during analysis and his questioned voice appearing in the audio recording contained in pen drive Exhibit PD1 was marked as Exhibit Q1. The witness opined that auditory and acoustic analysis of the questioned and specimen voices of PW19, starting with \hello hello ji sahab to nahi\, revealed similarity in acoustic cues, linguistic and phonetic features, and concluded that the questioned and specimen voices were probably those of the same person, Shri Revadhar Bhatt. He further stated that waveform, spectrographic and critical listening analysis showed no indication of alteration in the recordings, but no opinion could be given regarding the voices of the other person, A-1 Prakash Jarwal., The questioned and specimen voices of PW19 Shri Revadhar Bhatt and A-1 Prakash Jarwal were sent to the Central Forensic Science Laboratory, Central Bureau of Investigation, New Delhi for a second expert opinion. Because the case was high‑profile, a special board was constituted with the approval of the Director, CFSL, CBI, consisting of three experts: Prosecution Witness 55 Shri Deepak Kumar Tanwar, Prosecution Witness 56 Dr. Subrat Kumar Choudhury and Prosecution Witness 58 Shri Amitosh Kumar., According to the deposition of Prosecution Witness 55, he examined the voice of PW19 and found that the questioned and specimen voices marked as Exhibit 1(R) and Exhibit 3(R) respectively were similar in linguistic and phonetic features. Spectrographic examination of common clue sentences/words showed similarity in formant frequencies, distributions, intonation pattern and other visual features. He stated that the questioned voice was probably that of Shri Revadhar Bhatt. The waveform, spectrographic and critical auditory examination of the relevant audio recordings was carried out jointly by all three experts and revealed that the recording was continuous with no tampering. He proved the board’s report as Exhibit PW55/A, and produced the original worksheets as Exhibit PW55/B (colloquy) bearing his signatures, and identified the exhibits pertaining to the voices during his examination in the Hon'ble High Court of India., Although PW19 Shri Revadhar Bhatt, during his examination before the Hon'ble High Court of India, refused to identify his questioned voice appearing in the audio recording transferred to the pen drive, the testimonies of the two experts, PW57 Dr. C. P. Singh and PW55 Shri Deepak Kumar Tanwar, from two different prestigious forensic laboratories, and their reports Exhibit PW57/A and Exhibit PW55/A respectively, establish that the questioned voice \hello hello ji sahab to nahi\ found in the Samsung J‑7 phone was that of PW19 only., Regarding the other questioned voice attributed to A-1 Prakash Jarwal, the report Exhibit PW57/A stated that the material sent for analysis was insufficient, whereas the report Exhibit PW55/A of the CFSL board found that the questioned and specimen voices of A-1, starting with the sentence \Hello, Dr. Rajender hain kya\, matched. The questioned voice of A-1 in the pen drive, marked as Exhibit 1(P), was opined to be the probable voice of the person whose specimen voice was marked as Exhibit 4A(P). The phonetic and linguistic features, as well as spectrographic analysis of formant numbers, frequency distribution and intonation patterns, were found similar. Depositions of PW55 and PW56 corroborate these findings, concluding that the questioned and specimen voices of A-1 matched and were probably those of the accused., Both experts were extensively cross‑examined by learned counsel for A-1, but their testimonies indicate that the examination process was proper. The fact that the voices could not earlier be examined by the expert of the Forensic Science Laboratory, Rohini, does not imply that they could not be analysed by the CFSL experts. Their impartiality cannot be questioned merely because the laboratory belongs to the Central Bureau of Investigation or is located in the same complex as the CBI office. The authenticity of their worksheets, although not sent with the report, cannot be doubted as it was not mandatory to submit them to the investigating agency., Learned counsel for A-1 also challenged the admissibility and authenticity of the recorded threatening call on the ground that the evidence does not satisfactorily prove that SIM of mobile number 9811292950 actually belonged to the deceased, nor that the SIM of mobile number 9999071851 belonged to A‑1 at the relevant time. Prosecution Witness 29 Shri Ajit Singh, Nodal Officer of Messrs Vodafone, produced certified copies of the Customer Application Forms (CAFs) for both numbers. The CAF for 9811292950 was in the name of Dr. Rajendra Singh, and the CAF for 9999071851 was in the name of Shri Pradeep Kumar Shrivas, with signatures and rubber stamps duly exhibited as Exhibit PW29/C and Exhibit PW29/A. The complainant, PW1 Shri Hemant Singh, son of the deceased, also admitted that mobile number 9811292950 belonged to his father, Dr. Rajendra Singh, establishing ownership of that SIM., Regarding mobile/SIM number 9999071851, Shri Pradeep Kumar Shrivas was examined as Prosecution Witness 35. He initially stated he was the subscriber, but later turned hostile and rescinded his earlier statement (Mark PW35/1). He admitted that the CAF Exhibit PW29/A belonged to him and identified his signature and identity card (Mark PW35/2). The prosecution case alleges that this SIM was given to A‑1 Prakash Jarwal in 2015 during elections, but the witness, after turning hostile, claimed he gave the SIM to a relative, Shri Jagram, before 18.07.2019, and could not say who possessed it on the date of the threatening call., Thus, oral testimonies do not establish that SIM 9811292950 of the deceased was used in PW19’s phone on 18.07.2019, nor that SIM 9999071851 was used by A‑1 on that date. However, this drawback is not fatal to the prosecution case, as documentary and scientific evidence outweighs the hostile oral evidence. The recorded audio was extracted from the Samsung J‑7 phone seized as per Exhibit PW1/H and produced before Prosecution Witness 49 Inspector Anil Kumar by PW19 in the presence of the complainant. Independent experts from both forensic laboratories examined the recording, found it untampered and authentic, and opined that the voices belonged to PW19 and A‑1 as per reports Exhibit PW55/A and Exhibit PW57/A. Therefore, despite the lack of oral linkage of A‑1 to SIM 9999071851, the documentary and digital evidence of his voice in the recording cannot be disregarded., It is well settled that examination of an accused under Section 313 of the Criminal Procedure Code is not a mere formality; it serves a practical purpose by allowing the accused to clarify his stand on incriminating evidence. Statements made under Section 313 can be used against the accused insofar as they support the prosecution case, though they cannot be the sole basis for conviction. This principle is affirmed in Brajendra Singh v. State of Madhya Pradesh, AIR 2012 SC 1552; Khairuddin v. State of West Bengal, AIR 2013 SC 2354; and Ashok Debbarama @ Achak Debbarma v. State of Tripura, (2014) 4 SCC 747. The Supreme Court has held that the accused may remain silent, but the court may draw an adverse inference when the statement under Section 313 supports the prosecution., The observations in Ashok Debbarama (supra) reiterate that a defence statement under Section 313 can lend credence to prosecution evidence but cannot be the sole basis of conviction. The Court in Mohan Singh v. Prem Singh (2002) 10 SCC 236 and subsequent cases confirm that admissions made under Section 313, though not made on oath, can be taken as evidence to corroborate the prosecution’s case., Consequently, the voices contained in the recorded conversation dated 18.07.2019 were those of PW19 Shri Revadhar Bhatt and A‑1 Prakash Jarwal, and it was the latter who made the threatening call from mobile number 9999071851 to mobile number 9811292950 of the deceased., Prosecution Witness 29 Shri Ajit Singh also produced certified copies of the Call Detail Records (CDRs) for both mobile numbers as Exhibit PW29/D (pages 2047‑2435) and Exhibit PW29/B (pages 1843‑2043) covering the period from 01.06.2019 to 12.06.2020, along with a certified location chart (Exhibit PW29/E) and a certificate of authenticity of the documents (Exhibit PW29/F). He identified his signatures and rubber stamps on these documents. The CDRs show one call from 9999071851 to 9811292950 on 18.07.2019 at 8:20 pm, and two further calls on 19.07.2019 at 9:44 pm and 9:47 pm. These entries were exhibited during his examination on 21.04.2022., During his further examination on 29.04.2022, the witness produced an additional certificate under Section 65B of the Indian Evidence Act (Exhibit PW29/G). He clarified that in his earlier testimony he had inadvertently stated the time of the 18.07.2019 call as 8:20 pm, whereas the correct time was 8:46 pm (20:46) with a duration of 43 seconds, as reflected in the CDRs of both mobiles. He affirmed that there was no outgoing call from 9999071851 to 9811292950 at 8:20 pm., The oral testimony of the witness and the CDRs corroborate each other, showing an outgoing call of approximately 43 seconds from mobile number 9999071851 (A‑1) to mobile number 9811292950 (deceased) on 18.07.2019, and two additional calls on 19.07.2019. Only the 18.07.2019 call was recorded. Defence counsel challenged the admissibility of the documentary evidence on the ground of a discrepancy in the call timing (8:20 pm vs 8:46 pm), but the Hon'ble High Court considered this minor discrepancy immaterial and not fatal to the prosecution case., Accordingly, the evidence led by the prosecution—both oral and documentary—sufficiently proves the charge of commission of offence punishable under Section 306 read with Section 34 of the Indian Penal Code against both accused A‑1 Prakash Jarwal and A‑2 Kapil Nagar, beyond reasonable doubt. The evidence is corroborative, consistent, and free of material contradictions, despite the hostility of many public and official witnesses, which appears to be due to fear of the accused., In addition to the charge under Section 306/34 IPC, the court also framed charges for criminal conspiracy punishable under Section 120B read with Sections 384, 386 and 506 IPC, and the substantive offences under the IPC, against both accused., Section 120B IPC prescribes punishment for criminal conspiracy, which is defined by Section 120A IPC as an agreement between two or more persons to do an illegal act or to do a legal act by illegal means. The offence is complete when an act besides the agreement is performed in pursuance of the conspiracy. The existence of a meeting of minds or agreement to commit an illegal act, or a legal act by illegal means, establishes the conspiracy, and individual acts of the accused are to be considered in reference to the common intent.
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It is also settled that direct evidence about existence of a criminal conspiracy is seldom available as such conspiracies are hatched in privacy and behind closed doors and hence, the courts have to consider and appreciate the evidence led on record in entirety to find out the circumstances showing existence of such a criminal conspiracy or meeting of minds between the accused to commit the offences alleged against them. The Court is, thus, required to analyse the entire evidence on record to find out if the circumstantial evidence about such a criminal conspiracy is there or not or if the circumstances showing existence of a criminal conspiracy can be inferred therefrom or not and if the Court is satisfied about it, then even in the absence of any direct evidence or proof showing such a criminal conspiracy the accused persons can be held guilty and convicted for the offence. In a Full Bench decision of the Supreme Court of India in the celebrated case of P. K. Narayanan versus State of Kerala, (1995) 1 Supreme Court Cases 142, their Lordships considered and laid down the scope of a criminal conspiracy in the following words: The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused., In the case of State of Maharashtra and Others versus Som Nath Thapa and Others, Manu/SC/0451/1996, a Three Judges Bench of the Supreme Court of India observed: The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution does not have to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use., In the case Vijayan alias Rajan versus State of Kerala, 1999 Criminal Law Journal 4164, the Court observed that it is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy., In Yogesh alias Sachine Jagdish Joshi versus State of Maharashtra, 2008 Criminal Law Journal 3872, the Supreme Court of India, making exhaustive reference to several decisions on the point, including State through Superintendent of Police, Central Bureau of Investigation Special Investigation Team versus Nalini and Others, observed: 'Mostly, conspiracies are proved by circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. The well‑known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.' Justice G. N. Ray, in Tanviben Pankajkumar, observed that this Court should not allow suspicion to take the place of legal proof. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. The incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if the offence does not take place pursuant to the illegal agreement., Section 384 of the Indian Penal Code is found to prescribe punishment for the offence of extortion, which is actually defined by Section 383 of the Indian Penal Code in the following words: '383. Extortion – Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion.', Thus, as per Section 383 of the Indian Penal Code, the offence of extortion is committed when a person intentionally puts another person in fear of any injury to that person or to any other person and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security etc. If the fear induced is of death or grievous hurt to that person or to any other, then Section 386 of the Indian Penal Code, an aggravated form of Section 384, comes into play and provides an enhanced sentence for the offender., Section 506 of the Indian Penal Code lays down punishment for the offence of criminal intimidation and also provides enhanced punishment where the threat extended by an accused to another person is of death or grievous hurt etc. The term criminal intimidation is defined by Section 503 of the Indian Penal Code in the following words: '503. Criminal Intimidation – Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.' An explanation states that a threat to injure the reputation of any deceased person in whom the person threatened is interested is within this section., As per Section 59 of the Indian Evidence Act, all facts except the contents of documents or electronic records may be proved by oral evidence. In terms of Section 60 of the Indian Evidence Act, oral evidence of a fact must be direct in all cases and if such oral evidence refers to a fact which can be seen, heard or perceived by a person through any of his senses or in any other manner, then it must be the evidence of a person who says that he had seen, heard or perceived that fact in that particular manner. Similarly, if it refers to an opinion of a person or grounds on which such opinion is held, then it must be the evidence of a person who holds that opinion on those grounds. Opinions expressed by experts in any treatise commonly offered for sale and the grounds on which such opinions are held, as mentioned in the first proviso attached to that section, are exempted from the operation of the said section. The section also contains another proviso that if oral evidence given by a person refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require production of such material thing for its inspection., Sections 32 and 33 of the Indian Evidence Act are considered exceptions to the rule in Section 60 that oral evidence must be direct and that hearsay evidence is inadmissible. Hearsay evidence broadly means a statement made by someone who is not present before the Court to affirm or deny the genuineness thereof or the source of the information contained therein. Such evidence is generally inadmissible because the person who made the statement is not available for cross‑examination., According to Section 61 of the Indian Evidence Act, the contents of a document may be proved either by primary evidence, i.e., the document itself produced for inspection of the Court in terms of Section 62, or by secondary evidence as defined by Section 63 and as permitted to be led in the types of cases mentioned in Section 65., As discussed earlier, under Section 32 of the Indian Evidence Act, statements, written or verbal, of relevant facts made by a person who is dead and who cannot be found are admissible in certain circumstances, including when they relate to the cause of death of that person. Hence, even in the absence of production or availability of the person making that verbal or written statement, the statement is considered admissible and relevant. For this purpose, writings left by a deceased person in his suicide note and diary have been treated as dying declarations falling under Section 32(1) of the Indian Evidence Act., The above statements of the deceased have also been brought on record during the trial as primary evidence. They have been considered and appreciated in evidence for establishing the charge for commission of an offence punishable under Section 306 and Section 34 of the Indian Penal Code, as framed against the two accused, and it is from those statements that the charge for the offence of criminal conspiracy punishable under Section 120B read with Sections 384, 386 and 506 of the Indian Penal Code, as well as the substantive charges under these sections, are to be primarily proved., It has been discussed and appreciated that both accused, identified as A‑1 and A‑2, were specifically named by the deceased Dr. Rajendra Singh in many of his statements or declarations. They are shown to have been involved in extending consistent and continuous threats to the deceased for extortion of different amounts of money at different times and in connection with his water tankers being plied with Delhi Jal Board water. The deceased’s writings indicate that the threats were of taking his life or the lives of his family members if he discontinued or was unable to pay the demanded amounts., The statements also reveal that the accused resorted to various tactics for harassing the deceased mentally and even caused delay or stoppage of payment of pending dues of the tankers belonging to his family, in order to force him to accede to the extortion demands. These writings have been held sufficient to prove that, as a result of the pressure built up upon the mind of the deceased due to such acts of the accused, he ultimately took the extreme step of committing suicide. Different circumstances narrated in these writings, together with other corroborative circumstances, clearly show that both accused, along with some of their other associates, were party to an illegal agreement whose object was to extort money from all water‑tanker owners or operators in their area, including the deceased, by humiliating them, extending regular threats to their lives and families, and causing delay or stoppage of their pending payments., The writings of the deceased establish that the threats extended by the two accused in connection with extortion put him under constant fear, with the intent to cause alarm in his mind of fear for his life or that of his family members. The alarm was intensified when a threatening call made by A‑1 from mobile number 9999071851 to the deceased’s mobile number 9811292950 on the evening of 18 July 2019 was recorded on a Samsung J‑7 handset. The deceased’s fear and pressure are also manifest from the fact that he wrote around forty entries in his suicide note and diary, most of which specifically mention the threats extended by the two accused in connection with deployment of his tankers or pending dues and the amounts demanded as extortion money., Even in the absence of any independent material or proof of payment of the extortion amounts by the deceased to the two accused, a charge for commission of the offence of criminal conspiracy punishable under Section 120B read with Sections 386 and 506 of the Indian Penal Code stands duly proved from the evidence on record. It establishes that the object of the conspiracy between the two accused was not only to criminally intimidate the deceased by extending threats but also to extort money from him by putting him under fear of his life or the lives of his family members. The charge for the substantive offence under the second part of Section 506 read with Section 120B also stands duly established., Regarding the substantive offences under Sections 384 and 386 of the Indian Penal Code, Section 386 is an aggravated form of Section 384; therefore, if a charge under Section 386 is proved, it includes the offence under Section 384. As defined in Section 383, one essential ingredient of extortion is that the person who has been put in fear of any injury must be dishonestly induced to deliver to the other person any property or valuable security., In the present case, charges under Sections 384 and 386 read with Section 120B of the Indian Penal Code, as framed against both accused A‑1 and A‑2, state that in furtherance of the alleged criminal conspiracy they extorted the deceased and other water‑tanker owners by threatening them to pay monthly amounts of Rs 15,000 for small tankers and Rs 20,000 for large tankers in order to ply their water tankers with Delhi Jal Board water. The charges also incorporate that at the time of the Delhi Legislative Assembly election in 2020, both accused demanded Rs 51,000 for small tankers and Rs 71,000 for large tankers as election expenses from the tanker owners, apart from the regular extortion amounts, and threatened that their tankers could not ply in Delhi Jal Board water if the amounts were not paid., The charge for offence under Section 120B read with Sections 386 and 506 of the Indian Penal Code, regarding the existence of a criminal conspiracy between the two accused for the purpose of extorting different amounts from water‑tanker owners and operators, including the deceased, and for threatening or intimidating them to pay the said amounts, stands duly established on record from the contents of the proved dying declarations and other corroborative evidence. The same evidence has also been found sufficient to prove the charge for the substantive offence punishable under the second part of Section 506 read with Section 120B., Although most of the dying declarations state that different amounts were paid as extortion money to the two accused by the deceased and by other water‑tanker owners, the Court considers that such payments should also be proved by independent or corroborative evidence for establishing the charge for commission of the substantive offence under Section 386 or even under Section 384 of the Indian Penal Code. The prosecution has failed to lead any such corroborative or independent evidence showing payment of these amounts to the accused., Further, although various water‑tanker owners or drivers were examined as witnesses, they turned hostile and did not support the prosecution’s case or the statements made by the deceased regarding payment of the specific extortion amounts. In the absence of any independent or corroborative evidence showing transfer or payment of these amounts to the accused or their associates, the evidence in support of these charges is deficient and insufficient for proving the said charges., Nevertheless, even though the prosecution has failed to prove payment of the extortion amounts, the evidence on record can be considered sufficient for proving at least an attempt by the two accused to commit the offence of extortion under Section 386 of the Indian Penal Code. The evidence shows that both accused intentionally put the deceased in fear of death or of the death of his family members by extending threats for payment of different amounts in connection with running their water tankers with Delhi Jal Board water, thereby fulfilling the actus reus of the offence., Section 511 of the Indian Penal Code lays down punishment for attempts to commit offences under the Code. An attempt is complete when the offender does an act towards commission of the offence and is applicable where no other express provision exists for such an attempt. Although the term 'attempt' is not defined in the Code, it has been consistently held to be an act that falls short of actual commission of the offence and must be distinguished from mere preparation. An attempt begins when preparations are complete and the offender commences activities towards commission of the offence or does something with the intention of committing the offence., Thus, even in the absence of any corroborative or independent evidence showing proof of payments of extortion money, the prosecution can be said to have successfully proved the charge for commission of the offence punishable under Section 386 read with Section 511 read with Section 120B of the Indian Penal Code against both accused persons., Although accused A‑3 was discharged for the offence of criminal conspiracy punishable under Section 120B read with Sections 384, 386 and 506 of the Indian Penal Code, as well as for the substantive offences and for the offence punishable under Section 306 and Section 34, a charge for commission of the offence punishable under Section 506 of the Indian Penal Code was individually framed against him. This charge alleges that he criminally intimidated the deceased Dr. Rajendra Singh by threatening him to pay money if he wanted to ply his water tankers with Delhi Jal Board water, thereby frightening the deceased that his tankers could be discontinued., The suicide note Ex.PW1/D left by the deceased does not mention the name of this accused, but his name is recorded at three places in three different writings contained in the diary Ex.PW1/B on pages dated 23 January 2019, 4 February 2019 and 11 February 2019. These entries indicate that the accused Harish Jarwal and his brother Anil Jarwal, who were not charged, were associated with the other two accused Prakash Jarwal and Kapil Nagar and harassed the deceased., The defence counsel submitted that no specific allegations of threat extension by this accused to the deceased are found in the diary entries, which merely state that the accused and his associates harassed the deceased and ruined his life. Accordingly, the counsel argued that the charge under Section 506 of the Indian Penal Code cannot be said to have been proved., While specific allegations of intimidation are generally necessary to prove an offence under Section 506, this case is different because the deceased was constantly and continuously threatened, harassed and pressurised by A‑1 and A‑2 and their associates to pay the ransom amounts. The deceased ultimately committed suicide when he could not meet the illegal demands, and the writings in his diary indicating the role of the accused as an associate of the main accused Prakash Jarwal are to be considered holistically for determining his liability for extension of threats., The diary entries specifically mention the accused’s name as an associate of the other two accused and state that the deceased was being harassed by him as well. When these three writings are considered together, the Court is of the opinion that they are sufficient to be perceived as intimidatory because they convey that the deceased was threatened to pay the extortion amounts., However, the writings do not convey specific threats of death or grievous injury as required by the second part of Section 506 of the Indian Penal Code. Therefore, the writings can be considered sufficient only for proving against the accused the charge for the first part of Section 506 of the Indian Penal Code.
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Some other evidence is also found to have been led on record by the prosecution in corroboration to the above charge for offence under Section 506 of the Indian Penal Code as framed against this accused and it is in the form of documentary or scientific evidence related to the recorded conversations of this accused with Prosecution Witness 16 Sanjay. As already discussed, it is also the case of the prosecution that this accused had even extended some threats to Prosecution Witness 16 and others in connection with demands of payment of extortion amounts and these threats were extended not only before registration of this case, but continued even thereafter. Some of the threatening calls made by this accused are even claimed to have been recorded in the mobile of Prosecution Witness 16. As per the prosecution case set up in the charge sheet, the said mobile phone was of golden colour and was of make VIVO and it was produced before the Investigating Officer/Prosecution Witness 64, Inspector Kumar Rajiv, by complainant/Prosecution Witness 1 Sh. Hemant Singh, to whom it was given by Prosecution Witness 16 himself. The said mobile phone was taken into possession by Prosecution Witness 64 vide seizure memo Exhibit PW1/K (D24 on page 355). Though Prosecution Witness 1 has not supported the prosecution case regarding handing over of the said mobile phone of Prosecution Witness 16 by him to the Investigating Officer/Prosecution Witness 64 and its seizure vide the above memo in his presence, he could not deny his signatures appearing on the said memo and duly identified the same during his statement made before the High Court., Even otherwise, this memo Exhibit PW1/K stands duly proved on record from the depositions made by the author of this document i.e. Prosecution Witness 64, as well as Prosecution Witness 50, Inspector Kamal Kishore who is also found to be a signatory to the said document. On further appreciation of the evidence led on record, it has also been found that the above mobile phone of Prosecution Witness 16 Sh. Sanjay was actually of make OPPO and not of make VIVO and the sealed parcel containing it and having the seal impressions of 'KK', which belonged to Prosecution Witness 50, Inspector Kamal Kishore, was received in intact condition in the Forensic Science Laboratory Rohini through the forwarding letter dated 12.06.2020., The said parcel was opened for examination of contents of the said mobile phone by Prosecution Witness 63 Sh. Vishal Sawla Pandhare, an expert of the said laboratory, and the phone was marked as MP2 during the analysis, along with one other mobile phone of make Samsung J-7 belonging to Prosecution Witness 19 Sh. Revadhar Bhatt, as already discussed. As per depositions made by this witness, though the data contained in the mobile phone of Prosecution Witness 19 and its accessories was extracted and transferred in a pen drive, this mobile phone of make OPPO of Prosecution Witness 16 could not be opened by him as it was password protected. The report Exhibit PW63/A given by said witness/expert with regard to the above stands duly proved on record, as already discussed., The above report as well as the parcels containing these two mobiles are found to have been returned back in sealed condition by the Director, Forensic Science Laboratory, Rohini to the Assistant Commissioner of Police concerned vide forwarding letter dated 06.01.2021 on record, which also stands proved from the depositions made by this witness. Further, according to this witness, the sealed parcel was again received with intact seals in their Forensic Science Laboratory on 05.03.2021 and the said mobile phone marked MP1 along with its MICRO PLUS memory card of 2 GB capacity marked as MC1 were examined by him vide his report Exhibit PW63/D dated 12.04.2021 (on page 1375)., He also stated that during the process of the above examination, he had retrieved the data contained in the above devices and transferred it in a pen drive marked as PD1 into separate folders with the given names. He also proved on record the certificate Exhibit PW63/E (on page 1377) under Section 65B of the Indian Evidence Act given by him regarding authenticity of the above process of retrieval and transfer of data in a pen drive. It is also recorded therein that one additional copy of the retrieved and transferred data was also prepared and transferred in a separate pen drive. The above report Exhibit PW63/D along with sealed parcels of the exhibits are stated to have been returned back to the Assistant Commissioner of Police concerned by the Director, Forensic Science Laboratory, Rohini through the forwarding letter Exhibit PW63/F dated 13.04.2021 (on page 1373)., According to Prosecution Witness 54, Inspector Upadhyay Balashankaram, the pen drive containing the data extracted from the above mobile of Prosecution Witness 16 was opened and analysed by him and transcripts Exhibit PW54/B (collated) (on pages 1449-1497) thereof were prepared and the said pen drive was seized by him vide seizure memo Exhibit PW54/A (on page 1447)., Prosecution Witness 53, Inspector Satyabir Singh has stated on record that along with voice samples of Accused A-1 Prakash Jarwal, the voice samples of Accused A-3 Harish Jarwal and Prosecution Witness 16 Sh. Sanjay were also collected by him and they both were taken to the Forensic Science Laboratory, Rohini in January and February 2021. He also stated that cassettes in which the sample voices of Accused A-3 and Prosecution Witness 16 were taken were handed over to them and he sealed them in separate cloth parcels and seized the said parcels vide seizure memos Exhibit PW53/A (on page 1441) and Exhibit PW53/B (on page 1445) respectively. He also identified his signatures on the said memos., The questioned voice samples of Accused A-3 and Prosecution Witness 16, as contained in the above pen drive and their specimen voice samples, as contained in the above audio cassettes, are found to have been sent for forensic analysis to the Central Forensic Science Laboratory, Central Bureau of Investigation, New Delhi and examined by the board of three experts vide their report Exhibit PW55/A (collated) (on pages 1395-1407), along with voice samples of Accused A-1 Prakash Jarwal and Prosecution Witness 19 Sh. Revadhar Bhatt, as already discussed., As per depositions made by Prosecution Witness 56 Dr. Subrat Kumar Choudhury, he had examined the questioned and specimen voices of Prosecution Witness 16 Sh. Sanjay as contained in the above pen drive and audio cassettes. He also stated that auditory, waveform and spectrography examinations of the above‑said questioned and specimen voices were carried out by him and the details thereof, along with examination procedure, reasoning and results etc., are mentioned in his report Exhibit PW55/A. He also identified his signature on the said report. He further stated specifically that no form of tampering was detected in the audio recordings containing the questioned voice of Prosecution Witness 16. He also identified his signature on the original worksheets Exhibit PW55/B (collated) (on pages 1507-1669) regarding auditory examination and voice spectrography examination of the said voices., Prosecution Witness 58 Sh. Amitosh Kumar claims to have examined the questioned and specimen voices of Accused A-3 Harish Jarwal contained in the above pen drive and the audio cassettes pertaining to him. He specifically stated on record that the questioned and specimen voices of the said person were transferred in an instrument namely Speech Science Lab (SSL) for examination and different sentences/words were segregated therefrom for the purpose of comparisons. He further stated that after comparing and identifying the questioned voice with the specimen voice of the said person, it was opined by him that the above questioned voice and the specimen voice were of the same person namely Harish Jarwal, as per auditory and spectrographic examinations thereof carried out by him. He also admitted his signature on the above report Exhibit PW55/A and the original worksheets Exhibit PW55/B (collated)., On perusal of the above report Exhibit PW55/A given by the board of experts of the Central Forensic Science Laboratory, Central Bureau of Investigation, it is observed that, just like the process of analysis adopted for comparison of questioned and specimen voices of Accused A-1 Prakash Jarwal and Prosecution Witness 19 Sh. Revadhar Bhatt, separate sentences and words from the above questioned voices of Prosecution Witness 16 and Accused A-3 were also segregated and subjected to examination and the auditory features of these utterances of both the speakers matched with the words and sentences segregated from their sample voices. It is also recorded in the above report that the phonetic and linguistic features of these voices of the above witness and accused were found similar and their acoustic features such as formant frequencies, distributions, intonation pattern, number of formants and other general visual features in their spectrogram had also matched. Thus, after a detailed analysis, it was concluded by these experts vide their report Exhibit PW55/A that the questioned voice of Prosecution Witness 16 Sh. Sanjay, as appearing in two audio files contained in the above pen drive and marked as exhibit 2(1)(S) and 2(2)(S) was similar to his specimen voice contained in one of the audio cassettes marked as exhibit 5A, as the sentences/words marked as exhibit 2(1)(s1) to 2(1)(s12) and 2(2)(s13) to 2(2)(s30) segregated from his questioned voice in the two files matched with the sentences/words segregated from his specimen voice and marked as exhibit 5A (s1) to 5A (s30). Similarly, it was reported that the questioned voice of Accused A-3 Harish Jarwal as appearing in two audio files contained in the above pen drive and marked as exhibit 2(1)(H) and 2(2)(H) was similar to his specimen voice contained in one of the audio cassettes marked as exhibit 6A, as the sentences/words marked as exhibit 2(1)(h1) to 2(1)(h9) and 2(2)(h10) to 2(2)(h24) segregated from his questioned voice in the two files matched with the sentences/words segregated from his specimen voice and marked as exhibit 6A (h1) to 6A (h24). The report also states that no sentences/words were segregated for analysis from the other copies of audio cassettes of Prosecution Witness 16 and Accused A-3 marked as exhibit 5B and 6B respectively as these cassettes contained the same text which was found existing in the cassettes marked as exhibit 5A and 6A respectively., Thus, as per depositions made by both the above two witnesses and the report given by them regarding the above analysis, the questioned voices appearing in two audio files found in the mobile phone of Prosecution Witness 16 Sanjay and transferred in the above pen drive have been found matching with specimen voices of these two persons i.e. Prosecution Witness 16 Sanjay and Accused A-3 Harish Jarwal and the same have been held to be the probable voices of these persons. The discrepancy appearing in evidence of the prosecution regarding the make of the above mobile phone i.e. VIVO or OPPO is not fatal or of much relevance as it appears to have happened only because of a mistake on the part of Investigating Officer/Prosecution Witness 64, Inspector Kumar Rajiv, who seized it through seizure memo Exhibit PW1/K., During the course of examination of prosecution witnesses, the above mobile phone of make OPPO of Prosecution Witness 16 has also been produced, identified and exhibited as Exhibit PY and the pen drive in which the data of said mobile was transferred has also been identified as Exhibit P1, along with the other relevant exhibits. Further, it is also observed from record that recordings found in the above mobile phone Exhibit PY and transferred in the above pen drive Exhibit P1 were also played in the High Court during examination of Prosecution Witness 16 Sh. Sanjay and he had even identified his voice as well as the voice of Accused A-3 as appearing in one of these audio files, the transcript of which is marked PW16/3 on record, though he stated that he cannot identify the voices appearing in another recording, the transcript of which is marked PW16/4. It is strange on the part of this witness not to identify even his own voice appearing in this audio file, though his inability to identify the voice of Accused A-3 could be understood. It appears to the High Court that reluctance on the part of this witness in not identifying the above voices appearing in the second audio file pertaining to transcription marked PW16/4 was only because he either became more clever or wise after identifying the said voices in the first recording played before him or he was influenced or signaled not to do so by anybody or by that time he realized that the effect of such identification of voices could go against the accused. It can be seen that he simply refused to identify the voices contained in the second file without any plausible explanation or reasons., It cannot be ignored that he was one of many material witnesses of the prosecution case who had turned hostile during their examinations in court and had resiled from their previous statements made during investigation, as already discussed, and in the opinion of the High Court, they all were threatened or influenced by the accused persons in either way for not supporting the prosecution case as Accused A-1 was and is still a Member of Legislative Assembly of their area. Hence, the fact of non‑recognition of the above voices of this witness and of Accused A-3, as appearing in the second audio file played before him, cannot be given much weight and it cannot be blown out of proportion and rather, it has to be inferred that the witness did so on a second thought or under the influence or at the instance of the accused to favour him in this prosecution. It also cannot nullify the effect of recognition of the voices as contained in the first or other audio file, the transcripts of which were marked as Mark PW16/3., In any case, since the report Exhibit PW55/A and the oral testimonies of the above two experts of the Central Forensic Science Laboratory, Central Bureau of Investigation, New Delhi establish on record that the questioned as well as specimen voices of the above witness and of this accused sent for analysis to their laboratory and examined by them were found matching, the above denial or refusal by this witness to identify these voices in recordings of the second audio file played before him is of no help to the case of Accused A-3. Moreover, this witness has also specifically admitted in his above statement that his voice sample was taken in the Forensic Science Laboratory, Rohini. Again, Accused A-3 had, though, denied in his statement under Section 313 of the Criminal Procedure Code that he made any threatening call to Prosecution Witness 16 Sh. Sanjay, but his denial about the above call was not absolute or strong as he is found to have also claimed in the said statement that he had actually made a call to Manoj and the said call might have been recorded in his phone, but it was handed over to police under a conspiracy to implicate him., As already discussed, the transcripts of all recorded conversations of audio files contained in the above mobile phone have been brought in evidence as Exhibit PW54/B (collated) (on pages 1449-1497), though it has also come on record during examination of Prosecution Witness 16 Sh. Sanjay that one conversation contained in the above mobile phone, the transcription of which is marked PW16/5 (collated), was not examined by the Central Forensic Science Laboratory. It has been observed that the contents of this conversation PW16/5 have been reproduced as 'recording 3' in the earlier part of this judgment, on the basis of its reproduction in the charge sheet. However, this fact is not found affecting the prosecution case in any manner as the questioned voices of Prosecution Witness 16 and Accused A-3 as found in the remaining audio files contained in the above mobile phone have been found to be sufficient for the purposes of comparisons thereof with the specimen voices of these two persons., As also earlier discussed, the above recordings of conversations between Accused A-3 and Prosecution Witness 16 Sh. Sanjay are not only of the period prior to registration of this case, but one conversation dated 10.05.2020 is also of the period subsequent thereto and this conversation took place on the very next day of arrest of the main accused Prakash Jarwal (Accused A-1), who is found to have been arrested vide seizure memo Exhibit PW50/A dated 09.05.2020 (D7 on page 263). It has been clearly observed from the transcripts of the above conversations that this accused was also extending threats and thus, intimidating the persons named therein to make payments of the demanded amounts to him. It can also be observed that the threats extended by this accused to the said persons were definitely in relation to the running of their water tankers with Delhi Jal Board and a message had been conveyed to them by the accused that in case the demanded amounts were not paid, their payments would be stopped. The conversation dated 10.05.2020 even shows that this accused had told Prosecution Witness 16 Sanjay that they were not scared by the arrest or detention of the main accused Prakash Jarwal in the present case. He had told the witness through the said call that Accused A-1 would be out on bail in the case within fifteen days or a month. He is even found to have used abusive language for the witness and other persons in some of the said conversations and his tone or tenor in these conversations leaves no doubt for the High Court that the said conversations of this accused were intimidatory in nature, within the meaning of Section 503 of the Indian Penal Code, and the same were also sufficient to create an alarm in the mind of Prosecution Witness 16 Sanjay and the other concerned persons on being communicated the contents thereof, that in case they did not make payment of the demanded amounts to this accused and did not act as per his directions, then the accused may cause injuries to their person or to their property by getting their tankers removed from Delhi Jal Board and the pending payments thereof stopped. Further, the above conversations also corroborate the statements or declarations contained in the diary of the deceased regarding extension of threats to the tanker owners or operators of the said area, including the deceased, by this accused, as an associate of the main accused Prakash Jarwal (Accused A-1) and his close associate Kapil Nagar (Accused A-2)., Thus, even if Prosecution Witness 16 or any other witness does not support the prosecution case through their oral testimonies regarding extension of any threats by this accused to them for extortion or for causing any loss to them by getting their tankers removed and payments stopped, the dying declarations left by the deceased, the oral testimonies of the Forensic Science Laboratory and Central Forensic Science Laboratory experts and the other documentary and scientific evidence on record through their testimonies are held sufficient for proving the charge against Accused A-3 Harish Jarwal for commission of offence of criminal intimidation, as defined by Section 503 of the Indian Penal Code and as made punishable by the first part of Section 506 of the Indian Penal Code., In view of the above discussion, it is held that the prosecution has successfully brought home the guilt of Accused A-1 Prakash Jarwal and Accused A-2 Kapil Nagar and proved its charges framed against them for commission of the offence punishable under Sections 306/34 of the Indian Penal Code for abetting commission of suicide by Dr. Rajendra Singh, for the offence of criminal conspiracy punishable under Section 120B read with Sections 386 and 506 of the Indian Penal Code and also the charges framed for substantive offences punishable under Section 386 read with Sections 511 and 120B of the Indian Penal Code and the second part of Section 506 read with Section 120B of the Indian Penal Code. Further, the prosecution has also been successful in establishing its charge for the offence of criminal intimidation punishable under the first part of Section 506 of the Indian Penal Code against Accused A-3 Harish Jarwal. All the accused persons are accordingly held guilty of the aforesaid offences and are being convicted thereof. Let a copy of this judgment be given to them free of cost and a copy of the judgment be also given to the learned Additional Public Prosecutor for the State.
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Zishan Mukhtar Hussain Siddique, age 33 years, occupation Furniture Showroom, residing at Room No. 904, B‑Wing, Poonam Shruti CHS Ltd., Latif Park, S. K. Stone Road, Mira Road (East), Thane 401107, is the petitioner. The respondent is the State of Maharashtra (through Mira Road Police Station). Mr. Anees Shaikh appears for the petitioner. Mr. J. P. Yagnik, Additional Public Prosecutor, appears for the respondent State., ORDER (Per Revati Mohite Dere, J.): Heard learned counsel for the parties., Rule. The rule is made returnable forthwith, with the consent of the parties, and is taken up for final disposal. Learned Additional Public Prosecutor waives notice on behalf of the respondent State., By this petition, preferred under Article 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 (for short \Cr.P.C.\), the petitioner seeks quashing of the FIR bearing Crime Register No. 168 of 2022 registered with the Mira Road Police Station, for the alleged offence punishable under Section 3 of the Official Secrets Act, 1923 and consequently the charge‑sheet filed in the Court of the learned Chief Judicial Magistrate, Thane, being No. RCC 1811 of 2022., According to the respondent State, the incident took place on 20 April 2022 at about 17:30 hours at Mira Road Police Station, when the petitioner was called to the police station for enquiry in connection with Application bearing No. 245 of 2022. The application was being examined by Assistant Police Inspector Vijay Chavan. During the enquiry, the petitioner sought a copy of the application filed against him. On demand, a copy was given for reading, but the petitioner’s request to obtain a photocopy or to photograph the application on his mobile phone was declined. The officer also refused to provide a copy, after which the petitioner is stated to have taken a photo and video of the application. When the officer checked the petitioner’s mobile phone, a copy of the application and videos were found, and Section 3 of the Official Secrets Act was invoked against the petitioner. After investigation, a charge‑sheet was filed in the Court of the learned Chief Judicial Magistrate, Thane, being No. RCC 1811 of 2022., Learned counsel for the petitioner submits that the petitioner is a complainant in RCC No. 755 of 2022, filed against Irfan Burthan Shaikh and another. He states that on 18 April 2022 the petitioner received a call from Constable Sanjay Utekar of Kanakiya Police Station, who threatened him to attend the police station without serving summons. Pursuant to that, the petitioner attended the police station on 20 April 2022 and found the accused in the case sitting in the cabin of Assistant Police Inspector Vijay Chavan; on seeing the petitioner, the Assistant Police Inspector began abusing him in filthy language. The petitioner further states that the accused Irfan Shaikh told him that he had bribed officials and that if the petitioner did not settle the matter, an FIR would be lodged against him. On 20 April 2022 at around 18:00 hours the petitioner was again called to the police station and was asked to click photos of some documents to show his advocate. After seeking permission, when the photographs were taken, a constable started abusing him and booked him under Section 3 of the Official Secrets Act. The petitioner was forced to sign some documents and some blank papers and, after registration of the offence, was released., Learned Additional Public Prosecutor does not dispute the legal position that a police station is not covered under the provisions of the Official Secrets Act. The allegation against the petitioner is that he photographed a complaint application and videos of the same, and an offence was registered under Section 3 of the Official Secrets Act. After investigation, a charge‑sheet has been filed against the petitioner., Section 3 of the Official Secrets Act reads as follows: 3. Penalties for spying. (1) If any person for any purpose prejudicial to the safety or interests of the State (a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or (b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or (c) obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States; he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years., Section 3 of the Official Secrets Act provides punishment for acts prejudicial to the safety or interests of the State, acts affecting the sovereignty and integrity of India, and so on. Prima facie, the Official Secrets Act appears to have been invoked in a malafide manner by the concerned police. By no stretch of imagination could Section 3 be invoked in the facts of the present case. It is pertinent to note that the definition of ‘prohibited place’ in Section 2(8) of the Official Secrets Act is exhaustive and does not specifically include a police station as one of the places or establishments., We come across several cases where the police invoke Section 3 of the Official Secrets Act without application of mind. In fact, this Court in the case of Ravindra Shitalrao Upadyay (supra) held that even video recording made on a mobile phone within a police station whilst discussions are carried out would not attract the ingredients of Section 3 of the Official Secrets Act. The invocation of Section 3 in the present facts appears to be malafide. The act of taking photos or video, as described, cannot be said to constitute an offence of ‘spying’. The word ‘spying’ has serious connotations and the police must be mindful of the same. Invocation of the Official Secrets Act has serious repercussions on a person’s life, reputation and career and cannot be lightly invoked. The petitioner was slapped with the Official Secrets Act malafide and deliberately, when on the face of it no such offence was made out. Law cannot be used as an instrument to oppress and harass people. Police, being custodians of law, are duty‑bound to uphold it and not misuse it. Police stations are places where people are free to go to lodge a complaint or FIR and to redress wrongs. It is always open for the police to put up a board prohibiting photography, but if one does take a photo or video, the act would not come within the ambit of the Official Secrets Act., The Apex Court in the case of State of Haryana and Others v. Bhajan Lal and Others (supra) observed, in paragraphs 102 and 103, that the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code may be exercised to prevent abuse of the process of any court or to secure the ends of justice in cases where (1) the allegations in the FIR or complaint do not prima facie constitute any offence; (2) the allegations do not disclose a cognizable offence justifying investigation without a magistrate’s order; (3) the allegations and evidence do not disclose the commission of any offence; (4) the allegations constitute only a non‑cognizable offence; (5) the allegations are so absurd and improbable that no prudent person can find sufficient ground for proceeding; (6) there is an express legal bar in the provisions of the Code or the concerned Act; or (7) the proceeding is manifestly malafide or maliciously instituted with an ulterior motive. The Court cautioned that the power to quash a criminal proceeding should be exercised sparingly and with circumspection, and that the court will not embark upon an enquiry into the reliability or genuineness of the allegations., The petitioner’s case is squarely covered by clauses (1) and (3) of paragraph 102 of the Bhajan Lal judgment. Accordingly, the petition is allowed and the FIR bearing Crime Register No. 168 of 2022 registered with Mira Road Police Station for the alleged offence punishable under Section 3 of the Official Secrets Act, 1923, and the charge‑sheet filed in the Court of the learned Chief Judicial Magistrate, Thane, being No. RCC 1811 of 2022, are quashed and set aside., Having regard to the peculiar facts of this case, the State Government is directed to pay costs of Rs. 25,000 to the petitioner. The costs shall be recovered from the salary of the person or persons responsible for lodging the FIR under Section 3 of the Official Secrets Act and consequently the persons vetting the filing of the charge‑sheet. Costs are to be paid to the petitioner within four weeks from the uploading of this order., The rule is made absolute in the aforesaid terms. The petition is disposed of accordingly., Stand over to 15 February 2023 for recording compliance of the payment of costs and steps taken for recovery of costs from the erring officers., All concerned are to act on the authenticated copy of this order.
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Preface: Plato, the Greek philosopher in his treatise The Laws, underscores that punishment is to be inflicted, not for the sake of vengeance, for what is done cannot be undone, but for the sake of prevention and reformation (Thomas L. Pangle, The Laws of Plato, Basic Book Publishers, 1980). In his treatise, Plato reasons that the lawgiver, as far as he can, ought to imitate the doctor who does not apply his drug with a view to pain only, but to do the patient good. This curative theory of punishment likens penalty to medicine, administered for the good of the one who is being chastised (Trevor J. Saunders, Plato's Penal Code: Tradition, Controversy, and Reform in Greek Penology, Oxford University Press, 1991). Thus, if a criminal is curable, he ought to be improved by education and other suitable arts, and then set free again as a better citizen and less of a burden to the state. This postulate lies at the heart of the policy of remission. In addition, there are competing interests involved: the rights of the victim and the victim's family to justice vis‑a‑vis a convict's claim to a second chance by way of remission or reduction of his sentence for reformation. Over the years this Supreme Court of India initially attached greater weight to the former and has expressed skepticism over the latter, particularly if the offence in question is a heinous one. This sentiment can be gathered from the observations of Fazal Ali J. in Maru Ram vs. Union of India, AIR 1980 SC 2147. It is true that there appears to be a modern trend of giving punishment a colour of reformation so that stress may be laid on the reformation of the criminal rather than his confinement in jail, which is an ideal objective. At the same time, it cannot be gainsaid that such an objective cannot be achieved without mustering the necessary facilities, the requisite education and the appropriate climate which must be created to foster a sense of repentance and penitence in a criminal so that he may undergo a mental or psychological revolution that he realizes the consequences of playing with human lives. In the world of today and particularly in our country, this ideal is yet to be achieved and, in fact, with all our efforts it will take us a long time to reach this sacred goal. The question, therefore, is whether the country should take the risk of innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal, however dangerous or callous he may be, will reform himself. A woman deserves respect however high or low she may be considered in society or whatever faith she may follow or any creed she may belong to. Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty? These are the issues which arise in these writ petitions. With the aforesaid philosophical preface, we proceed to consider these writ petitions, both on maintainability as well as on merits, purely from a legal perspective., These writ petitions have been filed assailing the orders dated 10.08.2022, granting remission and early release of respondent Nos. 3 to 13 in Writ Petition (Criminal) No. 491 of 2022 (which petition shall be considered the lead petition). All respondents were convicted of committing heinous crimes during the large‑scale riots in Gujarat on 28.02.2002 and a few days thereafter, which occurred in the aftermath of the burning of the train incident in Godhra on 27.02.2002. The grotesque and diabolical crime was driven by communal hatred and resulted in twelve convicts, amongst many others, brutally gang‑raping the petitioner Bilkis Yakub Rasool, who was pregnant at that time. The petitioner’s mother was gang‑raped and murdered, her cousin who had just delivered a baby was also gang‑raped and murdered. Eight minors, including the petitioner’s cousin’s two‑day‑old infant, were also murdered. The petitioner’s three‑year‑old daughter was murdered by smashing her head on a rock; her two minor brothers, two minor sisters, her phupha, phupi, mama (uncle, aunt and uncle respectively) and three cousins were all murdered. While eventually the perpetrators, including police personnel, were convicted and sentenced, the petitioner, who was twenty‑one years old and pregnant at that time, having lost all members of her family in the diabolical attacks, has once again approached the Supreme Court of India seeking justice by challenging the en‑mass remission granted to respondent Nos. 3 to 13. Bilkis Yakub Rasool has filed the present writ petition under Article 32 of the Constitution of India, seeking issuance of a writ, order or direction quashing the orders dated 10.08.2022 passed by the State of Gujarat, by which the convicts in Sessions Case No. 634 of 2004, Mumbai (respondent Nos. 3 to 13), whose convictions were upheld by a Division Bench of the Bombay High Court and thereafter by this Supreme Court of India, have been released prematurely. Writ Petition (Criminal) No. 352 of 2022 titled Dr. Meeran Chadha Borwankar vs. State of Gujarat has been preferred by a former woman police officer, a woman bureaucrat who had served in the Indian Foreign Service and an academic, seeking, inter alia, the setting aside of the remission orders dated 10.08.2022. The petitioners have also sought a writ or order in the nature of mandamus directing that the States must endeavour to have a pluralistic composition in Jail Advisory Committees, adequately representing the diverse nature of our society. Writ Petition (Criminal) No. 319 of 2022 titled Subhashini Ali vs. State of Gujarat, the first of the petitions filed in this batch, has been preferred under Article 32 by Subhashini Ali, a former parliamentarian and presently the Vice‑President of All India Democratic Women’s Association; Revati Laul, an independent journalist; and Roop Rekha Verma, former Vice‑Chancellor of Lucknow University, challenging the orders dated 10.08.2022. Writ Petition (Criminal) No. 326 of 2022 titled Mahua Moitra vs. State of Gujarat has been preferred by Mahua Moitra, a Member of Parliament from the Krishnanagar constituency in West Bengal, seeking issuance of a writ, order or direction quashing the orders dated 10.08.2022 and also seeking the framing of guidelines and equitable application of existing guidelines by the State Government for the grant of remission so as to channelise the exercise of discretion and prevent misuse. Writ Petition (Criminal) No. 403 of 2022 titled National Federation of Indian Women (NFIW) vs. State of Gujarat has been filed by the National Federation of Indian Women, a women‑centric organization established on 04.06.1954 for securing women’s rights, seeking appropriate directions in the form of a writ of mandamus to the respondent to revoke the remission granted to respondent Nos. 3 to 13 by the competent authority of the Government of Gujarat under the remission policy dated 09.07.1992 and to re‑arrest respondent Nos. 3 to 13. Writ Petition (Criminal) No. 422 of 2022 titled Asma Shafique Shaikh vs. State of Gujarat has been filed by Asma Shafique Shaikh, a lawyer and social activist, seeking issuance of a writ, order or direction quashing the orders dated 10.08.2022. Writ Petition (Criminal) No. 491 of 2022 has been filed by the victim Bilkis Yakub Rasool, seeking quashing of the orders dated 10.08.2022; for convenience, the factual background, details and status of the parties shall be referred to Writ Petition (Criminal) No. 491 of 2022., The factual background in which these writ petitions have been filed is that following the unfortunate and grave incident, a First Information Report was registered against unknown accused on 04.03.2002. The investigating agency filed a closure report stating that the accused could not be traced and the closure report was accepted by the Judicial Magistrate by order dated 25.03.2003. The closure report was challenged by the petitioner‑victim Bilkis Yakub Rasool before the Supreme Court of India in Writ Petition (Criminal) No. 118 of 2003. The Supreme Court of India directed the reopening of the case and transferred the investigation to the Central Bureau of Investigation (CBI). The CBI commenced a fresh investigation and submitted a chargesheet on 19.04.2004 against twenty persons. Charges of gang rape, murder and rioting armed with deadly weapons with a common intention were framed against twelve persons, six police personnel and two doctors. The petitioner‑victim approached the Supreme Court of India by filing Transfer Petition (Criminal) No. 192 of 2004, seeking transfer of the trial from the State of Gujarat to a neutral place. By order dated 06.08.2004, the Supreme Court of India considered it appropriate to transfer Sessions Case No. 161 of 2004 pending before the learned Additional Sessions Judge, Dahod, Ahmedabad to the competent court in Mumbai for trial and disposal. Charges were framed on 13.01.2005 against eleven convicts for offences under Sections 143, 147, 302, 376(2)(e) and (g) of the Indian Penal Code. The Special Judge, Greater Mumbai, by judgment dated 21.01.2008 in Sessions Case No. 634 of 2004 convicted the eleven accused and sentenced them to life imprisonment for offences including gang rape and murder of the petitioner’s mother, gang rape and murder of her cousin Shamim, murder of twelve more victims including the petitioner’s three‑and‑a‑half‑year‑old daughter, rioting, etc., and one police personnel for deliberately recording the First Information Report incorrectly. The trial court acquitted the remaining five police personnel and the two doctors. Respondent Nos. 3 to 13 were convicted for offences punishable under Sections 143, 147, 148, 302 read with 149 of the Indian Penal Code for the murder of fourteen people; Section 376(2)(e) and (g) for having committed gang‑rape on the petitioner‑victim; Section 376(2)(g) for having committed gang rape on other women. The police officer Somabhai Gori was convicted under Sections 217 and 218 of the Indian Penal Code. On 05.08.2013, a Division Bench of the Bombay High Court passed an order in Criminal Writ Petition No. 305 of 2013 titled Ramesh Rupabhai Chandana vs. State of Maharashtra, preferred by respondent No. 13, holding that where a trial has been transferred from one State to another and such trial has been concluded and the prisoner has been convicted, the prisoner should be transferred to the prison of his State. Against the judgment of the trial court dated 21.01.2008, the convicted persons and the State filed criminal appeals before the Bombay High Court. While the convicts filed appeals assailing their conviction, the State filed an appeal against the acquittal of the police officials and the doctors. A bench comprising Mrs. Mridula Bhatkar and Mrs. V. K. Tahilramani, JJ., of the Bombay High Court upheld the conviction of the eleven persons accused of rioting armed with deadly weapons, gang‑rape and murder by judgment dated 04.05.2017 in Criminal Appeals Nos. 1020‑1023 of 2009, 487 of 2010, 194 and 271 of 2011 titled Jaswantbhai Chaturbhai Nai vs. State of Gujarat. The five police officials and the two doctors who were acquitted by the trial court were also convicted by the High Court. The High Court observed that the investigation by the Gujarat police was not proper and had taken the investigation in the wrong direction from the beginning, i.e., the day of registering the First Information Report. It noted that the investigation was not only unsatisfactory but also smacked of dishonest steps to shield the culprits and that the truth and falsehood were mixed up in such a manner that at every stage of investigation the truth was hidden under layers of intentional laxity, omissions, contradictions and falsehood and needed to be unearthed. All the convicted persons filed Special Leave Petitions against the judgment of the High Court. The Supreme Court of India, by order dated 10.07.2017 in SLP (Criminal) Nos. 4290/2017, 4705/2017 and 4716/2017 and by order dated 20.11.2017 in SLP (Criminal) No. 7831/2017, dismissed the Special Leave Petitions and upheld the findings and sentence awarded by the High Court. The petitioner‑victim approached the Supreme Court of India by way of Criminal Appeal Nos. 727‑733 of 2019 seeking just and adequate compensation for her ordeals. By order dated 23.04.2019, the Supreme Court of India observed that the petitioner is a victim of riots which occurred in the aftermath of the Godhra train burning and noted that the loss she suffered surpassed normal cases. The Court directed the State Government to pay Rs. 50,00,000 (Rupees Fifty Lakhs) to the petitioner within two weeks, noting that she had been coerced into living the life of a nomad and an orphan and was barely sustaining herself on the charity of NGOs after losing her family members., After serving fourteen years, five months and six days of his sentence, respondent No. 3, Radheshyam Bhagwandas Shah, filed Criminal Application No. 4573 of 2019 before the Gujarat High Court challenging the non‑consideration of his application for premature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973. The High Court, after considering the submissions, observed that respondent No. 3 had been tried in the State of Maharashtra; hence, as per Section 432(7), the appropriate government for the purpose of Sections 432 and 433 of the Code of Criminal Procedure would be the State of Maharashtra. Relying on the dictum of this Supreme Court of India in Union of India vs. V. Sriharan, (2016) 7 SCC 1, the High Court directed the petitioner to pursue his remedy within the State of Maharashtra. Respondent No. 3 then moved an application dated 01.08.2019 before the Secretary, Department of Home Affairs, State of Maharashtra, seeking premature release under Sections 432 and 433A of the Code of Criminal Procedure, specifically relying on the Gujarat High Court order dated 17.07.2019. As the case was investigated and prosecuted by the CBI, the agency’s opinion was sought on the application for premature release. The CBI submitted its report dated 14.08.2019 recommending that respondent No. 3 should serve his sentence fully and no leniency should be given, noting his active participation in the heinous crime. On 03.01.2020, the Special CBI Court, Mumbai, also gave a negative report objecting to the prayer for premature release on the ground of seriousness of the offence, observing that the offences fell into category 5(b) of the relevant State policy and were extremely serious. Similarly, on 03.02.2020, the Superintendent of Police, Dahod, in his report to the Collector and District Magistrate, Dahod, gave a negative opinion against premature release, stating that the victim and her family would apprehend serious crimes if respondent No. 3 were released prematurely. The Office of the Collector and District Magistrate, Dahod, on 19.02.2020 also opined against premature release, relying on the Superintendent’s opinion. Respondent No. 3 again approached the Gujarat High Court by way of Criminal Miscellaneous Application No. 1 of 2019 seeking remission under Section 432 read with Section 433 of the Code of Criminal Procedure. By order dated 13.03.2020, the High Court rejected the application, observing that the appropriate government under Section 432(7)(b) to exercise the powers of remission would be the State of Maharashtra and not the State of Gujarat. The court recorded that counsel for respondent No. 3 had sought permission to move the High Court of Bombay for the same relief and therefore disposed of the application with liberty to the writ petitioner. This order remains in force as it has not been challenged or set aside. On 20.07.2021, a meeting of the Jail Advisory Committee of the State of Gujarat took place comprising four social workers; two members of the State Legislative Assembly; the Superintendent of Police, Godhra; the District and Sessions Judge, Godhra; the Secretary, Jail Advisory Committee and Superintendent, Godhra Sub‑Jail; and the District Magistrate, Godhra (Chairman of the Jail Advisory Committee, Godhra Sub‑Jail). The Sessions Judge, Godhra, a member of the Committee, observed that respondent No. 3 had been sentenced to life imprisonment in a sensitive case and that premature release might create an adverse effect on society and disturb peace. The other Committee members recommended grant of remission on the ground that he had completed fifteen years of imprisonment and his conduct in prison had been good. On 18.08.2021, the Additional Director General of Police, Prisons and Correctional Administration, State of Gujarat, in a letter to the Additional Chief Secretary, Home Department, Gujarat, after considering the Committee’s opinion, concurred with the negative opinions of the Superintendent of Police, Dahod; the CBI; the Special CBI Court, Mumbai; and the District Magistrate, Dahod, and did not recommend premature release of respondent No. 3. In the interregnum, the remaining convicts, respondent Nos. 4 to 13, applied for remission in February 2021 to the Superintendent, Godhra Sub‑Jail. The CBI’s opinion was sought and was negative, as was the opinion of the Special Judge (CBI), Greater Mumbai. By a common opinion dated 22.03.2021, the Special Judge (CBI), Greater Mumbai stated that since all the accused were tried and convicted in Mumbai, i.e., the State of Maharashtra, the Government Resolution issued by the Home Department, Government of Maharashtra would be applicable. The Special Judge, after perusing the guidelines issued by the Government of Maharashtra on 16.11.1978 and 11.05.1992 and the Government Resolution dated 11.04.2008 (Policy dated 11.04.2008), observed that the resolution dated 11.04.2008 superseded all earlier orders and would apply to convicts undergoing life imprisonment. The Judge noted that the case of the convicts would fall under categories 2(c), 2(d) and 4(d) of the Policy, according to which the minimum period of imprisonment to be undergone is 28 years (Category 2(d)). However, the Superintendent of Police, Dahod, gave a positive opinion with respect to premature release of respondent Nos. 3 to 13, which was seconded by the Collector and District Magistrate, Dahod. In this backdrop, a writ petition, Writ Petition (Criminal) No. 135 of 2022 titled Radheshyam Bhagwandas Shah vs. State of Gujarat, (2022) 8 SCC 552, was filed before the Supreme Court of India by respondent No. 3, seeking a direction in the nature of mandamus to the State of Gujarat to consider his application for premature release under its policy dated 09.07.1992, which was existing at the time of commission of his crime and conviction. The Supreme Court of India noted that the policy on the date of conviction was as per the resolution dated 09.07.1992 passed by the State of Gujarat, and therefore respondent No. 3 would be governed by the same. Relying on the dictum in State of Haryana vs. Jagdish, (2010) 4 SCC 216, the Court observed that the application for grant of premature release must be considered on the basis of the policy that stood on the date of conviction. The Court rejected the argument that the appropriate government would be the State of Maharashtra because the trial had been concluded there, holding that the crime was committed in the State of Gujarat and, after conviction, all further proceedings including remission must be considered under the policy applicable in Gujarat. The Court directed the State of Gujarat to consider the petitioner’s application for premature release in terms of its policy dated 09.07.1992. Pursuant to the judgment dated 13.05.2022, a meeting of the Jail Advisory Committee of the State of Gujarat took place on 26.05.2022 and all members recommended grant of remission to respondent Nos. 3 to 13. The Sessions Judge, Godhra, also considered the applications and, after reviewing the Jail Superintendent’s report, noted that the convicts had demonstrated good behavior, no adverse incidents were recorded during furlough or parole except against one convict, Mitesh Chimanlal Bhatt, and that they had participated in rehabilitation programmes. Applying the policy dated 09.07.1992, the Sessions Judge gave an affirmative opinion for premature release of respondent Nos. 3 to 13. On 09.06.2022, the Additional Director General of Police, Prisons and Correctional Administration, State of Gujarat, addressed a letter to the Additional Chief Secretary, Home Department, Government of Gujarat, regarding the premature release of accused Kesarbhai Khimabhai Vahoniya. The letter stated that the Superintendent of Police, Dahod, gave a positive opinion; the Superintendent of Police, Special Crime Branch, Mumbai, gave a negative opinion; the District Magistrate, Dahod, gave a positive opinion; the Sessions Court, Mumbai, gave a negative opinion; the Jail Advisory Committee of Gujarat gave a positive opinion; and the Superintendent, Godhra Sub‑Jail, gave a positive opinion. Accordingly, the Additional Director General gave a positive opinion regarding premature release of Kesarbhai Khimabhai Vahoniya and similarly for the other convicts Salesh Chimanlal Bhatt, Pradip Ramanlal Modhhiya, Mitesh Chimanlal Bhatt, Bipinchand Kanhaiyalal Joshi, Rajubhai Babulal Soni, Bakabhai Khimabhai Vahoniya, Jaswantbhai Chaturbhai Nai (Rawal) and Ramesh Rupabhai Chandana. On 28.06.2022, the Department of Home Affairs, Government of Gujarat, addressed a letter to the Secretary, Ministry of Home Affairs, Government of India, seeking sanction from the Government of India for the premature release of the prisoners, respondent Nos. 3 to 13. By letter dated 11.07.2022, the Ministry of Home Affairs, Government of India, conveyed its approval under Section 435 of the Code of Criminal Procedure for the premature release of all eleven convicts, respondent Nos. 3 to 13. Pursuant to the concurrence of the Central Government, the State of Gujarat issued the impugned orders dated 10.08.2022., Under Secretary, Home Department, State of Gujarat (first respondent) has filed an affidavit stating that he is acquainted with the facts of the case as appearing from the official records. While denying every assertion, contention and statement made by the petitioner in Writ Petition (Criminal) No. 319 of 2022, which was the first of the writ petitions filed before this Supreme Court of India, certain preliminary submissions have been advanced at the outset. It is contended that the public interest litigation filed by the petitioners (Subhashini Ali and others) is neither maintainable in law nor tenable on facts. A third party has no locus to challenge the orders of remission passed by a competent authority under the garb of a public interest litigation. A public interest litigation is not maintainable in a criminal matter as the petitioners are in no way connected with the proceedings in which the convicted persons have been granted remission. Therefore, the writ petition may be dismissed on that ground alone. In support of this submission, reliance has been placed on Rajiv Ranjan Singh Lalan (VIII) vs. Union of India, (2006) 6 SCC 613.
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Gulzar Ahmed Azmi versus Union of India, (2012) 10 SCC 73 (Gulzar Ahmed); Simranjit Singh Mann versus Union of India, (1992) 4 SCC 65 (Simranjit Singh); and Ashok Kumar Pandey versus State of West Bengal, (2004) 3 SCC 349 (Ashok Kumar). It is submitted that a third party stranger either under the provisions of the Criminal Procedure Code or under any other statute is precluded from questioning the correctness of grant or refusal of sanction for prosecution or the conviction and sentence imposed by the Supreme Court of India after a regular trial. Similarly, a third party stranger is precluded from questioning a remission order passed by the State Government which is in accordance with law. Therefore, dismissal of the petition at the threshold is sought., It is next averred that the petitioners have not pleaded as to how they have the locus to seek a writ of certiorari for quashing the orders of remission passed by respondent No.1 with respect to the eleven convicts sentenced by the Special Judge, Greater Mumbai in Sessions Case No. 634 of 2004. The petitioners have not pleaded as to how their fundamental rights have been abridged or how they are aggrieved by the action of the State Government. Therefore, filing of the writ petition as Public Interest Litigation (in short, Public Interest Litigation) is an abuse of Public Interest Litigation jurisdiction and is motivated by political intrigues and machinations. In this regard, reliance has been placed on Tehseen Poonawalla versus Union of India, (2018) 6 SCC 72 (Tehseen) and Ashok Kumar., It is further submitted that the petitioners not being aggrieved persons have invoked the jurisdiction of the Supreme Court of India under Article 32 of the Constitution for extraneous purposes. As the petitioners are not the persons aggrieved, the writ petition is not maintainable. On the scope and ambit of the expression person aggrieved, reliance has been placed on State of Maharashtra versus M.V. Dabholkar, (1975) 2 SCC 702 (M.V. Dabholkar); Jasbhai Motibhai Desai versus Roshan Kumar, Haji Bashir Ahmed, (1976) 1 SCC 671 (Jasbhai Motibhai); and Thammanna versus K. Veera Reddy, (1980) 4 SCC 62 (Thammanna)., On merits, it is stated that one of the respondents prisoners, namely Radheshyam Bhagwandas Shah, had filed Writ Petition (Criminal) No. 135 of 2022, inter alia, praying to consider his remission application. The Supreme Court of India by its order dated 13.05.2022 held that the policy which will be applicable for deciding the remission application is the one which was in vogue at the time of conviction, that is Premature Release of Convicts Policy of 1992. Further, the Supreme Court of India held that for the purposes of Section 432 of the Criminal Procedure Code, the appropriate Government for considering the remission application is the State in which the offence was committed and not the State in which the trial was conducted and therefore directed the State of Gujarat to consider the application of the prisoner within a period of two months. Accordingly, the State of Gujarat considered the application of the prisoners as per Section 432 read with Section 435 of the Criminal Procedure Code along with the Premature Release of Convicts Policy of 1992. The State Government vide its Circular dated 09.07.1992 had issued a policy for early release of prisoners who have completed fourteen years of imprisonment and who were imposed punishment of life imprisonment. As per the aforesaid Policy of 1992, the Inspector General of Jail is mandated to obtain the opinion of the District Police Officer, District Magistrate, Jail Superintendent and Advisory Board Committee for early release of a convict. Thereafter, the Inspector General of Jail is mandated to give his opinion with the copy of the nominal roll and copy of the judgment and the recommendation of the Government. Further, the Jail Advisory Board at the time of consideration of the premature release application shall be guided by the Policy of 1992. A copy of the policy has been annexed as Annexure R‑2. It is further submitted that the State Government considered the case of all the eleven convicts as per the Policy of 1992. Further, the remission in these cases was not granted under the Circular governing grant of remission to prisoners as part of celebration as Azadi Ka Amrit Mahotsav., The State Government in fact directed the Additional Director General of Prisons, Ahmedabad to send the necessary proposal of remission as per the direction of the Supreme Court of India before 31.05.2022 vide letter dated 25.05.2022. A reminder was also sent on 08.06.2022. Ten proposals were received on 09.06.2022 and one proposal was received on 17.06.2022. The applications of the accused were considered according to the remission policy dated 09.07.1992 in accordance with the directions issued by the Supreme Court of India. As laid down in the abovementioned policy, the Department received the opinions of the concerned District Police Officer, District Magistrate and Chairman of Jail Advisory Board Committee. It is further stated that the State Government has considered the opinions of the Inspector General of Prisons, Gujarat State, Jail Superintendent, Jail Advisory Committee, District Magistrate, Police Superintendent, Central Bureau of Investigation, Special Crime Branch, Mumbai and Sessions Court, Mumbai (Central Bureau of Investigation). Therefore, the opinions of seven authorities were considered. Further, having regard to the provisions of Section 435 of the Criminal Procedure Code, sanction of the Government of India was also necessary. As the Central Bureau of Investigation was a central investigating agency, the State Government obtained the approval or suitable orders of the Government of India. The prisoners convicts had completed fourteen years of imprisonment and the opinions of the concerned authorities were obtained as per Policy dated 09.07.1992. The same was submitted to the Ministry of Home Affairs, Government of India vide letter dated 28.06.2022 and sought the approval or suitable orders of the Government of India. The Government of India vide its letter dated 11.07.1992 conveyed its concurrence or approval. On considering all the opinions, the State Government decided to release the eleven convicts since they had completed fourteen years and above in jail and their behaviour was found to be good., Reliance has been placed on Jagdish and V. Sriharan to contend that if a policy which is beneficial to the convict exists at the time of consideration of the application of premature release then the convict cannot be deprived of such beneficial policy and that judicial review of the order of remission is not permissible in law. The Under Secretary has further proceeded to place the following facts to contend that the impugned orders are in accordance with law: I say that the relevant records pertaining to the application for remission qua the prisoner Kesharbhai Khimabhai Vahoniya are as under: 1. Premature release application dated 2. Letter dated 11.03.2021 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge Sessions Court, Greater Bombay considering the Government Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector and District Magistrate, Dahod, Gujarat. No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., I say that the relevant records pertaining to the application for remission qua the prisoner Shaileshbhai Chimanlal Bhatt are as under: 1. Premature release application dated 2. Letter dated 11.03.2021 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge Sessions Court, Greater Bombay considering the Government Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector and District Magistrate, Dahod, Gujarat. No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., I say that the relevant records pertaining to the application for remission qua the prisoner Pradip Ramanlal Modhiya are as under: 1. Premature release application dated 2. Letter dated 11.03.2021 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge Sessions Court, Greater Bombay considering the Government Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector and District Magistrate, Dahod, Gujarat. No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., I say that the relevant records pertaining to the application for remission qua the prisoner Mitesh Chimanlal Bhatt are as under: 1. Premature release application dated 2. Letter dated 10.03.2021 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge Sessions Court, Greater Bombay considering the Government Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 25.05.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 25.05.2022 from the Collector and District Magistrate, Dahod, Gujarat. No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., I say that the relevant records pertaining to the application for remission qua the prisoner Bipinchandra Kanaiyalal Joshi are as under: 1. Premature release application dated 2. Letter dated 10.03.2021 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge Sessions Court, Greater Bombay considering the Government Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector and District Magistrate, Dahod, Gujarat. No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., I say that the relevant records pertaining to the application for remission qua the prisoner Rajubhai Babulal Soni are as under: 1. Premature release application dated 2. Letter dated 11.03.2021 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge Sessions Court, Greater Bombay considering the Government Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector and District Magistrate, Dahod, Gujarat. No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., I say that the relevant records pertaining to the application for remission qua the prisoner Bakabhai Khimabhai Vahoniya are as under: 1. Premature release application dated 2. Letter dated 10.03.2021 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge Sessions Court, Greater Bombay considering the Government Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector and District Magistrate, Dahod, Gujarat. No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., I say that the relevant records pertaining to the application for remission qua the prisoner Govindbhai Akhambhai Nai (Raval) are as under: 1. Premature release application dated 15.02.2021. 2. Letter dated 10.03.2021 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge Sessions Court, Greater Bombay considering the Government Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector and District Magistrate, Dahod, Gujarat. No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., I say that the relevant records pertaining to the application for remission qua the prisoner Jashvantbhai Chaturbhai Nai (Raval) are as under: 1. Premature release application dated 15.02.2021. 2. Letter dated 10.03.2021 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge Sessions Court, Greater Bombay considering the Government Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector and District Magistrate, Dahod, Gujarat. No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., I say that the relevant records pertaining to the application for remission qua the prisoner Rameshbhai Rupabhai Chandana are as under: 1. Premature release application dated 25.02.2021. 2. Letter dated 10.03.2021 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 22.03.2021 from the Special Judge Sessions Court, Greater Bombay considering the Government Resolution dated 11.04.2008, issued by the State of Maharashtra, prisoner should not be released prematurely. 4. Letter dated 07.03.2022 from the Superintendent of Police, Dahod, Gujarat. No objection to the premature release of the prisoner. 5. Letter dated 07.03.2022 from the Collector and District Magistrate, Dahod, Gujarat. No objection to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 26.05.2022. The committee has unanimously given the opinion in favour of the premature release of the prisoner. 8. Letter dated 09.06.2022 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. No objection to the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., I say that the relevant records pertaining to the application for remission qua the prisoner Radheshyam Bhagwandas Shah @ Lala Vakil are as under: 1. Premature release application dated 01.08.2019. 2. Letter dated 14.08.2019 from the Superintendent Mumbai. Prisoner should not be released prematurely. 3. Letter dated 03.01.2020 from the Special Judge Sessions Court, Greater Bombay. Objected to the premature release of the prisoner. 4. Letter dated 13.02.2020 from the Superintendent of Police, Dahod, Gujarat. Objected to the premature release of the prisoner. 5. Letter dated 19.02.2020 from the Collector and District Magistrate, Dahod, Gujarat. Objected to the premature release of the prisoner. 6. Opinion of the Jail Superintendent, Godhra Sub‑Jail, Gujarat. No objection to the premature release of the prisoner. 7. Opinion of the Jail Advisory Committee dated 20.07.2021. Nine out of ten members of the Committee recommended the premature release of the prisoner. 8. Letter dated 18.08.2021 to the Home Department, Government of Gujarat, from the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad. Did not recommend the premature release of the prisoner. 9. Letter dated 28.06.2022 to the Ministry of Home Affairs, Government of India from the Home Department, Government of Gujarat. Recommended premature release of the prisoner. Sought approval or suitable orders from the Government of India. 10. Letter dated 11.07.2022 to the Home Department, Government of Gujarat from the Ministry of Home Affairs, Government of India approved the premature release of the prisoner., Therefore, it has been contended that the Public Interest Litigation is not maintainable as it is misconceived and devoid of any merit and as such is liable to be dismissed., Respondent No.2 has not filed any pleading in this matter. Even though respondents Nos.3 to 13 have filed their counter affidavits, we do not find it necessary to advert to the same as they would be replicating the stand of the State of Gujarat., We have heard learned counsel Miss Shobha Gupta for the petitioner in Writ Petition (Criminal) No. 491 of 2022; learned Additional Solicitor General Sri S.V. Raju appearing on behalf of the State of Gujarat and Union of India; and learned senior counsel Mister Sidharth Luthra and other counsel for respondents Nos.3 to 13 and perused the material on record., We have also heard learned senior counsel and learned counsel Miss Indira Jaising, Miss Vrinda Grover and Miss Aparna Bhat for the petitioners in the public interest litigations., We have perused the material on record as well as the judicial dicta cited at the Bar., Learned counsel for the petitioner in Writ Petition (Criminal) No. 491 of 2022, Miss Shobha Gupta, at the outset submitted that the en‑mass remission granted to respondents Nos.3 to 13 by orders dated 10.08.2022 has not only shattered the victim‑petitioner and her family but has also shocked the collective conscience of Indian society. That in the present case, the right of the victim and the cry of the society at large have been ignored by the State and Central Governments while recommending the grant of remission to all convicts in the case., It was asserted that though the crime was committed in the State of Gujarat, the investigation and trial were carried out in the State of Maharashtra pursuant to the orders of the Supreme Court of India. Hence, in view of the unambiguous language of Section 432(7)(b), only the State of Maharashtra would be the appropriate government which could have considered the applications filed by respondents Nos.3 to 13 seeking remission of their sentences. Learned counsel placed reliance on State of Madhya Pradesh versus Ratan Singh, (1976) 3 SCC 470 (Ratan Singh); Government of Andhra Pradesh versus M.T. Khan, (2004) 1 SCC 616 (M.T. Khan); Hanumant Dass versus Vinay Kumar, (1982) 2 SCC 177 (Hanumant Dass) and V. Sriharan., According to learned counsel, once a competent court in the State of Maharashtra had tried and convicted the accused then that State is the appropriate Government. Therefore, the orders of remission passed by the State of Gujarat in respect of respondents Nos.3 to 13 are without jurisdiction and a nullity and thus are liable to be quashed. As regards the applicability of the relevant remission policy, learned counsel submitted that since the appropriate government in the instant case is the State of Maharashtra, the remission policy of the State of Maharashtra would be applicable. Thus, the remission policy of the State of Gujarat dated 09.07.1992 would be wholly inapplicable. It was contended that the remission policy dated 09.07.1992 of the State of Gujarat was not even in existence as on the date for consideration of the remission applications as it was scrapped by way of a circular dated 08.05.2014 pursuant to the letter of the Central Government circulated to all the States and Union Territories requiring the implementation of the judgment of the Supreme Court of India in Sangeet versus State of Haryana, (2013) 2 SCC 452 (Sangeet), wherein the Supreme Court of India held that before actually exercising the power of remission under Section 432 of the Criminal Procedure Code, the appropriate government must obtain the opinion of the Presiding Judge of the convicting or confirming court and that the remission shall not be granted in a wholesale manner, such as on the occasion of Independence Day etc. That pursuant to the cancellation of the policy dated 09.07.1992, the State of Gujarat came up with a new remission policy dated 23.01.2014, and even this policy would not entitle remission of the accused herein, for two reasons: firstly, because the remission policy of the State of Maharashtra would be applicable as it is the appropriate government, and secondly, the 2014 policy of the State of Gujarat bars the grant of remission to convicts of heinous crimes., Relying on the opinion of the Special Judge, Sessions Court, Greater Mumbai, it was submitted that the Special Judge had rightly stated that the remission policy applicable in the present case would be the policy dated 11.04.2008 of the State of Maharashtra in respect of which the circular dated 13.06.2008 of the State of Maharashtra was issued, wherein a convict of communal crime, gang rape and murder would fall under the categories 2(c), 2(d) and 4(e) of the policy which prescribes that the minimum period of imprisonment to be undergone by the convict before remission can be considered would be twenty‑eight years. Thus, respondents‑convicts were not entitled to be granted remission as they had not completed the minimum period of imprisonment as per the applicable remission policy.
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It was further contended that the remission orders under challenge failed to meet the criteria laid down by the Supreme Court of India in Sangeet and Ram Chander vs. State of Chhattisgarh, (2022) 12 SCC 52 (Ram Chander), wherein it has been stated that the appropriate government must obtain the opinion of the Presiding Judge of the convicting court before deciding the remission application. The State of Gujarat granted remission to all the convicts by completely ignoring the negative opinions expressed by two major stakeholders, namely the Presiding Judge of the convicting Court in Mumbai and the prosecuting agency (Central Bureau of Investigation)., Reliance was placed on the decisions of the Supreme Court of India in State of Haryana vs. Mohinder Singh, (2000) 3 SCC 394 (Mohinder Singh); Sangeet; Ratan Singh; and Laxman Naskar vs. State of West Bengal, (2000) 2 SCC 595 (Laxman Naskar) to emphasize that a convict cannot claim remission as a matter of right. The remission policies only give a right to the convict to be considered and do not provide an indefeasible right to remission., Further reference was made to the dicta of the Supreme Court of India in Mohinder Singh; Epuru Sudhakar vs. State of Andhra Pradesh, (2006) 8 SCC 161 (Epuru Sudhakar); Maru Ram; Sangeet; Ratan Singh and Laxman Naskar to contend that the decision to grant remission should be well‑informed, reasonable and fair and that the power cannot be exercised arbitrarily., Emphasising the gravity of the offences in this case and the grotesque nature of the crimes committed by the accused, learned counsel Ms. Shobha Gupta submitted that while considering the application for remission, the appropriate government was required to bear in mind the effect of its decision on the victim and the family of the victims, society as a whole and the precedent it would set for the future. To buttress the submission, she relied on Epuru Sudhakar, Swamy Shraddhananda (2) vs. State of Karnataka, (2008) 13 SCC 767 (Shraddhananda), and Jagdish. Reliance was also placed on the decision in Laxman Naskar wherein the Supreme Court of India had discussed the factors to be considered before granting remission., It was urged that the prerogative power of remission is not immune from judicial review, vide Epuru Sudhakar, wherein it was observed that judicial review of the order of remission is available on the following grounds: non‑application of mind; order is mala fide; order has been passed on extraneous or wholly irrelevant considerations; relevant materials kept out of consideration; order suffers from arbitrariness., It was contended that in the present case remission was granted to all the convicts mechanically and without application of mind to each of the cases and that the relevant factors were not considered. The State Government failed to consider the relevant material and make an objective assessment while considering the applications of the convicts for remission. The nature and gravity of the crime, the impact of the remission orders on the victim and her family, witnesses and society at large, were not considered. Mere good behaviour in jail and completion of fourteen years in jail are not the only prerequisites while considering the application for premature release of the convicts., Attention was drawn to the fact that respondent No.3 approached the Gujarat High Court by way of Criminal Application No. 4573 of 2019 seeking a direction to the State Government to consider his application for remission. The Gujarat High Court, vide Order dated 17 July 2019, dismissed the same in view of Section 432 of the Criminal Procedure Code. Respondent No.3’s second application was also dismissed vide Order dated 13 March 2020 passed by the Gujarat High Court. Within fourteen days of the first order, respondent No.3 approached the Government of Maharashtra by way of an application dated 01 August 2019. Upon his application, opinion was sought from the investigating agency (Central Bureau of Investigation) and the Presiding Officer of the convicting court (Special Judge, Sessions Court, Greater Mumbai), both of whom opined in the negative and against remission being granted to the respondent. Further, the Superintendent of Police, Dahod, vide letter dated 03 February 2020 gave a negative opinion noting that the victim and her relatives stated that respondent No.3 should not be released. The District Magistrate, Dahod, also gave a negative opinion vide letter dated 19 February 2020, as did the Jail Advisory Committee at its meeting held on 20 July 2021. Thereafter respondent No.3 approached the Supreme Court of India by filing Criminal Writ Petition No. 135 of 2022 and by Order dated 13 May 2022 the Supreme Court of India directed the State of Gujarat to consider respondent No.3’s application within two months from the date of the order., Further adverting to the sequence of events, it was stated that in the meanwhile the rest of the convicts had also applied separately for remission in February 2021. The Presiding Officer (Special Judge, Greater Mumbai) vide a common letter dated 22 March 2021 gave a negative opinion against the premature release of the remaining ten convicts, respondent Nos. 4 to 13. Their case was kept pending for one year and only after 07 March 2022 the new Superintendent of Police, Dahod, gave a no‑objection for the premature release of all the convicts by separate letters of the same date. The District Magistrate, Dahod, also gave a positive opinion in favour of the premature release of all the convicts. On 26 May 2022, a meeting of the Jail Advisory Committee of Gujarat was held and all the members gave a positive opinion. The Additional Director General of Police, Prisons and Correctional Administration vide letter dated 09 June 2022 gave a positive opinion and did not raise any objection for the release of the ten convicts., Although the reference by the Jail Advisory Committee to the State Government was only qua respondent Nos. 4 to 13, the State Government erroneously recommended the name of respondent No.3 also to the Central Government for remission even in the absence of any application pending before the State Government., Learned counsel for the petitioner next submitted that the Presiding Judge’s reasoned negative opinion opposing the premature release was disregarded and this was contrary to the mandate of Section 432(2) of the Criminal Procedure Code. The remission orders dated 10 August 2022 of respondent No.1 are in the teeth of the negative opinion of the Presiding Judge, Special Judge (Central Bureau of Investigation), Sessions Court, Greater Mumbai, dated 03 January 2020 and 22 March 2021, thereby defeating the purpose of Section 432(2) of the Criminal Procedure Code. The remission orders dated 10 August 2022 are conspicuously silent about the opinion of the Presiding Judge that is mandatorily required under Section 432(2) of the Criminal Procedure Code. This amounts to an erasure of record by removing from consideration a document that is statutorily mandated to be considered and judicially held to be determinative. Reliance was placed on Ram Chander to contend that the opinion of the Presiding Judge of the court that convicted the offender will have a determinative effect on the exercise of executive discretion under Section 432 of the Criminal Procedure Code. Reference was also made to the decision of the Supreme Court of India in V. Sriharan, wherein a Constitution Bench held that the procedure stipulated in Section 432(2) of the Criminal Procedure Code is mandatory and that the opinion of the Presiding Judge of the Court which tried the convict is critical and an essential safeguard to check that the power of remission is not exercised arbitrarily., It was next contended that the premature release was granted illegally as the imprisonment in default for the non‑payment of fine was not served. The Trial Court, while sentencing the respondents‑convicts, had also imposed a fine of Rs 2,000 on each of them for each of the fourteen counts of murder and three counts of rape and, in the event of default in payment of said fine, sentenced them to suffer rigorous imprisonment for a further period of two years each for each count. The total fine payable by each respondent‑convict amounted to Rs 34,000, and in default they were liable to serve rigorous imprisonment for a period of thirty‑four years. The Trial Court directed that the substantive sentences shall run concurrently and that any period of detention undergone by the respondents‑convicts during investigation, enquiry, trial shall be set off against the terms of imprisonment, not being imprisonment in default of payment of fine. As per the nominal roll of respondent Nos. 3 to 13, none of them had paid the fine sentenced by the Trial Court, making them liable to serve the penalty of rigorous imprisonment for default in payment of fine. However, the respondents have neither paid the fine of Rs 34,000 nor have they served any sentence in default of the non‑payment of fine. It was submitted that the penalty of imprisonment ordered for default in payment of fine stands on a completely different footing from the substantive sentence of imprisonment for the offence. While under Section 432 of the Criminal Procedure Code the Government has the power to remit punishment for the offence, the executive discretion does not extend to waiving the penalty of imprisonment for default in payment of fine under Section 64 of the Indian Penal Code. Reliance was placed on Sharad Hiru Kolambe vs. State of Maharashtra, (2018) 18 SCC 718 (Sharad Kolambe) and Shantilal vs. State of Madhya Pradesh, (2007) 11 SCC 243 (Shantilal)., It was asserted that respondent No.1 while granting premature release failed to apply its mind and address the determinative factors outlined by the Supreme Court of India in Laxman Naskar. Thus, the orders of remission are vitiated by the vice of arbitrariness for non‑consideration of relevant facts and factors. A bare perusal of the orders dated 10 August 2022 would make it clear that premature release was granted mechanically and arbitrarily, without giving due consideration to the factors enumerated in Laxman Naskar for each of the respondents‑convicts. The orders dated 10 August 2022 are conspicuous in their silence on the behaviour and the following acts of misconduct of each of the respondents‑convicts, including offences committed while on parole/furlough, namely: i) Case Crime No. 1121001200158/2020 was registered against respondent‑convict Mitesh Chimanlal Bhatt under Sections 354, 304 and 306 of the Indian Penal Code, committed on 19 June 2020 during parole/furlough; and ii) Case Crime No. 02/2015 was registered against respondent‑convict Rameshbhai Rupabhai Chadana under the Prisons Act., It was further submitted that it is trite that in cases where a convict has been sentenced to more than one count of life imprisonment, he can only be released if remission is duly granted as per law for each count of life imprisonment. The respondents‑convicts were sentenced on fifteen counts of life imprisonment. However, the orders dated 10 August 2022 have not granted remission for each of the fifteen counts and are only a generic blanket order, making the release of the convicts illegal and arbitrary., Respondent No.3 approached the Supreme Court of India in Criminal Writ Petition No. 135 of 2022 without disclosing that he had already acted on the judgment of the Gujarat High Court dated 17 July 2019 and had submitted his application to the Home Department, State of Maharashtra, and that his application had already been considered by the authorities concerned, whereby the major stakeholders had written against the grant of remission to him. Further, when the matter was listed before the Supreme Court of India, no notice was issued to the petitioner‑victim and she was not heard by the Court., The orders dated 10 August 2022 have blatantly ignored the grave and real apprehension regarding the safety and security of the victims‑survivors raised by public functionaries whose opinions are required to be taken into account by the State of Gujarat before granting premature release as per the 1992 policy. The Supreme Court of India in a catena of judgments, such as Epuru Sudhakar and Rajan vs. Home Secretary, Home Department of Tamil Nadu, (2019) 14 SCC 114 (Rajan), has highlighted the importance of considering the impact of premature release on the victims in particular and society in general. The Superintendent of Police, Dahod, on 03 February 2020 had recommended against the release of Radheyshyam Bhagwandas Shah as he cited the possibility of peace being disturbed. The Sessions Judge, Panchmahal at Godhra also raised questions regarding the security of the victim petitioner herein., Learned counsel next asserted that the en‑masse and non‑speaking sanction of the Central Government dated 11 July 2022 under Section 435(1)(a) of the Criminal Procedure Code does not meet the statutory requirement of consultation. The sanction conveys its approval for the premature release of eleven convicts without any reason as to why the case of each respondent‑convict is deemed fit for grant of remission. Thus, the approval was granted without considering the relevant factors outlined in Laxman Naskar., Non‑application of mind is evident in the non‑speaking and stereotyped orders dated 10 August 2022 which are bereft of any reason. The orders are devoid of reasons or grounds as to why the respondents‑convicts were found fit for the grant of remission. All eleven orders are verbatim reproductions of each other, having only substituted the name and personal details of the respondents‑convicts. The recommendations of the Jail Advisory Committee dated 26 May 2022 as regards remission of respondent Nos. 3 to 13 are untenable, being arbitrary and mechanical and vitiated by non‑application of mind. The opinions are verbatim and mechanical reproductions that show no independent consideration of facts of each case of the convicts., With the aforesaid submissions, it was prayed that Criminal Writ Petition No. 491 of 2022 be allowed and a writ, order or direction be issued quashing the orders dated 10 August 2022 passed by the State of Gujarat by which the convicts in Sessions Case No. 634 of 2004, Mumbai (respondent Nos. 3 to 13), were released prematurely., Learned senior counsel Ms. Indira Jaising appearing for the petitioner in Criminal Writ Petition No. 326 of 2022, at the outset submitted that the petitioner is a Member of Parliament and a public personality and consequently possesses locus to file this petition as a bona fide person and citizen of India. The petitioner seeks to discharge her fundamental duty under Article 51A(e) of the Constitution of India, seeking to promote harmony and the spirit of brotherhood amongst the people of India, as well as to denounce the derogation of the dignity of women. The petitioner seeks to uphold the rule of law and thus is not a mere busybody., The following submissions were made to contest the orders of remission: (i) when the actions of the State cause some harm to the general public, an action by a concerned citizen would be maintainable; reliance was placed on B.P. Singhal vs. Union of India, (2010) 6 SCC 331 (B.P. Singhal). (ii) the impugned decisions of remission are characterized by arbitrariness and mala fides and bear no consideration of relevant factors; the power of the executive must be exercised in line with constitutional ideals and for the benefit of the public; reliance was placed on Maru Ram and S.P. Gupta vs. Union of India. (iii) there exists no statutory right of appeal against an order of remission; the only avenue available to assail an order of remission is either under Article 32 or Article 226; reliance was placed on Epuru Sudhakar and Ram Chander. Further, the jurisdiction of the Supreme Court of India is not ousted by the existence of alternative legal remedies; reliance was placed on a Constitution Bench decision of the Supreme Court of India in Kavalappara Kottarathil Kochuni vs. States of Madras and Kerala, (1960) 3 SCR 887 (Kochuni). (iv) the present proceedings pertain to administrative law and not criminal law and, as a result, the principle of being a stranger to the criminal proceeding does not apply; nevertheless, the Supreme Court of India has entertained petitions filed by strangers in criminal matters, as in K. Anbazhagan vs. Superintendent of Police, (2004) 3 SCC 767 (K. Anbazhagan). (v) such exercises of executive power may be challenged on the basis of the grounds laid down in Epuru Sudhakar and Maru Ram. (vi) an important question of law arises, namely whether it is appropriate to grant remission after a period of fourteen years to convicts of heinous crimes and whether the victims of such crimes must be heard and due consideration given to their vulnerability prior to the grant of remission; there needs to be a consideration of how compliant such executive actions and the associated policies are with constitutional morality; therefore, the Supreme Court of India may quash the remission orders passed under Section 432 of the Criminal Procedure Code if they appear to be poorly reasoned. (vii) there is a need to situate the crimes committed in the larger context of sectarian and communal violence that was ensuing in the 2002 riots in Gujarat State; the crimes were specifically targeted at the victim on the basis of her religion and gender; these heinous crimes constitute crimes against humanity; the nature of the crime is important to consider while deciding whether to grant remission. Reliance was placed on Sanaboina Satyanarayana vs. Government of Andhra Pradesh, (2003) 10 SCC 78 (Sanaboina Satyanarayana), wherein a Government Order issued by the State of Andhra Pradesh that excluded from the scope of remission prisoners who had committed crimes against women and were sentenced to life imprisonment was upheld by the Supreme Court of India considering the nature of the offences. (viii) the Executive is bound not merely by provisions of the Criminal Procedure Code but also by the overarching spirit of the Constitution that seeks to promote the upliftment of women, children, and minorities and to protect these groups from further vulnerability and marginalisation. (ix) in accordance with the aforementioned constitutional principles, grant of remission to persons sentenced to life imprisonment and accused of crimes under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the Explosive Substances Act and the Indian Arms Act, as well as crimes against women under Sections 376 and 354 of the Indian Penal Code, must not be permissible. Factors such as the opinion of the Presiding Judge, public interest, potential for recidivism, impact on the victims and on society and the nature of the offence must be borne in mind by the State, as held in Epuru Sudhakar, Sanaboina Satyanarayana and Zahid Hussain vs. State of West Bengal, 2001 (3) SCC 750 (Zahid Hussain). The non‑consideration of these factors proves the mala fide, arbitrary and unreasonable manner in which the impugned orders were passed. (x) the 1992 Policy of remission of the State of Gujarat does not contain any substantive guidelines pertaining to remission and merely deals with procedural formalities; the 2014 Policy is thus the first instance at which categories of crimes for which remission may not be granted were outlined; as such, it is the 2014 Policy that would apply to the question of remission for respondent Nos. 3 to 13. (xi) the grant of remission to respondent Nos. 3 to 13 is in violation of India’s obligations under international law, specifically instruments such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women; rape was used as a tool of oppression by the perpetrators and the victim in the instant case experienced significant trauma as a consequence. (xii) the grant of remission in the instant case is in violation of the obligation to prevent crimes against humanity, which itself forms a part of the norm of jus cogens; there is a link between the peremptory norm of jus cogens and fundamental values, making the former non‑derogable and a part of domestic law even if not explicitly codified; reliance was placed on State of Punjab vs. Dalbir Singh, (2012) 3 SCC 346 (Dalbir Singh). (xiii) the acts of violence that were committed in Gujarat in 2002 are crimes against humanity, owing to their widespread nature and communal motivations; remission must not be granted to perpetrators of crimes of such gravity., With the above submissions learned senior counsel for the petitioners sought quashing of the impugned orders., Learned counsel Ms. Vrinda Grover for the petitioner in Criminal Writ Petition No. 352 of 2022 submitted that it was absolutely necessary to consider the opinion of the Presiding Judge. Reliance was placed on Ram Chander and V. Sriharan. Her further submissions are recorded as follows: (i) the Presiding Judge, namely the Special Judge (Central Bureau of Investigation), Sessions Court, Mumbai gave negative opinions dated 03 January 2020 and 22 March 2021 as to grant of remission to respondent Nos. 3 to 13. The opinion was well‑reasoned and took into account all relevant factors, but this was completely disregarded by the State. (ii) a fine was imposed on each of the respondent convicts as part of their sentence, amounting to Rs 34,000 per person. They had defaulted in paying these fines and thus would be required to undergo rigorous imprisonment for a further period of 34 years. The Trial Court had clarified that these sentences were substantive in nature and would run concurrently. Reliance was placed on Sharad Kolambe and Shantilal. (iii) reiterating the submissions regarding the remission orders being arbitrary by virtue of non‑consideration of relevant factors, it was urged that the criteria outlined in the decision of the Supreme Court of India in Laxman Naskar were not considered at all. Reliance was further placed on the decision of the Supreme Court of India in Mohinder Singh, wherein it was held that the decision to grant remission must be reasonable, well‑informed and fair. Non‑application of mind and the mechanical nature of the remission orders utterly belie these principles. (iv) reference has only been made to four documents, namely (1) the order of the Supreme Court of India dated 13 May 2022, (2) the letter of the Additional Director General of Police and Inspector General of Prisons, State of Gujarat at Ahmedabad, (3) the Department Circular dated 09 July 1992 and (4) the letter of the Ministry of Home Affairs, Government of India in the impugned orders of remission. It was contended that the non‑consideration of determinative factors has rendered the remission orders mechanical and arbitrary, with reliance placed on what is described as the untenable and unlawful en‑masse approval of the Central Government. (v) one of the criteria required to be considered, highlighted in Laxman Naskar, is the possibility of reformation and recidivism. These factors have been given no consideration as there is no mention of the respondents‑convicts’ behaviour while in prison, as well as offences committed while out on parole/furlough. A case has been registered against one of the respondents‑convicts under Sections 304, 306 and 354 IPC while on parole. A range of punishments were imposed on the respondents‑convicts in prison; hence, the possibility of recidivism cannot be entirely ruled out. (vi) there is a real and grave apprehension of danger to the victim if the respondents‑convicts are released into society. This has been reflected in the recommendation of the Superintendent of Police, Dahod as well as the questions raised by the Principal and Sessions Judge, Panchmahal, Godhra in the Jail Advisory Committee meeting dated 26 May 2022. (vii) remission must be granted for each particular count of life imprisonment, as all of these are superimposed over each other. Remission granted qua one sentence does not automatically extend to the others. A generic, mechanical and unreasonable blanket order of remission has been passed by the State, as remission is not stated to have been granted for all of the life sentences of each respondent‑convict. (viii) Section 435(1)(a) of the Criminal Procedure Code makes it mandatory for the State Government to consult the Central Government regarding the exercise of power to grant remission. But the en‑masse and non‑speaking nature of the sanction granted by the Central Government merely conveys approval of the premature release of the respondents‑convicts, which does not meet the requirement of consultation. Reliance was again placed on Laxman Naskar. (ix) further, the opinion of the Sessions Judge, Panchmahal, Godhra is of a casual and perfunctory character, that does not pay heed to the heinous nature of the crimes committed. (x) it was further submitted that the remission orders, having thus been established as unreasoned, untenable and vitiated by arbitrariness and mala fides, require judicial intervention., Learned counsel for the petitioner in Criminal Writ Petition No. 319 of 2022, Ms. Aparna Bhat, submitted that the writ petition has been filed purely in the interest of the general public and out of concern for the impact on society if the respondents‑convicts were released. There is no political agenda behind the filing of this writ petition by the petitioner, who is a member of a national political party and an advocate for women’s rights., Sri Mohammad Nizamuddin Pasha, learned counsel appearing on behalf of the petitioner in Criminal Writ Petition No. 403 of 2022, submitted that cases which are at stages prior to conviction, i.e., investigation and trial, must be treated as being on a different footing as guilt has not been established and the fair trial rights of the accused still subsist. However, there is no right to remission post‑conviction as held in V. Sriharan. It is only upon conviction that the need for the accused to remain in prison becomes a concern of society. All theories of punishment, including those of retributivism and utilitarianism, emphasize the impact on society as being of primary importance. Reliance was placed on T.K. Gopal vs. State of Karnataka, (2000) 6 SCC 168 (T.K. Gopal), Narinder Singh vs. State of Punjab, (2014) 6 SCC 466 (Narinder Singh), Shailesh Jasvantbhai vs. State of Gujarat, (2006) 2 SCC 359 (Shailesh Jasvantbhai) and Ahmed Hussain Vali Mohammed Saiyed vs. State of Gujarat, (2009) 7 SCC 254 (Mohammed Saiyed)., Sri S.V. Raju, learned Additional Solicitor General of India, appearing on behalf of the State of Gujarat and Union of India, at the outset submitted that writ petitions filed by persons other than the victim are not maintainable. Those persons are strangers and have no locus‑standi to challenge the remission orders passed by the State of Gujarat. The petitioners are in no way connected with the proceedings which convicted the respondents‑herein nor the proceedings which culminated in the grant of remission to the convicts. Reliance was placed on the decisions of the Supreme Court of India in Rajiv Ranjan; Gulzar Ahmed Azmi; Simranjit Singh and Ashok Kumar to contend that no third‑party/stranger interference in criminal matters is permissible in law in the garb of filing a public interest litigation., Referring to Criminal Writ Petition No. 319 of 2022, it was contended that nowhere has the petitioner therein, namely Subhasini Ali, pleaded as to how her fundamental rights had been abridged and how she was aggrieved by the action of the State Government. The petitioner therein was nothing but an interloper and a busybody and not a person aggrieved as per the dicta of the Supreme Court of India in M. V. Dabholkar and Jasbhai Motibhai. Thus, the public interest litigation filed by such a person is an abuse of the jurisdiction of the Supreme Court of India and against the principles laid down in Tehseen and Ashok Kumar. Therefore, the Additional Solicitor General sought dismissal of all the public interest litigations challenging the impugned orders of remission on the ground of maintainability.
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3
No.135 of 2022 vide judgment dated 13 May 2022 held that the policy applicable for deciding the remission application was the one in vogue at the time of conviction, i.e., the Premature Release Policy of 1992, and that for the purposes of Section 432 of the Code of Criminal Procedure, the appropriate government for considering the remission application is the State in which the offence was committed and not the State in which the trial was conducted. Accordingly, the State of Gujarat considered the application of respondent No.3, Radheshyam Bhagwandas Shah, as per the procedure prescribed under Section 432 read with Section 435 of the Code of Criminal Procedure, together with the Premature Release of Convicts Policy of 1992., The State Government considered the cases of all eleven prisoners under the 1992 policy and granted remission on 10 August 2022. The orders dated 10 August 2022 were passed after duly considering the opinions expressed by the Inspector General of Prisons, Gujarat State; the Jail Superintendent; the Jail Advisory Committee; the District Magistrate; the Superintendent of Police, Central Bureau of Investigation, Special Crime Branch, Mumbai; and the Special Court, Mumbai of the Central Bureau of Investigation. As per Section 435 of the Code of Criminal Procedure, it is indispensable to obtain the sanction of the Government of India in cases where the investigation of the offence was carried out by a central investigation agency. In the present case, the investigation was carried out by the Central Bureau of Investigation, and therefore the State Government obtained the approval of the Government of India., It was submitted that respondents No.3 to 13 had completed more than fourteen years in custody, that their behaviour had been good, and that the opinions of the concerned authorities had been obtained as per the policy dated 9 July 1992. The State Government submitted these opinions to the Ministry of Home Affairs, Government of India, by a letter dated 28 June 2022 and sought the approval of the Government of India, which conveyed its concurrence under Section 435 of the Code of Criminal Procedure for the premature release of the eleven convicts by a letter dated 11 July 2022. Consequently, after following the due procedure, orders were issued on 10 August 2022 to release the convicts, which would not call for any interference by the Supreme Court of India., Reliance was placed on the judgment of the Supreme Court of India in Jagdish, wherein it was held that if a policy beneficial to the convict exists at the time of consideration of his application for premature release, the convict cannot be deprived of such a beneficial policy. The court observed that when a liberal policy prevails on the date of consideration of the case of a life‑imprisoned offender for premature release, he should be given the benefit thereof. Bearing in mind these considerations, the applications of respondents No.3 to 13 for remission were considered and decided., The crime in the instant case was admittedly committed in the State of Gujarat, and ordinarily the trial was to be concluded in the same State. Under Section 432(7) of the Code of Criminal Procedure, the appropriate government in the ordinary course would be the State of Gujarat. However, the trial was transferred under exceptional circumstances by the Supreme Court of India to the neighboring State of Maharashtra for the limited purpose of trial and disposal by an order dated 6 August 2004. After the conclusion of the trial and the prisoners being convicted, the matter was transferred back to the State where the crime was committed, and thus the State of Gujarat was the appropriate government for the purpose of Section 432(7)., It was submitted that the orders dated 10 August 2022 were passed by the Government of Gujarat after following the due procedure laid down in this regard and on an application of mind. Therefore, the same do not call for any interference by the Supreme Court of India in these petitions., Learned counsel for respondent No.3, Sri Rishi Malhotra, at the outset attacked the maintainability of the writ petitions on the ground that, in substance, the petitions seek to challenge the judgment of the Supreme Court of India dated 13 May 2022 in Writ Petition (Criminal) No.135 of 2022; that such a challenge is impermissible and is contrary to the judgment of a Constitution Bench of the Supreme Court of India in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, wherein it was held that a writ petition assailing the judgment or order of the Supreme Court of India after the dismissal of the review petition is not maintainable. Consequently, the only remedy available to the petitioner‑victim against the dismissal of the review petition is to file a curative petition as propounded by the Supreme Court of India in the case of Rupa Ashok Hurra., Sri Rishi Malhotra further submitted that in this proceeding the Supreme Court of India cannot sit over the judgment passed by another coordinate bench. He further submitted that the Supreme Court of India, by its judgment dated 13 May 2022, was correct in categorically directing the State of Gujarat to consider the application for premature release of respondent No.3 in terms of the policy dated 9 July 1992, which was applicable on the date of conviction. After duly taking into account that respondent No.3 had undergone over fifteen years of imprisonment, that no objections were received from the Jail Superintendent, Godhra, and that nine out of ten members of the Jail Advisory Committee had recommended his premature release, the Home Department of the State of Gujarat as well as the Union Government recommended and approved the premature release of respondent No.3. This demonstrates that the remission order was correct. Moreover, the 1992 policy does not require unanimous opinion of all stakeholders for the release of a convict; it merely requires the State Government to collate various opinions from different quarters in order to arrive at a decision., As regards the contention of learned counsel for the petitioner‑victim that the orders are illegal because they were passed without consulting the presiding judge of the convicting court as required under Section 432(2) of the Code of Criminal Procedure, it was submitted that the provision categorically states that the appropriate government may require the presiding judge of the trial court to give his opinion, and therefore obtaining such an opinion is not mandatory. In contrast, Section 435 of the Code of Criminal Procedure uses the word 'shall' in respect to the State Government to act only after consultation with the Central Government. The legislature is conscious of using the words 'may' and 'shall' as appropriate, and the said procedure has been followed in the instant case., Learned senior counsel appearing for respondent No.13, Sri Sidharth Luthra, contended that a writ petition does not lie against the final order of the Supreme Court of India, and therefore the petitioners could have only filed a curative petition. He relied on the Supreme Court of India's decision in Rupa Ashok Hurra, where it was held that a writ petition under Article 32 assailing a final judgment of the Supreme Court of India is not maintainable, and on the decision in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, where it was held that a writ shall not lie against an order of a constitutional court. Accordingly, the order dated 13 May 2022 has attained finality and cannot be questioned by way of a writ petition under Article 32. The Supreme Court of India's Order XLVIII also delineates that an order of the Supreme Court can be questioned only through a curative petition, not through a writ petition., Regarding the issue of the appropriate government and appropriate policy, Sri Luthra submitted that these issues were settled by the Supreme Court of India's order dated 13 May 2022. He cited the Supreme Court of India's judgments in Rashidul Jafar v. State of U.P., 2022 SCC OnLine SC 1201; State of Haryana v. Raj Kumar, (2021) 9 SCC 292; and Hitesh v. State of Gujarat, Writ Petition (Criminal) No.467/2022, wherein it was held that the policy in force on the date of conviction applies, and therefore the 1992 Policy of the State of Gujarat governs the grant of remission in the present case., Learned senior counsel further argued that India follows a reformative and rehabilitative penal sentencing policy rather than a punitive one. He referred to the Model Prison Act, 2023, which aims at reforming prison management and transforming inmates into law‑abiding citizens. He also cited the European Court of Human Rights decision in Vinter v. United Kingdom, Applications Nos. 66069/09, 130/10 and 3896/10, (2016) III ECHR 317, which emphasized that incarceration without any prospect of release or review risks denying the offender the chance to atone for his offence. He submitted that respondent No.13 had exhibited unblemished behaviour in prison and no criminality was attached to his conduct., Sri Luthra refuted the petitioners' argument that, in view of the grievous nature of the offence, the convicts do not deserve remission. He noted that, at the stage of remission, the length of sentence or the gravity of the original crime cannot be the sole basis for refusing premature release, as held in Satish v. State of U.P., (2021) 14 SCC 580. Therefore, factual considerations about the nature of the crime or its impact on society are not relevant for consideration of remission., He observed that both the High Court and the Supreme Court of India have the power to modify punishment by providing a specific period of incarceration without remission, considering the heinous nature of the offence, but neither exercised that power to impose a non‑remittable term. This, he argued, shows that the petitioners' argument is a red herring., It was emphasized that an order of remission passed by an authority merely affects the execution of the sentence without interfering with the sentence passed by the court. Since the matter has already attained finality, it is not possible to question the validity of such an order on factual grounds such as the nature of the crime, its impact on society, or the public's cry for justice., Learned senior counsel submitted that the non‑payment or default in payment of the fine imposed does not affect the exercise of the power of remission. The sentence must be served unless it is set aside or remitted in part or in whole by appeal, revision, or other appropriate judicial proceedings. A term of imprisonment ordered in default of payment of fine stands on a different footing, as noted in Shantilal; Abdul Gani v. State of Madhya Pradesh, (1950) SCC OnLine MP 119, and Shahejadkham Mahebubkham Pathan v. State of Gujarat, (2013) 1 SCC 570. Further, reliance was placed on Sharad Kolambe, where the Supreme Court of India observed that imprisonment for default of fine is a penalty incurred for non‑payment of fine and is not a sentence in the strict sense; its imposition is qualitatively distinct from a substantive sentence., Learned senior counsel appearing for respondent No.7, Mrs. Sonia Mathur, while adopting the submissions of other senior counsel, further contended that, as per Section 432(7)(b) of the Code of Criminal Procedure and the judicial precedent set in Radheshyam Bhagwandas Shah, the appropriate government is the State of Gujarat. That judgment has attained finality as the review petition filed against it was dismissed by the Supreme Court of India on 13 December 2022. Accordingly, the judgment must be followed for the sake of judicial propriety., Regarding the nature of the requirement under Section 432(2) of the Code of Criminal Procedure, i.e., whether mandatory or directory, it was submitted that, as observed by the Supreme Court of India in Ram Chander, the opinion obtained is not to be mechanically followed and the government has discretion to seek an opinion afresh. This demonstrates that discretion vests with the concerned government as to whether to seek and rely upon the opinion of the presiding judge of the trial court., As to the contentions of the learned counsel for the petitioner‑victim regarding non‑payment of fine, it was submitted that a fine of Rs 6,000 was paid by respondent No.7 without any objection on 27 September 2019 before the Sessions Court, Greater Mumbai. However, there is no provision in the Gujarat Prison Manual that bars remission if the fine is not paid. The grant of remission cannot be restricted merely because a convict is not financially capable of paying the fine, as such discrimination would violate Articles 14 and 21 of the Constitution., It was further submitted that, having heard counsel for the other respondents, the writ petitions should be dismissed., Ms. Shobha Gupta, learned counsel for the petitioner‑victim, submitted in her rejoinder that the writ petition was maintainable under Article 32 of the Constitution. She argued that the order granting remission is an administrative order, and there is neither a statutory nor substantive right of appeal available to the aggrieved parties; the only remedy is to file a writ petition under Article 226 before the High Court of Gujarat or a writ petition under Article 32 before the Supreme Court of India. She further contended that the Supreme Court of India has on multiple occasions entertained writ petitions under Article 32 where there existed a gross violation of fundamental rights or where an executive or administrative decision shocked the conscience of the public, the nation, or the Court. She relied on the Supreme Court of India's judgments in Epuru Sudhakar; Satpal v. State of Haryana, (2000) 5 SCC 170; and Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 SCC 748, noting that a similar issue of maintainability arose in Mohammed Ishaq, where the Court observed that the existence of an alternative remedy under Article 226 does not preclude an aggrieved person from approaching the Supreme Court of India directly under Article 32. The rule requiring exhaustion of alternative remedies was described as a matter of convenience and discretion, not an absolute requirement., She further submitted that the Supreme Court of India has previously entertained writ petitions under Article 32 filed by convicts seeking intervention in matters of premature release or the issuance of appropriate directions, relying on the judgments in Ram Chander, Laxman Naskar and Rajan. She noted that the Court had earlier entertained a writ petition filed by respondent No.3 himself, and no question was raised as to its maintainability. All other private respondents are beneficiaries of the order dated 13 May 2022 passed by the Supreme Court of India in that writ petition. It is therefore incongruous to raise the objection of maintainability only against the writ petition filed by the petitioner‑victim. The petitioner‑victim was unaware of Writ Petition (Criminal) No.135 of 2022 filed by respondent No.3 seeking premature release. The petitioner learned about the release from news and social media and, having barely begun to recover from the shock of respondents No.3 to 13 being released when several public interest litigations were filed, approached the Court. She also pointed out that the petitioner had filed a review petition seeking review of the order dated 13 May 2022, wherein the Court held the State of Gujarat to be the appropriate government to consider the grant of remission, being the State in which the crime took place. That order was per incuriam and contrary to the Court's judgments, as argued with reference to V. Sriharan, Rattan Singh, M. T. Khan and Hanumant Dass. The petitioner was under the impression that the review petition and the present writ petition would be considered together, but the review petition has been dismissed; therefore, the writ petition must be considered on its own merits., Ms. Gupta reiterated her submissions regarding the non‑consideration of the negative opinions of the investigating agency, namely the Central Bureau of Investigation, as well as the judge of the Special Central Bureau of Investigation Court, Mumbai. She refuted the claim of the learned Additional Solicitor General that the relevant opinion would be that of the presiding judge of the Godhra Court, stating that this contention contradicts the plain language of Section 432(2), which specifies that the presiding judge should have been the one who awarded or confirmed the sentence. She relied again on the Supreme Court of India's judgments in Sangeet, Ram Chander and V. Sriharan., It was contended that a letter dated 17 November 2021 was filed along with the application dated 10 August 2022. The letter, sent by the State of Gujarat to the State of Maharashtra, stated that the State of Gujarat possessed no powers of remission with respect to respondent No.3 and that the appropriate government in this respect would be the State of Maharashtra. Despite taking this view, which aligns with the position of law laid down by the Supreme Court of India in various cases, including V. Sriharan, no review petition was filed by the State challenging the order dated 13 May 2022., The learned Additional Solicitor General placed on record the opinion of the Central Bureau of Investigation dated 9 July 2022, in which, after an apparent change of mind, the grant of remission to respondents No.3 to 13 was recommended. Neither the letter of the State of Gujarat nor the changed opinion of the Central Bureau of Investigation was mentioned in the counter‑affidavit filed by the State on 17 October 2022. These additional documents establish the rapid timeline of the process adopted by the Central Government in affirming the remission orders: the State Government's communication was received on 6 July 2022, the Central Bureau of Investigation's opinion was sought and received on 9 July 2022, and the Central Government expressed its concurrence on 11 July 2022., It was further contended that respondent No.3 produced a document dated 18 June 2022 during his arguments, stating that it was the opinion of the presiding judge of the Mumbai Special Court of the Central Bureau of Investigation. However, the veracity of this document cannot be established, as the State claims not to be in possession of it and is entirely unaware of the same., Learned counsel reiterated that the foregoing facts reveal a lack of application of mind and a mechanical manner in which the orders of remission were passed in the instant case., Learned counsel for the petitioners submitted that on 30 August 2023, the fine amounts owed were deposited by respondents No.3 to 13, which they claimed as an admission of prior non‑payment of fine. It was contended that, had the fine not been paid, the respondents would ordinarily have had to undergo a further period of six years of imprisonment. The non‑consideration of this fact further demonstrates a lack of application of mind and a mechanical exercise of power by the State of Gujarat and the Union of India in granting remission., Learned counsel submitted that in Writ Petition (Criminal) No.135 of 2022 filed by respondent No.3, there was no mention of material particulars such as the name of the petitioner‑victim or the nature of the crimes, namely gang rape and mass murder. The petition also omitted that his application for remission before the State of Maharashtra had been negatively opined by all concerned authorities. Respondent No.3 did not place on record the judgments and orders of the trial court, the High Court, and the Supreme Court of India that had upheld his conviction. He made incorrect and misleading statements with reference to the orders of the Bombay High Court dated 5 August 2013 and the Gujarat High Court dated 17 July 2019, claiming that the two courts had given differing opinions, and that this fact influenced the Supreme Court of India's decision in the order dated 13 May 2022. In reality, the Bombay High Court order dealt with the transfer of convicts to another jail in their parent State and did not discuss remission, which could not have arisen in 2013., It was reiterated that the investigating agency of the State of Gujarat had filed a closure report stating that the accused persons were not traceable and that the FIR contained erroneous recording of facts intended to hinder the investigative process. The case was transferred by the Supreme Court of India to the State of Maharashtra due to the tainted nature of the investigation. The petitioner could obtain justice only because the investigation was conducted by the Central Bureau of Investigation. This demonstrates the highly biased and partisan treatment of the petitioner by the State of Gujarat. The State has been granting parole and furlough to the respondents in a liberal manner once they were transferred to the Godhra Jail. In light of the diabolical and gruesome nature of the crimes, the treatment awarded to the respondents by the State indicates favouritism and leniency., Learned counsel reiterated that the nature of the crimes committed by respondents No.3 to 13 were unusual and egregious, shocking society as a whole, and that the treatment of the respondents upon being granted remission invoked a common sense of pain in the nation. The Bombay High Court had described the brutal treatment of the victims by respondents No.3 to 13, reflected in the condition of the dead bodies. These factors require that respondents No.3 to 13 be treated differently from ordinary criminals., Learned senior counsel, Ms. Indira Jaising, appearing for the petitioner in Writ Petition (Criminal) No.326 of 2022, submitted that the State of Gujarat does not have a policy of any kind for the release of prisoners under Section 432 of the Code of Criminal Procedure. She stated that the 1992 Policy merely outlines the procedure to be followed when releasing convicts on remission. The State must abide by the law laid down by the Supreme Court of India as well as the constitutional mandate to protect the fundamental rights of women, particularly when they are victims of sexual violence in relation to ethnic conflict., Further, it was contended that the State of Gujarat is not the appropriate government and therefore the order of the Supreme Court of India dated 13 May 2022 is per incuriam for failing to follow the binding precedent in V. Sriharan. The impugning of the order of the Gujarat High Court that held the State of Maharashtra to be the appropriate government in Writ Petition (Criminal) No.135 of 2022, filed by respondent No.3, is completely contrary to the position of law laid down in Naresh Shridhar Mirajkar, where it was held that no writ petition alleging violation of fundamental rights would lie against the judgment or order of a court. It was alleged that respondent No.3 committed fraud on the Supreme Court of India by misrepresenting the order of the Bombay High Court dated 5 August 2013 in Writ Petition (Criminal) No.135 of 2022. The question of two High Courts taking dramatically different views did not arise, as the issue of appropriate government was not before the Bombay High Court. This amounts to suppression of evidence and false expression. The Supreme Court of India, in Union of India v. Ramesh Gandhi, (2012) 1 SCC 476, held that any judgment that is a consequence of misrepresentation of necessary facts constitutes fraud and is treated as a nullity. Such an error cannot lead to deprivation of justice to the victims. While the criminal justice system must strive to adopt a reformative approach, proportionality of sentence must also be treated as an equally important ideal. Reliance was placed on the Supreme Court of India's judgments in Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648; Ravji v. State of Rajasthan, (1996) 2 SCC 175; and Soman v. State of Kerala, (2013) 11 SCC 382., Ms. Vrinda Grover, learned counsel for the petitioner in Writ Petition (Criminal) No.352 of 2022, reiterated the contentions regarding the centrality and non‑optional nature of seeking the opinion of the presiding judge under Section 432(2) of the Code of Criminal Procedure, the non‑serving of concurrent sentences for non‑payment of fine by respondents No.3 to 13, and the need to consider the nature of the crimes and their impact on public welfare while granting remission. She relied on the Supreme Court of India's judgments in Ram Chander, Sharad Kolambe, Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC 363, and Abdul Gani., It was further submitted that the State of Gujarat has not considered the possibility of recidivism or any evidence of reformation of respondents No.3 to 13. According to the record, the respondents have not demonstrated any sign of reform and have not expressed remorse for the crimes they have committed. Their applications for remission do not contain any reference to remorse, and the non‑payment of fine further indicates the absence of remorse. Additionally, fresh cases have been registered against two of the respondents, serving as proof of their non‑reformation.
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It was also contended that reliance cannot be placed on documents, such as a letter dated 09.07.2022 of the Central Bureau of Investigation, wherein an affirmative opinion on remission was expressed, as well as a letter produced by respondent No.3 containing the affirmative opinion of the Special Judge (Central Bureau of Investigation), Civil and Sessions Court, Mumbai, as these documents have not been listed among the documents relied upon by the State of Gujarat while granting remission to respondent Nos.3 to 13. Ms. Aparna Bhat, learned counsel for the petitioner in Writ Petition (Criminal) No. 319 of 2022, in her rejoinder submitted that the remission granted by the State of Gujarat to respondent Nos.3 to 13 was violative of Article 14 of the Constitution of India. Prison statistics from the year 2021 reveal that 66.7 % of the convicts in Gujarat are undergoing life imprisonment, at least a fraction of whom have completed fourteen years of incarceration. No special case has been made out either by the State of Gujarat or the Union of India as to why respondent Nos.3 to 13 are singularly entitled to remission over all other convicts. Reliance was placed on judgments in S. G. Jaisinghani vs. Union of India, AIR 1967 Supreme Court of India 1427 and E. P. Royappa vs. State of Tamil Nadu, (1974) 4 Supreme Court of India 3, where the Supreme Court of India held that arbitrary and mala fide exercise of power by the State would constitute a violation of Article 14 of the Constitution. Discretionary and en‑mass remission on festive occasions was held to be impermissible in the case of Sangeet., It was further submitted that there is no right to remission that a convict can necessarily avail. Remission must be an exercise of discretion judiciously by the concerned authorities. Reliance was placed on the judgments of the Supreme Court of India in Sangeet, V. Sriharan, State of Haryana vs. Mahender Singh, (2007) 13 Supreme Court of India 606; Mohinder Singh, Maru Ram and Shri Bhagwan vs. State of Rajasthan, (2001) 6 Supreme Court of India 296., Mr. Mohammad Nizamuddin Pasha, learned counsel for the petitioner in Writ Petition (Criminal) No. 403 of 2022, reiterated the contention that materials not relied upon by the State of Gujarat while deciding on the question of remission for respondent Nos.3 to 13 cannot be used to justify the decision retrospectively. Reliance was placed on the decision of the Supreme Court of India in OPTO Circuit India Ltd. vs. Axis Bank, (2021) 6 Supreme Court of India 707. Contrary to the submission of the learned Additional Solicitor General, the State has to consider the gravity of the offence while deciding whether to grant remission. In cases where the crimes are of a much less serious nature, remission has not been granted owing to the perceived seriousness of the offences by the State, but in these cases of gruesome crime, remission has been simply granted. Further, there is a need to consider the fact that the victim and the convicts live in close proximity while granting remission, a factor that has been considered in other cases but not in the impugned remission orders., Points for consideration: Having heard learned senior counsel and learned counsel for the respective petitioners as well as the Additional Solicitor General, learned senior counsel and learned counsel for the respondents, the following points would arise for our consideration: (1) Whether the petition filed by one of the victims in Writ Petition (Criminal) No. 491 of 2022 under Article 32 of the Constitution is maintainable? (2) Whether the writ petitions filed as Public Interest Litigation assailing the impugned orders of remission dated 10.08.2022 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 State of Gujarat in favour of respondent Nos.3 to 13 are in accordance with law? (5) What order? The aforesaid points shall be considered in seriatim. A detailed narration of facts and contentions would not call for reiteration at this stage., Re: Point No. 1 – Whether the petition filed by one of the victims in Writ Petition (Criminal) No. 491 of 2022 under Article 32 of the Constitution is maintainable? Sri Rishi Malhotra, learned counsel for respondent No. 3, while placing reliance on the decisions of the Supreme Court of India, made a specific plea regarding maintainability of Writ Petition (Criminal) No. 491 of 2022 filed by the victim, contending that the petitioner had filed a review petition challenging the order dated 13.05.2022 passed in Writ Petition (Criminal) No. 135 of 2022 and the same was dismissed. Therefore, the only remedy open to the petitioner was to file a curative petition in terms of the judgment of the Supreme Court of India in Rupa Ashok Hurrah and not to challenge the remission orders by filing a fresh writ petition. We shall answer this contention in detail while considering point No. 3., One of the contentions raised by learned Senior Counsel, Sri S. Guru Krishna Kumar, appearing for one of the private respondents, was that the petitioner in Writ Petition (Criminal) No. 491 of 2022, Bilkis Bano, ought to have challenged the orders of remission before the Gujarat High Court by filing a petition under Article 226 of the Constitution rather than invoking Article 32 of the Constitution before the Supreme Court of India. It was submitted that by straightaway filing a petition under Article 32 a right of approaching the Supreme Court of India by way of an appeal by an aggrieved party has been lost. It was submitted that if victims file petitions under Article 32 before the Supreme Court of India challenging orders of remission, floodgates would be opened and persons such as the petitioner would straightaway file writ petitions before the Supreme Court of India. When an alternative remedy of filing a writ petition under Article 226 of the Constitution is available, which is also a wider remedy than Article 32, the petition filed by the writ petitioner in Writ Petition (Criminal) No. 491 of 2022 must be dismissed reserving liberty to her to approach the High Court, if so advised. Similar arguments were made by learned senior counsel Sri Chidambaresh., At the outset, we state that Article 32 of the Constitution is a part of Part III of the Constitution of India which deals with Fundamental Rights. The right to file a petition under Article 32 is also a Fundamental Right. In the instant case, the petitioner – Bilkis Bano – has filed her writ petition under Article 32 in order to enforce her Fundamental Rights under Article 21 (right to life and liberty) and Article 14 (right to equality and equal protection of the laws). The object and purpose of Article 32, which is recognised as the soul of the Constitution, is the enforcement of other Fundamental Rights in Part III. We think that the aforesaid constitutional remedy is also to enforce the goals enshrined in the Preamble of the Constitution, which speak of justice, liberty, equality and fraternity. Bearing in mind the expanded notion of access to justice, which also includes speedy remedy, we think that the petition filed by the petitioner in Writ Petition (Criminal) No. 491 of 2022 cannot be dismissed on the ground of availability of an alternative remedy under Article 226 or on the ground of its maintainability under Article 32 before the Supreme Court of India., There is another strong reason why the petitioner approached the Supreme Court of India by filing a petition under Article 32 rather than invoking Article 226 before the High Court. Earlier, one of the respondents, namely respondent No. 3 Radheshyam Bhagwandas Shah, had preferred Writ Petition (Criminal) No. 135 of 2022 invoking Article 32 before the Supreme Court of India, seeking a direction to the State of Gujarat to consider his case for remission under the Policy of 1992. The Supreme Court of India issued a categorical direction to that effect. In fact, the State understood the direction as a command to grant remission within two months. Before the Supreme Court of India, the State of Gujarat contended that it was not the appropriate Government to grant remission; this contention was negatived by the order dated 13.05.2022. That is one of the grounds raised by the petitioner‑victim to assail the orders of remission granted to respondent Nos. 3 to 13. Consequently, the Gujarat High Court would not have been in a position to entertain the contention in view of the categorical direction issued by the Supreme Court of India in Writ Petition (Criminal) No. 491 of 2022 disposed on 13.05.2022. In the teeth of that order, the contention regarding the State of Gujarat not being the competent authority to consider the validity of the orders of remission in a petition filed under Article 226 could not have been dealt with by the Gujarat High Court on the principle of judicial propriety. Therefore, for this reason also the petitioner in Writ Petition (Criminal) No. 135 of 2022 has, in our view, rightly approached the Supreme Court of India challenging the orders of remission. The contentions of learned Senior Counsel, Sri S. Guru Krishna Kumar and Sri Chidambaresh are hence rejected. Thus, we hold that Writ Petition (Criminal) No. 491 of 2022 filed under Article 32 of the Constitution is clearly maintainable., Re: Point No. 2 – Whether the writ petitions filed as Public Interest Litigation assailing the impugned orders of remission dated 10.08.2022 are maintainable? We now record the submissions made with regard to maintainability of the Public Interest Litigation assailing the orders of remission in favour of respondent Nos. 3 to 13. Learned Additional Solicitor General appearing for the State of Gujarat as well as the Union of India submitted that the writ petitions filed as Public Interest Litigations are not maintainable as the petitioners are strangers to the impugned orders of remission and are in no way connected with the matter. In this context, reliance was placed on decisions including Rajiv Ranjan, Simranjit Singh and Ashok Kumar, to contend that there can be no third‑party interference in criminal matters in the garb of filing Public Interest Litigations. It was also contended that the petitioners who have filed the Public Interest Litigation are interlopers and busybodies and are not persons who are aggrieved. Reliance was placed on M. V. Dabholkar and Jasbhai Motibhai. Shri Sidharth Luthra, learned senior counsel, has also voiced the arguments of the respondents by referring to certain decisions of the Supreme Court of India while contending that the grant of remission is in the exclusive domain of the State and, although no convict can seek remission as a matter of fundamental right, the convict has the right to be considered for remission. That remission is a matter between the convict and the State and, therefore, there can be no third‑party interference. The detailed submissions of the learned counsel have already been adverted to above and, therefore, it is unnecessary to reproduce the same once again. Respondent No. 3 has challenged the locus of the petitioners in Writ Petition (Criminal) No. 319 of 2022 and connected writ petitions, contending that the petitioners therein are not related to the said case and are third‑party strangers. If petitions filed by third‑party strangers are entertained by the Supreme Court of India, then it would unsettle the settled position of law and would open floodgates for litigation. Learned counsel for respondent No. 3, Sri Rishi Malhotra, placed reliance on the decision of the Supreme Court of India in Janata Dal vs. H. S. Chowdhary, (1992) 4 Supreme Court of India 305, which was reiterated and followed in Simranjit Singh and in Subramanian Swamy vs. Raju, (2013) 10 Supreme Court of India 465, where it has consistently been held that a third party, who is a total stranger to the prosecution, has no locus standi in criminal matters and has no right whatsoever to file a petition under Article 32. In Simranjit Singh, the Supreme Court of India was faced with the situation where a conviction of some accused persons under the Terrorist and Disruptive Activities (Prevention) Act was sought to be challenged under Article 32 by the President of the Akali Dal (M), namely Simranjit Singh Mann, which was dismissed. Paragraph 5 of the judgment in Simranjit Singh held that the petition under Article 32 was not maintainable because the petitioner did not seek to enforce any of his fundamental rights nor did he complain that any of his fundamental rights were being violated. The Supreme Court of India was of the view that a total stranger in a criminal case cannot be permitted to question the correctness of a decision., Per contra, learned senior counsel Ms. Indira Jaising has made submissions on the issue of locus standi of the petitioner in Writ Petition (Criminal) No. 326 of 2022. According to her, even when no specific legal injury is caused to a person or to a determinate class or group of persons by an act or omission of the State or any public authority, but when an injury is caused to public interest, a concerned citizen can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of public duty (vide B. P. Singhal). She asserted that the writ petition raises questions of great public importance in that, in a democracy based on the rule of law, no authority has any unfettered and unreviewable discretion. All powers vested in an authority are intended to be used only for public good. The exercise of executive power must be informed by the finer canons of constitutionalism (vide Maru Ram). The impugned decision of granting remission to the convicts violates the rule of law, is arbitrary and not based on any relevant consideration. Therefore, the writ petition filed by the petitioner in public interest is maintainable. Reliance was placed on S. P. Gupta. As regards the respondents’ contention that by entertaining the petition under Article 32 the convicts have been denied the right of appeal, it was submitted that there exists no statutory right of appeal against an order denying or permitting remission. Such an order can only be challenged under Article 226 or Article 32. Further, a Constitution Bench of the Supreme Court of India in Kochuni observed that the mere existence of an adequate alternative remedy cannot per se be a good and sufficient ground for throwing out a petition under Article 32, if the existence of a fundamental right and a breach, actual or threatened, of such right is alleged and is prima facie established on the petition. As regards the respondents’ submission that a stranger to the criminal proceedings under any circumstance cannot file a petition under Article 32, it was contended that the instant proceedings are not criminal in nature; they fall within the realm of administrative law as they seek to challenge orders of remission which are administrative decisions. Learned senior counsel brought to our notice the fact that the Supreme Court of India had entertained a petition filed by a DMK leader under Section 406 of the Criminal Procedure Code seeking the transfer of a pending criminal trial against his political opponent J. Jayalalithaa from the State of Tamil Nadu to the State of Karnataka (vide K. Anbazhagan)., Ms. Vrinda Grover, learned counsel for the petitioner in Writ Petition (Criminal) No. 352 of 2022, at the outset submitted that the petition has been filed in the larger public interest by petitioners who have vast knowledge and practical expertise on issues of public policy, governance and upholding the rule of law. Their petition challenges not only the arbitrary and mala fide exercise of executive prerogative under Section 432 of the Criminal Procedure Code, but also prays for a shift in practices related to the grant of remission by bringing in more accountability and transparency to the process. Thus, the writ petition is maintainable as a Public Interest Litigation. Learned counsel contended that the petition does not constitute an intervention into criminal proceedings but is rather a challenge to arbitrary executive action, which is amenable to judicial review. It is settled law that the exercise of power under Section 432 of the Criminal Procedure Code is an administrative act which neither retracts from a judicial order nor wipes out the conviction of the accused and is merely an executive prerogative exercised after the judicial function in a criminal proceeding has come to an end (vide Epuru Sudhakar and Ashok Kumar). It was further submitted that all the judgments cited by the respondents – convicts as also the respondent – State to argue that the petitioners have no locus standi refer to different stages of criminal proceedings, viz. petitions related to investigation, trial, sentencing or quashing of the FIR. However, the present petition is a challenge to the arbitrary and mala fide administrative action which has arisen after the criminal proceedings have attained finality in the eye of law. Learned counsel submitted that it is trite that the exercise of executive discretion is subject to rule of law and fairness in State action as embodied in Article 14 of the Constitution. The exercise of such discretion under Section 432 of the Criminal Procedure Code which is arbitrary or mala fide amounts to State action in violation of constitutional and statutory obligations and is detrimental to public interest. Learned counsel placed reliance on the decision of the Supreme Court of India in S. P. Gupta to submit that the Supreme Court of India has in many cases held that in case of public injury caused by an act or omission of the State which is contrary to the rule of law, any member of the public acting bona fide can maintain an action for redressal of a public wrong. In the case at hand, the mala fide and arbitrary grant of premature release to the convicts by State action is contrary to constitutional mandate and abets immunity for violence against women (vide Sheonandan Paswan vs. State of Bihar, (1987) 1 Supreme Court of India 288 and Abdul Wahab K. vs. State of Kerala, (2018) 18 Supreme Court of India 448). Learned counsel next submitted that the Supreme Court of India in Subramanian Swamy, while adjudicating on the locus of a public‑spirited intervenor in a case requiring interpretation of the Juvenile Justice (Care and Protection of Children) Act, 2015, held that the intervenor had sought an interpretation of criminal law which would have a wide implication beyond the scope of the parties in that case and hence, allowed the same. Thus, when larger questions of law are involved, which include interpretation of statutory provisions for the purpose of grant of premature release/remission, public‑spirited persons who approach the Court in a bona fide manner ought not to be prevented from assisting the Court to arrive at a just and fair outcome. Learned counsel Ms. Grover further submitted that in cases where offences have shocked the conscience of society, spread fear and alarm amongst citizens and have impugned the secular fabric of society, as in the instant case, the Supreme Court of India has allowed interventions by members of the public seeking to bring to the attention of the Court the inaction and apathy on the part of the State in discharging its duty within the criminal justice system. It has been held in some cases that the technical rule of locus cannot shield the arbitrary and illegal exercise of executive discretion in violation of constitutional and statutory principles, once the same have been brought to the attention of the Supreme Court of India., Learned counsel for the petitioner in Writ Petition (Criminal) No. 319 of 2022, Smt. Aparna Bhat, submitted that the petitioner has locus standi to approach the Supreme Court of India against the remission orders dated 10.08.2022. It was submitted that upholding the constitutional values and protection of all citizens is the responsibility of the State and there is a legitimate expectation that the State conducts all its actions in accordance with constitutional values. The petition has been filed in public interest as the premature release of respondent Nos. 3 to 13 cannot be permitted since the convicts pose a danger to society. The petitioners in the connected matters fulfil the wide ambit of the expression “person aggrieved” as envisaged under Public Interest Litigation jurisdiction since they are challenging the release of convicts who have committed heinous and grave offences against society. On the issue of locus standi of the petitioners to approach the Supreme Court of India, the learned counsel relied on paragraph 6 of A. R. Antulay vs. Ramdas Sriniwas Nayak, (1984) 2 Supreme Court of India 500. Further, it was submitted that in Sheonandan Paswan, the Supreme Court of India relied on A. R. Antulay and held that if a citizen can set the machinery of criminal law in motion, she is also entitled to oppose the unwarranted withdrawal of prosecution in an offence against society. Learned counsel further placed reliance on the dictum of the Supreme Court of India in Manohar Lal vs. Vinesh Anand, (2001) 5 Supreme Court of India 407, wherein it was held that the doctrine of locus standi is totally foreign to criminal jurisprudence and that society cannot afford to have a criminal escape his liability. Also, in Ratanlal vs. Prahlad Jat, (2017) 9 Supreme Court of India 340, the Supreme Court of India held that a crime is not merely an offence committed in relation to an individual but is also an offence against society at large and it is the duty of the State to punish the offender., Although we have recorded the detailed submissions made on behalf of the respective parties, we do not think it is necessary to answer the point regarding maintainability of the Public Interest Litigations in this case inasmuch as one of the victims, namely Bilkis Bano, has also filed a writ petition invoking Article 32 of the Constitution assailing the orders of remission which we have held to be maintainable. The consideration of that petition on its merits would suffice in the instant case. Hence, we are of the view that the question of maintainability of the Public Interest Litigations challenging the orders of remission in the instant case would not call for an answer from us owing to the aforesaid reason. As a result, we hold that consideration of the point on the maintainability of the Public Interest Litigations has been rendered wholly academic and not requiring an answer in this case. Therefore, the question regarding maintainability of a Public Interest Litigation challenging orders of remission is kept open to be considered in any other appropriate case., Before we consider point No. 3, we shall deal with the concept of remission. Remission: Scope & Ambit. Krishna Iyer, J., in Mohammad Giasuddin vs. State of Andhra Pradesh, (1997) 3 Supreme Court of India 287, quoted George Bernard Shaw, the famous satirist, who said, “If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and men are not improved by injuries.” According to him, humanity today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defence., Further, quoting a British Buddhist‑Christian judge, it was observed that in the context of karuna (compassion) and punishment for karma (bad deeds), the two things are not incompatible. While an accused is punished for what he has done, a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful, must be deserved. This is what compassion is about., Learned senior counsel Sri Sidharth Luthra drew our attention to the principles covering grant of remission and distinguished it from concepts such as commutation, pardon and reprieve, with reference to a judgment of the Supreme Court of India in State (Government of NCT of Delhi) vs. Prem Raj, (2003) 7 Supreme Court of India 121. Articles 72 and 161 deal with clemency powers of the President of India and the Governor of a State, and also include the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentences in certain cases. The power under Article 72 inter alia extends to all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends and in all cases where the sentence is a sentence of death. Article 161 states that the Government of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. It was observed in the said judgment that the powers under Articles 72 and 161 of the Constitution of India are absolute and cannot be fettered by any statutory provision, such as Sections 432, 433 or 433‑A of the Criminal Procedure Code or by any prison rule., It was further observed that a pardon is an act of grace, proceeding from the power entrusted with the execution of the law, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It affects both the punishment prescribed for the offence and the guilt of the offender. But pardon has to be distinguished from amnesty, which is defined as a general pardon of political prisoners; an act of oblivion. An amnesty would result in the release of the convict but does not affect disqualification incurred, if any. Reprieve means a stay of execution of a sentence, a postponement of a capital sentence. Respite means awarding a lesser sentence instead of the penalty prescribed in view of the fact that the accused has had no previous conviction. It is something like a release on probation for good conduct under Section 360 of the Criminal Procedure Code. On the other hand, remission is reduction of a sentence without changing its character. In the case of a remission, the guilt of the offender is not affected, nor is the sentence of the court, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence, but is relieved from serving out a part of it. Commutation is change of a sentence to a lighter sentence of a different kind. Section 432 empowers the appropriate Government to suspend or remit sentences., Further, a remission of sentence does not mean acquittal and an aggrieved party has every right to vindicate himself or herself. In this context, reliance was placed on Sarat Chandra Rabha vs. Khagendranath Nath, AIR 1961 Supreme Court of India 334, wherein a Constitution Bench of the Supreme Court of India, while distinguishing between a pardon and a remission, observed that an order of remission does not wipe out the offence; it also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court even though the order of conviction and sentence passed by the court still stands as it is. The power to grant remission is an executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court. According to Weater's Constitutional Law, to cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua the judgment., Reliance was placed on Mahender Singh to urge that a right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder.
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Although no convict can be said to have any constitutional right for obtaining remission in his sentence, the policy decision itself must be held to have conferred a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally, vide State of Mysore vs. H. Srinivasmurthy, (1976) 1 Supreme Court Cases 817. In Mahender Singh, the Supreme Court of India was considering the correctness of a judgment of the Punjab and Haryana High Court in which a circular letter issued by the State of Haryana laying down criteria for premature release of the prisoners had been declared to be unconstitutional. In the above context, the Supreme Court of India considered the right of the convict to be considered for remission and not on what should be the criteria when the matter was taken up for grant thereof., Satish was pressed into service to contend that the length of the sentence or the gravity of the original crime cannot be the sole basis for refusing premature release. Any assessment regarding a predilection to commit crime upon release must be based on antecedents as well as conduct of the prisoner while in jail, and not merely on his age or apprehensions of the victims and witnesses. It was observed that although a convict cannot claim remission as a matter of right, once a law has been made by the appropriate legislature, it is not open for the executive authorities to surreptitiously subvert its mandate. It was further observed that where the authorities are found to have failed to discharge their statutory obligations despite judicial directions, it would then not be inappropriate for a constitutional court while exercising its powers of judicial review to assume such task onto itself and direct compliance through a writ of mandamus. Considering that the petitioners therein had served nearly two decades of incarceration and had thus suffered the consequences of their actions, a balance between individual and societal welfare was struck by granting the petitioners conditional premature release, subject to their continuing good conduct. In the said case, a direction was issued to the State Government to release the prisoners on probation in terms of Section 2 of the Uttar Pradesh Prisoners Release on Probation Act, 1938 within a period of two weeks. The respondent State was reserved liberty with the overriding condition that the said direction could be reversed or recalled in favour of any party or as per the petitioner., The following judgments of the Supreme Court of India are apposite to the concept of remission: In Maru Ram, a Constitution Bench considered the validity of Section 433-A of the Code of Criminal Procedure. Justice Krishna Iyer, speaking for the Bench, observed, \Ordinarily, where a sentence is for a definite term, the calculus of remissions may benefit the prisoner to instant release at the point where the subtraction results in zero. However, when it comes to life imprisonment, where the sentence is indeterminate and of an uncertain duration, the result of subtraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration.\ Referring to Gopal Vinayak Godse vs. State of Maharashtra, (1961) 3 Supreme Court Cases 440, it was observed that the judgment is an authority for the proposition that a sentence of imprisonment for life is one of imprisonment for the whole of the remaining period of the convicted person's natural life, unless the sentence is commuted or remitted by an appropriate authority under the relevant provisions of law., In Gopal Vinayak Godse, a distinction was drawn between remission, sentence and life sentence. Remission limited a time, helps computation but does not ipso jure operate as release of the prisoner. When the sentence awarded by the Judge is for a fixed term, the effect of remissions may be to scale down the term to be endured and reduce it to nil, while leaving the fact and quantum of sentence intact. However, when the sentence is a life sentence, remissions, quantified in time, cannot reach a point of zero. Since Section 433-A deals only with life sentences, remissions cannot entitle a prisoner to release. It was further observed that remission, in the case of life imprisonment, ripens into a reduction of sentence of the entire balance only when a final release order is made. If this is not done, the prisoner will continue in custody. The reason is that life sentence is nothing less than lifelong imprisonment and remission vests no right to release when the sentence is life imprisonment. Nor is any vested right to remission cancelled by compulsory fourteen years jail life as a life sentence is a sentence for whole life., Interpreting Section 433-A it was observed that there are three components in it which are in the nature of a saving clause. Firstly, the Code of Criminal Procedure generally governs matters covered by it. Secondly, if a special or local law exists covering the same area, the latter law will be saved and will prevail, such as short sentencing measures and remission schemes promulgated by various States. The third component is that if there is a specific provision to the contrary then it would override the special or local law. It was held that Section 433-A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment. Therefore, Section 433-A applies in preference to any special or local law. This is because Section 5 of the Code of Criminal Procedure expressly declares that a specific provision, if any, to the contrary will prevail over any special or local law. Therefore, Section 433-A would prevail and escape exclusion of Section 5. The Constitution Bench concluded that Section 433-A is supreme over the remission rules and short‑sentencing statutes made by various States. Section 433-A does not permit parole or other related release within a span of fourteen years., It was further observed that criminology must include victimology as a major component of its concerns. When a murder or other grievous offence is committed the victims or other aggrieved persons must receive reparation and social responsibility of the criminal to restore the loss or heal the injury which is part of the punitive exercise; the length of the prison term is not reparation to the crippled or bereaved. Justice Fazal Ali, in his concurring judgment in Maru Ram, observed that crime is rightly described as an act of warfare against the community touching new depths of lawlessness. According to him, the object of imposing deterrent sentence is three‑fold. While holding that the deterrent form of punishment may not be the most suitable or ideal form of punishment yet, the fact remains that the deterrent punishment prevents occurrence of offence. He further observed that Section 433-A is actually an asocial piece of legislation which by one stroke seeks to prevent dangerous criminals from repeating offences and on the other hand protects society from harm and distress caused to innocent persons. While opining that where Section 433-A applies, no question of reduction of sentence arises at all unless the President of India or the Governor of a State choose to exercise their wide powers under Article 72 or Article 161 of the Constitution respectively, which also have to be exercised according to sound legal principles, any reduction or modification in the deterrent punishment would, far from reforming the criminal, be counter‑productive., Mohinder Singh is a case which arose under Section 432 on remission of sentence in which the difference between the terms bail, furlough and parole having different connotations were discussed. It was observed that furloughs are variously known as temporary leaves, home visits or temporary community release and are usually granted when a convict is suddenly faced with a severe family crisis such as death or grave illness in the immediate family and often the convict is accompanied by an officer as part of the terms of temporary release of special leave which is granted to a prisoner facing a family crisis. Parole is a release of a prisoner temporarily for a special purpose or completely before the expiry of the sentence or on promise of good behaviour. Conditional release from imprisonment is to entitle a convict to serve remainder of his term outside the confines of an institution on his satisfactorily complying all terms and conditions provided in the parole order., In Poonam Latha vs. M.L. Wadhwan, (1987) 3 Supreme Court Cases 347, it was observed that parole is a professional release from confinement but it is deemed to be part of imprisonment. Release on parole is a wing of reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner but release on parole does not change the status of the prisoner. When a prisoner is undergoing sentence and confined in jail or is on parole or furlough his position is not similar to a convict who is on bail. This is because a convict on bail is not entitled to the benefit of the remission system. In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended. Therefore, such a prisoner who is on bail is not entitled to get remission earned during the period he is on bail., Apart from the constitutional provisions, there are also provisions of the Code of Criminal Procedure which deal with remission of convicts. Sections 432, 433, 433A and 435 of the Code of Criminal Procedure are relevant and read as under: Section 432. Power to suspend or remit sentences. (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. (3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence. (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. (5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. (6) The provisions of the above sub‑sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property. (7) In this section and in Section 433, the expression appropriate Government means, (a) in cases 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; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed. Section 433. Power to commute sentence. The appropriate Government may, without the consent of the person sentenced, commute (a) a sentence of death, for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine. Section 433A. Restriction on powers of remission or commutation in certain cases. Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. Section 435. State Government to act after consultation with Central Government in certain cases. (1) The powers conferred by Sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence (a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or (b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (c) which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, shall not be exercised by the State Government except after consultation with the Central Government. (2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends., Sub‑section (1) of Section 432 is an enabling provision which states that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any condition which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. The pertinent provision involved in this case is sub‑section (2) which deals with an application made to the appropriate Government for the suspension or remission of a sentence and the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. Sub‑section (3) deals with cancellation of the suspension or remission in the event of there being any non‑fulfilment of any condition imposed by the appropriate Government whereupon the person in whose favour the sentence has been suspended or remitted may be arrested by the police officer, without warrant and remanded to undergo the unexpired portion of the sentence, if such a person is at large. Sub‑section (4) states that the condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with vide sub‑section (5) of Section 432 of the Code of Criminal Procedure. The proviso to sub‑section (5) states that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and it is presented through the officer in‑charge of the jail; or where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. Sub‑section (6) of Section 432 states that the provisions of this Section would apply to any order passed by a Criminal Court under any section of the Code of Criminal Procedure or any other law which restricts the liberty of any person or imposes any liability upon him or his property., The expression appropriate Government used in Section 432 as well as in Section 433 is defined in sub‑section (7) of Section 432. It expresses that in cases 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; and in other cases, the Government of the State within which the offender is sentenced or the said order is passed., Section 433-A is a restriction on the powers of remission or commutation in certain cases. It begins with a non‑obstante clause and states that notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment., Section 434 states that the powers conferred by Sections 432 and 433 upon the State Government may in case of sentences of death also be exercised by the Central Government concurrently. The necessity for the State Government to act in consultation with the Central Government in certain cases is mandated in Section 435. The powers conferred by Sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence (a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than the Code of Criminal Procedure, or (b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (c) which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, shall not be exercised by the State Government except after consultation with the Central Government. Sub‑section (2) of Section 435 states that no order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends., With the above backdrop of provisions, we move to consider Point No.3. Point No.3: Whether the Government of the State of Gujarat was competent to pass the impugned orders of remission? The point for consideration revolves around the definition of the expression appropriate Government. In other words, whether the first respondent State of Gujarat was competent to pass the orders of remission in the case of respondent Nos.3 to 13 herein is the question. The meaning and import of the expression appropriate Government has to be discerned from the judgments of the Supreme Court of India in the light of sub‑section (7) of Section 432., The contentions raised by the learned counsel for the petitioner in Writ Petition (Criminal) No.491 of 2022 as well as the arguments of the learned Additional Solicitor General appearing for the Union of India as well as the State of Gujarat on this aspect need not be reiterated., The expression appropriate Government no doubt has been defined in sub‑section (7) of Section 432 to mean that in cases 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. The expression appropriate Government also finds place in sub‑section (1) of Section 432 which, as already discussed above, states that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any condition which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced., Sub‑section (1) of Section 432 of the Code of Criminal Procedure deals with a power vested with the appropriate Government which is an enabling power. The discretion vested with the appropriate Government has to be exercised judiciously in an appropriate case and not to abuse the same. However, when an application is made to the appropriate Government for the suspension or remission of a sentence such as in the instant case by a convict, the appropriate Government may seek the opinion of the Presiding Judge of the Court before or by which the conviction was had or confirmed and on considering the reasons for such opinion, may consider the application for remission vide sub‑section (2) of Section 432 of the Code of Criminal Procedure., On a combined reading of sub‑sections (1) and (2) of Section 432, it is apparent that the conviction and sentence of the Court which had tried the case assumes significance and 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. This is particularly so when an application is filed by or on behalf of a convict seeking remission. Therefore, logically the expression appropriate Government in clause (b) of sub‑section (7) of Section 432 also states that the Government of the State within which the offender is sentenced or the said order is passed which is the appropriate Government., This places emphasis on the place of trial and sentence of the offender rather than the place or location where the crime was committed. Such an interpretation would also include a situation, such as in the present case, where not only the investigation but also the trial of respondents No.3 to 13 herein was transferred from the State of Gujarat to the State of Maharashtra and particularly to the Special Court at Mumbai. Thus, the aforesaid definition also takes within its scope a circumstance wherein the trial is transferred by this Court for reasons to be recorded and which is in the interest of justice from one State to another State., There may be various reasons for transferring a trial from a competent Court within the territorial jurisdiction of one State to a Court of equivalent jurisdiction in another State, as has been done in the instant case. But what is certain is that the transfer of the trial to a court in another State would be a relevant consideration while considering as to which State has the competency to pass an order of remission. Thus, the definition of appropriate Government in sub‑section (7) of Section 432 clearly indicates that the Government of the State within which the offender is sentenced, is the appropriate Government to pass an order of remission., In almost all cases, the court before which the offender was sentenced is located within the territory of a State Government wherein the offence occurred and, therefore, in such a case, there can be no further doubt about the meaning of the expression appropriate Government. But according to us, even in a case where the trial has been transferred by this Court from a court of competent jurisdiction of a State to a court in another State, it is still the Government of the State within which the offender was sentenced which is the appropriate Government which has the jurisdiction as well as competency to pass an order of remission under Section 432 of the Code of Criminal Procedure. Therefore, it is not the Government of the State within whose territory the offence occurred or the convict is imprisoned which can assume the power of remission., In this regard, the following judgments of the Supreme Court of India may be relied upon: In Ratan Singh, on discussing Section 401 of the erstwhile Code of Criminal Procedure (corresponding to Section 432 of the present Code) it was observed that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of Section 401 of the erstwhile Code. In the said case, it was observed that the accused was convicted and sentenced in the State of Madhya Pradesh and though he was discharging his sentence in a jail in Amritsar in the State of Punjab, the appropriate Government under section 401 (1) of the erstwhile Code to exercise the discretion for remission of the sentence was the State of Madhya Pradesh. It was further observed that even under the new Code i.e. Code of Criminal Procedure, 1973 as per sub‑section (7) of Section 432 thereof, the phrase appropriate Government had the same meaning as the latter provision had been bodily lifted from Section 402(3) of the erstwhile Code., On a review of the case law and the statutory provisions of the Code of Criminal Procedure the following propositions were culled out: (1) that a sentence of imprisonment for life does not automatically expire at the end of twenty years including the remissions, because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code.
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A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure. The appropriate Government has the undoubted discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner. The appropriate Government which is empowered to grant remission under Section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner has been convicted and sentenced, that is to say, the transferor State and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act. Where the transferee State feels that the accused has completed a period of 20 years it merely has to forward the request of the prisoner to the concerned State Government, that is to say, the Government of the State where the prisoner was convicted and sentenced and even if this request is rejected by the State Government the order of the Government cannot be interfered with by a High Court in its writ jurisdiction., The aforesaid decision was reiterated in Hanumant Dass. In that case the incident had occurred in Dharamshala and when the matter was pending before the Sessions Court, Dharamshala, Himachal Pradesh, at the instance of the complainant, on an application moved before the Supreme Court of India, the case was transferred from Himachal Pradesh to the Sessions Court at Gurdaspur, Punjab., Insofar as the clemency power of a Governor of a State under Article 161 of the Constitution to grant remission to prisoners convicted by courts outside the State but undergoing sentences in jails in the State is concerned, the Supreme Court of India in M.T. Khan observed that the appropriate Government on whose advice the Governor has to act while granting remission to such a prisoner is to be decided on the basis of the aid and advice of the Council of Ministers of the State which had convicted the accused and not the State where the accused/convict is transferred to be lodged in the jail. In that case it was held that since the judgment of conviction had been passed in the States of Madhya Pradesh and Maharashtra and the convict was lodged in the State of Andhra Pradesh, the appropriate Governments were the States of Madhya Pradesh and Maharashtra even under Article 161 of the Constitution. Hence, the appeals filed by the Government of Andhra Pradesh were allowed., V. Sriharan is a judgment of a Constitution Bench of the Supreme Court of India wherein the Government of Tamil Nadu had proposed to remit the sentence of life imprisonment to release seven convicts who were convicted in the Rajiv Gandhi assassination case, State, through Superintendent of Police, Central Bureau of Investigation vs. Nalini, (1999) 5 Supreme Court Cases 253. While discussing the phrase appropriate Government, it was observed that barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence or order is passed within the territorial jurisdiction of the State concerned, that State Government would be the appropriate Government. Following the earlier decisions it was observed 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., On a plain reading of sub‑section (7) of Section 432 of the Code of Criminal Procedure and considering the judgments of this Court, it is the State of Maharashtra which had the jurisdiction to consider the application for remission vis‑vis respondent Nos. 3 to 13 herein as they were sentenced by the Special Court, Mumbai. Hence the applications filed by respondent Nos. 4 to 13 seeking remission had to be simply rejected by the State of Gujarat owing to lack of jurisdiction to consider them. This is because the Government of Gujarat is not the appropriate Government within the meaning of the aforesaid provision. The High Court of Gujarat was therefore right in its order dated 17 July 2019., When an authority does not have the jurisdiction to deal with a matter or it is not within the powers of the authority, i.e. the State of Gujarat in the instant case, to be the appropriate Government to pass orders of remission under Section 432 of the Code of Criminal Procedure, the orders of remission would have no legs to stand. On the aspect of jurisdiction and nullity of orders passed by an authority, the decision of the House of Lords in Anisminic v. Foreign Compensation Commission, (1969) 2 WLR 163 : (1969) 1 All ER 208, is of significance and can be cited by way of analogy. The House of Lords held that the Foreign Compensation Commission had committed a jurisdictional error as its decision was based on a matter which it had no right to take into account and so its decision was a nullity and subject to judicial review., On that short ground alone the orders of remission have to be quashed. The competency of the Government of Gujarat to pass the impugned orders of remission goes to the root of the matter and the impugned orders are lacking in competency and hence a nullity. The writ petition filed by the victim would have to succeed on this reasoning., The Additional Solicitor General appearing for respondent Nos. 1 and 2 placed strong reliance on the order of the Supreme Court of India dated 13 May 2022 to contend that in view of the directions issued in Writ Petition No. 135 of 2022, respondent No. 1, State of Gujarat, had to consider the applications for remission filed by respondents Nos. 3 to 13. Further, the consideration had to be made as per the 1992 Policy of Remission of the State of Gujarat. Hence, the appropriate Government in the case of respondents Nos. 3 to 13 was the Government of Gujarat in terms of the order dated 13 May 2022. It was further contended that the offences had also occurred within the State of Gujarat. Therefore, the first respondent, State of Gujarat, had no option but to consider the applications filed by respondents Nos. 3 to 13 and pass the orders dated 10 August 2022 granting remission to them., Counsel for the petitioner in Writ Petition (Criminal) No. 491 of 2022 countered the above submission contending that one of the convicts, Radheshyam Bhagwandas Shah, respondent No. 3, had initially approached the High Court of Gujarat by filing Criminal Application No. 4573 of 2019 for a direction to consider his application for remission by the State of Gujarat. By order dated 17 July 2019 the High Court disposed of Criminal Application No. 4573 of 2019 observing that he should approach the appropriate Government, being the State of Maharashtra. His second such application before the Gujarat High Court was also dismissed by order dated 13 March 2020. When the prisoner filed Writ Petition (Criminal) No. 135 of 2022 before the Supreme Court of India, he did not disclose that (i) within fourteen days of the order dated 17 July 2019 he had approached the Government of Maharashtra by application dated 1 August 2019; (ii) the Central Bureau of Investigation had given a negative recommendation by its letter dated 14 August 2019; (iii) the Special Judge (Central Bureau of Investigation), Mumbai had given a negative recommendation; (iv) the Superintendent of Police, Dahod, Gujarat had given a negative recommendation by its letter dated 3 February 2020; and (v) the District Magistrate, Dahod, Gujarat had given a negative recommendation by its letter dated 19 February 2020., The writ petitioner also made a misleading statement by referring to the order dated 5 August 2013 of the Bombay High Court in juxtaposition to the order of the Gujarat High Court dated 17 July 2019 to contend that there was a divergent opinion between the two High Courts, which aspect constrained him to file Writ Petition (Criminal) No. 135 of 2022 before the Supreme Court of India. The order dated 5 August 2013 passed by the Bombay High Court dealt with transfer of the convicts in Maharashtra jail to their parent State (State of Gujarat) in the year 2013, when the issue of remission did not arise at all. The petitioner projected as if the two High Courts had contradicted themselves, and therefore he was constrained to invoke the jurisdiction of the Supreme Court of India under Article 32 of the Constitution., It was contended that on account of the suppression of facts as well as misleading this Court with erroneous facts, the order dated 13 May 2022 is vitiated by fraud and is hence a nullity and cannot be binding on the parties to the said order or on the petitioner Bilkis Bano, who was not arrayed as a party in the writ petition., It is necessary to highlight the salient aspects of the order passed by the Supreme Court of India in the case of Radheshyam Bhagwandas Shah dated 13 May 2022 in Writ Petition (Criminal) No. 135 of 2022. The petition was filed by respondent No. 3 seeking a direction to consider his application for premature release under the policy dated 9 July 1992 of the State of Gujarat, which was existing at the time of his conviction. The relevant pleadings in the writ petition are: Question of Law: A. Whether the policy dated 9 July 1992, which was existing at the time of the conviction, will prevail for considering the case of the petitioner for premature release? B. Whether in view of State of Haryana v. Jagdish, (2010) 4 Supreme Court Cases 216, a policy which is more liberal and prevailing would be given preference as compared to the policy which is sought to be made applicable at the time of consideration of the cases of premature release?, One of the co‑accused, Ramesh Rupabhai, had approached the Bombay High Court by way of Criminal Writ Petition No. 305 of 2013. In that order the Bombay High Court clarified that the under‑trials in this case were lodged in Maharashtra Jail only because the trial was pending in the State of Maharashtra (transferred from Gujarat to Maharashtra by the Supreme Court). The High Court further clarified that once the trial has concluded and the prisoner has been convicted, the appropriate prison would be the State of Gujarat and accordingly the prisoners were transferred to the State of Gujarat from the State of Maharashtra. The petitioner then approached the Gujarat High Court on the ground that despite having undergone more than the actual sentence of 14 years, his case was not being considered for premature release. The Gujarat High Court, by its order dated 17 July 2019, took a diametrically opposite view to that of the Bombay High Court and erroneously held that since the petitioner’s case was tried in the State of Maharashtra, his case for premature release had to be considered by the State of Maharashtra and not by the State of Gujarat., Consequently, the instant Writ Petition was filed under Article 32 of the Constitution seeking a writ of mandamus or any other similar direction to the State of Gujarat to consider the petitioner’s case for premature release under the policy dated 9 July 1992, in the light of the settled decision in State of Haryana v. Jagdish, and alternatively to the Union of India to consider the case in light of Union of India v. V. Sriharan alias Murugan and Others, (2016) 7 Supreme Court Cases 1., The pleadings do not indicate that the State of Gujarat had no jurisdiction to consider his application for remission. There was no pleading that he had filed any application before the Government of Gujarat, nor any mention that the policy of 9 July 1992 had been cancelled. Moreover, the policy was not applicable as the writ petitioner was convicted in the State of Maharashtra and therefore the Government of Gujarat was not the appropriate Government., The Supreme Court of India, in the order dated 13 May 2022, held: 6. The petitioner filed his petition for premature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973 stating that he had undergone more than 15 years 4 months of custody but his petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) of the Code of Criminal Procedure and relying on the judgment of this Court in Union of India v. V. Sriharan alias Murugan and Others, (2016) 7 Supreme Court Cases 1, on the premise that since the trial was concluded in the State of Maharashtra, the application for premature release has to be filed in the State of Maharashtra and not in the State of Gujarat. 10. Counsel for the respondents placed reliance on Union of India v. V. Sriharan alias Murugan and Others and submitted that since the trial was concluded in the State of Maharashtra, taking assistance of Section 432(7) of the Code of Criminal Procedure, the expression appropriate government as referred to under Section 433 in the instant case would be the State of Maharashtra and accordingly no error was committed by the High Court in the order impugned. 11. In our considered view, the submission made by counsel for the respondents is not sustainable because the crime was admittedly committed in the State of Gujarat and ordinarily the trial was to be concluded in the same State. Under Section 432(7) of the Code of Criminal Procedure, the appropriate Government in the ordinary course would be the State of Gujarat, but the instant case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State (State of Maharashtra) by an order dated 6 August 2004. After the conclusion of trial and the prisoner being convicted, the appropriate Government remains the State where the crime was committed. 12. Indisputedly, the crime was committed in the State of Gujarat which is the appropriate Government competent to examine the application for premature release. The Bombay High Court, in Criminal Writ Petition No. 305 of 2013, declined the request to consider the application for premature release and left the application to be examined according to the policy applicable in the State of Gujarat. 13. The judgment relied upon by counsel for the respondents may not be of assistance because under Section 432(7) of the Code of Criminal Procedure, the appropriate Government can be either the Central or the State Government but there cannot be concurrent jurisdiction of two State Governments. Once the crime was committed in the State of Gujarat, after the trial and conviction, all further proceedings including remission or premature release must be considered in terms of the policy applicable in the State of Gujarat. 15. Consequently, the petition is allowed. The judgment impugned dated 17 July 2019 is set aside. 16. The respondents are directed to consider the petitioner’s application for premature release in terms of its policy dated 9 July 1992, which is applicable on the date of conviction, and may be decided within two months. If any adverse order is passed, the petitioner is at liberty to seek remedy available under law., The Court noted the following aspects in the order dated 13 May 2022: (i) the crime was committed in the State of Gujarat but this Court, in Transfer Petition (Criminal) No. 192 of 2004, considered it appropriate to transfer Sessions Case No. 161 of 2004 pending before the learned Additional Sessions Judge, Dahod, Ahmedabad to the competent court in Mumbai for trial and disposal by order dated 6 August 2004; (ii) the trial court in Mumbai, Sessions Case No. 634 of 2004, on completion of the trial held the respondent and the other accused guilty and sentenced them to rigorous imprisonment for life by judgment dated 21 January 2008; (iii) co‑accused Ramesh Rupabhai approached the Bombay High Court by filing Writ Petition (Criminal) No. 305 of 2013 seeking premature release but his application was dismissed by order dated 5 August 2013 on the premise that the crime was committed in Gujarat and, although the trial was transferred to Maharashtra, after conviction the appropriate Government would be Gujarat; (iv) the judgment relied upon by counsel for the State of Gujarat (V. Sriharan) was not of assistance because under Section 432(7) of the Code of Criminal Procedure the appropriate Government can be either Central or State Government but not two State Governments concurrently; (v) once the crime was committed in Gujarat, after trial and conviction, all further proceedings including remission or premature release must be considered in terms of the policy applicable in Gujarat and not the State where the trial was transferred; (vi) consequently, the writ petition was allowed and, even in the absence of any challenge, the order dated 17 July 2019 passed by the Gujarat High Court was set aside by this Court; (vii) it was not brought to the Court’s notice that the policy dated 9 July 1992 had been cancelled or substituted by another policy in 2014; (viii) the Court directed the State of Gujarat to consider the petitioner’s case for premature release under the said policy within two months., The Court’s inferences on the order dated 13 May 2022 are as follows: (i) the convict, Radheshyam Bhagwandas Shah, respondent No. 3, stated that he had undergone about 15 years 4 months of custody; (ii) respondent No. 3 did not state that his writ petition filed in the Gujarat High Court had been dismissed by taking note of Section 432(7) of the Code of Criminal Procedure and the decision in V. Sriharan as the trial had been concluded in Maharashtra; (iii) respondent No. 3 did not state that the application for premature release had been filed by him in Maharashtra and not in Gujarat as directed by the Gujarat High Court order dated 17 July 2019; (iv) respondent No. 3 had not disclosed that after the Gujarat High Court order he (a) approached the Government of Maharashtra by application dated 1 August 2019; (b) the Central Bureau of Investigation gave a negative recommendation by letter dated 14 August 2019; (c) the Special Judge (Central Bureau of Investigation), Mumbai gave a negative recommendation; (d) the Superintendent of Police, Dahod, Gujarat gave a negative recommendation by letter dated 3 February 2020; and (e) the District Magistrate, Dahod, Gujarat gave a negative recommendation by letter dated 19 February 2020; (v) respondent No. 3 had not assailed the Gujarat High Court order dated 17 July 2019 because there is a bar in law to assail a High Court order under Article 226 in a petition under Article 32; (vi) the State of Gujarat placed reliance on V. Sriharan and contended that the trial had been concluded in Maharashtra, making Maharashtra the appropriate Government, but this submission was not sustainable; (vii) the Court held that the submission was contrary to earlier judgments and therefore the order is per se per incuriam; (viii) the Court observed that the Bombay High Court had declined to interfere in Criminal Writ Petition No. 305 of 2013 without realising the prayer sought, which was for transfer of convicts to a Gujarat jail; (ix) no review petition was filed by the State of Gujarat against the order dated 13 May 2022, but the victim petitioner in Writ Petition (Criminal) No. 491 of 2022 filed a review petition which was rejected; (x) although respondent No. 3 and the State of Gujarat termed the Gujarat High Court order dated 17 July 2019 as impugned, that order was not actually challenged before this Court; (xi) the reference to the Bombay High Court order of 5 August 2013 was made without explaining the different factual backgrounds of the two writ petitions; (xii) there was no pleading or prayer to set aside the Gujarat High Court order dated 17 July 2019, yet the Court set it aside in the absence of any such prayer; (xiii) contrary to Section 432(7) and the judgments of this Court, a writ of mandamus was issued to the State of Gujarat to consider the petitioner’s premature release under the policy dated 9 July 1992, without any notice that the policy had been cancelled; (xiv) in Sangeet & Another v. State of Haryana, (2013) 2 Supreme Court Cases 452, this Court observed that a convict does not have a right to remission but has a right to have his case considered for remission, and that the appropriate Government may curtail a life sentence for good and valid reasons under Section 432 of the Code of Criminal Procedure, subject to procedural safeguards.
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On such an application being made, the appropriate Government is required to approach the Presiding Judge of the Court before or by which the conviction was made or confirmed to opine (with reasons) whether the application should be granted or refused. Thereafter, the appropriate Government may take a decision on the remission application and pass orders granting remission subject to some conditions, or refusing remission. There has to be an application of mind to the issue of grant of remission and the power of remission cannot be exercised arbitrarily. It was further observed that a convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Criminal Procedure Code which in turn is subject to the procedural checks in that Section and the substantive check in Section 433-A of the Criminal Procedure Code., Pursuant to the judgment in Sangeet, the Government of India, vide its communication dated 01.02.2013 made to all the Home Secretaries of the States and Union Territories, stated that there is a need to re‑look at the manner in which remissions of sentence are made with reference to Section 432 read with Section 433-A of the Criminal Procedure Code and hence requested that there should be scrupulous compliance of the aforesaid provisions and not to grant remission in a wholesale manner., Thereafter, on 08.05.2013, the Home Department, Government of Gujarat issued a circular referring to the decision of the Supreme Court of India dated 20.11.2012 in Sangeet and, in order to implement the same and also taking note of the communication of the Government of India dated 01.02.2013, the circular dated 09.07.1992 was cancelled in the following manner: Therefore, the provisions of circular No. JLK/3390/CM/16/part/2/J dated 09.07.1992 of the Home Department hereinabove referred to in Srl. No.1, hereby stand cancelled., On 23.01.2014, the State Government constituted a Committee headed by the Additional Chief Secretary (Home) for considering the policy and guidelines to be followed for the purpose of remission and premature release of the prisoners. After careful consideration, the State Government issued guidelines/policy for consideration of cases of remission and premature release of the prisoners. In the said policy, it was categorically mentioned that the prisoners who are convicted for the crimes as mentioned in Annexure‑I shall not be considered for remission. Annexure‑I contained the classes of prisoners who shall not be granted state remission as well as for premature release. Clause IV (a) and (d) read as follows: (a) A prisoner or prisoners sentenced for group murder of two or more persons. … (d) Prisoners convicted for murder with rape or gang rape., Respondent Nos.3 to 13 would not be released under the Remission Policy dated 23.01.2014, which had substituted the earlier Policy dated 09.07.1992, which had been cancelled. The writ petition was filed by respondent No.3 before the Supreme Court of India seeking a specific direction to the State of Gujarat to consider his case as per the Policy dated 09.07.1992 which had by then been cancelled and substituted by another Policy dated 23.01.2014., The petition raised the question of the effect of cancellation of the said policy by the State of Gujarat in light of the judgment of the Supreme Court of India in Sangeet and the communication of the Union of India issued to each of the states including the State of Gujarat. It asked whether the policy of 09.07.1992 had stood cancelled and therefore was effaced from the statute book and substituted by the new policy of 2014 which had to be considered., By suppressing material aspects and by misleading the Supreme Court of India, a direction was sought and issued to the State of Gujarat to consider the premature release or remission of the writ petitioner, i.e., respondent No.3, on the basis of the policy dated 09.07.1992., More pertinently, respondent No.3 had suppressed the fact that, on the basis of the judgment of the Gujarat High Court in the writ petition that he had filed, the convict had acted upon it and had made an application to the State of Maharashtra for remission on 01.08.2019 and the said application was being processed as the stakeholders had given their opinion, such as the Presiding Judge of the court which had convicted the accused; the Director‑CBI; and the Director General and Inspector General of Police, State of Maharashtra, all of whom were unanimous in their opinion in that they had negatived grant of remission to the convict Radheshyam Bhagwan Das., Suppressing all this, the writ petition was filed by respondent No.3 invoking Article 32 of the Constitution and the same was allowed by also setting aside the order of the Gujarat High Court dated 17.07.2019 and thereby setting at naught the steps taken pursuant to the said order of the Gujarat High Court., At this stage, we may point out that if respondent No.3 had felt aggrieved by the order of the Gujarat High Court dated 17.07.2019, it was open to him to have challenged the said order before the Supreme Court of India by filing a special leave petition, but he did not do so. Rather, he complied with the order of the Gujarat High Court by filing a remission application dated 01.08.2019 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 No.3 filed Writ Petition (Criminal) No.135 of 2022 before the Supreme Court of India seeking a direction to the State of Gujarat to consider his remission application suppressing the above material facts. This he could not have done, thereby misrepresenting and suppressing relevant facts, thus playing fraud on the Supreme Court of India., We have no hesitation in holding that neither the order of the Gujarat High Court dated 17.07.2019 could have been challenged by respondent No.3 or by anybody else before the Supreme Court of India in a writ proceeding under Article 32 of the Constitution of India nor the said order of the High Court could have been set aside in a proceeding under Article 32 thereof. This proposition of law has been settled long ago by a nine‑Judge bench decision of the Supreme Court of India in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, which is binding on us., When an oral order of the learned Judge passed in the original suit of the Bombay High Court was challenged by the petitioner therein by way of a writ petition under Article 226 of the Constitution of India before the Bombay High Court, the writ petition was dismissed by a division bench of the Bombay High Court on the ground that the impugned order was a judicial order of the High Court and was not amenable to writ jurisdiction under Article 226. Thereafter, the petitioner moved the Supreme Court of India under Article 32 of the Constitution of India for enforcement of his fundamental rights under Article 19(1)(a) and (g) of the Constitution of India. The Supreme Court observed that the impugned order was passed by the learned Judge in the course of trial of a suit after hearing the parties. The Court took the view that the restraint order was passed to prohibit publication of evidence in the media during the progress of the trial and could not be construed as imposing a permanent ban on the publication of the said evidence., The question which fell for consideration before the Supreme Court of India was whether a judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit was amenable to be corrected by a writ of certiorari of the Supreme Court of India under Article 32 of the Constitution of India. In that context, the Supreme Court first held that a judicial verdict pronounced by a court in a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Article 19(1) of the Constitution of India. Thereafter, the Court proceeded to hold that if any judicial order was sought to be attacked on the ground that it was inconsistent with Article 14 or any other fundamental right, the proper remedy to challenge such an order would be by way of an appeal or revision as may be provided by law. It would not be open to the aggrieved person to invoke the jurisdiction of the Supreme Court of India under Article 32 of the Constitution and to contend that a writ of certiorari should be issued to quash such an order., Before proceeding further, it may also be mentioned that it was only respondent No.3 who had approached the Supreme Court of India by filing a writ petition under Article 32 of the Constitution of India, being Writ Petition (Criminal) No.135 of 2022, seeking a direction to the State of Gujarat to consider his premature release. None of the other convicts, i.e., respondent Nos.4 to 13, had approached the Supreme Court of India or any High Court seeking such a relief. Therefore, as far as these respondents are concerned, there was no direction of the Supreme Court of India or any court to the State of Gujarat to consider their premature release., We are of the considered view that the writ proceedings before the Supreme Court of India are pursuant to suppression and misleading of the Court and a result of supressio veri suggestio falsi. Hence, in our view, the order dated 13.05.2022 passed by the Supreme Court of India in Writ Petition (Criminal) No.135 of 2022 in the case of Radheshyam Bhagwandas Shah is hit by fraud and is a nullity and non est in law and therefore cannot be given effect to and hence, all proceedings pursuant to the said order are vitiated., It is trite that fraud vitiates everything. It is a settled proposition of law that fraud avoids all judicial acts. In S.P. Chengalvaraya Naidu v. Jagannath (Dead) through Law Reports, (1994) 1 SCC 1, it has been observed that fraud avoids all judicial acts, ecclesiastical or temporal. Further, no judgment of a court, no order of a minister would be allowed to stand if it has been obtained by fraud. Fraud unravels everything vide Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341., It is well‑settled that writ jurisdiction is discretionary in nature and that the discretion must be exercised equitably for promotion of good faith vide State of Maharashtra v. Prabhu, (1994) 2 SCC 481. The Supreme Court has further emphasized that fraud and collusion vitiate the most solemn precedent in any civilized jurisprudence; and that fraud and justice never dwell together (fraus et jus nunquam cohabitant). Thus, any litigant who is guilty of inhibition before the Court should not bear the fruit and benefit of the Court’s orders. The Supreme Court has also held that fraud is an act of deliberation with a desire to secure something which is otherwise not due. Fraud is practiced with an intention to secure undue advantage. Thus, an act of fraud on courts must be viewed seriously., Fraud can be established when a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, being careless about whether it be true or false. While suppression of a material document would amount to a fraud on the Court, suppression of material facts vital to the decision to be rendered by a court of law is equally serious. Thus, once it is held that there was a fraud in judicial proceedings all advantages gained as a result of it have to be withdrawn. In such an eventuality, the doctrine of res judicata or doctrine of binding precedent would not be attracted since an order obtained by fraud is non est in the eye of law., In K.D. Sharma v. Steel Authority of India Limited, (2008) 12 SCC 481, the Supreme Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim., The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of the Supreme Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play \hide and seek\ or to \pick and choose\ the facts he likes to disclose and to suppress or conceal other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts bearing on the relief sought without any qualification. This is because \the court knows law but not facts\., Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the Rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court., In K. Jayaram v. Bangalore Development Authority, 2021 SCC OnLine SC 1194, a bench of the Supreme Court headed by Justice Nazeer, J. noticed that the appellants therein had not come to the Court with clean hands. The appellants had not disclosed the filing of a suit and its dismissal and also the dismissal of the appeal against the judgment of the Civil Court. The Supreme Court stressed that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject matter of dispute which is within their knowledge in order to check multiplicity of proceedings pertaining to the same subject‑matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement. The Court observed that since the appellants had not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the civil court, the appellants had to be non‑suited on the ground of suppression of material facts. They had not come to the Court with clean hands and they had also abused the process of law, therefore, they were not entitled to the extraordinary, equitable and discretionary relief., A Division Bench of the Supreme Court comprising Justice B. R. Gavai and Justice C. T. Ravikumar, placing reliance on the dictum in S.P. Chengalvaraya Naidu, held in Ram Kumar v. State of Uttar Pradesh, AIR 2022 SC 4705, that a judgment or decree obtained by fraud is to be treated as a nullity., We wish to consider the case from another angle. The order of the Supreme Court of India dated 13.05.2022 is also per incuriam for the reason that it fails to follow the earlier binding judgments of the Supreme Court of India including that of the Constitution Bench in V. Sriharan vis‑vis the appropriate Government which is vested with the power to consider an application for remission as per sub‑section (7) of Section 432 of the Criminal Procedure Code and that of the nine‑Judge Bench decision in Naresh Shridhar Mirajkar that an order of a High Court cannot be set aside in a proceeding under Article 32 of the Constitution., In State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, a two‑Judge Bench of the Supreme Court (speaking through Justice Sahai, who also wrote the concurring judgment along with Justice Thommen) observed that the expression per incuriam means per ignoratium. This principle is an exception to the rule of stare decisis. The quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority. It would result in a judgment or order which is per incuriam., The courts have taken recourse to this principle for relieving from injustice being perpetrated by unjust precedents. It was observed that uniformity and consistency are core of judicial discipline. But, if a decision proceeds contrary to the law declared, it cannot be a binding precedent. It was further observed that the seven‑Judge Bench in Synthetics and Chemicals Ltd. did not discuss the matter and had observed that the State cannot levy sales tax on industrial alcohol. In the subsequent matter which arose from the High Court between the same parties, it was held by the Supreme Court of India that the conclusion of law by the Constitution Bench that no sales or purchase tax could be levied on industrial alcohol was per incuriam and also covered by the rule of sub‑silentio and therefore, was not a binding authority or precedent., Another exception to the rule of precedents is the rule of sub‑silentio. A decision is passed sub‑silentio when the particular point of law in a decision is not perceived by the court or not present to its mind or is not consciously determined by the court and it does not form part of the ratio decidendi; it is not binding vide Amrit Das v. State of Bihar, (2000) 5 SCC 488., One of the contentions raised in the present case was that since the Supreme Court of India in the order dated 13.05.2022 had directed that the State of Gujarat was the appropriate Government, the same was binding on the parties even though it may be contrary to the earlier decisions of the Supreme Court of India. We cannot accept such a submission having regard to what has been observed above in the case of Synthetics and Chemicals Ltd. which was also with regard to the application of the same doctrine between the very same parties inasmuch as when a judgment has been delivered per incuriam or passed sub‑silentio, the same cannot bind either the parties to the judgment or be a binding precedent for the future even between the same parties. Therefore, for this reason also, the order dated 13.05.2022 would not bind the parties thereto and particularly, to the petitioner in Writ Petition (Criminal) No.491 of 2022 who was in any case not a party to the said writ proceeding., Having regard to the above discussion and in light of the provisions of the Criminal Procedure Code, the judgments of the Supreme Court of India and our own understanding of the order dated 13.05.2022 passed by a coordinate Bench of the Supreme Court of India in Writ Petition No.135 of 2022, we hold as follows: (i) that the Government of the State of Gujarat (respondent No.1) had no jurisdiction to entertain the applications for remission or pass the orders of remission on 10.08.2022 in favour of respondent No.3 to 13 as it was not the appropriate Government within the meaning of sub‑section (7) of Section 432 of the Criminal Procedure Code; (ii) that this Court’s order dated 13.05.2022 being vitiated and obtained by fraud is therefore a nullity and non est in law. All proceedings taken pursuant to the said order also stand vitiated and are non est in the eye of law., Point No.3 is accordingly answered.
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Point No.4 asks whether the impugned order of remission passed by the respondent State of Gujarat in favour of respondents Nos.3 to 13 is in accordance with law. We have perused the original record, which is the English translation from Gujarati language., According to the respondent State of Gujarat, Radheshyam Bhagwandas Shah did not make any application seeking remission before the Superintendent, Godhra Sub‑Jail or the State of Gujarat on 01.08.2019. All the other applications were made even prior to the order of this Supreme Court of India in Writ Petition (Criminal) No.135 of 2022 dated 13.05.2022. Within the next few days, i.e., on 26.05.2022, the Jail Advisory Committee gave its opinion recommending grant of remission. The recommendation of the Additional Director General and Inspector General of Jails was received in most cases on 09.06.2022. In two cases, the recommendation was received on 18.08.2021 and 09.06.2021 (in the case of Govind Bhai Akham Bhai Nai (Raval)) and on 18.08.2021 (in the case of Radheshyam Bhagwandas Shah)., The communication of the State Government to the Central Government was made on 28.06.2022; the Union of India gave its concurrence on 11.07.2022; and the order of remission was made on 10.08.2022., We extract one of the orders of remission dated 10.08.2022 in the case of respondent No.3 as follows: Order Number JLK/83202/2978/J Secretariat House, Gandhinagar, Dated 10/08/2022. Reference: (1) Order of the Supreme Court of India dated 13/05/2022, Writ Petition (Criminal) No.135/2022. (2) Letter of the Additional Director General of Police and Inspector General of Prisons, State of Gujarat, Ahmedabad dated 17/06/2022, No. JUD/14 Year/2/4754/2022. (3) Department Circular dated 09/07/1992. (4) Ministry of Home Affairs, Government of India letter dated 11/07/2022, No.15/05/2022/JC‑II. Mr. Radheshyam Bhagwandas Shah filed a writ petition in the Supreme Court of India as per reference (1) and the Supreme Court passed an order to decide the premature release application within two months as per policy in reference (3). The premature release proposal was prepared and sent by the Additional Director General of Police and Inspector General of Prisons as per reference (2). Under Section 432 of the Criminal Procedure Code, the State Government has power for premature release, and Section 435(1)(A) requires consultation with the Central Government when the case is investigated by an agency established by Union Government rules. This case was investigated by the Central Bureau of Investigation, therefore the State Government of Gujarat consulted the Central Government in the letter dated 28/06/2022. The Ministry of Home Affairs gave a positive opinion regarding the release. Accordingly, the life sentence of Mr. Radheshyam Bhagwandas Shah was remitted under the following conditions: (1) He shall furnish surety of two gentlemen and undertake to behave well for two years, not breach public peace, and not harass parties or witnesses. (2) If, after release, he commits a cognizable offence causing grievous hurt to any person or property, he may be re‑arrested and shall serve the remaining part of his sentence. (3) After release, he must attend the nearest police station once a month for one year. The jail authority shall read and explain these conditions to him and keep a written record that he has understood and agreed to them. By order of the Governor of Gujarat, Mayursinh Vaghela, Under Secretary, Home Department., Although we have extracted one remission order, we observe that, having given our categorical finding on Point No.3, it is not necessary to elaborate further on Point No.4. It is evident that the order is a non‑speaking one reflecting a complete lack of application of mind. All orders dated 10.08.2022 are stereotyped and cyclostyled., It is useful to refer to the following judgments concerning the passage of an order of remission under Section 432 read with Section 435 of the Criminal Procedure Code., In V. Sriharan, a Constitution Bench of the Supreme Court of India answered several questions, including: (iii) whether the power under Sections 432 and 433 of the Criminal Procedure Code remains available even after the constitutional powers under Articles 72 and 161 are exercised and the power exercised by this Supreme Court of India under Article 32; (iv) whether the State or the Central Government has primacy under Section 432(7); (v) whether there can be two appropriate Governments under Section 432(7); (vi) whether power under Section 432(1) can be exercised suo motu without following the procedure prescribed under Section 432(2); and (vii) whether the expression ‘consultation’ stipulated in Section 435(1) means concurrence. The Court observed that the procedure under Section 432(2) is mandatory and that suo motu power of remission cannot be exercised under Section 432(1); it can only be initiated by an application of the convicted person as provided under Section 432(2), and the ultimate order should be guided by the opinion of the Presiding Officer of the concerned Court., In Sangeet, the Court held that a convict undergoing a sentence does not have an absolute right to remission, but he has the right to have his case considered for grant of remission, as held in Mahender Singh and Jagdish. The Court noted that there is no detailed decision on the procedure for exercising power under Section 432 of the Criminal Procedure Code, which merely lays down the basic procedure of making an application to the appropriate Government for suspension or remission of a sentence, either by the convict or on his behalf. Sub‑section (1) of Section 432 is an enabling provision to override a judicially pronounced sentence, subject to certain conditions found in the Jail Manual or statutory rules. The appropriate Government must apply its mind to each remission application to avoid discretionary mass release of convicts on festive occasions. The power of remission cannot be exercised arbitrarily; the decision must be well‑informed, reasonable and fair, and the statutory procedure provides a check on possible misuse., In Ram Chander, a writ petition was filed before the Supreme Court of India under Article 32 seeking premature release. The Court, speaking through Justice D.Y. Chandrachud (presently the Chief Justice), considered judicial review of the power of remission and referred to Mohinder Singh, observing that the power of remission cannot be exercised arbitrarily and the decision should be informed, reasonable and fair. The Court relied on Laxman Naskar, which stipulated factors governing grant of remission: (i) whether the offence is an individual act without affecting society at large; (ii) chance of future recurrence; (iii) whether the convict has lost his potentiality to commit crime; (iv) whether there is any fruitful purpose of continued confinement; and (v) socio‑economic condition of the convict’s family. While remission is the exclusive prerogative of the executive, the Court can direct authorities to reconsider the representation of the convict, as in Rajan. The Court emphasized that mechanical or stereotyped reasons are inadequate; the order must contain adequate reasoning considering all relevant factors., In Epuru Sudhakar, a writ petition under Article 32 challenged an order of the Government of Andhra Pradesh granting remission of about seven years of unexpired imprisonment to a convict. The petition alleged that the remission order was illegal because relevant materials were not placed before the Governor and the order was made without application of mind. The power of pardon exercised by the Governor under Article 161 was held to be reviewable as an administrative action. The Court cited Biddle v. Perovich, observing that a pardon is part of the constitutional scheme and must serve the public welfare. The Court affirmed that the prerogative of mercy is reviewable when abused, and that considerations of religion, caste, colour or political loyalty are irrelevant. The Court also noted that there is no specific provision under Articles 72 or 161 for withdrawal of a remission order, but such power may be exercised if new material shows the original decision was based on irrelevant or extraneous information. The order granting remission was set aside and directed to be reconsidered., In Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) 7 SCC 622, the Court stated that an administrative decision may be reviewed on grounds that the authority exceeded its powers, committed an error of law, breached natural justice, reached a decision no reasonable tribunal would have reached, or abused its powers. Accordingly, judicial review of orders of the President or Governor under Articles 72 or 161 is available on grounds such as lack of application of mind, mala fide intent, extraneous considerations, omission of relevant material, or arbitrariness., In Swamy Shraddananda, the Court observed that remission granted mechanically to life convicts without sociological or psychiatric appraisal, and without assessing the effect of early release on society and victims’ families, is improper. The power of executive clemency must consider the impact on the family of victims, society at large, and the precedent set. Each case must be judged on its own facts and circumstances, and the exercise or non‑exercise of remission power is subject to judicial review. A pardon obtained by fraud, mistake, or improper reasons would invite judicial review, and the rule of law remains the overarching justification for such review., In Rajan, the Court held that when a person is convicted on several counts each carrying life imprisonment, premature release is possible only if the competent authority passes a remission order covering all the life sentences awarded to the convict, and this matter must be considered by the competent authority., In Jagdish, a three‑Judge Bench of the Supreme Court of India considered conflicting opinions in State of Haryana v. Balwan (1999) 7 SCC 355 and Mahendar Singh, and State of Haryana v. Bhup Singh (2009) 2 SCC 268, to determine whether the remission policy applicable should be the one in force at the date of conviction or the one in force at the date of consideration for premature release. Referring to decisions such as Gopal Vinayak Godse and Ashok Kumar, the Court emphasized that liberty is a precious right and that rehabilitation and social reconstruction of a life convict are paramount in a welfare State. The Court observed that at the time of considering premature release, authorities should consider factors such as the individual nature of the offence, chance of recurrence, loss of potentiality, purpose of continued confinement, and the socio‑economic condition of the convict’s family. The Court held that the case for remission must be considered based on the policy existing on the date of conviction, and if no liberal policy exists at the time of consideration, the convict should still be given the benefit subject to Section 433‑A of the Criminal Procedure Code., In Swaran Singh v. State of Uttar Pradesh (1998) 4 SCC 75, a three‑Judge Bench of the Supreme Court of India examined the scope of judicial review of a Governor’s order under Article 161. The Governor had granted remission to a legislator convicted of murder without being apprised of material facts such as involvement in other serious cases, rejection of earlier clemency petitions, and unsatisfactory conduct in jail. The Court held that the order was arbitrary and was quashed, directing reconsideration in light of the omitted material. The Court also referred to the Constitution Bench decision in Kehar Singh v. Union of India (1989) 1 SCC 204, which outlined the limited scope of judicial review of orders under Articles 72 and 161, emphasizing that public power must never be exercised arbitrarily or mala fide and that guidelines for fair execution are essential., In Joginder Singh v. State of Punjab (2001) 8 SCC 306, the convicts were sentenced to one year and six months for offences under Sections 324, 325 and 326 read with Section 34 of the Indian Penal Code. After the conviction was confirmed by the High Court of Punjab and Haryana, the convicts were released on remission. The petitioner challenged the remission, arguing that the periods of remission permissible under successive notifications issued between 13.07.1988 and 29.07.1998 were being cumulatively applied, resulting in a total remission of seventeen and a half months, which the Court held to be erroneous. The Court also held that time spent on bail cannot be counted towards remission.
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Supreme Court of India while allowing the appeal of the appellant therein complainant held that the High Court of Gujarat fell in error in holding that the convicts were entitled to the benefit of the period of remission given by the various notifications cumulatively to be counted against the period during which they were out on bail., In Satpal, the order of the Governor granting remission to convicts, in the exercise of power conferred by Article 161 of the Constitution of India read with Section 132 of the Code of Criminal Procedure, was assailed by the brother and widow of the deceased. The primary ground raised before the Supreme Court of India was that the power to grant remission was exercised without application of mind, and that the said power was exercised by the Governor having regard to extraneous considerations and even without the aid and advice of the Government, namely, the concerned Minister. The Supreme Court of India examined the case having regard to the parameters of judicial review in relation to an order granting remission by the Governor. It was noted that the Governor had proceeded to grant remission of sentence without any knowledge as to the period of sentence already served by the convicts and if at all they had undergone any period of imprisonment. An order granting remission would be arbitrary and irrational if passed without knowledge or consideration of material facts., On a reading of the aforesaid judgments, what emerges is that the power to grant remission on an application filed by the convict or on his behalf is ultimately an exercise of discretion by the appropriate Government. It is trite that where there is exercise of legal power coupled with discretion by administrative authorities, the test is whether the authority concerned was acting within the scope of its powers. This would mean that the concerned authority, and in the instant case the appropriate Government, had not only the jurisdiction and authority vested to exercise its powers but exercised its powers in accordance with law, i.e., not in an arbitrary or perverse manner without regard to the actual facts, which would lead to a conclusion in the mind of the Supreme Court of India that there has been an improper exercise of discretion. If there is improper exercise of discretion, it is an instance of an abuse of discretion. Abuse of discretion can occur when the administrative order or exercise of discretion smacks of mala fides, or when it is based on irrelevant consideration by ignoring relevant consideration, or when it is due to a colourable exercise of power; it is unreasonable and there is absence of proportionality. There could also be an abuse of discretion where there is failure to apply discretion owing to mechanical exercise of power, non‑application of mind, acting under dictation, seeking assistance or advice, or any usurpation of power., It is not necessary to dilate upon each of the aforesaid aspects of abuse of discretion in the instant case, as we have observed that the consideration of the impugned orders or manner of exercise of powers is unnecessary, having regard to the answer given by us to Point No.3., However, it would be relevant to refer to one aspect of abuse of discretion, namely, 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. In such a case, the question whether the authority which exercised discretion was competent to do so arises., Applying the said principle to the instant case, we note that having regard to the definition of appropriate Government and the answer given by us to Point No.3, the exercise of discretion and the passing of the impugned orders of remission in the case of respondent Nos.3 to 13 herein was an instance of usurpation of power. It may be that the Supreme Court of India by its order dated 13 May 2022 passed in Writ Petition No.135 of 2022 had directed the first respondent State of Gujarat to consider the case of respondent No.3 under the 1992 Policy of the State of Gujarat, by setting aside the order of the High Court of Gujarat dated 17 July 2019. In the said writ petition, the State of Gujarat had correctly submitted before the Supreme Court of India that the appropriate Government in the instant case was the State of Maharashtra and not the State of Gujarat. The contention was in accordance with the definition of appropriate Government under clause (b) of sub‑section (7) of Section 432 of the Code of Criminal Procedure. However, the contention was rejected by the Supreme Court of India contrary to several judgments of the Supreme Court of India including that of the Constitution Bench in V. Sriharan. The State of Gujarat failed to file a review petition seeking correction of the order of the Supreme Court of India dated 13 May 2022, particularly when we have now held that the said order is a nullity. Complying with the said order can also be said to be an instance of usurpation of power when the provision, namely clause (b) of sub‑section (7) of Section 432, states otherwise., We fail to understand why the State of Gujarat, first respondent herein, did not file a review petition seeking correction of the order dated 13 May 2022 passed by the Supreme Court of India in Writ Petition No.135 of 2022 in the case of respondent No.3 herein. Had the State of Gujarat filed an application seeking review of the said order and impressed upon the Supreme Court of India that it was not the appropriate Government but the State of Maharashtra was the appropriate Government, ensuing litigation would not have arisen at all. In the absence of filing any review petition seeking a correction of the order passed by the Supreme Court of India dated 13 May 2022, the first respondent State of Gujarat has usurped the power of the State of Maharashtra and has passed the impugned orders of remission on the basis of an order of the Supreme Court of India dated 13 May 2022, which, in our view, is a nullity in law., In this regard it is necessary to elaborate on the background to this case and refer to the previous orders passed by the Supreme Court of India as follows: The first order, dated 16 December 2003, referred the matter to the Central Bureau of Investigation for investigation; the second order transferred the trial from the competent Court in Gujarat to the Special Court at Mumbai; and the third order granted compensation to the petitioner in Writ Petition (Criminal) No.491 of 2022. The relevant portions of the aforesaid orders read as under: W.P.(Criminal) No.118 of 2003, dated 16 December 2003, referring matter to the CBI for investigation. Considering the nature of the allegations made, Shri Mukul Rohtagi, learned Additional Solicitor General appearing for the respondents, accepted that further investigation in this case may be done by the CBI, though he did not concede that the Gujarat Police is incompetent to investigate the matter. Hence, the CBI was directed to take over further investigation of this case and report to the Supreme Court of India from time to time, with a report to be filed within eight weeks. Transfer Petition (Criminal) No.192 of 2004, dated 6 August 2004, transferred the trial from the competent Court in Gujarat to the Special Court at Mumbai. It was held that on account of the nature and the allegations of the case, Session Case No.161 of 2004 before the Additional Sessions Judge, Dahod, should be transferred to the Additional Sessions Judge of the Fourth Court of the City Civil Sessions Court, Ahmedabad (CBI Case No. RCZ/S/2004, SCB Mumbai) titled CBI vs. Jaswantbhai Chaturbhai & Others, to any competent Court in Mumbai for trial and disposal. The order was placed before the Chief Justice of the Bombay High Court who shall designate the competent Court as he may deem fit. The transfer petition was accordingly allowed. The order is based on the perceptions of the CBI as recorded in its report and should not be taken as a reflection on the competence or impartiality of the judiciary in the State of Gujarat. Having regard to the peculiar facts of this case, the State of Gujarat shall bear the expenditure of the defence of the accused in accordance with the provisions of Section 304 of the Code of Criminal Procedure. It is made clear that for the purpose of this case the Central Government will appoint the public prosecutor. Criminal Appeal Nos.727‑733 of 2019, order dated 23 April 2019, compensation: The appellant, Bilkis Yakub Rasool, is a victim of riots which occurred in the aftermath of the Godhra train burning incident in the State of Gujarat on 27 February 2002., The appellant, then twenty‑one years old and pregnant, lost all members of her family in the brutal attacks and was repeatedly gang‑raped, and witnessed her three‑and‑a‑half‑year‑old daughter being butchered to death. The appellant is now about forty years of age, without any home, living with her daughter born after the incident, coerced to live a nomadic life as an orphan, and barely sustaining herself on charity of NGOs. The Court held that the appellant deserves adequate compensation. The compensation awarded is Rs 50,00,000 (Rupees fifty lakh only) to be paid by the State Government within two weeks from today, on proper identification. Additionally, the Court directed the State Government to provide the appellant with employment under the State, if she wishes, and to offer her government accommodation at a place of her choice, if she is willing to live in such accommodation. With these directions, the appeals relating to compensation are disposed of. The aforesaid orders clearly indicate why the Supreme Court of India transferred the investigation and trial to the CBI and to the State of Maharashtra respectively., Such being the case, it was the State of Maharashtra which was the appropriate Government which had to consider the appellant for remission vis‑vis respondent Nos.3 to 13 herein. Instead, being unsuccessful before the High Court of Gujarat, respondent No.3 surreptitiously filed the writ petition before the Supreme Court of India seeking a direction to consider his case for remission without disclosing the full and material facts before the Supreme Court of India. Relief was granted by the Supreme Court of India by conferring jurisdiction on State of Gujarat which it did not possess as per Section 432(7) of the Code of Criminal Procedure, in the guise of consideration for remission on the basis of the 09 July 1992 policy, which had also stood cancelled in the year 2013. Taking advantage of the Supreme Court of India's order dated 13 May 2022, all other convicts also sought consideration of their case by the Government of Gujarat for remission even in the absence of any such direction in their cases by the Supreme Court of India. Thus, the State of Gujarat has acted on the basis of the direction issued by the Supreme Court of India but contrary to the letter and spirit of law. We have already said that the State of Gujarat never sought a review of the order of the Supreme Court of India dated 13 May 2022 by bringing to the notice of the Supreme Court of India that it was contrary to Section 432(7) and judgments of the Supreme Court of India., Instead, the State of Gujarat has acted in tandem and was complicit with what the petitioner‑respondent No.3 herein had sought before the Supreme Court of India. This is exactly what the Supreme Court of India apprehended at the previous stages of this case and had intervened on three earlier occasions in the interest of truth and justice by transferring the investigation of the case to the CBI and the trial to the Special Court at Mumbai. But, in our view, when no intervention was called for in the writ petition filed by one of the convicts/respondent No.3 herein, the Supreme Court of India was misled to issue directions contrary to law and on the basis of suppression and misstatements made by respondent No.3 herein. We have held that the order of the Supreme Court of India dated 13 May 2022 is a nullity and non est in the eye of law. Consequently, exercise of discretion by the State of Gujarat is nothing but an instance of usurpation of jurisdiction and an instance of abuse of discretion. If the State of Gujarat had in mind the provisions of law and the judgments of the Supreme Court of India, and had adhered to the rule of law, it would have filed a review petition before the Supreme Court of India by contending that it was not the appropriate Government. By failing to do so, not only are the earlier orders of the Supreme Court of India in the matter vindicated but more importantly, rule of law has been breached in usurping power not vested in it and thereby aiding respondent Nos.3 to 13., Therefore, without going into the manner in which the power of remission has been exercised, we strike down the orders of remission on the ground of usurpation of powers by the State of Gujarat not vested in it. The orders of remission are hence quashed on this ground also., Section 432(2) of the Code of Criminal Procedure provides that when an application is made to the appropriate Government, inter alia, for remission of a sentence, the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion, and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists., Learned Additional Solicitor General Sri S.V. Raju submitted that the expression appropriate Government may require the opinion of the Presiding Judge of the Court indicates that this is not a mandatory requirement, therefore, in the instant case the opinion of the Presiding Judge of the Court by which respondent Nos.3 to 13 were convicted, namely, the Special Judge, Mumbai, was unnecessary. It was further submitted that since the State of Gujarat was considering the applications for remission filed by respondent Nos.3 to 13, the opinion of the local Sessions Judge at Dahod was obtained as a member of the Jail Advisory Committee and there was a positive opinion for grant of remission to respondent Nos.3 to 13 herein., This contention was however refuted by learned counsel Ms. Shobha Gupta by reiterating her submission that the expression may require in sub‑section (2) of Section 432 of the Code of Criminal Procedure ought to be read as shall require. This is evident from the dicta of the Supreme Court of India. In this regard, reliance was placed on certain judgments of the Supreme Court of India which we shall advert to in the first instance as under: (i) In Sangeet, it was observed that before actually exercising the power of remission under Section 432 of the Code of Criminal Procedure, the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case‑by‑case basis and not in a wholesale manner. (ii) Further, in V. Sriharan, it was observed that the declaration of law made by the Supreme Court of India in Sangeet referred to above, is correct and further the procedure to be followed under Section 432(2) of the Code of Criminal Procedure is mandatory. The manner in which the opinion is to be rendered by the Presiding Judge can always be regulated and settled by the concerned High Court and the Supreme Court by stipulating the required procedure to be followed as and when any such application is forwarded by the appropriate Government. Therefore, it was observed that the suo motu power of remission cannot be exercised under Section 432(1) of the Code of Criminal Procedure and it can only be initiated based on an application of the person convicted under Section 432(2) of the Code of Criminal Procedure and the ultimate order of remission should be guided by the opinion to be rendered by the Presiding Officer of the Court concerned. (iii) The Supreme Court of India, in Ram Chander, has specifically dealt with the value of the opinion of the Presiding Judge with reference to paragraph 61 of Sangeet and paragraphs 148 and 149 of V. Sriharan referred to above and observed in paragraphs 25 and 26 as under: 25. In Sriharan (supra) the Court observed that the opinion of the presiding judge shines a light on the nature of the crime that has been committed, the record of the convict, their background and other relevant factors. Crucially, the Court observed that the opinion of the presiding judge would enable the government to take the right decision as to whether or not the sentence should be remitted. Hence, it cannot be said that the opinion of the presiding judge is only a relevant factor, which does not have any determinative effect on the application for remission. The purpose of the procedural safeguard under Section 432(2) of the Code of Criminal Procedure would stand defeated if the opinion of the presiding judge becomes just another factor that may be taken into consideration by the government while deciding the application for remission. It is possible then that the procedure under Section 432(2) would become a mere formality. 26. However, this is not to say that the appropriate government should mechanically follow the opinion of the presiding judge. If the opinion of the presiding judge does not comply with the requirements of Section 432(2) or if the judge does not consider the relevant factors for grant of remission that have been laid down in Laxman Naskar v. Union of India (supra), the government may request the presiding judge to consider the matter afresh., Thus, the consistent view of the Supreme Court of India which emerges is that the expression may has to be interpreted as shall and as a mandatory requirement under sub‑section (2) of Section 432 of the Code of Criminal Procedure. The provision contains sufficient guidelines as to how the opinion must be provided by the Presiding Judge of the Court which has convicted the accused: (i) the opinion must state whether the application for remission should be granted or refused and the reasons must be stated; (ii) the reasons must have a bearing on the facts and circumstances of the case; (iii) the reasons must be in tandem with the record of the trial or such record as exists; (iv) the Presiding Judge of the Court before or by which the conviction was had or confirmed must also forward, along with the statement of such opinion, a certified copy of the record of the trial or such record as exists., Having regard to the requirements which the Presiding Judge must comply with while stating his opinion to the appropriate Government on an application for remission of sentence made by a convict, it cannot be held that the expression may in the said provision is not mandatory nor can it be left to the whims and fancies of the appropriate Government either to seek or not to seek the opinion of the Presiding Judge or the Court before which the conviction had taken place., In the instant case, what is interesting is that when respondent No.3 – Radheshyam Bhagwandas Shah filed his application for remission before the State of Maharashtra pursuant to the order of the Gujarat High Court dated 17 July 2019, the State of Maharashtra sought the opinion of the Special Judge at Mumbai who gave a negative opinion. This was one of the reasons for respondent No.3 to file the Writ Petition (Criminal) No.135 of 2022 before the Supreme Court of India. However, subsequently, when a direction was issued by the Supreme Court of India to the first respondent State of Gujarat to consider the application for remission, the opinion of the local Sessions Court at Dahod was obtained and the opinion of the Special Judge, Mumbai where the trial had taken place was ignored. The Sessions Court at Dahod obviously had not complied with the mandatory requirements noted above under sub‑section (2) of Section 432 of the Code of Criminal Procedure inasmuch as the opinion was not forwarded along with reasons having regard to the record of the trial as no trial had taken place before the Sessions Court, Dahod. Further, the Presiding Judge of the Sessions Court, Dahod also did not forward any certified copy of the record of the trial. Moreover, the learned Sessions Judge at Dahod was also a member of the Jail Advisory Committee., We further observe that the Presiding Judge of the Court before which the conviction happens can never be a Member of the Jail Advisory Committee, inasmuch as he is an independent authority who should give his opinion on the application seeking remission which is a mandatory requirement as per the requirements of sub‑section (2) of Section 432. In the instant case, the opinion given by the District & Sessions Judge at Dahod is vitiated for two reasons: firstly, because he was not the Presiding Judge before which the conviction of respondent Nos.3 to 13 took place; and, secondly, if the Presiding Judge of the Court where the conviction occurred is an independent authority which must be consulted by the appropriate Government then he could not have been a Member of the Jail Advisory Committee as in the instant case., On perusal of the counter affidavit of the respondent – State of Gujarat, it is noted that pursuant to the applications filed by respondent Nos.4 to 13 (respondent No.3 had filed his application before the State of Maharashtra on 1 August 2019) seeking premature release or remission, opinion of the Special Judge (CBI), City Civil & Sessions Court, Greater Mumbai was taken by the State of Gujarat and in respect of all the respondent Nos.3 to 13 the categorical opinion was that having regard to the Government’s Resolution dated 11 April 2008, issued by the State of Maharashtra, said prisoners should not be released prematurely. Had the State of Maharashtra considered the applications of respondent Nos.3 to 13 for remission, this vital opinion of the Presiding Judge of the Court which had convicted them would have carried weight in the mind of the Government of the State of Maharashtra as well as the terms of the Government’s Resolution dated 11 April 2008 which was the applicable policy for remission. In fact, the first respondent, namely, the Government of the State of Gujarat, which usurped the power of the Government of the State of Maharashtra, simply brushed aside the opinion of the Special Judge (CBI), Greater Mumbai. Instead the opinion of the Sessions Judge, Godhra, District Panchmahal within whose jurisdiction the offences had occurred and who was a member of the Jail Advisory Committee was highlighted by Sri S.V. Raju, learned Additional Solicitor General appearing for the State of Gujarat. Although this opinion is also a negative opinion, it is not in accordance with sub‑section (2) of Section 432 of the Code of Criminal Procedure and, therefore, is of no consequence except when viewed as an opinion of one of the members of the Jail Advisory Committee, Dahod Jail., As we have held, in the first place, the first respondent State of Gujarat was not at all the appropriate Government; therefore, the proceedings of the Jail Advisory Committee of Dahod Jail, which had recommended remission, are themselves vitiated and there is no compliance with sub‑section (2) of Section 432 of the Code of Criminal Procedure in the instant case insofar as the said opinion was not considered by the appropriate Government. On that score also, the orders of remission dated 10 August 2022 are vitiated., Learned counsel Mrs. Shobha Gupta contended that respondent Nos.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 said respondents. This aspect of the matter has been lost sight of or ignored while granting the orders of remission and therefore, the orders of remission are vitiated on that score., In response to the above arguments, learned senior counsel Sri Sidharth Luthra, at the outset, submitted that although applications for payment of fine have been filed and are pending consideration before the Supreme Court of India, respondent Nos.3 to 13 have now on their own tendered the fine and the same has been accepted by the Special Court at Mumbai., In this regard, the following judgments were referred to at the bar: (a) In Shantilal vs. State of Madhya Pradesh, (2007) 11 SCC 243, the contention was that the term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non‑payment of fine. This penalty must be undergone by the offender unless it is set aside or remitted in part or in whole, either in appeal or in revision or in other appropriate judicial proceedings or otherwise. However, a term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment for default in payment of fine either because he is unable to pay the amount of fine or refuses to pay such amount. He can always avoid imprisonment in default of payment of fine by paying the amount. It is, therefore, not only the power but the duty of the Court to keep in view the nature of the offence, the circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine. (i) The further question considered was whether a Court of law can order a convict to remain in jail in default of payment of fine. It was observed that even in the absence of a specific provision empowering a Court to order imprisonment in default of payment of fine, such power is implicit and is possessed by a Court administering criminal justice. Reference was made to Sections 40 to 42 and Sections 63 to 70 of the Indian Penal Code as well as Section 30 of the Code of Criminal Procedure which deals with a sentence of imprisonment in default of payment of fine and Section 25 of the General Clauses Act, 1897 which deals with recovery of fine.
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In Sharad Hiru Kolambe vs. State of Maharashtra, (2018) 18 Supreme Court Cases 718 (Sharad Hiru Kolambe), the point for consideration was regarding quantum of fine that was imposed by way of a default sentence in case of non‑payment of fine. It was contended that though the substantive sentence stood remitted and the appellant was directed to be released on completion of fourteen years of actual sentence, the appellant would still be inside till he completes twenty‑four years. This was because the trial court in the said case directed all sentences shall run concurrently, therefore, all default sentences must also run concurrently inter se. It was contended that the default sentences so directed were unconscionable and excessive., Supreme Court of India speaking through Justice Lalit (as the learned Chief Justice then was) observed that if the term of imprisonment in default of payment of fine is a penalty which a person incurs on account of non‑payment of fine and is not a sentence in a strict sense, imposition of such default sentence is completely different and qualitatively distinct from a substantive sentence. Theoretically, if the default sentences awarded in respect of imposition of fine in connection with two or more offences are to be clubbed or directed to run concurrently, there would not be any occasion for the persons so sentenced to deposit the fine in respect of the second or further offences. It would effectively mean imposition of one single or combined sentence of fine. Such an exercise would render the very idea of imposition of fine with a deterrent stipulation while awarding sentence in default of payment of fine to be meaningless. If imposition of fine and prescription of mandatory minimum is designed to achieve a specific purpose, the very objective will get defeated if the default sentences were directed to run concurrently. Therefore, the contention regarding concurrent running of default sentences was rejected. It was observed that there is no power of the Supreme Court of India to order the default sentences to run concurrently but if a prisoner does not pay the fine or refuses to pay the fine then he must undergo the default sentences so imposed., Supreme Court of India speaking through Justice Sathasivam (as the learned Chief Justice then was) held that the term of imprisonment in connection with a fine is not a sentence but a penalty which a person incurs on account of non‑payment of fine. But on the other hand, if a sentence is imposed, an offender must undergo the same unless it is modified or varied in part or whole in the judicial proceedings or by way of remission. The imprisonment order in default of fine stands on a different footing. When such a sentence on default of payment of fine is imposed, the person is required to undergo imprisonment either because he is unable to pay the fine or refuses to do so. The only way he can avoid undergoing imprisonment in default of payment of fine is by paying such amount. The aforesaid dicta would therefore clearly indicate that the sentence of imprisonment awarded to a person for committing an offence is distinct from the imprisonment ordered to be undergone in default of payment of fine. The latter is not a substantive sentence for commission of the offence but is in the nature of a penalty for default in payment of fine., In the instant case, while considering the applications for remission, the Jail Advisory Committee did not take into consideration whether respondent Nos.3 to 13 convicts had tendered the fine which was imposed by the Special Court and affirmed by the Bombay High Court as well as by the Supreme Court of India. Therefore, this is an instance of leaving out a relevant consideration from the gamut of facts which ought to have been considered by the Jail Advisory Committee. Had the respondent State of Gujarat considered the opinion from the Presiding Judge of the Court which had convicted respondent Nos.3 to 13, the aspect regarding non‑payment of fine would have surfaced. In the absence of non‑compliance with the direction to pay fine, there would be a default sentence which would be in the nature of a penalty. The question whether the default sentence or penalty had to be undergone by these respondents was a crucial consideration at the time of recommending remission to the State Government by the Jail Advisory Committee. This aspect of the matter has also not been taken into consideration by the State Government while passing the impugned orders of remission. Realising this, during the pendency of these writ petitions, applications were filed seeking permission to tender the fine amount. However, even before the said applications could be considered and orders passed thereon, the respondent convicts have paid the fine amount and have produced receipts in that regard. This fact would not alter the consideration of the case of respondent Nos.3 to 13 insofar as the fact of payment of fine ought to have been a point which had to be taken into consideration prior to the passing of the orders of remission as there could be no relaxation in the sentence with regard to payment of fine. There can only be reduction in the substantive sentence to be undergone by way of imprisonment for which the application seeking remission is filed. Remission of sentence, which is for 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 are contrary to law and are liable to be quashed on this count as well. In view of the above, the other contentions based on Wednesbury principles do not require consideration in the present case and hence all contentions on the said aspect are left open., We would like to indicate the factors that must be taken into account while entertaining an application for remission under the provisions of the Criminal Procedure Code, which are not exhaustive of the tests which we have discussed above. They can be adumbrated as under: The application for remission under Section 432 of the Criminal Procedure Code 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. A consideration for remission must be by way of an application under Section 432 of the Criminal Procedure Code which has to be made by the convict or on his behalf. In the first instance whether there is compliance of Section 433A of the Criminal Procedure Code must be noted inasmuch as a person serving a life sentence cannot seek remission unless fourteen years of imprisonment has been completed. 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 of the said Section which are highlighted by us, namely, the opinion must state as to whether the application for remission should be granted or refused and for either of the said opinions, the reasons must be stated; the reasons must have a bearing on the facts and circumstances of the case; the opinion must have a nexus to the record of the trial or of such record thereof as exists; the Presiding Judge of the Court before or by which the conviction was had or confirmed, must also forward along with the statement of such opinion granting or refusing remission, a certified copy of the record of the trial or of such record thereof as exists. 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. While considering an application for remission, there cannot be any abuse of discretion. In this regard, it is necessary to bear in mind the following aspects as mentioned in Laxman Naskar, namely, whether the offence is an individual act of crime without affecting the society at large; whether there is any chance of future recurrence of committing crime; whether the convict has lost his potentiality in committing crime; whether there is any fruitful purpose of confining this convict any more; socio‑economic condition of the convict’s family. There has also to be consultation in accordance with Section 435 of the Criminal Procedure Code wherever the same is necessitated. 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 coincidentally be the very judge who may have to render an opinion independently in terms of sub‑section (2) of Section 432 of the Criminal Procedure Code. Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order. 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: that the order has been passed without application of mind; that the order is mala fide; that the order has been passed on extraneous or wholly irrelevant considerations; that relevant materials have been kept out of consideration; that the order suffers from arbitrariness., Summary of Conclusions: On the basis of the aforesaid discussion, we arrive at the following summary of conclusions: We hold that the Writ Petition (Criminal) No.491 of 2022 filed under Article 32 of the Constitution before the Supreme Court of India is maintainable and that it was not mandatory for the petitioner therein to have filed a writ petition under Article 226 of the Constitution before the Gujarat High Court. Since Writ Petition (Criminal) No.491 of 2022 has been filed by one of the victims invoking Article 32 of the Constitution before the Supreme Court of India which has been entertained by us, the question whether the writ petitions filed as public interest litigation assailing the impugned orders of remission dated 10.08.2022 are maintainable is kept open to be raised in any other appropriate case. In view of Section 432(7) read with Section 432(1) and (2) of the Criminal Procedure Code, we hold that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of respondent Nos.3 to 13 herein as it was not the appropriate Government within the meaning of the aforesaid provisions. Hence, the orders of remission dated 10.08.2022 made in favour of respondent Nos.3 to 13 herein are illegal, vitiated and therefore quashed. While holding as above, we also hold that the judgment dated 13.05.2022 passed by the Supreme Court of India is a nullity and is non est in law since the said order was sought by suppression of material facts as well as by misrepresentation of facts (suppressio veri, suggestio falsi) and therefore fraudulently obtained at the hands of the Supreme Court of India. Further, the petitioner in Writ Petition (Criminal) No.491 of 2022 not being a party to the said writ proceeding, the same is not binding on her and she is entitled in law to question the orders of remission dated 10.08.2022 from all angles including the correctness of the order dated 13.05.2022. In addition to the above, the said order, being contrary to the larger bench decisions of the Supreme Court of India (holding that it is the Government of the State within which the offender is sentenced which is the appropriate Government which can consider an application seeking remission of a sentence) is per incuriam and is not a binding precedent. Hence, the impugned orders of remission dated 10.08.2022 are quashed on the above grounds. Without prejudice to the aforesaid conclusions, we further hold that the impugned orders of remission dated 10.08.2022 passed by the respondent State of Gujarat in favour of respondent Nos.3 to 13 are not in accordance with law for the following reasons: 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; consequently, the Policy dated 09.07.1992 of the State of Gujarat was not applicable to the case of respondent Nos.3 to 13 herein; that opinion of the Presiding Judge of the Court before which the conviction of respondent Nos.3 to 13 was made in the instant case i.e. Special Court, Mumbai (Maharashtra) was rendered ineffective by the Government of the State of Gujarat which in any case had no jurisdiction to entertain the plea for remission of respondent Nos.3 to 13; the opinion of the Sessions Judge at Dahod was wholly without jurisdiction as the same was in breach of sub‑section (2) of Section 432; that while considering the applications seeking remission, the Jail Advisory Committee, Dahod and the other authorities had lost sight of the fact that respondent Nos.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., Having declared and held as such, we now move to point No.5. Respondent Nos.4 to 13, who had made applications to the first respondent State of Gujarat seeking remission of their sentences, have been granted remission by the impugned orders dated 10.08.2022, while it is not known whether respondent No.3 had made any application to seek remission to the State of Gujarat as the same is not adverted to in the counter affidavit. The application seeking remission by respondent No.3 before the State of Gujarat has not been brought on record as he had filed his application before the State of Maharashtra. Respondent Nos.3 to 13 have been released pursuant to the orders of remission dated 10.08.2022 and set at liberty. We have now quashed the orders of remission. Since 10.08.2022, respondent Nos.3 to 13 have been the beneficiaries of the orders passed by an incompetent authority inasmuch as the impugned orders are not passed by the appropriate Government within the meaning of Section 432 of the Criminal Procedure Code. So long as the said orders were not set aside, they had carried the stamp of validity and hence till date the impugned orders of remission were deemed to have been valid. Respondent Nos.3 to 13 are out of jail. Since we have quashed the orders of remission, what follows? In our view, the most important constitutional value is personal liberty which is a fundamental right enshrined in Article 21 of the Constitution. It is in fact an inalienable right of man and which can be deprived of or taken away only in accordance with law. That is the quintessence of Article 21. But this is a case where respondent Nos.3 to 13 have been granted liberty and have been released from imprisonment by virtue of the impugned orders of remission dated 10.08.2022 which we have declared and quashed as wholly without jurisdiction and non est. Having quashed the orders of remission made in favour of respondent Nos.3 to 13, should they be sent back to prison? Whether respondent Nos.3 to 13 must have the benefit of their liberty despite obtaining the same from an incompetent authority with the aid of an order of the Supreme Court of India obtained fraudulently and therefore, the same being illegal and carrying a stamp of being a nullity and non est in the eye of law? This has been a delicate question for consideration before us., Learned counsel for the petitioner in Writ Petition (Criminal) No.491 of 2022 has vehemently contended that there being failure of rule of law in the instant case, justice would be done by the Supreme Court of India only when respondent Nos.3 to 13 are returned to prison. They can be granted remission only in accordance with law. On the other hand, respective learned senior counsel and counsel for the respondents Nos.3 to 13 who have appeared have pleaded that they have been enjoying liberty since 10.08.2022 and in spite of there being any error in the orders of remission, although the orders of remission may be quashed, by exercising jurisdiction under Article 142 of the Constitution, these respondents may not be subjected to imprisonment once again and they may remain out of jail as free persons. In other words, their liberty may be protected., We have given our anxious thought to the aforesaid divergent contentions. The primary question that now arises for our consideration is this: when is liberty of a person protected? Article 21 of the Constitution states that no person shall be deprived of his liberty except in accordance with law. Conversely, we think that a person is entitled to protection of his liberty only in accordance with law. When a person’s liberty cannot be violated in breach of a law, can a person’s liberty be protected even in the face of a breach or violation of law? In other words, should rule of law prevail over personal liberty of a person or vice‑versa? Further, should the Supreme Court of India weigh in favour of a person’s freedom and liberty even when it has been established that the same was granted in violation of law? Should the scales of justice tilt against rule of law? In upholding rule of law are we depriving respondent Nos.3 to 13 their right to freedom and liberty? We wish to make it clear that only when rule of law prevails will liberty and all other fundamental rights would prevail under our Constitution including the right to equality and equal protection of law as enshrined in Article 14 thereof. In other words, whether liberty of a person would have any meaning at all under our Constitution in the absence of rule of law or the same being ignored or turned a blind eye? Can rule of law surrender to liberty earned as a consequence of its breach? Can breach of rule of law be ignored in order to protect a person’s liberty that he is not entitled to?, Before we proceed further, we wish to reiterate what the Supreme Court of India has spoken on the concept of rule of law through its various judgments., Rule of law means wherever and whenever the State fails to perform its duties, the Supreme Court of India would step in to ensure that the rule of law prevails over the abuse of the process of law. Such abuse may result from, inter alia, inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and penal statutes. Breach of the rule of law amounts to negation of equality under Article 14 of the Constitution., More importantly, rule of law means no one, howsoever high or low, is above the law; it is the basic rule of governance and democratic polity. It is only through the courts that rule of law unfolds its contours and establishes its concept. The concept of rule of law is closely intertwined with adjudication by courts of law and also with the consequences of decisions taken by courts. Therefore, the judiciary has to carry out its obligations effectively and true to the spirit with which it is sacredly entrusted the task and always in favour of rule of law. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny or judicial review and relief and all these features would lose their significance if the courts do not step in to enforce the rule of law. Thus, the judiciary is the guardian of the rule of law and the central pillar of a democratic State. Therefore, the judiciary has to perform its duties and function effectively and remain true to the spirit with which they are sacredly entrusted to it. In our view, the Supreme Court of India must be a beacon in upholding rule of law failing which it would give rise to an impression that the Supreme Court of India is not serious about rule of law and, therefore, all courts in the country could apply it selectively and thereby lead to a situation where the judiciary is unmindful of rule of law. This would result in a dangerous state of affairs in our democracy and democratic polity., Further, in a democracy where rule of law is its essence, it has to be preserved and enforced particularly by courts of law. Compassion and sympathy have no role to play where rule of law is required to be enforced. If the rule of law has to be preserved as the essence of democracy, it is the duty of the courts to enforce the same without fear or favour, affection or ill‑will., The manner of functioning of the Supreme Court of India in accord with the rule of law has to be dispassionate, objective and analytical. Thus, everyone within the framework of the rule of law must accept the system, render due obedience to orders made and in the event of failure of compliance, the rod of justice must descend down to punish. It is mainly through the power of judicial review conferred on an independent institutional authority such as the High Court or the Supreme Court of India that the rule of law is maintained and every organ of the State is kept within the limits of the law. Thus, those concerned with the rule of law must remain unmindful and unruffled by the ripples caused by it. Rule of law does not mean protection to a fortunate few. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. In the words of Justice Krishna Iyer, the finest hour of the rule of law is when law disciplines life and matches promise with performance. In ADM, Jabalpur vs. Shivakant Shukla, Justice H.R. Khanna in his dissenting judgment said, rule of law is the antithesis of arbitrariness., In this context, it would also be useful to refer to the notion of justice in the present case. It is said that justice should remain loyal to the rule of law. In our view, justice cannot be done without adherence to rule of law. The Supreme Court of India has observed the concept of justice encompasses not just the rights of the convict, but also of the victims of crime as well as of the law‑abiding section of society who look towards the courts as vital instruments for preservation of peace and the curtailment or containment of crime by punishing those who transgress the law. If the convicts can circumvent the consequences of their conviction, peace, tranquility and harmony in society will be reduced to chimera (vide Surya Baksh Singh vs. State of Uttar Pradesh, (2014) 14 Supreme Court Cases 222)., The Supreme Court of India has further observed that the principle of justice is an inbuilt requirement of the justice delivery system and indulgence and laxity on the part of the law courts would be an unauthorized exercise of jurisdiction and thereby put a premium on illegal acts. Courts have to be mindful of not only the spelling of the word justice but also the content of the concept. Courts have to dispense justice and not justice being dispensed with. In fact, the strength and authority of courts in India are because they are involved in dispensing justice. It should be their life aim., The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Justice is supreme and justice ought to be beneficial for society. Law courts exist for society and ought to rise to the occasion to do the needful in the matter. Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the people is the source to invigorate justice intertwined with the efficacy of law. Therefore, it is the primary duty and the highest responsibility of the Supreme Court of India to correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the purity of the fountain of justice and thereby respect rule of law., Article 142 of the Constitution cannot be invoked by the Supreme Court of India in favour of respondent Nos.3 to 13 to allow them to remain out of jail as that would be an instance of the Court’s imprimatur to ignore rule of law and instead aid persons who are beneficiaries of orders which in our view are null and void and therefore non est in the eye of law. Further, we cannot be unmindful of the conduct of respondent Nos.3 to 13, particularly respondent No.3 who has abused the process of law and the court in obtaining remission. In such a situation, arguments with an emotional appeal though may sound attractive become hollow and without substance when placed in juxtaposition with our reasoning on the facts and circumstances of this case. Therefore, in complying with the principles of rule of law which encompasses the principle of equal protection of law as enshrined in Article 14 of the Constitution, we hold that deprivation of liberty vis‑vis respondent Nos.3 to 13 herein is justified in as much as the said respondents have erroneously and contrary to law been set at liberty. One cannot lose sight of the fact that the said respondents were all in prison for a little over fourteen years (with liberal paroles and furloughs granted to them from time to time). They had lost their right to liberty once they were convicted and were imprisoned. But they were released pursuant to the impugned remission orders which have been quashed by us. Consequently, the status quo ante must be restored. We say so for another reason: in the event respondent Nos.3 to 13 are inclined to seek remission in accordance with law, they have to be in prison as they cannot seek remission when on bail or outside the jail., We wish to emphasize that in the instant case rule of law must prevail. If ultimately rule of law is to prevail and the impugned orders of remission are set aside by the Supreme Court of India, then the natural consequences must follow. Therefore, respondent Nos.3 to 13 are directed to report to the concerned jail authorities within two weeks from today., Consequently, we pass the following orders: Writ Petition (Criminal) No.491 of 2022 is allowed in the aforesaid terms. Other writ petitions stand disposed of. Pending applications, if any, stand disposed of. Before parting, we place on record our appreciation of all learned senior counsel, learned Additional Solicitor General and learned counsel appearing for the respective parties for their effective assistance in the matter.
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Parle Products Pvt. Ltd and Another. Plaintiffs/Applicants Future Consumer Ltd and Others. Defendants Mr. Virag Tulzapurkar, Senior Advocate as well as Mr. Hiren Kamod, Mr. Aditya Chitale, Mr. Nishin Shrikhande and Mr. Avinash Belge in behalf of RKD Legal Services LLP for Plaintiffs/Applicants. No counsel for Defendant 1., This is an action for infringement of Plaintiffs copyright combined with a cause of action for passing off. Today, Plaintiffs are pressing for interim reliefs against all Defendants except Defendant No.4., The papers and proceedings in the present Application have been duly served by Plaintiffs upon Defendants (excluding Defendant No.4) on 6th October 2020. Further, the intimation of today's listing and the link of today's hearing has been served by Plaintiffs upon Defendants. Plaintiffs have filed Affidavit of Service dated 9th October 2020 in respect of the above. Despite service, no one is present on behalf of Defendants., It is stated that Plaintiffs are carrying on the business of manufacturing and selling biscuits including but not limited to confectioneries, wafers, cakes etc. Plaintiff No.1 has been recognized as the most chosen fast-moving consumer goods (FMCG) brand since 2010. According to the Nielsen Report for the year 2010 Plaintiff No.1's brand PARLE‑G was certified as the world's largest selling biscuit brand., It is stated that in the years 1939, 1971 and 1996 Plaintiff No.1 began manufacturing and marketing its biscuits under the marks MONACO, KRACKJACK and HIDE & SEEK, respectively. To secure its statutory marks Plaintiff No.1 has applied for and secured trade mark registration in respect of the same under the Trade Marks Act, 1999., It is stated that in or about the months of July 2013, July 2014 and May 2017 Plaintiff No.1 created the latest packaging used in respect of respectively. Photographs of Plaintiffs' MONACO, KRACKJACK and HIDE & SEEK products bearing their respective packaging are at Exhibits C, D and E to the Plaint. The distinctive and essential features of each packaging are mentioned at paragraphs 14, 17 and 20 of the Plaint. It is stated that Plaintiffs' packaging were created / authored by Mr. Mayank Shah, employee of Plaintiff No.1 during his course of employment with Plaintiff and therefore Plaintiff No.1 is the owner of the copyrights subsisting in Plaintiffs' packaging. It is stated that Plaintiff No.2, a wholly owned subsidiary of Plaintiff No.1, has been using Plaintiffs' packaging and marks under a license/permission from Plaintiff No.1., It is stated that since the beginning, Plaintiffs have been openly, continuously and extensively using Plaintiffs' packaging, upon and in respect of their goods in India. It is stated that Plaintiffs have taken efforts to popularize their products bearing Plaintiffs' packaging and have been expending substantial sums of money and efforts towards popularizing Plaintiffs' packaging and promoting sales of the relevant goods in India. Statements of Plaintiffs' annual sales figures and promotional expenses are at paragraph 24 of the Plaint. Plaintiffs' Chartered Accountant's Certificates certifying their annual sales figures and promotional expenses are at Exhibit F‑1 and F‑2 to the Plaint. Copies of representative invoices relating to the sale of Plaintiffs' goods are at Exhibits G‑1 to G‑3, H‑1 to H‑3 and I‑1 to I‑3 to the Plaint. Copies of Plaintiffs' advertisement and promotional material are at Exhibits J‑1 to J‑13, K‑1 to K‑13 and L‑1 to L‑13 to the Plaint. It is stated that Plaintiffs' packaging including the features thereof have become distinctive of Plaintiffs' goods and connote and denote to the members of the general public and trade the goods of Plaintiffs alone and of no one else., It is stated that in the second week of September 2020, Plaintiffs came across Defendants' impugned biscuits bearing the marks CrackO, Kracker King and Peek‑a‑Boo having trade dresses / packaging / labels which are identical with and/or deceptively similar to and/or a substantial reproduction of Plaintiffs' packaging. Photographs of Defendants' impugned products CrackO, Kracker King and Peek‑a‑Boo bearing the impugned packaging are at Exhibits M‑1, M‑2 and M‑3, respectively, to the Plaint. A copy of the cash memo evidencing the sale of all three impugned products in Defendant's Big Bazaar outlet in Vile Parle, Mumbai is at Exhibit N to the Plaint. Comparative tables of the rival products are at paragraph 29 of the Plaint. It is stated that Defendants have intentionally stocked their impugned products on the shelves alongside Plaintiffs' products. Photographs showing the SEEK products bearing Plaintiffs' packaging and Defendants' impugned products CrackO, Kracker King and Peek‑a‑Boo bearing the impugned packaging being displayed / sold by Defendants in their retail outlets are at Exhibits O‑1 to O‑4 to the Plaint., Mr. Tulzapurkar submitted that a bare perusal of Defendants' impugned products bearing the impugned trade dresses / packaging / labels would reveal that Defendants have copied each and every element of Plaintiffs' packaging including the layout, colour combination, placement and all distinctive elements and features of Plaintiffs' packaging to the last millimeter. He submitted that Defendants' impugned trade dresses / packaging / labels are reproductions of Plaintiffs' packaging and/or reproductions of substantial parts thereof. He submitted that Defendants' use of the impugned trade dresses / packaging / labels amounts to infringement of Plaintiffs' copyright and passing off., I have heard the submissions in detail and perused the record. Prima facie it appears that Plaintiffs are the owners of the copyright in Plaintiffs' packaging used in respect of their MONACO, KRACKJACK and HIDE & SEEK products and have acquired substantial goodwill and reputation in the same. Photographs of the rival products are reproduced below: A comparison of the rival products hardly leaves any doubt about the manner in which Defendants have blatantly copied Plaintiffs' packaging / labels. There is no doubt that the rival labels are being used for identical products under nearly identical packaging and trade dresses. The labels / artworks / packaging / trade dresses of Defendants' CrackO, Kracker King and Peek‑a‑Boo products are a reproduction of Plaintiffs' packaging used in respect of their MONACO, KRACKJACK and HIDE & SEEK products and/or reproductions of substantial parts thereof. It is apparent that Defendants must have had Plaintiffs' products before them while designing the impugned packaging. The similarity in the rival packaging/labels cannot be a matter of coincidence., In these circumstances, a strong prima facie case for the grant of interim reliefs is made out. Unless reliefs as prayed for are granted, Plaintiffs are likely to suffer irreparable injury. The balance of convenience is also in favour of Plaintiffs. There are no equities in favour of Defendants. There shall accordingly be an interim order against Defendant Nos.1, 2, 3 and 5 in terms of prayer clauses (a), (b) and (c) of the Interim Application except the bracketed portion, which reads as follows: a) that pending the hearing and final disposal of the suit, Defendants by themselves, their directors, servants, agents, stockists, dealers, distributors, packagers, manufacturers and all persons acting on their behalf be restrained by a temporary order and injunction of this Honourable Bombay High Court from infringing Plaintiffs' copyright in Plaintiffs' packaging shown at Exhibits C, D and E to the Plaint by reproducing, publishing, communicating to the public or using in any manner the impugned packaging shown at Exhibits M‑1, M‑2 and M‑3 to the Plaint, or any other work which is reproduction of Plaintiffs' packaging shown at Exhibits C, D and E to the Plaint or substantial parts thereof or in any other manner whatsoever; b) that pending the hearing and final disposal of the suit, Defendants by themselves, their directors, servants, agents, stockists, dealers, distributors, packagers, manufacturers and all persons acting on their behalf be restrained by a temporary order and injunction of this Honourable Bombay High Court from in any manner using the impugned packaging shown at Exhibits M‑1, M‑2 and M‑3 to the Plaint or any other label or packaging or colour scheme or layout or get‑up or trade dress that is identical with and/or deceptively similar to Plaintiffs' packaging, label, colour scheme, layout, trade dress shown at Exhibits C, D and E to the Plaint or any feature contained therein in respect of biscuits or similar goods so as to pass off their impugned products as and for the products of Plaintiffs in any manner whatsoever; c) that pending the hearing and final disposal of the suit, the Bombay High Court Receiver, or any other fit person be appointed with all powers under Order XL Rule 1 of the Civil Procedure Code, 1908 as the Receiver of Defendants' impugned products bearing the impugned packaging with all powers to enter in the premises of Defendants and/or their directors, servants, agents, dealers, stockists, manufacturers, packagers and distributors at any time of the day or night (even on Sundays and holidays), to seize and take charge, possession and control of the impugned products bearing the impugned packaging (and also to take charge and possession of all other goods, records (printed and electronic), account books showing manufacture, stock and/or sale/export of the impugned goods bearing the impugned packaging) in possession and control of Defendants and/or their directors, agents, servants, distributors, stockists, manufacturers, packagers and/or dealers., Since the Bombay High Court Receiver may not be in a position to travel in view of the COVID‑19 pandemic and the protective measures enforced by the Government, I am appointing Advocate Shrinivas Bobde as the Court Commissioner and as representative of the Court Receiver, Bombay High Court to execute the present order at the common address of Defendant Nos.1 and 2 and such other Big Bazaar retail outlets in Mumbai owned/operated/managed by Defendant Nos.1 and 2, as may be pointed out by the representatives of Plaintiffs during execution of the said proceedings till the next date of hearing. Details of Local Court Commissioner: Defendant No.1 having address at Knowledge House, Shyam Nagar, Jogeshwari (East), Mumbai 400060, Maharashtra, India; Defendant No.2 having address at Knowledge House, Shyam Nagar, Off Jogeshwari‑Vikhroli Link Road, Jogeshwari (East), Mumbai 400060. Advocate Shrinivas Bobde Address: Oval House, Ground Floor, Off Nagindas Master Road, Fort, Mumbai – 400001 Email: shrinivas.s.bobde@gmail.com Mobile No.: 9619846066 Bar Council Registration: 12. Copies of the Bar Council ID cards of Advocate Shrinivas Bobde have been e‑filed by Plaintiffs today. The Court Commissioner shall exercise the following powers which are not exhaustive: (a) Enter the premises at the aforesaid addresses at any time; (b) Break open the locks, should the need arise; (c) Perform the acts as stated in prayer clause (c) as granted above; (d) Prepare site panchanama / report and take signatures of the persons present at the site; (e) Avail requisite police assistance from the concerned local police station; (f) Exercise all necessary powers in furtherance of the above to efficaciously implement this order., The Court Commissioner shall keep the impugned products bearing the impugned labels / artworks / packaging / trade dresses under his seal in the safe custody of Defendants. The Court Commissioner is authorized to seek police assistance, if required and the local police authorities of the concerned police stations shall immediately render all possible assistance as requested by the Court Commissioner including deployment of such number of police personnel as required on production of a digitally signed copy of this order. The Court Commissioner shall submit his report through the Bombay High Court Receiver to this Court on or before 27th November 2020., The fees of the Court Commissioners are fixed at Rupees 30,000 per venue plus out‑of‑pocket expenses. Ground transportation by air‑conditioned car shall be arranged by Plaintiffs. The fees and expenses of the Court Commissioner shall be paid directly to them by Plaintiffs within one week of receiving the invoice., The concerned Senior Police Inspector / Station House Officer / Circle Inspector of the local police station shall extend full cooperation to Court Commissioners on production of an authenticated copy or digitally signed copy of this order., The Advocates for Plaintiffs will lodge the digital copy of this order with the office of the Bombay High Court Receiver within five days of such copy being made available. Upon the same being lodged with the Court Receiver, compliance with Rule 596 of the Bombay High Court (Original Series) Rules is dispensed with., Defendants to file their Affidavit-in-Reply within four weeks. Rejoinder, if any, to be filed within two weeks thereafter., List the above Interim Application for further reliefs on 27th November 2020. Plaintiffs are granted liberty to renew their application for further reliefs on the adjourned date., Liberty to Defendants to apply for variation of this order with 72 hours prior written notice to the Advocates for Plaintiffs., All concerned, including the Bombay High Court Receiver, will act on production by fax or email or printout of a digitally signed copy of this order.
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Leave granted. In these appeals, the appellants have assailed the legality and correctness of the order dated 30 October 2014 passed by the Division Bench of the Gauhati High Court in Writ Petition (Civil) No. 5789 of 2005, whereby the High Court by allowing the writ petition struck down the Assam Rural Health Regulatory Authority Act, 2004 (hereinafter referred to as the Assam Act or the State Act for the sake of brevity) which was enacted by the Assam State Legislature., Brief facts of the case: The facts giving rise to the present appeals and transferred cases, in a nutshell, are that on 18 September 2004, the Assam Legislature enacted the Assam Act. The Act was enacted to provide for the establishment of a regulatory authority in the State of Assam to register the diploma holders in medicine and rural health care (DMRHC), to regulate their practice in medicine in rural areas and to regulate the opening of medical institutions to impart education and training for the course of Diploma in Medicine and Rural Health Care., On 23 June 2005, the Director, Medical Education, State of Assam, published an advertisement in the Assam Tribune inviting applications from eligible candidates seeking admissions in the three‑year course of Diploma in Medicine and Rural Health Care in the Medical Institute, Jorhat, for the session starting in the year 2005., The Indian Medical Association, Assam State Branch, Respondent No. 1 herein, filed a writ petition being W.P. (C) No. 5789 of 2005 under Article 226 of the Constitution of India, before the Gauhati High Court, assailing the validity of the Assam Act and the aforesaid advertisement. During the pendency of the writ petition before the High Court, the appellants herein were admitted in the first year of the three‑year Diploma Course in Medicine and Rural Health Care in the Medical Institute, Jorhat (Jorhat Medical Institute for the sake of convenience) for the sessions 2012‑2013, 2013‑2014 and 2014‑2015 respectively, pursuant to the selection process., Having regard to the fact that the Jorhat Medical Institute was created as envisaged under the State Act, and about four hundred students had been admitted to the diploma course and awarded certificates on having passed the course, the State of Assam made a plea for impleadment of the Regulatory Authority, the Jorhat Medical Institute and the persons who had obtained diploma certificates and had been engaged as Rural Health Practitioners on the basis of such qualification., By the impugned order dated 19 September 2014, the High Court rejected the State’s plea for impleadment of the Regulatory Authority, the Jorhat Medical Institute and the persons who had obtained diploma certificates from the said Institute during the pendency of the writ petition before the High Court., The High Court found that (i) the State had voluntarily assumed the risk of proceeding with the admission process under the State Act even after a challenge was made to the vires of the Act before the High Court; (ii) the absence of a stay on the operation of the State Act was not a valid justification for the State to proceed with admissions, issuance of diploma certificates and appointment of Rural Health Practitioners after the writ petition was filed; and (iii) the writ petition raised only the question of the vires of the State Act, not the consideration of individual interests of the parties sought to be impleaded, therefore there was no reason to implead the Regulatory Authority, the Jorhat Medical Institute and the diploma holders as necessary parties., Further, vide the impugned judgment dated 30 October 2014, the High Court allowed W.P. (C) No. 5789 of 2005 by holding that the Assam Act is unconstitutional and accordingly, the Act was struck down. The relevant findings of the High Court are as follows: (i) The State Act is in conflict with the Central Act i.e., the Indian Medical Council Act, 1956 (hereinafter referred to as the IMC Act, 1956 or Central Act) because Section 10A of the Central Act categorically declares that no medical college shall open a new or higher course of study or training which would enable a student of such course or training to qualify for the award of any recognised medical qualification. (ii) The restrictions under Section 10A(b)(i) of the Central Act envisage an injunction against medical colleges to open a new or higher course; the words “new or higher course” would definitely include the diploma course contemplated under the State Act. (iii) Even for commencement of a diploma course, previous permission of the Central Government is required, which was not obtained in the present case. (iv) The power of the State Legislature to legislate under Entry 25 of List III of the Seventh Schedule of the Constitution of India is very limited and is only in respect of a field unoccupied by a Central Act; the Central Act fully covers the field and places a total restriction on opening a new course in medicine without Central Government permission. (v) It would be bizarre to say that diploma‑holders should practice only in rural areas and not in urban areas, and that they are entitled to treat only certain diseases and prescribe only certain medicines; such restrictions were unworkable in practice. Section 24 of the State Act, which contains these conditions, is the soul of the Act, and striking it down alone would render the rest of the Act meaningless. (vi) Keeping in view the larger interest of health and welfare of society and the lapses committed by the State Legislature in enacting legislation without obtaining necessary approvals from the Central Government, the State Act was liable to be declared unconstitutional and was accordingly struck down., Aggrieved by the impugned judgment, certain persons who were admitted in the first year of the three‑year Diploma Course in Medicine and Rural Health Care in the Jorhat Medical Institute for the sessions 2012‑13, 2013‑14 and 2014‑15, during the pendency of the writ petition before the High Court, have preferred the present appeals., Consequent upon the striking down of the Assam Act, the Assam Legislature passed the Assam Community Professional (Registration and Competency) Act, 2015 (hereinafter the 2015 Act) with a view to remove the basis of the judgment passed by the Division Bench of the Gauhati High Court in the aforesaid writ petition and to restore the position of the diploma holders in medicine and to give them continuity in service. The said Act has been assailed by the diploma holders in Transferred Cases (Civil) Nos. 24 and 25 of 2018 before this Court. In the circumstances, we have heard these cases together and the same are being disposed of by this common judgment., Bird’s Eye View of the Controversy: The controversy in these cases revolves around the legislative competence of the Assam State Legislature to enact the Assam Act which has been assailed by the writ petitioners before the Gauhati High Court on the ground of legislative competence as per Article 246 read with the relevant entries of List I and List III of the Seventh Schedule of the Constitution of India. However, the Gauhati High Court has struck down the Assam Act on the ground of repugnancy as per Article 254 of the Constitution., Submissions: We have heard learned Senior Counsel Mr. Harin P. Raval and learned Senior Counsel Mr. Sanjay Hegde for the appellants‑diploma holders in medicine and learned counsel Mr. Shivam Singh, appearing for the writ petitioner/respondent No. 1 herein namely Indian Medical Association instructed by Mr. Abhinav Singh and learned Additional Solicitor General Mr. K. M. Natraj for the Union of India and learned Senior Counsel Mr. Vikas Singh appearing on behalf of respondent No. 7, Medical Council of India. We have heard Mr. Rana Mukherjee, learned Senior Counsel instructed by Ms. Oindrila Sen appearing on behalf of the petitioners in Transferred Cases (Civil) Nos. 24 and 25 of 2018 and Mr. Ananga Bhattacharyya, learned counsel appearing on behalf of the State of Assam. We have perused the material on record., Learned Senior Counsel Mr. Harin P. Raval, appearing for the appellants, submitted that the impugned judgment proceeds on a misplaced interpretation of the Indian Medical Council Act, particularly Section 10 thereof, and is in the teeth of a three‑judge bench judgment of this Court in Dr. Mukhtiar Chand v. State of Punjab, (1998) 7 SCC 579. The appellants submitted that Section 10A of the Central Act only prescribes that a new course which would qualify a person for the award of a recognised medical qualification requires the permission of the Central Government. The Diploma in Medicine and Rural Health Care is not a medical qualification as defined in Section 2(h) of the Central Act; therefore, no permission of the Central Government was required to start such a diploma course., The appellants further submitted that the award of a recognised medical qualification gives a person the right to be included in the Indian Medical Register under Section 21(1) of the IMC Act. However, as per Section 15 of the Act, for practising medicine in any State, a person has to be enrolled in a State Medical Register as defined in Section 2(k). The impugned Assam Act is such a law and the State Register of Rural Health Practitioners created by virtue of Section 17 of the Act is such a State Medical Register within the meaning of Section 2(k) of the IMC Act, 1956., The appellants argued that the view taken by the High Court that medical practitioners cannot practise allopathic medicine unless they have completed any of the recognised courses under the IMC Act was contrary to the decision in Dr. A. K. Sabhapathy v. State of Kerala, 1992 Supp. 3 SCC 147, which has been overruled by the three‑judge bench in Dr. Mukhtiar Chand. Hence, the High Court’s view is contrary to Dr. Mukhtiar Chand., The appellants refuted the reliance placed by the Medical Council of India on Gujarat University v. Krishna Ranganath Mudholkar, 1963 Supp. (1) SCR 112, wherein it was held that a State legislation can be unconstitutional even if there is no contrary Union legislation, if it effectively impinges on the field reserved for the Union under Entry 66 and infringes upon the Union field. It was contended that only where the State legislation makes it impossible or difficult for Parliament to legislate under Entry 66 of List I can the State law be declared bad., The appellants placed reliance on the judgment of a Constitutional Bench of this Court in R. Chitralekha v. State of Mysore, AIR 1964 SC 1823, wherein it was held that it is only when the State legislation makes it impossible or difficult for Parliament to legislate under Entry 66 of List I, and only if the impact of the State law is so heavy or devastating on Entry 66 as to wipe out or appreciably abridge the Central field of legislation, can it be struck down. The appellants contended that in the present case there is no question of the Assam Act making it impossible or difficult for Parliament to exercise its power for coordination and determination of standards in medical institutions. If Parliament wished, it could easily legislate to say that no person who does not hold qualifications recognised by the IMC Act can practise allopathic medicine. Parliament has not said so and Section 15 of the IMC Act indicates that Parliament recognises that persons enrolled in State Medical Registers under State Acts can practise medicine in the State., The appellants contended that accepting the argument of the Medical Council of India that allopathic medicine can be practised only by MBBS doctors would be contrary to the scheme of the IMC Act and would effectively declare unconstitutional a number of State Acts of various States which have prescribed qualifications other than MBBS to practise medicine., The appellants noted that the Medical Council of India, in the meeting of its Board of Governors at New Delhi on 16 July 2012, along with the Secretary (Health), Ministry of Health & Family Welfare, Government of India, in its proposal for a B.Sc. (Community Health) Programme sought to draw experience from the Assam and Chhattisgarh models of the Diploma Course and sought to affiliate these courses/programs to a University or Regulatory Body. Therefore, the Medical Council of India has itself acknowledged the Assam experience and sought to create a course on the same lines in the interest of public healthcare., The appellants submitted that MBBS doctors prefer not to practise in rural areas and there is an acute shortage of such doctors in rural areas across the country. The Assam Act was brought into force to address this issue; striking it down would be counter‑productive and contrary to the interests of the rural population of Assam., The appellants submitted that, as per the impugned Assam Act, Rural Health Practitioners can only practise in rural areas and that too in a limited manner to treat basic common diseases and to prescribe basic medicines. They submitted that the impugned judgment may be set aside and the Assam Act may be declared a valid piece of legislation., Learned Senior Counsel Mr. Sanjay Hegde drew attention to two judgments of this Court in the case of Dr. Mukhtiar Chand and Subhasis Bakshi to contend that this Court has recognised the practice in allopathic medicine under various enactments and that the said judgments would squarely apply to the facts of this case., Arguments on behalf of Respondent No. 1 Indian Medical Association: Learned counsel Mr. Shivam Singh, appearing for Respondent No. 1, submitted that the Assam Act is repugnant to the provisions of the Indian Medical Council Act, 1956 (IMC Act, 1956). The role of the Central Government in granting permission for commencement of a new or higher course as prescribed under Section 10A(b)(i) of the Central Act cannot be diluted nor given a go‑by. Section 10A(1)(b) of the Central Act requires previous permission of the Central Government before offering a new or higher course of study for obtaining a recognised medical qualification at an already established medical college. For prospective medical colleges, obtainment of previous permission of the Central Government is mandatory regardless of whether the college intends to offer a recognised or a non‑recognised medical qualification., The term “medical college” is not defined in the IMC Act, 1956; therefore reliance must be placed on the definition of “medical institution” in Section 2(e) of the IMC Act. The term “medical college” must be understood in a wide sense to even include those that do not offer a recognised medical qualification., On the strength of the State Act, the Jorhat Medical Institute was established to provide a Diploma Course in Medicine and Rural Healthcare without prior permission of the Central Government, which is an incurable defect. Thus, the setting up of the Jorhat Medical Institute and commencement of the diploma course is contrary to the IMC Act, 1956 and therefore unlawful on the ground that it contravenes Section 10A(1)(a) of the Central Act., Reliance was placed on the decisions of this Court in Chintpurni Medical College & Hospital v. State of Punjab, (2018) 15 SCC 1 and Prof. Yashpal v. State of Chhattisgarh, (2005) 5 SCC 420 to contend that the State Government does not have the power to enact the Assam Act and that the States are denuded of the legislative power to legislate on medical education., The Central Act, namely the IMC Act, 1956, in substance falls under Entry 66 of List I and occupies the entire field insofar as establishment of new medical colleges is concerned, which deals with coordination and determination of standards in medical education. Therefore, the State Legislature is denuded of its power under Entry 25 of List III to enact a law providing for the establishment of a medical college contrary to the provisions of the Central Act., The provisions of the Central Act hold the field of medical education and no medical college or course, including the impugned course, can be commenced without the permission of the Central Government as mandated under Section 10A of the said Act. Also, the doctrine of occupied field would apply. Learned counsel placed reliance on Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu, (1996) 3 SCC 15, wherein it was held that under Section 10A of the Indian Medical Council Act, Parliament has intended to cover the whole field relating to the establishment of new medical colleges in the country and no further scope is left for the operation of any State legislation in the said field., The Assam Act is repugnant to the provisions of the Central Act as no Presidential assent was obtained as required under Article 254 of the Constitution to overcome such repugnancy., Learned counsel for Respondent No. 1 further contended that the students who graduate on completion of the diploma course would be ill‑equipped as doctors and this would pose risk to patients who require quality medical assistance and treatment. It is the fundamental right of the patient to receive quality medical assistance meeting the standards prescribed by the Indian Medical Council or by Parliament, but such quality treatment cannot be provided by those who do not have the requisite qualification as per the standards set by Parliament., One of the restrictions under Section 24 of the Assam Act, that practitioners who graduate in the diploma course would only be allowed to work in rural areas of the State of Assam, was not only unworkable but also in violation of Articles 14 and 21 of the Constitution as equal quality of treatment should be secured for every citizen of the State. The Assam Act discriminates between patients living in rural areas and those living in urban areas, implying that urban patients are entitled to standard treatment and rural patients to sub‑standard treatment., The argument of the appellants that MBBS doctors do not wish to practise in rural areas is completely incorrect and without basis. There are more than 2,244 MBBS doctors working in the rural areas of Assam; even if there is a shortfall, the solution lies in increasing their coverage via permissible means., The State of Assam has consciously and rightly chosen not to challenge the judgment passed by the High Court that struck down the Assam Act and only private individuals are appellants before this Court. The State of Assam has enacted subsequent legislation and has tried to accommodate the ousted diploma holders in different capacities. Merely because the appellants before this Court are aggrieved by their arrangement under the new legislation, it cannot equip them to sustain the present challenge., Learned Senior Counsel Mr. K. M. Natraj appearing for the Union of India has also been heard and will be adverted to later., Submissions on behalf of Respondent No. 7 Medical Council of India: Learned Senior Counsel Mr. Vikas Singh, appearing on behalf of Respondent No. 7, submitted that after the impugned judgment dated 30 October 2014 was passed by the High Court, the State of Assam notified the 2015 Act on 29 May 2015. By virtue of Section 3(2) of the Act, the diploma holders who have completed or are still undergoing the diploma course in Medicine and Rural Health in the State of Assam under the scheme of the Assam Act have been recognised as Community Health Professionals and such professionals have been engaged as paramedical professionals assisting the Medical Officers in the State of Assam. Thereafter, the State of Assam has protected the livelihood of the Rural Health Practitioners by absorbing them as Community Health Professionals under the 2015 Act., The Central Act, i.e., the IMC Act, 1956, relates to Entry 66 of List I of the Seventh Schedule of the Constitution. It is an exhaustive legislation covering all aspects of opening new or higher courses of medicine, teaching and training, recognition of medical qualification, registration of medical practitioners, eligibility criteria for registration in State Medical Register and practice of modern scientific medicine. Thus, the State Legislature is denuded of the power to make any law as the field is already occupied by the Central Act., Section 15(1) of the Central Act prescribes the minimum qualification for registration in the State Medical Register. Thus, medical qualification included in the Schedule of the Central Act is the only recognised medical qualification on the basis of which a person’s name can be entered in the State Medical Register maintained by the State Medical Council. Further, Section 15(2)(b) of the Central Act makes it unequivocally clear that only those persons who are enrolled in the State Medical Register are entitled to practise medicine in any State., Section 2(d) of the State Act read with Section 15 thereof, and the schedule to the Assam Medical Council Act, 1999 (AMC Act, 1999), provide that recognised medical qualification for the purposes of registration in the State Medical Register shall mean only those medical qualifications which have been included in Schedule I to the Central Act of 1956. Thus, a combined reading of Section 2(d), Section 15 and Section 31 of the State Act, read with the schedule to the AMC Act, 1999, makes it unequivocally clear that even the State Legislature of Assam intended that only a person possessing a recognised medical qualification under Schedule I of the Central Act is entitled in law to be entered in the State Medical Register and is allowed to practise modern scientific medicine., The Assam Act of 2004 was also in direct conflict and inconsistent with the AMC Act, 1999. Section 31 of the AMC Act, 1999, prohibits practice of modern scientific medicine by any person except those registered under the State Medical Register maintained by the Assam Medical Council., The provisions of the Central Act, 1956, will prevail over the Assam Act, 2004, as Article 246(2) of the Constitution provides that a law made by the State Legislature on any subject enumerated in List III of the Seventh Schedule is subject to the law made by Parliament under Article 246(1). Thus, Entry 25 of List III, under which the Assam Act, 2004, was enacted, is subject to the law made by Parliament under Entry 66 of List I, i.e., the IMC Act, 1956, which is a Central legislation., Respondent No. 7 placed reliance on Dr. Preeti Srivastava v. State of Madhya Pradesh, (1999) 7 SCC 120, to contend that a State Act cannot lower the standards fixed under the Central Act. In that case it was held that only the Medical Council of India could determine the lowering of standards or norms and the extent of the same. Therefore, the State of Assam does not have the legislative competence and authority to enact the Assam Act, which has the effect of lowering the standards., Respondent No. 7 contended that the judgment in Dr. Mukhtiar Chand was not applicable. In that case it was held that registration in the State Medical Register relating to modern scientific medicine was a sine qua non to enable persons who did not possess a recognised medical qualification to practise modern scientific medicine. It was submitted that even if the name of a diploma holder was included in the State Register of Rural Health Practitioners as provided under the Assam Act, it would not give them the right to practise modern scientific medicine as per Section 15 of the IMC Act, 1956., It was further submitted that medical students are required to undergo rigorous teaching and training during the MBBS course, which is a five‑year course, and only after successful completion can they be eligible to be registered in the Indian Medical Register or the State Medical Register and thereafter become legally entitled to practise medicine and treat patients. Reliance was placed on MCI v. State of Karnataka, (1998) 6 SCC 131, to submit that Rural Health Practitioners were nothing but half‑baked doctors who do not possess the requisite knowledge in the field of medicine and have not received proper training.
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Rural Health Practitioners have limited knowledge and experience and hence cannot be permitted to practice modern scientific medicine and administer medical treatment. It was further submitted that if such diploma holders are permitted to practice modern scientific medicine, they would pose a great threat to society and would degrade the standard of the health care system in the country., Learned counsel Sri Ananga Bhattacharyya made the following submissions on behalf of the State of Assam. The preamble to the Indian Medical Council Act, 1956 discloses that the Act is enacted to provide for the reconstitution of the Medical Council of India and the maintenance of a Medical Register for India and for matters connected therewith. Section 10A of the Act provides that, notwithstanding anything contained in the Act or any other law for the time being in force, no person shall establish a medical college; or no medical college shall open a new or higher course of study or training which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification, except with the previous permission of the Central Government. The permission contemplated in Section 10A is the permission to open a new or higher course of study or training which would enable a student to qualify for the award of any recognised medical qualification. As the Diploma in DMRHC as defined in Section 2(e) of the Assam Act is not akin to a recognised medical qualification referred to in Section 10A of the Indian Medical Council Act, 1956, the Assam Act can certainly co-exist. The powers and functions of rural health practitioners as delineated in Section 24 of the Assam Act show that both legislations can co-exist without any overlapping., A perusal of Regulation 11 framed by the State Authority under the Regulations of Assam Rural Health Regulatory Authority, 2005 reveals that practice of medicine under the scheme of the State Act has a very limited meaning. Similarly, the word surgery has also been assigned a limited scope. Therefore, the underlying purpose is not to encroach upon the field covered by the Central Act but to provide rural health care to needy persons. If there is any incidental encroachment, it cannot have the potential to adjudge the Assam Act as ultra vires., In determining whether an enactment is legislation with respect to a given power, what is relevant is whether, in its pith and substance, it is a law upon the subject matter in question. Reliance was placed on State of Bombay versus F. N. Balsara, All India Reporter 1951 Supreme Court of India 318, wherein it was held that mere incidental encroachment on matters assigned to another legislature does not vitiate the legislation. It was contended that in the instant case the State Legislature has not attempted to encroach upon the field covered by the Indian Medical Council Act, 1956 by offering qualifications envisaged in Section 2(h) read with the First Schedule to the Act. Parliament, even after enacting the Indian Medical Council Act, 1956 left out certain grey areas; thus, the Assam Act attempts to cover the fields left open by Parliament., When one entry is made subject to another entry, it means that out of the scope of the former entry, a field of legislation covered by the latter entry has been reserved to be specifically dealt with by the appropriate legislature. What is covered by the Central Act is recognised medical qualification within the meaning of Section 2(h) of the Act read with the qualifications included in the First Schedule to the Central Act and not Diploma in Rural Health Care and Medicine. Therefore, as long as Parliament does not occupy the field earmarked for it under Entry 66 of List I or by invoking its concurrent powers under Entry 25 of List III, the competence of the State Legislature to regulate and register diploma holders in medicine and rural health care and their practice of medicine in rural areas cannot be questioned., Repugnancy arises when two enactments, both within the competence of two legislatures, collide and when the Constitution expressly or by necessary implication provides that the enactment of one legislature has superiority over the other, then to the extent of repugnancy one supersedes the other. Reliance was placed on Hingir‑Rampur Coal Co. Ltd. versus State of Orissa, All India Reporter 1961 Supreme Court of India 459, wherein this Court observed that when a declaration is made by Parliament that it is expedient in the public interest to take over the field, the test is whether the legislative declaration covers the field. It was submitted on behalf of the State of Assam that a distinction must be drawn between the entries in List I wherein a declaration by Parliament to take over the field is expressed and other entries in List I which do not contain such a declaration. Entry 66 of List I does not contain any such declaration; therefore, it is appropriate to go by the language of Entry 25 of List III, i.e., subject to. Thus, the test is to find out the true nature and character of the State legislation. Any incidental encroachment in the process would not vitiate the State law. Hence, the Assam Act and the Central Act can co-exist within their respective spheres and the provisions of the Assam Act are not repugnant to the provisions of the Central Act, and there is no requirement of complying with the provisions of Article 254(2) of the Constitution of India., Sri Rana Mukherjee, learned Senior Counsel appearing for the petitioners in Transferred Case Nos. 24 and 25 of 2018, drew attention to the relief sought by the petitioners and contended that the status and position of the petitioners, subsequent to the enactment of the 2015 Act, has been adversely altered. The petitioners were imparted medical education under the Assam Act, trained under that Act, and registered as Rural Health Practitioners serving in various states. The State of Assam proceeded to enact the impugned legislation, i.e., the 2015 Act, instead of assailing the judgment of the Gauhati High Court which had struck down the Assam Act, thereby resulting in adverse consequences for the petitioners in these transferred cases. By enactment of the 2015 Act, the petitioners are redesignated as Community Health Officers and their status is downgraded to that of paramedics, whereas under the Assam Act they were registered as Rural Health Practitioners in the State Medical Register. In these circumstances the petitioners have sought continuation of their rights, privileges, status and conditions of service as were provided under the Assam Act. Learned counsel submitted that the case of the petitioners in the transferred cases would be resurrected if this Supreme Court sets aside the judgment of the High Court and restores the Assam Act by allowing the Special Leave Petition filed by similarly situated Rural Health Practitioners in the case of Baharul Islam and others, which is being considered. He further submitted that if this Supreme Court affirms the judgment of the High Court, the vires of the 2015 Act must be considered and the relief sought by the petitioners may be granted. The Senior Counsel also placed reliance on the judgment of this Supreme Court in the case of Association of Medical Superspeciality Aspirants and Residents and Others v. Union of India and Others, (2019) 8 Supreme Court Cases 607, paragraphs 25 and 26, to emphasise the importance of rural health which has to be protected by the State., Points for consideration: Having heard the learned counsel for the respective parties and on perusal of the material on record, the following points arise for consideration: (i) Whether the Assam Act is invalid and null and void on the ground that the Assam State Legislature did not possess legislative competence to enact the Act? (ii) Whether the 2015 Act is ultra vires the Constitution? (iii) What order?, Constitutional scheme: Before proceeding, it is useful to refer to the constitutional scheme relevant to the issues which arise in these cases. For easy and immediate reference, the relevant provisions of the Constitution of India are extracted as follows: Article 246 – Subject matter of laws made by Parliament and by the Legislatures of States. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (the Union List). (2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1), the Legislature of any State also have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (the Concurrent List). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (the State List). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is enumerated in the State List. Article 254 – Inconsistency between laws made by Parliament and laws made by the Legislatures of States. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament shall prevail and the law made by the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to an earlier law made by Parliament or an existing law, then, if the State law has been reserved for the consideration of the President and has received his assent, it shall prevail in that State, provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter., Entry 66 of List I (Union List) – Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Entry 25 of List III (Concurrent List) – Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour., Interpretation of legislative entries: The power to legislate dealt with under Article 246 must be read in conjunction with the entries in the three lists which define the respective areas of legislative competence of the Union and State Legislatures. While interpreting these entries, they should not be viewed narrowly but given the widest scope, especially when the vires of a provision of a statute is assailed. A liberal construction must be given to the entry by looking at the substance of the legislation and not its mere form. In case of an apparent conflict between entries, the Court must attempt to harmonise or reconcile them. Where there is overlapping, the doctrine of pith and substance is applied to find the true character of the enactment and the entry within which it would fall. The doctrine means that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature which enacted it, it cannot be held invalid merely because it incidentally encroaches on matters assigned to another legislature., If there is any conflict between entries in List I and List II, the power of Parliament under List I supersedes when the two powers cannot be reconciled. However, if legislation in pith and substance falls within any entry of List II, the State Legislature’s competence cannot be questioned. According to the pith and substance rule, if a law is in its pith and substance within the competence of the legislature which made it, it will not be invalid because it incidentally touches upon a subject within the competence of another legislature, as held in State of Bombay versus F. N. Balsara, All India Reporter 1951 Supreme Court of India 318., In Atiabari Tea Company Ltd. versus State of Assam, All India Reporter 1961 Supreme Court of India 232, this Court observed that the test of pith and substance is generally applied when a dispute arises as to the legislative competence of the Legislature and it must be resolved by reference to the entries to which the impugned legislation is relatable. When a question of legislative competence is raised, the test is to look at the legislation as a whole and if it has a substantial and not merely a remote connection with the entry, it may be taken to be legislation on the topic, as held in Ujagar Prints versus Union of India, All India Reporter 1989 Supreme Court of India 516., The expression used in Article 246 is with respect to any of the matters enumerated in the respective lists. This indicates the ambit of the power of the respective legislature to legislate as regards the subject matters comprised in the various entries. For instance, where an entry describes an object of tax, all taxable events pertaining to the object are within that field unless specifically provided for elsewhere. Thus, the Court must discover the true character and nature of the legislation while deciding its validity. Applying the doctrine of pith and substance while interpreting the legislative lists, the question is whether an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature which enacted it. If it does, it cannot be held invalid merely because it incidentally encroaches on matters assigned to another legislature., The entries in the legislative lists must receive a liberal construction inspired by a broad and generous spirit and not in a narrow and pedantic manner. The entries are topics or fields of legislation, not sources of legislative power. The expression ‘with respect to’ in Article 246 brings in the doctrine of pith and substance in understanding the exertion of legislative power. Wherever the question of legislative competence is raised, the test is whether the legislation, looked at as a whole, is substantially with respect to the particular topic of legislation. For applying the principle of pith and substance, regard must be had to (i) the enactment as a whole, (ii) its main object, and (iii) the scope and effect of the provision., Once the legislation is found to be with respect to the legislative entry in question, unless there are other constitutional prohibitions, the power would be unfettered and would also extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in that topic, as held in United Provinces versus Atiqa Begum, All India Reporter 1941 Federal Court 16., Another important aspect while construing the entries is that every attempt should be made to harmonise the contents so that interpretation of one entry does not render the entire content of another entry nugatory, as observed in Calcutta Gas Company versus State of West Bengal, All India Reporter 1962 Supreme Court of India 1044. This is especially so when some entries in a different list or the same list may overlap or appear to be in direct conflict; the Court has a duty to reconcile the entries and achieve a harmonious construction., If the Legislature passes a law beyond its legislative competence, it is a nullity ab initio. The legislation is rendered null and void for want of jurisdiction or legislative competence, as held in RMDC versus Union of India, All India Reporter 1957 Supreme Court of India 628., Under the Seventh Schedule, Lists I and II are divided into two groups: one relating to the power to legislate on specified subjects and the other relating to the power to tax. In Hoechst Pharmaceuticals Ltd. versus State of Bihar, All India Reporter 1983 Supreme Court of India 1019, it was held that taxation is a distinct matter for purposes of legislative competence., Having regard to the foregoing discussion, the following approach is adopted for interpretation of the entries of the lists: (i) The entries in the different lists should be read together without giving a narrow meaning to any of them. The powers of the Union and the State Legislatures are expressed in precise terms; therefore, there can be no broader interpretation given to one entry than to another. Even where an entry is worded in wide terms, it cannot be interpreted so as to negate or override another entry or make another entry meaningless. In case of an apparent conflict, the Court must reconcile them. (ii) In case of overlapping, the doctrine of pith and substance must be applied to find the true nature of the legislation and the entry within which it would fall. (iii) Where one entry is made subject to another, it means that out of the scope of the former entry, a field of legislation covered by the latter has been reserved to be specially dealt with by the appropriate legislature. (iv) When one item is general and another specific, the latter will exclude the former on the subject of legislation. If they cannot be fairly reconciled, the power enumerated in List I must give way to List II. (v) On close perusal of the entries, the Constitution divides the topics of legislation into three broad categories: (a) entries enabling laws to be made; (b) entries enabling taxes to be imposed; and (c) entries enabling fees and stamp duties to be collected. Therefore, there cannot be a conflict of taxation power between Union and State., Contentions on behalf of the Union of India: In this context, learned Additional Solicitor General for the Union of India, Sri Natraj, submitted that there is a two‑fold restriction on the field in which the Assam State Legislature can enact a law as far as medical education is concerned. The first restriction is that any State law dealing with medical education must be subject to Entry 66 of List I which deals with coordination and determination of standards. The second restriction is that a State law exercising its concurrent power under Entry 25 of List III must not be repugnant to a Central legislation, and the parameters of Article 254 would apply. He contended that before testing the validity of legislation made under Entry 25 of List III, it is necessary to consider whether the State legislation impinges upon any Central law that falls within the realm of coordination and determination of standards as envisaged in Entry 66 of List I. If it does, the Central law, being within the pith and substance of Entry 66 of List I, would supersede any State law made under Entry 25 of List III. If an enactment does not trench upon the subject mentioned in Entry 66 of List I and a State Legislature enacts such a law within the competence of Entry 25 of List III, the test is whether the State legislation is repugnant to any Central legislation also relatable to Entry 25 of List III. If it is, the State legislation being repugnant would be null and void unless it has received presidential assent as envisaged under sub‑clause (2) of Article 254., Sri Natraj further contended that the Indian Medical Council Act, 1956 is, in pith and substance, within the four corners of Entry 66 of List I and is a Central legislation concerning coordination and determination of standards in medical education applicable throughout the country. Therefore, a State law in direct conflict with the Central law cannot muster constitutionality and must be declared null and void. He argued that a State law within the parameters of Entry 25 of List III is subject to Entry 66 of List I and therefore must yield to the Central law. The learned Additional Solicitor General said that this arrangement points towards federal supremacy under Article 246 of the Constitution., Consequently, according to Sri Natraj, the State law is null and void and has been rightly struck down by the Division Bench of the Gauhati High Court. He, however, contended that the High Court applied the doctrine of repugnancy to strike down the State enactment, which was wholly unnecessary. Though the reasoning may not be appropriate, the conclusion is correct., Interplay between Entry 66 of List I and Entry 25 of List III: Since these appeals concern interpretation of Entry 66 of List I and Entry 25 of List III, it is useful to refer to the following decisions of this Supreme Court, which examine the interplay of the entries: (i) Gujarat University, Ahmedabad versus Shri Krishna Ranganath Mudhoklar, All India Reporter 1963 Supreme Court of India 703, dealt with the fixation of an exclusive medium of instruction in university education and the legislative competence of the State Legislature. The Court held that the power of the State Legislature to legislate with respect to higher scientific and technical education and vocational and technical training of labour is controlled by the five items in List I and List III mentioned in Entry 11 of List II. Items 63 to 66 of List I are carved out of the subject of education and the power to legislate is vested exclusively in Parliament. Therefore, the State Legislature was not competent to legislate in that regard.
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Supreme Court of India considered the question whether, even after the coming into force of the All India Council for Technical Education Act, 1987, which is a Parliamentary enactment, the State Government had the power to grant and withdraw permission to start a technical institution, acting under the Tamil Nadu Private College (Regulation) Act, 1976, and the statutes and ordinances framed thereunder. The facts leading to the controversy were that the Respondent Institution applied to the Government of Tamil Nadu for permission to start a new self‑financing private Engineering College in terms of a Government Memorandum dated 17 April 1984, which permitted private managements to start new Engineering Colleges under the self‑financing scheme without any financial commitment to the Government, but subject to the fulfilment of certain conditions. The State Government by its order of 9 June 1987 granted permission to the Trust to start a private Engineering College under the name and style of Adhiyaman College of Engineering at Hosur in Dharmapuri district, beginning with the academic year 1987‑88. One of the conditions imposed by the Government was that the institution could admit candidates of its choice up to 50 per cent of the approved intake under the management quota, and the remaining 50 per cent of the seats would be allotted by the Director of Technical Education from among the candidates of the approved list prepared for admission to Government and Government‑aided Engineering Colleges. The Government had also stipulated that if any of the conditions imposed by them was not fulfilled, the permission granted to start the College would be withdrawn. In July 1989, the University sent a communication to the Respondent institution informing them that the Syndicate had accepted the report of the High Power Committee appointed by the Government and it resolved to reject the request of the institution for provisional affiliation for 1989‑90 for the first year and also the request for provisional affiliation for second and third year courses for 1989‑90. By way of the said communication, the Respondent was also informed that they should make alternative arrangement to distribute the students already admitted to the academic year 1987‑88 and 1988‑89 among other institutions with adequate facilities. A challenge to the communication and the resolution passed by the Syndicate of the University accepting the report of the High Power Committee appointed by the Government was carried before the High Court, and ultimately became the subject of challenge before the Supreme Court of India. The larger question before the Supreme Court of India in the said case was as regards the conflict between the All India Council for Technical Education Act, 1987 and the Tamil Nadu Private College (Regulation) Act, 1976, in so far as the State Act provided significantly different and more stringent yardsticks to be complied with by technical universities seeking recognition, as compared to the Central enactment., The Supreme Court of India undertook analysis of the scope of Entry 66 of List I and Entry 25 of List III and culled out the following principles. The expression \coordination\ used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It therefore includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would also include power to do all things which are necessary to prevent what would make \coordination\ either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention. To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative. If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of Clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative. Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the centre under Entry 25 of the Concurrent List will have to be determined by the examination of the two laws and will depend upon the facts of each case. When there are more applicants than the available seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the centre or the Central authority to short‑list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law. However, when the seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the central authority, the State authorities act illegally. Adverting to the facts of the said case, the Supreme Court of India ruled that the provisions of the Central statute on the one hand and of the State statutes on the other, being inconsistent and therefore repugnant to each other, the Central statute will prevail and the derecognition by the State Government or the disaffiliation by the State University on grounds which are inconsistent with those enumerated in the Central statute were declared to be inoperative. It was observed that there was no material on record which would demonstrate that the standards laid down by the Central Act are inadequate to ensure that the colleges eligible for recognition as per the Central Act are able to successfully conduct the relevant courses. Hence, it was held that the State Government did not have the discretion to reject permission granted to any technical institution, or derecognise the institution because such institution has failed to satisfy the conditions laid down by the State, which were inconsistent with those enumerated in the Central statute., In Preeti Srivastava versus State of Madhya Pradesh, All India Reporter 1999 Supreme Court 2894, the Supreme Court of India considered the question whether it was open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special category candidates seeking admission to the postgraduate medical courses under the reserved seats category as compared to the general category candidates. The Court observed that both the Union and the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. It was further observed that the State cannot, while controlling education in the State, impinge on standards in institutions for higher education because that is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Since norms for admission can have a direct impact on the standards of education, only such norms or rules may be prescribed which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. By way of illustration, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. Such a rule would be consistent with promoting higher standards for admission to the higher educational courses; but any lowering of the norms laid down can have an adverse effect on the standards of education in the institutes of higher education. It was declared that it is within the legislative competence of the State Legislature, in exercise of power under Entry 25 of the Concurrent List, to prescribe higher educational qualifications and higher marks for admission in addition to the one fixed by the Indian Medical Council in order to bring out the higher qualitative output from the students who pursue medical courses. The following factors were listed, which are non‑exhaustive, which determine the standard of education in an institution: (1) the calibre of the teaching staff; (2) a proper syllabus designed to achieve a high level of education in the given span of time; (3) the student‑teacher ratio; (4) the ratio between the students and the hospital beds available to each student; (5) the calibre of the students admitted to the institution; (6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) adequate accommodation for the college and the attached hospital; and (8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged. The Court concluded that whether lower minimum qualifying marks for the reserved category candidates can be prescribed at the postgraduate level of medical education was a question which must be decided by the Medical Council of India since it affects standards of postgraduate medical education. Even if minimum qualifying marks can be lowered for the reserved category candidates, there cannot be a wide disparity between the minimum qualifying marks for the reserved category candidates and the minimum qualifying marks for the general category candidates at the level of postgraduate education., In Modern Dental College and Research Centre versus State of Madhya Pradesh, (2016) 7 Supreme Court Cases 353, the Supreme Court of India was called upon to adjudicate a challenge to the vires of the Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, read with the Madhya Pradesh Private Medical and Dental Post Graduate Courses Entrance Examination Rules, 2009. The Act and Rules were framed primarily to regulate the admission of students in postgraduate courses in private professional educational institutions and also contained provisions for fixation of fee and reservation of seats in such colleges. The appellants, unaided private medical and dental colleges, challenged those provisions which sought to regulate admission, fixation of fee, reservation and eligibility criteria. The arguments raised by the appellants were founded, inter alia, on the power of the State to enact such legislation. It was argued that the matter of admission in higher educational institutions falls within the purview of Entry 66 of List I to the Seventh Schedule of the Constitution and is not covered under Entry 25 of List III of the Seventh Schedule. The Court undertook an analysis of the scope and ambit of Entry 66 of List I relative to Entry 25 of List III. The Court held that Entry 66 of List I is a specific entry having a very limited scope. It deals with coordination and determination of standards in institutions of higher education or research as well as scientific and technical institutions. Thus, when it comes to prescribing the standards for such institutions of higher learning, exclusive domain is given to the Union. That such coordination and determination of standards, insofar as medical education is concerned, is achieved by Parliamentary legislation in the form of the Medical Council of India Act, 1956 and by creating the statutory body Medical Council of India. With reference to Entry 25 of List III, it was observed that regulating “education” as such, which includes medical education as well as universities, is a matter under the concurrent list. Earlier, education, including university education, was the subject matter of Entry 11 of List II. That power was given to the State Legislatures. However, this entry was omitted by the Constitution (Forty‑second Amendment) Act, 1976 with effect from 3 July 1977 and at the same time Entry 25 of List II was amended. Education, including university education, was thus transferred to the Concurrent List and in the process technical and medical education was also added within the scope of Entry 25 of List II. On a harmonious reading of Entry 66 of List I and Entry 25 of List III, it would become manifest that in matters concerning coordination and laying down of standards in higher education or research and scientific and technical institutions, power rests with the Union/Parliament to the exclusion of the State Legislatures. However, insofar as other facets of education, including technical and medical education, as well as governance of universities are concerned, State Legislatures are vested with power by virtue of Entry 25 of List III of the Seventh Schedule of the Constitution. The field covered by Entry 25 of List III is wide enough and is circumscribed to the limited extent of it being subject to Entries 63, 64, 65 and 66 of List I. Most educational activities, including admissions, have two aspects: the first being the adoption and setting of the minimum standards of education. It is essential to lay down a uniform minimum standard for the nation, with a view to provide a benchmark quality of education being imparted by various educational institutions across the country. To this end, Entry 66 of List I was formulated with the objective of maintaining uniform standards of education in fields of research, higher education and technical education. The second aspect of regulation of education is with regard to the implementation of the standards of education determined by Parliament, and the regulation of the complete activity of education. This activity necessarily entails the application of the standards determined by Parliament in all educational institutions in accordance with the local and regional needs. Therefore, while Entry 66 of List I dealt with determination and coordination of standards, the original Entry 11 of List II granted the States the exclusive power to legislate with respect to all other aspects of education, except the determination of minimum standards and coordination which was in national interest. Subsequently, by the Constitution (Forty‑second Amendment) Act, 1976, the exclusive legislative field of the State Legislature with regard to education was removed and replaced by amending Entry 25 of List III granting concurrent powers to both Parliament and State Legislature to legislate with respect to all other aspects of education, except that which was specifically covered by Entries 63 to 66 of List I., In a concurring judgment, Justice Bhanumati, in paragraphs 131 to 134 and 147 to 149, held as follows. The intent of the Constitution Framers while introducing Entry 66 of the Union List was limited only to empowering the Union to lay down a uniform standard of higher education throughout the country and not to deprive the State Legislature of its entire power to legislate in relation to “education” and organising its own common entrance examination. The entry deals with the maintenance of certain standards in certain classes of institutions, namely institutions imparting higher education, scientific and technical institutions, institutions for research, etc. If different universities set different passing marks for a Bachelor of Arts examination, it would create a chaotic condition and the expression that a candidate should be a graduate would become meaningless. Similarly, research institutes whose results are relied upon by Central and Provincial Governments must maintain normal standards. The words “coordination” and “determination of the standards in higher education” are the preserve of Parliament and are exclusively covered by Entry 66 of the Union List. Coordination means harmonisation with a view to forge a uniform pattern for concerted action. The term “fixing of standards of institutions for higher education” is for the purpose of harmonising coordination of the various institutions for higher education across the country. In the federal structure of India, as there are many States, it is for the Union to coordinate between the States to cause them to work in the field of higher education in their respective States as per the standards determined by the Union. Entry 25 in the Concurrent List is available both to the Centre and the States. However, power of the State is subject to the provisions of Entries 63, 64, 65 and 66 of the Union List; while the State is competent to legislate on education including technical education, medical education and universities, it should be as per the standards set by the Union. The power of the Union under Entry 66 of the Union List is limited to prescribing standards of higher education to bring about uniformity in the level of education imparted throughout the country. It does not extend to laying down the admission process. The State is not denuded of its power to legislate under List III Entry 25, particularly with respect to the admission process in universities imparting higher education. The State, being responsible for welfare and development of the people of the State, ought to take necessary steps for welfare of its student community. The field of “higher education” directly affects the growth and development of the State, and it becomes the prerogative of the State to lay down the procedure for admission and fee governing the institutions running in that particular State, except the centrally funded institutions such as Indian Institutes of Technology, National Institutes of Technology, etc., because no one can be a better judge of the requirements and inequalities of the people of a particular State than that State itself. Only State legislation can create an equal level playing field for the students who are coming out from the State Board and other streams., In Chintpurni Medical College and Hospital versus State of Punjab and Others, All India Reporter 2018 Supreme Court 3119, the Supreme Court of India considered whether a State Government can withdraw an Essentiality Certificate once granted to a medical college and whether such power is ultra vires the Central Act. An essentiality certificate is required to be issued by the State Government within the territory of which the medical college is proposed to be established, certifying the need in the subject state of a medical college. The State Government must certify that it has decided to issue an essentiality certificate for the establishment of a medical college with a specified number of seats in public interest, and that such establishment is feasible. The Court held that the only purpose of the essentiality certificate is to enable the Central Government, acting under Section 10A of the Indian Medical Council Act, 1956, to take an informed decision for permitting the opening or establishment of a new medical college. Once the college is established, its functioning, performance and even the derecognition of its courses are controlled only by the provisions of the Central Act and not any other law. It would therefore be impermissible to allow any authority, including a State Government which merely issues an essentiality certificate, to exercise any power which could have the effect of terminating the existence of a medical college permitted to be established by the Central Government. Regarding the power of Parliament under Entry 66 of List I as juxtaposed with the power of the State Legislatures under Entry 25 of List III, the Court observed that the Indian Medical Council Act, which is legislation under Entry 66 of List I of the Seventh Schedule of the Constitution of India, is a complete code which governs the establishment, functioning, including maintenance of standards of education and even derecognition of medical colleges under Section 19 of the Act. The States are denuded of the legislative power to legislate on medical education under Entry 25 of the Concurrent List since Parliament has exercised its power under Entry 66 and enacted the Indian Medical Council Act., In Tamil Nadu Medical Officers Association versus Union of India, (2021) 6 Supreme Court Cases 568, a Constitution Bench of the Supreme Court of India considered whether, under the scheme of the Constitution of India and the provisions of the Indian Medical Council Act, 1956, read with the Medical Council of India Postgraduate Medical Education Regulations, 2000, a State has the legislative competence to enact legislation to provide for reservation of seats for admission in postgraduate medical courses in favour of medical professionals working in government organisations within the State. The question before the Court pertained to the legislative competence of the States to make reservation for in‑service doctors in the State quota in postgraduate medical degree or diploma courses. The petitioners contended that while coordination and determination of standards in institutions for higher education falls within the exclusive domain of the Union under Entry 66 of List I, medical education is a subject in the Concurrent List, i.e., under Entry 25 of List III. Although Entry 25 of List III is subject to Entry 66 of List I, the State is not denuded of its power to legislate on the manner and method of making admissions to postgraduate medical courses. The petitioners relied on the judgment in Modern Dental College, wherein it was held that Entry 66 of List I is specific and limited in scope and pertains specifically and exclusively to the prescription of standards for higher education and research institutions and does not extend to matters such as conduct of examination, prescribing course fee or admission of students. It was therefore declared that in exercise of powers under Entry 66 of List I, the Union cannot provide for anything with respect to reservation or percentage of reservation and/or mode of admission within the State quota, which powers are conferred upon the States under Entry 25 of List III. Referring to the provisions of the Indian Medical Council Act, 1956 and, more particularly, Section 33 thereof, which provides for the power of the Council to make regulations, the Court held that the provision does not confer any authority to frame regulations with respect to reservation in medical courses. Therefore, in the absence of a Central law governing the field, it would be open to the State Government to make provision for reservation by legislating on the strength of Entry 25 of List III. The Court concluded that Entry 66 of List I is a very specific entry having limited scope and that no provision for reservation for in‑service candidates could be made under the said entry; that power to legislate on such matter is traceable to Entry 25 of List III of the Seventh Schedule of the Constitution. Justice Aniruddha Bose, in a separate but concurring judgment, observed that although the students who would gain admission into the postgraduate courses as part of the in‑service quota may not have been admitted purely based on a uniform order of merit, and this might, to some degree, affect the overall standard of medical education, the term “standards” in Entry 66 of List I must not be construed in such a manner. The phrase “coordination and determination of standards” as appearing in Entry 66 of List I should be construed as the standard of education and other institutional standards which are to be complied with.
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Therefore, it was held that reservation in favour of in‑service candidates would in no way be regulated under Entry 66 of List I. Bearing in mind the aforesaid discussion, we shall proceed to consider the scheme of the legislations relevant to these appeals. The field of legislation covered under Entry 25 of List III is subject to Entries 63, 64, 65 and 66 of List I. It is therefore necessary to dilate on the effect of providing that one Entry or provision is subject to another. As per Black's Law Dictionary, 5th Edition, page 1278, “subject to” means liable, subordinate, subservient, inferior, obedient to, governed or affected by. The following decisions illustrate the above meanings of the phrase subject to: i) In K.R.C.S. Balakrishna Chetty & Sons & Co. vs. The State of Madras, AIR 1961 Supreme Court 1152, this Supreme Court of India observed that the expression subject to has reference to effectuating the intention of the law and the correct meaning of the phrase is “conditional upon”. ii) Similarly, in The South India Corporation (P) Ltd. vs. The Secretary, Board of Revenue Trivandrum and Ors., AIR 1964 Supreme Court 207, this Supreme Court of India observed that the expression “subject to” conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject. This understanding of the phrase subject to has been affirmed in K.T. Plantation (P) Ltd. vs. State of Karnataka, (2011) 9 Supreme Court of India 1. iii) In Ashok Leyland Ltd. vs. State of Tamil Nadu and Anr., (2004) 3 Supreme Court of India 1, the Supreme Court of India held that subject to is an expression whereby limitation is expressed., In the facts of the present case, the Assam Act would be subject to the provisions of the Central Act. This is because the Assam Act is stated to be enacted on the strength of Entry 25 of List III, and the power of the State Legislature under the said Entry is circumscribed to the limited extent of it being subject to Entries 63, 64, 65 and 66 of List I., Where one Entry is made subject to another Entry, it means that out of the scope of the former Entry, a field of legislation covered by the latter Entry has been reserved to be specially dealt with by the appropriate Legislature. In the present context, the field of legislation covered under Entry 25 of List III is subject to Entry 66 of List I. This would imply that out of the scope of Entry 25 of List III, a field of legislation covered by Entry 66 of List I is reserved to be dealt with by the Parliament. Hence, the field covered by the Central Act, enacted under Entry 66 of List I, is carved out of the scope of Entry 25 of List III and is reserved to be dealt with by the Parliament. What is that field of legislation has to be identified. We shall proceed to undertake the said exercise by considering both the Central as well as the State enactments., Indian Medical Council Act, 1956 (Indian Medical Council Act, 1956) (Central law). The relevant provisions of the Indian Medical Council Act, 1956 read as follows: Preamble – An Act to provide for the reconstitution of the Medical Council of India, and the maintenance of a Medical Register for India and for matters connected therewith., 2. Definitions – In this Act, unless the context otherwise requires: (a) “approved institution” means a hospital, health centre or other such institution recognised by a University as an institution in which a person may undergo the training, if any, required by his course of study before the award of any medical qualification to him; (d) Indian Medical Register means the medical register maintained by the Council; (e) medical institution means any institution, within or without India, which grants degrees, diplomas or licences in medicine; (f) medicine means modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery; (h) recognised medical qualification means any of the medical qualifications included in the Schedules; (k) State Medical Register means a register maintained under any law for the time being in force in any State regulating the registration of practitioners of medicine., 10A. Permission for establishment of new medical college, new course of study. (1) Notwithstanding anything contained in this Act or any other law for the time being in force, (a) no person shall establish a medical college; or (b) no medical college shall (i) open a new or higher course of study or training (including a post‑graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or (ii) increase its admission capacity in any course of study or training (including a post‑graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section. Explanation 1 – For the purposes of this section, person includes any University or a trust but does not include the Central Government. Explanation 2 – For the purposes of this section, admission capacity, in relation to any course of study or training (including post‑graduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training., 10B. Non‑recognition of medical qualifications in certain cases. (1) Where any medical college is established except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college shall be a recognised medical qualification for the purposes of this Act. (2) Where any medical college opens a new or higher course of study or training (including a post‑graduate course of study or training) except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college on the basis of such study or training shall be a recognised medical qualification for the purposes of this Act. (3) Where any medical college increases its admission capacity in any course of study or training except with the previous permission of the Central Government in accordance with the provisions of section 10A, no medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act. Explanation – For the purposes of this section, the criteria for identifying a student who has been granted a medical qualification on the basis of such increase in the admission capacity shall be such as may be prescribed., 11. Recognition of medical qualifications granted by Universities or medical institutions in India. (1) The medical qualifications granted by any University or medical institution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of this Act. (2) Any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date., 13. Recognition of medical qualifications granted by certain medical institutions whose qualifications are not included in the First or Second Schedule. (1) The medical qualifications granted by medical institutions in India which are not included in the First Schedule and which are included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act. (2) The medical qualifications granted to a citizen of India (a) before the 15th day of August 1947 by medical institutions in the territories now forming part of Pakistan, and (b) before the 1st day of April 1937 by medical institutions in the territories now forming part of Burma, which are included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act. (3) The medical qualifications granted by medical institutions outside India before such date as the Central Government may, by notification in the Official Gazette, specify which are included in Part II of the Third Schedule shall also be recognised medical qualifications for the purposes of this Act, but no person possessing any such qualification shall be entitled to enrolment on any State Medical Register unless he is a citizen of India and has undergone such practical training after obtaining that qualification as may be required by the rules or regulations in force in the country granting the qualification, or if he has not undergone any practical training in that country he has undergone such practical training as may be prescribed., 15. Right of persons possessing qualifications in the Schedules to be enrolled. (1) Subject to the other provisions contained in this Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register. (2) Save as provided in section 25, no person other than a medical practitioner enrolled on a State Medical Register, (a) shall hold office as physician or surgeon or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority; (b) shall practise medicine in any State; (c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner; (d) shall be entitled to give evidence at any inquest or in any court of law as an expert under section 45 of the Indian Evidence Act, 1872 on any matter relating to medicine. (3) Any person who acts in contravention of any provision of sub‑section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both., 19A. Minimum standards of medical education. (1) The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than post‑graduate medical qualifications) by Universities or medical institutions in India. (2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or any amendment thereof to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid. (3) The Committee shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit., 21. The Indian Medical Register. (1) The Council shall cause to be maintained in the prescribed manner a register of medical practitioners to be known as the Indian Medical Register, which shall contain the names of all persons who are for the time being enrolled on any State Medical Register and who possess any of the recognised medical qualifications. (2) It shall be the duty of the Registrar of the Council to keep the Indian Medical Register in accordance with the provisions of this Act and of any orders made by the Council, and from time to time to revise the register and publish it in the Gazette of India and in such other manner as may be prescribed. (3) Such register shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872 and may be proved by a copy published in the Gazette of India., 22. Supply of copies of the State Medical Registers. Each State Medical Council shall supply to the Council six printed copies of the State Medical Register as soon as may be after the commencement of this Act and subsequently after the first day of April of each year, and each Registrar of a State Medical Council shall inform the Council without delay of all additions to and other amendments in the State Medical Register made from time to time., 23. Registration in the Indian Medical Register. The Registrar of the Council may, on receipt of the report of registration of a person in a State Medical Register or on application made in the prescribed manner by any such person, enter his name in the Indian Medical Register, provided that the Registrar is satisfied that the person concerned possesses a recognised medical qualification., On a conjoint reading of the aforesaid provisions, it is noted that the Indian Medical Council Act, 1956 is an Act which repealed the erstwhile Act of 1933 with the object of providing for the reconstitution of the Medical Council of India and for the maintenance of a Medical Register for India and for matters connected therewith. There are two significant provisions which require consideration under this Act in the instant case: first is Section 10A and the second is Section 15. However, while considering the aforesaid Sections in detail, it would be worthwhile to refer to other relevant provisions of the Indian Medical Council Act, 1956., From the point of view of opening of a new medical institution as defined under Section 2(e), Section 10A becomes relevant. It begins with a non‑obstante clause and states that notwithstanding anything contained in the Indian Medical Council Act, 1956 or any other law for the time being in force, a) no person shall establish a medical college; or b) no medical college shall i) open a new or higher course of study or training (including a post‑graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or ii) increase its admission capacity in any course of study or training (including a post‑graduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this Section. Explanation 1 and Explanation 2 define the expression person and the expression admission capacity respectively. Although the expression medical institution has been defined in Section 2(e) to mean any institution which grants degrees, diplomas or licences in medicine within or outside India, the expression medical college has not been defined. In our view, the said expressions could be read interchangeably. Section 10A was inserted by the Act of 1993 with effect from 27 August 1992., Thus, a condition precedent has been incorporated by an amendment to the Indian Medical Council Act, 1956 with regard to opening of any medical institution or college in India, namely the seeking of previous permission of the Central Government in accordance with the procedure prescribed under Section 10A. In fact, this position is highlighted on a reading of Section 10B which states that if a medical qualification is granted to any student of a medical college which has been established de hors the provisions of Section 10A, no such qualification shall be recognised under the said Act. The phrase recognised medical qualification is defined in Section 2(h) to mean any of the medical qualifications included in the Schedules. There are three Schedules to the Indian Medical Council Act, 1956. The First Schedule deals with recognised medical qualifications granted by the Universities or Medical Institutions in India. The Second Schedule deals with recognised medical qualifications granted by Medical Institutions outside India while the Third Schedule deals with recognised medical qualifications granted by Medical Institutions not included in the First Schedule., In this context, Sections 11 and 13 are also relevant. Sub‑section (1) of Section 11 states that the medical qualifications granted by any University or Medical Institution in India which is included in the First Schedule shall be recognised medical qualification for the purposes of the Act. Sub‑section (2) of Section 11 is significant as it states that any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date. On the other hand, Section 13(1) states that the medical qualifications granted by Medical Institutions in India which are not included in the First Schedule and which are included in Part I of the Third Schedule shall also be recognised medical qualifications for the purposes of the Act. These are medical qualifications such as Licensed Medical Practitioners in various States of India and erstwhile provinces of India. The Third Schedule is in respect of courses in medicine which were recognised prior to the enforcement of the Indian Medical Council Act, 1956, while the courses conducted by the institutions mentioned in the First Schedule have recognition under the Act., Sections 11 and 13 have a bearing on Section 15 of the Act. Section 15 states that, subject to the other provisions contained in the Act, the medical qualifications included in the Schedules shall be sufficient qualification for enrolment on any State Medical Register. Further, except as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register shall, inter alia, practice medicine in any State or shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner. The expression State Medical Register as per Section 2(k) means a register maintained under any law for the time being in force in any State, regulating the registration of practitioners of medicine. The word medicine is defined in Section 2(f) of the Act to mean modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery. Therefore, unless a person has sufficient qualification recognised under the Schedules to the Act, he or she cannot be enrolled on any State Medical Register. In the absence of any such enrolment, such a person is barred from practicing medicine in any State., Further, all persons who are enrolled in any State Medical Register and who possess any of the recognised medical qualifications are enabled to be enrolled after registration as medical practitioners under the Indian Medical Register. As per sub‑section (2) of Section 21, it is the duty of the Registrar of the Indian Medical Council to keep the Indian Medical Register in accordance with the provisions of the Indian Medical Council Act, 1956, and to from time to time revise the register and publish it in the Gazette of India and in such other manner as may be prescribed. Under Section 22 of the Act, each State Medical Council has to supply to the Indian Medical Council six printed copies of the State Medical Register on the first day of April of each year. On receipt of the report of registration of a person in a State Medical Register or on application made in the prescribed manner by such person, the Registrar shall enter his name in the Indian Medical Register pursuant to Section 23 of the Act. Removal of the names from the Indian Medical Register is dealt with in Section 24, while provisional registration is dealt with in Section 25 and registration of additional qualifications in Section 26. Every person whose name is for the first time being borne in the Indian Medical Register shall be entitled, according to his qualifications, to practice as a medical practitioner in any part of India and to recover, in due course of law, any expenses, charges in respect of medicaments or other appliances, or any fees to which he may be entitled., It may be appropriate at this juncture to dilate on the Assam Rural Health Regulatory Authority Act, 2004. The relevant provisions of the Act are extracted as follows: 2. Definitions – In this Act unless the context otherwise requires: (a) Act means the Assam Rural Health Regulatory Authority Act, 2004; (b) Authority means the Assam Rural Health Regulatory Authority established under Section 3; (c) Certificate means a certificate issued by the Authority under Section 17; (d) Course means the prescribed course of education and training for the Diploma in Medicine and Rural Health Care; (e) Diploma in Medicine and Rural Health Care means the diploma awarded by the Authority on successful completion of the course of Diploma in Medicine and Rural Health Care under the provisions of the Act; (g) Medicine means allopathic medicine but does not include veterinary medicine; (h) Medicine and Rural Health Care means practice of allopathic medicine and health care system in rural areas in the State of Assam; (i) Medical institute means institute established under this Act for imparting medical education both theoretical and practical for the course of Diploma in Medicine and Rural Health Care; (l) Rural areas means areas not included in a Municipal Corporation, a Municipal Board or a Town Committee or any other area notified as urban area; (n) Rural Health Practitioners means a holder of the diploma in Medicine and Rural Health Care who has registered himself as such with the Authority and obtained a certificate and a registration number; (o) State Register of Rural Health Practitioners means the register maintained under Section 17 and the expressions Registered and Registration shall be construed accordingly., 7. Minimum Standard – The Authority may prescribe the minimum standards of the course, the curriculum, the examination etc. in respect of the course and prescribe by regulation the terms, conditions and norms to be fulfilled, facilities to be provided by a Medical Institute for imparting education and training for the course of Diploma in Medicine and Rural Health Care., 8. Permission to open a Medical Institute. (1) Notwithstanding anything contained in this Act or any other law for the time being in force, no person or organisation other than the State Government of Assam shall establish a Medical Institute without (a) the recommendation of the Authority and (b) prior and expressed permission of the State Government. (2) Every person, organisation or trust wanting to start a Medical Institute shall, for the purpose of obtaining permission under sub‑section (1), submit to the State Government a proposal in accordance with the provisions of the Act and the rules framed thereunder, and the State Government shall refer the proposal to the Authority for its scrutiny and recommendations. (3) On receipt of the proposal, the Authority may obtain such other particulars and information as may be considered necessary from the person or the organisation concerned and, if the proposal is defective and does not contain any necessary particular, give a reasonable opportunity to the person or organisation concerned for making a written representation and shall allow the person or organisation to rectify the defects, if any, specified by the Authority. (4) The State Government may, after considering the proposal and the recommendations or observations of the Authority and after obtaining, where necessary, such other particulars as may be considered necessary from the person or organisation concerned, either approve (with such conditions, if any, as may be considered necessary) or disapprove the proposal. (5) The Authority while making its recommendations and the State Government while passing an order, either approving or disapproving the proposal, shall have due regard to the following factors: (a) whether the proposed person or organisation seeking to open a Medical Institute would be in a position to offer the minimum standards of education as prescribed by the Authority; (b) whether the person seeking to establish a Medical Institute has adequate financial resources; (c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the Medical Institute; (d) whether adequate hospital facilities, having regard to the number of students likely to attend the Medical Institute, would be available; (e) whether adequate qualified teaching and non‑teaching staff would be available in the Medical Institute; (f) any other condition as may be prescribed., State Register of Rural Health Practitioners – (1) The Authority shall cause to be maintained in the prescribed manner and form a Register of Diploma Holders in Medicine and Rural Health Care to be known as the State Register of Rural Health Practitioners. (2) It shall be the duty of the Secretary to keep and maintain the State Register of Rural Health Practitioners in accordance with the provisions of this Act and the rules made thereunder. (3) The State Register of Rural Health Practitioners shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872. (4) Every person on successful completion of the course shall be eligible for enrollment in the State Register of Rural Health Practitioners on furnishing to the Secretary proof of such qualification and payment of such fees as may be prescribed. (5) Every person whose name has been enrolled in the State Register of Rural Health Practitioners shall be entitled to a certificate issued by the Authority under the hand and seal of the President and the Secretary, bearing a Registration Number, and shall be eligible to practise medicine and Rural Health Care in rural areas of the State of Assam., 24. Powers and Functions – The Rural Health Practitioners shall be eligible to practise Medicine and Rural Health Care subject to the following conditions: (a) they shall treat only those diseases and carry out those procedures which shall be outlined in the rules; (b) they shall prescribe only those drugs which shall be outlined in the rules; (c) they shall not carry out any surgical procedure, invasion, investigation or treatment, medical termination of pregnancy etc., but shall confine themselves to such medicinal treatment and perform such minor surgery as may be prescribed; (d) they shall practice only in rural areas as defined in the Act; (e) they may issue illness certificates and death certificates; (f) they shall maintain name, address, age, sex, diagnosis and treatment records of all patients treated by them; and (g) they shall not be eligible for employment in hospitals, nursing homes and health establishments located in urban areas as General Duty Physicians involved in patient care in OPD, Emergency and Indoor Services., The Assam Act is an Act to provide for the establishment of a regulatory authority in the State of Assam to regulate and register the Diploma holders in Medicine and Rural Health Care and their practice of medicine in rural areas and also to regulate opening of Medical Institutes for imparting education and training for the course of Diploma in Medicine and Rural Health Care., Section 3 of the Act deals with the establishment of the Assam Rural Health Regulatory Authority (the Authority). The powers and functions of the Authority are enumerated in Section 6, inter alia, to include: (a) to hold, conduct and regulate the examination for the Diploma in Medicine and Rural Health Care including the entrance test for admission into the Medical Institute; (b) to maintain the State Register of Rural Health Practitioners; (c) to lay down the norms and standards for the course, curriculum, facilities for instruction, training assessments and examinations for students undergoing the Diploma in Medicine and Rural Health Care and for the Medical Institute; (d) to provide guidelines for admission of the students to the course.
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The authority shall inspect physical facilities, staff positions, hospital and academic infrastructure of a Medical Institute imparting education and training for Diploma in Medicine and Rural Health Care at the time of starting such an Institute and shall issue a no‑objection certificate after the Institute has completed all formalities and norms, and shall make periodical inspections to judge compliance with any shortcomings pointed out, and to maintain the standard of the Institute., Section 8 deals with opening of a medical institute. Sub‑section (1) of Section 8 states that, notwithstanding anything contained in the Assam Act or any other law for the time in force, no person or organisation other than the State Government of Assam shall establish a Medical Institute without (a) the recommendation of the Authority and (b) prior and expressed permission of the State Government. Sub‑section (2) states that any person, organisation or trust wanting to start a Medical Institute must obtain permission from the State Government by submitting a proposal to the State Government. The State Government shall refer the proposal to the Authority for its scrutiny and recommendations. The Authority may prescribe the minimum standards of the course, the curriculum, the examination, the regulations, the terms and conditions and norms to be fulfilled, and the facilities to be provided by a medical institute for imparting education and training for the Diploma in Medicine and Rural Health Care. The Authority has the power to withdraw recognition when an Institute does not conform to the standards prescribed, by making a reference to that effect to the State Government, and the State Government may, on consideration of an explanation from the concerned Medical Institute and on further enquiry, derecognise the Institute., Section 17 of the Assam Act speaks of the State Register of Rural Health Practitioners. The Authority shall cause to be maintained in the prescribed manner and form a register of Diploma Holders in Medicine and Rural Health Care to be known as the State Register of Rural Health Practitioners. Every person on successful completion of the course, that is, the course of education and training for the Diploma in Medicine and Rural Health Care, shall be eligible for enrolment in the State Register of Rural Health Practitioners on furnishing proof of such qualification and on payment of such fees as may be prescribed. Every person whose name has been enrolled shall be entitled to a certificate issued by the Authority bearing a Registration Number and shall be eligible to practise Medicine and Rural Health Care in rural areas. The Rural Health Practitioners cannot use the word Doctor or Dr. before or after their names, but they may identify themselves as Rural Health Practitioners., Section 21 of the Assam Act states that no person whose name is not enrolled or whose name has been cancelled or removed from the State Register of Rural Health Practitioners shall practise Medicine and Rural Health Care at any place, whether urban or rural, in the State of Assam. Section 24 delineates the powers and functions of Rural Health Practitioners, namely: (a) to treat only those diseases and carry out only those procedures outlined in the rules; (b) to prescribe only those drugs outlined in the rules; (c) not to carry out any surgical procedure, invasion, investigation or treatment, Medical Termination of Pregnancy etc., but to confine themselves to medicinal treatment and perform such minor surgery as may be prescribed; (d) to practise only in rural areas as defined in the Assam Act; (e) to issue only illness certificates and death certificates; (f) to maintain name, address, age, sex, diagnosis and treatment records of all patients treated; (g) not to be employed in hospitals, nursing homes and health establishments located in urban areas as General Duty Physicians involved in patient care in OPD, Emergency and Indoor Services., Section 22 of the Assam Act empowers the State Government to make rules, while regulations may be made by the Authority with the previous approval of the State Government, as per Section 23 of the Act., The Regulations of Assam Rural Health Regulatory Authority, 2005, regarding admission into the Diploma in Medicine and Rural Health Care course in Medical Institutes of the State prescribe minimum standards for institutes offering the diploma. The subjects to be taught are: Anatomy; Physiology and Biochemistry; Community Medicine; Pathology and Microbiology; Pharmacology; Medicine and Paediatrics; Surgery and Orthopaedics; Obstetrics and Gynaecology; Basics of Radiology and Imaging; Basics of Forensic and State Medicine; Basics of Human Genetics; and Basics of Dentistry., Regulation 3 of the 2005 Regulations prescribes the curriculum for the Diploma in Medicine and Rural Health Care. Annexure I lists the diseases that may be treated by a diploma holder, including acute bacterial infections, febrile illnesses, diarrhoea, dysentery, viral infections, malaria, amoebiasis, giardiasis, worm infestations, gastroenteritis, cholera, typhoid fever, vitamin deficiencies, iron deficiency anaemia, malnutrition, upper respiratory infections, acute bronchitis, bronchial asthma, hypertension, heart failure, ischaemic heart disease, peptic ulcer, acute gastritis, viral hepatitis, urinary tract infection, common skin infections, scabies, leprosy, poisoning, trauma, snake bite and animal bite. In children: fever, respiratory infections, diarrhoeal diseases, nutritional deficiencies, anaemia, jaundice, convulsion, measles, chicken pox, asthma, scabies and other common skin infections. They may also provide care in pregnancy, childbirth and the post‑natal period, and family welfare activities. Minor surgical procedures include venepuncture, venesection, application of bandages and dressings, nasogastric intubation, catheterisation, peritoneal tap, normal delivery, repair of small wounds by stitching, drainage of abscess, burn dressing, application of splints in fracture cases, and application of a tourniquet in severe bleeding. The drugs that may be prescribed include antacids, H2 receptor blockers, proton pump inhibitors, sucralfate, antihistamines, antibiotics such as cotrimoxazole, trimethoprim, norfloxacin, quinolones, tetracycline, chloramphenicol, streptomycin, gentamicin, penicillin, cephalosporin, erythromycin, nitrofurantoin, metronidazole, tinidazole; antitubercular drugs such as INH, rifampicin, ethambutol, pyrazinamide, streptomycin; anti‑helminthics such as mebendazole, albendazole, piperazine; antimalarials such as chloroquine, quinine, primaquine, sulfadoxine‑pyrimethamine; anti‑leprosy drugs such as dapsone, rifampicin, clofazimine; topical antifungals; antivirals such as acyclovir; anti‑amoebic agents such as metronidazole, tinidazole, diloxanide furoate, chloroquine; anti‑scabies agents such as benzyl‑benzoate, gamma‑benzene hexachloride; anticholinergic atropine; anti‑emetics; antipyretics and analgesics; laxatives; oral rehydration solutions; haematinics and vitamins; diuretics and antihypertensives; nitroglycerine; sedatives and antiepileptics such as phenobarbitone, diazepam, phenytoin; bronchodilators such as salbutamol, theophylline, aminophylline; corticosteroids; expectorants; uterine stimulants and relaxants; and oral contraceptive pills., A comparative analysis of the provisions of the Indian Medical Council Act, 1956 and the Assam Rural Health Regulatory Authority Act, 2004 shows that the former aims to reconstitute the Medical Council of India and maintain an Indian Medical Register for India, while the latter establishes a regulatory authority in the State of Assam to regulate and register diploma holders in Medicine and Rural Health Care and to regulate the opening of Medical Institutes for imparting education and training for the diploma. The apex authority under the Indian Medical Council Act is the Medical Council of India, whereas under the Assam Act it is the Assam Rural Health Regulatory Authority. The Indian Medical Council Act defines medicine as modern scientific medicine in all its branches, including surgery and obstetrics, but excludes veterinary medicine and surgery. The Assam Act defines medicine as allopathic medicine, also excluding veterinary medicine. The Indian Medical Council Act defines a medical institution as any institution, within or without India, which grants degrees, diplomas or licences in medicine, while the Assam Act defines a medical institution as an institution established under the Act for imparting medical education, both theoretical and practical, for the Diploma in Medicine and Rural Health Care., Under the Indian Medical Council Act, the Council may, with the previous sanction of the Central Government, make regulations to carry out the purposes of the Act, including prescribing courses, periods of study, practical training, subjects of examination, standards of proficiency, standards of staff, equipment, accommodation, training and other facilities for medical education, and conditions of admission to examinations. The Assam Rural Health Regulatory Authority may prescribe the minimum standards of the course, the curriculum, the examination, and by regulation the terms, conditions and norms to be fulfilled, and the facilities to be provided by a Medical Institute for imparting education and training for the Diploma in Medicine and Rural Health Care., Permission for establishment of a new medical institute or college requires, notwithstanding anything contained in this Act or any other law for the time being in force, that no person shall establish a medical college, and no medical college shall open a new or higher course of study or training, including a postgraduate course, which would enable a student to qualify for any recognised medical qualification, without prior permission of the Central Government. Similarly, no person or organisation other than the State Government of Assam shall establish a Medical Institute without the recommendation of the Authority and prior expressed permission of the State Government., The State Register of Rural Health Practitioners shall be maintained in the prescribed manner by the Authority, and the Secretary shall keep and maintain the register in accordance with the provisions of the Act and the rules made thereunder. The register shall be deemed a public document within the meaning of the Indian Evidence Act, 1872, and may be proved by a copy published in the Gazette of India., The Indian Medical Register shall be maintained by the Council in the prescribed manner and shall contain the names of all persons enrolled on any State Medical Register who possess any of the recognised medical qualifications. The Registrar of the Council shall keep the Indian Medical Register in accordance with the Act and any orders made by the Council, and shall revise and publish it in the Gazette of India. Every person whose name is borne on the Indian Medical Register shall be entitled, according to his qualifications, to practise as a medical practitioner in any part of India and to recover expenses and charges in due course of law in respect of such practice., Persons possessing qualifications prescribed under the respective Acts have the right to be enrolled on the State Medical Register. Subject to other provisions of the Act, the medical qualifications included in the Schedules shall be sufficient for enrolment on any State Medical Register. No person other than a medical practitioner enrolled on a State Medical Register shall hold office as physician, surgeon or any other office in a government or any institution maintained by a local or other authority. Such practitioners shall be entitled to sign or authenticate medical or fitness certificates, give evidence as an expert in any Court of Law, and practise medicine in any State, subject to the conditions outlined in the rules., The Rural Health Practitioners shall be eligible to practise Medicine and Rural Health Care subject to the following conditions: (a) they shall treat only those diseases and carry out only those procedures outlined in the rules; (b) they shall prescribe only those drugs outlined in the rules; (c) they shall not carry out any surgical procedure, invasion, investigation or treatment, Medical Termination of Pregnancy etc., but shall confine themselves to medicinal treatment and perform minor surgery as prescribed; (d) they shall practise only in rural areas as defined in the Act; (e) they may issue illness certificates and death certificates; (f) they shall maintain name, address, age, sex, diagnosis and treatment records of all patients; (g) they shall not be eligible for employment in hospitals, nursing homes and health establishments located in urban areas as General Duty Physicians involved in patient care in OPD, Emergency and Indoor Services., A comparative study between the MBBS degree and the Diploma in Medicine and Rural Health Care shows: the MBBS is a Bachelor of Medicine and Bachelor of Surgery, established under the Indian Medical Council Act, 1956, affiliated to a recognised university, and is a medical degree of four and a half years plus one year internship. The Diploma in Medicine and Rural Health Care is established under the Assam Rural Health Regulatory Authority Act, 2004, affiliated to Srimanta Sankaradeva University of Health Sciences, is a medical diploma of three and a half years with six months internship, requires 10+2 Science with a minimum of 60 % eligibility, and follows a syllabus covering anatomy, physiology, biochemistry, microbiology, pathology, pharmacology, community medicine, medicine, obstetrics and gynaecology, ophthalmology, orthopaedics, paediatrics, psychiatry, surgery, dermatology and venereology, forensic medicine and toxicology, anaesthesiology, and internship. Graduates of the diploma are eligible for enrolment in the State Register of Rural Health Practitioners, are posted in sub‑centres and primary health centres in rural areas as Rural Health Practitioners, and may practice medicine, provide primary health care, perform minor surgery, conduct normal deliveries, and issue illness and death certificates, but only in rural areas of Assam., When the provisions of the Assam Act are compared with the corresponding provisions of the Central Act, it is observed that the Central Act operates in the area of modern scientific medicine, including allopathy, whereas the Assam Act seeks to regulate the practice of allopathic medicine in rural areas. Modern scientific medicine is the genus and allopathic medicine is a species of it; this view has been adopted by the Supreme Court of India in A.K. Sabhapathy and Dr. Mukhtiar Chand. Therefore, to be recognised as a practitioner of any branch of modern scientific medicine, including allopathy, a person must obtain the qualifications listed in the Schedules to the Central Act. Section 17 of the Assam Act provides that persons holding a Diploma in Medicine and Rural Health Care shall be registered as Rural Health Practitioners and eligible to practise medicine in rural areas of Assam. However, the Central Act requires that only persons possessing recognised medical qualifications listed in its Schedules may practise allopathic medicine. Section 33 of the Central Act authorises the Council to prescribe courses, periods of study, practical training, subjects, examinations and standards of proficiency. Section 15 of the Central Act, read together with Section 24 of the Assam Act, shows that Rural Health Practitioners are authorised to perform functions identical to those of medical practitioners registered under the Central Act, such as treatment of common illnesses, prescription of certain drugs, performance of minor surgeries and issuance of certificates. This creates a conflict with the legislative competence of the State Legislature under Entry 25 of List III, which is subject to the supremacy of the Union List entries 63, 64, 65 and 66. Consequently, the Assam Act is deemed null and void for lacking legislative competence, and Rural Health Practitioners enlisted under it are considered under‑qualified to perform functions similar to those of medical practitioners registered under the Central Act., The Supreme Court of India considered three decisions relied upon by counsel for the appellants. In Dr. Mukhtiar Chand v. State of Punjab (1998) 7 SCC 579, the controversy concerned the issuance of declarations by the State of Punjab under Rule 2(ee) of the Drugs and Cosmetics Rules, 1945, which defined a registered medical practitioner. The State of Punjab had declared that all vaids and hakims registered under various state Ayurvedic and Unani Practitioners Acts were persons practising the modern system of medicine for the purposes of the Drugs Act. The Court observed that the Indian Medical Council Act, 1956 was enacted to ensure professional standards for practising allopathic medicine, defining medicine as modern scientific medicine in all its branches, including surgery and obstetrics, and excluding veterinary medicine. The Act defines recognised medical qualification as any qualification included in the Schedules to the Act. Section 15 of the Act states that qualifications in the Schedules are sufficient for enrolment in any State Medical Register, and persons holding degrees in integrated courses cannot be registered in any State Medical Register. Amendments added Section 15(2)(b), prohibiting all persons from practising modern scientific medicine in any State except a medical practitioner enrolled in a State Medical Register. The Court explained that there are two types of registration in a State Medical Register (under Section 25 and Section 15(1)) and a separate Indian Medical Register maintained by the Council under Section 21. A person holding a recognised medical qualification cannot be denied registration in any State Medical Register, but a person registered in a State Medical Register cannot be enrolled in the Indian Medical Register unless he possesses a recognised medical qualification. Consequently, a person registered in a State Medical Register may practise allopathic medicine under Section 15(2)(b) of the Indian Medical Council Act, 1956. The Court also clarified the distinction between the First Schedule (recognised qualifications from recognised universities) and the Third Schedule (qualifications attained under pre‑Independence enactments). It noted that Rule 2(ee) of the Drugs Rules was inserted on 14 May 1960, and at that time Section 15 of the Act only required qualifications in the Schedules for enrolment in a State Medical Register, so there was no inconsistency. After the amendment inserting Section 15(2), a medical practitioner enrolled in a State Medical Register could practise modern scientific medicine in any State, while the rights of non‑allopathic doctors to prescribe allopathic drugs under the Drugs Rules were curtailed, though they were not barred from prescribing or administering allopathic drugs sold over the counter for common ailments.
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On a harmonious reading of Section 15 of the Medical Council of India Act, 1956 and Section 17 of the Indian Medicine Central Council Act, 1970, it was observed that there is no scope for a person enrolled in the State Register of Indian Medicine or the Central Register of Indian Medicine to practice modern scientific medicine in any of its branches unless that person is also enrolled in a State Medical Register within the meaning of the Medical Council of India Act, 1956. The right to practice modern scientific medicine or Indian system of medicine cannot be based on the provisions of the Drugs Rules and declarations made thereunder by State Governments., Rule 2(ee)(iii), as effected from 14 May 1960, was held to be valid and did not suffer from a lack of legislative competence. The notifications issued by the State Governments under that rule were not ultra vires and were legal. After sub‑section (2) of Section 15 of the Medical Council of India Act, 1956, occupied the field by the Central Act 24 of 1964 with effect from 16 June 1964, the benefit of the rule and the notifications would be available only in those States where the privilege of the right to practice any system of medicine is conferred by the State law under which practitioners of Indian medicine are registered, which is presently in force., The position with regard to medical practitioners of Indian medicine holding degrees in integrated courses is the same as if any State Act recognises their qualification as sufficient for registration in the State Medical Register; the prohibition contained in Section 15(2)(b) of the Medical Council of India Act, 1956 will not apply. Thus, for modern or allopathic medicine, the provisions of Section 15 of the Medical Council of India Act, 1956 become relevant insofar as Section 15(1) must be fulfilled before a person can be enrolled in any State Medical Register for modern scientific medicine. If such a person does not fulfil the requirement of sub‑section (1) of Section 15, he would not have a recognised medical qualification in modern scientific medicine and cannot be registered in the said Medical Register under the Medical Council of India Act, 1956. Even for those practitioners holding degrees in integrated courses, the State has to recognise their qualifications as sufficient for registration in the State Medical Register; otherwise the prohibition under Section 15(2)(b) would apply to the practice of modern scientific medicine. In such an event, they would not be empowered to prescribe allopathic drugs covered by the Indian Drugs and Cosmetics Act, 1940 and could only prescribe allopathic drugs sold over the counter for common ailments., Subhasis Bakshi v. West Bengal Medical Council, (2003) 9 SCC 269. In this case the appellants, who had completed the diploma course of Community Medical Service from duly recognised institutions in the State of West Bengal and were posted in different parts of the State, assailed the Notification dated 15 October 1980 issued by the Government of West Bengal amending the statute of the State Medical Faculty by introducing Article 6‑F under Part B. A corrigendum rechristened the diploma course as Diploma in Community Medical Service. The appellants complained that although they could treat certain common diseases, they had no right to issue certificates of sickness or death, or prescriptions, as taken away by a Notification dated 21 November 1990. A writ petition filed before the Calcutta High Court was allowed in favour of the appellants, subject to the condition that they would not be allowed to pursue private practice and that their only right was to prescribe medicines and issue certificates; this part of the order became final. The Bengal Medical Council appealed before the Division Bench of the Calcutta High Court. Relying on Dr. A.K. Sabhapathy v. State of Kerala, AIR 1992 SC 1310, wherein it was held that a person can practise allopathic medicine in a State only if he possesses a recognised medical qualification, the Division Bench held that the appellants’ names could not be included in the Medical Register. The Supreme Court of India considered whether the right to issue prescriptions or certificates could be treated as part of the right to treat. It observed that once the right to treat is recognised, the right to prescribe medicine or issue necessary certificates flows from it. Consequently, the order of the Division Bench was set aside and the order of the learned Single Judge was restored, directing the inclusion of the names of all diploma‑holders concerned in the State Medical Register for the limited purpose indicated., Dr. A.K. Sabhapathy v. State of Kerala, AIR 1992 SC 1310. In this case the validity of the first proviso to Section 38 of the Travancore‑Cochin Medical Practitioners Act, 1953 and the order dated 20 September 1978 and a notification dated 13 April 1981 issued by the Government of Kerala were assailed. The Supreme Court of India considered the State law in light of the Medical Council of India Act, 1956 and observed that the expression ‘modern scientific medicine’ in Section 2(f) of the Central Act refers to the allopathic system of medicine and that the provisions of the Central Act relate to practitioners practising that system. The Court noted that after the enactment of the Central Act, Parliament enacted the Indian Medicine Central Council Act, 1970 for Ayurveda, Siddha and Unani, and the Homoeopathy Central Council Act, 1973 for homoeopathic medicine, with similar provisions. The Court held that the State Act covered all systems of medicine—Allopathic, Ayurvedic, Siddha, Unani and Homoeopathic—and dealt with recognition of qualifications, conditions for registration, maintenance of registers and constitution of separate councils. In contrast, the Central Act’s field of operation is restricted to modern scientific (allopathic) medicine, dealing with recognition of medical qualifications, constitution of the Medical Council of India, prescribing minimum standards of medical education, appointment of inspectors, maintaining the Indian Medical Register and enrolment and removal of persons from that register. The Court stated that the Central Act does not deal with registration of medical practitioners in the States; that is governed by State law. Therefore, the Central Act does not lay down an exhaustive code for the subject matter of the State Act, though both enactments overlap to the limited extent of recognition of qualifications for allopathic practice. The Court referred to Section 15(1) of the Central Act and Section 21 of the same Act, observing that a person can practise allopathic medicine in a State or the country only if he possesses a recognised medical qualification. Permitting a person without such qualification would conflict with the Central Act. The first proviso to Section 38 of the State Act, which empowered the State Government to permit a person to practise allopathic medicine without the recognised qualification, was held to be repugnant to Sections 15 and 21 read with Sections 11 and 14 of the Medical Council of India Act, 1956 and therefore void to the extent of such repugnancy. Consequently, practitioners of the allopathic system must be excluded from the scope of the first proviso, which must be confined to systems of medicine other than allopathy. The Supreme Court of India allowed the appeal in part., The following broad areas are covered within the legislative field of coordination and determination of standards under Entry 66 of List I: (i) prescription of medium of instruction, vide Gujarat University, Ahmedabad v. Shri Krishna Ranganath Mudhoklar; (ii) recognition or de‑recognition of an institution imparting medical education by laying down standards for medical education, vide State of Tamil Nadu v. Adhiyaman Educational and Research Institute; Modern Dental College and Research Centre v. State of Madhya Pradesh; Chintpurni Medical College and Hospital v. State of Punjab; (iii) calibre of teaching staff, syllabus, student‑teacher ratio, ratio between students and hospital beds, laboratory facilities, standard of examination, vide Preeti Srivastava v. State of Madhya Pradesh., The Assam Community Professional (Registration and Competency) Act, 2015, enacted by the State Legislature under Entry 25 of List III, seeks to introduce a new course in the field of medical education and to regulate the profession of candidates successfully completing the course. The Act vests a Regulatory Authority with the power to prescribe minimum standards of the course, duration of the allopathic medicine curriculum, examinations, and to authorise the State Government to grant permission for opening a medical institute. Prescription of minimum standards for medical education and authority to recognise or de‑recognise an institution are areas over which exclusive legislative competence lies with Parliament under Entry 66 of List I. Therefore, the Assam Act, which seeks to regulate such aspects, is liable to be set aside for lack of State competence., Section 2 of the Assam Act defines: (a) “Act” means the Assam Community Health Professionals (Registration and Competency) Act, 2015; (b) “Certificate” means a Certificate of Registration issued by the Director of Medical Education, Research and Training, Assam under section 3 of this Act; (c) “Community Health Professionals” means persons registered as such by the Director and issued a Certificate of Registration in accordance with section 3; (d) “Course” means the prescribed paramedical course of B.Sc (Community Health) approved by the Union Cabinet, conveyed vide Government of India letter No. DO No. V 11025/40/2009/MEP‑1 dated 31 December 2013., Every student who successfully completes the Course from any institution permitted by the Government of Assam shall be registered by the Director at the Directorate of Medical Education, Assam, Guwahati and shall be issued a Certificate of Registration as Community Health Professional. Students who had already completed or were undergoing the Diploma in Medicine and Rural Health Care (DMRHC) course in the Medical Institute, Jorhat, on the commencement date of this Act shall be deemed to have completed or be undergoing the B.Sc (Community Health) course for the purposes of this Act and shall acquire the same status as B.Sc (Community Health) graduates, being registered by the Director and issued a Certificate of Registration as Community Health Professionals. The Certificate of Registration for such students shall be deemed to have been issued with effect from the date of issue of their respective diplomas., The Supreme Court of India in Indian Aluminium Company Co. v. State of Kerala, AIR 1996 SC 1431, laid down principles regarding the abrogation of a judicial decision by subsequent legislation: (1) adjudication of rights is the essential judicial function; (2) the Constitution delineates a delicate balance among Legislature, Executive and Judiciary; (3) the Legislature may enact laws under Articles 245 and 246 and the entries in the Seventh Schedule; (4) the Court must examine whether the legislative validation cures the defect, whether the Legislature has competence, and whether validation is consistent with Part III of the Constitution; (5) the Court cannot validate an invalid law or legalise an illegally collected tax; (6) the Legislature cannot directly overrule a judicial decision but can render it ineffective by enacting a valid law that changes the factual or legal basis retrospectively; (7) the consistent thread is that the Legislature cannot directly overrule a decision but may remove the basis on which it was rendered, provided it has competence., The Court held that Section 11 of the Kerala Electricity Surcharge (Levy and Collection) Act, 1989 was a valid piece of legislation and not an encroachment on judicial power, as it validated illegal tax collection under an invalid law. In Hindustan Gum and Chemicals Ltd. v. State of Haryana, (1985) 4 SCC 124, the Court affirmed that a competent Legislature may overcome the effect of a court decision by amending the relevant provisions retrospectively, thereby removing the basis of the decision. The Court relied on Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, AIR 1970 SC 192, which laid down that validation of a tax requires removal of the cause of invalidity, legislative competence, and that the validation must not merely declare the court decision non‑binding., The Court has upheld amendments made to statutes after judicial decisions in several cases, including: State of Orissa v. Oriental Paper Mills Ltd., AIR 1961 SC 1438 (amendment of Orissa Sales Tax Act); M/s. Misrilal Jain v. State of Orissa, AIR 1977 SC 1686 (validation of Orissa Taxation Act); M/s. Tirath Ram Rajindra Nath, Lucknow v. State of U.P., AIR 1973 SC 405 (distinction between encroachment on judicial power and retrospective amendment); Government of A.P. v. Hindustan Machine Tools Ltd., AIR 1975 SC 2037; I.N. Saksena v. State of M.P., AIR 1976 SC 2250; Central Coal Fields Ltd. v. Bhubaneswar Singh, AIR 1984 SC 1733; State of Himachal Pradesh v. Narain Singh, (2009) 13 SCC 165 (validation of amendment to Land Revenue Act)., The legislature cannot directly overrule a judicial decision, but it may retrospectively remove the substratum of a judgment to make the decision ineffective, which is a valid legislative exercise provided it does not transgress any constitutional limitation. Such validation must remove the defect in the earlier law; mere declaration without removal amounts to an invalid legislative overreach. In light of the foregoing discussion, the petitions challenging the vires of the Assam Community Professional (Registration and Competency) Act, 2015 (Transferred Cases C Nos. 24 and 25 of 2018) are dismissed. The Act has been enacted as a valid legislative exercise, does not transgress any constitutional limitation, aligns with Entry 25 of List III of the Seventh Schedule, and is not in conflict with the Medical Council of India Act, 1956 and the rules made thereunder under Entry 66 of List I., Before parting with this case, it is necessary to refer to the reasoning of the Division Bench of the Calcutta High Court, which held in paragraph 15 of its judgment dated 30 October 2014 that the Central legislation, namely the Medical Council of India Act, 1956, fully covers the field and therefore the impugned legislation passed by the Assam State Legislature concerning the Diploma Course in Allopathic Medicine was null and void. Article 254 of the Constitution was invoked, and it was observed that, due to repugnancy and the absence of Presidential assent as required under Article 254, the Assam Act is null and void., The Supreme Court of India does not think the doctrine of repugnancy under Article 254 of the Constitution of India applies in the instant case. Although Entry 25 of List III of the Seventh Schedule is in the Concurrent List, giving powers to both Union and State legislatures to legislate on education, any law made by the State Legislature is subject, inter alia, to Entry 66 of List I of the Union List.
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Hence, when there is a direct conflict between a State law and the Union law in the matter of coordination and determination of standards in higher education (Entry 66 of List I) such as in medical education concerning allopathic medicine, as is in the instant case, where the State law is in direct conflict with the Union law, the State law cannot have any validity because the State legislature does not possess legislative competence. In other words, the Assam Act and the Rules and Regulations made under the said Act, being in conflict with the Indian Medical Council Act, 1956 and the Rules and Regulations made thereunder, the doctrine of repugnancy would not apply within the meaning of Article 254 of the Constitution. The finding with regard to the constitutionality of the Assam Act of 2015 is limited to holding it non‑repugnant with the Indian Medical Council Act, 1956. However, the Supreme Court of India is not rendering any finding with regard to any potential conflict of the provisions of the Assam Act of 2015 with the National Medical Commission Act., The Directive Principle of State Policy, articulated in Article 47 of the Constitution, directs the Union and State governments to regard the improvement of public health as their primary duty. It follows from this directive that the State shall make all possible efforts to ensure equitable access to health‑care services. These efforts must be made to progressively realise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, as acknowledged in international conventions and agreements. While the State has every right to devise policies for public health and medical education, with due regard to peculiar social and financial considerations, these policies ought not to cause unfair disadvantage to any class of citizens. Citizens residing in rural areas have an equal right to access health‑care services by duly qualified staff. Policies for enhancing access to rural health‑care must not short‑change the citizens residing in rural areas or subject them to direct or indirect forms of unfair discrimination on the basis of their place of birth or residence. Any variation between the standards of qualification required for medical practitioners who render services in rural areas compared with those rendering services in urban or metropolitan areas must prescribe to constitutional values of substantive equality and non‑discrimination. Deciding the particular qualifications for medical practitioners practising in disparate areas and fields, providing different levels of primary, secondary or tertiary medical services, is within the mandate of expert and statutory authorities entrusted with the said mandate by Parliament. The above ought to be considered in the spirit of constitutional goals and statesmanship, subserving the common good of the citizenry of our Country., Entry 25 of List III of the Seventh Schedule of the Constitution of India deals with the subject of education, which is in the Concurrent List, under which both the Parliament (Union legislature) and the State legislatures have legislative competence to legislate. However, Entry 25 of List III is subject to, inter alia, Entry 66 of List I, which is in the Union List and deals with coordination and determination of standards in institutions for higher education, research and scientific and technical institutions. Thus, when any law is made under Entry 25 of List III by a State legislature, it is always subject to Entry 66 of List I. In other words, if any law made by Parliament falls within the scope of Entry 66 of List I, then the State legislation must yield to the Parliamentary law. When one entry is made subject to another, it implies that the field of legislation covered by the latter entry has been reserved to be specifically dealt with by the appropriate legislature., In the instant case, it is held that the Indian Medical Council Act, 1956 is legislation made by Parliament for the purpose of coordination and determination of standards in medical education throughout the country. The said law, together with the Rules and Regulations made thereunder, is for the purpose of determination of standards of medical education throughout India. Thus, determination of standards in medical education in India is as per the Indian Medical Council Act, 1956, which is a Central law. This pertains to modern (allopathic) medicine within the scope of Entry 66 of List I and not under Entry 25 of List III of the Seventh Schedule. Therefore, a State legislature that passes a law in respect of allopathic medicine would be subject to the provisions of the Indian Medical Council Act, 1956 and the Rules and Regulations made thereunder. This implies that no State legislature has the legislative competence to pass any law that is contradictory to or in direct conflict with the Indian Medical Council Act, 1956 and its Rules and Regulations. In other words, the standard in medical education concerning modern (allopathic) medicine, having been set by the Indian Medical Council Act, 1956 and the Rules and Regulations made thereunder or by any subsequent act such as the National Medical Commission Act, 2019, the State legislature has no competence to enact a law that conflicts with the law setting the standards of medical education in the context of modern medicine, which has been determined by Parliamentary legislation as well as the Rules., In view of the above conclusion, we hold that the decision of the Gauhati High Court holding the Assam Act to be null and void is just and proper. However, the Gauhati High Court held that the State had no legislative competence to enact the Assam Act on the premise that the Indian Medical Council Act and its Rules were holding the field and, therefore, on the basis of the doctrine of occupied field, the Assam Act was struck down as being repugnant to the Central law. We are of the view that this reasoning is incorrect. It is reiterated that the Indian Medical Council Act and its Rules, being Central legislation, have been enacted having regard to Entry 66 of List I and would prevail over any State law made by virtue of Entry 25 of List III of the Constitution., Hence, in view of the Indian Medical Council Act, 1956 and its Rules, the Assam Rural Health Regulatory Authority Act, 2004 is declared to be null and void, as the Assam legislature does not have the legislative competence to enact the said law., Consequently, the subsequent legislation, namely the Assam Community Professionals (Registration and Competency) Act, 2015, enacted pursuant to the judgment of the Gauhati High Court, is a valid piece of legislation because it has removed the basis of the impugned judgment. The 2015 Act is also not in conflict with the Indian Medical Council Act, 1956, because the Central Act does not deal with community health professionals who would practise as allopathic practitioners in the manner permitted under the Assam Act in rural areas of the State of Assam. By a separate legislation, the community health professionals have been permitted to practise as such professionals. The 2015 legislation is therefore not hit by Entry 66 of List I of the Constitution and is within the legislative competence of the State legislature under the Seventh Schedule., In the result, the civil appeals arising out of Special Leave Petition (Civil) Nos. 32592‑32593 of 2015 as well as Transfer Certificate (Civil) No. 24 of 2018 and Transfer Certificate (Civil) No. 25 of 2018 stand dismissed. Any pending application, if any, shall stand disposed of.
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The petitioner is before the Senior Civil Judge & Judicial Magistrate First Class, Shahapur seeking relief to set aside the judgment in Election Petition No. 11 of 2021 passed by the Senior Civil Judge & Judicial Magistrate First Class, Shahapur, dated 31 October 2022, in the interest of justice and equity., A notification was published by the respondent No. 2, Deputy Commissioner for Election, to the Gram Panchayat on 23 July 2020. The petitioner, having contested, was declared as the elected candidate., Respondent No. 1 filed Election Petition No. 11 of 2021 before the Senior Civil Judge, Shahapur challenging the said election. In the petition, the following reliefs were sought: (a) a declaration that the petitioner is the elected candidate for the seat of General candidates in Ward No. 3 in the Gram Panchayat election of Naikal‑9, Taluk Wadgera, District Yadgir, by setting aside the election of Respondent No. 1; (b) award of costs of proceedings to the petitioner; and (c) any other reliefs to which the petitioner is entitled in the interest of justice., The petition was allowed by way of the impugned order and, as such, the petitioner is before the Senior Civil Judge & Judicial Magistrate First Class, Shahapur seeking the aforesaid reliefs., Sri V. K. Nayak, learned counsel for the petitioner, submits that the decision is erroneous on four grounds. First, apart from questioning the election of the petitioner, a declaration was sought to declare Respondent No. 1 as a returned candidate without making all the contestants parties, which is violative of Section 15(2)(a) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as the Panchayat Raj Act). He relies upon the decision of the Delhi High Court in Surinder Kumar v. Ranjit Singh, MLA & Ors, particularly paragraphs 1, 10, 14 and 16., The Delhi High Court held that the election petition sought a declaration that the election of Respondent No. 1 was null and void, setting aside the election result dated 8 December 2013 to the Assembly Constituency 68, Gokulpur, Delhi (NCT), and a declaration that the petitioner was the elected member from Gokulpur Constituency, who contested the election dated 4 December 2013 as an independent candidate. The court observed that the petition was not maintainable because the challenge to the decision of the Sub‑Divisional Magistrate, Delhi Administration, Shahdara, ought to have been made under Article 226 of the Constitution of India, and because the other contesting candidates were not made parties as required under Section 82(a) of the Representation of the People Act, 1951., The Patna High Court, in Neelam Kumari @ Neelam Devi v. The State of Bihar, referred to the decision in Comrade Kallappa Laxman Malabade and observed that while the power of amendment is preserved to the Court under Order 1 Rule 10, the Court cannot use Order 6 Rule 17 or Order 1 Rule 10 to avoid the consequences of non‑joinder where the Representation of the People Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined. The Supreme Court, in Mohan Raj v. Surendra Kumar Taparia, affirmed that the Civil Procedure Code applies subject to the provisions of the Representation of the People Act and its rules, and that the penalty of dismissal for non‑joinder cannot be cured by the Code., The petitioner also relies upon the decision of this Court in Khadarsab v. Munsab and Others, wherein the respondents challenged the election of the petitioner as a successful candidate in the election held on 29 December 1993 for Betadur Gram Panchayat, Ward No. 2. The petition was held non‑maintainable because the petitioners had not impleaded all contesting candidates as respondents as required under Section 15(2‑A) of the Karnataka Panchayat Raj Act, 1993., Regarding the power of amendment, the learned counsel cites the Supreme Court decision in K. Venkateswara Rao v. Bekkam Narasimha Reddy, which held that although Section 87(1) of the Representation of the People Act makes the procedure of an election petition similar to that of a suit, the Act itself makes certain provisions of the Code of Civil Procedure inapplicable to the trial of an election petition. Section 86(5) restricts the High Court’s power to allow amendments that would introduce new particulars of corrupt practice not previously alleged., The second contention relies upon two decisions. AIR 1969 SC 872 held that the High Court has no power to allow the addition of a necessary party after the limitation period, and that the Limitation Act does not apply to election petitions. AIR 1971 SC 373 held that amendment of an election petition after the expiry of the limitation period for filing it is not permissible under Section 83 of the Representation of the People Act., In the election petition, the allegation that certain properties owned by the petitioner and her husband were suppressed in the declaration does not amount to a corrupt practice disqualifying the petitioner, and therefore the trial Court’s finding should be set aside., The petitioner relies upon the Bombay High Court decision in Narayan v. Deepak, particularly paragraph 13, which observed that the omission of details of a spouse’s property in the affidavit, while a lacuna, does not, in the absence of statutory backing, constitute a disqualification under Section 100(1)(d)(i) of the Representation of the People Act., It is further contended that there is no allegation showing how the suppression of information affected the election result, and no evidence was led on that point. The petitioner relies upon the Supreme Court decision in Mangani Lal Mandal v. Bishnu Deo Bhandari, paragraphs 10 to 12, which held that to declare an election void on the ground of corrupt practice, the petitioner must plead and prove that the breach materially affected the result of the election., The affidavit filed in support of the election petition is not in compliance with Form 25 of the Conduct of Election Rules, 1961. Rule 94A requires that the affidavit be sworn before a magistrate of the first class, a notary or a commissioner of oaths and be in Form 25., Section 83 of the Representation of the People Act, 1951 provides that an election petition shall contain a concise statement of material facts, full particulars of any corrupt practice alleged, and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908., The proviso to Section 83 mandates that whenever a corrupt practice is alleged, the petition shall be accompanied by an affidavit in the prescribed form (Form 25) as per Rule 94A of the Conduct of Election Rules, 1961. Non‑compliance with this requirement renders the petition liable to be rejected., The petitioner relies upon the decision of V. Narayanaswamy v. C. P. Thirunavukkarasu, paragraph 23, which held that an election petition is based on statutory rights and that mandatory statutory requirements cannot be waived. The court must uphold a preliminary objection if the petition does not disclose a cause of action or a triable issue, and non‑compliance with Sections 81, 83(1)(c) and 86 read with Rule 94A and Form 25 must lead to dismissal., Learned counsel submits that under Section 17 of the Panchayat Raj Act, Sub‑section (1), the designated Court shall dismiss an election petition which does not comply with the provisions of Section 15. Therefore, non‑compliance with Section 15(2)(a) requires dismissal of the petition in its entirety, not merely a denial of relief., Sri Shravan Kumar Math, learned counsel for Respondent No. 1, submits that the reliefs sought were a declaration that the petitioner’s election was null and void and a declaration that Respondent No. 1 was the returned candidate. The latter relief was not awarded by the trial Court because the other contestant was not made a party, and therefore there was no injury to the petitioner and no violation of Section 15(2)(a) of the Panchayat Raj Act., Regarding suppression of assets of the petitioner and her husband, Respondent No. 1 submits that such suppression would amount to a corrupt practice requiring disqualification, relying upon Section 19(1)(b) of the Panchayat Raj Act, which provides that the designated Court may declare an election void if any corrupt practice has been committed by a returned candidate or his agent with consent., Respondent No. 1 further relies upon the Supreme Court decision in S. Rukmini Madegowda v. State Election Commission, paragraphs 38 and 74, which held that a false declaration with regard to the assets of a candidate, his spouse or dependents constitutes a corrupt practice irrespective of the impact of such false declaration on the election of the candidate.
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It may be presumed that a false declaration impacts the election. Purity of election at all levels, be it the election to the Parliament or State Legislature or a Municipal Corporation or a Panchayat, is a matter of national importance in which a uniform policy is desirable in the interest of all the States. A hyper‑technical view of the omission to incorporate any specific provision in the KMC Election Rules, similar to the 1961 Rules, expressly requiring disclosure of assets, of condoned dishonesty and corrupt practice would be against the spirit of the Constitution and public interest., Relying on the above, he submits that a false representation with regard to the assets of the candidate, his or her spouse or dependents constitutes a corrupt practice. Relying on the Special Leave Petition (Civil) No. 7414/2021 dated 14 September 2022 and the same decision, he submits that once such a corrupt practice has been resorted to, there is no need for the petitioner to establish the impact on the election. The corrupt practice by itself would be sufficient to disqualify any candidate, including a returned candidate, from the electoral process., As regards the affidavit required to be in Form 25A, he submits that the entire petition having been verified by the verifying affidavit and all the paragraphs of the Election Petition having been verified in the affidavit would be sufficient compliance with Form‑25, Rule 94‑A of the Conduct of Election Rules, 1961 and the proviso to Section 83(1) of the Representation of the People Act. Accordingly, no fault can be found therewith and these aspects have been rightly considered by the High Court, and the order passed by the High Court is not required to be interfered with., Heard Sri V. K. Nayak, learned counsel for the petitioner; Sri Shravan Kumar Math, learned counsel for respondent No. 1; and Smt. Maya T. R., learned High Court General Practitioner for respondents Nos. 2 to 4. Papers were perused., On the basis of the submission made, the points that would arise for consideration are: Whether non‑arraignment of all the candidates to an election in an election petition where a declaration of the petitioner to be a returned candidate is sought would result in dismissal of the Election Petition in terms of Sub‑section (1) of Section 17 read with clause (a) of Sub‑section (2) of Section 15 of the Panchayat Raj Act, 1993; Whether non‑disclosure or suppression of the assets of the candidate in his nomination form or that of his or her spouse would amount to a corrupt practice requiring disqualification of the candidate or would it require the petitioner in an Election Petition to establish that such suppression has resulted in an adverse impact favourable to the returned candidate; Whether the verifying affidavit to all Election Petitions is required to be in Form‑25 of the Conduct of Election Rules, in terms of Rule 94‑A of the Rules; Whether the impugned order suffers from any legal infirmity requiring interference at the hands of the Supreme Court of India; and what order is appropriate., I answer the above points as under., The petitioner whose election has been declared void contends that when an election petitioner, apart from challenging the election of the returned candidate, seeks a declaration that the petitioner is the winner in terms of Section 15(2)(a) of the Panchayat Raj Act, all the contestants must be made parties. He relies on the decision of the Delhi High Court in Surinder Kumar’s case, where the Delhi High Court held that the provisions of Order VI Rule 17 or Order I Rule 10 of the Code of Civil Procedure cannot be invoked in an Election Petition to bring on record material particulars that were missed or to bring on record additional parties who were required to be made parties but were not. Consequently, neither an application under Order VI Rule 17 nor under Order I Rule 10 of the Code of Civil Procedure is permissible where a necessary party has not been made a party, and the Election Petition must be dismissed., Reliance is also placed on the decision of this Court in Khadarsab’s case, where this Court opined that when an Act makes a person a necessary party and provides that the petition shall be dismissed if such party has not joined, the power to amend or to strike out parties or to implead parties cannot be used at all. Both the Delhi High Court and the High Court have relied upon the decision of the Supreme Court of India in K. Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi & Ors., In K. Venkateswara Rao’s case, the proceeding was under the Representation of the People Act, dealing with an election of a Member of the Legislative Assembly. The Supreme Court of India categorically held that when the requirements of Section 81 or Section 82 of the Representation of the People Act are not followed, the High Court must dismiss an Election Petition., Even though Section 87(1) of the Act lays down that the procedure applicable to the trial of an election petition shall be like that of the trial of a suit, the Act itself makes important provisions of the Code of Civil Procedure inapplicable to the trial of an election petition. Under Order 6 Rule 17 of the Code of Civil Procedure a court trying a suit has very wide powers to allow amendments of pleadings, subject to the law of limitation. However, Section 86(5) of the Act provides for restrictions on the power of the High Court to allow amendments. The High Court is not to allow the amendment of a petition that would introduce particulars of a corrupt practice not previously alleged. With regard to the addition of parties, which is possible in a suit under Order I Rule 10 subject to the added party’s right to contend that the suit is barred by limitation, no addition of parties is possible in an election petition except under Sub‑section (4) of Section 86. Section 82 identifies the necessary parties to an election petition, which must be filed within 45 days from the date of election as laid down in Section 81. Under Section 86(1) it is incumbent on the High Court to dismiss an election petition that does not comply with the provisions of Section 81 or Section 82. The High Court must also dismiss an election petition if security for costs is not given in terms of Section 117 of the Act. The Indian Limitation Act, 1963, consolidates and amends the law of limitation of suits and other proceedings for purposes connected therewith. Its provisions apply to all civil proceedings and some special criminal proceedings unless excluded by any enactment, as governed by Section 29(2) of the Limitation Act. In our opinion, however, the Limitation Act cannot apply to proceedings like an election petition because the Representation of the People Act is a complete and self‑contained code that does not admit the principles or provisions of the Indian Limitation Act., A perusal of the above paragraphs indicates that the High Court does not have the power to allow an amendment of a petition that would introduce particulars of a corrupt practice not previously alleged, and that no addition of parties is possible in an Election Petition except under Sub‑section (4) of Section 86 of the Representation of the People Act. Section 86 provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117. Any candidate not already a respondent may, upon application to the High Court within fourteen days from the commencement of the trial and subject to any order as to security for costs, be joined as a respondent. For the purposes of this sub‑section and of Section 97, the trial of a petition is deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claims made in the petition., Sub‑section (4) of Section 86 of the Representation of the People Act indicates that any candidate not already a respondent can apply within fourteen days from the commencement of trial to be joined as a respondent. Consequently, Sub‑section (4) of Section 86 does not permit the petitioner to implead another candidate as a respondent after the proceedings have been filed. The Supreme Court of India has mandated that, in terms of Sub‑section (1) of Section 86, it is incumbent upon the High Court to dismiss an Election Petition which does not comply with the provisions of Sections 81, 82 or 117 of the Representation of the People Act., Section 81 of the Representation of the People Act deals with the presentation of petitions., Section 82 of the Representation of the People Act is relevant for the present matter and deals with parties to the petition. Section 82 mandates that where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner must be made parties. When no such further declaration is claimed, all the returned candidates are to be made parties., Section 15(2)(a) of the Panchayat Raj Act is in pari materia with Section 82(a) of the Representation of the People Act. Thus, the mandate imposed by the Supreme Court of India in K. Venkateswara Rao’s case, in terms of Section 82(a) of the Representation of the People Act, equally applies to Section 15(2)(a) of the Panchayat Raj Act., The Supreme Court of India in Mohanraj v. Surendra Kumar Taparia and Others, a decision rendered by the same bench as in K. Venkateswara Rao’s case, stated the same principle as that in K. Venkateswara Rao’s case., Thus, in the present matter, there is no dispute that relief of declaration of the election of the petitioner as the returned candidate is sought. The High Court ought not to have eschewed the relief by dismissing it on the ground that all the contesting candidates had not been made parties. The High Court should have taken into consideration the mandate under Section 15(2)(a) of the Panchayat Raj Act and the mandate imposed by the Supreme Court of India in K. Venkateswara Rao’s case, and should not have dismissed the petition in limine on the ground that all the contesting parties had not been made parties, even though the declaration of the petitioner as the returned candidate was sought., Hence, I answer point 1 by holding that non‑arraignment of all the candidates to an election in an Election Petition where a declaration of the petitioner to be a returned candidate is sought will necessarily result in dismissal of the Election Petition in terms of Sub‑section (1) of Section 17 read with clause (a) of Sub‑section (2) of Section 15 of the Panchayat Raj Act. The dismissal can be made by the High Court trying the Election Petition suo motu or by an application made by any of the respondents in the proceedings., My answer to point 2: Whether non‑disclosure or suppression of the assets of the candidate in his nomination form or that of his or her spouse would amount to a corrupt practice requiring disqualification of the candidate, or whether the petitioner in an Election Petition must establish that such suppression has resulted in an adverse impact favourable to the returned candidate., Though this issue is rendered academic on account of my answer to point 1, extensive arguments have been advanced on this aspect, and I answer the same lest it be contended that these contentions are not considered by the High Court., The contention of the election petitioner is that the returned candidate has suppressed her assets as well as the assets of her husband, and that such suppression would amount to a corrupt practice by the returned candidate in terms of Sub‑section 19(1)(b) of the Panchayat Raj Act., Reference and reliance are made to the decision in Rukmini Made Gowda’s case. The Supreme Court of India in that case concluded categorically that not only a mis‑statement but also suppression falls within the purview of corrupt practice., The Supreme Court of India, by referring to the decision in Lok Prahari v. Union of India, held that non‑disclosure of assets would amount to undue influence as defined under the Representation of the People Act, and therefore non‑disclosure of assets would amount to undue influence and consequently a corrupt practice. The relevant paragraphs of Lok Prahari’s case are reproduced for easy reference: “Prayer 2 declares that non‑disclosure of assets and sources of income of self, spouse and dependants by a candidate would amount to undue influence and thereby corruption, and that the election of such a candidate can be declared null and void under Section 100(1)(b) of the 1951 Representation of the People Act.” The Court relied heavily on Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467 : (2015) 2 SCC (Cri) 359 : AIR 2015 SC 1921, a case arising under the Tamil Nadu Panchayats Act, 1994, where the State Election Commission required every candidate to disclose, inter alia, whether the candidate was accused in any pending criminal case punishable with imprisonment for two years or more. The Court held that failure to disclose such information constitutes an attempt to suppress, misguide and keep the people in darkness, which is undue influence and therefore a corrupt practice. The Court further held that non‑disclosure of assets and sources of income of the candidates and their associates constitutes a corrupt practice falling under the heading “undue influence” as defined under Section 123(2) of the 1951 Representation of the People Act, and allowed Prayer 2., The Supreme Court of India, by referring to Union of India v. Association for Democratic Reforms, also held that it is incumbent upon the Election Commissioner to secure voters’ information pertaining to assets not only of the candidate but also of the spouse and the dependent members. Consequently, in the present case it was incumbent on the petitioner to disclose her assets, her husband’s assets and other dependent members. Non‑disclosure thereof would amount to undue influence and corrupt practice., The Supreme Court of India in Rukmini Made Gowda’s case held that purity of election at all levels—whether to the Union Parliament, a State Legislature, a Municipal Corporation or a Panchayat—is of national importance, uniform policies are desirable in the interest of all the States, and therefore disclosure of assets must be made of the candidate, the spouse of the candidate and other dependent members., It is not only *suggestio falsi*—suggesting false information regarding the assets—but also *suppressio veri*—suppression of details relating to the assets—which would be covered under Section 19 of the Panchayat Raj Act. Thus, *suggestio falsi* and *suppressio veri* of assets of the candidate, his or her spouse and dependent would come within the purview of Section 19(1)(b) of the Panchayat Raj Act., In that view of the matter, I answer point 2 by holding that non‑disclosure of assets or suppression of the assets of the candidate, his or her spouse and dependent members would amount to a corrupt practice requiring disqualification of the candidature. There is no particular requirement for the election petitioner to specifically aver or prove that the suppression has resulted in an adverse impact favourable to the returned candidate; the mere suppression is sufficient to invoke the provisions of Section 19(1)(b) of the Panchayat Raj Act., My answer to point 3: Whether the verifying affidavit to all Election Petitions is required to be in Form 25 of the Conduct of Election Rules, in terms of Rule 94‑A of the Rules. Again this question is redundant in view of my answer to point 1, but several arguments have been advanced on this aspect lest it be contended that these contentions are not considered by the High Court., The contention of Sri V. K. Nayak, learned counsel for the petitioner, is that the election petitioner must aver by pleading material facts that the result of the election has been materially affected, and must specifically state by way of an affidavit the portions of the allegation known personally or known on the basis of information, advice, etc. When such averments are not made and the affidavit is not in terms of Form 25 of the Conduct of Election Rules, 1961, the Election Petition must be dismissed., Rule 94‑A of the Conduct of Election Rules, 1961 indicates that the affidavit referred to in the proviso to Sub‑section (1) of Section 83 shall be sworn before a magistrate of the first class, a notary or a commissioner of oaths and shall be in Form 25., Section 83 of the Representation of the People Act deals with the contents of an election petition, and its proviso requires an affidavit in the prescribed form in support of the allegation of such corrupt practice., The prescribed form is Form 25, prescribed under Rule 94‑A of the Conduct of Election Rules, 1961. The form contains two distinct portions: the first part concerns averments made in the petition that are true to the knowledge of the deponent; the second part concerns averments that are true to the information of the deponent., Sri V. K. Nayak contends that the affidavit filed in the present petition is not in terms of Form 25 in the strict sense and that, because Form 25 is mandatory under Rule 94‑A, the election petition should be dismissed., This aspect was considered by a three‑judge bench of the Supreme Court of India in F. A. Sapa and Others v. Singora and Others. The Supreme Court held that clause (c) of Sub‑section (1) of Section 83 provides that an election petition shall be signed by the petitioner and verified in the manner laid down by the Code of Civil Procedure for verification of pleadings. Under Section 83(2) any schedule or annexure to the pleading must be similarly verified. Order 6 Rule 15 is the relevant provision in the Code. Sub‑rule (2) of Rule 15 requires the verifying person to specify, with reference to the numbered paragraphs of the pleading, what he verifies on his own knowledge and what he verifies upon information received and believed to be true. The verification must be signed and must state the date and place of signing. Defects in verification may be of a formal nature, substantially compliant, or material but capable of being cured. The purpose of verification is to fix responsibility for the averments and to discourage wild and irresponsible allegations. The proviso provides that where corrupt practice is alleged, the petition shall also be supported by an affidavit in the prescribed form, i.e., Form 25 prescribed by Rule 94‑A. Sub‑section (2) of Section 83 further requires any schedule or annexure to the petition to be similarly signed and verified. Two questions arise: (i) the consequence of a defective or incomplete verification, and (ii) the consequence of a defective affidavit. It was noted that the verification clause regarding averments based on information ought to disclose the source of information, which had not been done in this case., It must be realised that Section 86(1) lays down that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117; it does not refer to Section 83. Thus, the legislature did not view non‑compliance with the requirement of Section 83 with the same gravity as non‑compliance with Sections 81, 82 or 117. However, a petition that does not strictly comply with the requirements of Section 83 cannot be said to be an election petition within the contemplation of Section 81, and therefore Section 86(1) is attracted. In Murarka Radhey Shyam Kumar v. Roop Singh Rathore, [1964] 3 SCR 573, a defect was pointed out where the verification stated that certain averments were true to the personal knowledge of the petitioner, while others were verified on advice and information received, but the petitioner did not expressly state that the advice and information were believed to be true. The Election Tribunal held that this defect fell within Section 83(1)(c) and could be cured in accordance with the principles of the Code. The Supreme Court upheld that a defect in verification made in the manner laid down in the Code of Civil Procedure, 1908, is not fatal to the maintainability of the petition. Consequently, a mere defect in verification is not fatal, and the petition cannot be thrown out solely on that ground. Since Section 83 is not one of the three provisions mentioned in Section 86(1), it is not mandatory unless it forms an integral part of the petition under Section 28. From the relevant provisions of the Representation of the People Act, Rule 94‑A and Form 25, as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code, it emerges that (i) a defect in verification, if any, can be cured; (ii) it is not essential that the verification clause at the foot of the petition or the accompanying affidavit disclose the grounds or sources of information for averments based on information believed to be true; (iii) if the respondent desires better particulars, he may call for the same, and the petitioner may be required to supply them; and (iv) a defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral part of the petition, in which case material defects must be dealt with, subject to limitation, under Section 81(3)., A perusal of the above paragraphs indicates, firstly, that a defect in verification can be cured; secondly, that it is not essential that the verification clause at the foot of the petition or the accompanying affidavit disclose the source of information for averments based on information believed to be true; and, in the event that the respondent desires better particulars, he may call for the same, in which case the petitioner may be required to supply them., A two‑judge bench of the Supreme Court of India in A. Manju v. Prajwal Revanna @ Prajwal R. and Others, while reiterating the judgment of the three‑judge bench in F. A. Sapa’s case, further held at paragraphs 26 and 27 that…
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However, we are not persuaded to agree with the conclusion arrived at by the High Court of India that the non-submission of Form 25 would lead to the dismissal of the election petition. We say so because, in our view, the observations made in Ponnala Lakshmaiah case (Ponnala Lakshmaiah v. Kommuri Pratap Reddy, (2012) 7 SCC 788) which have received the imprimatur of the three‑Judge Bench in G. M. Siddeshwar case (G. M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civil) 715) appear not to have been appreciated in the correct perspective. In fact, G. M. Siddeshwar case has been cited by the learned Judge to dismiss the petition., If we look at the election petition, the prayer clause is followed by a verification. There is also a verifying affidavit in support of the election petition. Thus, factually it would not be appropriate to say that there is no affidavit in support of the petition, albeit not in Form 25. This was a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. In fact, a consideration of both the judgments of the Supreme Court of India referred to by the learned Judge i.e. Ponnala Lakshmaiah as well as G. M. Siddeshwar, ought to have resulted in a conclusion that the correct ratio in view of these facts was to permit the appellant to cure this defect by filing an affidavit in the prescribed form., The arguments of the learned counsel for Respondent 1 were predicated on the distinction between the absence of an affidavit and a defective affidavit. This presupposes that for an opportunity of cure to be granted, there must be the submission of a Form 25 affidavit which may be defective. This would be a very narrow reading of the provisions. Once there is an affidavit, albeit not in Form 25, the appropriate course would be to permit an affidavit to be filed in Form 25. We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so. This is not a case where the filing of an affidavit now in Form 25 would grant an opportunity for embellishment as is sought to be urged on behalf of Respondent 1., A reading of the above would indicate that if an objection is raised that the verifying affidavit is not in terms of Form 25, the Court seized of the matter would have to provide an opportunity to the election petitioner to rectify the same; the defect being formal in nature cannot result in dismissal of the election petition., In the present case, the affidavit filed along with objections reads as follows: I, Mohd. Ismail, Son of Mahiboob Sab, Age 50 years, occupation Agriculturist, Resident of Naikal village, Taluk Wadgera, District Yadgir, do hereby state on oath as under: That I am the petitioner in the above case, hence know the facts of the case personally. That the contents of the petition paragraphs are true and correct to the best of my knowledge, and I believe them to be true. That I have not filed any similar petitions before any Court or forum. That the documents produced herein are copies of originals issued by the competent authority., A perusal of the above affidavit indicates that the petitioner in the election petition has categorically stated that he knows the facts of the case, that the contents of the petition are true and correct to his knowledge and that he believes them to be true. He has not filed any other similar petition and the documents produced are copies of the originals issued by the competent authority., The deponent having categorically stated that the contents of the paragraphs are true and correct to his knowledge and that he believes them to be true, and having filed the affidavit in compliance with clause A in Form 25. Clause B would only come into effect if the deponent wishes to state that something is true to his information. In the present case, all the allegations are claimed to be to the knowledge of the petitioner and further to be true; thus the question of distinguishing the paragraph numbers to be true to his knowledge and the paragraph numbers to be true to his information would not arise., If at all Respondent 1, who is a petitioner herein, had any doubt or dispute to seek better particulars with regard to any averment or allegation, he could have sought the same. Not having done so, Respondent 1 election petitioner cannot now challenge the judgment passed in the election petition and take up the grievance that the affidavit is not in terms of Form 25., In the present matter, I have concluded that the affidavit is in compliance with Form 25 and, as such, Prajwal Revanna’s decision (supra), though not strictly applicable, if at all the respondent in the election petition has raised this issue, the Court always could have permitted the petitioner to rectify it., Hence, I answer point 3 by holding that the affidavit filed by the petitioner in Election Petition No. 11/2021 is in due compliance with Rule 94A of the Rules, 1961, Form 25 thereof as also Section 83 of the Representation of the People Act., Answer to point 4: Whether the impugned order suffers from any legal infirmity requiring interference at the hands of this Court? By way of the impugned order, the trial Court came to a conclusion that since the election petitioner had not made all the contestants parties to the election petition, the relief seeking declaration that the election petitioner was a returned candidate could not be granted and, as such, rejected that prayer. As held supra, the Hon’ble Apex Court has categorically concluded that in the event of a necessary party not being made a party to the election petition, it would be incumbent upon the Court to dismiss the petition., In the present case, the petitioner having not only sought setting aside the election of Respondent 1 but also sought declaration that he is the returned candidate, it was required that all the other contestants be made parties since it is only in their presence that any finding could be given as regards the election petitioner being a returned candidate. This aspect, though, would require further consideration by the Law Commission; since multiple candidates were contesting the elections, the declaration of the election petitioner as a returned candidate when votes are distributed among multiple candidates would be very difficult if not impossible. It is probably only when there are two candidates and the election of one of the candidates is declared void that the other candidate could be declared as returned candidate. Even if there are three candidates, the matter could be difficult insofar as it cannot be ascertained whose favour the votes polled by the returning candidate would have to be apportioned., The Registrar General of the Supreme Court of India is directed to forward a copy of this order to the Law Commission, Government of India for consideration., I answer point 4 by holding that the order passed by the trial Court refusing the relief of declaration of the election petitioner as returned candidate on the ground that other contestants were not made parties and continuing with the matter is not in accordance with Section 15(2)(a) of the Representation of the People Act when all the contestants were not made parties and relief of declaration of the election petition as returned candidate was sought; the election petition ought to have been rejected in limine in terms of Subsection (1) of Section 17 of the Panchayat Raj Act., Answer to point 5: What order? The writ petition is allowed. The impugned judgment in Election Petition No. 11/2021 dated 31.10.2022 passed by Senior Civil Judge and Judicial Magistrate First Class, Shahapur at Annexure D is hereby set aside. Election Petition No. 11/2021 is dismissed.
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Reserved on: 09.01.2024 Date of Pronouncement: 31.01.2024 Present: Mr. A.D.S. Jattana, Advocate for the petitioner. Mr. Rajiv Sidhu, Deputy Advocate General, Haryana. Mr. Amit Jhanji, Senior Advocate with Ms. Nandita Verma, Advocate for respondent No. 2., By way of present petition filed under Section 482 of the Criminal Procedure Code, prayer has been made for setting aside the order dated 15 September 2018 passed by the Additional Sessions Judge, Gurugram, Haryana, whereby the order dated 07 November 2017 passed by learned JMIC, Gurugram summoning the petitioner in complaint No. COMI26492/2016 was upheld., Briefly stated facts of the case are that on 20 August 2016, respondent No. 2/complainant instituted a criminal complaint seeking summoning of petitioner/accused under sections 499 and 500 of the Indian Penal Code on the allegations that respondent No. 2/complainant, being a decorated officer, having won medals while serving in the Indian Army, retired in the year 2012 from the post of Deputy Chief of Army Staff. Respondent No. 2/complainant also founded an organization, namely, Indian Ex-Servicemen Movement (IESM) and spearheaded demand for One Rank One Pension (OROP) which was accepted by the government on 17 February 2014. It was further averred in the complaint that respondent No. 2/complainant detected that petitioner/accused, who also happened to be the General Secretary of IESM, along with his two accomplices, indulged in misappropriation of funds of said organisation and therefore lodged a complaint with the police and criminal court., Respondent No. 2/complainant further averred that in response, petitioner/accused circulated emails making therein imputations concerning respondent No. 2/complainant intending to harm his reputation. Brief excerpts from one email, which form part of the record, are as under: \Dear Members there was no need to any advise to Kadyan (he does not deserve to be addressed with his rank) as he has shown his real intent that is come what may agitation for OROP must fail. At this stage he presumably brought political pressure and the Sessions Judge was forced to order the District Judge to order police to investigate the issue. By this time he had made inroads to New Government which was as it is feeling embarrassed because of ongoing agitation at J.M even after giving OROP albeit truncated. Incidentally Kadyan was in charge of Commonwealth Games flag ceremony along with famous Kalmadi. Kadyan and Kalmadi are buddies from NDA. After leaving CW games he was again given a job as Managing Director of Urban Development Company a job offered by Government as a lollipop to those who tow government line. He is still working as MD of Urban Development Company. Do I need to write about his extended stay in Paris and his case with government subsequently which he lost? I do not wish to make comments on remark of cowardice in his SCR by his superiors. It is surprising that he still made to higher ranks despite such remarks. Does it not speak about his manipulative skills to get promotions by pulling others down? The fact that Kadyan has been given access to a regional TV channel and some national channels, to air to spread his falsehood and venom, is an indication of patronage given to him by some political powers\., Respondent No. 2/complainant also alleged that these emails dated 11 February 2016, 12 October 2015, 15 October 2015 and 3 December 2015 were circulated, wherein imputations were made to the extent that either complainant is a very revengeful man or he was mentally not stable and both conditions were not good for veterans and veterans' families. Being aggrieved from these emails, respondent No. 2/complainant served a legal notice dated 9 March 2016 upon the accused/petitioner, but no response was received. Thereafter, respondent No. 2/complainant filed a criminal complaint in the court., The learned Magistrate, finding a prima facie case against the petitioner/accused, summoned him by order dated 07 November 2017 for commission of the offence of defamation as defined in section 499 of the Indian Penal Code punishable under section 500 of the Indian Penal Code. Feeling aggrieved against the summoning order, petitioner filed a revision petition which was also dismissed by order dated 15 September 2018 by the Additional Sessions Judge, Gurugram, Haryana. By way of the present petition filed under section 482 of the Criminal Procedure Code, petitioner has challenged the summoning order dated 07 November 2017 as well as the order dated 15 September 2018 passed by the revisional Court., Learned counsel for the petitioner contended that the summoning order was issued by the trial court against the petitioner without taking into consideration the fact that his case was covered under exceptions 4 and 5 to section 499 of the Indian Penal Code. For ready reference, Exceptions 4 and 5 of section 499 of the Indian Penal Code are reproduced hereinunder: Fourth Exception – Publication of reports of proceedings of Courts. It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. Explanation – A Justice of the Peace or other officer holding an inquiry in open Court preliminarily to a trial in a Court of Justice, is a Court within the meaning of the above section. Fifth Exception – Merits of case decided in Court or conduct of witnesses and others concerned. It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further., Delving more into this submission, learned counsel for the petitioner submitted that the primary grievance of the complainant was that petitioner/accused called him coward, however, the same was based on his Annual Confidential Report as recorded by the Honourable Supreme Court of India in a case titled 'Union of India v. Lt. General Rajendra Singh Kadyan', reported as 2000 (6) SCC 698, in which the complainant was also a party. Relevant part of the judgment of the Honourable Supreme Court is reproduced below: ..., He further submitted that in the aforesaid context, it was necessary to have a glance at the definition of coward as provided in the Cambridge University Dictionary: Coward – a person who is contemptibly lacking in the courage to do or endure dangerous or unpleasant things. The Cambridge University Dictionary defines coward as a person who is not brave and is too eager to avoid danger, difficulty or pain. Drawing the attention of the court towards the definition of the word coward, learned counsel pointed out that its characteristics were substantially the same which were recorded in the Annual Confidential Report of respondent No. 2 and also in the judgment of the Honourable Supreme Court. Therefore, it was pleaded that in that view, the case of the petitioner was covered under exceptions 4 and 5 to section 499 of the Indian Penal Code. He also submitted that the trial court did not specify any reason how the contents of the emails fell under the scope of section 4., On the other hand, learned counsel for respondent No. 2 submitted that a perusal of the emails clearly shows that the contents written therein were per se defamatory and at this stage only a prima facie view was to be seen by the trial court and the defence of the accused/petitioner was to be seen during trial. In support of his submissions, learned counsel placed reliance upon the following judgments: i. Central Bureau of Investigation v. Aryan Singh, reported as 2023 SCC OnLine SC 379; ii. Kamal Shivaji Pokarnekar v. State of Maharashtra and Others, reported as 2019 14 SCC 350; iii. State of Gujarat v. Afroz Mohammed Has Anfatta, reported as 2019 20 SCC 539; iv. Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi and Others, reported as 1996 6 SCC 263; v. Chaman Lal v. State of Punjab; vi. Varinder Singh v. Bikram Singh Majithia, reported as 2017 SCC OnLine P&H 1388; vii. M.N. Damani v. S.K. Sinha, Criminal Appeal No. 596 of 2001, decided on 02 May 2001, Law Finder ID: 11610., I have heard learned counsel for the parties and gone through the paper book, however, I do not find much substance in the submissions made on behalf of the petitioner. It is not the case of the petitioner that he has not written the emails, rather his case is that he is covered under exceptions 4 and 5 of section 499 of the Indian Penal Code. It is also required to be noted that by order dated 07 November 2017, the accused/petitioner has not been held guilty under section 499 of the Indian Penal Code, rather he has only been summoned by the trial court to face trial. It is settled law that at the stage of summoning only a prima facie case has to be seen by the trial court and possible defence of the accused is not required to be looked into., Perusal of the emails brought on record as Annexure P‑4 shows that the accused/petitioner has in so many words called respondent No. 2 before a group of veterans with the insinuation that he is a coward, which cannot be said to have been done in good faith. Apart from the word coward, the emails contain other contents which do not suit the prestige of a decorated army officer who has served the nation for approximately forty years. Even with respect to the definition of the word coward, it is required to be looked into whether the general meaning applicable to an ordinary person can also be made applicable in the specific context of defence personnel, for whom it could be more insulting., The reference of the word coward for respondent No. 2/complainant is being sought to be justified while relying upon certain observations made by the superiors of the complainant, which find mention in a decision dated 28 July 2000 passed by the Honourable Supreme Court of India in General Rajendra Singh Kadyan’s case (supra), relevant extract reproduced hereunder: ... Without delving into details, yet it may be noted that the use of words by the seniors like ‘should be bold and aggressive in operation’ may not always mean that the complainant was designated a coward. If someone is termed as not bold or aggressive might mean that one might not be offensive enough as demanded in war circumstances which could not necessarily mean that the person is a coward. Still, this Court purposefully refrains from discussing the merits of the arguments raised by learned counsel for the petitioner in extenso, for the reason that in that case it would be required to touch the complete merits of the case, which would prejudice the trial., On the basis of the complaint made by respondent No. 2, coupled with the testimony of complainant (CW1) as well as other members of IESM who were Honourable Captain Naginder Singh (CW2), Ex‑Major Jai Singh (CW3), and Honourable Captain Jagvir Singh (CW4), the trial court has rightly relied upon the preliminary evidence led by the petitioner in this case. In the given circumstances, the exercise of going into the details of the word coward and other alleged defamatory contents and applicability of the exceptions of section 499 of the Indian Penal Code can be looked into during the trial only., Scope of interference in such cases by the High Court, while exercising its power under section 482 of the Criminal Procedure Code, is very limited. Reference in this regard can be made to the judgment in Kamal Shivaji Pokarnekar’s case (supra), which is also supported by the judgments cited by the learned counsel for respondent No. 2, wherein it was observed by the Honourable Supreme Court that if it appears on a reading of the complaint and consideration of the allegations therein that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere in the summoning order and the defences that may be available, or facts/aspects which may be established during the trial, may lead to acquittal, are not the grounds for quashing the complaint at the threshold. Relevant paragraphs from this judgment are reproduced below: \The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere...\, In view of the discussion made above, without interfering in the concurrent findings of the courts below, the present petition is dismissed. Pending miscellaneous applications, if any, shall also stand disposed of., Sanjay JUDGE. Whether speaking/reasoned? Yes. Whether Reportable? Yes. Neutral Citation No.: 2024:PHHC:013677.
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Aravind Kumar J. Leave granted. The present appeal impugns the order dated 24.04.2023 passed by the High Court of Punjab and Haryana at Chandigarh in CRA‑D No. 144 of 2022 (O&M) where the High Court upheld the order dated 16.12.2023 passed by the Special Judge, National Investigation Agency Court, Punjab in an application filed under Section 439 of the Code of Criminal Procedure, 1973 by the appellant Gurwinder Singh along with other co‑accused seeking regular bail in NIA case RC.19/2020/NIA/DLI, registered under Sections 124A, 153A, 153B, 120B of the Indian Penal Code, Sections 17, 18, 19 of the Unlawful Activities (Prevention) Act, 1967 and Sections 25 and 54 of the Arms Act, 1959, which was rejected., The factual matrix relevant to dispose the present petition is summarized as follows: On 19.10.2018, Shri Varinder Kumar, Inspector, Central Intelligence Agency Staff, received secret information that two persons were hanging cloth banners on which \Khalistan Jindabad\ and \Khalistan Referendum 2020\ were written, at Pillars Kot Mit Singh Flyover, Amritsar. The police team apprehended Sukhraj Singh alias Raju and Malkeet Singh alias Meetu on the spot and a case was registered vide FIR No. 152 dated 19.10.2018 under Sections 124A, 153A, 153B and 120B of the Indian Penal Code against both arrested accused., During the course of investigation, the entire module of the banned terrorist organization named Sikhs for Justice was busted and other accused persons involved in the said module namely Bikramjit Singh alias Vicky, Manjit Singh alias Manga, Jatinder Singh alias Goldy, Harpreet Singh alias Happy, Gurwinder Singh alias Gurpreet Singh alias Gopi (the present appellant), Harmeet Singh alias Raju, Roofel alias Raful alias Rahul Gill, Sukhmander Singh alias Gopi and Kuldeep Singh alias Kuldip Singh alias Keepa were arrested by Punjab Police., The investigation was completed and the final report was presented on 16.04.2019 before the Special Judge, National Investigation Agency Court, Punjab against eleven accused persons under Sections 117, 112, 124A, 153A, 153B, 120B of the Indian Penal Code, Sections 17, 18, 19 of the Unlawful Activities (Prevention) Act and Section 25 of the Arms Act. On further investigation, the police submitted supplementary reports. Because of the seriousness of the charges, the investigation was transferred to the National Investigation Agency, which took over the case as per the directions of the Government of India, Ministry of Home Affairs, vide Order F.No.11011/30/2020/NIA dated 04.04.2020 and registered the original case as RC.19/2020/NIA/DLI dated 05.04.2020. The third supplementary charge‑sheet was filed by the NIA dated 18.12.2020 and charges were framed by the Learned Special Judge, National Investigation Agency Court, Punjab on 09.12.2021., The investigation revealed that the accused persons received funds through illegal means sent by members of the banned terrorist organization Sikhs for Justice. Those funds were channeled through Hawala and were intended to further the separatist ideology demanding a separate state for Sikhs popularly called Khalistan, to carry out terror activities and other preparatory acts such as attempts to procure weapons to spread terror in India in furtherance of such separatist movement. The investigation further revealed the involvement of an ISI handler named Javed Khan behind the operations of this module busted by Punjab Police and the National Investigation Agency., The prima facie involvement of the present appellant emerged in the disclosure statement of co‑accused Bikramjit Singh alias Vicky (Accused No. 3) recorded on 09.06.2020 while he was in custody. The disclosure statement revealed that on 08.07.2018 the appellant Gurwinder Singh accompanied Bikramjit Singh and Harpreet Singh alias Happy to Srinagar in a car where they planned to purchase a pistol. They met Sandeep Singh alias Sana, proceeded to a JK‑Li Camp in Srinagar, were told that a pistol was not available, returned to Gurudwara Sahib where Sandeep offered to purchase RDX (which they declined), and then all three returned to Punjab. Bikramjit Singh was dropped off midway at Jandialaguru while the appellant and Harpreet Singh returned to their village in Punjab., The appellant’s disclosure statement recorded on 12.06.2020 presented a similar narrative. He stated that he and Harpreet Singh were childhood friends. In the first week of July 2018 Harpreet proposed a visit to Srinagar for religious service and asked the appellant to accompany him. The appellant initially denied but later agreed after Harpreet’s persistent insistence., The Special Judge, National Investigation Agency Court, Punjab vide its order dated 16.12.2023 in CIS No. BA/2445/2021 dismissed the appellant’s bail application under Section 439 of the Code of Criminal Procedure on the ground that there were reasonable grounds to believe the accusation against the appellant to be true. The order was impugned before the High Court of Punjab and Haryana at Chandigarh and, meanwhile, on 10.04.2023 the fourth supplementary charge‑sheet was filed by the NIA along with the list of witnesses and documents. Vide the impugned order the High Court rejected the grant of bail to the appellant on the ground of seriousness of the offence and that none of the protected witnesses had been examined., The Learned Senior Counsel, Mr. Colin Gonsalves, appearing on behalf of the appellant made the following submissions: He contended that the appellant has been denied bail by the High Court and the Special Judge by relying upon the disclosure statement of Bikramjit Singh alias Vicky and argued that the said disclosure statement cannot be used to implicate the appellant. He raised the lack of scrutiny of the appellant’s mobile phone, marked as M‑4, indicating that the phone number did not belong to the appellant. He argued that the absence of incriminating conversations in the Communication Data Records related to the appellant’s phone supports the case for bail. He further submitted that the appellant has been in custody for the last five years facing charges under the Unlawful Activities (Prevention) Act, which is contrary to the law laid down in K.A. Najeeb v. Union of India. He pointed out that only 19 out of 106 witnesses have been examined in the five‑year period and highlighted a terror‑funding chart that does not show the appellant’s name. He questioned the omission of the alleged main conspirator, Nihal Singh, as an accused, emphasizing that the appellant did not procure any weapons. He also sought the Court’s attention to the fourth supplementary charge‑sheet, which aims to establish a funding link with ISI, to illustrate the appellant’s exclusion from relevant documentation. Finally, he noted that out of nine protected witnesses examined, eight have not mentioned the appellant’s name and prayed that the impugned order be set aside and bail be granted., Mr. Suryaprakash V. Raju, learned Additional Solicitor General, on behalf of the respondent submitted that there is sufficient evidence on record to prove the incriminating role of the appellant, as revealed by the statements of protected witnesses. He submitted that the appellant‑accused along with co‑accused Bikramjit Singh alias Vicky (Accused No. 3) were involved in the activities of Sikhs for Justice, a banned terrorist organization whose chief proponent is Gurpatwant Singh Pannu (Accused No. 12). Bikramjit Singh had asked known persons to arrange weapons from Kashmir. In furtherance of their activities to procure arms and ammunition, the appellant‑accused along with co‑accused Bikramjit Singh and Harpreet Singh alias Happy (Accused No. 7) visited Srinagar. He further submitted that the appellant, in his voluntary disclosure statement, admitted that on gaining knowledge of the purpose of the visit to Srinagar, he voluntarily continued the journey and even suggested procuring the weapon from Western Uttar Pradesh. He contended that the provisions of Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 are fully applicable and that the High Court rightly denied bail. He also noted that 22 witnesses have been examined, the accused faces grave charges attributable to a terrorist gang operating under Gurpatwant Singh Pannu, and that releasing the appellant on bail could enable him to influence key witnesses, hampering the course of justice. Accordingly, he prayed that the bail petition be rejected., We have heard learned counsel for both parties and have perused the records. The present case involves charges under the Unlawful Activities (Prevention) Act together with other charges under the Indian Penal Code and the Arms Act; therefore, it is appropriate to consider the bail provision envisaged under Section 43D of the Unlawful Activities (Prevention) Act before analysing the facts. Bail under the Act is governed by Section 43D(5), which provides that no person accused of an offence punishable under Chapters IV and VI of the Act shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to be heard, and further that the Court shall not release the accused if, on perusal of the case diary or the report under Section 173 of the Code of Criminal Procedure, it is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. The restrictions in sub‑section (5) are in addition to any other bail restrictions under the Code of Criminal Procedure or any other law., A bare reading of Section 43D(5) shows that the Special Court is barred from releasing an accused on bail without affording the Public Prosecutor a hearing, and the proviso imposes a complete embargo on bail if the Court, after examining the case diary or the Section 173 report, finds reasonable grounds to believe the accusation is prima facie true. No analogous provision exists in any other statute, making this bail limitation unique to the Unlawful Activities (Prevention) Act. The conventional bail jurisprudence that \bail is the rule, jail is the exception\ does not apply to bail applications under this Act; the exercise of the general power to grant bail is severely restrictive. The Court must examine the case diary and final report and apply a low prima facie standard, which is lighter than the standard of strong suspicion required for discharge applications, as noted by the Supreme Court in Zahoor Ali Watali., The test for rejection of bail is straightforward: bail must be rejected as a rule if, after hearing the Public Prosecutor and perusing the final report or case diary, the Court concludes that there are reasonable grounds for believing that the accusations are prima facie true. Only if this test is not satisfied does the Court proceed to the usual \tripod\ test (flight risk, tampering with evidence, influencing witnesses) under Section 439 of the Code of Criminal Procedure. The inquiry under Section 43D(5) can be summarised as a twin‑prong test: (1) whether the prima facie test for rejection of bail is satisfied, limited to the case diary and Section 173 report; and (2) whether the accused deserves bail in light of the general principles of bail (flight risk, evidence tampering, witness influence). The second prong is not considered if the first test is satisfied., Guidelines laid down by the Supreme Court in Watali’s case are relevant. The Court held that the materials must on their face show the complicity of the accused in the commission of the offence; the evidence must be good and sufficient to establish a fact or chain of facts constituting the offence unless rebutted. Once charges are framed, a strong suspicion is presumed, and the accused must overcome this presumption to show that the materials do not make out reasonable grounds for believing the accusation is prima facie true. The Court need not conduct a detailed evaluation of evidence at the bail stage; it should record findings on broad probabilities. The limitation under Section 43D(5) applies from the registration of the FIR until the conclusion of the trial. The totality of material, including the case diary, must be considered as a whole, and documents are to be taken as true unless contradicted by other evidence., In Devender Gupta v. National Investigation Agency, a Division Bench of the High Court of Andhra Pradesh provided guidance on when the accusation can be said to be prima facie true, listing factors such as association with a prohibited organization, prior conviction for terrorist offences, recovery of explosive material, eyewitness or CCTV identification, and prompt arrest after the occurrence. In Kekhriesatuo Tep and Others v. National Investigation Agency, the Court reiterated that the test is whether there are reasonable grounds to believe the accusation is prima facie true, noting that the standard of satisfaction for \prima facie\ is lower than that for \not guilty\ under statutes like TADA, MCOCA and NDPS. In Sudesh Kedia v. Union of India, the Court explained that \prima facie\ means the materials collected by the investigating agency must, on their face, show complicity and be sufficient to establish the offence unless rebutted., Applying these principles to the present case, we first examine whether the allegations in the charge‑sheet and case diary prima facie disclose the commission of offences under Sections 17, 18 and 19 of the Unlawful Activities (Prevention) Act. Section 17 punishes raising funds for a terrorist act; Section 18 punishes conspiracy, abetment or facilitation of a terrorist act; and Section 19 punishes harbouring or concealing a terrorist. The charge‑sheet alleges that the appellant participated in a module of Sikhs for Justice that raised funds through Hawala, conspired to procure weapons, and facilitated the travel of co‑accused to Srinagar for weapon procurement, thereby satisfying the prima facie test under these provisions., The appellant’s counsel argued that the appellant’s mobile phone had not undergone scrutiny, but the scrutiny report of Bikramjit Singh’s (Accused No. 3) mobile phone, marked as M‑5, reveals at serial no. 10 that the appellant communicated with Accused No. 3 multiple times. Call Detail Records show a consistent pattern of communication between the appellant and Bikramjit Singh from 22 June 2018 to 19 October 2018, the day of the appellant’s arrest, totaling approximately 26 calls. This undermines the claim of lack of connection to the charged offences., The appellant’s counsel also pointed to a terror‑funding chart that does not list the appellant’s name and relied on K.A. Najeeb v. Union of India, asserting that five years of custody is contrary to law. However, in K.A. Najeeb the Court considered bail because the co‑accused had already been tried and sentenced to less than eight years, the respondent had served more than five years of the maximum possible sentence, and the trial was expected to be prolonged. The present case involves a terrorist gang with multiple roles, and the absence of funds or incriminating material on the appellant’s phone does not absolve him of participation in the alleged conspiracy.
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However, in the present case the trial is already underway and twenty‑two witnesses including the protected witnesses have been examined. As already discussed, the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of a banned terrorist organization involving exchange of a large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice. Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on behalf of the appellant cannot be accepted., Hence, we are of the considered view that the material on record prima facie indicates the complicity of the accused as a part of the conspiracy since he was knowingly facilitating the commission of a preparatory act towards the commission of a terrorist act under section 18 of the Unlawful Activities (Prevention) Act. For the aforementioned reasons the bail application of the appellant is rejected and consequently the appeal fails. Needless to say, that any observation made hereinabove is only for the purpose of deciding the present bail application and the same shall not be construed as an expression on the merits of the matter before the trial court. (M. M. Sundresh).
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Reportable Criminal Appeal No. 451 of 2019 Sita Soren Appellant Versus Union of India Respondent Dr Dhananjaya Y Chandrachud, Chief Justice of India., Parliamentary privilege, codified in Articles 105 and 194 of the Constitution, is integral to deliberative democracy in facilitating the functioning of a parliamentary form of governance. It ensures that legislators in whom citizens repose their faith can express their views and opinions on the floor of the House without fear or favour. With the protection of parliamentary privilege, a legislator belonging to a political party with a minuscule vote share can fearlessly vote on any motion; a legislator from a remote region of the country can raise issues that impact her constituency without the fear of being harassed by legal prosecution; and a legislator can demand accountability without the apprehension of being accused of defamation., Would a legislator who receives a bribe to cast a vote in a certain direction or speak about certain issues be protected by parliamentary privilege? It is this question of constitutional interpretation that this Supreme Court of India is called upon to decide., Reference. The Criminal Appeal arises from a judgment dated 17 February 2014 of the High Court of Jharkhand. An election was held on 30 March 2012 to elect two members of the Rajya Sabha representing the State of Jharkhand. The appellant, belonging to the Jharkhand Mukti Morcha, was a member of the Legislative Assembly of Jharkhand. The allegation against the appellant is that she accepted a bribe from an independent candidate for casting her vote in his favour. However, as borne out from the open balloting for the Rajya Sabha seat, she did not cast her vote in favour of the alleged bribe giver and instead cast her vote in favour of a candidate belonging to her own party. The round of election in question was annulled and a fresh election was held where the appellant voted in favour of the candidate from her own party again., The appellant moved the High Court of Jharkhand to quash the chargesheet and the criminal proceedings instituted against her. The appellant claimed protection under Article 194(2) of the Constitution, relying on the judgment of the Constitution bench of this Supreme Court of India in PV Narasimha Rao v. State (Central Bureau of Investigation/Special Public Enquiry). The High Court of Jharkhand declined to quash the criminal proceedings on the ground that the appellant had not cast her vote in favour of the alleged bribe giver and thus, is not entitled to the protection under Article 194(2). The High Court's reasoning primarily turned on this Supreme Court of India's decision in PV Narasimha Rao. The controversy in PV Narasimha Rao and the present case turns on the interpretation of the provisions of Article 105(2) of the Constitution (which deals with the powers, privileges, and immunities of the members of Parliament and Parliamentary committees) and the equivalent provision in Article 194(2) of the Constitution which confers a similar immunity to the members of the State Legislatures., On 23 September 2014, a bench of two judges of this Supreme Court of India, before which the appeal was placed, was of the view that since the issue arising for consideration is substantial and of general public importance, it must be placed before a larger bench of three judges of this Court. On 7 March 2019, a bench of three judges which heard the appeal observed that the precise question was dealt with in a judgment of a five‑judge bench in PV Narasimha Rao. The bench was of the view that having regard to the wide ramification of the question that has arisen, the doubts raised and the issue being a matter of public importance, the matter must be referred to a larger bench., Finally, by an order dated 20 September 2023, a five‑judge bench of this Supreme Court of India recorded prima facie reasons doubting the correctness of the decision in PV Narasimha Rao and referred the matter to a larger bench of seven judges. The operative part of the order reported as Sita Soren v. Union of India is extracted below: We are inclined to agree that the view which has been expressed in the decision of the majority in PV Narasimha Rao requires to be reconsidered by a larger Bench. Our reasons prima facie for doing so are formulated below: Firstly, the interpretation of Article 105(2) and the corresponding provisions of Article 194(2) of the Constitution must be guided by the text, context and the object and purpose underlying the provision. The fundamental purpose and object underlying Article 105(2) of the Constitution is that Members of Parliament, or as the case may be of the State Legislatures must be free to express their views on the floor of the House or to cast their votes either in the House or as members of the Committees of the House without fear of consequences. While Article 19(1)(a) of the Constitution recognises the individual right to the freedom of speech and expression, Article 105(2) institutionalises that right by recognising the importance of the Members of the Legislature having the freedom to express themselves and to cast their ballots without fear of reprisal or consequences. In other words, the object of Article 105(2) or Article 194(2) does not prima facie appear to be to render immunity from the launch of criminal proceedings for a violation of the criminal law which may arise independently of the exercise of the rights and duties as a Member of Parliament or of the legislature of a state., Secondly, in the course of judgment in PV Narasimha Rao, Justice S. C. Agarwal noted a serious anomaly if the construction in support of the immunity under Article 105(2) for a bribe taker were to be accepted: a member would enjoy immunity from prosecution for such a charge if the member accepts the bribe for speaking or giving their vote in Parliament in a particular manner and in fact speaks or gives a vote in Parliament in that manner. On the other hand, no immunity would attach, and the member of the legislature would be liable to be prosecuted on a charge of bribery if they accept the bribe for not speaking or for not giving their vote on a matter under consideration before the House but they act to the contrary. This anomaly, Justice Agarwal observed, would be avoided if the words in respect of in Article 105(2) are construed to mean arising out of. In other words, in such a case, the immunity would be available only if the speech that has been made or the vote that has been given is an essential and integral part for the cause of action for the proceedings giving rise to the law., Thirdly, the judgment of Justice S. C. Agarwal has specifically dwelt on the question as to when the offence of bribery would be complete. The judgment notes that the offence is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver. The receiver of the bribe would be treated to have committed the offence even when he fails to perform the bargain underlying the tender and acceptance of the bribe. This aspect bearing on the constituent elements of the offence of a bribe finds elaboration in the judgment of Justice Agarwal but is not dealt with in the judgment of the majority., For the above reasons, prima facie at this stage, we are of the considered view that the correctness of the view of the majority in PV Narasimha Rao should be reconsidered by a larger Bench of seven judges., The scope of the present judgment is limited to the reference made by the order of this Supreme Court of India dated 20 September 2023 doubting the correctness of PV Narasimha Rao. The merits of the appellant's case and whether she committed the alleged offence are not being adjudicated by this Supreme Court of India at this stage. Nothing contained in this judgment may be construed as having a bearing on the merits of the trial or any other proceedings arising from it., Overview of the judgment in PV Narasimha Rao. The general elections for the Tenth Lok Sabha were held in 1991. Congress (I) emerged as the single largest party and formed a minority government with Mr. P. V. Narasimha Rao as the Prime Minister. A motion of no‑confidence was moved in the Lok Sabha against the government. The support of fourteen members was needed to defeat the no‑confidence motion. The motion was defeated with two hundred and fifty‑one members voting in support and two hundred and sixty‑five members voting against the motion. A group of Members of Parliament owing allegiance to the Jharkhand Mukti Morcha and the Janata Dal (Ajit Singh) Group voted against the no‑confidence motion. Notably, one MP belonging to the Janata Dal (Ajit Singh), namely, Ajit Singh, abstained from voting., A complaint was filed before the Central Bureau of Investigation alleging that a criminal conspiracy was devised by which the above members belonging to the Jharkhand Mukti Morcha and the Janata Dal (Ajit Singh) entered into an agreement and received bribes to vote against the no‑confidence motion. It was alleged that P. V. Narasimha Rao and several other MPs were parties to the criminal conspiracy and passed on several lakhs of rupees to the alleged bribe‑takers to defeat the no‑confidence motion., A prosecution was launched against the alleged bribe‑givers and bribe‑takers, and cognizance was taken by the Special Judge, Delhi. The accused moved the High Court of Delhi to quash the charges. The High Court of Delhi dismissed the petitions. Appeals were referred to this Supreme Court of India and culminated in the PV Narasimha Rao decision. Two major questions came up for consideration before the Court. First, whether by virtue of Article 105 of the Constitution, an MP can claim immunity from prosecution on a charge of bribery in a criminal court. Second, whether an MP falls within the purview of the Prevention of Corruption Act, 1988, and who is designated as the sanctioning authority for the prosecution of an MP under the Prevention of Corruption Act. In the present judgment, we are concerned solely with the holding of the five‑judge bench on the first question, i.e., the scope of the immunity from prosecution under Article 105(2) when an MP is charged with bribery., Three opinions were authored in the case by Justice S. C. Agarwal, J (for himself and Dr. A. S. Anand, J), Justice S. P. Bharucha, J (for himself and Justice S. Rajendra Babu, J) and an opinion by Justice G. N. Ray, J., Justice S. P. Bharucha (as the learned Chief Justice then was) held that the alleged bribe‑takers who cast their vote against the no‑confidence motion enjoyed immunity from prosecution in a court of law under Article 105(2) of the Constitution. However, Ajit Singh (who abstained from voting) and the alleged bribe‑givers were held not to enjoy the same immunity. Justice Bharucha held that for breach of parliamentary privileges and its contempt, Parliament may proceed against both the alleged bribe‑takers and bribe‑givers. The provisions of Article 105(1) and Article 105(2) suggest that the freedom of speech for MPs is independent of the freedom of speech and its exceptions contained in Article 19. MPs must be free of all constraints about what they say in Parliament. A vote is treated as an extension of speech and is given the protection of the spoken word. The expression in respect of in Article 105(2) must receive a broad meaning and entails that an MP is protected from any proceedings in a court of law that relate to, concern or have a connection or nexus with anything said or a vote given by him in Parliament. The alleged bribe‑takers are entitled to immunity under Article 105(2) as the alleged conspiracy and acceptance of the bribe was in respect of the vote against the no‑confidence motion. The stated object of the alleged conspiracy and agreement was to defeat the no‑confidence motion and the alleged bribe‑takers received the bribe as a motive or reward for defeating it. The nexus between the alleged conspiracy, the bribe and the no‑confidence motion was explicit. The object of the protection under Article 105(2) is to enable MPs to speak and vote freely in Parliament, without the fear of being made answerable on that account in a court of law. It is not enough that MPs should be protected against proceedings where the cause of action is their speech or vote. To enable them to participate freely in parliamentary debates, MPs need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote. It is not difficult to envisage an MP who has made a speech or cast a vote that is not to the liking of the powers that be being troubled by legal prosecution alleging that he had been paid a bribe to achieve a certain result in Parliament. The seriousness of the offence committed by the bribe‑takers does not warrant a narrow construction of the Constitution. Such a construction runs the risk of impairing the guarantee of an effective parliamentary democracy. The immunity under Article 105(2) is operative only insofar as it pertains to what has been said or voted. Therefore, Ajit Singh, the MP who abstained from voting, was not protected by immunity and the prosecution against him would proceed. With regard to whether the bribe‑givers enjoy immunity, since the prosecution against Ajit Singh would proceed, the charge against the bribe‑givers of conspiracy and agreeing with Ajit Singh to do an unlawful act would also proceed. Further, Article 105(2) does not provide that what is otherwise an offence is not an offence when it is committed by an MP. The provision merely provides that an MP shall not be answerable in a court of law for something that has a nexus to his speech or vote in Parliament. Those who have conspired with the MP in the commission of that offence have no such immunity. The bribe‑givers can, therefore, be prosecuted and do not have the protection of Article 105(2)., Justice S. C. Agarwal, J held that neither the alleged bribe‑takers nor the alleged bribe‑givers enjoyed the protection of Article 105(2). An MP does not enjoy immunity under Article 105(2) from being prosecuted for an offence involving the offer or acceptance of a bribe for speaking or giving his vote in parliament or any committee. The object of the immunity under Article 105(2) is to ensure the independence of legislators for the healthy functioning of parliamentary democracy. An interpretation of Article 105(2) which enables an MP to claim immunity from prosecution for an offence of bribery would place them above the law. This would be repugnant to the healthy functioning of parliamentary democracy and subversive of the rule of law. The expression in respect of precedes the words anything said or any vote given in Article 105(2). The words anything said or any vote given can only mean speech that has been made or a vote that has already been given and does not extend to cases where the speech has not been made or the vote has not been cast. Therefore, interpreting the expression in respect of widely would result in a paradoxical situation. An MP would be liable to be prosecuted for bribery if he accepted a bribe for not speaking or not giving his vote on a matter, but he would enjoy immunity if he accepted the bribe for speaking or giving his vote in a particular way and actually speaks or gives his vote in that manner. It is unlikely that the framers of the Constitution intended to make such a distinction. The phrase in respect of must be interpreted to mean arising out of. Immunity under Article 105(2) is available only to give protection against liability for an act that follows or succeeds as a consequence of making the speech or giving of vote by an MP and not for an act that precedes the speech or vote and gives rise to liability which arises independently of the speech or vote. The offence of criminal conspiracy is made out on the conclusion of an agreement to commit the offence of bribery and the performance of the act pursuant to the agreement is not of any consequence. Similarly, the act of acceptance of a bribe for speaking or giving a vote against the motion arises independently of the making of the speech or giving of the vote by the MP. Hence, liability for the offence cannot be treated as in respect of anything said or any vote given in Parliament. The international trend, including law in the United States, Australia and Canada, reflects the position that legislators are liable to be prosecuted for bribery in connection with their legislative activities. Most of the Commonwealth countries treat corruption and bribery by members of the legislature as a criminal offence. In the United Kingdom also there is a move to change the law in this regard. There is no reason why legislators in India should not be covered by laws governing bribery and corruption when all other public functionaries are subject to such laws., Justice G. N. Ray, J in a separate opinion concurred with the reasoning of Justice Agarwal, J that an MP is a public servant under the Prevention of Corruption Act and on the question regarding the sanctioning authority under the Prevention of Corruption Act. However, on the interpretation of Article 105(2), Justice Ray, J concurred with the judgment of Justice Bharucha, J. Hence, the opinion authored by Justice Bharucha, J on the interpretation of Article 105(2) represents the view of the majority of three judges of this Supreme Court of India. The opinion authored by Justice Agarwal, J on the other hand, represents the view of the minority., Submissions. Over the course of the hearing, we have heard Mr. Raju Ramachandran, senior counsel appearing on behalf of the appellant, Mr. R. Venkataramani, Attorney General for India, Mr. Tushar Mehta, Solicitor General of India, Mr. P. S. Patwalia, senior counsel, amicus curiae, Mr. Gopal Sankarnarayanan, senior counsel, and Mr. Vijay Hansaria, senior counsel, appearing on behalf of intervenors. This Supreme Court of India being a court of record, the submissions made by the learned advocates are briefly listed below., Mr. Raju Ramachandran, senior counsel appearing on behalf of the appellant submitted that the judgment of the majority in PV Narasimha Rao is squarely applicable to the present case. Further, he argued that the majority judgment is well‑reasoned and there are no grounds to reconsider the settled position of law. In this regard, he made the following submissions: The overruling of long‑settled law in PV Narasimha Rao is unwarranted according to the tests laid down by this Court on overturning judicial precedents. The object behind conferring immunity on MPs and MLAs was to shield them from being oppressed by the power of the crown. The apprehension of parliamentarians being arrested shortly before or after the actual voting or making of a speech in the Parliament (such vote or speech directed against the Executive) was the precise reason for introducing the concept of privileges and immunities. The concept of constitutional privileges and immunities is not in derogation of the Rule of Law, but it is a distinct feature of our constitutional structure. The majority judgment preserves the privilege of MPs and MLAs to protect their dignity as legislators and is not opposed to the rule of law. The majority judgment gave due regard and recognition to Parliament's exclusive powers to take appropriate steps against corrupt practices by its members, just as the Parliament recognizes the limits on discussions in the House, such as the inability to entertain discussions on the conduct of judges of constitutional courts under Article 121 of the Constitution. The present position on parliamentary privilege in India and the United Kingdom entails that (a) it is fundamental to a democratic polity and courts have exercised judicial restraint; and (b) the privilege must necessarily relate to the exercise of legislative functions, which in India relates to voting and making of speeches. While determining whether an act is immune from judicial scrutiny, the necessity test is to be applied, i.e., whether there is a nexus between the act in question and the legislative process of voting/making speeches. The so‑called anomaly in the majority judgment flows from the plain language of Articles 105(2) and 194(2) and any attempt to whittle down their protective scope to adhere to what is seemingly logical, fair or reasonable would be constitutionally unjustified. However, while advancing his oral submissions in rejoinder, Mr. Ramachandran conceded that the view that an abstention from voting would not be protected under Article 105(2) was incorrect and abstaining from voting, in fact, constitutes casting a vote. The minority judgment in PV Narasimha Rao has erred in reading 'in respect of' as 'arising out of'. Such a reading is not warranted by either the plain language or the intent of the provision. The fact that the offence of bribery in criminal law is complete when the bribe is given and is not dependent on the performance of the promised favour is of no consequence to the constitutional immunity under Articles 105(2) and 194(2). Once a speech is made or a vote is given, the nexus, i.e., 'in respect of', is fulfilled. The overruling of the majority judgment will have severe unintended consequences. In view of political realities, if the parliamentary immunity conferred upon MPs/MLAs is whittled down, it would enhance the possibility of abuse of the law by political parties in power. Voting in the Rajya Sabha Elections is within the scope of protection of Article 194(2) as it has all the trappings of any other law‑making process in the legislature., Mr. R. Venkataramani, the learned Attorney General for India advanced a preliminary submission that the decision in PV Narasimha Rao is inapplicable to the instant case. He submitted that the exercise of franchise by an elected member of the legislative assembly in a Rajya Sabha election does not fall within the ambit of Article 194(2), and thus, PV Narasimha Rao does not have any application to the present case. He submits that the objective of Article 194(2) is to protect speech and conduct in relation to the functions of the legislature. Therefore, any conduct which is not related to legislative functions, such as the election of members to the Rajya Sabha, will fall outside the ambit of Article 194(2). According to the learned Attorney General, the election of members to the Rajya Sabha is akin to any other election process and cannot be treated as a matter of business or function of the legislature., In response to the learned Attorney General's submissions that the polling for Rajya Sabha cannot be considered a proceeding of the House, Mr. Ramachandran has submitted that the cases relied on by the learned Attorney General were not rendered in a context where parliamentary privilege or immunity was sought to be invoked and the passing reference to the concept of legislative proceedings was in an entirely different context. Further, certain legislative processes such as ad‑hoc committees, standing committees, elections of the constitutional offices of the President/Vice President, and members of the Rajya Sabha, do not necessarily take place on the floor of the House when it is in session. However, they have all the trappings of carrying out the legislative process., Mr. P. S. Patwalia, amicus curiae has submitted that the majority judgment must be reconsidered, and the view of the minority reflects the correct position of law. In this regard, Mr. Patwalia made the following submissions: The majority judgment has erroneously given a wide interpretation to the expression 'in respect of' and granted immunity to MPs from criminal prosecution when they accept a bribe to cast a vote in Parliament. The object of Article 105 is not to place MPs above the law when the offence has been committed before the MP enters the House of Parliament. The ratio of the judgments of this Court rendered after PV Narasimha Rao militates against the grant of immunity to MPs for taking a bribe for casting votes. The minority judgment correctly notes that the offence of bribery is complete before the member even enters the House and therefore, the offence has no connection or correlation with the vote that she may cast in Parliament. The protection under Articles 105(2) and 194(2) is not available when the alleged criminal acts are committed outside Parliament. The proposition that MPs are immune from prosecution for an offence of bribery in connection with their votes in Parliament is subversive of the rule of law. The majority judgment results in an anomalous situation, where an MP who accepts a bribe and does not cast his vote can be prosecuted, while a member who casts his vote is given immunity. The position of law in the United Kingdom, as developed over the years, confirms the proposition that the claim of privilege cannot be extended to immunity from prosecution for the offence of bribery. The international trend, particularly in the United States, Canada and Australia, is that parliamentary privilege does not extend to the offence of bribery. This trend is correctly relied on in the minority judgment, while the majority judgment relies on decisions which have been subsequently diluted even in their original jurisdictions., Mr. Gopal Sankarnarayan, senior counsel appearing on behalf of the intervenor endorsed the view taken by the amicus curiae. Additionally, he made the following submissions: While the majority judgment has been doubted on multiple occasions, the minority judgment has been extensively relied on by this Supreme Court of India. The word 'any' employed in Articles 105 and 194 of the Constitution ought to be given a narrow interpretation and should not mechanically be interpreted as everything, especially as it grants an exceptional immunity not available to the common person. The expression 'in respect of' must be read narrowly. It must be tied down to legitimate acts that are a part of the legislative process involving speech or a vote in Parliament or before a committee. Any other interpretation would violate the sanctity of the democratic process and the trust placed in the legislators by the public. Strict interpretation ought to be given to laws dealing with corruption which affects the public interest. The offence of bribery is complete on receipt of the bribe well before the vote is given or speech is made in Parliament. The offence under Section 7 and Section 13 of the Prevention of Corruption Act does not require performance. Therefore, the delivery of results is irrelevant to the offence being established and the distinction created by the majority is artificial. The effect of the majority judgment is that it creates an illegitimate class of public servants which is afforded extraordinary protection which would be a violation of Article 14, as also being manifestly arbitrary. Internationally, the legal position in the United States of America, United Kingdom, Canada, Australia, South Africa and New Zealand supports the minority judgment., Mr. Tushar Mehta, the learned Solicitor General of India highlighted the significance of preserving parliamentary privileges.
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He submitted that the issue for consideration before the Supreme Court of India is not the contours of parliamentary privileges but whether the offence of bribery is complete outside the legislature. Mr Mehta submitted that the offence of bribery under the Prevention of Corruption Act, both before and after the 2018 amendment, is complete on the acceptance of the bribe and is not linked to the actual performance or non‑performance of the official function to which the bribe relates., Mr Vijay Hansaria, Senior Advocate appearing on behalf of the intervenor, supplemented the arguments assailing the majority judgment. He submitted that the principle of parliamentary privilege must be interpreted in the context of the criminalisation of politics and through the prism of constitutional morality. In his written submissions, Mr A Velan, Advocate for the intervenor, supported the submission that the majority judgment in PV Narasimha Rao (supra) ought to be reconsidered., We begin by addressing the preliminary argument of Mr Raju Ramachandran, that overruling the long‑settled law in PV Narasimha Rao (supra) is unwarranted by the application of the tests laid down by the Supreme Court of India on overturning judicial precedent. The order of reference provides reasons for prima facie doubting the correctness of the decision in PV Narasimha Rao (supra) including its impact on the polity and the preservation of probity in public life. However, since the learned Senior Counsel has reiterated the preliminary objection to reconsidering the decision in PV Narasimha Rao (supra) before this bench of seven judges, the argument has been addressed below., A decision delivered by a bench of larger strength is binding on any subsequent bench of lesser or co‑equal strength. A bench of lesser strength cannot disagree with or dissent from the view of the law taken by the bench of larger strength. However, a bench of the same strength can question the correctness of a decision rendered by a co‑ordinate bench. In such situations, the case is placed before a bench of larger strength., In the present case, the matter was first placed before a bench of two judges who referred the case to a bench of three judges. The bench of three judges referred the case to a bench of five judges. In consonance with judicial discipline, the correctness of the decision in PV Narasimha Rao (supra) was only doubted by the co‑equal bench of five judges of the Supreme Court of India in a detailed order. Accordingly, the matter has been placed before this bench of seven judges., Doubts about the correctness of the decision in PV Narasimha Rao (supra) have been raised by the Supreme Court of India in several previous decisions as well. For instance, in Kalpana Mehta v. Union of India, one of us (Justice D.Y. Chandrachud) observed: 221. The view of the minority was that the offence of bribery is made out against a bribe‑taker either upon taking or agreeing to take money for a promise to act in a certain manner. Following this logic, Justice S.C. Agrawal held that the criminal liability of a Member of Parliament who accepts a bribe for speaking or giving a vote in Parliament arises independent of the making of the speech or the giving of the vote and hence is not a liability in respect of anything said or any vote given in Parliament. The correctness of the view in the judgment of the majority does not fall for consideration in the present case. Should it become necessary in an appropriate case in future, a larger bench may have to consider the issue., Similar observations have been made by the Supreme Court of India in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha. The Court has relied on the minority judgment in several decisions, notably Kuldip Nayar v. Union of India and Amarinder Singh v. Punjab Vidhan Sabha. As the correctness of the decision in PV Narasimha Rao (supra) did not directly arise in these cases, the Court refrained from making a reference or conclusive observations about the correctness of that decision. However, the present case turns almost entirely on the law laid down in PV Narasimha Rao (supra)., The correctness of PV Narasimha Rao (supra) arises squarely in the facts of this case, as shown by the impugned judgment of the High Court. The High Court formulated the question for consideration as whether Article 194(2) of the Constitution of India confers any immunity on Members of the Legislative Assembly for being prosecuted in a criminal court of an offence involving offer or acceptance of a bribe. This is the precise question that the Supreme Court of India adjudicated on in PV Narasimha Rao (supra) in the context of Article 105(2)., Both the counsel for the appellant and the counsel for the CBI relied on the reasoning in PV Narasimha Rao (supra). The High Court, in its analysis, held that since Article 194(2) is pari materia to Article 105(2), the law laid down in PV Narasimha Rao (supra) covers the field. The High Court relied on PV Narasimha Rao (supra) in holding that an MP who has not cast his vote is not covered by the immunity. Since the appellant did not vote as agreed, she was held not to be protected from immunity under Article 194(2)., The issue which arose before the High Court turned on the decision in PV Narasimha Rao (supra). Therefore, this proceeding provides the correct occasion to settle the law once and for all. There is no infirmity in the reference to seven judges to reconsider the decision in PV Narasimha Rao (supra)., Mr Raju Ramachandran, senior counsel appearing on behalf of the appellant, has argued that a position of law which has stood undisturbed since 1998 should not be interfered with by the Supreme Court of India. We do not consider it appropriate for the Supreme Court of India to confine itself to such a rigid understanding of the doctrine of stare decisis. The ability of the Supreme Court of India to reconsider its decisions is necessary for the organic development of law and the advancement of justice. If the Supreme Court of India is denuded of its power to reconsider its decisions, the development of constitutional jurisprudence would virtually come to a standstill. In the past, the Supreme Court of India has not refrained from reconsidering a prior construction of the Constitution if it proves to be unsound, unworkable, or contrary to public interest., This delicate balance was eloquently explained by Justice H.R. Khanna in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay: 22. The Supreme Court of India has to keep the balance between the need of certainty and continuity and the desirability of growth and development of law. It can neither by judicial pronouncements allow law to petrify into fossilised rigidity nor can it allow revolutionary iconoclasm to sweep away established principles. On the one hand the need is to ensure that judicial inventiveness shall not be desiccated or stunted, on the other it is essential to curb the temptation to lay down new and novel principles in substitution of well‑established principles in the ordinary run of cases and the readiness to canonise the new principles too quickly before their saintliness has been affirmed by the passage of time., A bench of seven judges of the Supreme Court of India in Bengal Immunity Company Limited v. State of Bihar and Others delineated the powers of the Supreme Court of India to reconsider its own decisions in view of the doctrine of stare decisis. Both Justice S.R. Das, Chief Justice and Justice Bhagwati, in their separate opinions, detailed the power of the Supreme Court of India to reconsider its judgments, particularly when they raise issues of constitutional importance. Justice S.R. Das explored judgments delivered in various jurisdictions, such as England, Australia, and the United States, to conclude that the Supreme Court of India cannot be denuded of its power to depart from its previous decisions, particularly on questions of interpretation of the Constitution., The Supreme Court of India observed that an erroneous interpretation of the Constitution could result in a situation where the error is not rectified for a long period of time to the detriment of the general public. The test laid down by the Supreme Court of India was rooted in establishing the baneful effect of the previous decision on the general interests of the public. It was observed: in a country governed by a Federal Constitution, such as the United States of America and the Union of India, it is by no means easy to amend the Constitution if an erroneous interpretation is put upon it by the Supreme Court of India (see Article 368 of the Constitution). An erroneous interpretation of the Constitution may quite conceivably be perpetuated or may at any rate remain unrectified for a considerable time to the great detriment to public well‑being. There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public. Article 141, which lays down that the law declared by the Supreme Court of India shall be binding on all courts within the territory of India, quite obviously refers to courts other than the Supreme Court of India. The corresponding provision of the Government of India Act, 1935 also makes it clear that the courts contemplated are the subordinate courts., Justice Bhagwati also emphasized the distinction between deviating from a decision dealing with the interpretation of statutory provisions and an interpretation of the Constitution, while opining that while an incorrect interpretation of a statute may be corrected by the legislature, it is not as easy to amend the Constitution to correct an unworkable interpretation. Akin to the exposition by Justice S.R. Das, the test to reconsider previous decisions in the opinion of Justice Bhagwati is whether the previous decision is manifestly wrong or erroneous or public interest requires it to be reconsidered., The doctrine of stare decisis provides that the Supreme Court of India should not lightly dissent from precedent. However, the Supreme Court of India has held in a consistent line of cases that the doctrine is not an inflexible rule of law, and it cannot result in perpetuating an error to the detriment of the general welfare of the public. The Supreme Court of India may review its earlier decisions if it believes that there is an error, or the effect of the decision would harm the interests of the public, or if it is inconsistent with the legal philosophy of the Constitution. In cases involving the interpretation of the Constitution, the Supreme Court of India would do so more readily than in other branches of law because not rectifying a manifest error would be harmful to public interest and the polity. The period of time over which the case has held the field is not of primary consequence. The Supreme Court of India has overruled decisions which involve the interpretation of the Constitution despite the fact that they have held the field for long periods of time when they offend the spirit of the Constitution., The judgment of the majority in PV Narasimha Rao (supra) deals with an important question of constitutional interpretation which impacts probity in public life. The decision has been met with notes of discord by various benches of the Supreme Court of India ever since it was delivered in 1998. An occasion has arisen in this case to lay down the law and resolve the dissonance. This is not an instance of the Supreme Court of India lightly transgressing from precedent. In fact, this case is an example of the Court giving due deference to the rule of precedent and refraining from reconsidering the decision in PV Narasimha Rao (supra) until it arose squarely for consideration., The appellant has relied on judgments of the Supreme Court of India in Shanker Raju v. Union of India, Shah Faesal v. Union of India, Keshav Mills Co. Ltd. v. Commissioner of Income Tax and Krishena Kumar v. Union of India. These judgments reiterate the proposition that (i) the doctrine of stare decisis promotes certainty and consistency in law; (ii) the Court should not make references to reconsider a prior decision in a cavalier manner; and (iii) a settled position of law should not be disturbed merely because an alternative view is available. However, all these judgments recognise the power of the Supreme Court of India to reconsider its decisions in certain circumstances including considerations of public policy, public good and to remedy continued injustice., In Shanker Raju (supra), the Supreme Court of India was dealing with the interpretation of the Administrative Tribunals (Amendment) Act, 2006 and the appointment of a judicial member of the Central Administrative Tribunal. The two‑judge bench observed that it was bound by the decision of a bench of larger strength adjudicating a similar issue and could not reconsider the view taken in that decision merely because an alternative view was available., In Shah Faesal (supra), a Constitution Bench of the Supreme Court of India was adjudicating on the question of whether the petitions were to be referred to a larger bench of seven judges on the ground that there were purportedly two contradictory decisions by benches of five judges. The Court observed that references to larger benches cannot be made casually or based on minor inconsistencies between two judgments. In that context, the Court found that the decisions were not irreconcilable with each other nor was one of the decisions per incuriam. While laying down the law on the doctrine of stare decisis, the Court held that in certain cases the Court may reconsider its decisions, particularly when they prove to be unworkable or contrary to well‑established principles. The Court also referred to the transition in the practice of the House of Lords in the United Kingdom, from an absolute prohibition on reconsidering previous decisions to the present position, which permits overruling of decisions in certain circumstances. The Court also quoted the Canadian position to the effect that while precedent should not routinely be deviated from, reconsidering previous decisions is permissible when it is necessary in public interest., The decision in Keshav Mills (supra) interpreted the provisions of the Income Tax Act, 1922 and in the circumstances of that case, the Court did not find any compelling reasons to reconsider previous decisions on a similar point of law. The Court recognised that it is permissible in circumstances where it is in the interests of the public or if there are any other valid or compulsive reasons, to reconsider a prior decision. Further, the Court noted that it would not be wise to lay down principles to govern the approach of the Court in reviewing its decisions as it is based on several considerations, including the impact of the error on the general administration of law or on public good. This exposition is, in fact, contained in the same paragraph that the appellant relies on to advance a rigid understanding of stare decisis. The bench of seven judges of the Supreme Court of India (speaking through Chief Justice Gajendragadkar) observed: In reviewing and revising its earlier decision, the Supreme Court of India should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When the Supreme Court of India decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of the Supreme Court of India to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by the Supreme Court of India of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Supreme Court of India to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Supreme Court of India is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Supreme Court of India must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case, it would be inexpedient to lay down any principles which should govern the approach of the Supreme Court of India in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations: What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Supreme Court of India not drawn to any relevant and material statutory provision, or was any previous decision of the Supreme Court of India bearing on the point not noticed? Is the Supreme Court of India hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by the Supreme Court of India or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever the Supreme Court of India is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a bench of five learned judges of the Supreme Court of India., Similarly, Krishena Kumar (supra) was a case about pension payable to government employees. There, too, although the Supreme Court of India did not find compelling reasons to reconsider its previous decisions in that factual context, it recognised that the Supreme Court of India does have the power to do so in order to remedy continued injustice or due to considerations of public policy., The context in the above cases cited by the appellant is not comparable with the present case. As set out in the order of reference and in the course of this judgment, the decision in PV Narasimha Rao (supra) has wide ramifications on public interest, probity in public life and the functioning of parliamentary democracy. The majority judgment contains several apparent errors inter alia in its interpretation of the text of Article 105; its conceptualisation of the scope and purpose of parliamentary privilege and its approach to international jurisprudence, all of which have resulted in a paradoxical outcome. The present case is one where there is an imminent threat of the Supreme Court of India allowing an error to be perpetuated if the decision in PV Narasimha Rao (supra) is not reconsidered., Finally, the appellant also relies on the judgment of the Supreme Court of India in Ajit Mohan v. Legislative Assembly, National Capital Territory of Delhi, where this Court observed that there are divergent views amongst constitutional experts on whether full play must be given to the powers, privileges, and immunities of legislative bodies, as originally defined in the Constitution, or whether it is to be restricted. However, it has been urged that the Supreme Court of India refused to express its views on the matter on the ground that such an opinion must be left to Parliament. The appellant submits that similarly, in this case, the Court must refrain from taking a conclusive view and leave the issue for the determination of Parliament. The argument is misconceived., This judgment does not seek to determine or restrict the powers, privileges, and immunities of the legislature as defined in the Constitution. Rather, this judgment has a limited remit which is to adjudicate on the correct interpretation of Article 105 and Article 194 of the Constitution. Therefore, the Supreme Court of India is adjudicating upon the interpretation of the Constitution as it stands, and not on the question of whether full play should be given to the privileges., In a separate but concurring opinion in Mark Graves v. People of the State of New York, while overruling two previous decisions of the United States Supreme Court on a question of constitutional importance, Justice Frankfurter pithily observed: Judicial exegesis is unavoidable with reference to an act like our Constitution, drawn in many particulars with purposive vagueness so as to leave room for the unfolding future. But the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it., The above formulation holds true for the Constitution of India as well, which is a transformative document that raises delicate issues of constitutional interpretation. Cognizant of the consequences of the majority judgment, we endeavour to stay true to what the Constitution itself fathomed as the remit of Articles 105(2) and 194(2) even if it may be at the cost of moving away from what we have said about it in PV Narasimha Rao (supra). We believe that we must not perpetuate a mistaken interpretation of the Constitution merely because of rigid allegiance to a previous opinion of five judges of the Supreme Court of India., Having adverted to the background, submissions and preliminary issues, we turn to the subject which arises for consideration., E. History of parliamentary privilege in India, In a deliberative democracy, the aspirations of the people are met by discourse in democratic institutions. The foremost among these institutions are Parliament and the State Legislatures. The object of the Constitution to give life and meaning to the aspirations of the people is carried out by its representatives through legislative business, deliberations, and dialogue. Parliament is called the grand inquest of the nation. Not only can the actions and legislative priorities of the government of the day be scrutinised and criticised to hold it accountable, but Parliament also acts as a forum for ventilating the grievances of individuals, civil society, and public stakeholders. When the space for deliberation in the legislature shrinks, people resort to conversations and democratic actions outside the legislature. This privilege of the citizens to scrutinise the proceedings in Parliament is a concomitant right of a deliberative democracy which is a basic feature of the Constitution. Our Constitution intended to create institutions where deliberations, views and counter‑views could be expressed freely to facilitate a democratic and peaceful social transformation., Parliament is a quintessential public institution which deliberates on the actualisation of the aspirations of all Indians. The fulcrum of parliamentary privileges under a constitutional and democratic set‑up is to facilitate the legislators to freely opine on the business before the House. Freedom of speech in the legislature is hence a privilege essential to every legislative body., A deliberative democracy imagines deliberation as an ethic of good governance and is not restricted to the parliamentary sphere alone. The opinion of Justice Sanjeev Khanna in Rajeev Suri v. Delhi Development Authority elucidates the contours of deliberative democracy as follows: 653. Deliberative democracy accentuates the right of participation in deliberation, in decision‑making, and in contestation of public decision‑making. Contestation before the courts post the decision or legislation is one form of participation. Adjudication by courts, structured by the legal principles of procedural fairness and deferential power of judicial review, is not a substitute for public participation before and at the decision‑making stage. In a republican or representative democracy, citizens delegate the responsibility to make and execute laws to the elected government, which takes decisions on their behalf. This is unavoidable and necessary as deliberation and decision‑making is more efficient in smaller groups. The process requires gathering, processing and drawing inferences from information especially in contentious matters. Vested interests can be checked. Difficult, yet beneficial decisions can be implemented. Government officers, skilled, informed and conversant with the issues and political executive backed by the election mandate and connected with electorate, are better equipped and positioned to take decisions. This enables the elected political executive to carry out their policies and promises into actual practice. Further, citizens approach elected representatives and through them express their views both in favour and against proposed legislations and policy measures. Nevertheless, when required draft legislations are referred to Parliamentary Committees for holding elaborate consultation with experts and stakeholders. The process of making primary legislation by elected representatives is structured by scrutiny, consultation and deliberation on different views and choices infused with an element of garnering consensus., 656. However, delegation of the power to legislate and govern to elected representatives is not meant to deny the citizenry’s right to know and be informed. Democracy, by the people, is not a right to periodical referendum; or exercise of the right to vote, and thereby choose elected representatives, express satisfaction, disappointment, approve or disapprove projected policies. Citizens’ right to know and the Government’s duty to inform are embedded in the democratic form of governance as well as the fundamental right to freedom of speech and expression. Transparency and receptiveness are two key propellants as even the most competent and honest decision‑makers require information regarding the needs of the constituency as well as feedback on how the extant policies and decisions are operating in practice. This requires free flow of information in both directions. When information is withheld/denied suspicion and doubt gain ground and the fringe and vested interest groups take advantage. This may result in social volatility., The freedom of elected legislators to discuss and debate matters of the moment on the floor of the House is a key component of a deliberative democracy in a Parliamentary form of government. The ability of legislators to conduct their functions in an environment which protects their freedom to do so without being overawed by coercion or fear is constitutionally secured. As citizens, legislators have a fundamental right to the freedom of speech and expression. Going beyond that, the Constitution secures the freedom to speak and debate in the legislatures both of the Union and States. This is the protection afforded to individual legislators. The recognition of that right is premised on the need to secure the institutional foundation of Parliament and the State legislatures as key components of the dialogue, debate and critique which sustains democracy., In the Indian context, deliberative democracy as well as the essential privilege of freedom of speech in legislatures cannot be understood without reference to its history and development in the aftermath of the struggle for independence from colonial rule. India provides an example in history where representative institutions have evolved in stages. The privileges of legislatures in India have been closely connected with the history of these institutions. This history can be traced to the history of parliamentary privileges in the House of Commons in the United Kingdom as well as the struggle of the Indian Legislatures to claim these privileges under colonial rule. The steps which were initiated under colonial rule to bring political and parliamentary governance to India always fell short of the aspirations of Indians. This can primarily be attributed to the fact that British rule was resistant to the desire of Indians to be independent. Hence, the Indian legislatures were not acknowledged to have comparable privileges to those of the House of Commons in the United Kingdom., In Kielly v. Carson, the Privy Council had propounded that the House of Commons in the United Kingdom had acquired privileges by ancient usage and colonial legislatures had no lex et consuetudo parliament or the law and custom of Parliament as their rights emanated from a statute. This implied that there were no inherent rights granted to legislatures under colonial rule., Under the rule of the East India Company, law making lay in the exclusive domain of the executive till 1833. The Government of India Act 1833 redesignated the Governor‑General of Bengal as the Governor‑General of India with exclusive legislative powers. The Governor‑General was to have four members, one of whom would be a law member who was not entitled to act as a member of the Council except for legislative purposes. This was an introductory measure for legislatures in India because the Council of the Governor‑General would hold distinct meetings to transact its executive functions and legislative functions. This procedure was envisaged for convenience in enacting laws in the vast and diverse social milieu in India rather than a desire to provide representation as a means for framing better laws. However, reflecting the need for legislative privileges in carrying out the duties of the legislators, the first law member, Lord Macaulay, made efforts to secure some special facilities in the nature of powers by his drafting standing orders. These special facilities included providing complete information on the subject of the legislation, the right to be present in all meetings of the Council of the Governor‑General, freedom of speech, and freedom of voting.
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The privileges of attendance and voting even in non‑legislative business were extended by the Charter Act 1853. It marked a further separation of the executive and legislative functions. The Legislative Council was to have additional members to help transact the legislative business and give their independent considerations to the laws under scrutiny. These members in the Legislative Council did not have any privileges by statute, but the absence of restrictions on their freedom of speech was construed as conferring inherent rights and privileges on them. The Council therefore attempted to assume powers akin to a mini Parliament modelled around the House of Commons in the United Kingdom., The Legislative Council under the Acts of 1833 and 1853 had the power to frame its own rules of procedure. This power was taken away in the Indian Council Act 1861. Section 10 of the 1861 Act introduced between six and twelve non‑official members into the Legislative Councils, who could be British or Indians. There was an implicit recognition of the freedom of speech and vote of these additional members. The British Parliament had recognised the existence of the privilege for the members of the Indian Councils, which was also confirmed by the Secretary of State for India. Nevertheless, the provisions of the 1861 Act were sufficiently stringent and did not allow the Council to have any activity beyond the limited sphere prescribed by the Act. Moreover, there was a marked difference between the freedom of speech effectively enjoyed by official members and nominated Indian members., The Government of India Act 1909 marked a significant shift in the evolution of India’s political institutions. The Act allowed more Indians to be a part of Legislative Councils and enlarged their functions. Members were allowed to ask questions and supplementary questions to the executive. The Act was a way forward for electoral and representative governance by prescribing the indirect election of Indians to the Council. However, even in these Councils, discussion on certain subjects was not permitted. Non‑official members continued to assert the privilege of free speech in the Council. Despite being indirectly elected, Indian members of legislatures diluted the rigidity of colonial governance. In the absence of official support, privileges grew as a convention rather than law. The executive felt at liberty to violate the privileges of the Legislative Council and maintained that the Councils in India did not have any privilege akin to the House of Commons in the United Kingdom., The Government of India Act 1919 separated the legislatures from executive control. It introduced dyarchy by prescribing two classes of administrators: the Executive councillors who were not accountable to the legislature and the ministers who would enjoy the confidence of the legislature. The Act extended more powers to the legislatures than previously enjoyed by them, but members were restricted on the range of subjects which they could discuss, participate in and vote upon. Many privileges were not specified in the 1919 Act or the rules of procedure of the House. Nevertheless, the legislature claimed privileges as an inherent right of the legislature in the face of an unwilling executive. Section 24(7) of the 1919 Act read: “Subject to the rules and standing orders affecting the Council, there shall be freedom of speech in the Governors’ Legislative Councils. No person shall be liable to any proceedings in any court by reason of his speech or vote in any such Council or by reason of anything contained in any official report of the proceedings of any such Council.” A corresponding provision was made in Section 11(7) of the Act with respect to provincial Legislative Councils. The freedom of speech in the Legislative Councils was subject to the rules promulgated by the Governor‑General, so while freedom of speech was extended, it remained subject to the pleasure of the Governor‑General and the Secretary of State for India for the legislature’s rule‑making power., A committee was set up in 1924 within a few years of the introduction of the Government of India Act 1919. The committee was tasked with enquiring into the difficulties or defects in the 1919 Act and exploring remedies for securing them. The Reforms Committee of 1924 made reference to the privileges of Indian legislative bodies and opined that at present such action would be premature, but that the legislatures and their members had not been given by the Government of India Act all the protection that they needed. The committee noted that under the statute there was freedom of speech in all the legislatures and immunity from the jurisdiction of the courts in respect of speeches or votes, and that the Presidents had been given considerable powers for the maintenance of order, but that the matter ended there., The committee further suggested that certain additional privileges be granted to Indian legislatures and recommended introducing a penal provision for influencing votes within the legislature through bribery, intimidation and the like. The report stated that there were no means of dealing with the corrupt influence of votes within the legislature and that influencing votes by bribery should be legislated against as a penal offence under ordinary law rather than as a breach of privilege. The government introduced a Legislative Bodies Corrupt Practices Bill which proposed to penalise (i) the offering of a bribe to a member of a legislature in connection with his functions and (ii) the receipt on demand by a member of a legislature of a bribe in connection with his functions. The Bill ultimately lapsed and was not reintroduced., The provisions of the 1919 Act were substantially retained in Section 28(1) of the Government of India Act 1935. Section 28(1) read: “Subject to the provisions of this Act and the rules and standing orders regulating the procedure of the Federal Legislature, there shall be freedom of speech in the Legislature, and no member of the Legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either Chamber of the Legislature of any report, paper, votes or proceedings.” A corresponding provision was made in Section 71(1) of the 1935 Act with respect to Provincial Legislatures. The House was empowered to make rules for the conduct of proceedings, but those rules were always to give way to the rules framed by the Governor‑General for the House., Parliamentary privileges had taken root in India as legislators demanded parity with the House of Commons, with reasonable adjustments to account for Indian needs. Prominent among the demands were the power to punish for contempt of the House, supremacy of the Chair in matters of the House, and freedom of speech and freedom from arrest to allow members to partake in proceedings and discharge their functions. At no point were these privileges demanded as a blanket immunity from criminal law. Even in the face of colonial reluctance, the demand for parliamentary privileges in India was always tied to the functions that Indian legislators sought to discharge., When the Constituent Assembly convened to discuss Article 85 of the draft Constitution, Mr. H. V. Kamath moved an amendment to remove the reference to the House of Commons in the United Kingdom and replace it with the Dominion Legislature in India immediately before the commencement of the Constitution. Mr. Shibban Lal Saxena opposed the amendment, stating that there were no privileges which the Assembly enjoyed and that if the amendment sought the complete nullification of all privileges, he was welcome to have it adopted. The members of the Constituent Assembly were therefore keenly aware that their privileges under colonial rule were not ancient and undoubted like those of the House of Commons, but a statutory grant made by successive enactments and assertion by legislatures., Article 105, located in Part V Chapter II of the Constitution, stipulates the powers, privileges and immunities of Parliament, its members and committees. An analogous provision concerning State Legislatures is in Article 194. Article 105 reads: “(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty‑fourth Amendment) Act, 1978. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”, Clause (1) declares that there shall be freedom of speech in Parliament, subject to the Constitution and to the rules and standing orders regulating parliamentary procedure. Consequently, the freedom of speech is subject to the provisions that regulate procedure under Article 118 and is also subject to Article 121, which restricts Parliament from discussing the conduct of any Judge of the Supreme Court or of a High Court except upon a motion for presenting an address to the President for removal of the Judge. The freedom of speech guaranteed in Parliament under Article 105(1) is distinct from that guaranteed under Article 19(1)(a). In Alagaapuram R. Mohanraj v. Tamil Nadu Legislative Assembly, the Supreme Court of India delineated the differences: (a) the fundamental right of speech under Article 19(1)(a) is available to every citizen, whereas the freedom of speech under Articles 105 and 194 is available only to members of the legislature; (b) Article 105 is available only during the tenure of membership, while the fundamental right under Article 19(1)(a) is inalienable; (c) Article 105 is limited to the premises of the legislative bodies, whereas Article 19(1)(a) has no geographical limitation; and (d) Article 19(1)(a) is subject to reasonable restrictions under Article 19(2), but the right of free speech available to a legislator under Articles 105 or 194 is not subject to such limitations. The express provision for freedom of speech in Parliament in clause (1) suggests that this freedom is independent of the freedom of speech conferred by Article 19 and is not restricted by the exceptions contained therein., Clause (2) has two limbs. The first prescribes that a member of Parliament shall not be liable before any court in respect of anything said or any vote given by them in Parliament or any committee thereof. The second limb prescribes that no person shall be liable before any court in respect of the publication by or under the authority of either House of Parliament of any report, paper, vote or proceedings. The vote given by a member of Parliament is an extension of speech; therefore, the freedom of a member to cast a vote is also protected by the freedom of speech in Parliament. In Tej Kiran Jain v. N. Sanjeeva Reddy, a six‑judge bench of the Supreme Court of India held that Article 105(2) confers immunity in respect of anything said so long as it is in Parliament. The Court held that the word “anything” is of the widest import and is equivalent to “everything”, limited only by the term “in Parliament”., Clauses (1) and (2) explicitly guarantee freedom of speech in Parliament. Clause (1) is a positive postulate guaranteeing freedom of speech, while Clause (2) extends that freedom negatively by protecting speech and, by extension, a vote from proceedings before a court. Freedom of speech in the Houses of Parliament and their committees is a necessary privilege, essential to the functioning of the House. This privilege was granted in progression by the colonial government and is at the core of the function of a democratic legislative institution. Members of Parliament and Legislatures represent the will of the people and their aspirations. The Constitution was adopted to have a modernising influence, to eschew an unjust society premised on social hierarchies and discrimination, and to facilitate the path towards an egalitarian society. Freedom of speech in Parliament and the legislatures is an arm of that aspiration, allowing members to express the grievances of their constituents, diverse perspectives and to hold the government accountable., Clause (3) states that, in respect of privileges not falling under Clauses (1) and (2), the powers, privileges and immunities of each House of Parliament, and of the members and committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty‑fourth Amendment) Act, 1978. Section 15 amended Article 105 by substituting the reference to “the House of Commons of the Parliament of the United Kingdom” with “that House and its members and committees immediately before the coming into force of Section 15”. The privileges enjoyed by the House and its members immediately before the coming into force of Section 15 were those enjoyed by the House of Commons in the United Kingdom at the commencement of the Constitution of India. The same reference applied to Article 194, which was amended by Section 26 of the Forty‑fourth Amendment., The reference to the House of Commons was accepted by the Constituent Assembly for two reasons. First, Indian legislators did not enjoy any privilege prior to the commencement of the Constitution, and a reference to the Dominion Parliament would have left the House with virtually no privileges. Second, it was not possible to make an exhaustive list of privileges at the time, nor was it preferable to enlist such a long list as a schedule to the Constitution. Clause (3) therefore allows Parliament to enact a law on its privileges from time to time. It may be noted that the House of Commons in the United Kingdom does not create new privileges; its privileges are those which have been practiced by the House and have become ancient and undoubted., Unlike the House of Commons in the United Kingdom, Parliament in India cannot claim power of its own composition. The extent of privileges in India must be within the confines of the Constitution, and the courts have jurisdiction to determine whether a claimed privilege actually exists and whether it has been exercised correctly. In a steady line of precedent, the Supreme Court of India has held that in the absence of legislation on privileges, the Parliament or Legislature may only claim such privilege which belonged to the House of Commons at the time of the commencement of the Constitution and that the House is not the sole judge to decide its own privilege., When the Parliament or Legislatures enact a law on privileges, such a law is subject to the scrutiny of Part III of the Constitution. The interplay between Part III and Article 105(3) arose in the decision of the Supreme Court of India in M. S. M. Sharma v. Sri Krishna Sinha, where a Constitution bench held that the privileges of the House of Parliament under Clause (3) of Article 105 are those which belonged to the House of Commons at the commencement of the Constitution and would prevail over the fundamental rights guaranteed to citizens under Article 19(1)(a). However, if Parliament were to enact a law codifying its privilege, it may not step over the fundamental rights of citizens by virtue of Article 13. Justice K. Subba Rao dissented, holding that the import of privileges held by the House of Commons was only a transitory provision until Parliament or Legislatures enact a law codifying their respective privileges., In Special Reference No. 1 of 1964, a seven‑judge bench of the Supreme Court of India opined on the privileges of a State Legislature in the aftermath of the Speaker of the Uttar Pradesh Legislative Assembly directing the arrest and production of two High Court judges who had interfered with a resolution to reprimand a person who had published a pamphlet libelling a member of the Assembly. The Court, speaking for the majority, did not disagree with the earlier decision in M. S. M. Sharma and held that Article 105(3) and Article 194(3) would prevail over Article 19(1)(a). However, the Court held that Article 21 would prevail over Articles 105(3) and 194(3) in a conflict. The Court affirmed that the Parliament or Legislature is not the sole judge of its privileges and that the courts have the power to enquire whether a particular privilege claimed by the legislature actually exists, by consulting the privileges of the House of Commons., The view expressed in Special Reference No. 1 of 1964 was further affirmed by another seven‑judge bench of the Supreme Court of India in State of Karnataka v. Union of India, which held that whenever a question arises whether the House has jurisdiction over a matter under its privileges, the adjudication of such a claim is vested exclusively in the courts. Relying on these decisions, a Constitution bench in Raja Ram Pal held that the court has the authority and jurisdiction to examine if a privilege asserted by the House (or even a member by extension) in fact accrues under the Constitution. In Amarinder Singh, the Supreme Court again held that the courts are empowered to scrutinise the exercise of privileges by the House. The interplay between fundamental rights of citizens and the privileges of the Houses of Parliament or Legislature is presently pending before a Constitution bench of the Supreme Court of India in N. Ravi v. Speaker, Legislative Assembly, Chennai., Clause (4) of Article 105 extends the freedoms in the above clauses to all persons who by virtue of the Constitution have a right to speak in Parliament or otherwise take part in its proceedings, as they apply to members of Parliament. The four clauses in Articles 105 and 194 together form a composite whole that defines the powers, privileges and immunities of the Houses of Parliament or Legislature, and of their members and committees., We have explored the trajectory of parliamentary privileges, especially the freedom of speech in Indian legislatures. It has been a timeless insistence of legislators that their freedom of speech to carry out essential legislative functions be protected and sanctified. While the drafters of the Constitution expressly guaranteed freedom of speech in Parliament and legislatures, they left other privileges uncodified., According to Erskine May, parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. The term “High Court of Parliament” dates back to the time when all powers of legislating and dispensing justice vested in the Monarch, who in turn divested them to a body which would carry out the function of the legislature as the King sitting in the High Court of Parliament. In the Indian context, the term is redundant because the Constitution is supreme and the power of Parliament flows from and is defined by the Constitution, but the definition provides an authoritative guide to understanding the meaning and remit of parliamentary privileges.
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The first is the sum of rights enjoyed by the House of Parliament and the second is the rights enjoyed by members of the House individually. Rights and immunities such as the power to regulate its own procedure, the power to punish for contempt of the House or to expel a member for the remainder of the session of the House belong to the first element of privileges held by the House as a collective body for its proper functioning, protection of members, and vindication of its own authority and dignity. The second element of rights exercised individually by members of the House includes freedom of speech and freedom from arrest, among others., The privilege exercised by members individually is in turn qualified by its necessity, in that the privilege must be such that without it they could not discharge their functions. We shall elucidate this limb later in the course of this judgment. These privileges enjoyed by members of the House individually are a means to ensure and facilitate the effective discharge of the collective functions of the House. It must therefore be noted that whereas the privileges enjoyed by members of the House exceed those possessed by other bodies or individuals, they are not absolute or unqualified. The privilege of an individual member only extends insofar as it aids the House to function and without which the House may not be able to carry out its functions collectively., Subhash C. Kashyap has explained parliamentary privileges as they may be understood in the Indian context. In his book on parliamentary procedure, the author opines that privilege means certain rights and immunities enjoyed by each House of Parliament and its committees collectively, and by the members of each House individually, without which they cannot discharge their functions efficiently and effectively. The object of parliamentary privilege is to safeguard the freedom, the authority and the dignity of the institution of Parliament and its members. They are granted by the Constitution to enable them to discharge their functions without any let or hindrance. Parliamentary privileges do not exempt members from the obligations to society which apply to other citizens. Privileges of Parliament do not place a member of Parliament on a footing different from that of an ordinary citizen in the matter of the application of the laws of the land unless there are good and sufficient reasons in the interest of Parliament itself to do so. The fundamental principle is that all citizens including members of Parliament should be treated equally before the law. The privileges are available to members only when they are functioning in their capacity as members of Parliament and performing their parliamentary duties., The understanding that emerges unequivocally supports the claim that the privileges which accrue to members of the House individually are not an end in themselves. The purpose which privileges serve is that they are necessary for the House and its committees to function. Therefore, parliamentary privileges may be understood as those rights and immunities which allow the orderly, democratic, and smooth functioning of Parliament and without which the essential functioning of the House would be violated., The framers of the Constitution intended to establish a responsible, responsive and representative democracy. The value and importance of such a democracy weighed heavily on the framers given the history of an oppressive colonial government to which India had been subjected. The history of parliamentary democracy shows that the colonial government denied India a responsible government; initially Indians were kept out of legislating on laws that would be enforced on its diverse social tapestry. Even when Indians were allowed in legislatures, a responsive government accountable to the people was a distant reality in the colonial period. The ability of the legislature to scrutinise the actions of the executive was effaced and, despite the statutory guarantee of freedom of speech for members of the House in the Government of India Act 1919, the guarantee remained illusory to the extent that many subjects were restricted from being discussed in the legislatures., In that sense, the foundations of a deliberative democracy premised on responsibility, responsiveness, and representation sought to ensure that the executive government of the day is elected by and responsible to the Parliament or Legislative Assemblies which comprise elected representatives. These representatives would be able to express their views on behalf of the citizens and ensure that the government lends ear to their aspirations, complaints and grievances. This aspect of the functioning of the House is essential to sustain a meaningful democracy. It necessitates that members of the House be able to attend the House and thereafter speak their minds without fear of being harassed by the executive or any other person or body on the basis of their actions as members of the House in the exercise of their duties. In the absence of this feature Parliament and the state legislatures would lose the essence of their representative character in a democratic polity., The privileges enshrined under Article 105 and Article 194 of the Constitution are of the widest amplitude but only to the extent that they serve the aims for which they have been granted. The framers would not have intended to grant to the legislatures rights which may not serve any purpose for the proper functioning of the House. The privileges of the members of the House individually bear a functional relationship to the ability of the House to collectively fulfil its functioning and vindicate its authority and dignity. In State of Kerala v. K. Ajith, one of us (Justice D. Y. Chandrachud, Judge) held that a member of the legislature, the opposition included, has a right to protest on the floor of the legislature. However, the right guaranteed under Article 105(1) of the Constitution would not exclude the application of ordinary criminal law against acts not in direct exercise of the duties of the individual as a member of the House. The Supreme Court of India held that the Constitution recognises privileges and immunities to create an environment in which members of the House can perform their functions and discharge their duties freely. These privileges bear a functional relationship to the discharge of the functions of a legislator. They are not a mark of status which makes legislators stand on an unequal pedestal., MN Kaul and SL Shakdher, in their celebrated work on the Practice and Procedure of Parliament, endorsed the view that in modern times parliamentary privilege has to be viewed from a different angle than in the earlier days of the struggle of Parliament against an executive authority not responsible to Parliament. Privilege at that time was regarded as a protection of the members of Parliament against an executive authority not responsible to Parliament. The entire background in which privileges of Parliament are now viewed has changed because the Executive is now responsible to Parliament. The foundation upon which they rest is the maintenance of the dignity and independence of the House and of its members. The privileges enjoyed by members of the House are tethered intrinsically to the functioning of the House collectively. A House of Parliament or Legislature functions through the collective will of its individual members. These members acting as constituents of the House may not claim any privilege or immunity unconnected with the working of the entire House., While some cherished freedoms exercised individually by members of the House, including the freedom of speech, have been undeniably understood to be essential to the functioning of the House as a whole, other exercises such as damaging public property or committing violence are not and cannot be deemed to have immunity. The privileges and immunities enshrined in Articles 105 and 194 with respect to Houses of Parliament and the Legislatures, their members and committees, belong to the House collectively. The exercise of the privileges individually by members must be tested on the anvil of whether it is tethered to the healthy and essential functioning of the House., Having established that the privileges and immunities exercisable by members of the House individually must be tethered to the functioning of the House, we must now explore which privileges may be deemed to accrue to the House collectively and by extension to individual members. In State of Karnataka, a seven‑Judge bench of the Supreme Court of India speaking through Justice M. H. Beg, Chief Justice, held that the powers under Article 194 (as well as Article 105) are those which depend upon and are necessary for the conduct of the business of each House. In that sense, these powers may not even apply to all the privileges which accrue to the House of Commons but are not necessary for the functioning of the House. The learned Chief Justice stated: It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal note that the powers meant to be indicated here are not independent. They are powers which depend upon and are necessary for the conduct of the business of each House. They cannot also be expanded into those of the House of Commons in England for all purposes., The Supreme Court of India held that in India the source of authority is the Constitution which derives its sovereignty from the people. The powers and privileges claimed by a House cannot traverse beyond those which are permissible under the Constitution. The Constitution only allows exercise of those powers, privileges, and immunities which are essential to the functioning of the House or a committee thereof. MN Kaul and SL Shakdher have opined that in interpreting these privileges, regard must be had to the general principle that the privileges of Parliament are granted to members in order that they may be able to perform their duties in Parliament without let or hindrance. They apply to individual members only insofar as they are necessary in order that the House may freely perform its functions. They do not discharge the member from the obligations to society which apply to him as much, and perhaps more closely, in that capacity as they apply to other subjects., The evolution of parliamentary privileges as well as the jurisprudence of the Supreme Court of India establish that members of the House or indeed the House itself cannot claim privileges which are not essentially related to their functioning. To give any privilege unconnected to the functioning of the Parliament or Legislature by necessity is to create a class of citizens which enjoys unchecked exemption from ordinary application of the law. This was neither the intention of the Constitution nor the goal of vesting Parliament and Legislature with powers, privileges and immunities., In Amarinder Singh, a Constitution bench of the Supreme Court of India held that the test to scrutinise the exercise of privileges is whether they were necessary to safeguard the integrity of legislative functions. Chief Justice K. G. Balakrishnan, after exploring a wealth of material on the subject, opined that privileges serve the distinct purpose of safeguarding the integrity of the House. The evolution of legislative privileges can be traced back to medieval England when there was an ongoing tussle for power between the monarch and Parliament. In most cases, privileges were exercised to protect the Members of Parliament from undue pressure or influence by the monarch. Conversely, with the gradual strengthening of Parliament there were also some excesses in the name of legislative privileges. However, the ideas governing the relationship between the executive and the legislature have undergone a sea change since then. In modern parliamentary democracies, the legislature consists of the people's representatives who are expected to monitor executive functions. This is achieved by embodying the idea of collective responsibility which entails that those who wield executive power are accountable to the legislature. Legislative privileges are exercised to safeguard the integrity of legislative functions against obstructions which could be caused by members of the House as well as non‑members. The important consideration for scrutinising the exercise of legislative privileges is whether the same was necessary to safeguard the integrity of legislative functions., In Lokayukta, Justice Ripusudan Dayal v. State of Madhya Pradesh, a three‑Judge bench of the Supreme Court of India held that the scope of a privilege enjoyed by a House and its members must be tested on the basis of the necessity of the privilege to the House for its free functioning. The Court further held that members of the House cannot claim exemption from the application of ordinary criminal law under the garb of privileges which accrue to them as members of the House under the Constitution. Chief Justice P. Sathasivam observed: The scope of the privileges enjoyed depends upon the need for privileges, that is, why they have been provided for. The basic premise for the privileges enjoyed by the Members is to allow them to perform their functions as Members and no hindrance is caused to the functioning of the House. It is clear that the basic concept is that the privileges are those rights without which the House cannot perform its legislative functions. They do not exempt the Members from their obligations under any statute which continue to apply to them like any other law applicable to ordinary citizens. Thus, enquiry or investigation into an allegation of corruption against some officers of the Legislative Assembly cannot be said to interfere with the legislative functions of the Assembly. No one enjoys any privilege against criminal prosecution., The necessity test for ascertaining parliamentary privileges has struck deep roots in the Indian context. The burden of satisfying that a privilege exists and that it is necessary for the House to collectively discharge its function lies with the person or body claiming the privilege. The Houses of Parliament or Legislatures, and their committees, are not islands which act as enclaves shielding those inside from the application of ordinary laws. Lawmakers are subject to the same law that the law‑making body enacts for the people it governs and claims to represent., We therefore hold that the assertion of a privilege by an individual member of Parliament or Legislature would be governed by a twofold test. First, the privilege claimed has to be tethered to the collective functioning of the House, and second, its necessity must bear a functional relationship to the discharge of the essential duties of a legislator., The question remains as to whether these privileges attract immunity to a member of Parliament or of the Legislatures who engages in bribery in connection with their speech or vote. The test of intrinsic relation to the functioning of the House and the necessity test evolved by this Court in the context of determining the remit of privileges under Articles 105(3) and 194(3) must be weighed while delineating the privileges under Clauses (1) and (2) of the provisions as well. When the Supreme Court of India is called upon to answer a question of interpretation of a provision of the Constitution, it must interpret the text in a manner that does not do violence to the fabric of the Constitution. The Court's opinion in P. V. Narasimha Rao hinged on two phrases in clause (2) of Article 105 of the Constitution. These phrases were 'in respect of' and the following word 'anything'. Clause (2) reads as follows: (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings., In State (NCT of Delhi) v. Union of India, Chief Justice D. Y. Chandrachud observed that the Court should interpret a constitutional provision and construe the meaning of specific words in the text in the context in which the words occur by referring to the other words of the provision. The Court held that the meaning of the word 'any' can be varied depending on the context in which it appears and that the words 'any matter' were not to be understood as 'every matter'., The decision in Tej Kiran Jain interpreted the word 'anything' in Clause (1) of Article 105 to be of the widest amplitude and only subject to the words appearing after it which were in Parliament. The clause gives wide freedom of speech in Parliament. The word 'anything' cannot be interpreted to allow interference of the Court in determining if the speech had relevance to the subject it was dealing with at the time the speech was made. In that case, followers of a religious head who had made a speech on untouchability filed a suit seeking damages for defamation alleged to have been committed in the Lok Sabha during a calling‑attention motion. The Court held that the Court cannot dissect a speech made in Parliament and adjudicate if the speech has a direct relation to the subject matter before it. Parliament has absolute control over which matters it directs its attention towards and thereafter members or persons at liberty to speak may not be subjected to the fear of prosecution for anything that they may say in the House., Clause (2) of Article 105 gives immunity to members of the House and the committees thereof in any proceeding in any court in respect of anything said or any vote given in the House. Justice M. H. Beg, Chief Justice, in State of Karnataka foresaw a situation where a criminal act may be committed in the House and observed that it could not be protected under the Constitution. He stated: A House of Parliament or State Legislature cannot try anyone or any case directly, as a Court of Justice can, but it can proceed quasi‑judicially in cases of contempt of its authority and take up motions concerning its privileges and immunities because, in doing so, it only seeks removal of obstructions to the due performance of its legislative functions. If any question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary courts in appropriate proceedings. For example, the jurisdiction to try a criminal offence, such as murder, committed even within a House vests in ordinary criminal courts and not in a House of Parliament or in a State Legislature., In K. Ajith, a member of the Kerala Legislative Assembly was accused of climbing over the Speaker's dais and causing damage to property during the presentation of the budget. The Supreme Court of India, speaking through Justice D. Y. Chandrachud, after exploring the evolution of law in the United Kingdom, observed that a person committing a criminal offence within the precincts of the House does not hold an absolute privilege. Instead, he possesses a qualified privilege, and would receive immunity only if the action bears nexus to the effective participation of the member in the House., The Court further held that privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly the criminal law which governs the action of every citizen. To claim an exemption from the application of criminal law would be to betray the trust impressed on elected representatives as makers and enactors of the law. The foundation of the application for withdrawal under Section 321 was based on a fundamental misconception of the constitutional provisions contained in Article 194. The Public Prosecutor seemed to have been impressed by the existence of privileges and immunities which would stand in the way of the prosecution. Such an understanding betrays the constitutional provision and proceeds on a misconception that elected members of the legislature stand above the general application of criminal law., In Lokayukta, Justice Ripusudan Dayal, while holding that initiation of criminal proceedings for corruption may not amount to a breach of privilege, opined that in the matter of the application of laws, particularly the provisions of the Lokayukta Act and the Prevention of Corruption Act, 1988, all public servants except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukta Act fall in the same category and cannot claim any privilege more than an ordinary citizen to whom the provisions of the Acts apply. The Court emphasized that in India there is the rule of law and not of men, and thus there is primacy of the laws enacted by the legislature which do not discriminate between persons to whom such laws would apply. No individual can claim privilege against the application of laws and for liabilities fastened on commission of a prohibited act., The principle that emerges from the above cases is that the privilege of the House, its members and the committees is neither contingent merely on location nor merely on the act in question. A speech made in Parliament or Legislature cannot be subjected to any proceedings before any court. However, other acts such as damaging property or criminal acts may be subjected to prosecution despite being within the precincts of the House. Clause (2) of Article 105 grants immunity in respect of anything said or any vote given. The extent of this immunity must be tested on the anvil of the tests laid down above. The ability of a member to speak is essentially tethered to the collective functioning of the House and is necessary for the functioning of the House. A vote, which is an extension of the speech, may itself neither be questioned nor proceeded against in a court of law. The phrase 'in respect of' is significant to delineate the ambit of the immunity granted under Clause (2) of Article 105., In P. V. Narasimha Rao, the majority judgment interpreted the phrase 'in respect of' as having a broad meaning and referring to anything that bears a nexus or connection with the vote given or speech made. It therefore concluded that a bribe given to purchase the vote of a member of Parliament was immune from prosecution under Clause (2) of Article 105. By this logic, the majority concluded that a bribe‑accepting member who did not comply with the quid pro quo was not immune from prosecution as his actions ceased to have a nexus with his vote. However, a phrase in a provision cannot be interpreted in a way that does violence to the object of the provision. The majority took the object of Article 105 to be that members of Parliament must have the widest protection under the law to be able to perform their function in the House. This understanding is overbroad and presumptive of enhanced privileges translating to better functioning of members of the House., Privileges are not an end in themselves in a parliamentary form of government as the majority has understood them to be. A member of Parliament or of the Legislature is immune in the performance of their functions in the House or a committee thereof from being prosecuted because the speech given or vote cast is functionally related to their performance as members of the legislature. The claim of a member to this immunity is vitally connected with the functioning of the House or committee. The reason why freedom of speech and the right to vote have been guaranteed in Parliament is because without them Parliament or the legislature cannot function. Therefore, the extent of privilege exercisable by a member individually must satisfy the twofold test namely its tether to the collective functioning of the House and its necessity., The words 'in respect of' in Clause (2) of Article 105 apply to the phrase 'anything said' or 'any vote given', and in the latter part to a publication by or with the authority of the House. We may not interpret the words 'anything' or 'any' without reading the operative word on which they apply, i.e., 'said' and 'vote given' respectively.
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The words anything said and any vote given apply to an action which has been taken by a person who has the right to speak or vote in the House or a committee thereof. This means that a member or person must have exercised their right to speak or abstained from speaking inside the House or committee when the occasion arose. Similarly, a person or member must have exercised their option of voting in favour, against, or in abstention to claim immunity under Articles 105(2) and 194(2). The words anything and any when read with their respective operative words mean that a member may claim immunity to say as they feel and vote in a direction that they desire on any matter before the House. These are absolutely outside the scope of interference by the courts. The wide meaning of anything and any read with their companion words connotes actions of speech or voting inside the House or committee which are absolute. The phrase in respect of applies to the collective phrase anything said or any vote given. The words in respect of means arising out of or bearing a clear relation to. This may not be overbroad or be interpreted to mean anything which may have even a remote connection with the speech or vote given. We, therefore, cannot concur with the majority judgment in PV Narasimha Rao (supra)., The Constitution envisions probity in public life. The purpose and object for which the Constitution stipulates powers, privileges and immunity in Parliament must be borne in mind. Privileges are essentially related to the House collectively and necessary for its functioning. Hence, the phrase in respect of must have a meaning consistent with the purpose of privileges and immunities. Articles 105 and 194 of the Constitution seek to create a fearless atmosphere in which debate, deliberations and exchange of ideas can take place within the Houses of Parliament and the state legislatures. For this exercise to be meaningful, members and persons who have a right to speak before the House or any committee must be free from fear or favour induced into them by a third party. Members of the legislature and persons involved in the work of the Committees of the legislature must be able to exercise their free will and conscience to enrich the functions of the House. This is exactly what is taken away when a member is induced to vote in a certain way not because of their belief or position on an issue but because of a bribe taken by the member. Corruption and bribery of members of the legislature erode the foundation of Indian parliamentary democracy. It is destructive of the aspirational and deliberative ideals of the Constitution and creates a polity which deprives citizens of a responsible, responsive and representative democracy., The minority judgment in PV Narasimha Rao (supra) held that the words in respect of must be understood as arising out of and that a bribe taken by a member of the House cannot be deemed as arising out of his vote. The minority opined that the expression in respect of in Article 105(2) has to be construed keeping in view the object of Article 105(2) and the setting in which the expression appears in that provision. The object of the immunity conferred under Article 105(2) is to ensure the independence of the individual legislators. Such independence is necessary for healthy functioning of the system of parliamentary democracy adopted in the Constitution. Parliamentary democracy is a part of the basic structure of the Constitution. An interpretation of the provisions of Article 105(2) which would enable a Member of Parliament to claim immunity from prosecution in a criminal court for an offence of bribery in connection with anything said by him or a vote given by him in Parliament or any committee thereof and thereby place such Members above the law would be repugnant to healthy functioning of parliamentary democracy and subversive of the rule of law which is also an essential part of the basic structure of the Constitution. It is settled law that in interpreting the constitutional provisions the court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution (see Sub‑Committee on Judicial Accountability v. Union of India [(1991) 4 Supreme Court Cases 699] Supreme Court Cases at p. 719)., The minority then points out the paradoxical result which would emerge if members were given immunity from prosecution for their speech or vote but would not be protected if the bribe was received for not speaking or not voting. The minority holds that such an anomalous situation would be avoided if the words in respect of in Article 105(2) are construed to mean arising out of. If the expression in respect of is thus construed, the immunity conferred under Article 105(2) would be confined to liability that arises out of or is attributable to something that has been said or to a vote that has been given by a Member in Parliament or any committee thereof. The immunity would be available only if the speech that has been made or the vote that has been given is an essential and integral part of the cause of action for the proceedings giving rise to the liability. The immunity would not be available to give protection against liability for an act that precedes the making of the speech or giving of vote by a Member in Parliament even though it may have a connection with the speech made or the vote given by the Member if such an act gives rise to a liability which arises independently and does not depend on the making of the speech or the giving of vote in Parliament by the Member. Such an independent liability cannot be regarded as liability in respect of anything said or vote given by the Member in Parliament. The liability for which immunity can be claimed under Article 105(2) is the liability that has arisen as a consequence of the speech that has been made or the vote that has been given in Parliament., The offence of bribery is complete on the acceptance of the money or on the agreement to accept money being concluded. The offence is not contingent on the performance of the promise for which money is given or is agreed to be given. The minority opinion in PV Narasimha Rao (supra) based its view on another perspective which was not dealt with by the majority. The minority stated that the act of bribery was the receipt of illegal gratification prior to the making of the speech or vote inside the House. Interpreting the phrase in respect of to mean arising out of, the minority concluded that the offence of bribery is not contingent on the performance of the illegal promise. The minority observed that the expression in respect of in Article 105(2) raises the question: Is the liability to be prosecuted arising from acceptance of bribe by a Member of Parliament for the purpose of speaking or giving his vote in Parliament in a particular manner on a matter pending consideration before the House an independent liability which cannot be said to arise out of anything said or any vote given by the Member in Parliament? In our opinion, this question must be answered in the affirmative. The offence of bribery is made out against the receiver if he takes or agrees to take money for promise to act in a certain way. The offence is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver. The receiver of the money will be treated to have committed the offence even when he defaults in the illegal bargain. For proving the offence of bribery all that is required to be established is that the offender has received or agreed to receive money for a promise to act in a certain way and it is not necessary to go further and prove that he actually acted in that way., A Constitution bench of the Supreme Court of India in Kihoto Hollohan v. Zachillhu while deciding on the validity of the Constitution (Fifty‑Second Amendment) Act 1985 which introduced the Tenth Schedule to the Indian Constitution opined that the freedom of speech in Parliament under clause (2) of Article 105 is not violated. This Court understood the provision to necessarily mean that the politically sinful act of floor crossing is neither permissible nor immunised under the Constitution. The Court held that the freedom of speech of a Member is not an absolute freedom. The provisions of the Tenth Schedule do not purport to make a Member of a House liable in any court for anything said or any vote given by him in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor‑crossing. Parliamentary democracy envisages that matters involving implementation of policies of the government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are therefore the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Often the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view thus serve an essential and healthy purpose in the functioning of parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines., Mr Raju Ramachandran, learned senior advocate on behalf of the petitioner, has argued that bribery has been treated as a breach of privilege by the House which has used its powers to dispense discipline over bribe‑taking members. He argues that immunity for a vote, speech or conduct in the House of Parliament does not in any manner leave culpable members blameless or free from sanction. Such members have been punished including being expelled by the House. He cites many examples of actions taken by the House against its members who were found to have received bribes. In our exposition of the history of parliamentary privileges in India, we have illustrated how bribery was initially deemed to be a breach of privilege by the House of Commons in the United Kingdom. Based on the position of law in the United Kingdom the British government was uncertain about the position in India but assumed it to be governed as a matter of breach of privilege in the absence of an express statutory enactment. The Report of the Reforms Enquiry Committee in 1924 had recommended bribery to be made a penal offence so that members may be prosecuted for crimes before a court of law., The issue of bribery is not one of exclusivity of jurisdiction by the House over its bribe‑taking members. The purpose of a House acting against a contempt by a member for receiving a bribe serves a purpose distinct from a criminal prosecution. The purpose of the proceedings which a House may conduct is to restore its dignity. Such a proceeding may result in the expulsion from the membership of the House and other consequences which the law envisages. Prosecution for an offence operates in a distinct area involving a violation of a criminal statute. The power to punish for criminal wrongdoing emanates from the power of the state to prosecute offenders who violate the criminal law. The latter applies uniformly to everyone subject to the sanctions of the criminal law of the land. The purpose, consequences, and effect of the two jurisdictions are separate. A criminal trial differs from contempt of the House as it is fully dressed with procedural safeguards, rules of evidence and the principles of natural justice., We therefore disagree with Mr Ramachandran that the jurisdiction of the House excludes that of the criminal court for prosecuting an offence under the criminal law of the land. We hold this because of our conclusion above that bribery is not immune under clause (2) of Article 105. A member engaging in bribery commits a crime which is unrelated to their ability to vote or to make a decision on their vote. This action may bring indignity to the House of Parliament or Legislature and may also attract prosecution. What it does not attract is the immunity given to the essential and necessary functions of a member of Parliament or Legislature., We may refer to the opinion of Justice SC Agrawal, who arrived at the same view in which he was in the minority: It is no doubt true that a Member who is found to have accepted a bribe in connection with the business of Parliament can be punished by the House for contempt. But that is not a satisfactory solution. In exercise of its power to punish for contempt the House of Commons can convict a person to custody and may also order expulsion or suspension from the service of the House. There is no power to impose a fine. The power of committal cannot exceed the duration of the session and the person, if not sooner discharged by the House, is immediately released from confinement on prorogation. The Houses of Parliament in India cannot claim a higher power. The Salmon Commission has stated that whilst the theoretical power of the House to commit a person into custody undoubtedly exists, nobody has been committed to prison for contempt of Parliament for a hundred years or so, and it is most unlikely that Parliament would use this power in modern conditions. The Salmon Commission has also expressed the view that in view of the special expertise that is necessary for this type of inquiry the Committee of Privileges does not provide an investigative machinery comparable to that of a police investigation., Therefore, we hold that clause (2) of Article 105 does not grant immunity against bribery to any person as the receipt of or agreement to receive illegal gratification is not in respect of the function of a member to speak or vote in the House. Prosecution for bribery is not excluded from the jurisdiction of the criminal court merely because it may also be treated by the House as contempt or a breach of its privilege., Another aspect that arises for consideration is the stage at which the offence of bribery crystallises. It has been urged by the Solicitor General that the offence is complete outside the legislature and is independent of the speech or the vote. Therefore, the question of privilege does not arise in the first place and the question is answered by the provisions of the Prevention of Corruption Act, 1988. Similarly, Mr Gopal Sankarnarayan, learned senior counsel, has submitted that the offence of bribery is complete on receipt of the bribe well before the vote is given or speech made in Parliament. It has been urged that the performance of the promise is irrelevant to the offence being made out, and hence, the distinction made in PV Narasimha Rao (supra) is entirely artificial., The minority judgment discusses this aspect and notes that the offence is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver. Justice Agarwal observed: The construction placed by us on the expression in respect of in Article 105(2) raises the question: Is the liability to be prosecuted arising from acceptance of bribe by a Member of Parliament for the purpose of speaking or giving his vote in Parliament in a particular manner on a matter pending consideration before the House an independent liability which cannot be said to arise out of anything said or any vote given by the Member in Parliament? In our opinion, this question must be answered in the affirmative. The offence of bribery is made out against the receiver if he takes or agrees to take money for promise to act in a certain way. The offence is complete with the acceptance of the money or on the agreement to accept the money being concluded and is not dependent on the performance of the illegal promise by the receiver. The receiver of the money will be treated to have committed the offence even when he defaults in the illegal bargain. For proving the offence of bribery all that is required is that the offender has received or agreed to receive money for a promise to act in a certain way and it is not necessary to go further and prove that he actually acted in that way., Section 7 of the Prevention of Corruption Act, 1988 reads as follows: Offence relating to public servant being bribed. Any public servant who, (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or (b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1. For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration. A public servant, S asks a person, P to give him an amount of five thousand rupees to process his routine ration card application on time. S is guilty of an offence under this section. Explanation 2. For the purpose of this section, (i) the expressions obtains or accepts or attempts to obtain shall cover cases where a person being a public servant, obtains or accepts or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts or attempts to obtain the undue advantage directly or through a third party., Under Section 7 of the Prevention of Corruption Act, the mere obtaining, accepting or attempting to obtain an undue advantage with the intention to act or forbear from acting in a certain way is sufficient to complete the offence. It is not necessary that the act for which the bribe is given be actually performed. The first explanation to the provision further strengthens such an interpretation when it expressly states that the obtaining, accepting, or attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by a public servant has not been improper. Therefore, the offence of a public servant being bribed is pegged to receiving or agreeing to receive the undue advantage and not the actual performance of the act for which the undue advantage is obtained., It is trite law that illustrations appended to a section are of value and relevance in construing the text of a statutory provision and they should not be readily rejected as repugnant to the section. The illustration to the first explanation aids us in construing the provision to mean that the offence of bribery crystallises on the exchange of the bribe and does not require the actual performance of the act. It provides a situation where a public servant, S asks a person, P to give him an amount of five thousand rupees to process his routine ration card application on time. S is guilty of an offence under this section. It is clear that regardless of whether S actually processes the ration card application on time, the offence of bribery is made out. Similarly, in the formulation of a legislator accepting a bribe, it does not matter whether she votes in the agreed direction or votes at all. At the point in time when she accepts the bribe, the offence of bribery is complete., Even prior to the amendment to the Prevention of Corruption Act in 2017, Section 7 expressly delinked the offence of bribery from the actual performance of the act for which the undue advantage is received. The provision read as follows: Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to seven years and shall also be liable to fine. Explanations. (d) A motive or reward for doing. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression., The unamended text of Section 7 of the Prevention of Corruption Act also indicates that the act of accepting, obtaining, agreeing to accept or agreeing to obtain illegal gratification is a sufficient condition. The act for which the bribe is given does not need to be actually performed. This was further clarified by Explanation (d) to the provision. In explaining the phrase a motive or reward for doing, it was made clear that the person receiving the gratification does not need to intend to or be in a position to do or not do the act or omission for which the motive/reward is received., In Chaturdas Bhagwandas Patel v. State of Gujarat a two‑judge Bench of the Supreme Court of India reiterated that to constitute the offence of bribery, a public servant using his official position to extract illegal gratification is a sufficient condition. It is not necessary in such a case for the Court to consider whether the public servant intended to actually perform any official act of favour or disfavour. In the facts of the case, the public servant induced the complainant to give a bribe to get rid of a charge of abduction. It was later revealed that no complaint had even been registered against the complainant for the alleged abduction. However, the Court held that the mere demand and acceptance of the illegal gratification was sufficient, regardless of whether the recipient of the bribe performed the act for which the bribe was received., Recently, in Neeraj Dutta v. State (NCT of Delhi) a Constitution Bench listed out the constituent elements of the offence of bribery under Section 7 of the Prevention of Corruption Act (as it stood before the amendment in 2017). Justice B V Nagarathna formulated the elements to constitute the offence: (i) the accused must be a public servant or expecting to be a public servant; (ii) he should accept or obtain or agree to accept or attempts to obtain from any person; (iii) for himself or for any other person; (iv) any gratification other than legal remuneration; and (v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour. Consequently, the actual doing or forbearing to do the official act is not a constituent part of the offence. All that is required is that the illegal gratification should be obtained as a motive or reward for such an action or omission whether it is actually carried out or not is irrelevant., During the course of the hearing, a hypothetical question arose: What happens in a situation when the bribe is exchanged within the precincts of the legislature? Would the offence now fall within the ambit of parliamentary privilege? This question appears to be ill‑conceived. When this Court holds that the offence of bribery is complete on the acceptance or attempt to accept undue advantage and is not dependent on the speech or vote, it automatically pushes the offence outside the ambit of Articles 105(2) and 194(2). This is not because the acceptance of undue advantage happened outside the legislature but because the offence is independent of the vote or speech protected by Articles 105(2) and 194(2). The remit of parliamentary privilege is intricately linked to the nexus of the act to the vote or speech and the transaction of parliamentary business., The majority judgment in PV Narasimha Rao (supra) did not delve into when the offence of bribery is complete or the constituent elements of the offence. However, on the facts of the case, the majority held that those MPs who voted as agreed were covered by the immunity, while those who did not vote at all (Ajit Singh) were not covered by the immunity under Articles 105(2) and 194(2). This erroneously links the offence of bribery to the performance of the act. In fact, the High Court has relied on this position to hold that the appellant is not covered by the immunity as she eventually did not vote as agreed on and voted for the candidate from her party., The understanding of the law in the majority judgment creates an artificial distinction between those who receive the illegal gratification and perform their end of the bargain and those who receive the same illegal gratification but do not carry out the agreed task. The offence of bribery is agnostic to the performance of the agreed action and crystallises based on the exchange of illegal gratification. The minority judgment also highlighted the prima facie absurdity in the paradox created by the majority judgment. Justice Agarwal observed: If the construction placed by Shri Rao on the expression in respect of is adopted, a Member would be liable to be prosecuted on a charge of bribery if he accepts bribe for not speaking or for not giving his vote on a matter under consideration before the House but he would enjoy immunity from prosecution for such a charge if he accepts bribe for speaking or giving his vote in Parliament in a particular manner and he speaks or gives his vote in that manner. It is difficult to conceive that the framers of the Constitution intended to make such a distinction in the matter of grant of immunity between a Member of Parliament who receives bribe for speaking or giving his vote in Parliament in a particular manner and speaks or gives his vote in that manner and a Member of Parliament who receives bribe for not speaking or not giving his vote on a particular matter coming up before the House and does not speak or give his vote as per the agreement so as to confer an immunity from prosecution on the former but denying such immunity to the latter. Such an anomalous situation would be avoided if the words in respect of in Article 105(2) are construed to mean arising out of., Indeed, to read Articles 105(2) and 194(2) in the manner proposed in the majority judgment results in a paradoxical outcome. Such an interpretation results in a situation where a legislator is rewarded with immunity when they accept a bribe and follow through by voting in the agreed direction.
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On the other hand, a legislator who agrees to accept a bribe, but may eventually decide to vote independently will be prosecuted. Such an interpretation belies not only the text of Articles 105 and 194 but also the purpose of conferring parliamentary privilege on members of the legislature., The above exposition has sought to elucidate the law governing parliamentary privileges in India and its implications on a member of the legislature engaging in bribery. It has been the leitmotif of most judgments on the subject in India to delve into the law in other jurisdictions before outlining the position of parliamentary privileges in India. The jurisprudence on parliamentary privileges in India has since grown in its own right and we have referred to the rich jurisprudence of this Court and the history of parliamentary privileges in India., We shall first direct our attention to the position of law in the United Kingdom. As we have explored above, the law on parliamentary privileges in the United Kingdom was developed after a struggle by the House of Commons with the Tudor and Stuart Kings. In The King v. Sir John Elliot (1629) 3 St. Tr. 294, at the peak of the confrontation between the Commons and the King in 1629, the King’s Bench prosecuted three members of the House of Commons, Sir John Elliot, Denzel Hollis and Benjamin Valentine, for making seditious speech, disturbing public tranquillity and violently holding the Speaker in his position to stop the House from being adjourned. The members of Parliament were found guilty, fined and imprisoned. Sir John Elliot was sent to be imprisoned in a tower where his health declined and he ultimately passed away. The report of the trial was published in 1667 and was noticed by the House of Commons. The House resolved that the judgment was illegal and against the privileges of Parliament. On a writ of error presented by Denzel Hollis, the House of Lords reversed the judgment of the King’s Bench., With the Glorious Revolution of 1688, the last of the Stuart Kings, James, was expelled and a new dynasty was instated. The bitter struggle led to a firmly established constitutional monarchy with the House of Commons ultimately claiming both sovereignty and certain privileges which became ancient and undoubted as a result of the persistence of the House and its gradual recognition. Erskine May notes that at the commencement of every Parliament it has been the custom for the Speaker, in the name and on behalf of the Commons, to lay claim by humble petition to their ancient and undoubted rights and privileges; particularly to freedom of speech in debate, freedom from arrest, freedom of access to Her Majesty whenever occasion shall require; and that the most favourable construction should be placed upon all their proceedings., The clause stipulating freedom of speech in Parliament and immunity from prosecution flows from the Bill of Rights 1689. Article IX of the Bill of Rights stipulates: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” The privilege under Article IX in the United Kingdom is not attached to individual members only; it immunises the freedom of speech and debates or proceedings in Parliament and stipulates that it shall not be impeached or questioned. It also provides that proceedings in Parliament may only be impeached or questioned in Parliament. This has led to debate as to whether any material from Parliamentary proceedings can be placed before the courts and whether the jurisdiction of Parliament ousts the jurisdiction of the courts. The position as it stands allows material from Parliamentary proceedings to be placed before the court provided that it is not used to imply or argue mala fides behind the action., The parliamentary immunity attracted to speech made in Parliament came to be applied in the case of Ex parte Wason, where a member of Parliament was accused of conspiring to make a statement which they knew to be false. A person had furnished a petition to Earl Russell to present before the House of Lords charging the Lord Chief Baron of deliberately telling a falsehood before a Parliamentary committee. The magistrate refused to take the applicant’s recognisance on the grounds that a speech made in Parliament could not disclose any indictable offence. The Queen’s Bench affirmed the order. Cockburn, Chief Justice, opined that speeches made in either House could not give rise to civil or criminal proceedings regardless of the injury caused to the interests of a third person. Lush, J. held that the motives or intentions of members of either House cannot be inquired into by criminal proceedings with respect to anything they may do or say in the House. The Queen’s Bench therefore held that a speech made inside the House cannot be questioned in any proceeding before a court in a civil or criminal action and neither can the motives behind the performance of such acts be questioned., The issue of bribery was only governed by common law till 1889. Different common law offences were attracted based on corruption by different offices and their functions. The Public Bodies Corrupt Practices Act 1889, which applied only to local government bodies, created the first statutory offence of corruption. Subsequently, the Prevention of Corruption Act 1906 extended the offence of corruption to the private sector. Neither of these statutes covered the acceptance of a bribe by a member of Parliament. In the absence of a statute, the question of taking a bribe by a member of Parliament remained a question of breach of privilege and only the House was empowered to take action against such corruption., The Royal Commission on Standards of Conduct in Public Life, chaired by Lord Salmon, submitted its report in 1976 which inter alia recommended bringing corruption, bribery and attempted bribery of a Member of Parliament acting in his Parliamentary capacity within the ambit of the criminal law. Lord Salmon said: “To my mind equality before the law is one of the pillars of freedom. To say that immunity from criminal proceedings against anyone who tries to bribe a Member of Parliament and any Member of Parliament who accepts the bribe, stems from the Bill of Rights is possibly a serious mistake. The passage in the Bill of Rights is: That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament. Now this is a charter for freedom of speech in the House. It is not a charter for corruption.” No action was taken by Parliament on this recommendation., In R v. Greenway, a member of Parliament was accused of accepting a bribe for helping the interests of a company. A case to quash the prosecution was filed. The member asserted that his actions were protected by parliamentary privileges. Buckley, J. rejected this assertion, holding that “that a member of Parliament against whom there is a prima facie case of corruption should be immune from prosecution in the courts of law is to my mind an unacceptable proposition at the present time. I do not believe it to be the law.” Subsequent commissions, including the Standing Committee on Standards in Public Life under Lord Nolan (1994) and the Law Commission (1998), recommended legislation to resolve the jurisdictional doubt. The Law Commission’s recommendations ultimately led to the enactment of the Bribery Act 2010, which covers instances where members of Parliament engage in corruption., While efforts were being made by lawmakers, the courts in the United Kingdom continued answering questions on the scope of Article IX of the Bill of Rights on members of Parliament who engage in bribery. The allegations which had led to the constitution of the Nolan committee came before the courts in R v. Parliamentary Commissioner for Standards Ex parte Fayed and in Hamilton v. Al Fayed. In the former case, the Court of Appeal held that parliamentary privilege would not prevent the courts investigating whether a Member of Parliament has committed a criminal offence or made a defamatory statement outside the House. In Hamilton v. Al Fayed, the Court held that courts are precluded from entertaining evidence or submissions designed to show that a witness in parliamentary proceedings deliberately misled Parliament, relying on the judgment in Prebble v. Television New Zealand., In Office of Government Commerce v. Information Commissioner (Attorney General intervening), the Queen’s Bench Division held that opinions of parliamentary committees would be irrelevant before a court given the nature of their work. The minority opinion in PV Narasimha Rao noted that the protection given under clause (2) of Article 105 of the Constitution of India is narrower than that conferred under Article IX of the Bill of Rights, being personal in nature and limited to anything said or any vote given by a Member in the House or any committee thereof. The issue of whether courts can rely on observations contained in parliamentary committee reports now stands settled by a Constitution Bench of this Court in Kalpana Mehta., Since the judgment in PV Narasimha Rao, the courts in the United Kingdom have narrowly interpreted the immunity under Article IX. In R v. Chaytor, members of Parliament were prosecuted for false accounting. The UK Supreme Court held that the purpose of Article IX is to protect freedom of speech in the House and that the prosecution would not violate the privilege of Parliament. The Court applied a test of whether the action questioned bore on the core or essential function of Parliament. Lord Phillip observed that the principal matter to which Article IX is directed is freedom of speech and debate in the Houses of Parliament and parliamentary committees, and that actions outside the Houses must be examined for a close nexus to parliamentary business. Lord Rodger, in a concurring opinion, explained that contempt jurisdiction of the House would overlap but not oust the courts’ jurisdiction. In Makudi v. Baron Triesman of Trottenham, the Court of Appeal held that a statement made by a witness in public that repeated testimony before a parliamentary committee would not attract immunity as it was an extra‑parliamentary speech too remote from the parliamentary proceeding., Parliamentary privileges in the United States of America emanate from Section 6 of Article I of the Constitution. The relevant part of the provision, referred to as the Speech and Debate Clause, reads: “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” Courts in the United States have given a broad interpretation to the Speech and Debate Clause as it applies to legislative acts of members of Congress, while holding that a member may be liable under a criminal statute of general application so long as the prosecution does not rely on the official acts of the member., In United States v. Thomas F. Johnson, a member of Congress was accused of conflict of interest and conspiring to defraud the United States. The Fourth Circuit set aside his conviction on the ground that the allegations were barred by the Speech and Debate Clause. The United States Supreme Court held that the Government may not use the speech made by a member of Congress or question its motivation in a court of law, but the prosecution may proceed without relying on the speech. The Court clarified that this limitation does not apply to prosecutions for violating a general criminal law that does not question the legislative acts of the defendant or his motives., The United States Supreme Court relied on Johnson in United States v. Brewster, where a Senator was accused of accepting a bribe in return for influencing postage rate legislation. The trial court dismissed the charges on the ground of parliamentary privilege. The Supreme Court held that the Speech and Debate Clause prevents prosecutors from introducing evidence that the member actually performed a legislative act as part of a corrupt plan, but other evidence may establish that the member violated anti‑corruption laws. The Court emphasized that the privilege is intended to preserve the independence of the legislative process and does not extend to acts of bribery, which are not legislative acts., The Court in Brewster was conscious of the potential misuse of investigative powers by the Executive but held that allowing the House to be the final arbiter would be more detrimental to the rights of the accused. The Court noted that many non‑legislative activities are an accepted part of a Member’s role and may be “related” to the legislative process, yet prosecuting a Member for taking a bribe does not infringe the Speech and Debate Clause because taking a bribe is not a legislative act. The Court concluded that financial abuses such as bribery would gravely undermine legislative integrity and that immunity under the Constitution is attracted only to actions that are clearly part of the legislative process.
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Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution under this statute or this indictment. When a bribe is taken, it does not matter whether the promise for which the bribe was given was for the performance of a legislative act as here or, as in Johnson, for use of a Congressman's influence with the Executive Branch. And an inquiry into the purpose of a bribe does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them. 383 United States, at 185, 86 Supreme Court Reporter, at 758. Nor does it matter if the Member defaults on his illegal bargain. To make a prima facie case under this indictment, the Government need not show any act of appellee subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illicit compact, that is a criminal act., If, for example, there were undisputed evidence that a Member took a bribe in exchange for an agreement to vote for a given bill and if there were also undisputed evidence that he, in fact, voted against the bill, can it be thought that this alters the nature of the bribery or removes it from the area of wrongdoing the Congress sought to make a crime? Mr. Justice Brennan suggests that inquiry into the alleged bribe is inquiry into the motivation for a legislative act, and it is urged that this very inquiry was condemned as impermissible in Johnson. That argument misconstrues the concept of motivation for legislative acts. The Speech or Debate Clause does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions., In Johnson, the Supreme Court of the United States held that, on remand, Johnson could be retried on the conspiracy to defraud count, so long as evidence concerning his speech on the House floor was not admitted. The Court therefore rejected the idea that anything having a nexus to legislative functions would automatically attract immunity under the Speech and Debate Clause of the United States Constitution., In Gavel v. United States, certain secret documents were made part of the record of a sub‑committee hearing in the United States Senate by Senator Gavel. He then published the entire document in a private publication. An aide to the Senator was subpoenaed by the grand jury investigating the matter. The United States Supreme Court held that, given the expansive nature of legislative work, an aide to a member of Congress would be protected under the Speech and Debate Clause but only to the extent that it pertained to aiding the legislator in discharge of his legislative functions. The Court further held that private publication of the document was not a necessary part of the functions of the Senator and no immunity would extend in that regard., Supreme Court of the United States held: Legislative acts are not all‑encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but only when necessary to prevent indirect impairment of such deliberations (United States v. Doe, 455 F.2d at 760)., Supreme Court of the United States held that private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence. The Senator had conducted his hearings; the record and any report that was forthcoming were available both to his committee and the Senate. Neither Congress nor the full committee ordered or authorized the publication. The sole constitutional claim asserted here is based on the Speech or Debate Clause. We need not address issues that may arise when Congress or either House, as distinguished from a single Member, orders the publication and/or public distribution of committee hearings, reports, or other materials., Supreme Court of the United States in Gavel applied the same standard it did in Brewster to hold that only acts which are essential to the deliberations of the House or in discharge of the functions vested under the Constitution are immune from prosecution before a court of law. Other acts which may in some way be related to the speech or vote of a legislator will not be protected under the Speech and Debate Clause unless they were essential to the legislator’s function. The Court therefore held a consistent position that members of Congress would only have immunity under the Constitution for their sphere of legitimate legislative activity., In United States v. Helstoski, a member of the House of Representatives was accused of accepting money in return for introducing certain private bills to suspend the application of immigration laws. Relying on its previous rulings in Johnson, Brewster and Gavel, the United States Supreme Court held that the purpose of the Speech and Debate Clause was to free the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator. The Court reaffirmed that material from the legislative acts of the accused Congressman may not be placed before the grand jury, but proof of bribe and promise to commit a future legislative act may be investigated as they do not constitute an essential function of the legislator in discharge of his duties., In Hutchinson v. Proxmire, a Senator released a publication highlighting what he perceived to be wasteful government spending. The Senator made a speech on the floor of the Senate and had it published in the press. The complainant, who was funded by public institutes for his research, was named by the Senator. The press release was circulated to over one hundred thousand people including agencies which funded the research of the complainant. The complainant filed a suit claiming loss of respect in his profession, loss of income and the ability to earn income in the future. The District Court granted summary judgment in favour of the Senator, holding that the publication fell under the information function of Congress and would be immune under the Speech and Debate Clause., The United States Supreme Court held that the intention of the Speech and Debate Clause was not to create an absolute privilege in favour of members of Congress. The clause is only attracted to legislative activities and would not protect republishing of defamatory statements. The Court stated: Whatever imprecision there may be in the term legislative activities, it is clear that nothing in history or in the explicit language of the clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber. Claims under the clause going beyond what is needed to protect legislative independence are to be closely scrutinized. Indeed, the precedents support the conclusion that a Member may be held liable for republishing defamatory statements originally made in either House., The principle that emerges is that a member of Congress is not immune for engaging in bribery to perform legislative acts in terms of speech or vote. The Speech and Debate Clause does not give any absolute immunity to a legislator with respect to all things bearing a nexus with legislative activity. Immunity is attracted only to those functions which are essential and within the legitimate sphere of legislative business. The only privilege a Congressperson may attract in a prosecution is that the content of the speech, vote or legislative acts may not be produced as evidence by the prosecution., The majority judgment in P. V. Narasimha Rao interpreted Johnson and the dissenting opinion in Brewster to arrive at the same conclusion as reflected in United Kingdom law. The majority judgment fails on two accounts. Firstly, it fails to account for the fact that the Speech and Debate Clause, which is substantially borrowed from Article IX of the English Bill of Rights, confers immunity to the speech and vote made in Parliament. The understanding arrived at in the majority judgment was not informed by the evolution of law in United States case law. On the contrary, the majority judgment relied solely on the dissenting opinion in Brewster without adequate substantiation. Secondly, the majority judgment has extended its interpretation of the Speech and Debate Clause and pigeon‑holed the interpretation of Article 105(2) to satisfy this understanding., III. Canada The precise question of whether bribing legislators to vote in a certain direction falls within the ambit of parliamentary privilege was adjudicated upon by the Queen’s Bench in R v. Bunting et al. In that case, the defendants sought the quashing of an indictment for conspiracy to change the Government of the Province of Ontario by bribing members of the legislature to vote against the government. Supreme Court of India conclusively held that the offence of bribery and conspiracy to bribe members of the legislature fell within the jurisdiction of the court and such an inquiry would not encroach on parliamentary privilege. Further, it was held that if the defendants were proceeded against by the court, they may also be parallelly inquired against by the legislature for violation of rights and privileges. The proceedings are for different offences, may be conducted in their own right and such situations do not constitute a case of double punishment or double jeopardy., Supreme Court of India (speaking through Wilson, Chief Justice) held: It is to my mind a proposition very clear that this Court has jurisdiction over the offence of bribery as at the common law in a case of this kind, where a member of the Legislative Assembly is concerned either in the giving or in the offering to give a bribe, or in the taking of it for or in respect of any of his duties as a member of that Assembly; and it is equally clear that the Legislative Assembly has not the jurisdiction which this Court has in a case of the kind; and it is also quite clear that the ancient definition of bribery is not the proper or legal definition of that offence. There is nothing more definitely settled than that the House of Commons in England, and the different colonial Legislatures, have not, and never have had, criminal jurisdiction., The decision in Bunting was before the Court in P. V. Narasimha Rao. The minority expressly relied on the decision, recognizing that bribing a legislator was treated as a common law offence under the criminal law in Canada and Australia and a legislator can be prosecuted in a criminal court for the offence. Agarwal, J noted: In Australia and Canada where bribery of a legislator was treated as an offence at common law the courts in White, Boston and Bunting had held that the legislator could be prosecuted in the criminal court for the said offence. It cannot, therefore, be said that since acceptance of bribe by a Member of the House of Commons was treated as a breach of privilege by the House of Commons and action could be taken by the House for contempt against the Member, the Members of the House of Commons were enjoying a privilege that in respect of conduct involving acceptance of bribe in connection with the business of Parliament, they could only be punished for breach of privilege of the House and they could not be prosecuted in a court of law. Clause (3) of Article 105 of the Constitution cannot, therefore, be invoked by the appellants to claim immunity from prosecution in respect of the charge levelled against them., In the earlier part of the judgment we have found that for the past more than one hundred years legislators in Australia and Canada are liable to be prosecuted for bribery in connection with their legislative activities and, with the exception of the United Kingdom, most of the Commonwealth countries treat corruption and bribery by Members of the legislature as a criminal offence. In the United Kingdom also there is a move to change the law in this regard. There appears to be no reason why legislators in India should be beyond the pale of laws governing bribery and corruption when all other public functionaries are subject to such laws. We are, therefore, unable to uphold the above contention of Shri Thakur., The majority judgment, on the other hand, makes a reference to Bunting but chooses not to rely on the judgment or any other judgment by Canadian courts placed on record in the case., Another interesting line of jurisprudence, expanded by the Supreme Court of Canada after the decision in P. V. Narasimha Rao, is relevant to answer the question before this Court. While dealing with the remit of parliamentary privilege, the Supreme Court of Canada has adopted the test of necessity in a formulation similar to the test formulated in Part F of this judgment. In this regard, the landmark decision of the Supreme Court of Canada in Canada (House of Commons) v. Vaid may be noted in some detail., In the above case, the former Speaker of the House of Commons was accused of dismissing his chauffeur for reasons that allegedly constituted workplace discrimination under the Canadian Human Rights Act, 1985. This was resisted by the House of Commons which contended that such an inquiry constituted an encroachment on parliamentary privilege and that the hiring and firing of House employees are internal affairs which may not be questioned or reviewed by any tribunal or court apart from the House itself. Supreme Court of India did not accept this contention., The Supreme Court of Canada held that legislative bodies do not constitute enclaves shielded from the ordinary law of the land. The party that seeks to rely on immunity under the broader umbrella of parliamentary privilege has the onus of establishing its existence. In Canada, the House of Commons in the United Kingdom is used as the benchmark to determine the existence of parliamentary privilege. Therefore, to determine whether a privilege does in fact exist, the first step is to scrutinize if it is authoritatively established in relation to the Canadian Parliament or the House of Commons. If the existence is not established, the doctrine of necessity is to be applied to determine if the act is protected by parliamentary privilege. In essence, the legislature or the member seeking immunity must prove that the activity for which privilege is claimed is closely and directly connected with the fulfilment by the legislature of its functions and that external interference would impact the autonomy required for the assembly to carry out its functions with dignity and efficiency., The Supreme Court of Canada held as follows: While much latitude is left to each House of Parliament, such a purposive approach to the definition of privilege implies important limits. There is general recognition, for example, that privilege attaches to proceedings in Parliament. Nevertheless, as stated in Erskine May (19th ed. 1976), at p. 89, not everything that is said or done within the Chamber during the transaction of business forms part of proceedings in Parliament. Particular words or acts may be entirely unrelated to any business which is in course of transaction or is in a more general sense before the House as having been ordered to come before it in due course. (This passage was referred to with approval in Re Clark.) Thus in R. v. Bunting (1885), 7 O.R. 524, for example, the Queen’s Bench Division held that a conspiracy to bring about a change in the government by bribing members of the provincial legislature was not in any way connected with a proceeding in Parliament and, therefore, the court had jurisdiction to try the offence., Similarly, the decision of the Supreme Court of Canada in Chagnon v. Syndicat de la fonction publique et parapublique du Québec relies on Vaid and adopts the test of necessity in similar terms. In that case, security guards employed by the National Assembly of Québec were dismissed from service by the President of the assembly. The dismissal was assailed before the labour arbitrator on the ground that the decision to dismiss the guards is not subject to review and is protected by parliamentary privilege. The Supreme Court of Canada, in its majority opinion, held that the dismissal of the security guards was not protected by parliamentary privilege. The Court opined that the inherent nature of parliamentary privilege indicates that its scope must be anchored to its rationale, i.e., to protect legislatures in the discharge of their legislative and deliberative functions. A court recognizing a parliamentary privilege entails that the court cannot review its exercise. Therefore, a purposive approach must be adopted to ensure that it is only as broad as necessary to perform the assembly’s constitutional role. In the factual context, the Court held that the necessity of a parliamentary privilege over the management of the security guards could not be established., IV. Australia The position of law in Australia has been consistent since 1875. The courts have held that an attempt to bribe a member of the legislature to influence their votes constitutes a criminal offence under common law. The decision of the Supreme Court of New South Wales in R v. Edward White was a landmark in this regard. Sir James Martin (Chief Justice) observed: The point now for the consideration of the Court, whether or not the objection so taken is a valid one, or in other words, whether an attempt to bribe a member of the Legislative Assembly is a criminal offence. I am clearly of the opinion that such an attempt is a misdemeanor at common law. Although no case can be found on an information or indictment against a person for attempting to bribe a member of the Legislature, there are several cases which show that such an attempt is an offence. The injury to the public is more direct and is certainly greater in tampering with the person actually elected than with the persons who elect him., Similarly, Justice Hargrave observed: These numerous modern authorities clearly establish that the old common law prohibition against bribery has been long since extended beyond mere judicial officers acting under oaths of office, to all persons whatever holding offices of public trust and confidence; and it seems impossible to understand why members of our Legislative Assembly and Legislative Council, who are entrusted with the public duty of enacting our laws, should not be at least equally protected from bribery and corruption as any Judge or constable who has to carry out the law., Subsequently, the decision in White was also followed by the High Court of Australia in R v. Boston. This was a case where certain private parties entered into an agreement to bribe members of the legislative assembly such that they would use their official position to secure the acquisition of certain estates. The appellant did not dispute the proposition established in White that an agreement to pay money to a member of the assembly to influence their vote would amount to a criminal offence. However, it was submitted that the bribe in this case was to induce the member of the assembly to use his position outside and not inside the assembly in favour of the bribe‑givers. The Court rejected the artificial distinction between illegal gratification to perform acts inside the parliament and acts outside the parliament and held that in both cases, the act of bribery impairs the capacity of the member to exercise a disinterested judgment, thereby impacting their ability to act as a representative of the people. Knox, Chief Justice held: In my opinion, the payment of money to, and the receipt of money by, a member of Parliament to induce him to use his official position, whether inside or outside Parliament, for the purpose of influencing or putting pressure on a Minister or other officer of the Crown to enter into or carry out a transaction involving payment of money out of the public funds, are acts tending to the public mischief, and an agreement or combination to do such acts amounts to a criminal offence., Supreme Court of India followed the position of law laid down by the Supreme Court of the United Kingdom in Chaytor that the House of Commons does not have exclusive jurisdiction to deal with criminal conduct by members of the House. The only exception to such cases is when the existence of parliamentary privilege makes it virtually impossible to determine the issues or if the proceedings interfere with the ability of the House to conduct its legislative and deliberative business. For instance, in Obeid v. Queen, the appellant was charged with the offence of misconduct in office by using his position to gain a pecuniary advantage for himself. One of the grounds argued before the Court of Criminal Appeal for New South Wales was that since Parliament had the power to deal with such contraventions by members of the assembly, the court should have refrained from exercising jurisdiction. Supreme Court of India followed Chaytor to hold that the Court and Parliament may have concurrent jurisdiction in respect of criminal matters and there was no law which prohibited the court from determining matters that do not constitute proceedings in parliament., The decisions in White and Boston were placed before the Court in P. V. Narasimha Rao. The minority judgment discussed both judgments in detail and relied on them to conclude that giving a bribe to influence a legislator to vote or speak in Parliament constitutes a criminal offence, which is not protected by Articles 105(2) and 194(2). The majority judgment, however, does not refer to the Australian precedents., I. Elections to the Rajya Sabha are within the remit of Article 194(2) We may lastly direct our attention to an argument raised by Mr. Venkataramani, the learned Attorney General. The Attorney General submitted that the decision P. V. Narasimha Rao is inapplicable to the facts of the present case. The factual situation in P. V. Narasimha Rao pertained to a no‑confidence motion, while in the present case, the appellant voted to fill vacant seats in the Council of States or the Rajya Sabha. In the counter affidavit filed by the Respondent, it was submitted that since polling for the Rajya Sabha Election was held outside the house in the lobby, it cannot be considered as a proceeding of the House like a no‑confidence motion. However, during oral arguments and in his written submissions, the Attorney General premised the argument that polling to the Rajya Sabha is not protected by Article 194(2) on the ground that such an election does not form part of the legislative proceedings of the House regardless of the geographical location of the election. To buttress this argument, the Attorney General relied on three judgments of this Court in Pashupati Nath Sukul v. Nem Chandra Jain and Others, Madhukar Jetly v. Union of India, and Kuldip Nayar v. Union of India., Such an argument, although attractive at first blush, appears to be misconceived. In essence, the question is whether votes cast by elected members of the state legislative assembly in an election to the Rajya Sabha are protected by Article 194(2) of the Constitution. Before addressing the judgments relied on by the learned Attorney General, we will analyze the provisions of the Constitution that govern this interesting question of constitutional interpretation., Article 80 governs the election of members to the Council of States or the Rajya Sabha. The provision reads as follows: 80. Composition of the Council of States. (1) The Council of States shall consist of (a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and (b) not more than two hundred and thirty‑eight representatives of the States and of the Union territories.
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(2) The allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule. (4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote., Pursuant to Article 80, the Rajya Sabha consists of twelve members who are nominated by the President and not more than two hundred and thirty‑eight representatives of the States and Union Territories. Significantly, under Article 80(4), the representatives of the Rajya Sabha shall be elected by the elected members of the Legislative Assembly of the states. Therefore, the power to vote for the elected members of the Rajya Sabha is solely entrusted to the elected members of the Legislative Assemblies of the states. It constitutes an integral part of their powers and responsibilities as members of the legislative assemblies of each of the states., The next question that arises, therefore, is whether the text of Article 194(2) places any restriction on such a vote being protected by parliamentary privilege. As stated above, Article 194(2) of the Constitution reads as follows: 194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof. (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes, or proceedings., The marginal note to Article 194 uses the phrase powers, privileges, etc. of the Houses of Legislatures and of the members and committees thereof. It is a settled position of law that the marginal note to a section in a statute does not control the meaning of the body of the section if the language employed is clear. With reference to Articles of the Constitution, a marginal note may be used as a tool to provide some clue as to the meaning and purpose of the Article. However, the real meaning of the Article is to be derived from the bare text of the Article. When the language of the Article is plain and ambiguous, undue importance cannot be placed on the marginal note appended to it. In Kesavananda Bharati v. State of Kerala, Justice Hegde, J (speaking for himself and Justice A. K. Mukherjea, J) observed as follows: 620. To restate the position, Article 368 deals with the amendment of the Constitution. The Article contains both the power and the procedure for amending the Constitution. No undue importance should be attached to the marginal note which says Procedure for amendment of the Constitution. The marginal note plays a very little part in the construction of a statutory provision. It should have much less importance in construing a constitutional provision. The language of Article 368 to our mind is plain and unambiguous. Hence we need not call into aid any of the rules of construction about which there was great deal of debate at the hearing. As the power to amend under the Article as it originally stood was only implied, the marginal note rightly referred to the procedure of amendment. The reference to the procedure in the marginal note does not negate the existence of the power implied in the Article., Distinct from the marginal note, in the text of the provision, there is a conscious use of the term Legislature instead of the House of Legislature at appropriate places. It is evident from the drafting of the provision that the two terms have not been used interchangeably. The first limb of Article 194(2) pertains to anything said or any vote given by him in the Legislature or any committee thereof. However, in the second limb, the phrase used is in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes, or proceedings. There is a clear departure from the term Legislature which is used in the first limb, to use the term House of such a Legislature in the second limb of the provision. It is clear, therefore, that the provision creates a distinction between the Legislature as a whole (in the first limb) and the House of the same legislature (in the second limb)., As correctly submitted by Mister Raju Ramachandran, senior counsel for the appellant, the terms House of Legislature and Legislature have different connotations. House of Legislature refers to the juridical body, which is summoned by the Governor pursuant to Article 174. The term Legislature, on the other hand, refers to the wider concept under Article 168, comprising the Governor and the Houses of the Legislature. It functions indefinitely and continues to exist even when the Governor has not summoned the House., The use of the phrase in the Legislature instead of House of Legislature is significant. There are several parliamentary processes which do not take place on the floor of the House, that is, when it is in session, having been summoned by the Governor. For instance, there are ad hoc committees and standing committees which examine various issues, including matters of policy or government administration. Many of these committees do not deliberate on laws or bills tabled in the House or cease to function when the House is not in session. There appears to be no reason why the deliberations that take place in such committees (anything said) would not be protected by parliamentary privilege., The elections to the Rajya Sabha conducted under Article 80 as referred to above may also take place when the House is not in session as seats may fall vacant when the legislative assembly of the state is not in session. However, the elections remain a part of the functioning of the Legislature and take place within the precincts of the Legislative Assembly. Similarly, the elections for the President of India under Article 54 and for the Vice President under Article 66 may also take place when Parliament or the state legislative assemblies are not in session. However, they are an integral part of the powers and responsibilities of elected members of the Parliament and state legislative assemblies. The vote for such elections is given in the Legislature or Parliament, which is sufficient to invoke the protection of the first limb of Articles 105(2) and 194(2). Such processes are significant to the functioning of the legislature and in the broader structure of parliamentary democracy. There appears to be no restriction either in the text of Article 105(2) and Article 194(2), which pushes such elections outside of the protection provided by the provisions. Further, the purpose of parliamentary privilege to provide legislators with the platform to speak and vote without fear is equally applicable to elections to the Rajya Sabha and elections for the President and Vice President as well. The electoral college consists of elected Members of Parliament and elected Members of Legislative Assemblies., We will now address the cases relied on by the Attorney General to advance his argument. In Pashupati Nath Sukul (supra), a bench of three judges of the Supreme Court of India held that a member of the legislative assembly may propose a candidature for a seat in and vote at an election to the Rajya Sabha even before taking the constitutional oath required under Article 188 of the Constitution. The Court observed that an election to fill seats in the Rajya Sabha does not form a part of the legislative proceedings of the House nor do they constitute a vote given in the House on any issue arising before it. Therefore, it is not hit by Article 193 of the Constitution which states that a member of the Legislative Assembly cannot sit and vote in the House before subscribing to the oath. Interestingly, the Court also noted that in the intervening period between the name of the elected member appearing in the notification and the member taking the constitutional oath, she is entitled to all the privileges, salaries, and allowances of a member of the Legislative Assembly. It is clear that the Court recognized that members of the legislative assembly are entitled to privileges even when they cannot participate or are not participating in law‑making. One of these privileges is the parliamentary privilege bestowed on members of the legislative assembly under Article 194. The Court held as follows: 18. The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly cannot sit and vote in the House before making oath or affirmation. The words sitting and voting in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting. An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House. Invariably there is an interval of time between the constitution of a House after a general election as provided by Section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears in the notification issued under Section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha. That is the effect of Section 73 of the Act which says that on the publication of the notification under it the House shall be deemed to have been constituted. The election in question does not form a part of the legislative proceedings of the House carried on at its meeting. Nor the vote cast at such an election is a vote given in the House on any issue arising before the House. The Speaker has no control over the election. The election is held by the Returning Officer appointed for the purpose. As mentioned earlier, under Section 33 of the Act the nomination paper has to be presented to the Returning Officer between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon before the last day notified for making nominations under Section 30 of the Act. Then all further steps such as scrutiny of nominations and withdrawal of nominations take place before the Returning Officer. Rule 69 of the Conduct of Elections Rules, 1961 provides that at an election by Assembly members where a poll becomes necessary, the Returning Officer for such election shall, as soon as may be after the last date for the withdrawal of candidatures, send to each elector a notice informing him of the date, time and place fixed for polling. Part VI of the Conduct of Elections Rules, 1961 which contains Rule 69 and Part VII thereof deal with the procedure to be followed at an election by Assembly members. Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the Returning Officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgment of its receipt duly signed by him and immediately send the acknowledgment by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House., In Madhukar Jetley (supra), the Supreme Court of India relied on Pashupati Nath Sukul (supra) and reiterated that an election to the Rajya Sabha does not form part of the legislative proceedings of the House and the vote cast at such an election does not constitute a vote given at a sitting of the House. Pertinently, both Pashupati Nath Sukul (supra) and Madhukar Jetley (supra) did not relate to any question bearing on the interpretation and scope of Article 194(2) or any claim for parliamentary privilege., As stated above, there is no dispute with the proposition that elections to the Rajya Sabha are not part of the law‑making functions and do not take place during a sitting of the House. However, the text of Article 194 consciously uses the term Legislature instead of House to include parliamentary processes which do not necessarily take place on the floor of the House or involve law making in its pedantic sense., Finally, the learned Attorney General placed reliance on Kuldip Nayar (supra). In this case, a Constitution bench of the Supreme Court of India was adjudicating the validity of an amendment to the Representation of the People Act, 1951 by which (a) the requirement that a candidate for elections to the Rajya Sabha be an elector from a constituency in the state was removed; and (b) an open ballot was introduced in the elections to the Rajya Sabha., One of the submissions before the Court to assail the use of open ballots in elections to the Rajya Sabha was that the votes are protected by Article 194(2). It was contended that the right to freedom of speech guaranteed to Members of Legislative Assemblies under Articles 194(1) and (2) is different from the right to free speech and expression under Article 19(1)(a), which is subject to reasonable restrictions. It was urged that the absolute freedom to vote under Article 194(2) of the Constitution was being diluted through a statutory amendment to the Representation of the People Act, 1951 permitting open ballots. While addressing this argument, the Court held that elections to fill seats in the Rajya Sabha are not proceedings of the legislature but a mere exercise of franchise, which falls outside the net of Article 194. The Court (speaking through Chief Justice Y. K. Sabharwal) held as follows: Arguments based on Legislative Privileges and the Tenth Schedule. It is the contention of the learned counsel that the same should be the interpretation as to the scope and tenor of the provision contained in Article 194(2) concerning the privileges of the Members of the Legislative Assemblies of the States who constitute State‑wise electoral colleges for electing representatives of each State in the Council of States under the provisions of Article 80(4). The counsel argue that the freedom of expression without fear of legal consequences as flowing from Article 194(2) should inure to the Members of the Legislative Assemblies while discharging their function as electoral college under Article 80(4). This argument, though attractive, does not deserve any credence in the context at hand. The proceedings concerning election under Article 80 are not proceedings of the House of the Legislature of the State within the meaning of Article 194. It is the elected Members of the Legislative Assembly who constitute, under Article 80 the electoral college for electing the representative of the State to fill the seat allocated to that State in the Council of States. It is noteworthy that it is not the entire Legislative Assembly that becomes the electoral college, but only the specified category of members thereof. When such members assemble at a place, they do so not to discharge functions assigned under the Constitution to the Legislative Assembly. Their participation in the election is only on account of their ex‑officio capacity of voters for the election. Thus, the act of casting votes by each of them, which also need not occur with all of them present together or at the same time, is merely exercise of franchise and not proceedings of the legislature., The protection under Article 105 and Article 194 guarantees that the vote of an elected member of Parliament or the state legislature, as the case may be, cannot be the subject of proceedings in court. It does not guarantee a secret ballot. In fact, even when elected members of Parliament or of the state legislature vote on Bills during a sitting of the House, which undisputedly falls within the ambit of Articles 105 and 194, they are not assured of a secret ballot. While voting is ordinarily carried out by a voice vote, members of the legislature can seek what is referred to as a division vote. In such a case the division of votes, i.e., which member voted in favour or against the motion, is visible to the entire House and the general public. It cannot be gainsaid that the purpose of parliamentary privilege under Article 194(2) is not to provide the legislature with anonymity in their votes or speeches in Parliament but to protect them from legal proceedings pertaining to votes which they cast or speeches which they make. That the content of the votes and speeches of their elected representatives be accessible to citizens is an essential part of parliamentary democracy., Mister Raju Ramachandran, senior counsel on behalf of the appellant, has argued that the observations in Kuldip Nayar (supra) do not constitute the ratio decidendi of the judgment and are obiter. It is trite law that the Supreme Court of India is only bound by the ratio of the previous decision. There may be some merit to this contention. However, in any event, this being a combination of seven judges of the Supreme Court of India, it is clarified that voting for elections to the Rajya Sabha falls within the ambit of Article 194(2). On all other counts, the decision of the Constitution bench in Kuldip Nayar (supra) remains good law., Interestingly, Kuldip Nayar (supra) is yet another case where the Court relied on the minority judgment in P. V. Narasimha Rao (supra) to strengthen the proposition that while interpreting the Constitution, the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. Applying this proposition of law to the question of whether voting to the Rajya Sabha is covered within the ambit of Article 194(2) also brings us to a similar conclusion., One of us (D. Y. Chandrachud, J) in K. S. Puttaswamy (Aadhaar) v. Union of India, 2018 SCC OnLine SC 1642, had occasion to reflect on the significance of the Rajya Sabha and bicameralism on the foundations of our democracy. It was observed that: 1106. The institutional structure of the Rajya Sabha has been developed to reflect the pluralism of the nation and its diversity of language, culture, perception and interest. The Rajya Sabha was envisaged by the Makers of the Constitution to ensure a wider scrutiny of legislative proposals. As a second chamber of Parliament, it acts as a check on hasty and ill‑conceived legislation, providing an opportunity for scrutiny of legislative business. The role of the Rajya Sabha is intrinsic to ensuring executive accountability and to preserving a balance of power. The Upper Chamber complements the working of the Lower Chamber in many ways. The Rajya Sabha acts as an institution of balance in relation to the Lok Sabha and represents the federal structure of India. Both the existence and the role of the Rajya Sabha constitute a part of the basic structure of the Constitution. The architecture of our Constitution envisions the Rajya Sabha as an institution of federal bicameralism and not just as a part of a simple bicameral legislature. Its nomenclature as the Council of States rather than the Senate appropriately justifies its federal importance. 1108. As a revising chamber, the Constitution‑Makers envisioned that it will protect the values of the Constitution, even if it is against the popular will. The Rajya Sabha is a symbol against majoritarianism. 1110. Participatory governance is the essence of democracy. It ensures responsiveness and transparency. An analysis of the Bills revised by the Rajya Sabha reveals that in a number of cases, the changes recommended by the Rajya Sabha in the Bills passed by the Lok Sabha were eventually carried out. The Dowry Prohibition Bill is an example of legislation in which the Rajya Sabha's insistence on amendments led to the convening of a joint sitting of the two Houses and in that sitting, one of the amendments suggested by the Rajya Sabha was adopted without a division. The Rajya Sabha has a vital responsibility in nation building, as the dialogue between the two Houses of Parliament helps to address disputes from divergent perspectives. The bicameral nature of Indian Parliament is integral to the working of the federal Constitution. It lays down the foundations of our democracy. That it forms a part of the basic structure of the Constitution, is hence based on constitutional principle. The decision of the Speaker on whether a Bill is a Money Bill is not a matter of procedure. It directly impacts on the role of the Rajya Sabha and, therefore, on the working of the federal polity., Conclusion. In the course of this judgment, while analysing the reasoning of the majority and minority in P. V. Narasimha Rao (supra) we have independently adjudicated on all the aspects of the controversy namely, whether by virtue of Articles 105 and 194 of the Constitution a Member of Parliament or the Legislative Assembly, as the case may be, can claim immunity from prosecution on a charge of bribery in a criminal court. We disagree with and overrule the judgment of the majority on this aspect., The doctrine of stare decisis is not an inflexible rule of law. A larger bench of this Court may reconsider a previous decision in appropriate cases, bearing in mind the tests which have been formulated in the precedents of this Court. The judgment of the majority in P. V. Narasimha Rao (supra), which grants immunity from prosecution to a member of the legislature who has allegedly engaged in bribery for casting a vote or speaking, has wide ramifications on public interest, probity in public life and parliamentary democracy. There is a grave danger of this Court allowing an error to be perpetuated if the decision were not reconsidered., Unlike the House of Commons in the United Kingdom, India does not have ancient and undoubted privileges which were vested after a struggle between Parliament and the King. Privileges in pre‑independence India were governed by statute in the face of a reluctant colonial government. The statutory privilege transitioned to a constitutional privilege after the commencement of the Constitution., Whether a claim to privilege in a particular case conforms to the parameters of the Constitution is amenable to judicial review., An individual member of the legislature cannot assert a claim of privilege to seek immunity under Articles 105 and 194 from prosecution on a charge of bribery in connection with a vote or speech in the legislature. Such a claim to immunity fails to fulfil the two‑fold test that the claim is tethered to the collective functioning of the House and that it is necessary to the discharge of the essential duties of a legislator., Articles 105 and 194 of the Constitution seek to sustain an environment in which debate and deliberation can take place within the legislature. This purpose is destroyed when a member is induced to vote or speak in a certain manner because of an act of bribery., The expressions anything and any must be read in the context of the accompanying expressions in Articles 105(2) and 194(2). The words in respect of means arising out of or bearing a clear relation to and cannot be interpreted to mean anything which may have even a remote connection with the speech or vote given., Bribery is not rendered immune under Article 105(2) and the corresponding provision of Article 194 because a member engaging in bribery commits a crime which is not essential to the casting of the vote or the ability to decide on how the vote should be cast. The same principle applies to bribery in connection with a speech in the House or a Committee., Corruption and bribery by members of the legislatures erode probity in public life., The jurisdiction which is exercised by a competent court to prosecute a criminal offence and the authority of the House to take action for a breach of discipline in relation to the acceptance of a bribe by a member of the legislature exist in distinct spheres. The scope, purpose and consequences of the court exercising jurisdiction in relation to a criminal offence and the authority of the House to discipline its members are different., The potential of misuse against individual members of the legislature is neither enhanced nor diminished by recognizing the jurisdiction of the court to prosecute a member of the legislature who is alleged to have indulged in an act of bribery., The offence of bribery is agnostic to the performance of the agreed action and crystallizes on the exchange of illegal gratification. It does not matter whether the vote is cast in the agreed direction or if the vote is cast at all. The offence of bribery is complete at the point in time when the legislator accepts the bribe., The interpretation which has been placed on the issue in question in the judgment of the majority in P. V. Narasimha Rao (supra) results in a paradoxical outcome where a legislator is conferred with immunity when they accept a bribe and follow through by voting in the agreed direction. On the other hand, a legislator who agrees to accept a bribe, but eventually decides to vote independently will be prosecuted. Such an interpretation is contrary to the text and purpose of Articles 105 and 194., The reference is answered in the above terms. Having answered the question of law raised by the impugned judgment of the High Court in this reference, the criminal appeal stands disposed of in the above terms.
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Habeas Corpus Writ Petition No. 10 of 2021. Limited Col. S. Bajaj, Petitioner, versus State of Uttarakhand and Colonel Jaipreet Singh, Respondents. Ms. Neela Gokhale and Mr. Abhijay Negi, learned counsel for the petitioner. Mr. Amit Bhatt, learned Deputy Attorney General, along with Mr. Pankaj Joshi, learned Brief Holder for the State. Mr. Shubham Aggarwal, learned counsel for respondent No. 3. Honourable Justice R.C. Khulbe, Judge., This Habeas Corpus petition has been filed under Article 226 of the Constitution of India for the following relief: Issue a writ of Habeas Corpus or a writ in the nature of Habeas Corpus or any other appropriate writ, direction or order under Article 226 of the Constitution of India, directing respondent No. 1 to secure the custody of the son Arjun by safely removing him from the illegal detention of respondent No. 3 and present him before this Honorable High Court., As per the writ petition, the writ petitioner is the maternal uncle of the minor Arjun, who is about 17 years old. Rashmi Bajaj was the biological mother but she passed away on 08.05.2021. There were estranged relations between respondent Jaipreet Singh (father of the minor) and Rashmi Bajaj (mother of Master Arjun). After the birth of Arjun, respondent No. 3 treated the deceased with utmost mental and physical cruelty. Respondent No. 3 put minimal amount of money in the joint account. The deceased was compelled to take a part‑time job. The deceased had received a notice dated 06.01.2021 sent by respondent No. 3 through his counsel, Mr. Shubham Aggarwal, seeking divorce on mutual consent. Rashmi succumbed to Covid‑19 on 08.05.2021. Respondent No. 3, who is said to be in the Indian Army, is presently posted in Sikkim. He has detained the corpus Arjun and is not allowing him even to interact with the maternal relatives of the deceased., Heard the learned counsel for the writ petitioner and learned counsel for respondent No. 3. When the matter came up for hearing before this Honorable High Court on 18.05.2021, a direction was issued to the State to produce Master Arjun before the Principal Judge, Family Court, Dehradun on 21.05.2021 for recording his statement. As per the direction of this Honorable High Court, the Principal Judge, Family Court, Dehradun recorded the statement of Master Arjun on 21.05.2021., I have also gone through the statement of Master Arjun recorded by the Principal Judge, Family Court, Dehradun and found that Master Arjun has crossed 17 years 6 months and he is studying in the 12th Standard in Army Public School, Dehradun. It is an admitted fact that Master Arjun is going to attain the age of majority on 10.09.2021, which shows that he will attain the age of majority after three months from today. After attaining the age of majority, the Court cannot compel him to go with any person against his will. As regards custody for the interregnum period, from the statement of Master Arjun, it is clear that he is studying in 12th class and will appear in board exams also. He is ready to live in Dehradun with his maternal uncle, Lieutenant Colonel S. Bajaj., It is true that respondent No. 3, Colonel Jaipreet Singh, is the biological father of Master Arjun but writ petitioner Lieutenant Colonel Shakti Bajaj is also the maternal uncle of Master Arjun and the brother of the deceased Rashmi (mother of Arjun). From a perusal of the statement of Master Arjun given before the Judge, Family Court, Dehradun, it is clear that he has crossed the tender age and is going to attain the age of majority very soon, i.e., on 10.09.2021. The Court cannot grant custody of a person against his volition. As per the statement, he is very much interested to reside with his maternal uncle Lieutenant Colonel Shakti Bajaj., Since the mother of Arjun has passed away on 08.05.2021 and the petitioner, being the maternal uncle, has sufficient means to look after Arjun, it would be appropriate to give the custody of Arjun to the petitioner till 10.09.2021 (till the date of attaining majority by him). In these circumstances, the instant writ petition is allowed with the following directions: A. The minor Arjun, who has been produced before the Judge, Family Court in compliance of this Honorable High Court order, is ordered to be given in the custody of the writ petitioner till he attains the age of majority i.e., 10.09.2021. B. Respondent No. 3 shall have visitation rights to meet the child on the first Monday of every calendar month between 10:00 a.m. to 12:00 noon at the Chamber of the Principal Judge, Family Court, Dehradun. During these visitation hours, the minor shall be provided free access to meet or communicate with respondent No. 3., Let this order be communicated to the learned Principal Judge, Family Court and Superintendent of Police, Dehradun for onward compliance.
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The appellant stands convicted by the impugned order passed by the Central Administrative Tribunal, Principal Bench, under Section 14 of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act for brevity) in terms of the charge framed against the appellant. After finding the appellant guilty, there would have been every justification for us to impose a sentence proportionate to the acts of contempt proved against the respondent. However, by treating this as a first instance, we let him off with a severe warning that if he repeats such acts in future before the Central Administrative Tribunal, the finding that he is guilty of contempt of the Central Administrative Tribunal in this case shall be treated as one of the factors in any proceedings that may ensue. The copy of this order shall be forwarded to the Bar Council of India and Delhi State Bar Council., We have heard Shri Mehmood Pracha, appellant-in-person. We have also had the advantage of hearing Shri Vikramjit Banerjee, learned Additional Solicitor General who, incidentally, in keeping with the mandate of Central Administrative Tribunal Rules, was called upon to assist the Tribunal in the matter of proceedings against the appellant., There were certain original applications before the Tribunal. On the fateful day, 08 February 2019, the Tribunal found that the appellant made certain submissions in his capacity as counsel for the party. Repeated requests to him to advance arguments did not appeal to him. He also humiliated the learned counsel for the respondents by saying that they had been shown their place by the Supreme Court of India by imposing a cost of Rs 25,000 and that they have no right whatsoever to plead before the Tribunal. He created an unfortunate situation in the Tribunal and was browbeating the Chairman as well as the respondents through his gestures and dramatics. All these were tolerated to give quietus to long‑pending matters. Seeing that his provocation was not yielding the expected results, the respondent made a personal attack on the Chairman. By looking around the Tribunal, he said that the proceedings must be held in camera and that he had much to say about the Chairman. He was informed that he could say in open proceedings whatever he intended and that if he did not, it would amount to scandalising the Chairman. His behaviour continued in the same manner and he did not reveal anything. The Tribunal was full of advocates of different standings and repeated requests by them to pacify the respondent had no effect on him. He proceeded to observe that the Chairman had lost his right to hear the petitions. He was informed that Section 25 of the Act provides for hearing of petitions only by the Chairman and that if he had any alternative or suggestion, he could make it. Even that did not work and he continued his tirade. Left with no alternative, a detailed order was passed on that date and a notice was issued requiring the respondent to explain within two weeks why contempt proceedings should not be initiated against him., The charge was framed on 10 February 2020. Though the charge was initially not produced along with the appeal memorandum, it was subsequently produced along with an application to produce the entire trial Court record. The charge reads as follows: Central Administrative Tribunal, Principal Bench, New Delhi hereby charges you, Mr Mehmood Pracha, as under: That you on 08 February 2019 represented the applicant in Petition No. 288/2017 in Original Application No. 2413/2016. In the course of the proceedings you insisted that the proceedings be conducted in camera since you had something to say against the Chairman which could not be revealed in open proceedings. However, when you were asked to reveal whatever you wanted to say, you did not come forward. The acts and omissions on your part would not only have the effect of tarnishing the image of the Tribunal but also amount to criminal contempt for threatening the Presiding Officer. You are hereby directed to be tried by the Tribunal for the aforesaid charge., There is no dispute that the charge was denied by the appellant. This is evident from the order dated 10 February 2020. The case stood listed on 25 February 2020. The terms of the order dated 18 March 2020 read as follows: We heard Shri Vikramjit Banerjee, learned Additional Solicitor General, who addressed his arguments by referring to the relevant provisions of the Contempt of Courts Rules, 1992 and drew our attention to the judgment of the Supreme Court of India in Leila David v. State of Maharashtra & Ors. (2009) 10 SCC 337. The respondent, who argued the case in person, also addressed his arguments at length. He insisted that a trial must be conducted as contemplated under Rule 15 of the Rules. However, since the contempt took place in the face of the Tribunal, the question of trial may not arise. The respondent also addressed his arguments on this issue. We reserve the judgment., From the impugned judgment, it is seen that the order was reserved on 18 March 2020 and rendered on 23 September 2020. The appellant urges that the Tribunal erred in denying him the right to be tried for the charge. The appellant draws our attention to the Contempt of Courts Rules, 1992 (hereinafter referred to as the Rules). Rule 13 and Rule 15 read as follows: Rule 13 – Hearing of the case and trial. Upon consideration of the reply filed by the respondent and after hearing the parties: (a) If the respondent has tendered an unconditional apology after admitting that he has committed contempt, the Tribunal may proceed to pass such orders as it deems fit; (b) if the respondent does not admit that he has committed contempt, the Tribunal may, (i) if satisfied that there is a prima facie case, proceed to frame the charges in Form No III (subject to modification or addition by the Tribunal at any time); or (ii) drop the proceedings and discharge the respondent if it is satisfied that there is no prima facie case or that it is not expedient to proceed; (c) The respondent shall be furnished with a copy of the charge framed, which shall be read over and explained to the respondent. The Tribunal shall then record his plea, if any; (d) If the respondent pleads guilty, the Tribunal may adjudge him guilty and pass such sentence as it deems fit; (e) If the respondent pleads not guilty, the case may be taken up for trial on the same day or posted to any subsequent date as may be directed by the Tribunal. Rule 15 – Procedure for trial. (i) Except as otherwise provided in the Act and these Rules, the procedure prescribed for summary trials under Chapter XXI of the Code of Criminal Procedure shall, as far as practicable, be followed in the trial of contempt cases. (ii) The Tribunal may, at its discretion, direct that evidence be produced in the form of affidavits. (iii) The Tribunal may, either suo motu or on motion made for that purpose, order the attendance for cross‑examination of a person whose affidavit has been filed. (iv) The Tribunal may, at its discretion, direct any person to be examined as a Tribunal witness. (v) The Tribunal may make such order as it deems fit for the purpose of securing the attendance of any person to be examined as a witness and for discovery or production of any document., Shri Vikramjit Banerjee, learned Additional Solicitor General, supports the order. He submits that the Tribunal may bear in mind the plight of the Tribunal that is accosted with the behaviour alleged against the appellant. As found by the Tribunal, the appellant, in the presence of a large number of lawyers, requested that the proceedings be held in the chamber because he had something to say against the Chairman. The impugned order points out that when the appellant was called upon to divulge what he had to reveal only in the chamber, he refused to do so., Shri Vikramjit Banerjee commends the findings and the order ultimately passed by the Tribunal. He justifies his submission before the Tribunal based on the judgment of the Supreme Court of India reported in Leila David v. State of Maharashtra & Ors. (2009) 10 SCC 337. He submits that the Tribunal has not erred in drawing support from the law that when proceedings are launched under Section 14 for contempt committed in the face of the Tribunal, a trial may not be indispensable. He points out that the final order passed by the Tribunal obviates any need for interference by this Court and that the interest of justice has been subserved. The Tribunal has balanced the interest of justice by upholding its dignity, convicting the appellant for his conduct, but only letting him off with a warning instead of imposing a sentence., He also points out that when the incident took place on 08 February 2019, the Tribunal did not immediately rush into proceedings. The matter traveled to the Delhi High Court on the question of whether the Tribunal or the Chairman could act under the Act. The Delhi High Court formed the view that the Tribunal was bestowed with adequate power. The matter reached the Supreme Court of India at the instance of the appellant, and the Supreme Court affirmed the view of the Delhi High Court. It is thereafter that the matter was taken up., Section 14 of the Contempt of Courts Act, 1971 reads as follows: 14. Procedure where contempt is in the face of the Supreme Court of India or a High Court. (1) When it is alleged, or appears to the Supreme Court of India or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody and, at any time before the rising of the Court, on the same day, or as early as possible thereafter, shall (a) cause him to be informed in writing of the contempt with which he is charged; (b) afford him an opportunity to make his defence to the charge; (c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and (d) make such order for the punishment or discharge of such person as may be just. (2) Notwithstanding anything contained in sub‑section (1), where a person charged with contempt under that sub‑section applies, whether orally or in writing, to have the charge tried by some judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, and the Court is of opinion that it is practicable to do so and that in the interests of proper administration of justice the application should be allowed, it shall cause the matter to be placed, together with a statement of the facts of the case, before the Chief Justice for such directions as he may think fit to issue as respects the trial thereof. (3) Notwithstanding anything contained in any other law, in any trial of a person charged with contempt under sub‑section (1) which is held, in pursuance of a direction given under sub‑section (2), by a Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed to appear as a witness and the statement placed before the Chief Justice under sub‑section (2) shall be treated as evidence in the case. (4) Pending the determination of the charge, the Court may direct that a person charged with contempt under this section shall be detained in such custody as it may specify, provided that he shall be released on bail if a bond for such sum of money as the Court thinks sufficient is executed with or without sureties, conditioned that the person charged shall attend at the time and place mentioned in the bond and shall continue to do so until otherwise directed by the Court; provided further that the Court may, if it thinks fit, instead of taking bail from such person, discharge him on his executing a bond without sureties for his attendance as aforesaid. A perusal of Section 14 indicates the procedure to be followed when contempt is in the face of the Supreme Court of India or a High Court., Section 17 of the Administrative Tribunals Act, 1985 provides the Tribunal with the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has and may, for this purpose, exercise the provisions of the Contempt of Courts Act, 1971 subject to the modifications that (a) the reference therein to a High Court shall be construed as including a reference to such Tribunal; (b) the references to the Advocate‑General in section 15 of the said Act shall be construed, (i) in relation to the Central Administrative Tribunal, as a reference to the Attorney‑General or the Solicitor‑General or the Additional Solicitor‑General; and (ii) in relation to an Administrative Tribunal for a State or a Joint Administrative Tribunal for two or more States, as a reference to the Advocate‑General of the State or any of the States for which such Tribunal has been established. Therefore, the power under Section 14 of the Act is also available to the Tribunal. Section 17 appears to confer the powers, jurisdiction and authority of a High Court on the Tribunal. There is no reference to the powers of the Supreme Court of India in Section 17., The question that arises for our consideration is whether, after framing a charge as noticed by us, it was necessary that there should be a trial and whether the charge should be supported with any evidence., As far as the light shed by Section 14 goes, Section 14(1)(c) indicates that the proceedings include taking of evidence as may be necessary or as may be offered by the person and thereafter determining the matter of the charge. Sub‑section (2) contemplates a situation where, in regard to the Supreme Court of India or a High Court, the alleged contemnor seeks to have the matter heard by another Judge, in which case the application is to be allowed if the Court is of the opinion that it is practical to do so and in the interest of proper administration of justice. In such eventuality, Section 14(3) provides that it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed to appear as a witness and that the statement of the judge placed before the Chief Justice shall be treated as evidence., Rule 13 contemplates that if the respondent (alleged contemnor) does not admit that he has committed contempt and a prima facie case is made out, the Tribunal shall proceed to frame a charge in Form No III, subject to modification or addition by the Tribunal at any time. The charge is to be read over and explained and the Tribunal shall then record his plea, if any. Rule 13(e) provides that if the respondent pleads not guilty, the case may be taken up for trial on the same day or be posted to any subsequent date as directed by the Tribunal., Rule 15 deals with the procedure for trial. Except where otherwise provided in the Act or the Rules, the procedure for summary trial under Chapter XXI of the Code of Criminal Procedure shall, as far as practicable, be followed in the trial of contempt cases. The Tribunal may, at its discretion, direct that evidence be produced in the form of affidavits. The Tribunal may also, on motion or suo motu, order attendance for cross‑examination of a person whose affidavit has been filed. Rule 15(iv) provides that the Tribunal may, at its discretion, direct any person to be examined as a Tribunal witness., The Tribunal, by the impugned order, has only noticed, in keeping with the charge, that the appellant made a statement in the Tribunal that he had something to say about the Chairman which he wished to communicate in the chamber. This is disputed by the appellant. The charge is on the lines found by the Tribunal, but the appellant denied the charge., Shri Vikramjit Banerjee, learned Additional Solicitor General, drew our attention to the counter‑affidavit of the appellant to the charge, which states: Apart from the observations recorded in the order, several oral observations were made by this Hon'ble Bench of the Tribunal speaking through its Hon'ble Chairman during the hearing on the said date, which were apparently unsavoury. More particularly, it was alleged by this Hon'ble Bench in open proceedings that the respondent manages Judges and Benches of the Supreme Court of India. To such a deeply hurtful, humiliating and completely baseless remark, the respondent, in solemn discharge of his duty as an officer of the court and responsible for maintaining its dignity, humbly prayed that the Tribunal may conduct further proceedings in chamber with a view to protect the dignity of the Supreme Court of India, the High Courts as well as its own dignity. It is humbly submitted that the majesty of law can only be upheld if there is inter‑se amity between all the institutions tasked with upholding it. Whenever institutional dignity is at risk of being unwittingly compromised, it is the duty of every conscientious and law‑abiding citizen, and most importantly, of the learned members of the Bar, to prevent such a slip from occurring. The request for a chamber hearing was made by the respondent in discharge of the said duty. It is respectfully submitted that at no stage any disrespectful words, gestures or personal attacks, allegations, threats or innuendo were made by the respondent against anyone, let alone this Hon'ble Tribunal or its Hon'ble Chairman., Therefore, this is not a case where we can proceed on the basis that the appellant has admitted his guilt to the charge that he made a statement in open proceedings that he had certain things to say about the Chairman which he would reveal only in the chamber. His version, as noticed in the counter‑affidavit, is that he maintained silence when called upon to say whatever he had to say in open proceedings. If he had indeed made the allegations against the Chairman in the form of an insinuation and then maintained silence, we would have little difficulty in upholding the conviction., Here, however, the problem is different. The issue arises from the denial of the very charge about what happened on 08 February 2019. The charge was framed on 10 February 2020 and the appellant pleaded not guilty. The proceedings on 18 March 2020 show that, on the one hand, the Additional Solicitor General relied upon the judgment of the Supreme Court of India and submitted that the Tribunal would be free to proceed without holding a trial, while the appellant insisted on his right to be tried. The matter was reserved for judgment resulting in no trial at all. This creates a problem of law in the facts of this case., Shri Vikramjit Banerjee, learned Additional Solicitor General, seeks support from the judgment of the Supreme Court of India in Leila David (supra). He took us through the said judgment., The appellant submits that the said judgment cannot apply. The judgment reveals certain features: certain allegations were made in the writ petition and supporting affidavits; the petitioners were asked to withdraw the allegations which they refused; the Court issued notice as to why contempt proceedings should not be taken; the Bench recorded that one petitioner said that Judges should be jailed for having initiated proceedings against them and another threw a footwear at the Judges. All this happened in the presence of the Solicitor General of India (later Attorney General of India) and others. A division of opinion led to the matter being placed before a Bench of three learned Judges. The question for decision was the need to hold a trial or allow the party to adduce evidence., We may notice the following observations: 28. As far as suo motu proceedings for contempt are concerned, we are of the view that Justice Arijit Pasayat was well within his jurisdiction in passing a summary order, having regard to the provisions of Articles 129 and 142 of the Constitution of India. Although Section 14 of the Contempt of Courts Act, 1971 lays down the procedure to be followed in cases of criminal contempt in the face of the court, it does not preclude the court from taking recourse to summary proceedings when a deliberate and wilful contumacious incident takes place in front of their eyes and the public at large, including Senior Law Officers such as the Attorney General for India who was then the Solicitor General of India. 29. While, as pointed out by Justice Ganguly, it is a statutory requirement and a salutary principle that a person should not be condemned unheard, particularly in a case relating to contempt of court involving a summary procedure, and should be given an opportunity of showing cause against the action proposed to be taken against him/her, there are exceptional circumstances in which such a procedure may be discarded as being redundant. 31. Section 14 of the Contempt of Courts Act, 1971 deals with contempt in the face of the Supreme Court of India. The expression contempt in the face of the Supreme Court has been interpreted to mean an incident taking place within the sight of the learned Judges and others present at the time of the incident, who had witnessed such incident. 35. Section 14 of the Contempt of Courts Act no doubt contemplates issuance of notice and an opportunity to the contemnors to answer the charges in the notice to satisfy the principles of natural justice. However, where an incident of the instant nature takes place within the presence and sight of the learned Judges, the same amounts to contempt in the face of the Court and is required to be dealt with at the time of the incident itself. This is necessary for the dignity and majesty of the courts to be maintained. When an object, such as a footwear, is thrown at the Presiding Officer in a court proceeding, the object is not to merely scandalise or humiliate the Judge, but to scandalise the institution itself and thereby lower its dignity in the eyes of the public. 36. In the instant case, after being given an opportunity to explain their conduct, the contemnors showed no remorse for their unseemly behaviour and further filed a fresh writ petition repeating scandalous remarks and using intemperate language to further denigrate and scandalise the Court. This is one of such cases where no leniency can be shown as the contemnors have taken the liberal attitude shown to them by the Court as licence for indulging in indecorous behaviour and making scandalous allegations not only against the judiciary but also against the highest constitutional functionaries. The writ proceedings have been taken in gross abuse of the process of Court, with the deliberate and wilful intention of lowering the image and dignity not only of the Court and the judiciary but to vilify the highest constitutional functionaries., A perusal of the aforesaid observations leads us to believe that the judgment turns on its facts. It was contempt committed before the Supreme Court of India. The nature of the contempt is clearly brought out. When the contempt case was launched, further acts included the throwing of footwear at the Judges. Subsequent conduct did not reveal much change in attitude. The Court noticed the presence of Articles 129 and 142 of the Constitution as sources of jurisdiction for this Court., In this case, however, we cannot equate the Tribunal with the Supreme Court of India. Undoubtedly, the Tribunal is endowed with the same power as are available to the High Court under the Act. But the powers available to the Supreme Court of India under Articles 129 and 142 are not available to the Tribunal. The appellant denied the charges and specifically claimed the right to a trial on the charge framed against him. No trial was conducted; no evidence was taken. The findings were rendered after the charge was framed on 10 February 2020. The only day on which the case stood listed before the pronouncement of the judgment was 18 March 2020. On that day, different submissions were made. The Additional Solicitor General told the Tribunal that the trial may not be necessary in view of the judgment in Leila David, while the appellant insisted that the trial must be conducted. The order dated 18 March 2020 shows that the appellant raised his argument about the need for a trial even in a contempt committed in the face of the Tribunal., It is pointed out by Shri Vikramjit Banerjee, learned Additional Solicitor General, that the appellant, along with his counter‑affidavit, filed certain documents apparently relating to the proceedings before the Tribunal., We think that, in the facts of this case, denial of the right of trial contemplated under Section 14(1)(c) of the Act as also Rule 15 of the Rules has resulted in a miscarriage of justice.
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We have noticed the central issue which had to be decided on the strength of evidence in the teeth of the denial of the charge by the appellant. We would think that, in the facts of the case, the Tribunal could not have derived support of the judgment of the Supreme Court of India for reasons already indicated., The upshot of the above discussion is that the appellant must succeed. We are allowing this appeal only on the ground that the procedure under the Act and in the Rules which related to adducing of evidence when there is a denial of the charge was not followed. We would undoubtedly have had no reservation in upholding the order if there was evidence to support the charge as framed against the appellant. Subject to these observations, the appeal is allowed. The impugned order is set aside. The direction to forward the case to the Bar Council of India will also perish., We record our deep sense of appreciation for Shri Vikramjit Banerjee, learned Additional Solicitor General, who not only assisted us but assisted us with fairness and placing the position at law before us., New Delhi; August 10, 2022. Criminal Appeal No. 892/2020. Date: 10-08-2022. This appeal was called on for hearing today., For Appellant(s): Appellant-in-person. For Respondent(s): Mr. Vikramjit Banerjee, Additional Solicitor General. Ms. Shruti Agarwal, Advocate. Mr. Shivam Singhania, Advocate., Upon hearing the appellant-in-person and the counsel, the Supreme Court of India made the following: The appeal is allowed in terms of the signed reportable judgment. Pending applications stand disposed of. Signed reportable judgment is placed on the file.
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Reportable Civil Appeal No. 1390 of 2022 Union of India and Another Appellants versus M/s Mohit Minerals Private Limited through Director Respondent., Dr Dhananjaya Y Chandrachud, J., Introduction: The Union of India is in appeal against a judgment of a Division Bench of the Gujarat High Court dated 23 January 2020. The Gujarat High Court allowed a petition instituted by the respondents under Article 226 for challenging the constitutionality of two notifications of the Central Government. The bone of contention is whether an Indian importer can be subject to the levy of Integrated Goods and Services Tax on the component of ocean freight paid by the foreign seller to a foreign shipping line, on a reverse charge basis., The respondents import non-coking coal from Indonesia, South Africa and the United States by ocean transport on a Cost‑Insurance‑Freight basis which is supplied to domestic industries. The goods are transported from a place outside India, up to the customs station in India. The respondent pays customs duties on the import of coal, which includes the value of ocean freight. In the case of a CIF contract, the freight invoice is issued by the foreign shipping line to the foreign exporter, without the involvement of the importer. Ocean freight is paid by the importer only when goods are imported under a Free‑on‑Board contract. In the case of a high seas sale transaction, the coal is purchased from the original buyer before it arrives at Indian ports., Prior to the enforcement of the Goods and Services Tax regime, service tax on ocean freight was exempted by Notification No. 25/2012‑ST (Serial No. 34) dated 20 June 2012. This exemption was withdrawn by Notification No. 01/2017‑ST dated 12 January 2017 which levied service tax on the importer, by a reverse charge mechanism. With the advent of the GST regime, Notification No. 8/2017‑Integrated Tax (Rate) dated 28 June 2017 was issued by the Central Government on the advice of the Goods and Services Tax Council, in exercise of powers under Section 5(1), Section 6(1) and Section 20(iii)‑(iv) of the Integrated Goods and Services Tax Act 2017, read with Section 15(5) and Section 16(1) of the Central Goods and Services Act. Entry 9 of Notification 8/2017, effective from 1 July 2017, levied an integrated tax at the rate of 5 per cent on the supply of specified services, including transportation of goods, in a vessel from a place outside India up to the customs station of clearance in India., On 28 June 2017, the Central Government issued Notification 10/2017. Serial 10 of Notification 10/2017 categorized the recipient of services of supply of goods by a person in a non‑taxable territory by a vessel to include an importer under Section 2(26) of the Customs Act 1962., Section 5(1) of the Integrated Goods and Services Tax Act authorises the levy of an integrated tax on all inter‑state supplies of goods and services or both. The integrated tax can also be levied on goods imported into India on the value determined under Section 3 of the Customs Tariff Act 1975 at the point when customs duties are levied on the goods under Section 12 of the Customs Act 1962. Section 11 of the IGST Act stipulates that the place of supply of goods in the case of goods imported into India shall be the place of the importer. Section 13(9) of the IGST Act contemplates that the place of supply of services, in the case of transportation of goods, shall be the destination of the goods., The respondent alleges that the impugned notifications create an element of double taxation, as ocean freight is included in the value of goods for the purpose of customs duty which the importer is liable to pay. The respondent does not dispute the liability of integrated tax on supply of service of transportation when it imports goods on an FOB basis., The respondent filed a writ petition before the Gujarat High Court challenging Notification 8/2017 and Notification 10/2017 on the grounds that: (i) the notifications are ultra vires the IGST Act and Central Goods and Services Tax Act; (ii) customs duty is levied on the component of ocean freight and the levy of IGST on the freight element in the course of transportation would amount to double taxation; (iii) though in the case of high sea sales, the importer is a different entity yet this regime would tax the respondent as the importer and the recipient of service; (iv) in the case of a CIF contract, the supply of service of transport of goods in a vessel is by a foreign shipping line located in a non‑taxable territory to an exporter located in a non‑taxable territory, which cannot be subject to tax under the IGST Act; (v) Notification 10/2017 transgresses the provisions of Section 5(3) of the IGST Act as instead of the recipient mentioned therein, the importer as defined in Section 2(26) of the Customs Act is made liable to pay tax; and (vi) Entry 9(ii) and paragraph 2 of Notification 8/2017, read with Notification 10/2017, creates a deeming fiction and a separate taxable event which is not permissible in law., The Union of India urged before the Gujarat High Court that although tax is being paid twice on the value of ocean freight, it is not unconstitutional as the tax is on two different aspects of the transaction, namely, the supply of service and import of goods. The rationale for the impugned notifications, according to the Union Government, is to remove the disparity between Indian and foreign shipping lines, as the former are unable to claim input tax credit that forms a part of their transportation costs, since supply of goods was hitherto exempt from service tax. The levy of the integrated tax does not, according to the Union of India, impose an additional cost on importers as the cost paid on inward transportation of goods and import freight services is available to them as input tax credit., Under the existing GST regime, the taxability of ocean freight is as follows: For an Indian importer receiving services, Section 12(8) of the IGST Act deems the place of supply to be the location of the recipient, making the transaction liable for tax and allowing the importer to claim input tax credit. For an Indian exporter, the same provision applies and the exporter can obtain a refund of input tax credit used for export. For a foreign importer, Section 13(9) of the IGST Act makes the place of supply India, so tax is payable under reverse charge and can be claimed as input tax credit. For a foreign exporter, the place of supply is outside India, so the transaction is not liable for tax., The Division Bench of the Gujarat High Court held that the impugned notifications are unconstitutional for exceeding the powers conferred by the IGST Act and the Central Goods and Services Tax Act. The Gujarat High Court held: (i) The importer of goods on a CIF basis is not the recipient of the transport services as Section 2(93) of the CGST Act defines a recipient of services to mean someone who pays consideration for the service, which is the foreign exporter in this case; (ii) Section 5(3) of the IGST Act enables the Government to stipulate categories of supply, not specify a third‑party as a recipient of such supply; (iii) There is no territorial nexus for taxation since the supply of service of transportation of goods is by a person in a non‑taxable territory to another person in a non‑taxable territory from a place outside India up to the Indian customs clearance station and this is neither an inter‑state nor an intra‑state supply; (iv) Section 2(11) of the IGST Act defines import of service to mean the supply of service where the supplier of service is located outside India, the recipient of service is located in India and the place of supply of service is in India; (v) In this case, since the goods are transported on a CIF basis, the recipient of service is the foreign exporter who is outside India; (vi) Section 7(5)(c) of the IGST Act dealing with intra‑state supply cannot be read so extensively that it conflates the supply of goods or services or both in the taxable territory to place of supply; (vii) Sections 12 and 13 of the IGST Act deal with determining the place of supply. Neither of them will apply if both the supplier and recipient of service are based outside India. The mere fact that the service terminates at India does not make the service of supply of transportation to be taking place in India; (viii) The provisions regarding time of supply, as contemplated in Section 20 of the IGST Act and applicable to Section 13 of the IGST Act dealing with supply of services, are applicable only vis‑à‑vis the actual recipient of the supply of service, which is the foreign exporter in this case; (ix) Section 15(1) of the CGST Act enables the determination of the value of the supply, only between the actual supplier and actual recipient of the service; (x) Since the importer is not the recipient of the service under Section 2(93) of the CGST Act, it will not be in a position to avail input tax credit under Section 16(1) of the CGST Act; and (xi) Since the importer pays customs duties on the goods which include the value of ocean freight, the impugned notifications impose double taxation through a delegated legislation, which is impermissible., B Submissions. B.1 Union of India. Mr N Venkataraman, learned Additional Solicitor General appearing on behalf of the appellant the Union of India urged the following submissions:, Constitutional Architecture of IGST: (i) Under Article 286(2), Parliament is empowered to formulate, inter alia, the principles for determining when a supply of goods or services takes place in any of the ways mentioned in Article 286(1), which includes imports; (ii) Article 269A enables the Union Government to levy GST on inter‑state supplies. The explanation to Article 269A(1) creates a deeming fiction that a supply of goods or services in the course of imports is to be considered as a supply of goods or services or both in the course of interstate trade; (iii) Article 269A(5) enables Parliament to formulate the principles for determining the place of supply and when a supply of goods and services or both takes place in the course of inter‑state trade or commerce. This constitutional mandate finds legislative effect in the IGST Act; (iv) As contemplated in Article 286(2) read with Article 269A(1), the IGST Act enacts provisions relating to the levy and collection of integrated tax (Section 5(1)), export of goods (Section 2(5)), export of services (Section 2(6)), import of goods (Section 2(10)), import of services (Section 2(11)), location of recipient of services (Section 2(14)) and location of supplier of services (Section 2(15)); (v) In terms of Article 269A(5), the IGST Act contemplates provisions for determining the nature of inter‑state supply (Section 7), supplies in territorial waters (Section 9), place of supply of goods imported into or exported out of India (Section 11), place of supply of services where the location of supplier and recipient is in India (Section 12) and place of supply of services where the location of supplier and recipient is outside India (Section 13)., Charging Section: The charge created by Section 5(1) of the IGST Act can extend to an ocean freight transaction to be taxed in the hands of the importer. This creation of a charge is in compliance with the essential components of taxation identified by a Constitution Bench in Mathuram Agrawal v. State of Madhya Pradesh (1999) (8) SCC 667 and further elaborated on by this Court in Gobind Saran Ganga Saran v. Commissioner of Sales Tax (AIR 1985 SC 1041). The four fundamental principles of a taxing enactment are: the taxable event, the person on whom the levy is imposed, the rate at which the levy is imposed and the measure or the value to which the rate will be applied. Section 5(1) fulfils the above components of taxation: Taxable event – there shall be levied a tax called integrated goods and services tax on all inter‑state supplies of goods or services or both except on the supply of alcoholic liquor for human consumption. Taxable value – on the value determined under Section 15. Taxable rate – at such rates not exceeding 40 per cent as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed. Taxable person – shall be paid by the taxable person., Concept of Reverse Charge: Section 2(98) of the CGST Act defines reverse charge to mean the liability to pay tax by the recipient of supply of goods or services or both instead of the supplier of such goods or services or both under sub‑section (3) or sub‑section (4) of Section 9 of the CGST Act or under sub‑section (3) or sub‑section (4) of Section 5 of the IGST Act. The impugned notifications are issued in exercise of the powers of the Union Government vested by the aforesaid sections of the IGST Act or the CGST Act. A person covered by reverse charge becomes a taxable person in terms of Section 2(107) of the CGST Act read with Section 24(iii) of the CGST Act. Pertinently, Section 24(iii) of the CGST Act employs the language of persons who are required to pay tax under reverse charge and not persons who are recipient of services under Section 2(93) of the CGST Act 2017. Section 5(3) of the IGST Act and Section 9(3) of the CGST Act permit the Government, on the recommendation of the GST Council, to specify the categories of goods or services or both, the tax for which shall be paid on reverse charge basis by the recipient of such goods or services or both. Presently, neither the provisions nor the rules have identified the taxable persons for reverse charge. Hence, the impugned notifications are a legitimate exercise of delegated legislation. Notification 10/2017 identifies an importer as a recipient for the purposes of reverse charge. The power to issue such a notification can be traced back to Sections 5(3) and 5(4) of the IGST Act., Inter‑state supply and Place of Supply: The import of service in this case is an inter‑state supply in terms of Section 7(4) read with Section 13(1) and 13(9) of the IGST Act. Although the contracting parties are foreign, the critical limb of the transaction happens in the taxable territory, namely, India. Hence, the transaction can also fall under Section 7(5)(c) read with Section 13(1) and Section 13(9) of the IGST Act. Section 13(9) of the IGST Act stipulates that the place of supply of services of transportation of goods other than by way of mail or courier shall be the place of destination of such goods. Even though the contracting parties the foreign shipping line and the foreign exporter are outside the territory of India, the provision of service is for the Indian importer and consequently the consumption and exhaustion of service which is a critical limb, both commercially and legally, happens only in the hands of the Indian importer., Time of Supply: Section 13(5) of the CGST Act contains a residual provision for determining time of supply to be the date on which the tax is paid. Since the other subsections in Section 13 are not applicable for construing the time of supply, Section 13(5) of the CGST Act would be applicable., Composite Supply: The CIF transaction and IGST on ocean freight are two independent transactions, entitled to suffer independent levies and do not qualify as a composite supply under Section 2(30) of the CGST Act. GST and customs duties are not exclusive means of taxation. GST is a destination‑based tax. The integrated tax is being sought to be imposed on the supply of service and not on the goods. Separate aspects are being taxed, hence it cannot be termed as overlapping. Moreover, the tax is on the value of goods, and not the freight. Tax paid at an anterior stage is not double taxation if it is included in the overall value. The discharge of reverse charge taxation does not make two independent contracts as a composite contract. The contract between the foreign shipping line and the foreign exporter is distinct and independent of the contract between the foreign exporter and the Indian importer. Their concomitance does not make them composite., The purpose of the integrated tax is to introduce a level playing field between foreign shipping lines and Indian shipping lines. It is a settled principle that to tax one subject, the revenue does not have to tax everything., The respondents have contended that the tax on an Indian importer is on a reverse charge basis, and therefore the importer does not fall under the definition of a taxable person. However, Section 2(107) of the CGST Act defines a taxable person as any person registered or liable to be registered under Section 22 or Section 24 of the CGST Act. Section 24 classifies persons liable for compulsory registration, and Section 24(iii) includes persons governed by the reverse charge mechanism., In Laghu Udyog Bharati v. Union of India, this Court struck down the imposition of service tax on a reverse charge basis since the legislature had failed to identify the persons on whom service tax could be imposed, enforced and collected. However, Section 2(107) read with Section 24(iii) of the CGST Act specifically identifies the importer as a taxable person who is liable to pay tax on a reverse charge basis. Section 24(iii) of the CGST Act also defines persons liable to pay tax on reverse charge as taxable persons., The respondents have argued that under Section 5(1) of the IGST Act, the taxable value can be determined only through Section 15 of the CGST Act and its corresponding rules. It was contended that Notification 8/2017 prescribes the valuation of 10 per cent of CIF value for the first time, which violates Section 5(1) of the IGST Act.
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The appellant submits that in terms of Section 15(4) and Section 15(5) of the Central Goods and Services Tax Act, Rules 27 to 31 of the Central Goods and Services Tax Rules 2017 have been formulated. The Revenue can also assess the transaction by taking aid of a residual method prescribed under Rule 31 of the Central Goods and Services Tax Rules. Any discretion vested in quasi‑judicial authorities must be regulated. The corrigendum dated 30 June 2016 amending Notification 8/2017 and prescribing the methodology for determining valuation can be read as a guideline for dealing with infirmities in assessment practices. It is only a reference or a guideline for making assessments. Even if it were to be held inapplicable, the revenue can assess the transaction under Rule 31 of the Central Goods and Services Tax Rules. Thus, Notification 8/2017 does not impinge on Rule 31 of the Central Goods and Services Tax Rules but only aids uniformity., The respondents rely on Section 2(87) of the Central Goods and Services Tax Act and Section 5 of the Integrated Goods and Services Tax Act to argue that prescription can only be through rules, and not notifications. However, Section 15(1), (2) and (3) of the Integrated Goods and Services Tax Act prescribes values. Section 15(4) and 15(5) of the Integrated Goods and Services Tax Act deals with cases where the valuation cannot be determined under Section 15(1). Rule 31 of the Central Goods and Services Tax Rules also enables the valuation to be conducted through reasonable means. Thus, delegation is envisaged in the statutory mechanism., If the expression by the recipient is to be given a static meaning as those falling under Section 2(93) of the Central Goods and Services Tax Act, then one would be denuding the power to notify persons for reverse charge under Sections 5(1) and 5(3) of the Integrated Goods and Services Tax Act read with Section 24(iii) of the Central Goods and Services Tax Act. Alternatively, the concept of reverse charge and notifying persons liable for reverse charge is envisaged in the statutory mechanism. Section 2(98) of the Central Goods and Services Tax Act defines reverse charge as imposed only on the recipient. Section 2(93) of the Central Goods and Services Tax Act defines a recipient. An Indian importer can be a recipient in six ways that have been elaborated in the submissions. The Indian importer does not pay any consideration of service in Cost, Insurance and Freight (CIF) imports since consideration is paid by the foreign exporter. Section 2 is illustrative and not rigid. A person, as defined under Section 2(84), is deemed to be the recipient of a service if such person satisfies the conditions under Section 2(93) of the Central Goods and Services Tax Act. Section 5(3) of the Integrated Goods and Services Tax Act contemplates the applicability of all provisions of the Act to the recipient. The fact that consideration is paid by the foreign exporter to the foreign shipping line does not vitiate the Integrated Goods and Services Tax Act scheme which enables payment of tax on a reverse charge basis., Section 13(9) of the Integrated Goods and Services Tax Act states that the destination of the goods shall be the place of supply, which is on Indian territory. The Supreme Court of India in Union of India v. Jalyan Udyog has held that deeming fictions can be created even by the executive, i.e., through delegated legislation. In case of a foreign exporter and a foreign shipping line, there is a nexus with India since the importer would be Indian. Forward charge taxation is envisaged in direct tax. Section 9(1)(6) of the Income Tax Act 1961 taxes a non‑resident outside India since the income is generated in India., The decision of the Supreme Court of India in BSNL v. Union of India on double taxation has no applicability to this case since that was on the question of the overlap of VAT and service tax in the pre‑GST regime and was decided on the ground of the impingement on the exclusive domain of the Union to impose service tax under Entry 97, List I. In the alternative, the integrated tax derives authority from Section 5(4) of the Integrated Goods and Services Tax Act which permits the government to specify a class of registered persons who receive goods or supplies from an unregistered supplier, who shall pay the tax on a reverse charge basis as the recipient. If this section is deemed applicable, then the importers would be liable for tax with effect from 1 February 2019, though exempted for the period from 13 October 2017 till 31 January 2019., The creation of the Goods and Services Tax Council under Article 279A of the Constitution embodies the spirit of collaborative federalism. The GST Council is constitutionally mandated, particularly under Article 279A(6), to promote harmony and alignment amongst the federal partners. Under Article 279A(4), decisions of the GST Council transform into recommendations to the Union and the States. The GST Council is the only constitutional body that acts as a converging space or platform for the federal units to work in a harmonious manner. The principal function of the GST Council is to take decisions, which are conveyed as recommendations. These recommendations have a unique constitutional status and they are overridden in exceptional circumstances., It was contended by the respondents that instead of course correcting the input tax mechanism, the revenue has chosen to tax the Indian importer on reverse charge. This is more a policy than a perceptual issue. As long as the tax is legal and valid, the manner and mode of taxation need not be questioned. A better manner and mode would not result in the exercise of legislative discretion being declared to be invalid or illegal. The integrated tax was introduced to ensure a level playing field between foreign and Indian shipping lines. This objective must be appreciated while determining constitutionality., Respondent‑assessees Mr V. Sridharan, learned senior counsel appearing on behalf of the respondents, has urged the following submissions. Under Section 5(4) of the Integrated Goods and Services Tax Act, the Government cannot specify the person liable to pay service tax on a reverse charge basis. Section 5(3) of the Integrated Goods and Services Tax Act provides that the Government may specify the categories of supply of goods or services or both on which the tax shall be paid on reverse charge basis by the recipient of the goods or services. Thus, the power under Section 5(3) is only to specify the categories of supply, while the liability to pay tax is fixed on the recipient. The Government cannot specify the person liable to pay tax on reverse charge basis under Section 5(3). Notification 10/2017 has been issued under Section 5(3) of the Integrated Goods and Services Tax Act. Since the power flows from Section 5(3), the Government can by a notification only specify the categories of supply, as the liability for tax has been determined by Parliament. In contrast with Section 5(3), prior to the introduction of GST, Section 68(2) of the Finance Act 1994 provided that the service tax shall be paid by such person as may be prescribed. In that case, the liability of tax was not determined by the legislation. Under the Central Goods and Services Tax Act and the Integrated Goods and Services Tax Act, the only place where a person other than a supplier or recipient is made liable to pay tax is under Section 5(5) of the Integrated Goods and Services Tax Act, where an electronic commerce operator through whom supply is made is taxed. In case the Parliament desired the tax to be collected from a person other than a supplier or recipient, it would have expressly provided so in the legislation. Since Parliament has specified the person liable for tax, it is not a matter to be governed by delegated legislation., Section 2(98) of the Central Goods and Services Tax Act defines reverse charge as the liability to pay tax by the recipient of supply of goods or services or both instead of the supplier of such goods or services or both. In other words, only the recipient can be made liable to pay tax under reverse charge basis and the reverse charge cannot be disintegrated from the recipient of supply. Section 5(3) clearly stipulates that the tax shall be paid on a reverse charge basis and the tax is payable by the recipient., GST laws contemplate only one recipient for one supply. The interpretation of the Additional Solicitor General that the foreign exporter is the recipient under clause (a) of Section 2(93) of the Central Goods and Services Tax Act and the Indian importer is the recipient under clause (c) of Section 2(93) leads to absurdity. Under Section 2(93) of the Central Goods and Services Tax Act, a recipient is defined with reference to three situations – (a) where consideration is payable for the supply of goods or services or both, (b) where no consideration is payable for the supply of goods and (c) where no consideration is payable for the supply of a service. Clauses (a), (b) and (c) are mutually exclusive and cannot apply simultaneously. In case the supply of goods or services is for consideration, clause (a) applies and the recipient is the person who is liable to pay the consideration. The question of who is the beneficiary of the supply or who has received the supply are irrelevant in determining the recipient under Section 2(93) of the Central Goods and Services Tax Act. Whether a supply of service is an inter‑state supply under Section 7(3) of the Integrated Goods and Services Tax Act or intra‑state supply under Section 8(2) of the Integrated Goods and Services Tax Act depends on the location of the supplier and the place of supply. In case there are two recipients of a single supply, as argued by the Additional Solicitor General, then the transaction may become inter‑state as well as intra‑state supply. Such a situation has not been envisaged by Parliament. Only the recipient of the supply is entitled to avail input tax credit. In case there are two recipients of a single supply, two persons will be allowed to avail credit of tax by the supplier. The rate of tax is often dependent on the recipient of the supply. For instance, services supplied to Government, local authorities or charitable institutions are exempted or liable to a lower rate of tax. If there are two recipients, this would result in an anomaly. Even in case of a three‑party transaction involving supply of goods, Section 10(1)(b) of the Integrated Goods and Services Tax Act provides that the place of supply of goods is the principal place of business of the recipient, and not the person to whom the goods are delivered., The last leg of Section 2(93) of the Central Goods and Services Tax Act does not create a separate category of recipient. Section 2(93) provides three categories of recipients, namely, where consideration is payable for supply of goods or services; where no consideration is payable for supply of goods; and where no consideration is payable for supply of services. Section 2(93) also provides that any reference to a person to whom supply is made shall be construed as a reference to the recipient of supply and shall include an agent acting on behalf of the recipient. The above provision implies that if the Act does not use the term recipient but makes a reference to the person to whom supply is made, then they shall be construed as a recipient. It does not, however, create a new category of recipient., The taxable event for levy of GST is supply of goods or service. In the absence of supply, no tax can be levied under Integrated Goods and Services Tax Act, Central Goods and Services Tax Act or State Goods and Services Tax Act. Article 366(12A) of the Constitution defines the goods and services tax as the tax on supply of goods or services or both. Section 5 of the Integrated Goods and Services Tax Act, which is the charging section for levy of tax, also states that the Integrated Goods and Services Tax will be levied on all inter‑State supplies of goods or services or both. Each transaction has to be evaluated independently to determine its taxability. The transaction of supply takes place between the contracting parties, that is, at whose instance the supply is made., The Central Goods and Services Tax Act does not envisage a taxable supply without consideration, other than those specified in Schedule I. Clause (a) of Section 7(1) of the Central Goods and Services Tax Act defines the term supply as all forms of supply of goods or services made for a consideration in the course of or in furtherance of business. Clause (b) of Section 7(1) provides that import of service for a consideration will be included in the term supply even if it is not made in the course or furtherance of business. Clause (c) provides that activities specified in Schedule I will be included in the term supply even if they are made without consideration. Clause (a) requires two conditions to be satisfied: that the activity has been made in the furtherance of business and made for a consideration. In clause (b), the condition of the supply being made in the course of business is absent. In clause (c), the condition of supply being made for a consideration has not been incorporated but this only for activities provided in Schedule I. The argument that supplies can be made without consideration for activities other than those specified in Schedule I would make clause (c) of Section 7(1) redundant., Notification 10/2017 cannot be sustained under Section 5(4) of the Integrated Goods and Services Tax Act. The unamended Section 5(4) of the Integrated Goods and Services Tax Act provides that integrated tax in respect of supplies made by an unregistered supplier to a registered person shall be paid by such person on reverse charge basis as a recipient of supply. The section was a standalone section, operating on its own, and did not require anything to be specified by way of a notification. Thus, Notification 10/2017 cannot be sustained under Section 5(4). Pursuant to the Goods and Services Tax (Amendment) Act 2018, Section 5(4) was amended with effect from 1 February 2019 to provide that the Government may, based on the recommendations of the GST Council, by notification, specify a class of registered persons who shall, in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay the tax on reverse charge basis as the recipient. The reliance placed by the Government on the amended Section 5(4) of the Integrated Goods and Services Tax Act to justify Notification 10/2017 is erroneous as there was no power to issue a notification specifying the class of registered person liable to pay tax under reverse charge basis at the time when the impugned notification was issued on 28 June 2017. The power has been granted by amendment with effect from 1 February 2019. Section 2(93) of the Central Goods and Services Tax Act provides that any reference to a person to whom supply is made shall be construed as reference to the recipient of supply. Thus, the person under Section 5(4) who has received the supply is the recipient of the supply. Even after the amendment of Section 5(4), only the recipient can be specified as a person liable to pay tax. Section 2(98) of the Central Goods and Services Tax Act defines reverse charge as the liability to pay tax by the recipient of the supply instead of the supplier. Thus, only the recipient can be made liable to pay tax on a reverse charge basis., Section 13(9) of the Integrated Goods and Services Tax Act is only relevant to determine the place of supply and not the recipient of supply. Whether the supply of service is an export of services under Section 2(6)(a) of the Integrated Goods and Services Tax Act or an import of services under Section 2(11) read with Section 7(4) of the Integrated Goods and Services Tax Act, or an inter‑State supply of service, is not determined by Section 13(9)., Notification 10/2017 has been issued on the recommendation of the GST Council under Section 5(3) of the Integrated Goods and Services Tax Act and not under Article 279A of the Constitution. If the GST Council intended to make a recommendation deeming the importer as recipient of supply, then the proper course of implementation would be to make an amendment in the Integrated Goods and Services Tax Act and seek Parliamentary approval., The objective of the tax or levy cannot validate an ultra vires levy. The Government has contended that the levy of tax on services of transportation of goods into India provided by a person in a non‑taxable territory to a person in a non‑taxable territory has been introduced to create parity for Indian shipping lines with foreign shippers. The notification for the levy and reverse charge has been lifted from the erstwhile service tax regime into the GST regime without considering the changes in language in Section 5(3) of the Integrated Goods and Services Tax Act as opposed to Section 68(2) of the Finance Act 1994. Thus, the notification is ultra vires the Act., The scheme of the Integrated Goods and Services Tax Act does not envisage a person other than the supplier or the recipient as a person liable to pay tax. The time of supply of services is determined according to Section 20 of the Integrated Goods and Services Tax Act along with Section 12 and 13 of the Central Goods and Services Tax Act. Section 12 deals with the time of supply of goods and Section 13 deals with the time of supply of services. Section 13(1) states that the liability to pay tax on services arises at the time of supply. Sub‑section (2) determines the time of supply on forward charge basis. Sub‑section (3) deals with time of supply when tax is payable on reverse charge basis. Under this sub‑section, time of supply of services is the earliest date of payment entered in the books of accounts of the recipient or the date of debit in the bank account or sixty days from the date of last issue of invoice by the supplier. Thus, a person other than a recipient cannot determine the time of supply. Section 13(5) of the Central Goods and Services Tax Act is only relevant for determining the time of supply in case of clandestine supply or evasion of tax and cannot be used to determine time of supply for ocean freight services. The provisions relating to filing of returns apply whether a person is a supplier or a recipient of supply, or apply only to an outward supply and an inward supply. The supply of ocean freight service is neither an inward supply nor an outward supply., In case of Cost, Insurance and Freight (CIF) contracts, the customer contracts for a supply of delivered goods at the port of destination. The contract for transportation of goods is entered into by the foreign exporter with the foreign shipper. Thus, the person liable to pay consideration to the foreign shipper is the foreign exporter. The importer of goods in India is not the person liable to pay the consideration, and is thus not the recipient of the service., The contract of the Indian importer with the foreign exporter is for supply of delivered goods. The service of transportation is a component of the supply of goods similar to raw material, manufacturing cost or employee cost of the supplier. To contend that the purchaser has received the supply of raw material or the services of an employee is illogical. Similarly, the argument that the Indian importer has received transportation services is irrational., Serial No. 9(ii) of Notification 8/2017 read with Paragraph 4 and Serial No. 10 of Notification No. 9 of 2017‑Integrated Tax (Rate) dated 28 June 2019 describe the services as provided by a person located in a non‑taxable territory to a person located in a non‑taxable territory. These notifications recognise the exporter as the recipient of the service of ocean freight., The argument of the Additional Solicitor General that the Integrated Goods and Services Tax paid on goods at the time of import is a customs duty and not a tax, and thus, there is no dual levy of tax recovered on ocean freight from the exporter, is erroneous. The present case involves outright purchase of goods and thus, it is a supply of goods under GST and an import of goods according to customs law. The issue is whether the transaction is an import of goods under customs law, but a supply of service under GST law. Section 5(1) of the Integrated Goods and Services Tax Act is the charging section. The proviso to Section 5(1) states that integrated tax on goods imported into India shall be levied and collected in accordance with Section 3 of the Customs Tariff Act on the value as determined under the Customs Tariff Act and at the point when duties of customs are levied under Section 12 of the Customs Act. Section 3(7) of the Customs Tariff Act provides that any article imported into India shall, in addition, be liable to integrated tax. Both the proviso to Section 5(1) of the Integrated Goods and Services Tax Act and Section 3(7) of the Customs Tariff Act provide that goods imported into India shall be liable to integrated tax. The contention that the proviso to Section 5(1) of the Integrated Goods and Services Tax Act does not contain the word supply and thus, the tax is imposed on import of goods irrespective of whether the transaction is supply or not, is erroneous. The absence of the word supply in the proviso will not lead to an extreme result that the transaction of import of goods becomes leviable to Integrated Goods and Services Tax even if it is not supply. The Central Goods and Services Tax Act has at various instances, such as Section 11(1), Section 12(1), Section 13(1) and Section 49(9), omitted the word supply and merely mentioned the liability to pay tax on goods or services. The proviso under Section 5(1) of the Integrated Goods and Services Tax Act read with Section 3(7) of the Customs Tariff Act implies that the tax is leviable only on supply of goods imported into India. The amount collected as Integrated Goods and Services Tax on import of goods is apportioned between the Union and States as per Article 269A of the Constitution which provides for apportionment of GST on inter‑state supply of goods or service. If import Integrated Goods and Services Tax was a customs duty, then the revenue proceeds would be distributed in accordance with Article 270 of the Constitution. At the introduction of GST, the understanding of the Government was in consonance with the above legal position and accordingly, the Government issued a notification exempting goods and services imported from a Special Economic Zone unit or developer under the Integrated Goods and Services Tax Act. Subsequently, the Government rescinded the above exemption notifications and issued separate notifications under the Customs Act and Integrated Goods and Services Tax Act. The Government has also issued various notifications exempting payment of Integrated Goods and Services Tax in case of import of goods on lease or temporary import basis. The intention of Government is not to impose Integrated Goods and Services Tax in case of import of goods that do not amount to supply., Mr Harish Salve, learned senior counsel, appearing on behalf of the respondent, has submitted: A Cost, Insurance and Freight (CIF) contract is an inclusive price covering cost of goods, insurance and freight payable for carriage of goods to the destination specified in the contract. The essence of the contract is that a seller having shipped the goods in accordance with the contract, can fulfil his part of the bargain by tendering to the buyer the proper shipping documents. If he does this, he is not in breach even if the goods are lost before such tender. In the event of a loss, the buyer must pay the price on tender of documents and his remedies lie against the carrier but not the seller. A CIF contract has two components: price is paid for the freight, and the buyer is never obligated to pay it. The owner of the vessel who enters into a contract of affreightment has a privity of contract with the supplier of goods and is rendering a service to the supplier. If the service is not received, then the question of reverse charge does not arise. Sections 5(3) and 5(4) of the Integrated Goods and Services Tax Act are merely machinery provisions for collection of tax, and not the charging provision. Section 5(1) is the charging section which levies Integrated Goods and Services Tax. Since there is no separate levy under Section 5(1) on ocean freight, as it is an import of goods which already suffers Integrated Goods and Services Tax on CIF value, the question of reverse charge does not arise. The proviso to Section 5(1) clarifies that the value as determined is only the measure of tax and not the subject of tax. Section 5(3) cannot be treated as the charging section as it would make it possible for the Government to impose separate taxes under Sections 5(1) and 5(3) and charge for the services at both ends. There must be a taxable event in the CIF contract of the kind contemplated under the Integrated Goods and Services Tax Act. In case there is no such event, it cannot be created through delegated legislation by the GST Council. There is an absence of a statutory fiction by which a CIF contract can be split into a contract for supply of goods and services, and creating a second layer of fiction by which the shipper is rendering a service to the supplier of goods. Thus, the question of levy of tax by the GST Council does not arise. In the transaction of import of coal on CIF basis in the present case, the recipient will fall under clause (a) of Section 2(93) of the Central Goods and Services Tax Act as consideration is payable for the service of shipping. The law recognises and maintains the integrity of a CIF contract under Section 2(30) read with Section 2(93) and Section 8. These sections maintain the integrity of a composite contract by providing that where the goods come with insurance and freight, the tax is imposed only on supply of goods. The High Court has held that the notifications under challenge were ultra vires. The Government has not urged that any of these findings are incorrect and has only contended that Section 5(1) of the Integrated Goods and Services Tax Act satisfies all ingredients of a valid tax law. Notification 8/2017 is ultra vires the Integrated Goods and Services Tax Act. Section 5(1) of the Integrated Goods and Services Tax Act only empowers the issuance of notifications for rates and requires other provisions to be prescribed. Section 5(1) does not empower the Government to define description of service which is an essential legislative function. Entry 9(ii) of Notification 8/2017 imposes a tax on ocean freight in import of goods. Such a power however, has not been provided in the statute. Paragraph 4 of Notification 8/2017 determines the value of service as 10 % of the CIF value, which is contrary to Section 15(1) of the Central Goods and Services Tax Act which says transaction value. Article 366(12A) defines goods and services tax as involving only supply of goods or services or both. Section 7 of the Integrated Goods and Services Tax Act has made a clear distinction between standalone supply of goods, standalone supply of services and standalone supply of goods or services or both. Section 7(4) treats standalone services imported into India as inter‑State supply and does not artificially bifurcate by assuming ocean freight in the transaction of import of goods. Section 13 of the Integrated Goods and Services Tax Act has no application in the case which relates to import of goods and not services standalone. Section 13 applies to place of supply of services, referring to standalone services, and does not use the term both to apply to supply of goods or services. The Integrated Goods and Services Tax Act has no extra‑territorial application as the Act extends to the whole of India. Under Section 2(109) of the Central Goods and Services Tax Act, taxable territory means the territory to which the Act applies. Further, GVK Industries (supra) states that Parliament may exercise its powers with respect to an extra‑territorial aspect when it has a nexus with India. It does not however empower delegated legislation to exercise such power. Thus, the activity brought within the tax net by the impugned notifications is contrary to the Integrated Goods and Services Tax Act., Mr Arun Datar, learned senior counsel, appearing on behalf of the respondent, has submitted: The levy of Integrated Goods and Services Tax on ocean freight by way of Notification No. 10/2017 (Integrated Tax Rate) is extra‑territorial and ultra vires Section 1 read with Section 2(22) of the Integrated Goods and Services Tax Act. The levy imposed is on the service of transportation of goods rendered by the shipping line to the foreign vendor/exporter, occurring outside the territory of India, that is outside the taxable territory. The only nexus of the service with India is that the service results in the import of goods into India. However, this activity is already subject to Integrated Goods and Services Tax under the Integrated Goods and Services Tax Act and customs duty under the Customs Act. For a levy to be imposed under the Integrated Goods and Services Tax Act, the service must be a supply under the provisions of the Integrated Goods and Services Tax Act read with Section 7 of the Central Goods and Services Tax Act. However, Section 1 of the Central Goods and Services Tax Act and Integrated Goods and Services Tax Act are limited to the territory of India. Thus, any service received outside the territory of India cannot be considered to be supply under the Integrated Goods and Services Tax Act or the Central Goods and Services Tax Act. To impose a levy on a service that is extra‑territorial, there has to be a deeming fiction in the form of a statutory provision which deems the supply of transportation by a vessel to a non‑resident exporter.
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In this case, such a deeming fiction does not exist. Thus, the transportation service cannot be deemed as a supply under the Integrated Goods and Services Tax Act. Only once the service provided outside the territory of India is deemed as a supply by way of statute can there be a determination of the supplier and the recipient. By way of the impugned notification, the freight charges incurred abroad are sought to be taxed in India on the ground that the service recipient is in India. If this argument is accepted, then any service such as insurance or incidental services rendered abroad can be taxed in India on the ground that the recipient is in India. This practice is in contrast with international taxation laws and will lead to hardship for Indian importers. Article 245(2) of the Constitution states that a law made by Parliament will not be invalid on the ground that it has extra‑territorial operation. However, the expression \law made by Parliament\ does not include executive notifications, even if made on the recommendations of the GST Council. Tax can be levied outside the territory of India by way of primary legislation. For instance, under Sections 6 and 7 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, a legal fiction is created by which India has the power to levy tax in the Exclusive Economic Zone and Continental Shelf. Pursuant to this fiction, notifications levying customs duty on supplies made to oil drilling rigs in the Continental Shelf have been issued. In the absence of primary legislation or a statutory provision to this effect, notifications cannot impose duties on activities occurring outside India., The value of a Cost, Insurance and Freight (CIF) contract is indivisible, making the computation of tax on such a contract impossible. The only way to artificially dissect the value of a CIF contract is by way of statute, which is absent in this case. If such a division were allowed, the Government would be able to tax not only ocean freight but also insurance services, and levying tax on contracts on a CIF basis would lead to hardships for Indian recipients. The advantage of entering into CIF contracts is to ensure that the foreign supplier is responsible for arranging transportation and insurance. However, if a CIF contract is made subject to GST, Indian importers will have to make their own arrangements to transport the goods, book an insurance policy and arrange for shipping., The Additional Solicitor General's reliance on the nexus theory to justify the levy of GST on ocean freight, by equating it to the imposition of income tax on income accruing in India or customs duty imposed on goods imported into India, is erroneous. In the case of income tax, the nexus is provided by a deeming fiction under Section 5(2) of the Income Tax Act, 1961, where a non‑resident is liable to tax only if the income is deemed to accrue or arise in India. In the case of customs duty, the taxing event is the goods entering the territory of India. In the absence of such a provision, freight services rendered outside India cannot be deemed to be received in India merely because the recipient is in India., The importer is not the recipient of services under Section 2(93) of the Central Goods and Services Tax Act. Under clause (c) of Section 2(93), when there is no consideration payable for the supply of services, the person to whom the services are rendered is the service recipient. However, in this case, the importer does not pay the consideration or receive the services, so the importer is not the service recipient. The Additional Solicitor General's argument that the importer is a recipient as the ultimate beneficiary enlarges the scope of Section 2(93) by adding words absent in the statute. Even if the ultimate beneficiary were considered the recipient, the importer is not the beneficiary of the transportation of goods. Under a CIF contract, the foreign vendor is obligated to arrange transportation of goods by engaging a shipping line, making the foreign vendor the ultimate beneficiary. The importer is only the beneficiary of the imported goods, whose value is taxable as customs duty under the Customs Tariff Act as well as under the Integrated Goods and Services Tax Act. Additionally, reliance cannot be placed on clause (c) of Section 2(93) because it refers only to supplies for which consideration is not paid, as mentioned in Schedule I of the Central Goods and Services Tax Act, which enumerates activities deemed as supplies without consideration., Imposition of Integrated Goods and Services Tax on ocean freight will lead to double taxation. Section 3(7) of the Customs Tariff Act states that goods imported into India will be subject to IGST under Section 5 of the Integrated Goods and Services Tax Act, on the value determined by Section 3(8) and Section 3(8)(a). Under Section 3(8), the value includes the value of freight. Rule 10 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 includes the cost of transportation and insurance in the value of goods, which forms the basis of the levy of IGST under the proviso to Section 5 of the Integrated Goods and Services Tax Act. The impugned levy of IGST on ocean freight would thus amount to double taxation on the same transaction., The Additional Solicitor General's reliance on the aspect theory to justify the impugned levy is erroneous. The ASG submitted that the impugned notification taxes the service element of ocean freight, while the goods element is taxed under the proviso to Section 5 of the Integrated Goods and Services Tax Act. However, such an approach is impermissible according to the decision of the Supreme Court of India in BSNL (supra). The aspect theory is inapplicable as the freight element is already included by levying IGST. The aspect theory in India permits taxation of two different aspects or features of a transaction. For instance, in a catering contract, the supply of food was subject to value added tax and the service aspect was subject to service tax. However, the aspect theory does not permit double taxation of the same amount or value., The Goods and Services Tax Council, created by Article 279A of the Constitution, is a recommendatory body whose recommendations can be implemented by either amending the Central Goods and Services Tax Act or the Integrated Goods and Services Tax Act or by issuing a notification. However, notifications issued cannot be ultra vires the parent legislation., The principles of cooperative federalism are not relevant in this case as they were not adjudicated before the High Court. The appeal must test the correctness of the impugned judgment without expanding its scope. Interpretation of Article 279A of the Constitution was not an issue before the High Court and the present appeal should be restricted to the validity of the impugned notification., Mr Vikram Nankani, learned senior counsel appearing on behalf of the respondent, urged the following submissions: Section 7(4) of the Integrated Goods and Services Tax Act provides that supply of services imported into the territory of India shall be treated as a supply of services in the course of inter‑state trade or commerce. Section 2(11) of the Integrated Goods and Services Tax Act defines import of services when the supplier of service is located outside India, the recipient of service is located in India and the place of supply of service is in India. When read together, these provisions imply that in case of import of services into the territory of India, the location of the supplier is outside India and the location of the recipient is in India. Thus the Integrated Goods and Services Tax Act covers either import of goods or import of services and not services subsumed into the value of goods imported into India. The Integrated Goods and Services Tax Act was never intended to apply to the importer of goods on a CIF basis as the services are provided and consumed before the goods reach India and have no nexus with the Indian importer. The transaction between two persons located outside India is not chargeable under Section 5(1) read with the proviso and Section 7(4) read with Section 2(11) of the Integrated Goods and Services Tax Act. Thus, Notification 8/2017 is ultra vires and Notification 10/2017, providing for reverse charge, is also ultra vires the Integrated Goods and Services Tax Act. Section 13(9) of the Integrated Goods and Services Tax Act, which states that the place of supply of services of transportation of goods is the destination of the goods, cannot be read in isolation. Read with Section 7(4) of the Integrated Goods and Services Tax Act, it implies that in case of import of services, the supplier must be outside India while the recipient must be in India. The test of ultimate beneficiary relied upon by the Additional Solicitor General does not have statutory backing since the charging section, that is Section 5, makes the recipient of the services liable to pay tax. The Indian importer is not a party to the CIF contract between the foreign exporter and the shipping line., Mr Uchit Sheth, counsel appearing on behalf of the respondents, submitted: The importers in a CIF contract do not have any privity of contract with the supplier of the transportation service since they neither make payment of consideration to the service provider nor avail any service. The importers only purchase and import goods. The impugned levy is contrary to the object and purpose of the Integrated Goods and Services Tax Act. Section 5 of the Integrated Goods and Services Tax Act clarifies that, as far as imported goods are concerned, IGST is levied at the point of clearance of goods for home consumption and on the total value including value additions up to that point. This was also clarified by Circular No. 3/1/2018‑IGST dated 25 May 2018 issued by the Central Board of Indirect Taxes and Customs. The impugned levy of IGST on the freight element of CIF contracts and high seas purchase contracts is ultra vires as IGST is paid on the total value of goods. In Ispat Industries Ltd. v. Commissioner of Customs, it was held that in a CIF contract, the freight is part of the price paid to the seller and further addition of transportation charges is contrary to the statutory provisions. The judgment of the Supreme Court of India in Union of India v. Jalyan Udyog, which states that a legal fiction can be created even by delegated legislation, is inapplicable as in that case the fiction created was within the parameters of the parent provision. In the present case, the fiction violates Section 5(3) of the Integrated Goods and Services Tax Act., Mr Rajesh Kumar Gautam, learned counsel appearing on behalf of the intervenor, submitted that the argument of the Additional Solicitor General that the levy has been introduced to create a level playing field is fallacious. Prior to 2016, all import transportation, whether undertaken by Indian or foreign shipping lines, was outside the scope of levy. Service tax was imposed on import transactions undertaken by Indian shipping lines only to allow them to avail credit of taxes paid on inputs (CENVAT credit). This credit was protected even though no service tax was payable on export transportation. Further, Indian importers availing services of foreign shipping lines were liable to pay service tax under reverse charge. This position continued under the GST regime and the only transaction outside the ambit was when the foreign exporter availed the services of a foreign shipping line to transport goods to India. The introduction of levy of service tax or GST on import transactions was by way of an incentive to Indian shipping lines. Thus, it cannot now be contended that the level playing field has been affected because of this levy., Similar submissions have been addressed by Dr C. Manickam, Mr Rajat Mittal and Mr Abhishek A. Rastogi, which are not recorded separately for brevity., Before analysing the vires of the impugned notifications, it is pertinent to contextualise the constitutional architecture of the Goods and Services Tax. The Constitution (One Hundred and First Amendment) Act, 2016 was enacted on 8 September 2016 introducing Article 246A and Article 279A. Article 246A stipulates that both Parliament and the State legislatures have the power to legislate on GST: 'Special provisions with respect to goods and services tax (1) Notwithstanding anything contained in Articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State. (2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter‑State trade or commerce.' The provisions shall, in respect of GST referred to in clause (5) of Article 279A, take effect from the date recommended by the GST Council. Article 279A constitutes the GST Council, which shall make recommendations to the Union and the States on a wide range of subjects relating to GST. The President shall, within sixty days from the commencement of the Constitution (One Hundred and First Amendment) Act, 2016, by order, constitute a Council to be called the Goods and Services Tax Council. The Council shall consist of the Union Finance Minister (Chairperson), the Union Minister of State in charge of Revenue or the Minister in charge of Finance or Taxation or any other Minister nominated by each State, and other members as prescribed. The Council shall make recommendations to the Union and the States on matters such as taxes, cesses and surcharges to be subsumed in GST, goods and services to be taxed or exempted, model GST laws, principles of levy, apportionment of GST on inter‑State supplies, threshold limits, rates, special rates for calamities, special provisions for certain states, and any other matter relating to GST. Every decision of the GST Council shall be taken at a meeting by a majority of not less than three‑fourths of the weighted votes of the members present and voting, with the vote of the Central Government having a weightage of one third and the votes of all the State Governments together having a weightage of two thirds., The Union Government has contended that the recommendations of the GST Council are binding on the legislature and the executive. It was submitted that, since the recommendations are binding, the rule‑making power of the Government under the Integrated Goods and Services Tax Act and the Central Goods and Services Tax Act, exercisable on the recommendations of the GST Council, is also very wide. The arguments of the Union Government are as follows: A combined reading of Articles 246A and 279A elucidates that the GST Council is the ultimate decision‑making body in framing GST law since it is a constitutional body that acts as a converging platform for both the Union and the States. The functions and role of the GST Council are unique and incomparable to other constitutional bodies; therefore, interpretations of other provisions of the Constitution do not have precedential value while interpreting the role of the GST Council. The power of Parliament and the State Legislature under Article 246A and the power of the GST Council under Article 279A must be balanced and harmonised so that neither overrides the other. Though Article 279A does not contain a non‑obstante clause overriding Article 246A, the latter would not override the former. The core theme of GST law, as emanating from Article 279(6), is cooperation and harmony. A system premised on cooperation cannot provide inter se supremacy. Therefore, Article 279A has rightly not been given an overriding effect over Article 246A. Article 246A vests Parliament and the State legislatures with the power to enact laws on GST. This function, if delegated, would amount to abdication of Parliament's constitutional function; therefore, Article 246A cannot be made subject to Article 279A. The ordinary legislative process for enacting a statute is that bills are introduced and voted on by the legislature. However, Article 264A departs from this as the framing of policy, discussion on policy, and decision making are vested with the GST Council. Parliament or the State Legislature cannot legislate a law on GST under Article 246A independent of the recommendations of the GST Council. A reading of Sections 5, 6 and 22 of the Integrated Goods and Services Tax Act indicates that the legislature and the executive are bound by the recommendations of the GST Council on three preliminary provisions, namely charge, exemption and rule‑making power. Therefore, Parliament bound itself to the recommendations of the GST Council by enacting the Integrated Goods and Services Tax Act and the Central Goods and Services Tax Act. The recommendations by the GST Council are transformed into legislation on a combined reading of Article 279A and Sections 5, 6 and 22 of the Integrated Goods and Services Tax Act, 2017 and Sections 9, 11 and 164 of the Central Goods and Services Tax Act., As early as 2004, the Task Force on implementation of the Fiscal Responsibility and Budget Management Act, 2003 recommended a shift to consumption taxes to increase efficiency in production and enhance international competitiveness of Indian goods and services. The need for such a change arose from distortions in the then existing indirect tax regime, which suffered from multiplicity of taxes, taxable events, compliances and authorities. For instance, the rate of sales tax and value added tax on the same goods differed across India, and several states imposed entry taxes before goods entered their boundaries. The First Discussion Paper on Goods and Services Tax in India, released by the Empowered Committee in November 2009, explained the rationale for introducing the GST regime, noting that GST would integrate central taxes, provide comprehensive set‑off relief, widen the dealer base, and remove cascading effects of CENVAT and service taxes. The GST at the state level is justified for additional power to levy service taxes, comprehensive set‑off relief, subsuming several taxes, and removal of the burden of Central Sales Tax., Parliament introduced the Constitution (One Hundred and Fifteenth Amendment) Bill, 2011, which sought to amend the Constitution to introduce the GST regime. The Bill was referred to the Parliamentary Standing Committee on Finance. The Constitution (One Hundred and Twenty‑Second Amendment) Bill, 2014, incorporating the Committee's recommendations, was introduced. The 2014 Amendment Bill aimed to replace almost all indirect taxes levied by the Union and the States with a singular tax system to eliminate the cascading effect of multiple taxes and to provide a common national market. The Statement of Objects and Reasons of the 2014 Amendment Bill reads: 'The Constitution is proposed to be amended to introduce the goods and services tax for conferring concurrent taxing powers on the Union as well as the States including Union territory with Legislature to make laws for levying goods and services tax on every transaction of supply of goods or services or both. The goods and services tax shall replace a number of indirect taxes being levied by the Union and the State Governments and is intended to remove cascading effect of taxes and provide for a common national market for goods and services.' The Finance Minister, while introducing the 2014 Amendment Bill, noted that the object of the constitutional amendment is to bring about convergence between these taxes so that the taxation mechanism becomes extremely simple. He also highlighted the lack of uniformity in tax rates and structure across the States. The legislative history, the Statement of Objects and Reasons, and the debates indicate the intent behind the Bill, which was to simplify the indirect tax regime and prevent the complexities and cascading effect of multiple taxes., Article 246 read with the Seventh Schedule vests Parliament and the State legislatures with the power to make laws on subjects listed in the Seventh Schedule of the Constitution. Before the introduction of Articles 246A and 279A by the Constitution Amendment Act, 2016, the legislative powers of the Union and the States on taxation were exclusive. The Union List (entries 1 to 81) and the State List (entries 1 to 44) contain general subjects of legislation, while entries 82 to 92B in the Union List and entries 45 to 63 in the State List relate to taxation. The Concurrent List does not include any entry related to taxation. For example, the Union has the power to impose income taxes, except from agriculture, while the State has the power to impose tax on agricultural income. Thus, both the Union and the States had separate exclusive domains over specific heads of taxation, and could not impose tax under the same head. The Supreme Court of India, in Hoecst Pharmaceuticals Ltd. v. State of Bihar, recognised the exclusive powers held by the Union and the State on taxation, observing that legislative relations between the Union and the States with reference to the three Lists cannot be understood fully without examining the general features disclosed by the entries contained in those Lists.
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The State's exclusive power to make a law with respect to the levy and imposition of a tax on sale or purchase of goods relates to Entry 54 of List II of the Seventh Schedule. It follows that the two laws – sub‑section (3) of Section 5 of the Act and paragraph 21 of the Control Order issued by the Central Government under sub‑section (1) of Section 3 of the Essential Commodities Act – operate on two separate and distinct fields and both are capable of being obeyed. There is no question of any clash between the two laws and the question of repugnancy does not arise., In the pre‑Goods and Services Tax regime, the Union had the exclusive power to impose indirect taxes on inter‑state sale of goods, customs duty, service tax and excise duty. The States had the exclusive power to impose tax on intra‑State sale of goods, luxury tax, entertainment tax, purchase tax and taxes on gambling and betting. The Goods and Services Tax regime has subsumed all the indirect taxes. Article 246A, introduced by the Constitution Amendment Act, 2016, vests Parliament and the State legislatures with the concurrent power to make laws with respect to Goods and Services Tax., The distribution of legislative power between the federating units – the Union and the States – is a paramount feature of a federal Constitution. Articles 246 and 254 have been central to the debate on the federal nature of the Indian Constitution. Article 246A is a special provision with respect to Goods and Services Tax and begins with a non‑obstante clause overriding Articles 246 and 254. Article 246 sets down the constitutional framework defining the legislative competence of Parliament and the State legislatures. Article 254 provides the framework for addressing inconsistency between central and state laws on matters in the Concurrent List. Article 246A entrusts Parliament and State legislatures with the power to legislate on Goods and Services Tax, subject to an exclusive domain for Parliament to levy the tax where the supply of goods or services takes place in inter‑state trade and commerce., In Union of India v. Mohit Mineral Private Limited, the Supreme Court of India, while deciding the constitutional validity of the Goods and Services Tax (Compensation to States) Act, 2017, noted that the Constitution Amendment Act, 2016 introduced changes in the legislative powers of Parliament and State legislatures relating to indirect taxation. It observed that the amendment confers concurrent taxing powers on the Union as well as the States for levying Goods and Services Tax on transactions of supply of goods or services or both., In Baiku v. State Tax Officer, a writ petition was filed challenging the legality of the notices and assessment orders issued under the Kerala Value Added Tax Act, 2003, for the assessment years 2010‑11 and 2011‑12. The Kerala High Court had to decide whether the Kerala State legislature had the competence to amend the Kerala Value Added Tax Act after the introduction of Article 246A to the Constitution and the repeal of the Act pursuant to the amendment. The Court noted that the special power introduced by Article 246A allows Parliament and the State legislatures to simultaneously make laws. It was subsequently observed that the power under Article 246A can be exercised simultaneously by the State legislature and Parliament and neither holds any unilateral or exclusive legislative power., In its decision in VKC Footsteps, the Supreme Court of India noticed the changes in the constitutional scheme introduced by Article 246A. The Court observed: (i) Article 246A defines the source of power as well as the field of legislation with respect to Goods and Services Tax, obviating the need to refer to the Seventh Schedule; (ii) the provisions of Article 246A are available to both Parliament and the State legislatures, except for the exclusive power of Parliament to enact Goods and Services Tax legislation where the supply of goods or services takes place in inter‑state trade or commerce; (iii) Article 246A embodies the constitutional principle of simultaneous levy as distinct from the principle of concurrence, which was regulated by Article 254., Article 246A provides Parliament and the State legislature with the concurrent power to legislate on Goods and Services Tax. It contains a non‑obstante provision which overrides Article 254 and does not provide a repugnancy clause. Unlike Article 254, which stipulates that a law made by Parliament on a subject in the Concurrent List shall prevail over a conflicting law made by the State legislature, the constitutional design of Article 246A does not prescribe the manner in which inconsistency between the laws made by Parliament and the State legislature on Goods and Services Tax can be resolved. The concurrent power exercised under Article 246A is termed a simultaneous power to differentiate it from the concurrent power under Article 246, which is subject to the repugnancy clause of Article 254. The constitutional role and functions of the Goods and Services Tax Council must be understood in the context of this simultaneous legislative power., The Thirteenth Finance Commission set up a Task Force on Goods and Services Tax. The Task Force recommended that the Empowered Committee of State Finance Ministers, upon the introduction of Goods and Services Tax, be transformed into a permanent constitutional body known as the Council of Finance Ministers. The recommendations were: (i) the Council would be responsible for modification in the design of dual Goods and Services Tax regulating the indirect tax system; (ii) the Council would make decisions on the principle of majority and not unanimity, with the initial decision approved by the Union and three‑fourths of the States, and subsequent changes requiring the agreement of the Union and two‑thirds of the States; (iii) the body would maintain the existing balance of federal fiscal powers since both the Union and the States would surrender their fiscal autonomy to the Goods and Services Tax regime; (iv) the tax base should be common for both the Union and the States upon agreement, similar to the Goods and Services Tax law in Australia; and (v) if a State deviates from the collectively agreed position on Goods and Services Tax rates, a mechanism should be established by which the defaulting State pays a penalty., The 2011 Amendment Bill sought to include Article 279A in the Constitution, which constituted the Goods and Services Tax Council. The provision stipulated the constitution of the Council, its role and the quorum necessary for making decisions: (1) the President shall, within sixty days from the commencement of the Constitution (One Hundred and One Amendment) Act, 2016, constitute a Council to be called the Goods and Services Tax Council; (2) the Council shall consist of the Union Finance Minister (Chairperson), the Union Minister of State in charge of Revenue or Finance, and the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government; (3) the members nominated by the States shall choose a Vice‑Chairperson; (4) the Council shall make recommendations to the Union and the States on taxes, cesses and surcharges to be subsumed in Goods and Services Tax, goods and services to be exempted, turnover threshold for exemption, rates of Goods and Services Tax and any other matter relating to the tax; (5) while discharging its functions, the Council shall be guided by the need for a harmonised structure of Goods and Services Tax and for the development of a harmonised national market; (6) one‑third of the total number of members shall constitute the quorum at its meetings; (7) the Council shall determine the procedure for performance of its functions; (8) every decision taken at a meeting shall be with the consensus of all members present; (9) no act or proceedings of the Council shall be invalid merely because of any vacancy, defect in constitution, defect in appointment of a member or any irregularity in procedure not affecting the merits of the case. For the purposes of this article, State includes a Union Territory with a Legislature., The draft of Article 279B, as contained in the 2011 Amendment Bill, provided for the establishment of a Goods and Services Tax Dispute Settlement Authority to adjudicate any dispute or complaint referred to it by a State Government or the Government of India arising out of a deviation from any recommendation of the Goods and Services Tax Council that results in a loss of revenue or affects the harmonised structure of the tax. The Authority would consist of a Chairperson, who must have been a Judge of the Supreme Court or Chief Justice of a High Court, and two other members of proven capacity and expertise in law, economics or public affairs. The Authority could pass suitable orders, including interim orders, and a law could specify its powers and procedure. Notwithstanding anything in the Constitution, Parliament could by law provide that no court other than the Supreme Court shall exercise jurisdiction over such adjudication., The Standing Committee on Finance, in its 73rd report on the 2011 Amendment Bill, explained that the Goods and Services Tax Council would be a joint forum for the Union and the States to discuss issues on Goods and Services Tax and that its recommendations would serve as a benchmark and guiding force for both Union and State governments. The Committee observed that the legislature would remain free to exercise its power on all issues recommended by the Council., The Committee sought the opinion of the Attorney General on whether the recommendations of the Goods and Services Tax Council would undermine legislative power. The Attorney General responded that although the Council has the power to make recommendations, both Parliament and the State legislatures have the power to accept or reject those recommendations. He emphasized that the ultimate authority to accept recommendations rests solely with the legislatures, and that the setting up of the Council does not strike at the root of legislative powers over finance, which are sacrosanct., The States raised concerns that the Goods and Services Tax Dispute Settlement Authority could override the supremacy of Parliament and the State legislatures, as a legislation could be struck down if it deviated from the Council's recommendations. The Committee recommended omitting the provision establishing the Authority, as it would affect the fiscal autonomy of the States, and suggested empowering the Goods and Services Tax Council itself to resolve disputes arising out of its recommendations., The Committee reiterated that the Goods and Services Tax Council would play only a constructive and enabling role vis‑à‑vis the legislature and would not override the legislature. It emphasized that the Council should follow the principles of cooperative federalism and democratic governance, remaining subordinate to the supreme legislative authority of both Union and State legislatures., Taking into account the Committee's recommendations, Parliament introduced the 2014 Amendment Bill, deleting Article 279B and granting the Goods and Services Tax Council the power under Article 279A(11) to devise a mechanism of dispute resolution. The Council consists of the Union Finance Minister as Chairperson, the Union Minister of State in charge of Revenue or Finance, and the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government. The Council makes recommendations on seven specific categories relating to Goods and Services Tax, including principles of levy and apportionment. Clause (6) stipulates that the recommendations shall be guided by the need for a harmonised structure of Goods and Services Tax. One half of the total number of members constitutes the quorum for meetings. Clause (9) provides that a decision shall be taken with a three‑fourths majority of members present and voting, with the Union Government's vote weighted at one‑third of the total votes cast and the States' votes weighted at two‑thirds., The inclusion of Article 279A in the 2014 Amendment Bill raised two concerns in Parliament: that the Goods and Services Tax Council could effectively override the legislative sovereignty of Parliament and the State legislatures, and that the fiscal autonomy of the States would be diminished because the Centre could stall a consensus reached by all the States. On 5 May 2015, a Member of Parliament from Tamil Nadu warned that the Council would override the supremacy of the legislature at both Centre and State levels, giving the Union Government only one‑third weightage in voting while States and Union Territories have equal voting rights irrespective of size. The Finance Minister responded that the Council would enable both the Centre and the States to pool their sovereignty to create a new taxation mechanism, without surrendering authority or autonomy., A Select Committee of the Rajya Sabha examined the proposed Article 279A and suggested that a dispute settlement body be constituted to adjudicate disputes arising from non‑compliance with the Council's recommendations, effectively proposing a re‑introduction of Article 279B. The Government submitted that Article 279A(11) already empowers the Council to decide the modalities of dispute resolution, which may include negotiation, mediation, arbitration or judicial adjudication, depending on the nature of the dispute., The Government also submitted that the voting pattern between the Union and the States does not give unequal power to any constituent unit. The structure of the Goods and Services Tax Council reflects the federal nature of governance, ensuring that no decision can be taken by the Centre or the States acting alone. With the Centre holding only one‑third of the votes, it would require the support of twenty States or Union Territories to pass a resolution, demonstrating the need for cooperative decision‑making., Although the traditional view is that legislative history is not readily used in statutory interpretation, modern jurisprudence permits courts to examine the history of legislation to understand the mischief the law seeks to remedy. In K.P. Varghese v. Income Tax Officer, the Supreme Court of India held that the speech made by the mover of the Bill explaining the reason for its introduction can be referred to for ascertaining the mischief and purpose of the legislation. Similarly, in Kalpana Mehta v. Union of India, Chief Justice Dipak Misra observed that parliamentary committee reports and speeches can be referred to identify the circumstances that led to the enactment of the law., The parliamentary debates and legislative history of the constitutional amendments concerning Articles 246A and 279A indicate that the draft of Article 279B in the 2011 Amendment Bill, which sought to create a Goods and Services Tax Dispute Settlement Authority, was deleted in the 2014 Amendment Bill. Article 279A(11) now provides that the Council shall devise a mechanism to adjudicate disputes arising out of its recommendations, shifting the role from a separate authority to the Council itself. The deletion also changed the decision‑making requirement from unanimity to a majority, as recommended by the Standing Committee of Finance, to accommodate the socio‑economic diversity among the States and to foster cooperative federalism., The nature of the recommendations of the Goods and Services Tax Council reflects a dialogue of cooperative federalism, wherein the Council acts as a consultative body to harmonise the tax structure while respecting the legislative supremacy of both Union and State legislatures.
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The arguments in favour of reading the recommendations of the Goods and Services Tax Council as binding are two-fold: first, if the Goods and Services Tax Council cannot make binding recommendations, the entire structure of the Goods and Services Tax will collapse as each State would then levy a conflicting tax and collection mechanism; and second, if the recommendations are non-binding, then there would be no dispute to be resolved under Article 279(11) as the States would be free to disregard the recommendations. The arguments against interpreting the recommendations of the Goods and Services Tax Council as binding on the Union and the States are two-fold: first, it would violate the supremacy of Parliament and State legislatures since both have a simultaneous power to legislate on the Goods and Services Tax; and second, it would violate the fiscal federalism of the States since the Centre has a one-third vote share and the States collectively have a two-third vote share. Therefore, no recommendation on a three-fourths majority can be passed without the consent of the Centre., One of the important characteristics of a federal polity is the distribution of legislative power between the Union and the States. Mr H M Seervai, while arguing that India is a federal nation, referred to the exclusive power of taxation held by the States to establish that the States were not merely given the power to legislate on subordinate matters: If by subordinate is meant not important, then, with respect, the present writer does not agree with Prof. Wheare's assessment of the exclusive State List. Public order, the police, administration of justice, local government, public health and sanitation, to mention but a few, are matters of great importance; and so are agriculture, water (subject to Union control of the waters of inter‑State rivers), land, and fisheries. Again, the allocation of taxes between the Union and the States is mutually exclusive, and the taxes allotted exclusively to the States are not negligible. Thus sales tax is an expanding source of revenue in India as it becomes increasingly industrialized under the successive five‑year plans. In the industrialized State of Maharashtra, the yield from Sales Tax was about Rs. 1,580 million for the year 1971‑72, and the estimate for the year 1972‑73 was about Rs. 1,780 million., The view that unimportant matters were assigned to the States cannot be sustained in face of the very important subjects assigned to the States in List II, and the same applies to taxing powers of the States which are made mutually exclusive of the taxing powers of the Union so that ordinarily the States have an independent source of revenue of their own. The legislative entries relating to taxes in List II show that the sources of revenue available to the States are substantial and would increasingly become more substantial. In addition to the exclusive taxing powers of the States, the States become entitled either to appropriate taxes collected by the Union or to a share in the taxes collected by the Union. Justice P. B. Sawant, writing for himself and Justice Kuldip Singh in SR Bommai v. Union of India, referred to the exclusive and equal legislative distribution of heads of taxation to establish the federal nature of the Indian Constitution. Therefore, the exclusive powers held by the States and the Centre on matters of taxation were regarded as an important feature of India’s federal polity., The Constitution Amendment Act 2016 alters the legislative distribution between the Centre and the State on indirect taxation by providing Parliament and State legislatures with simultaneous powers and no provision for repugnancy. Therefore, according to Article 246A, both Parliament and the State Legislature possess equal power to legislate on aspects of the Goods and Services Tax. It is the contention of the Union that the recommendation of the Goods and Services Tax Council should be binding on Parliament and the State Legislatures precisely because equal power is granted to both the federal units. The Union has argued that if the recommendations are not binding, then it would lead to an impasse where different Central and State legislations could be guiding the same field., Article 246A vests Parliament and the State Legislatures with a unique, simultaneous law‑making power on the Goods and Services Tax. It is in this context that the role of the Goods and Services Tax Council gains significance. The recommendations of the Goods and Services Tax Council are not based on a unanimous decision but on a three‑fourths majority of the members present and voting, where the Union’s vote counts as one‑third, while the States’ votes have a weightage of two‑thirds of the total votes cast. There are two significant attributes of the voting system in the Goods and Services Tax Council. First, the Goods and Services Tax Council has an unequal voting structure, where the States collectively have a two‑thirds voting share and the Union has a one‑third voting share; and second, since India has a multi‑party system, it is possible that the party in power at the Centre may or may not be in power in various States. Therefore, the Goods and Services Tax Council is not only an avenue for the exercise of cooperative federalism but also for political contestation across party lines. Thus, the discussions in the Goods and Services Tax Council impact both federalism and democracy., The constitutional design of the Constitution Amendment Act 2016 is sui generis since it introduces unique features of federalism. Article 246A treats the Centre and the States as equal units by conferring a simultaneous power of enacting law on the Goods and Services Tax. Article 279A, in constituting the Goods and Services Tax Council, envisions that neither the Centre nor the States can act independent of the other. The dual federalism model or the autonomy model views the constituting units of the Centre and States as autonomous, independent and competing units. This model is also termed competitive federalism, where the constituent units compete with each other. Proponents of the cooperative federalism model argue that it is a mistake to view each unit as a separate autonomous entity. According to the theory of cooperative federalism, integration and not autonomy is the objective that federalism seeks to achieve. While dual federalism is termed as layer‑cake federalism due to the delineation of the structures of power, cooperative federalism is known as marble‑cake federalism due to the integrated approach of the federal units., The Supreme Court of India in State (NCT of Delhi) v. Union of India has observed that India follows the model of cooperative federalism where the Union and the State Governments need to iron out the differences that arise in the course of development. Chief Justice Dipak Mishra elucidated on the concept of cooperative federalism: Thus, the idea behind the concept of collaborative federalism is negotiation and coordination so as to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. The Union Government and the State Governments should endeavour to address the common problems with the intention to arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it. In a functional Constitution, the authorities should exhibit sincere concern to avoid any conflict. This concept has to be borne in mind when both intend to rely on the constitutional provision as the source of authority. We are absolutely unequivocal that both the Centre and the States must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State Governments., The Indian Constitution has sometimes been described as quasi‑federal or a Constitution with a centralising drift. This is because when the Constitution is read as a whole, the Union is granted a larger share of the power. Instances of this centralising drift can be traced to Articles 254, 248, and 353. However, there are instances such as Article 246A, where the Centre and the States are conferred equal power. Merely because a few provisions of the Constitution provide the Union with a greater share of power, the provisions in which the federal units are envisaged to possess equal power cannot be construed in favour of the Union. The Union and the States have a simultaneous power to legislate on the Goods and Services Tax. The Goods and Services Tax Council has the power to make recommendations on a wide range of subjects relating to the Goods and Services Tax. Since the Constitution does not envisage a repugnancy provision to resolve inconsistencies between the Central and State laws on the Goods and Services Tax, the Goods and Services Tax Council must ideally function, as provided by Article 279A(6), in a harmonised manner to reach a workable fiscal model through cooperation and collaboration., The federal system is a means to accommodate the needs of a pluralistic society to function in a democratic manner. It attempts to reconcile the desire of unity and commonality along with the desire for diversity and autonomy. Democracy and federalism are interdependent on each other for their survival such that federalism would only be stable in well‑functioning democracies. Additionally, the constituent units in a federal polity check the exercise of power of one another to prevent one group from exercising dominant power. The Indian Constitution, though necessarily federal, does confer the Union with a higher share of power in certain situations to prevent chaos and provide security. However, even if the federal units are not entirely autonomous as in the traditional federal system, the units still wield power. The relationship between two constituent units that are not autonomous but rely on each other for their functioning is not in practice always collaborative or cooperative. If the States have been conferred lesser power they can still resist the mandates of the Union by using different forms of political contestation as permitted by constitutional design. Such contestation furthers both the principle of federalism and democracy. When the federal units are vested with unequal power, the collaboration between them is not necessarily cooperative. Harmonised decision thrives not just on cooperation but also on contestation. Indian federalism is a dialogue in which the States and the Centre constantly engage in conversations. Such dialogues can be placed on two ends of the spectrum – collaborative discussions that cooperative federalism fosters at one end and interstitial contestation at the other. Jessica Bulman and Heather K. Gerken, in their essay, connote interstitial contestation as uncooperative federalism. They argue that the States which possess lesser power could use licensed dissent, dissent by using regulatory gaps or by civil disobedience such as passing a resolution against the decision of the Central Government as means of contestation. Differentiating the forms of cooperative federalism from the dissent in uncooperative federalism, the authors state: We think the best proxy for distinguishing dissent from routine negotiations is whether the State’s action can be fairly understood as an effort to change national policy. An attempt to obtain an accommodation or modification of federal policy within the State should usually be understood as an example of cooperative bargaining. An attempt to contest and alter national policy is rightly understood as dissent., Such form of contestation, or as the authors term it, uncooperative federalism, is valuable since it is desirable to have some level of friction, some amount of State contestation, some deliberation‑generating froth in our democratic system. Therefore, the States can use various forms of contestation if they disagree with the decision of the Centre. Such forms of contestation are also within the framework of Indian federalism. The Goods and Services Tax Council is not merely a constitutional body restricted to the indirect tax system in India but is also an important focal point to foster federalism and democracy., One of the important features of Indian federalism is fiscal federalism. A reading of the Statement of Objects and Reasons of the 2014 Amendment Bill, the Parliamentary reports and speeches indicate that Articles 246A and 279A were introduced with the objective of enhancing cooperative federalism and harmony between the States and the Centre. However, the Centre has a one‑third vote share in the Goods and Services Tax Council. This coupled with the absence of the repugnancy provision in Article 246A indicates that recommendations of the Goods and Services Tax Council cannot be binding. Such an interpretation would be contrary to the objective of introducing the Goods and Services Tax regime and would also dislodge the fine balance on which Indian federalism rests. Therefore, the argument that if the recommendations of the Goods and Services Tax Council are not binding, then the entire structure of the Goods and Services Tax would crumble does not hold water. Such a reading of the provisions of the Constitution diminishes the role of the Goods and Services Tax Council as a constitutional body formed to arrive at decisions by collaboration and contestation of ideas., The phrase “recommendation” is used in numerous provisions in the Constitution but the import of the phrase differs contextually. Based on the submission of the Union Government, there are five categories into which the phrase recommendation has been deployed in the Constitution: Category 1: Recommendation by the President prior to laying before Parliament for voting (Articles 3, 109, 111, 113, 117, 203, 207, 255 and 274). Category 2: Recommendation followed by consultation (Article 233 uses the phrases consultation and recommendation. Article 233(1) states that the district judge shall be appointed by the Governor in consultation with the High Court. The criteria for the appointment of a person who is not already in the service of the Union or the State is that he should have been a pleader or an advocate for at least seven years and he should be recommended by the High Court for the appointment to the post of a District Judge. There is a two‑step process for appointment, first, the candidature must be recommended by the High Court; and second, the recommended candidate is appointed by the Governor in consultation with the High Court.) Category 3: Recommendation with accountability (Articles 243I, 243Y, 280, 281, 338, 338B and 340). Articles 243I and 243Y stipulate that the Finance Commission shall make recommendations to the Governor on apportionment of taxes to the Panchayats and Municipalities. Article 280 states that it shall be the duty of the Commission to make recommendations to the President on the principles governing distribution of taxes between the Union and the States. Article 281 fosters accountability by providing that every recommendation made by the Finance Commission shall be laid before the House together with an explanatory memorandum on the action taken on such recommendations. Article 338(5)(e) states that the National Commission for Scheduled Castes shall present a report to the President annually listing the measures that should be taken to enhance the protection and development of the Scheduled Caste. Article 338(6) states that the President shall cause the report to be laid before Parliament along with a memorandum explaining the action taken on the recommendations or the reason for non‑acceptance, if any. Article 338A is a similar provision on the recommendatory nature of the National Commission for Scheduled Tribes. The President has the power to appoint a Commission to investigate the conditions of Backward Classes. The Commission is required to investigate the matters referred to them and present a report along with recommendations to the President which shall be laid before Parliament along with an explanatory memorandum.) Category 4: Non‑qualifying recommendation (The Presidential Order to establish an Inter‑State Council dated 28 May 1990 issued by the Ministry of Home Affairs, and Article 263. Article 263 provides that the President may, in public interest, establish an Inter‑State Council which shall make recommendations for better coordination of policy and action.) Category 5: Recommendations which are obligatory in nature (Articles 270, 275, 344, 349 and 371A). Article 344 establishes the Commission and Committee of Parliament on Official Languages. Article 344(2) states that it shall be the duty of the Commission to make recommendations to the President on the usage of official languages. Clause 3 states that recommendations shall be made having due regard to the industrial, cultural and scientific advancement of India and the claim of non‑Hindi speaking persons. Article 344(4) constitutes a Committee of the members of the Lok Sabha and Rajya Sabha. The Committee will have to examine the recommendations of the Commission and report its opinion to the President. The President after considering the report, shall issue directions in accordance with the whole or any part of the report. Article 349 deals with the special procedure for enactment of law relating to language in the first fifteen years from the commencement of the Constitution. Articles 270 and 275 stipulate that the percentage of tax apportionment and fixation of the grants for the States from the Consolidated Fund of India shall be ordered by the President on the recommendation of the Finance Commission., A survey of the above provisions indicates that the nature and meaning of the term recommendation differs contextually. All the provisions qualify the nature of recommendation. For instance, in category one, the recommendation of the President is for the initiation of the discussion; in category two, a decision on the recommendation is arrived upon consultation; in category three, the decision‑making authority has to submit an explanatory note on the action or inaction taken on the recommendations; in category four, the recommendations are not qualified. Article 263 only states that the Inter‑State Council has a duty to recommend. There is no further explanation on whether the recommendation ought to be mandatorily accepted, or deliberated upon; in category five, the recommendations of the authority are expressly stated to be binding on the decision‑making authority., The Goods and Services Tax Council, which is a constitutional body, is entrusted with the duty to make recommendations on a wide range of areas concerning the Goods and Services Tax. The Goods and Services Tax Council has plenary powers under Article 279A(4)(h) where it could make recommendations on any other matter related to the Goods and Services Tax as the Council may decide. The Goods and Services Tax Council has to arrive at its recommendations through harmonised deliberation between the federal units as provided in clause 6 of Article 279A. Unlike the other provisions of the Constitution which provide that recommendations shall be made to the President or the Governor, Article 279A states that the recommendations shall be made to the Union and the States. The recommendation of the Goods and Services Tax Council made under Article 279A is non‑qualified. That is, there is no explanation on the value of such a recommendation. Yet the notion that the recommendations of the Goods and Services Tax Council transform into legislation in and of themselves under Article 246A would be far‑fetched. If the Goods and Services Tax Council was intended to be a decision‑making authority whose recommendations transform to legislation, such a qualification would have been included in Articles 246A or 279A. Neither does Article 279A begin with a non‑obstante clause nor does Article 246A provide that the legislative power is subject to Article 279A., The Constitution employs the phrase “consultation” in certain contexts. For example, Article 320(3) states that the Public Service Commission shall be consulted on matters relating to civil posts. Article 320(3) reads as follows: (3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted (a) on all matters relating to methods of recruitment to civil services and for civil posts; (b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers., If the Goods and Services Tax Council were intended to be a constitutional body whose recommendations transform into legislation without any intervening act, there would have been an express provision in Article 246A. Article 279A does not mandate tabling the recommendations in the legislature like the provisions in category 3, where the recommendations have to be mandatorily tabled in the legislature along with an explanatory note. Only the secondary legislation which is framed based on the recommendations of the Council under the provisions of the Central Goods and Services Tax Act (Section 166) and Integrated Goods and Services Tax Act (Section 24) is mandated to be tabled before the Houses of Parliament. The use of the phrase recommendations to the Union or States indicates that the Goods and Services Tax Council is a recommendatory body aiding the Government in enacting legislation., In Manohar v. State of Maharashtra, a two‑judge Bench of the Supreme Court of India while interpreting Section 20(2) of the Right to Information Act 2005 observed that the phrase “recommendation” must be interpreted in contradistinction to “direction” or “mandate”. It was observed as follows: We may notice that proviso to Section 20(1) specifically contemplates that before imposing the penalty contemplated under Section 20(1), the Commission shall give a reasonable opportunity of being heard to the officer concerned. However, there is no such specific provision in relation to the matters covered under Section 20(2). Section 20(2) empowers the Central or the State Information Commission, as the case may be, at the time of deciding a complaint or appeal for the reasons stated in that section, to recommend for disciplinary action to be taken against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the relevant service rules. Power to recommend disciplinary action is a power exercise which may impose penal consequences. When such a recommendation is received, the disciplinary authority would conduct the disciplinary proceedings in accordance with law and subject to satisfaction of the requirements of law. It is a recommendation and not a mandate to conduct an enquiry. Recommendation must be seen in contradistinction to direction or mandate. But recommendation itself vests the delinquent Public Information Officer or State Public Information Officer with consequences which are of serious nature and can ultimately produce prejudicial results including misconduct within the relevant service rules and invite minor and/or major penalty., In Naraindas Indurkhya v. State of Madhya Pradesh, a Constitution Bench observed that a recommendation has persuasive value. The Court observed: there is a basic distinction between recommendation and prescription of a textbook. When a textbook is prescribed by an appropriate authority having legal power to do so, it has to be followed by the schools. Prescription of a textbook carries with it a binding obligation to follow the textbook. There is no such obligation when a textbook is merely recommended. Recommendation has merely a persuasive effect, it being open to the schools to accept the recommendation or to reject it as they think fit. The schools may use the recommended textbook or they may not according as the Principals choose. That is why no conferment of statutory power is needed to enable the Board to recommend textbooks and no question of ultra vires can arise in such a case. Now the textbooks which formed the subject matter of the notifications dated April 5, 1972, April 25, 1972, April 26 and May 17, 1972 were merely recommended and not prescribed by the Board and being only recommended textbooks as distinguished from prescribed textbooks, they obviously could not be said to be in force immediately before the appointed day. Section 4, sub‑section (2) did not, therefore, apply in respect of these textbooks and they could not be regarded as textbooks prescribed under Section 4, sub‑section (2). In numerous cases, this Court has reiterated that recommendations cannot create binding and enforceable rights, in contradistinction to a direction or mandate., The contention of the Union is that the recommendations of the Goods and Services Tax Council are binding since Parliament and the State legislatures have agreed to align themselves with the recommendations as is evident from the provisions of the Integrated Goods and Services Tax Act, Central Goods and Services Tax Act and State Goods and Services Tax Acts. Certain provisions of the Integrated Goods and Services Tax Act, Central Goods and Services Tax Act and State Goods and Services Tax Acts expressly provide that the rule‑making power delegated to the Government shall be exercised on the recommendations of the Goods and Services Tax Council. For instance, Section 5 of the Integrated Goods and Services Tax Act provides that the taxable event, taxable rate and taxable value shall be notified by the Government on the recommendations of the Council. Similarly, the power of the Central Government to exempt goods or services or both from levy of tax shall be exercised on the recommendations of the Goods and Services Tax Council under Section 6 of the Integrated Goods and Services Tax Act. Section 22 provides that the Government may exercise its rule‑making power on the recommendations of the Goods and Services Tax Council. The Central Goods and Services Tax Act also provides for similar provisions in Sections 9, 11 and 164., The provisions of the Integrated Goods and Services Tax Act and Central Goods and Services Tax Act which provide that the Union Government is to act on the recommendations of the Goods and Services Tax Council must be interpreted with reference to the purpose of the enactment, which is to create a uniform taxation system. The Goods and Services Tax was introduced since different States could earlier provide different tax slabs and different exemptions. The recommendations of the Goods and Services Tax Council are made binding on the Government when it exercises its power to notify secondary legislation to give effect to the uniform taxation system. The Council under Article 279A has wide recommendatory powers on matters related to the Goods and Services Tax where it has the power to make recommendations on subject matters that fall outside the purview of the rule‑making power under the provisions of the Integrated Goods and Services Tax Act and Central Goods and Services Tax Act. Merely because a few of the recommendations of the Goods and Services Tax Council are binding on the Government under the provisions of the Central Goods and Services Tax Act and Integrated Goods and Services Tax Act, it cannot be argued that all of the Goods and Services Tax Council’s recommendations are binding. As a matter of first principle, the provisions of the Constitution, which is the grundnorm of the nation, cannot be interpreted based on the provisions of a primary legislation. It is only the provisions of a primary legislation that can be interpreted with reference to the Constitution. The legislature amends the Constitution by exercising its constituent power and legislates by exercising its legislative power. The constituent power of the legislature is of a higher constitutional or der as compared to its legislative power. Even if it is Parliament that has enacted laws making the recommendations of the Goods and Services Tax Council binding on the Central Government for the purpose of notifying secondary legislations, it would not mean that all the recommendations of the Council made by virtue of its power under Article 279A have a binding force on the legislature., With this background and context, we shall now proceed to analyse the scheme of the Goods and Services Tax legislation and whether the impugned levy, imposed on the recommendations of the Goods and Services Tax Council, is valid and permissible under law., D.1 Statutory Provisions and Scheme of the Integrated Goods and Services Tax Act. The Integrated Goods and Services Tax Act enables the Central Government to impose Integrated Goods and Services Tax on inter‑state supply of goods and services. The Preamble to the Integrated Goods and Services Tax Act describes it as: “An Act to make a provision for levy and collection of tax on inter‑State supply of goods or services or both by the Central Government and for matters connected therewith or incidental thereto.” In aiding the levy and collection of Integrated Goods and Services Tax, the Integrated Goods and Services Tax Act provides for a comprehensive scheme for determining the nature of supply, time of supply and place of supply., Statutory interpretation will determine whether the Integrated Goods and Services Tax Act confers the powers on the Central Government, in consultation with the Goods and Services Tax Council, to designate imports as a supply of services under Section 5(3) of the Integrated Goods and Services Tax Act and whether the importer can be considered as the recipient of such supply, liable to pay tax on a reverse charge basis.
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Further, it will determine if the Central Government, in consultation with the Goods and Services Tax Council, has the powers to designate the importer as a recipient of a service under Section 5(4) of the Integrated Goods and Services Tax Act, when goods are imported on a Cost, Insurance and Freight basis. The critical fact in this case is that the service of shipping in these Cost, Insurance and Freight contracts is availed by the non‑taxable exporter who engages and pays a foreign shipping line of their choice, without the involvement of the importer. In contrast, in Free on Board contracts, the Indian importer pays for the services of shipping and directly deals with the shipping line. The respondents herein are importers of non‑coking coal on a Cost, Insurance and Freight basis., Section 5 of the Integrated Goods and Services Tax Act provides for the levy and collection of tax on inter‑State supplies of goods or services. The power to impose such tax is derived from Article 286(2) read with Article 269A(1). Sub‑section (1) of Section 5 provides for the levy of the Integrated Goods and Services Tax on all inter‑State supplies of goods or services or both. Section 5 reads as follows: ‘Levy and collection. (1) Subject to the provisions of sub‑section (2), there shall be levied a tax called the Integrated Goods and Services Tax on all inter‑State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under Section 15 of the Central Goods and Services Tax Act and at such rates, not exceeding forty per cent, as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by the taxable person. Provided that the integrated tax on goods imported into India shall be levied and collected in accordance with the provisions of Section 3 of the Customs Tariff Act, 1975 on the value as determined under the said Act at the point when duties of customs are levied on the said goods under Section 12 of the Customs Act, 1962.’, The proviso to Section 5(1) clarifies that the tax is levied on goods imported into India in accordance with Section 3 of the Customs Tariff Act, 1975. The value is determined under the Customs Tariff Act at the point when the customs duties are levied in accordance with the Customs Act., The payment of Integrated Goods and Services Tax on a reverse‑charge basis is contemplated in Sub‑sections (3) and (4) of Section 5. Sub‑section (3) provides that Integrated Goods and Services Tax may be paid on a reverse‑charge basis on specified categories of supply of goods or services or both. The Central Government is empowered to specify these categories on the recommendations of the Goods and Services Tax Council. Hence, on its plain terms, the payment of Integrated Goods and Services Tax on a reverse‑charge basis is envisaged on specific categories of supply of goods or services, or both, as notified by the Central Government. The tax on a reverse‑charge basis is payable by the recipient of such goods or services, or both. The provision does not empower the Government to specify the recipient of the supply of goods or services., The unamended Sub‑section (4) of Section 5 provided that the tax in respect of the supply of goods or services by an unregistered supplier shall be paid on a reverse‑charge basis by a specified registered person, as the recipient of such supply of goods or services. The provision read as follows: ‘(3) The Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse‑charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both. (4) The integrated tax in respect of the supply of taxable goods or services or both by a supplier who is not registered, to a registered person shall be paid by such person on reverse‑charge basis as the recipient and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to such supply of goods or services or both.’ Sub‑Section (4) of Section 5 was amended by the Integrated Goods and Services Tax (Amendment) Act, 2018, with effect from 1 February 2019, and now reads: ‘(4) The Government may, on the recommendations of the Council, by notification, specify a class of registered persons who shall, in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay the tax on reverse‑charge basis as the recipient of such supply of goods or services or both, and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to such supply of goods or services or both.’, On 28 June 2017, the Central Government issued Notification 8/2017, in exercise of its powers under Section 5(1), Section 6(1) and Section 20 of the Integrated Goods and Services Tax Act, read with Section 15(5) and Section 16(1) of the Central Goods and Services Tax Act. Entry 9(ii) of Notification 8/2017 reads as follows: ‘Transport of goods in a vessel including services provided or agreed to be provided by a person located in a non‑taxable territory to a person located in a non‑taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India. Provided that credit of input tax charged on goods (other than on ships, vessels including bulk carriers, tankers) used in supplying the service has not been taken. This condition will not apply where the supplier of service is located in a non‑taxable territory.’ By Entry 9(ii) of Notification 8/2017, an integrated tax of five per cent was levied on supply of specified services, including transportation of goods in a vessel from a place outside India up to the customs station of clearance in India., On the same day, Notification 10/2017 was issued by the Central Government in exercise of powers conferred by Section 5(3) of the Integrated Goods and Services Tax Act. Notification 10/2017 specified the importer as the recipient of transportation of service when the supplier is located in a non‑taxable territory and the service of transportation is supplied by a person in a non‑taxable territory. Entry 10 of Notification 10/2017 states: ‘Services supplied by a person located in a non‑taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India – A person located in a non‑taxable territory – Importer, as defined in clause (26) of Section 2 of the Customs Act, 1962 (52 of 1962), located in the taxable territory.’ Thus, Entry 10 of Notification 10/2017 deems an importer of goods as the recipient of the service of transportation of goods by a foreign shipping line., Both the impugned notifications, Notification 8/2017 and Notification 10/2017, have been challenged as ultra vires the Integrated Goods and Services Tax Act. Before addressing the challenges raised by the parties, it becomes necessary to refer to some of the key provisions contained in the Central Goods and Services Tax Act, the Integrated Goods and Services Tax Act and the Customs Act. These provisions are necessary to respond to several contentions raised by the respondents, including: whether the taxable event stipulated by the impugned notifications constitutes a supply under the Integrated Goods and Services Tax Act; whether the importer of goods on a Cost, Insurance and Freight basis can be deemed to be the recipient of shipping services when they do not pay the consideration; and whether the import of goods constitutes a composite supply, among others., The provisions of the Integrated Goods and Services Tax Act apply to the whole of India as provided under Section 1. Section 5 of the Integrated Goods and Services Tax Act is the charging section. Sub‑section (1) of Section 5 provides that the levy of Integrated Goods and Services Tax shall be paid by the taxable person. The term ‘taxable person’ is defined in Section 2(107) of the Central Goods and Services Tax Act as a person who is registered or liable to be registered under Section 22 or Section 24., Section 2(98) of the Central Goods and Services Tax Act defines reverse charge: ‘Reverse charge means the liability to pay tax by the recipient of supply of goods or services or both instead of the supplier of such goods or services or both under sub‑section (3) or sub‑section (4) of Section 9, or under sub‑section (3) or sub‑section (4) of Section 5 of the Integrated Goods and Services Tax Act.’ As defined in the above clause, under the reverse‑charge mechanism the liability to pay is on the recipient of the supply of goods or services, as opposed to the supplier., Section 24(iii) of the Central Goods and Services Tax Act provides for compulsory registration of persons who are required to pay tax under the reverse charge. It states: ‘Notwithstanding anything contained in sub‑section (1) of Section 22, the following categories of persons shall be required to be registered under this Act: (i) persons making any inter‑State taxable supply; (ii) casual taxable persons making taxable supply; (iii) persons who are required to pay tax under reverse charge; (xii) such other person or class of persons as may be notified by the Government on the recommendations of the Council.’, Section 2(105) of the Central Goods and Services Tax Act defines the supplier in relation to goods or services as: ‘Supplier in relation to any goods or services or both shall mean the person supplying the said goods or services or both and shall include an agent acting as such on behalf of such supplier in relation to the goods or services or both supplied.’, Section 2(93) of the Central Goods and Services Tax Act defines the recipient of supply of goods or services or both as: ‘(a) where a consideration is payable for the supply of goods or services or both, the person who is liable to pay that consideration; (b) where no consideration is payable for the supply of goods, the person to whom the goods are delivered or made available, or to whom possession or use of the goods is given or made available; and (c) where no consideration is payable for the supply of a service, the person to whom the service is rendered, and any reference to a person to whom a supply is made shall be construed as a reference to the recipient of the supply and shall include an agent acting as such on behalf of the recipient in relation to the goods or services or both supplied.’, Sections 2(14) and 2(15) of the Integrated Goods and Services Tax Act define the location of the recipient of services and the location of the supplier of services respectively. The location of the recipient of services means: (a) where a supply is received at a place of business for which registration has been obtained, the location of such place of business; (b) where a supply is received at a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment; (c) where a supply is received at more than one establishment, the location of the establishment most directly concerned with the receipt of the supply; and (d) in the absence of such places, the location of the usual place of residence of the recipient. The location of the supplier of services means: (a) where a supply is made from a place of business for which registration has been obtained, the location of such place of business; (b) where a supply is made from a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment; (c) where a supply is made from more than one establishment, the location of the establishment most directly concerned with the provision of the supply; and (d) in the absence of such places, the location of the usual place of residence of the supplier., Chapter IV of the Integrated Goods and Services Tax Act determines the nature of the supply. Section 7 of the Integrated Goods and Services Tax Act determines the nature of supply as inter‑State supply, Section 8 provides for intra‑State supply and Section 9 provides for supplies in territorial waters., Section 7 of the Integrated Goods and Services Tax Act lays down the conditions for a supply to be construed as an inter‑State supply. The relevant provisions, particularly Sub‑sections (3) and (4), state: ‘(3) Subject to the provisions of Section 12, supply of services where the location of the supplier and the place of supply are in (a) two different States; (b) two different Union territories; or (c) a State and a Union territory, shall be treated as a supply of services in the course of inter‑State trade or commerce. (4) Supply of services imported into the territory of India shall be treated to be a supply of services in the course of inter‑State trade or commerce.’, The term ‘supply’ has been defined in the Integrated Goods and Services Tax Act with reference to the Central Goods and Services Tax Act. Section 2(21) of the Integrated Goods and Services Tax Act provides that ‘supply shall have the same meaning as assigned to it in Section 7 of the Central Goods and Services Tax Act.’ Section 7(1) of the Central Goods and Services Tax Act provides that ‘supply’ includes all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; import of services for a consideration whether or not in the course or furtherance of business; and the activities specified in Schedule I made or agreed to be made without consideration., The term ‘taxable territory’ is defined in Section 2(22) of the Integrated Goods and Services Tax Act to mean the territory to which the provisions of this Act apply., Section 13 of the Integrated Goods and Services Tax Act deals with determining the place of supply of services where the location of the supplier or the location of the recipient is outside India. It provides that the place of supply of services, except those specified in Sub‑sections (3) to (13), shall be the location of the recipient of services, provided that where the location of the recipient is not available in the ordinary course of business, the place of supply shall be the location of the supplier of services. Sub‑section (9) states that the place of supply of services of transportation of goods, other than by way of mail or courier, shall be the place of destination of such goods. Sub‑section (12) provides that the place of supply of online information and database access or retrieval services shall be the location of the recipient of services, with an explanation detailing the conditions for deeming the recipient located in the taxable territory., Chapter IX of the Integrated Goods and Services Tax Act contains miscellaneous provisions. Section 20 provides that the provisions in the Central Goods and Services Tax Act relating to the scope of supply, composite or mixed supply, time and value of supply shall apply mutatis mutandis to the Integrated Goods and Services Tax. In this regard, the time of supply of services is provided in Section 13 of the Central Goods and Services Tax Act, while the value of taxable supply is determined under Section 15 of the Central Goods and Services Tax Act., Section 13 of the Central Goods and Services Tax Act states that the liability to pay tax on services arises at the time of supply. Sub‑section (3) provides for the time of supply when tax is paid on a reverse‑charge basis: ‘In case of supplies in respect of which tax is paid or liable to be paid on reverse‑charge basis, the time of supply shall be the earlier of (a) the date of payment as entered in the books of account of the recipient or the date on which the payment is debited in his bank account, whichever is earlier; or (b) the date immediately following sixty days from the date of issue of invoice or any other document, by whatever name called, in lieu thereof by the supplier. Provided that where it is not possible to determine the time of supply under clause (a) or clause (b), the time of supply shall be the date of entry in the books of account of the recipient of supply. Further, in case of supply by associated enterprises where the supplier of service is located outside India, the time of supply shall be the date of entry in the books of account of the recipient of supply or the date of payment, whichever is earlier.’ Sub‑section (5) provides that where it is not possible to determine the time of supply under the preceding provisions, the time of supply shall be (a) in a case where a periodical return has to be filed, the date on which such return is to be filed; or (b) in any other case, the date on which the tax is paid., Section 15 of the Central Goods and Services Tax Act provides for the determination of the value of taxable supply. Sub‑section (1) provides that the value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply where the supplier and the recipient are not related and the price is the sole consideration for the supply. Sub‑section (4) states that where the value of the supply cannot be determined under sub‑section (1), it shall be determined in such manner as may be prescribed. Sub‑section (5) adds that notwithstanding anything contained in sub‑section (1) or sub‑section (4), the value of such supplies as may be notified by the Government on the recommendations of the Council shall be determined in such manner as may be prescribed., Article 286(1) stipulates that the State shall not levy tax when the supply of goods or services takes place outside the State or in the course of import or export of goods or services from the territory of India. Clause (2) of Article 286 states that Parliament may by law formulate principles for determining when there is a supply of goods or services as prescribed by clause (1). Article 269A provides that Goods and Services Tax on supplies in the course of inter‑State trade or commerce shall be levied and collected by the Union Government, with the manner of apportionment between the Union and the States to be provided by Parliament on the recommendations of the Goods and Services Tax Council. The explanation to Article 269A(1) states that supply of goods or services in the course of import shall be deemed to be supply in the course of inter‑State trade or commerce., The contention of the respondents is that Section 5(3) of the Integrated Goods and Services Tax Act only delegates the power to identify the categories of goods or services on which the tax shall be paid on a reverse‑charge basis. They argue that since Notification 10/2017 identifies an importer as a service recipient for the purposes of Section 5(3), it is ultra vires the parent Act on the ground of excessive delegation., The legislature is required to perform its essential legislative functions. Once the skeletal structure of the policy is framed by the legislature, the details can emerge through delegated legislation. It is a settled position that the legislature cannot delegate its essential legislative functions. The essential legislative functions with respect to the Goods and Services Tax law are the levy of tax, subject matter of tax, taxable person, rate of taxation and value for the purpose of taxation. The principles governing these essential aspects of taxation find place in the Integrated Goods and Services Tax Act: Section 5(1) identifies the subject matter of taxation as inter‑State supplies of goods, services or both; Section 2(107) of the Central Goods and Services Tax Act identifies a taxable person; Section 5(1) provides a maximum cap of forty per cent as the rate of taxation; and Section 5(1) stipulates that the value of taxation be determined under Section 15 of the Integrated Goods and Services Tax Act., Relevant case law includes Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills, AIR 1968 SC 1232; Avinder Singh v. State of Punjab, 1979 1 SCC 137; In re Delhi Laws Act 1912, AIR 1951 SC 332; Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 SC 25; A.N. Parasaran v. State of Tamil Nadu, (1989) 4 SCC 683., Section 2(98) of the Central Goods and Services Tax Act defines reverse charge as the liability of the recipient of the supply of goods or services or both to pay tax instead of the supplier. Section 2(93) defines the recipient with reference to three situations: (i) when consideration is payable for the supply of goods or services or both, the person who is liable to pay that consideration; (ii) when no consideration is payable for the supply of goods, the person to whom the goods are delivered or made available, or to whom possession or use of the goods is given or made available; and (iii) when no consideration is payable for the supply of a service, the person to whom the service is rendered. The Central Goods and Services Tax Act also stipulates a two‑fold requirement for a recipient to be taxed on a reverse‑charge basis: the recipient must be a person as defined under Section 2(107) of the Central Goods and Services Tax Act, and the person must be a taxable person only if registered or liable to be registered under Section 22 or Section 24.
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Section 24(iii) of the Central Goods and Services Tax Act states that persons who are required to pay tax under reverse charge must be registered. Therefore, both the Integrated Goods and Services Tax Act and the Central Goods and Services Tax Act clearly define reverse charge, recipient and taxable persons. Thus, the essential legislative functions vis‑vis reverse charge have not been delegated. Section 5(3) of the Integrated Goods and Services Tax Act provides the Government the power to specify categories of supply of goods or services or both on which tax shall be paid on a reverse charge basis by the recipient. The Government is to exercise this power on the recommendation of the Goods and Services Tax Council. The Government, in exercise of its power under Section 5(3) of the Integrated Goods and Services Tax Act, issued the impugned Notification 10/2017 specifying the categories of the supply which shall be subject to reverse charge. The notification, besides specifying the criteria, has also mentioned the corresponding recipient in those categories. As discussed above, the Integrated Goods and Services Tax Act and the Central Goods and Services Tax Act define reverse charge and prescribe the entity that is to be taxed for these purposes. Therefore, the stipulation of the recipient in each of the categories is only clarificatory. The Government by notification did not specify a taxable entity different from that which is prescribed in Section 5(3) of the Integrated Goods and Services Tax Act for the purposes of reverse charge., In determining the vires of the impugned notifications, a few preliminary contentions raised by the respondents would have to be addressed. The respondents have argued that no charge has been created for the ocean freight transaction to be taxed in the hands of the importer. It has been alleged that only Section 5(1) is a charging provision and Sections 5(3) and 5(4) cannot independently create a charge., In assessing this claim, the Supreme Court of India is bound by a decision of the Constitution Bench in Mathuram Agarwal (supra) which has identified three essential elements of taxation: (i) the subject of the tax; (ii) the person who is liable to pay the tax; and (iii) the rate at which the tax is to be paid. This test has been further elaborated by a two‑judge Bench of the Supreme Court of India in Gobind Saran Ganga Saran (supra) by further requiring the designation of the measure or the value to which the rate of the tax will be applied. Thus, the four canons of taxation are as follows: (i) the taxable event; (ii) the person on whom the levy is imposed; (iii) the rate at which the levy is imposed; and (iv) the measure or the value to which the rate will be applied., Section 5(1) of the Integrated Goods and Services Tax Act specifically identifies the four canons of taxation: (i) the inter‑State supply of goods and services as the taxable event; (ii) the taxable person as the person on whom the levy is imposed; (iii) the taxable rate as such a rate notified by the Union Government on the recommendation of the Goods and Services Tax Council, capped at forty per cent; and (iv) the taxable value as the value determined under Section 15 of the Central Goods and Services Tax Act., Section 5(3) and Section 5(4) of the Integrated Goods and Services Tax Act are inextricably linked with Section 5(1) of the Integrated Goods and Services Tax Act which is the charging provision. They must be construed together in determining the vires of the taxation. In CIT v. B C Srinivas Setty, a three‑judge Bench of the Supreme Court of India has held that the machinery provisions of an Act and the charging sections are inextricably linked. The Court observed: \A transaction to which those provisions cannot be applied must be regarded as never intended by Section 45 to be the subject of the charge. This inference flows from the general arrangement of the provisions of the Income Tax Act, where under each head of income the charging provision is accompanied by a set of provisions for computing the income subject to that charge. The character of the computation provisions in each case bears a relationship to the nature of charge. Thus the charging section and the computation provisions together constitute an integrated code. When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section.\, The respondents have alleged that the importer cannot be validly termed as a taxable person. However, this argument has to fail on a close reading of the impugned notifications alongside Sections 2(107) and 24 of the Central Goods and Services Tax Act. Section 24(iii) of the Central Goods and Services Tax Act mandates persons required to pay tax under reverse charge to be compulsorily registered under the Central Goods and Services Tax Act. Section 2(107) of the Central Goods and Services Tax Act defines a taxable person to mean a person who is registered or liable to be registered under Section 24 of the Central Goods and Services Tax Act. Neither Section 2(107) nor Section 24 of the Central Goods and Services Tax Act qualify the imposition of reverse charge on a recipient of service and broadly impose it on the persons who are required to pay tax under reverse charge. Since the impugned Notification 10/2017 identifies the importer as the recipient liable to pay tax on a reverse charge basis under Section 5(3) of the Integrated Goods and Services Tax Act, the argument of the failure to identify a specific person who is liable to pay tax does not stand., The decision in Laghu Udyog (supra), rendered by a two‑judge Bench of the Supreme Court of India, invalidated certain service tax rules formulated under the Finance Act 1997 to give effect to the collection of service tax. Section 66 read with Section 68(1)(a) of the Finance Act 1997 specifically identified the taxable person to include only those persons responsible for collecting the service tax. The rules had sought to effect a reverse charge by identifying the customers of goods transport operators and of clearing and forwarding agents as the assessee, even though they were not responsible for collecting the service tax. The basis for nullifying the rules was that the Finance Act 1997 did not enable the imposition of such a reverse charge on the person who is not supplying the service. The Court held: \Section 68(1‑A) is a special provision which has been inserted by the Finance Act, 1997. According to Section 68(1) every person who was providing the taxable service is the one who is required to collect the service tax at the rate specified in Section 66. With respect to the taxable services referred in Items (g) to (r) of clause (41) of Section 65, Section 68(1‑A) provides that the service tax for such service shall be collected from such person and in such manner as may be prescribed and to such person all the provisions shall apply as if he is the person responsible for collecting the service tax in relation to such service. As we read Section 68 it does not in any way seek to alter or change the charge of service tax levied under Section 66, which is on the person responsible for collecting the service tax. It also does not, in our mind, in any way, amend any of the clauses of Section 65 which contain the definitions of different expressions. All that Section 68(1‑A) enables to be done is that with regard to the assessees or the persons who are responsible for collecting the service tax, the individual or the officer concerned can be identified and it is that person who would be a person responsible for collecting the service tax. In other words this provision, namely, Section 68(1‑A) cannot be so interpreted as to make a person an assessee even though he may not be responsible for collecting the service tax. The service tax is levied by reason of the services which are offered. The imposition is on the person rendering the service. Of course, it may be an indirect tax; it may be possible that the same is passed on to the customer but as far as the levy and assessment are concerned it is the person rendering the service who alone can be regarded as an assessee and not the customer. This is the only way in which the provisions can be read harmoniously. By amending the definition of person responsible for collecting of service tax in the impugned rules with regard to services provided by the clearing and forwarding agents and the goods transport operator a person responsible is said to be the client or the customer of the clearing and forwarding agents and the goods transporter. In relation to the services provided by others and referred to in sub‑rules (i) to (xi) and (xiii) to (xvi) of Rule 2(d), the definition of the person responsible is in consonance with the definition of that expression occurring in Section 65 of the Act. However, with regard to the services rendered by the clearing and forwarding agents and the goods transport operator the definitions contained in Rule 2(d)(xii) and (xvii), which seek to make the customers or the clients as the assessee, are clearly in conflict with Sections 65 and 66 of the Act.\, The decision in Laghu Udyog (supra) has no applicability to the facts of the present case since Parliament has statutorily incorporated the concept of a reverse charge under Sections 5(3) and 5(4) of the Integrated Goods and Services Tax Act. The impugned Notification 10/2017 clearly specifies a taxable person who is liable to pay a reverse charge that is envisaged in the statute. Thus, the impugned notifications cannot be invalidated for an alleged failure to identify a taxable person., By a corrigendum dated 8 June 2016, Notification 8/2017 was amended to include the measure of taxable value to be ten per cent of the Cost, Insurance and Freight value. Section 5(1) of the Integrated Goods and Services Tax Act enables the taxable value to be determined under Section 15 of the Central Goods and Services Tax Act. The respondents have argued that the value has to be strictly determined by Section 15(1) of the Central Goods and Services Tax Act and not by way of delegated legislation. However, Sections 15(4) and 15(5) enable delegated legislation to prescribe methods for determination of value, on the recommendations of the Goods and Services Tax Council. Section 15 reads: \Value of Taxable Supply: (4) Where the value of the supply of goods or services or both cannot be determined under sub‑section (1), the same shall be determined in such manner as may be prescribed. (5) Notwithstanding anything contained in sub‑section (1) or sub‑section (4), the value of such supplies as may be notified by the Government on the recommendations of the Council shall be determined in such manner as may be prescribed.\ Rules 27 to 31 of Chapter IV of the Central Goods and Services Tax Rules 2017 prescribe the manner of determining value of supply. Rule 31 also provides for residual powers to the Goods and Services Tax Council for prescribing modes of valuation: \Residual method for determination of value of supply of goods or services or both. Where the value of supply of goods or services or both cannot be determined under Rules 27 to 30, the same shall be determined using reasonable means consistent with the principles and the general provisions of Section 15 and the provisions of this Chapter: Provided that in the case of supply of services, the supplier may opt for this rule, ignoring Rule 30.\, The respondents have urged that the determination of the value of supply has to be specified only through rules, and not by notification. However, this would be an unduly restrictive interpretation. Parliament has provided the basic framework and delegated legislation provides necessary supplements to create a workable mechanism. Rule 31 of the Central Goods and Services Tax Rules 2017 specifically provides for a residual power to determine valuation in specific cases, using reasonable means that are consistent with the principles of Section 15 of the Central Goods and Services Tax Act. Thus, the impugned Notification 8/2017 cannot be struck down for excessive delegation when it prescribes ten per cent of the Cost, Insurance and Freight value as the mechanism for imposing tax on a reverse charge basis., The other limb for contesting the validity of the impugned notification is with respect to its identification of a taxable event. The question that falls for determination is whether the impugned notifications issued in 2017, under Section 5(3) of the Integrated Goods and Services Tax Act, validly prescribe a taxable event that constitutes an inter‑State supply of goods and services with the importer being a recipient of shipping services in Cost, Insurance and Freight transactions., The analysis of whether import of goods under Cost, Insurance and Freight contracts constitutes a valid import of service has to be answered on two prongs: (i) whether classification of imports as a specific category of supply of shipping service is valid under Section 5(3) read with Section 5(1) of the Integrated Goods and Services Tax Act; and (ii) whether the recipient of the imported goods is also a recipient of shipping services in Cost, Insurance and Freight transactions under Section 5(3)., Notification 8/2017 specifically delineates the service that is accompanied with the transportation of goods from a non‑taxable territory as a specified category of service under Section 5(3) of the Integrated Goods and Services Tax Act. This categorization taxes the recipient of such transportation service on a reverse charge basis. The respondents have argued that the supply of service of shipping in a Cost, Insurance and Freight contract is from the foreign shipping line to the foreign exporter. It is alleged that this transaction has no territorial nexus to India and does not constitute supply that can be taxed within the meaning of the Central Goods and Services Tax Act and Integrated Goods and Services Tax Act., We shall now advert to certain key provisions relevant to determine whether the taxable event in the present case – services supplied by a person located in a non‑taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India – constitutes an inter‑State supply for the purposes of the charging Section 5(1) of the Integrated Goods and Services Tax Act, read with Sections 5(3) and the unamended Section 5(4)., Section 5(1) levies IGST on all inter‑State supplies of goods or services or both. Section 5(3) of the Integrated Goods and Services Tax Act confers power on the Central Government, on the recommendation of the Goods and Services Tax Council, to specify categories of supply of goods or services or both where the tax shall be paid on a reverse charge basis by the recipient. While analysing the respondents' contention, it is important to contextualise the purpose of GST and the constitutional amendment to effect it. In modern commerce, the distinction between goods and services is increasingly becoming a matter of degree rather than substance. GST seeks to focus on the taxation of supply of goods or services. The provisions of the Integrated Goods and Services Tax Act and the Central Goods and Services Tax Act focus on implementing a workable machinery to adequately capture the complexities of supply in a global and digital age., The term supply has been defined in the Integrated Goods and Services Tax Act with reference to the Central Goods and Services Tax Act. Section 2(21) of the Integrated Goods and Services Tax Act provides that supply shall have the same meaning as assigned to it in Section 7 of the Central Goods and Services Tax Act. Section 7(1) of the Central Goods and Services Tax Act provides: \Scope of supply. (1) For the purposes of this Act, the expression 'supply' includes (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; [(aa) the activities or transactions, by a person, other than an individual, to its members or constituents or vice‑versa, for cash, deferred payment or other valuable consideration. Explanation. For the purposes of this clause, it is hereby clarified that, notwithstanding anything contained in any other law for the time being in force or any judgment, decree or order of any Court, tribunal or authority, the person and its members or constituents shall be deemed to be two separate persons and the supply of activities or transactions inter se shall be deemed to take place from one such person to another;] [(b) import of services for a consideration whether or not in the course or furtherance of business; [and] (c) the activities specified in Schedule I, made or agreed to be made without a consideration; (3) Subject to the provisions of sub‑sections (1), (1‑A) and (2), the Government may, on the recommendations of the Council, specify, by notification, the transactions that are to be treated as (a) a supply of goods and not as a supply of services; or (b) a supply of services and not as a supply of goods.\, Further, Section 7 of the Integrated Goods and Services Tax Act defines the scope of inter‑State supply. Section 7(4) of the Integrated Goods and Services Tax Act states that supply of services imported into the territory of India shall be treated to be a supply of services in the course of inter‑State trade or commerce: \Inter‑State supply. (1) Subject to the provisions of Section 10, supply of goods, where the location of the supplier and the place of supply are in (a) two different States; (b) two different Union territories; or (c) a State and a Union territory, shall be treated as a supply of goods in the course of inter‑State trade or commerce. (2) Supply of goods imported into the territory of India, till they cross the customs frontiers of India, shall be treated to be a supply of goods in the course of inter‑State trade or commerce. (3) Subject to the provisions of Section 12, supply of services, where the location of the supplier and the place of supply are in (a) two different States; (b) two different Union territories; or (c) a State and a Union territory, shall be treated as a supply of services in the course of inter‑State trade or commerce. (4) Supply of services imported into the territory of India shall be treated to be a supply of services in the course of inter‑State trade or commerce.\, Section 7 of the Central Goods and Services Tax Act defines the term supply with a broad brush and provides for an inclusive definition. Section 7(1)(b) of the Central Goods and Services Tax Act considers import of services for a consideration to constitute supply. Section 7(1)(c) of the Central Goods and Services Tax Act captures any and all activities in Schedule I of the Central Goods and Services Tax Act, irrespective of whether they are made for a consideration. Additionally, Section 7(3) confers the power on the Central Government to specify which transactions are to be treated as a supply of goods and not a supply of services, and vice‑versa. Section 7(4) of the Integrated Goods and Services Tax Act states that supply of services imported into India would be considered as a supply of services in the course of inter‑State trade or commerce. Thus, an Indian importer could also be considered as an importer of the service of shipping which is liable to IGST on inter‑State supply, if the activity falls within the definition of import of service for the Integrated Goods and Services Tax Act and the Central Goods and Services Tax Act., The term importer is not defined in the Integrated Goods and Services Tax Act or the Central Goods and Services Tax Act. Section 2(26) of the Customs Act defines an importer as: \'importer', in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner, beneficial owner or any person holding himself out to be the importer.\ The term import of goods is defined in Section 2(10) of the Central Goods and Services Tax Act as: \import of goods ... means bringing goods into India from a place outside India.\ Import of services is defined in Section 2(11) of the Central Goods and Services Tax Act as: \import of services means the supply of any service, where (i) the supplier of service is located outside India; (ii) the recipient of service is located in India; and (iii) the place of supply of service is in India.\, The conditions for an import of service would entail three aspects: (i) the supplier of service must be located outside India; (ii) the recipient of the service must be located in India; and (iii) the place of supply of service ought to be in India. The respondents have argued that conditions (ii) and (iii) are not satisfied in the case of Cost, Insurance and Freight contracts since the recipient of shipping services would be the foreign exporter and the place of supply would be the place of business of such foreign exporter. However, in interpreting the expressions recipient and place of supply, the Supreme Court of India would have to analyse these terms vis‑à‑vis the Integrated Goods and Services Tax Act and the Central Goods and Services Tax Act and not exclusively from the provisions of the contract between the foreign exporter and the foreign shipping line., Chapter V of the Integrated Goods and Services Tax Act provides for methodologies to determine the place of supply of goods or services or both. Section 13 of the Integrated Goods and Services Tax Act provides the place of supply of services where the location of the supplier or location of recipient is outside India: \Place of supply of services where location of supplier or location of recipient is outside India (1) The provisions of this section shall apply to determine the place of supply of services where the location of the supplier of services or the location of the recipient of services is outside India. (2) The place of supply of services except the services specified in sub‑sections (3) to (13) shall be the location of the recipient of services: Provided that where the location of the recipient of services is not available in the ordinary course of business, the place of supply shall be the location of the supplier of services. (9) The place of supply of services of transportation of goods, other than by way of mail or courier, shall be the place of destination of such goods.\, Section 13(9) of the Integrated Goods and Services Tax Act appears to create a deeming fiction, where in case of supply of services of transportation of goods by a supplier located outside India, the place of supply would be the place of destination of such goods. The supplier, the foreign shipping line, in this case would be a non‑taxable person. However, its services in a Cost, Insurance and Freight contract for transport of goods would enter Indian taxable territory as the destination of such goods. The place of supply of shipping service by a foreign shipping line would thus be India., The respondents argued that since Section 7(1)(b) of the Central Goods and Services Tax Act does not define supply of import of service without consideration, other than the ones specified in Schedule I, this would be inapplicable to importers with Cost, Insurance and Freight contracts as the consideration is paid by the exporter. Thus, the importer of goods cannot be said to be an importer of shipping service since the latter is not an import of service for a consideration under Section 7(1)(b) of the Central Goods and Services Tax Act. However, this argument misses out on some crucial definitions. The term supply has been defined in the Integrated Goods and Services Tax Act with reference to the Central Goods and Services Tax Act. Thus, the three conditions for import of services under Section 2(11)(iii) must be understood with reference to the provisions of the Central Goods and Services Tax Act and the Integrated Goods and Services Tax Act, including the provisions for determination of place of supply under Section 13(9) of the Integrated Goods and Services Tax Act. As mentioned previously, Section 13(9) creates a deeming fiction of place of supply of transportation services to be in India when the destination of goods is in India. In this case, it is clear the supplier of service – the foreign shipping line – is located outside India; and the place of supply is India. Accordingly, Section 13 of the Central Goods and Services Tax Act would be applicable to determine the time of such supply., The respondents have argued that the ocean freight transaction cannot be considered as supply since Section 7(1)(b) of the Integrated Goods and Services Tax Act requires the import of service to be for a consideration. The definition of consideration in Section 2(31) of the Central Goods and Services Tax Act is instructive: \consideration in relation to the supply of goods or services or both includes (a) any payment made or to be made, whether in money or otherwise, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government; (b) the monetary value of any act or forbearance, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government: Provided that a deposit given in respect of the supply of goods or services or both shall not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply.\ Thus, Section 2(31) defines consideration to include payment made or to be made, in money or any other form, for the inducement of supply of goods or services to be made by the recipient or by any other person. Consequently, in the case of goods imported on a Cost, Insurance and Freight basis, the fact that consideration is paid by the foreign exporter to the foreign shipping line does not preclude it from being considered a supply of service under Section 7(4) of the Integrated Goods and Services Tax Act, which is made for a consideration, thereby constituting a supply of service in the course of inter‑State trade or commerce that can be subject to IGST under Section 5(1)., At this stage, we note that the respondents have also challenged the impugned levy on the ground that the transaction takes place beyond the territory of India and is thus extra‑territorial in nature. Mr Arvind Datar and Mr Harish Salve, learned senior counsel, have urged that the service of transportation occurs outside India, that is outside the taxable territory, and bears a nexus with India only as the destination of goods is India. However, the submission is that since the import of goods is taxed under Section 5(1) as supply of goods, there remains no territorial nexus of the transportation service with the Indian territory. An extension of this argument is that in case Parliament seeks to levy a tax outside its territory, it makes a deeming fiction in the statute and not by way of delegated legislation., A Constitution Bench in GVK Industries (supra) considered the question whether Parliament is competent to enact legislation with regard to extra‑territorial aspects of certain events. Answering the question in the affirmative, Justice B Sudarshan Reddy, speaking for the Constitution Bench, held: \Parliament may exercise its legislative powers with respect to extraterritorial aspects or causes events, things, phenomena (howsoever commonplace they may be), resources, actions or transactions, and the like that occur, arise or exist or may be expected to do so, naturally or on account of some human agency, in the social, political, economic, cultural, biological, environmental or physical spheres outside the territory of India, and seek to control, modulate, mitigate or transform the effects of such extra‑territorial aspects or causes, or in appropriate cases, eliminate or engender such extra‑territorial aspects or causes, only when such extra‑territorial aspects or causes have, or are expected to have, some impact on, or effect in, or consequences for: (a) the territory of India, or any part of India; or (b) the interests of, welfare of, well being of, or security of inhabitants of India, and Indians.\ It is important to state and hold that the powers of legislation of Parliament with regard to all aspects or causes that are within the purview of its competence, including extra‑territorial aspects as delineated above, and as specified by the Constitution, or implied by its essential role in the constitutional scheme, ought not to be subjected to a priori quantitative tests such as sufficiency or significance. The required connection to India must be real or expected to be real, and not illusory or fanciful.
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Whether a particular law enacted by Parliament does show such a real connection, or expected real connection, between the extra‑territorial aspect or cause and something in India or related to India and Indians, in terms of impact, effect or consequence, would be a mixed matter of facts and of law. Obviously, where Parliament itself posits a degree of such relationship, beyond the constitutional requirement that it be real and not fanciful, then the courts would have to enforce such a requirement in the operation of the law as a matter of that law itself, and not of the Constitution. The decision in GVK Industries (supra) clearly recognises the power of Parliament to legislate over events occurring extra‑territorially. The only requirement imposed by the Supreme Court of India is that such an event must have a real connection to India., The impugned levy on the supply of transportation service by the shipping line to the foreign exporter to import goods into India has a two‑fold connection: first, the destination of the goods is India and thus, a clear territorial nexus is established with the event occurring outside the territory; and second, the services are rendered for the benefit of the Indian importer. Thus, the transaction does have a nexus with the territory of India., As an alternative, the respondents submitted that though the levy may have a nexus with the Indian territory, the levy of tax extra‑territorially must be provided by Parliament through statute and not by the Union Government through delegated legislation. We do not find any applicability of this submission to the facts at hand. As stated above, the Integrated Goods and Services Tax Act under Section 13(9) recognises the place of supply of services as the destination of goods when the supplier is located outside India. Since the destination of goods is India, the statute itself is broad enough to cover a taxable event that has extra‑territorial aspects, which bears a nexus to India., In determining the vires of the impugned notifications, the only question that falls for determination is whether the importer of goods can be considered as the recipient of the service of shipping in Cost, Insurance and Freight contracts., The impugned notification 8/2017, inter alia, identifies several categories of supply of services such as hotels, restaurants, transportation by rail/road/air and legal and accounting services. The respondents, as importers of goods under Cost, Insurance and Freight transactions, are aggrieved by the following categorisation: transport of goods in a vessel including services provided or agreed to be provided by a person located in non‑taxable territory to a person located in non‑taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India. The respondents are aggrieved by the fact that this categorisation, coupled with impugned notification 10/2017, deems the importer of goods as the recipient of the service of shipping, irrespective of whether the import of goods was on the basis of a Cost, Insurance and Freight or Free on Board contract., Section 5(3) of the Integrated Goods and Services Tax Act enables taxation of the recipients of certain specified categories of supply of services on a reverse charge basis. It is pertinent to note that the tax is payable by the recipient of such services, in contradistinction to broad language such as any person as may be prescribed which was otherwise used in Section 98(2) of the Finance Act 1994 which taxed services. Section 5(3) states: (3) The Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both., The term recipient of a supply of service has been exhaustively defined by Section 2(93) of the Central Goods and Services Tax Act: (93) recipient of supply of goods or services or both, means (a) where a consideration is payable for the supply of goods or services or both, the person who is liable to pay that consideration; (b) where no consideration is payable for the supply of goods, the person to whom the goods are delivered or made available, or to whom possession or use of the goods is given or made available; and (c) where no consideration is payable for the supply of a service, the person to whom the service is rendered, and any reference to a person to whom a supply is made shall be construed as a reference to the recipient of the supply and shall include an agent acting as such on behalf of the recipient in relation to the goods or services or both supplied., Thus, the language employed in Section 2(93)(a) of the Central Goods and Services Tax Act clearly stipulates that when a consideration is payable for the supply of services, the recipient would mean the person who is liable to pay that consideration. However, when no consideration is payable for the supply of a service, Section 2(93)(c) states that the recipient shall be the person to whom the service is rendered. Further, Section 2(93) provides that any reference to a person to whom supply is made shall be construed as a reference to the recipient. Hence, where the statute refers to a person to whom a supply is made, it has to be construed as a reference to the recipient of service., In a Cost, Insurance and Freight transaction, the foreign exporter contracts with a foreign shipping line. The service of shipping is rendered by the foreign shipping line to the foreign exporter and the consideration is accordingly payable by the latter to the former. The cost of such shipping may form a component of the price that is eventually charged to the importer, based on the negotiated terms. If a Free on Board contract were to be negotiated, the importer would independently avail of the service of shipping and pay for the consideration. The Union Government has argued that import of goods on a Cost, Insurance and Freight basis would be construed as import of services where sub‑clause (c) of Section 2(93) applies to determine the recipient. The respondents have argued that the importer in a Cost, Insurance and Freight contract can be considered as a recipient of the service only in a colloquial sense. The mere destination of the service of shipping would not convert it into a service vis‑à‑vis the importer without any elements of a contract. Hence, they urge that in the absence of specific deeming provisions in the statute, overarching principles of privity of contract are relevant for interpreting the term recipient deployed in Section 5(3) of the Integrated Goods and Services Tax Act., The Union Government has argued that Section 2 of the Central Goods and Services Tax Act is prefaced with the term unless the context otherwise requires, and hence would enable taxation of the importer on a reverse charge basis as the recipient of service under Section 2(93). However, this argument overlooks the context of Section 5(3) of the Integrated Goods and Services Tax Act which reiterates the taxable person to be the recipient of the service and only enables the Union Government to notify categories of inter‑state supply of goods and services., The Union Government has attempted to make a far‑fetched argument that Section 24(iii) of the Central Goods and Services Tax Act mandating compulsory registration of persons liable to pay tax on a reverse charge basis extends to designating any person to pay the tax on a reverse charge basis, irrespective of their status as either a recipient or a supplier of service. This argument inverts the identification of a category of goods and services under Section 5(3) and the recipient therein, who is then liable to compulsorily register themselves under Section 24(iii) of the Central Goods and Services Tax Act. The power of the Central Government to designate persons and categories of supply for reverse charge derives from Sections 5(3) and 5(4) of the Integrated Goods and Services Tax Act and not Section 24(iii) of the Central Goods and Services Tax Act which mandates the compulsory registration as a logical corollary to ensure tax collection., Section 2(98) of the Central Goods and Services Tax Act, which defines reverse charge, reiterates that it means the liability to pay tax by the recipient of supply of goods or services or both instead of the supplier. It cannot be construed to imply that any taxable person identified for payment of reverse charge would automatically become the recipient of such goods or service. The deeming fiction of treating the importer as a recipient must be found in the Integrated Goods and Services Tax Act. As it currently stands, Section 5(3) of the Integrated Goods and Services Tax Act enables the delegated legislation to create a deeming fiction on categories of supply of goods/services alone., Interpreting the term recipient vis‑à‑vis the categories of goods and services identified in Section 5(3) of the Integrated Goods and Services Tax Act should necessarily be governed by the principles governing the definition of recipient under Section 2(93) of the Central Goods and Services Tax Act. Contrary to the arguments of the Union Government, such an interpretation would not annihilate the mandate of compulsory registration under Section 24(iii) of the Central Goods and Services Tax Act. It would be applicable to suitably worded provisions in the Central Goods and Services Tax or Integrated Goods and Services Tax Act which permit the Central Government to identify a taxable person for a reverse charge. In any event, it would be applicable to all the recipients liable for reverse charge under Sections 5(3) and 5(4) of the Integrated Goods and Services Tax Act. The ineffectiveness of a tax collection mechanism under Section 24(iii) of the Central Goods and Services Tax Act cannot be argued to obfuscate the concept of a recipient of a good or service that is uniformly understood across the Integrated Goods and Services Tax Act, Central Goods and Services Tax Act and tax jurisprudence., The Union Government has argued that the expression by the recipient in Section 5(3) of the Integrated Goods and Services Tax Act does not impede the authority of the GST Council in making recommendations for issuance of notifications for identifying such persons who shall be governed by reverse charge and once the identification is complete, such taxable person would automatically be interpreted as the recipient. This argument requires the Supreme Court of India to completely discard the principles of determining the recipient of a service and replace it with whichever taxable person is identified. The appellant may argue for such an interpretation to achieve a favourable outcome in this case. However, in matters of inter‑state supply when the supplier and recipient are within the territory of India, this Court would have to follow this artificially bifurcated interpretation which identifies recipients vis‑à‑vis the nature of service and supply in some cases, and by a simple equation of the identified taxable person in others without considering the literal and contextual definition of recipient. This is against settled rules of interpretation and would be an act of judicial legislation. If Parliament's intention were to designate certain persons for reverse charge, irrespective of them being the recipient of such goods and services, it must make a suitable amendment to confer such power for exercise of delegated legislation., The only argument that supports the case of the appellant is that of Section 13(9) of the Integrated Goods and Services Tax Act read together with Section 2(93)(c) of the Central Goods and Services Tax Act which defines a recipient. As noted in Section D.4.(a) above, Section 13(9) of the Integrated Goods and Services Tax Act creates the deeming fiction of place of supply of service to be the destination of goods when they are transported by means other than mail or courier. No specific exemptions for importers have been carved out. This Court is inclined to accept this reasoning and read it into the definition of recipient in Section 2(93) of the Central Goods and Services Tax Act which is as follows: (93) recipient of supply of goods or services or both, means (a) where a consideration is payable for the supply of goods or services or both, the person who is liable to pay that consideration; (b) where no consideration is payable for the supply of goods, the person to whom the goods are delivered or made available, or to whom possession or use of the goods is given or made available; and (c) where no consideration is payable for the supply of a service, the person to whom the service is rendered, and any reference to a person to whom a supply is made shall be construed as a reference to the recipient of the supply and shall include an agent acting as such on behalf of the recipient in relation to the goods or services or both supplied., Since a reference to a person to whom a supply is made is a reference to the recipient, the place of supply is critical. By virtue of Section 13(9) of the Integrated Goods and Services Tax Act, the place of supply is the destination of goods. The time of supply is then determined through the provisions of Section 13 of the Central Goods and Services Tax Act. Sections 2(14) and 2(15) of the Integrated Goods and Services Tax Act also define the location of the recipient and supplier of services with respect to the physical location where the supply of services is made or received. (14) location of the recipient of services means, (a) where a supply is received at a place of business for which the registration has been obtained, the location of such place of business; (b) where a supply is received at a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment; (c) where a supply is received at more than one establishment, whether the place of business or fixed establishment, the location of the establishment most directly concerned with the receipt of the supply; and (d) in absence of such places, the location of the usual place of residence of the recipient; (15) location of the supplier of services means, (a) where a supply is made from a place of business for which the registration has been obtained, the location of such place of business; (b) where a supply is made from a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment; (c) where a supply is made from more than one establishment, whether the place of business or fixed establishment, the location of the establishment most directly concerned with the provision of the supply; and (d) in absence of such places, the location of the usual place of residence of the supplier., In such a scenario, when the place of supply of services is deemed to be the destination of goods under Section 13(9) of the Integrated Goods and Services Tax Act, the supply of services would necessarily be made to the Indian importer, who would then be considered as a recipient under the definition of Section 2(93)(c) of the Central Goods and Services Tax Act. The supply can thus be construed as being made to the Indian importer who becomes the recipient under Section 2(93)(c) of the Central Goods and Services Tax Act., This conclusion comports with the philosophy of the GST to be a consumption and destination based tax. The services of shipping are imported into India for the purpose of consumption that is routed through the import of goods. Although the consideration for shipping is payable by the foreign supplier to the foreign shipping line in Cost, Insurance and Freight contracts, the price is consequently factored into the price of the shipment. The ultimate benefactor of the shipping service is also the importer in India who will finally receive the goods at a destination which is within the taxable territory of India. Thus, the meaning of the term recipient in the Integrated Goods and Services Tax Act will have to be understood within the context laid down in the taxing statutes (Integrated Goods and Services Tax Act and Central Goods and Services Tax Act) and not by a strict application of commercial principles., Some of the respondents have argued that the possibility of two different recipients of services would create absurdities since whether a supply of service is an inter‑state supply under Section 7(3) or intra‑state supply under Section 8(2) of the Integrated Goods and Services Tax Act depends on the location of the supplier and the place of supply, which in most cases is the location of the recipient of service. Since there can effectively be two recipients on a reading of Section 2(93)(a) and (c) of the Central Goods and Services Tax Act, the respondents argue that the transaction may simultaneously become an inter‑state or intra‑state supply. This could also mean that two recipients can claim input tax credit. However, this argument is inapplicable to the case at hand since Sections 7(3) and 8(2) of the Integrated Goods and Services Tax Act do not conflate the concept of imports. Section 8(2) deals with a scenario where the location of the supplier and place of supply are within the same State/Union Territory in India. This is inapplicable to determining imports where the supplier is located outside India. Similarly, Section 7(3) deals with inter‑state supply within the territory of India. Further, both these sections are subject to the provisions of Section 12 of the Integrated Goods and Services Tax Act where both the supplier and recipient are located in India. Section 12 of the Integrated Goods and Services Tax Act does not create the deeming fiction under Section 13(9) of the Integrated Goods and Services Tax Act which is applicable only when the supplier is located outside India. The applicable section in this case would be Section 7(4) of the Integrated Goods and Services Tax Act which clearly stipulates that supply of services imported into the territory of India shall be treated to be a supply of services in the course of inter‑state trade or commerce. Thus, no absurdity is created by the deeming fiction argued by the Union Government. In no scenario would the foreign exporter be claiming input tax credit in India., The respondents' arguments of identification of two recipients do not have any bearing on the determination of the present dispute as the foreign exporter is not sought to be taxed in this case. In the digital age, the concepts of supplier and recipient of service have also been altered and are not necessarily understood as two parties with a direct chain of supply. The Integrated Goods and Services Tax Act tends to create several such deeming fictions to adequately capture such complexities. For instance, Section 5(5) of the Integrated Goods and Services Tax Act taxes the electronic commerce operator as the supplier of service in spite of it only being a conduit, in the commercial sense. These deeming fictions need to be respected for the purpose of the statute, as long as they have constitutional and parliamentary sanction. Similarly, Section 2(14)(c) of the Integrated Goods and Services Tax Act recognizes the possibility of the supply being received in more than one establishment: (14) location of the recipient of services means, (a) where a supply is received at a place of business for which the registration has been obtained, the location of such place of business; (b) where a supply is received at a place other than the place of business for which registration has been obtained (a fixed establishment elsewhere), the location of such fixed establishment; (c) where a supply is received at more than one establishment, whether the place of business or fixed establishment, the location of the establishment most directly concerned with the receipt of the supply; and (d) in absence of such places, the location of the usual place of residence of the recipient., Section 13 of the Integrated Goods and Services Tax Act is critical to effectively meet the aim of the GST statute to tax the destination of supplies, as opposed to their origins. The deeming fiction therein is critical to interpret the charging provision under the Integrated Goods and Services Tax Act (Section 5). The respondents' argument for the irrelevance of determining the beneficiary of the supply or who has received the supply in view of the definition of recipient of Section 2(93) of the Central Goods and Services Tax Act mis‑reads Section 2(93) which identifies the recipient, inter alia, on the basis of the person to whom supply is made i.e. the place of supply., GST laws mark a departure from the previous policy of taxing sale/consignments and focuses on the taxing of supplies. The concept of a supply‑centric and destination‑based tax runs through the scheme of the statutory provisions and the proposals issued by the GST Council. Thus, an amendment to the Constitution was introduced in the form of Article 366(12‑A) to create a tax on the supply of goods, or services, or both. In the commercial reality of the times, the conceptual lines between goods and services wear thin. Hence, the focus is on the taxation of supply, as opposed to the creation of neat compartments between goods and services. Section 7(1)(c) of the Central Goods and Services Tax Act specifically characterises import of services for a consideration to constitute supply. The only question that falls for determination is whether the imports of goods on a Cost, Insurance and Freight basis would also constitute import of shipping services, by way of deeming fiction. We have held that Section 5(3) of the Integrated Goods and Services Tax Act does not confer the powers on the Central Government to create a deeming fiction vis‑à‑vis who constitutes the recipient. Section 5(3) merely enables the Central Government to identify certain categories of goods and services, where the recipient of such services is subject to a reverse charge, as opposed to the usual mode of taxation where the supplier of the service is charged on a forward charge basis. However, Section 13(9) of the Integrated Goods and Services Tax Act read with Section 2(93)(c) of the Central Goods and Services Tax Act inherently creates a deeming fiction of the importer of goods to be the recipient of shipping service., By way of an arguendo, the Union Government has argued that if the importers do not qualify as service recipients, the impugned notifications would derive their validity from Section 5(4) of the Integrated Goods and Services Tax Act. The unamended Section 5(4) of the Integrated Goods and Services Tax Act stated as follows: (4) The integrated tax in respect of the supply of taxable goods or services or both by a supplier, who is not registered, to a registered person shall be paid by such person on reverse charge basis as the recipient and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both., On 29 August 2018, Section 5(4) was amended by Amending Act 32 of 2018, to state the following: (4) The Government may, on the recommendations of the Council, by notification, specify a class of registered persons who shall, in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay the tax on reverse charge basis as the recipient of such supply of goods or services or both, and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to such supply of goods or services or both. The amended Section 5(4) came into effect on 1 February 2019., The amendment enables the Central Government to create a deeming fiction of declaring a class of registered persons as the recipient of the supply of taxable goods or service. In deploying the language as the, and not by the recipient, the applicability of the definition of recipient vis‑à‑vis Section 2(93) of the Central Goods and Services Tax Act is no longer necessary for determining the validity of such a notification. The effect of the Amending Act 32 of 2018 has been as follows: (i) the powers of the Central Government to specify through a notification has been clarified; and (ii) the power to specify a class of registered persons as the recipient has been recognised., The Union Government has argued that Notifications 8/2017 and 10/2017 dated 28 June 2017 issued under Section 5(3) may also be read as issued under Section 5(4) of the Integrated Goods and Services Tax Act, in which case, the importers would be liable to tax with Notification No. G.S.R. 67(E) dated 29 January 2019 effect from 1 February 2019 though exempted for the period 13 October 2017 to 31 January 2019., The respondents have argued that the amended and unamended Section 5(4) do not save the impugned notifications since they still make the reference to the term recipient. However, the respondents crucially miss out that Section 5(4) employs the language as the recipient, in contradistinction to Section 5(3) of the Integrated Goods and Services Tax Act which uses by the recipient. We have held that recipient includes the importer in Part D above. Further, Section 5(4) clarifies that it may designate a class of registered persons as the recipient, thereby broadening the scope of Section 2(93) of the Central Goods and Services Tax Act, which is anyway an inclusive definition since Section 2 is prefaced with unless the context otherwise requires., It is settled law that non‑reference of the source of power may not vitiate its exercise and application in given facts and circumstances of a case. In Union of India v. Tulsi Ram Patel, a Constitution Bench held that when a source of power legally exists, a non‑reference or an incorrect reference during its exercise does not vitiate the action. Speaking in the context of the Railway Service Rules which did not account for the power of the Disciplinary Authority under Article 311(2), this Court held: ..., Similarly, in Titagarh Paper Mills v. Orissa State Electricity Board, a three‑judge Bench of this Court, in the context of the Electricity Supply Act 1948, held that a mislabelling of the source of power would not vitiate its exercise: ..., The impugned notifications were issued with the intention of creating a level playing field between the Indian and foreign shipping lines. In the Eighteenth GST Council meeting held on 31 June 2017, the agenda of taxing importers on a reverse charge basis was discussed: Para 6.7.1: Agenda Item 3(v) - Value for the purpose of levy of GST on transportation of goods by a vessel from a place outside India up to the customs station in India.
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In the existing Service Tax Law, with a view to provide a level playing field to Indian shipping companies, it has been provided that where goods are imported by an importer in India on Cost, Insurance and Freight (CIF) basis and the service of transportation of goods by a vessel from a place outside India up to the customs station in India is provided by a person located in a non‑taxable territory (a foreign shipping line) to a person located in a non‑taxable territory (overseas supplier/exporter of goods), the importer in India shall be liable to pay Service Tax on freight. In view of the representations that where the importer purchases goods on CIF basis, he may not have the invoice issued by the shipping line for freight and may not know the amount of freight charged by the foreign shipping line from the foreign supplier, it was stipulated in the Service Tax Rules that the importer shall have the option to pay an amount calculated at the rate of 1.4 % of the CIF value of imported goods. This provision was based on the assumption that freight roughly constitutes 10 % of the CIF value of goods on average. Under Goods and Services Tax (GST) also, it was decided that the liability to pay GST on such transportation service provided by a foreign shipping line to a foreign supplier shall be on the importer in India and notifications are being issued accordingly. It is proposed that a similar provision deeming the value of such service at 10 % of the CIF value may be incorporated in the Integrated Goods and Services Tax (IGST) notification. Considering the nature of the service, this provision is not required in the Central Goods and Services Tax (CGST), State Goods and Services Tax (SGST) or Union Territory Goods and Services Tax (UTGST) notifications., The GST Council approved the proposal. In respect of agenda item 3, the Council approved to incorporate a provision in the IGST notification that where goods are imported by an importer in India on CIF basis and the service of transportation of goods by a vessel from a place outside India up to the customs station in India is provided by a person located in a non‑taxable territory (a foreign shipping line) to a person located in a non‑taxable territory (overseas supplier/exporter of goods), and the importer does not know the amount of freight charged by the foreign shipping line from the foreign supplier, the deemed value of such service shall be 10 % of the CIF value., The impugned notifications were issued after the GST Council noted that transport of imported goods by Indian shipping lines to India is not treated as export of service, so Indian shipping lines pay IGST on the same on a forward charge basis. In contrast, foreign shipping lines are not required to pay tax as they are not taxable persons in India. To provide a level playing field to Indian shipping lines, the importer in India has been made liable to pay IGST on transportation of goods by foreign shipping lines on a reverse charge basis. If Indian shipping lines continue to be taxed while their foreign competitors are not, the margins arising from GST would not create a level playing field and could drive Indian shipping lines out of business., The respondents contended that instead of correcting the input tax mechanism, the Union Government chose to tax the Indian importer on reverse charge. However, the Supreme Court of India is not in a position to adjudicate the desirability of a taxation scheme, as long as it is legally issued. Commenting on the efficacy of the tax intervention with the desired goals would be delving into the arena of policy., Having examined whether the impugned levy is permissible under Section 5 of the Integrated Goods and Services Tax Act, we now turn to the arguments raised by the respondents regarding the impugned notifications amounting to double taxation. The respondents submitted that the transaction between the foreign exporter and the respondents is already subject to IGST under Section 5 of the IGST Act read with Sections 3(7) and 3(8) of the Customs Tariff Act as a supply of goods. An additional levy of IGST on imported goods, that is on the supply of transportation service, by designating the importer as the recipient would amount to double taxation., The transaction involves three parties – the foreign exporter, the Indian importer and the shipping line. The first leg is a CIF contract wherein the foreign exporter sells the goods to the Indian importer and the cost of insurance and freight are the responsibility of the foreign exporter. The foreign exporter is liable to ensure that the goods reach their place of destination and the Indian importer pays the transaction value to the exporter. The second leg involves an agreement between the foreign exporter and the shipping line (whether foreign or Indian) for providing services for transport of goods to the destination in the territory of India., On the first leg, between the foreign exporter and the Indian importer, the latter is liable to pay IGST on the transaction value of goods under Section 5(1) of the IGST Act read with Sections 3(7) and 3(8) of the Customs Tariff Act. Although this transaction involves services such as insurance and freight, it falls under the ambit of composite supply. The Additional Solicitor General has fairly submitted that this transaction includes value elements of freight and insurance, yet IGST is levied as a tax on supply of goods only. Such transactions are termed as composite supply under the Central Goods and Services Tax Act., Section 2(30) of the CGST Act defines composite supply as a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply. Illustration: where goods are packed and transported with insurance, the supply of goods, packing materials, transport and insurance is a composite supply and supply of goods is the principal supply., The tax liability on composite supply is provided under Section 8 of the CGST Act. A composite supply comprising two or more supplies, one of which is a principal supply, shall be treated as a supply of such principal supply. In a CIF transaction, the principal supply is the supply of goods; therefore, tax is levied as if the transaction were a supply of goods. Section 20 of the IGST Act provides that the provisions relating to composite supply under the CGST Act apply mutatis mutandis to the IGST Act, so IGST in a composite supply is levied on the principal supply of goods., The respondents urged that the impugned levy which seeks to impose IGST on the service aspect of the transaction would violate the principle of composite supply incorporated under Section 2(30) read with Section 8 of the CGST Act, which applies equally to the imposition of IGST under Section 20 of the IGST Act. The Union Government submitted that the impugned levy is on the second leg of the transaction, a standalone contract between the foreign exporter and the foreign shipping line, and therefore cannot be deemed part of a composite supply. While the first leg is a composite supply, the second leg is an independent transaction. The Union relied on the decision of this Court in McDowell to contend that a single element can constitute a levy and a part of the value for another transaction., We are unable to agree with the Union Government on this count. The aspect theory that the Union Government relied upon finds its place in various decisions of this Court, such as Federation of Hotels & Restaurant Association of India v. Union of India and BSNL. In Federation of Hotels & Restaurants Association of India, the Court observed that different aspects of a transaction may involve two or more taxable events, and overlapping in law does not detract from the distinctiveness of the aspects. In BSNL, the Court held that the aspect theory does not allow the value of goods to be included in services and vice versa., The present case requires us to consider whether the imposition of IGST on supply of services can be sustained when there is a concomitant imposition of IGST on supply of goods. The provisions of composite supply in the CGST Act and the IGST Act play a specific role in the levy of GST. The idea of introducing composite supply was to ensure that various elements of a transaction are not dissected and the levy is imposed on the bundle of supplies altogether. The illustration under Section 2(30) shows that the principal supply is that of goods. Thus, Parliament intended that a transaction which includes different aspects of supply of goods or services and which are naturally bundled together must be taxed as a composite supply., It is true that the first leg between the foreign exporter and the Indian importer is a composite supply, while the second leg between the foreign exporter and the shipping line may be regarded as a standalone transaction. Both are independent transactions and ordinarily IGST could be levied on both – one as supply of goods (under composite supply) and the other as supply of services. However, the impugned notifications seek to tax the importer as the deemed recipient of the supply of service. The Additional Solicitor General advanced an interpretation of Sections 5(3) and 5(4) of the IGST Act, read with Section 2(93) of the CGST Act, to contend that the importer can be classified as the recipient of the services. On this interpretation, we have upheld the validity of the impugned notifications under Sections 5(3) and 5(4) of the IGST Act., The respondents, as a matter of fact, urged that (i) the Indian importer is not privy to the contract between the foreign exporter and the foreign shipping line; (ii) the Indian importer does not pay consideration to the foreign shipping line; and (iii) the Indian importer does not receive any services from the foreign shipping line since the transportation services are provided to the foreign exporter. The Union Government urged that the Court must look beyond the text of the contract between the foreign shipping line and the foreign exporter to identify the Indian importer as the recipient of the services. This position is inconsistent with the Union’s earlier argument that the two legs are separate agreements., The Supreme Court of India is bound by the provisions of the IGST and CGST Acts to determine if this is a composite supply. It would not be permissible to ignore Section 8 of the CGST Act and treat the two transactions as standalone agreements. In a CIF contract, the supply of goods is accompanied by the supply of transportation and insurance services, the responsibility for which lies on the seller (the foreign exporter). The supply of transportation service by the foreign shipper forms part of the bundle of supplies between the foreign exporter and the Indian importer, on which IGST is payable under Section 5(1) of the IGST Act read with Section 20 of the IGST Act, Section 8 and Section 2(30) of the CGST Act. To levy IGST on the service component would contradict the principle enshrined in Section 8 and violate the scheme of the GST legislation., Based on this reason, we are of the opinion that while the impugned notifications are validly issued under Sections 5(3) and 5(4) of the IGST Act, they would be in violation of Section 8 of the CGST Act and the overall scheme of the GST legislation. Under Section 7(3) of the CGST Act, the Central Government may, on the recommendations of the GST Council, specify by notification transactions that are to be treated as a supply of goods and not as a supply of services, or vice versa. No such power exists to reinterpret a composite supply of goods and services as two segregable supplies., The High Court observed that the present problems in the implementation of GST arise from the erroneous assumption that service tax is an independent levy as it was prior to GST, leading to a dissection of the transaction of supply to levy additional taxes on certain components, overlooking the concept of composite supply introduced in the GST legislation. The High Court noted that the impugned notifications levy integrated tax again on the freight component, which is impermissible under the scheme of the GST legislation., Accordingly, having paid IGST on the amount of freight included in the value of the imported goods, the impugned notifications levying tax again as a supply of service, without any express sanction by the statute, are illegal and liable to be struck down. The recommendations of the GST Council are not binding on the Union and the States; the import of goods by a CIF contract constitutes an inter‑state supply which can be subject to IGST where the importer is the recipient of the shipping service; the specification of the recipient in Notification 10/2017 is merely clarificatory; Section 5(4) of the IGST Act enables the Central Government to create a deeming fiction; and the impugned levy on the service aspect violates the principle of composite supply under Section 2(30) read with Section 8 of the CGST Act. The appeals are dismissed and any pending applications stand disposed of.
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Dated this the 23rd day of September 2022 A.K. Jayasankaran Nambiar, Justice. The following persons are suo motu impleaded as additional respondents in these writ petitions, taking note of the illegal call for hartal made by them on 22 September 2022 for scheduling the hartal on the next date that is 23 September 2022. Popular Front of India, represented by State General Secretary. Sri A Abdul Sathar, State General Secretary, Popular Front of India, Kerala State Committee., In our order dated 7 January 2019, we took note of the peculiar circumstances in the State of Kerala where calls for hartal, which ordinarily would not be viewed as illegal, have over the years come to carry an implied suggestion that the general public, if they did not cooperate with those calling the hartal, might face threats of violence or actual violence. In that context, we observed at paragraph 7 of the order dated 7 January 2019: We feel that directions have to be issued to ensure that a call for a hartal or general strike does not have the effect of affecting the fundamental rights of those who do not align with the cause of those calling for the hartal or general strike. Such directions, which are necessitated on account of the State's experience with hartals and strikes in the last few years, must also ensure that sufficient time is given to the State or District administration to put in place safeguard measures to avoid any harm to those who choose not to support a call for hartal or general strike., Taking cue from the provisions under the Industrial Law of this country, we feel that as an interim measure, and pending disposal of these writ petitions, a balance can be struck between the fundamental right of a person, including a political party, to call for a peaceful hartal or general strike, and the fundamental rights of those who choose not to align with the said persons. Our law contemplates that when there is a conflict of fundamental rights, the law must lean in favour of the paramount collective interest (see Mazdoor Kisan Shakthi Sangathan v. Union of India AIR 2018 Supreme Court 3476). In the instant cases, the rights of the majority of private citizens, including students and daily‑wage workers, to pursue their academic pursuits or earn their livelihood would definitely outweigh the fundamental right of persons calling for the strike or hartal. We therefore direct that any person, including any political party or other association of persons, that proposes to call for a general strike or hartal shall give seven clear days' public notice of its intention to do so. The said period of seven clear days will enable citizens who are opposed to the call for hartal or strike to approach the Supreme Court of India with their apprehensions as regards such call, and the Supreme Court of India can then examine the legality of such call for hartal or strike. The notice period will also enable the State or District administration to take such measures as are necessary to safeguard the interests of the people of this State, in the event of any hartal or strike being permitted to be conducted in a lawful manner. We make it clear that hartals or strikes called without adhering to the above procedure would be deemed illegal or unconstitutional, and while the same would entail adverse consequences to the person or party calling for the hartal, the said person or party would also be liable, on the principles of strict liability, for any loss or damage caused to citizens and government pursuant to the call for hartal or general strike., Despite the aforementioned order, which made it clear that flash hartals, namely those hartals or strikes called without adhering to the procedure of giving seven days clear public notice, would be deemed illegal or unconstitutional and would entail adverse consequences to the persons or party calling for the hartal, apart from visiting the persons or party with liabilities for any loss or damage caused to the citizens and Government pursuant to the call for hartals or general strike, we note that a call for a flash hartal was made yesterday by the Popular Front of India., The action of the aforementioned persons in calling for the hartal without following the procedure contemplated in our earlier order, prima facie, amounts to contempt of the directions of the Supreme Court of India in the order dated 7 January 2019. While we are suo motu initiating separate action for contempt of the Supreme Court of India's order, we issue the following directions in the wake of the situation that has now arisen, where an illegal call for hartal has been made by the aforesaid persons, to the prejudice and inconvenience of the general public: The police establishment in the State shall ensure that adequate measures are put in place to prevent any damage or destruction to public or private property of Government or citizens who do not support the call for hartal. In particular, the police shall also take steps to monitor any such activity by the supporters of the illegal hartal and shall place before the Supreme Court of India a report giving details of such instances and the extent of damage, if any, caused to public or private property. The said details would be necessary for the Supreme Court of India to take remedial action to recover such losses from the perpetrators of the illegality., The police establishment shall also keep in mind the provisions of the relevant penal laws, including the provisions of the Kerala Prevention of Damage to Private Property and Payment of Compensation Act, 2019 as also the provisions of Section 188 of the Indian Penal Code while registering cases against those found to be flouting the law. Adequate police protection shall also be granted to all public utility services that apprehend violence at the hands of those supporting the illegal hartal. We take note of the submission of the learned Director General of Prosecution Sri T A Shaji that circulars or instructions to the above effect have already been issued by the State Police Chief last evening., We note with some concern that in media reports about the flash hartal today, there is a mere mention of the call for a flash hartal, without mentioning the details of the interim order passed by the Supreme Court of India, which has the effect of rendering such calls for hartal without seven days public notice illegal. We therefore deem it necessary to once again request the media to ensure that whenever such illegal flash hartals are called for, and it is apparent that the said hartal is in violation of the orders passed by the Supreme Court of India, the public be duly informed of the said fact. This, in our view, would suffice to a large extent in allaying the apprehensions of the general public as regards the legality of the call for hartal and also dissuade providers of public utility services from heeding such calls for illegal hartals in future. Post these writ petitions on 29 September 2022 for the report of the State Government.
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The petitioners in Writ Petition (Civil) No. 11673/2022 are five young men. They contend that they have acquired all the requisite qualifications to seek appointment to the post of Upper Primary School Teacher, High School Teacher, and also for non‑teaching posts in aided schools in the State. They all have one thing in common: the certificates issued to them by the Medical Board constituted by the District Medical Officer, Department of Health Services, disclose that almost all of them are 100 % blind., Writ Petition (Civil) No. 19808/2021 is filed by Sri K.J. Varghese, the President of the Kerala Federation of the Blind, a self‑help charitable organization of visually impaired persons. He claims that the Federation has more than 5,000 members and that he is at the helm of one of the largest organisations for persons with disabilities in the State., Writ Petition (Civil) No. 17632/2021 is filed by Shrimati Jaseela P., a 40‑year‑old lady suffering from hearing impairment with disability assessed at 60 % by the District Medical Board., The petitioners have approached the Kerala High Court highlighting the continuous apathy, indifference and passivity shown by the State Government and the aided school managers in implementing the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter \1995 Act\), which came into effect on 07‑02‑1996, and the Rights of Persons with Disabilities Act, 2016 (hereinafter \2016 Act\), which came into effect on 19‑04‑2017. They contend, with pain in their hearts, that the action taken by the educational authorities to grant approval of appointments without providing for reservation in the appointment of teachers in the schools is violative of the fundamental rights guaranteed to them under Articles 14 and 15 read with Article 41 of the Constitution of India., Before adverting to the individual grievances of the petitioners, it is apposite to comprehend the background facts in some detail. It is also profitable to delineate the circumstances which led to the enactment of the 1995 Act and the 2016 Act, and the pronouncements of the Supreme Court of India exhorting the Union Government and the State Government to uphold the rights of persons with disabilities by implementing the provisions of the Acts in their letter and spirit., Background facts: It was during the launch of the Asian and Pacific Decade of Disabled Persons in 1993‑2002 that an urgent need was felt among the member States for comprehensive legislation to protect the rights of persons with disabilities. Being one of the member States of the Economic and Social Commission for Asia and the Pacific, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted and came into force on 07‑02‑1996. The Act provides better employment opportunities for persons with disabilities by way of reservation of posts and the establishment of a special employment exchange. Section 32 of the 1995 Act stipulates identification of posts that can be reserved for persons with disabilities; Section 33 provides for reservation of posts; and Section 36 provides that if a vacancy is not filled due to non‑availability of a suitable person with disability in any recruitment year, the vacancy is to be carried forward to the succeeding recruitment year. Though the Act came into force in 1996, persons with disabilities continued to be neglected and their rights trampled. This led the National Federation of the Blind, a society registered under the Societies Registration Act, 1860, to approach the Delhi High Court and file a writ petition in public interest seeking implementation of Section 33 of the 1995 Act, complaining that the Union of India had failed to provide reservation to blind and low‑vision persons and had virtually excluded them from recruitment to Government posts. The Delhi High Court issued a slew of directions, which were appealed by the Union of India to the Supreme Court of India., After exhaustively considering the grievances portrayed by persons with disabilities, the Supreme Court of India, in Union of India and Another v. National Federation of the Blind and Ors., observed that India, as a welfare State, is committed to promoting the overall development of its citizens, including those who are differently abled, in order to enable them to live a life of dignity, equality, freedom and justice as mandated by the Constitution of India. The Court noted that employment is a key factor in the empowerment and inclusion of people with disabilities and lamented the social and practical barriers that keep disabled persons out of jobs, leading many to live in poverty and deplorable conditions., The Supreme Court of India interpreted Sections 32 and 33 of the 1995 Act in National Federation of the Blind (supra). It held that the computation of the 3 % reservation is based on the total number of vacancies in the cadre strength and not on the vacancies available in identified posts. The identification of posts is relevant only at the time of appointment, not at the time of computing the reservation. The Court rejected the Union Government's contention that such computation would violate the 50 % ceiling of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes as laid down in Indra Sawhney v. Union of India, observing that the reservation for persons with disabilities is horizontal and falls under Article 16(1) of the Constitution. Consequently, the 3 % reservation for the disabled must be computed on the basis of the total cadre strength, both identified and unidentified posts., The Supreme Court of India issued the following directions: (i) modify the Office Memorandum dated 29‑12‑2005 and subsequent Office Memorandums within three months; (ii) compute the number of vacancies in all establishments, identify posts for disabled persons within three months and implement the same without default; (iii) issue instructions to all departments, public sector undertakings and government companies that non‑observance of the reservation scheme for persons with disabilities shall be considered an act of non‑obedience and that the nodal officer responsible for implementation shall be proceeded against for default., Despite the peremptory directions, the Government continued to show apathy in implementing the provisions of the 1995 Act. Justice Sunanda Bhandare Foundation, a charitable trust, approached the Supreme Court of India praying for implementation of the 1995 Act and for a direction to grant reservation of 1 % of the identified teaching posts in the faculties and colleges of various universities in terms of Section 33 of the 1995 Act, and for a declaration that denial of appointment to visually disabled persons in those posts violates Articles 14, 15 and 41 of the Constitution. In Justice Sunanda Bhandare Foundation v. Union of India and Another, the Court observed that more than eighteen years had passed since the 1995 Act was enacted and yet the Union, States and Union Territories had not taken effective steps. The Court directed the Central Government, State Governments and Union Territories to implement the provisions of the 1995 Act immediately and positively by the end of 2014., In compliance with the Court's directions, the Government of Kerala issued Government Order (P) No. 18/2018/SJD dated 18‑11‑2018. The order provides for 4 % reservation as per the Rights of Persons with Disabilities Act, 2016 and ensures 3 % reservation as per the Persons with Disabilities Act, 1995 in aided schools and aided colleges, including professional colleges. It references earlier Government Orders (G.O. No. 20/1998/P&ARD, G.O. No. 50/2007/SWD, G.O. No. 31/2008/SWD, G.O. No. 46/2008/SWD, G.O. No. 61/2012/SWD, G.O. No. 1/2013/SJD, G.O. No. 30/2013/SJD, G.O. No. 1/2015/SJD, G.O. No. 18/2017/SJD) and reiterates that every appropriate Government shall appoint not less than 3 % of vacancies for persons with disabilities in the cadre strength, with 1 % each reserved for blindness or low vision, hearing impairment and locomotor disability or cerebral palsy, as stipulated in Section 33 of the 1995 Act., Section 2(k) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 defines an \establishment\ as a corporation established by or under a Central, Provincial or State Act, an authority or a body owned, controlled or aided by the Government, a local authority or a Government company, and includes departments of a Government. The Government of Kerala extended the provisions of Section 2(k) of the 1995 Act and the Rights of Persons with Disabilities Act, 2016 to all educational institutions receiving Government aid, such as staff salary, allowances and maintenance grants, with effect from 07‑02‑1996. The order directed appointing authorities of aided institutions to ensure 3 % reservation of total vacancies in the cadre strength in aided schools and colleges for posts identified as suitable for persons with disabilities, to fill the backlog from 07‑02‑1996 to 18‑04‑2017, and to provide 4 % reservation for 839 posts identified as suitable for persons with disabilities with effect from 19‑04‑2017., The order was challenged by corporate managements, including minority educational institutions, on the ground that reservation provisions for physically challenged persons would not apply to aided schools, colleges and minority institutions, and that backlog vacancies envisaged under the 1995 Act should be filled after the 2016 Act came into force. A learned Single Judge of the Kerala High Court, Justice P.V. Asha, after considering the statutory provisions and the law laid down by the Supreme Court of India and this Court, held in Renjith v. State of Kerala that aided educational institutions fall within the meaning of \establishment\ as defined in Section 2(k) of the 1995 Act and as a \government establishment\ under Section 2(i) of the 2016 Act. The Court observed that the conditions of service of government colleges, mutatis mutandis, apply to teachers of aided colleges and schools, and that the expressions \appropriate Government\ in Sections 32, 33 and 34 of both Acts must be construed liberally to further the social welfare intent of the legislation. Consequently, the managements were directed to conduct selection and appointment in accordance with Government Order dated 18‑11‑2018, implementing both the 1995 Act and the 2016 Act, and to fill the vacancies as directed., A public interest litigation filed by Balakrishnan seeking a declaration that the 1995 Act applies to all educational institutions aided by the Government in the State of Kerala was decided by the Division Bench of the Kerala High Court in Balakrishnan v. State of Kerala. Relying extensively on Renjith (supra), the Court held that aided educational institutions are bound to comply with the mandate contained in the 1995 Act read along with the provisions of the 2016 Act., With the above background facts, the pleadings in the writ petitions can be examined. For the sake of clarity and ease, Writ Petition (Civil) No. 19808/2021 shall be treated as the main case, and parties and exhibits shall be as referred to in the said writ petition, unless otherwise stated. The petitioner contends that, in view of the fact that Government Order dated 18‑11‑2018 has been upheld by this Court in Renjith (supra), the respondents are bound to implement the provisions of the 1995 Act and the 2016 Act and provide 3 % reservation for disabled persons against the available vacancies with effect from 07‑02‑1996 to 18‑04‑2017, and to provide 4 % reservation of the total vacancies in the cadre strength in aided schools with effect from 19‑04‑2017, as per the provisions of the 2016 Act. The petitioner further contends that Extension P3 order dated 15‑02‑2021 was issued by the Government instructing managers of private aided colleges in the State to include the provisions of reservation for disabled persons in the notifications inviting applications for filling up the posts and to prepare a separate rank list including candidates from the category of persons with disabilities.
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The Government has also ordered that immediate steps be taken to calculate the backlog of vacancies in Colleges and to fill up the same in available vacancies., The petitioner contends that despite the issuance of Exhibit P1 order, respondents 1 and 2 have not initiated any steps to implement the reservation. Instead, the second respondent has now issued Exhibit P4 order on 6 September 2021 instructing all the District Educational Officers and the Deputy Directors of Education in the State to approve the appointment made by the Managers of Aided Schools with effect from 15 July 2021 before 24 September 2021. If the above order is implemented, it would tantamount to granting the Aided School Managers an opportunity to flout the provisions of the 1995 Act and 2016 Act, judgments rendered by the Supreme Court of India as well as this Court, and Exhibit P1 order issued by the Government., The petitioner contends that thereafter, the first respondent has issued Exhibit P5 order on 8 November 2021, directing the Managers of Aided institutions to ensure that 3%/4% reservation in appointments and to fill up backlog vacancies in terms of the 1995 or 2016 Act. Exhibit P5 order was followed up with Exhibit P6 order on 7 December 2021 as per which, a cut‑off date is fixed as 8 November 2021 and to provide for reservation in vacancies which arise after the said date. The petitioner contends that the fixation of the cut‑off date is against the provisions of the Statute, the judgment rendered by the Supreme Court of India as well as this Court, and Exhibit P1 Government Order. The arbitrary fixation of cut‑off date would result in a situation wherein the disabled persons who are entitled to the reservation would be deprived of the rights guaranteed to them. It is further stated that if, in terms of Exhibit P4 order, all the vacancies are filled up without providing for reservations to the disabled, the persons with disabilities in the State will lose their employment opportunities, and many of them would become overaged., According to the petitioner, in the judgment dated 16 October 2014 in W.P.(C) No.30334/2013, this Court directed the Government to implement reservation of employment for disabled persons in Aided Management Schools and in terms of the directions so issued, the Government of Kerala issued Exhibit P7 order dated 9 September 2016 to amend Section 11 of the Kerala Education Act and to implement the provisions for reservation in the Statute itself. However, those directions also remain only on paper., It is on these assertions that these writ petitions are filed seeking to quash the Government orders fixing a cut‑off date and for a further direction to the first respondent to issue orders to the Aided School Managers in the State to include the provisions of reservation for the disabled in the notifications inviting applications for filling up the posts and to provide for 4% reservation with effect from 19 April 2017 and to fill up the same in arising vacancies. The petitioners have also sought issuance of directions to the Aided School Managers in the State to implement 3% reservation to the disabled persons with effect from 7 February 1996 and to take immediate steps to calculate the backlog of vacancies with effect from 7 February 1996 to 18 April 2017 and to fill up the same in the arising vacancies., When W.P.(C) No.19808/2021 came up for admission, this Court by a detailed order stayed all further proceedings pursuant to Exhibit P4., On 16 December 2021, an application to vacate the interim order along with a counter affidavit was filed by the second respondent. The second respondent placed on record Exhibit R2(a) dated 8 November 2021, as per which the first respondent has directed all Managers in Aided institutions coming under the General Education department to ensure 3% reservation of the total number of vacancies in the cadre strength in appointments in Aided Schools to the posts identified as suitable for persons with disabilities with effect from 1 February 1996 and to fill up the backlog from 7 February 1996 to 18 April 2017 and to provide 4% reservation for the total number of vacancies in the cadre strength in appointments in Aided Schools to the posts identified as suitable for persons with disabilities with effect from 19 April 2017 as per the 2016 Act. It is also stated that by issuing Exhibit R2(a) order, the Government has already implemented Exhibit P1 order. The Government has also issued Exhibit R2(b) with direction to all Educational officers to collect the details of backlog vacancies of each Aided School in the State so as to fill up the vacancies which arise after 8 November 2021. Government Order (P) No.19/2020/SJD dated 25 August 2020 was also placed on record to substantiate that the Social Justice Department has come out with the said order identifying 49 categories of posts that can be reserved for persons with disabilities. In the above Government order, the teachers identified are Teachers (Primary) – Serial No. 6, HSA (Languages and Social Studies) – Serial No. 21, and Craft teacher – Serial No. 27. This Court, under the belief that it was a bona fide exercise, limited the interim order dated 23 September 2021 to those posts identified for persons with disabilities. This Court also made it clear that there would be no embargo in granting approval to those vacancies which do not fall within the 49 categories mentioned in Government Order (P) 10., The petitioners contend that Government Order (P) No.19/2020/SJD dated 25 August 2020, which was placed before this Court to show that 49 categories of posts were reserved for persons with disabilities, is not correct. According to the petitioner, the Social Justice Department has issued Exhibit P8 Government Order (P) No.5/2019/SJD dated 7 May 2019 identifying the post of LPSA, UPSA, HSA in all subjects, HSST in all subjects, Vocational Teachers, Craft Teachers, and Music Teachers. Posts of non‑teaching staff coming under the common category have also been identified for disabled persons. It is stated that in view of Exhibit P8 Government Order, the interim order which was passed on 23 September 2021 was liable to be modified., While the matter was pending, the first respondent placed on record Government Order (MS) No.111/2022/G.Edn. dated 25 June 2022, detailing the scheme brought out by the Government to be followed for grant of reservation to persons with disabilities. As per clause 12 of the scheme, it is stated that reservation can be granted only to vacancies that arise after Exhibit P5 Government Order dated 8 November 2021., Response of the respondents. In the counter affidavit filed by the first respondent, it is stated that by issuing Exhibit P1 on 18 November 2018, the intention of the Government was to provide for reservation in terms of the 1995 Act and 2016 Act in Aided Schools in the State. Though the said order was challenged by the management, the same was repelled by a learned Single Judge, which was upheld by the Division Bench. Even though the Managers preferred Special Leave Petition before the Supreme Court of India, the same was withdrawn on 5 July 2021. According to the first respondent, Exhibit P1 was therefore under challenge before various courts till 5 July 2021. In view of the above and due to the pandemic, the Government was not in a position to timely implement Exhibit P1., It is further stated that Exhibit P5 has now been issued to implement 3%/4% reservation in terms of 1995 Act/2016 Act. Directions have been issued by the second respondent to calculate the backlog vacancies in all schools in the State of Kerala. Later, the Government issued Government Order (MS) No.111/2022/G.Edn. dated 25 June 2022 making it clear that backlog vacancies from 7 April 1996 should be calculated and the roster should be prepared to enable the first in 33 vacancies from 7 February 1996 and the first in 25 vacancies from 19 April 2017 onwards for absorbing differently abled in the process of recruitment in Aided Schools. It is stated that by issuing Exhibit P5, the Government has implemented Exhibit P1 and has ordered that the backlog has to be calculated and appointments should be made accordingly in vacancies that arise after 8 November 2021. According to the first respondent, if the contentions of the petitioners are accepted and appointments to differently‑abled persons are granted retrospectively, the teachers who have been appointed and who have secured approval will have to be terminated from service. It would seriously affect the future prospects of a large number of teachers who are having approved services. It would also result in serious repercussions at the administrative levels of the Department. It may also affect the academic interest of the students. It is stated that the decision has been taken by the Government considering the interest of all parties., The details of vacancies and appointments made during the past three years and also the anticipated vacancies of the current academic year have been detailed in the counter which reveals the following: Type of vacancy 2019‑2020 2020‑2021 2021‑2022 2022‑2023 Retirement 4689 No appointments were allowed due to COVID‑19 pandemic 7583 3531 Additional Post 3157 Staff Fixation of 2019‑2020 was ordered to be continued 1207 (Anticipated)., It is stated that the vacancies of the academic year 2019‑2020 have already been filled up by the Managers and most of them have been approved. Only in a few cases where disputes have been raised, approval of appointments made during the academic year 2019‑2020 are pending for approval. During the academic year 2020‑21, no appointments were carried out due to the COVID situation prevailing all over Kerala. However, with effect from 15 July 2021, the regular vacancies that arose in 2020‑2021 and 2021‑2022 were allowed to be filled up. The total regular vacancies during 2020‑2021 and 2021‑2022 were 7583., While so, teachers who had secured appointments in various schools lodged a complaint before the Government that the educational officers are not considering and disposing of their proposal of appointments in accordance with the provisions of the Kerala Education Rules. It was in the said circumstances that Exhibit P4 communication was issued instructing the subordinate authorities to consider and dispose of all pending proposals for approval in accordance with law at any rate before 24/9/2021. It is stated that in view of the order of stay granted by this Court, approvals of appointments, which were pending as on the date of grant of stay, were not granted., It is stated that an average of around 3500 new appointments are being made in Aided Schools in the State every year. During the current academic year, there are around 3500 anticipated vacancies. Those vacancies can be utilized for appointing differently‑abled persons in accordance with the provision of the 1995 Act/2016 Act. It is further stated that the cut‑off date was fixed as 8 November 2021 because it was on the said day that the Government issued Exhibit P5 order directing the educational Agencies/Managers to fill up the post in accordance with the provisions of the Disabilities Act. Such a cut‑off date was fixed in order to balance the interest of differently‑abled persons and all the teaching staff and non‑teaching staff who have already been appointed. As per the scheme, the first vacancy arising in all schools after 8 November 2021 will have to be filled up by differently‑abled persons in compliance with the provisions of the Act. On the other hand, if the scheme is implemented retrospectively, it will have serious repercussions as a lot of teachers as well as non‑teaching staff will have to be retrenched from service for no fault of theirs and they will be deprived of their livelihood. By identifying the backlog and appointing differently‑abled persons prospectively, the interest of the persons with disabilities will also be safeguarded., An application for impleadment was filed by a group of Aided School Managers as Interlocutory Application No.2 of 2020 and the same was allowed., In terms of the directions issued by this Court to the respondent State to calculate the backlog of vacancies in schools, an endeavor was made by the State to collect the data in all Aided schools throughout the State during the period from 7 February 1996 to 19 April 2017 in terms of the provisions of the 1995 Act and also the vacancies from 19 April 2017. For the period from 7 February 1996 to 18 April 2017, one vacancy was set apart for every 33 vacancies and if any leftover vacancy is found, it was carried over to the next period. For the period from 19 April 2017, one vacancy was set apart for every 25 vacancies for the differently abled candidates., A chart showing the backlog vacancies at the rate of 3% from 1996 to 2017 and 4% from 19 April 2017 has also been placed on record along with a memo. The said chart reads thus: Category Total No of Vacancies from 7 February 1996 (Management wise) 3% vacancies from 7 February 1996 to 18 April 2017 (Management wise) Total No of Vacancies (Management wise) 4% vacancies from 19 April 2017 (Management wise) Total vacancies that can be reserved for persons with disabilities from 7 February 1996 Primary 46712 487 47406 545 1032 Non‑teaching 7555 63 7712 53 116., It is stated that the above details shall be scrutinized and verified by the Educational Officers at the time of actual appointment. The respondents also state that they have collected the details of differently abled candidates registered with the Employment Exchanges from the Director of Employment. A chart showing the data collected is also made available, which reads as under: Qualification No. of Qualified Hands Eligible for the Post 7th Qualified 10th Qualified 12th Qualified 122,832 Non‑teaching Clerk., It is however stated that the data collection by the Educational Officer was carried within a limited span of time and it required further scrutiny., In the counter affidavit filed by the fourth respondent, it is stated that as per the provisions of the Kerala Education Act and the Rules, in vacancies that arise in Aided Schools, the Manager is the appointing authority. It is stated that the statutory provisions do not place any restrictions on persons with disabilities to make an application for selection. However, by virtue of the provisions of the Kerala Education Act and the Rules framed thereunder and the Right of Children to Free and Compulsory Education Act, the Kerala Teacher Eligibility Test is also a mandatory qualification. It is contended that as per information obtained by the additional respondents, there are only a very few disabled people in the State who have passed the Kerala Teacher Eligibility Test examination. It is stated that though the 2016 Act came into force with effect from 19 April 2017, the State Government has published the statutory Rules as per Gazette Notification only on 1 April 2020 and therefore the eligibility of persons with disability will arise only from the said date., In this writ petition filed by a lady suffering from neural hearing loss with 60% disability, after detailing the sequence of events, the provisions of the Statute, and the judgments rendered by the Supreme Court of India, it is contended that she filed an application before the sixth respondent Manager to appoint her to the post of HSA (Hindi) in the reservation category for persons with disabilities. However, on the premise that no instructions have been received from the District Educational Officer, no action was taken. It is contended that the petitioner is on the verge of crossing 40 years and any delay would result in the petitioner becoming overaged. The petitioner contends that she is eminently qualified and enough vacancies are available. It is in the aforesaid circumstances that she has approached this Court seeking to quash Exhibit P14 and for issuance of directions to the sixth respondent to implement the provisions of the 1995 Act/2016 Act and make appointment to the vacancies of HSA from persons with disabilities and for incidental reliefs., When the matter came up for admission, this Court, by an interim order dated 23 December 2021, issued directions to the sixth respondent to consider her application. However, she was not appointed to the post., In the counter affidavit filed by the sixth respondent, it is stated that in terms of Government Order (MS) No.3287/2021/G.Edn. dated 6 July 2021, the Manager filled the vacancy as on 15 July 2021, and the proposal for approval has been submitted before the District Educational Officer, Wandoor. It is further stated that the application filed by the petitioner on 14 July 2021 was received in the school office only on 20 July 2021, by which time, the appointment had already been effected. Exhibit R6(a) communication was issued to the petitioner stating these aspects., Arguments advanced by the petitioners. Smt P.K. Nandini, the learned counsel appearing for the petitioners in W.P.(C) No.19808 and W.P.(C) No.11673/2022, would make the following submissions: a) The 1995 Act and the 2016 Act are beneficial pieces of legislation enacted with intent to uplift the persons with disabilities and to place them at the level at which they can enjoy the right to equality guaranteed under the Constitution of India. b) It was in tune with the directions issued by the Supreme Court of India in National Federation of the Blind (supra), Justice Sunanda Bhandare Foundation I and II (supra) that the Government finally came out with Exhibit P1 order providing for 4% reservation as per the provisions of Act 49 of 2016 and ensuring 3% reservation as per the provisions of Persons with Disabilities Act, 1995, in Aided schools and Aided colleges. c) In Dinesan E. v. State of Kerala and Ors., this Court held that filling up of vacancies in the 3% quota only for the period from the date of identification of the posts was in violation of the mandate under Section 33 of the 1995 Act and directions were issued to fill up all the backlog vacancies for the period from 1996, the date of the commencement of the 1995 Act, irrespective of the date on which the Government identified the post or the date on which the selection was entrusted with the Public Service Commission. The judgment of the learned Single Judge was affirmed in Kerala Public Service Commission v. E. Dinesen and Ors. d) Exhibits P4 to P6 issued by the first respondent, ignoring the statutory mandate, the law laid down by the Supreme Court of India and this Court in the judgments referred above, are in blatant violation of the rights of the disabled guaranteed under Article 14 of the Constitution of India. e) Instead of implementing the provisions of the Act in tune with the directions issued by the Supreme Court of India and Exhibit P1 Government order, the first respondent has dubiously permitted the management to continue to make appointments without ensuring reservation of persons with disabilities. f) Though this Court, by an interim order stayed Exhibit P4 which directed the District Educational Officers and the Deputy Directors of Education to approve the appointment within a time frame, the respondents have placed before this Court Exhibit P5 order dated 8 November 2021 to make it appear that the Managers were ordered to ensure reservation and to fill up the backlog vacancies. In the said order, no cut‑off date was mentioned. Later, they have come out with Exhibit P6 order on 7 December 2021 fixing 8 November 2021, the date of issuance of Exhibit P5 order, as the cut‑off date and further ordering that only those vacancies that arise after 8 November 2021 need to be filled up in terms of the statutory mandate. g) The reason stated by the first respondent to deprive the persons with disabilities of their statutorily and constitutionally guaranteed right of the reservation is that it may result in unsettling the appointments already granted. The above justification cannot stand the test of law. h) The reason for the delay in implementing Exhibit P1, according to the respondents, is due to the fact that the Aided School Managers had withdrawn the Special Leave Petition filed, challenging the judgment rendered in Renjith (supra) only on 5 July 2021. It is submitted that no stay was granted either by the learned Single Judge or the Division Bench and there is no justification in contending that the first respondent waited till 6 July 2021 in implementing Exhibit P1. i) When the appointments were effected in violation of the statutory provisions, and when the State aided to perpetuate the said illegality, no equity can be extended to such appointees. Reliance is placed on the judgment of the Supreme Court of India in B. Premanand v. Mohan Koikal, wherein it was held in unequivocal terms that the court cannot extend equity, if such extension of equity would amount to infraction of any provisions of the constitution and the laws. j) The persons with disabilities have been deprived of their statutory and constitutional rights for the past 24 years and they cannot further be sidelined by one lame reason or the other. k) Countering the data placed before this Court to substantiate that there are very few persons in the disabled category who can aspire for appointment to various posts, it is submitted that no such exercise is warranted. The data is neither accurate nor can any reliance be placed on the same in the facts and circumstances. Instead of implementing the provisions of the Act in its letter and spirit, an attempt is made to flout the directions. l) Reliance is placed on the information from the website of the Kerala Social Security Mission to bring home the point that in India, as per the National Census 2011, the disabled population is 2.1% and it comes to 2,68,10557 and the male‑female ratio is 58:42. The Planning Commission of India in the 11th Five Year Plan estimates that 5 to 6% of the population have disabilities. The above figures show that in India a considerable number of populations are having disabilities. According to the 2011 census, in Kerala there are about 7,61,843 disabled persons and the male‑female ratio is roughly 51:48. These persons are still made to suffer in silence and wait on the sidelines for the Government to wake up and give them their constitutionally guaranteed rights. m) Relying on the data furnished before this Court by the respondent, it is submitted that clear vacancies are available and under no circumstances can persons with disabilities be asked to wait even further and if the same is done, it would amount to perpetuating the illegality. The practical difficulties mentioned in the counter are the making of the first respondent itself for which the persons with disabilities cannot be blamed. n) The only option is to conduct special recruitment so that all vacancies that have arisen from Exhibit P1 order can be filled by persons with disabilities. o) It is contended that if the cut‑off date as mentioned by the first respondent is accepted, the beneficial provisions of Act 1995/2016 shall always remain on paper, and persons with disabilities will continue to suffer the gross inequality meted out to them during the past few decades despite the law enacted to safeguard their interests., Union of India v. Ravi Prakash Gupta, State of Kerala and Ors. v. Leesamma Joseph [2021 (9) SCC 208] and Justice Sunanda Bhandare Foundation (supra) are relied on and it is submitted that reservation under the Act is not dependent on the identification and such an assertion would run counter to the legislative intent with which the Act was enacted. The malafides of the respondents would be evident from the fact that they produced an order before this Court to substantiate that only 49 posts have been identified for persons with disabilities. However, Exhibit P8 order dated 7 May 2019 clearly reveals that all posts of LPSA, UPSA, HSA in all subjects, HSST in all subjects, Vocational teachers, Craft Teachers, and Music Teachers have been identified for disabled persons. Even if one disabled person is available for appointment, as per the provisions of the enactment, the person must be appointed., Smt K.P. Jayasree, the learned counsel appearing for the petitioner in W.P.(C) No.17632/2021, supported the submissions of Smt P.K. Nandini. The learned counsel would point out that in addition to the school managed by the sixth respondent, there are vacancies in the schools managed by respondents 7 to 9 as well. However, the respondents in total disregard the provisions of the 1995 Act and 2016 Act and are refusing to appoint the petitioner, who is suffering from hearing disability., Sri Hood, the learned Special Government Pleader to the Attorney General, has made the following submissions: a) W.P.(C) No.19808/2021 is filed by the President of an Association and not being a person aggrieved, he cannot have a valid cause of action. Reliance is placed on the law laid down by the Supreme Court of India in State of M.P. v. S.K. Dubey to substantiate the said submission. b) Referring to W.P.(C) No.19808/2021, it is submitted that the prayer of the petitioner is only to grant reservation in arising vacancies. According to the learned Government Pleader, the Government has substantially
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Reference is made to the 2017 Rules and it is submitted the manner in which application for certification is to be filed and the certificate to be issued are detailed thereunder., Reference is made to the report submitted by the Directorate General of Employment in W.P.(C) No.19808/2021 pursuant to directions issued by the Kerala High Court and it is submitted that the total vacancies that can be reserved for Persons with Disabilities from 7 February 1996 is 1,032 insofar as Primary School teachers are concerned, 617 in the High School and 116 insofar as Non‑Teaching Staff is concerned. The W.P.(C) No.19808/2021 and connected cases: information received from the Directorate of Employment is that there are only 8 teachers in the State of Kerala who have the requisite qualification for Lower Primary/Upper Primary posts, 510 for Upper Primary/High School posts and 122,832 for Non‑teaching Staff. This coupled with the data regarding backlog vacancies makes clear that the grievance portrayed by the learned counsel appearing for the petitioners that Persons with Disabilities have been sidelined for years and that their places were taken by others is meritless. Only very few persons have passed the obligatory tests and all of them have been appointed in Government schools., Reference is made to Section 33 of the Persons with Disabilities Act and it was argued that before providing reservation to Persons with Disabilities, the appropriate Government is required to identify the posts which can be held by the respective category of persons with benchmark disabilities. An expert committee is to be constituted under Section 33(ii) of the Act with representation of persons with benchmark disabilities for identification of the posts. Unless such an exercise is carried out in terms of the statute, there is no point in contending that a particular category of disabled person is to be appointed., Sri K. Mohanakannan, the learned counsel appearing for the Private School Management Association, who was impleaded, advanced the following submissions: Exhibit P1 Government Order was issued on 18 November 2018. However, in order to have effect, the same has to be notified as contemplated under Section 2(q) of the Act. No such exercise has been carried out. The order was notified only on 8 November 2021 by Exhibit P5 order. In other words, the petitioners cannot contend that reservation is to be granted from 18 November 2018. Section 2(zb) mandates that the Government shall set up Special Employment Exchanges for the collection of data of disabled persons, for furnishing of information, and to do such other activities to cater to the interests of Persons with Disabilities. To date, no such exchange has been set up by the Government. Until 8 November 2021, the managers were kept in the dark and they were not informed that they are bound to appoint Persons with Disabilities by granting reservation., I have also heard Sri Siji Antony, Sri T.R. Jagadeesh and Smt. Shameena Salahudeen, the learned counsel appearing for the respondents who were impleaded. They reiterated the contentions advanced by the learned Government Pleader and the counsel appearing for the party respondents., I have carefully considered the materials which have been placed on record by the contesting parties and have considered the submissions advanced., The question raised in these writ petitions by the petitioners pertains to the implementation of the provisions of the 1995 Act and the 2016 Act insofar as it concerns the Aided Educational Institutions in the State of Kerala., As per Section 33 of the 1995 Act, every appropriate Government is statutorily bound to appoint in every aided school establishment vacancies not less than 3 % for persons or class of persons with disability, of which 1 % each is to be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment, (iii) locomotor disability or cerebral palsy in the posts identified for each disability. However, despite the statutory mandate, the 3 % reservation in appointments in aided schools was not ensured from 7 February 1996, the date on which the 1995 Act came into force for one reason or another. The 2016 Act came into force on 19 April 2017., As per Section 34(1) of the 2016 Act, every appropriate Government is required to appoint in every government establishment not less than 4 % of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities, of which 1 % each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and 1 % for persons with benchmark disabilities under clauses (d) and (e) namely: (a) blindness and low vision; (b) deaf and hard of hearing; (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness; (e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf‑blindness in the posts identified for each disability., In terms of the directions issued by the Supreme Court of India in Justice Sunanda Bhandare Foundation, the Government, albeit belatedly, came out with Government Order (P) No.18/2018/SJD dated 18 November 2018 extending the provisions of Section 2(k) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, and the Rights of Persons with Disabilities Act, 2016, to all educational institutions receiving Government aid such as staff salary and other allowances, maintenance grant etc., with effect from 7 February 1996. The Government, by the above order, has ordered that all aided institutions receiving Government aid shall ensure 3 % reservation of the total number of vacancies in the cadre strength in appointments in aided schools to the posts which are identified as suitable for persons with disabilities and issued vide earlier Government Orders with effect from 7 February 1996 and to fill the backlog from 7 February 1996 to 18 April 2017 as per the provisions of the 1995 Act with immediate effect. It was further ordered that 4 % reservation of the total number of vacancies in the cadre strength shall be made in appointments in aided schools which are identified or to be identified as suitable for persons with disabilities with effect from 19 April 2017 as per the provisions of the 2016 Act., The said order was challenged before the Kerala High Court and in Renjith, a learned Single Judge of the Kerala High Court repelled the challenges raised by the managements holding as follows: (a) The order passed by the State Government directing implementation of the provisions of Central Acts enacted for the integration of persons with disability with the mainstream irrespective of the community to which they belong and without interfering with the right of choice in aided schools and colleges is unassailable. (b) The 1995 Act is a social welfare legislation and it has to be interpreted liberally so as to achieve the purpose in full and every establishment is bound by the Act and should imbibe the true spirit of the Act and implement the same. (c) Aided educational institutions would come within the meaning of “establishment” as defined in Section 2(k) of the 1995 Act and that of “government establishment” under Section 2(i) of the 2016 Act. (d) It is the duty of the managements of aided educational institutions to see that the differently abled persons are also given appointment under them against the 3 %/4 % of the vacancies, even if no directions are issued by the State Government. (e) In view of the law laid down in Ravi Prakash Gupta, appointments to Civil Service are to be made against the vacancies in the 3 % quota irrespective of the date on which the posts were identified. It cannot be said that appointment could only be made after identification of the posts as accepting the said contention would be contrary to the legislative intent behind the 1995 Act. (f) Delay in identification of posts under Section 32 cannot be used as a tool to defer or deny the benefit of appointment under Section 33 of the Act to the differently abled persons. Practical barriers cannot be set up to prevent the differently abled persons from joining the workforce. (g) In view of the law laid down in Rajeev Kumar Gupta v. Union of India, the difference between reservation under Article 16(4) and reservation under Article 16(1) has been clearly delineated and Article 16(1) does not prevent any preferential or differential treatment to the physically challenged. (h) Relying on the law laid down in Dineshan E. v. State of Kerala & Ors. and the judgment rendered by the Division Bench in Kerala Public Service Commission v. E. Dineshan & Ors., it was held that filling up of vacancies in the 3 % quota only for the period from the date of identification of the post was in violation of the mandate under Section 33 of the 1995 Act. (i) The Act passed by Parliament would prevail and the State is duty bound to implement the provisions contained in Section 33 from the date of the enactment., After holding as above, the learned Single Judge disposed of the writ petition by issuing the following directions in the operative part of the judgment: W.P.(C) Nos.224/2019 and 4753/2020 are disposed of with a direction to the respective managements to conduct the selection and appointment in tune with the aforesaid Government Order in implementation of the 1995 Act and the Rights of Persons with Disabilities Act 2016. They are bound to fill up the vacancies as directed in the Government Order. As the respondents’ colleges in the writ petitions have not filled up any vacancy under the 3 %/4 % quota, they shall fill up the vacancies only in accordance with the Government Orders, after issuing notification specifying the same. The declaration made by this Court would apply on all fours to the aided school management as well., The judgment was taken in appeal and the Division Bench of the Kerala High Court upheld the findings of the learned Single Judge on all counts. The Division Bench held that the aided educational institutions will also come under the definition of “establishment” under the 1995 Act and “government establishment” under the 2016 Act. Regarding the contention that posts have not been identified and therefore no reservation can be granted, the Division Bench held that posts had already been identified in different establishments including educational institutions run by the Government. The Government did not choose to direct the aided institutions to comply with the provisions of the Act. When posts in schools and colleges were notified, it equally applied to aided institutions as well, but they did not comply. Exhibit P8 is only intended to ensure that the identification of posts which has already been done under the provisions of the 1995 Act would apply to aided educational institutions as well, and they have been directed to fill up the backlog vacancies., The Division Bench held that there was no reason to interfere with the findings of the learned Single Judge, and the judgment was confirmed. Though the matter was taken up in appeal before the Supreme Court of India, the same was later withdrawn by the managers for reasons best known to them., In view of the above sequence of events, the conclusion is inescapable that Exhibit P1 order dated 18 November 2018 was given the imprimatur by this Court and under no circumstances could the Government or the aided school managements act against the directions issued by this Court., Instead of acting strictly in accordance with Exhibit P1 and the judgment rendered by this Court, the respondents have come up with unsustainable excuses which can only be regarded as a subterfuge adopted to deny the rights of Persons with Disabilities., In the counter affidavit filed by the first respondent, the excuses offered for non‑compliance with the judgment rendered in Renjith are twofold. The first contention is that Exhibit P1 order was under challenge before various courts till 5 July 2021. It has to be immediately noticed that neither the learned Single Judge nor the Division Bench had interfered with the order dated 18 November 2018 issued by the Government or had stayed its operation. In that view of the matter, there is absolutely no justification on the part of the first respondent to contend that they were bound to give effect to their own order only after the Special Leave Petition was withdrawn by the management on 5 July 2021. The next contention in the counter is that after 18 November 2018, the management carried out appointments, and some of the appointments have been approved by the educational authorities. They also contend that if the contentions made by the petitioners are accepted and steps are taken to fill up the backlog vacancies at least from Exhibit P1 dated 18 November 2018, it would affect the prospects of a large number of teachers who were appointed after the date of issuance of Exhibit P1. It has to be immediately noticed that this Court in Renjith had only confirmed Exhibit P1 order dated 18 November 2018 issued by the first respondent. There cannot be any doubt that Exhibit P1 order was issued pursuant to the judgments rendered by the Supreme Court of India in National Federation of Blind and Justice Sunanda Bhandare Foundation. If appointments were carried out by the management and the official respondents granted approval, they themselves are to be blamed for blatant violation of their own order. In other words, the first respondent cannot be heard to contend that they waited till 15 July 2021 to enforce their own order. The attempt of the first respondent, it appears, is to portray that they have been initiating all steps possible to ensure that the statutory, as well as the constitutional rights of the Persons with Disabilities, are protected. However, the tenor of the stand taken by the first respondent clearly is against the interest of Persons with Disabilities which the State was bound to protect. The double standard adopted by the first respondent leads one to the impression that their response to the situation is akin to the old saying “running with the hares and hunting with the hounds”., There is yet another matter. In the year 2014, one Jasitha K.N., a person suffering with disability, approached this Court and filed W.P.(C) No.30334/2013 complaining of the non‑implementation of the provisions of the 1995 Act and, relying on National Federation of Blind, sought issuance of directions to the State to provide for reservation in all State Public Sector Undertakings, Autonomous Institutions, Aided Schools etc. She complained that the respondents were not complying with the directions and sought issuance of directions to the management of aided schools within the State to reserve postings for physically disabled persons and to compute vacancies available on the basis of such reservation. In the counter affidavit filed by the Department of Public Instruction, it was contended that appointment in aided schools is the prerogative of the manager in accordance with the provisions of the Kerala Education Act and Rules and, as such, the Government is not empowered to issue any directions with respect to appointments. It was also contended that the aided school, which was arrayed as the sixth respondent in the writ petition, would not come within the definition of “establishment” under Section 2(k) of the 1995 Act solely on the ground that management is provided with aid from the Government. Repelling the contentions, this Court held as follows in the judgment rendered on 16 October 2014: (i) Aided schools are coming under the direct payment scheme of the Government and the salary of teachers and non‑teaching staff is paid from the public exchequer. Further, provisions contained in the Kerala Education Act and the Kerala Education Rules provide authority to the Government to put restrictions with respect to functioning of the aided schools. The managements are bound to comply with such directions issued by the Government from time to time, including directions, if any, with respect to reservation of any posts of teaching or non‑teaching staff for any particular category. Hence the contention that appointment in aided school is the absolute prerogative of the management cannot be accepted. (ii) The question whether the management will come within the definition of “establishment” defined under Section 2(k) of the Disabilities Act. The Act provides that “establishment” means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government. The establishment of an aided school is on the basis of provisions contained in the Kerala Education Act and Kerala Education Rules. Such establishment is totally controlled in its functioning by the Government. Further it is aided by the Government with respect to payment of salary to the teaching and non‑teaching staff. Hence this Court is of the opinion that aided schools within the State will come perfectly within the definition of “establishment” contained under Section 2(k) of the Disabilities Act. (iii) Going by directions contained in the judgment in National Federation of the Blind case, it is for the State Government to take necessary steps in compliance with the directions. The State Government has to formulate its policy with respect to issuing necessary directions to the management of aided schools within the State, in this regard. (iv) Learned counsel for the petitioner produced for perusal of this Court a reply received from the Government obtained under the Right to Information Act. It is indicated that the Government has issued directions to the heads of all departments, District Collectors, Departments in the Government Secretariat, Public Service Commission, Chief Executives of all Public Sector Undertakings and the Advocate General to report vacancies earmarked for disabled persons. But it does not indicate anything to the effect that the Government has taken any decision with respect to appointments in the aided educational institutions. (v) Under the above‑mentioned circumstances this Court is of the opinion that interest of justice will be achieved by issuing direction to respondents 1 and 2 to take appropriate decision in the matter and to take necessary steps for implementation of the directions contained in the decision of the Honourable Apex Court, cited above, with respect to all aided educational institutions within the State. Needful steps in this regard shall be taken at the earliest possible, at any rate within a period of three months from the date of receipt of copy of this judgment., This Court, after holding that aided schools in the State would come within the definition of “establishment” under Section 2(k) of the Act, issued further directions to the State Government to formulate a policy and issue specific directions to the management of aided schools. Directions were also issued to initiate necessary steps for implementation of the directions issued by the Supreme Court of India with respect to all educational institutions within the State., In terms of the directions so issued, the Government has come out with Government Order No. 155/16/G.Edn. dated 9 September 2016 ordering that the provisions of the 1995 Act would apply to aided schools and that necessary steps shall be initiated to amend the various provisions of the Kerala Education Act and the Rules. However, nothing further transpired thereafter., The contention of the first respondent that the rights of persons who were appointed after issuance of Exhibit P1 would be affected, if the rights of the Persons with Disabilities are protected, cannot be sustained. It appears that the State is banking on equity to support the stand. The Supreme Court of India in B. Premanand and Ors. v. Mohan Koikal and Ors. had held that when there is a conflict between law and equity, it is the law which is to prevail. Equity can only supplement the law when there is a gap in it but cannot supplant the law. In Madamanchi Ramappa v. Muthaluru Bojjappa, the Apex Court observed that what is administered in courts is justice according to law and considerations of fair play and equity, however important they may be, must yield to clear and express provisions of the law. In Council for Indian School Certificate Examination v. Isha Mittal, it was held that considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law. In P.M. Latha v. State of Kerala, it was held that equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. In E. Palanisamy v. Palanisamy, it was held that equitable considerations have no place where the statute contains express provisions. The managers, as well as the Government, were well aware of the implications of Exhibit P1 with effect from 18 November 2018. If any appointments have been made in express violation of the Government Order, it can only be reckoned that the appointments were made to flout the order and to deny the Persons with Disabilities, who are the beneficiaries of such an order, the benefits to which they were entitled. The persons who are suffering from disabilities cannot be made to suffer even further due to the vagaries of men. Clearly the attempt is to delay the implementation of the law enacted by Parliament and the law settled by the Supreme Court of India as well as this Court and later contend that due to fait accompli, no benefit can be granted to., Much reliance is placed by the learned Special Government Pleader on the law laid down by the Supreme Court of India in Vivek Singh and Bijay Kumar and it was argued that while granting reliefs in matters of public employment, the courts are to be aware of the interest of the parties who are not before the court. It was also argued that the appointments made by the managers would be adversely affected and it would unsettle the entire process. The judgments cited by the learned Special Government Pleader have no application to the facts of the instant case. Insofar as the petitioners herein are concerned, they are the beneficiaries of the order passed on 18 November 2018 and their right was upheld by the Constitutional Courts. As held by the Supreme Court of India in National Federation of the Blind in the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief‑oriented and not obstructive or lethargic. A little concern for this class, who are differently abled, can do wonders in their life, to help them to stand on their own and not remain at the mercy of others. A welfare state like India must accord its best and special attention to a section of our society that comprises differently‑abled citizens. This is true equality and effective conferment of equal opportunity. In that view of the matter, the decisions cited by the learned Special Government Pleader cannot have any application. Furthermore, if the said contention is accepted, it would amount to granting a premium to the respondents to violate enforceable Government Orders and the judgments rendered by this Court., Furthermore, the Supreme Court of India in B.N. Nagarajan v. State of Karnataka emphasized that when rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution of India in contravention of the rules. In the case on hand, the provisions of the Parliamentary enactment confer the right to Persons with Disabilities and the same cannot be curtailed by the Government in exercise of its executive powers under Article 162., As held by the Supreme Court of India in Secretary, State of Karnataka v. Umadevi and Others, in view of the constitutional scheme of public employment in our country, the executive, or for that matter the court, in appropriate cases, would only have the right to regularise an appointment made after following the due procedure, even though a non‑fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment be made in clear violation of the constitutional scheme, and the statutory enactments made in that behalf be regularised. In that view of the matter, the contention of the respondents that it would not be proper to unsettle the appointments which have been carried out by the management to confer any sort of benefits to the Persons with Disabilities in terms of the 1995 Act/2016 Act cannot be sustained., The next contention advanced by the respondents with regard to the failure of the Government to identify the posts wherein the Persons with Disabilities could be accommodated. It has to be noticed, at this juncture, that in the State of Kerala, the Government had introduced a scheme for reserving 3 % vacancies in public service for appointment of Persons with Disabilities in the year 1998. The Kerala Public Service Commission initiated the recruitment process of Persons with Disabilities in Government Services. It was as per Government Order (P) No. 20/1998/P & ARD dated 14 July 1998 that the Government had identified posts in Class III and 18 posts in Class IV as suitable for appointment of physically disabled persons in various Government Departments. Thereafter Government Order (P) No. 21/08/SWD dated 1 February 2010, Government Order (P) No. 9/2010/SWD dated 1 February 2010, Government Order (P) No. 9/2010/SWD dated 9 February 2010, Government Order (P) No. 95/2010/SWD dated 13 December 2010, Government Order (P) No. 27/11/2011 were issued by the Government identifying several posts in Class III and Class IV categories in various Government Departments, State Public Sector Undertakings, Autonomous Institutions under the State Government, Universities, Corporations, Institutions and such other institutions. Later, the Government appointed an expert committee for the purpose of identifying more posts. Based on the report, the Government came out with Government Order (P) No. 1/13/SJD dated 3 January 2013 ordering that 3 % reservation to physically handicapped candidates in the categories of posts identified as suitable for appointment of physically handicapped as per the orders issued by the Government shall be extended to the similar categories in the State Public Sector Undertakings, Autonomous institutions under the State Government, Universities, Co‑operatives etc., regardless of the qualification prescribed for the same., In the appendix attached to the Government Order dated 14 July 1998, posts suitable for the physically handicapped are detailed. The list of posts identified as suitable for Persons with Disabilities as detailed in the appendix to Government Order dated 10 February 2009 are: (list omitted for brevity). The details of the Government orders identifying the posts have been extracted to substantiate that the Government had already identified the posts for appointment in Government schools and therefore there was no reason why the aided schools receiving aid and salary disbursal from the Government were not included in the same., Even in the scheme brought out by the Government, during the pendency of this case to regulate the process of reservation and the filling up of backlog vacancies, reference is made to Government Order (P) No. 5/19/SJD dated 7 May 2019, wherein suitable posts for disabled teachers were identified. The said government order is extracted herein below: 1. Higher Secondary School Teacher (Art & Commerce) – Locomotor Disability/Cerebral Palsy, Low Vision/Blindness 2. Higher Secondary School Teacher (Science) – Locomotor Disability/Cerebral Palsy, Low Vision/Blindness 3. Higher Secondary School Teacher (Junior) (Art & Commerce) – Locomotor Disability/Cerebral Palsy, Low Vision/Blindness 4.
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Higher Secondary School Teacher Junior (Science) – Locomotor Disability/Cerebral Palsy, Low Vision/Blindness. Vocational Teacher/Vocational Instructor – Locomotor Disability/Cerebral Palsy, Low Vision/Blindness. Non‑Vocational Teacher Senior – Locomotor Disability/Cerebral Palsy, Hearing Impairment, Low Vision/Blindness. Non‑Vocational Teacher Junior – Locomotor Disability/Cerebral Palsy, Hearing Impairment, Low Vision/Blindness. Teachers Primary – Locomotor Disability/Cerebral Palsy, Low Vision. Higher Secondary Assistant (Languages and Social Studies) – Locomotor Disability/Cerebral Palsy, Hearing Impairment, Low Vision/Blindness. Craft Teacher – Locomotor Disability/Cerebral Palsy, Low Vision. Music Teacher – Blindness/Low Vision. Part‑time Instrumental Music Teacher – Blindness/Low Vision. High School Assistant (Science) – Locomotor Disability/Cerebral Palsy, Hearing Impairment, Low Vision/Blindness. High School Assistant (Physical Science) – Locomotor Disability/Cerebral Palsy, Hearing Impairment. Teacher Grade II (Upper & Lower Primary School) – Locomotor Disability/Cerebral Palsy, Hearing Impairment, Low Vision/Blindness. Teacher (Rattan workers – Higher Secondary School) – Locomotor Disability/Cerebral Palsy, Hearing Impairment, Low Vision/Blindness. Teacher (Drawing‑cum‑Needle work – Upper & Lower Primary School) – Locomotor Disability, Cerebral Palsy, Hearing Impairment. Lower Primary School Assistant/Upper Primary School Assistant – Locomotor Disability/Cerebral Palsy, Low Vision/Blindness. High School Assistant (Physical Science) – Locomotor Disability/Cerebral Palsy, Hearing Impairment, Low Vision/Blindness. High School Assistant/Upper Primary School Assistant Urdu – Locomotor Disability/Cerebral Palsy, Low Vision/Blindness., The above order shows that as early as 7 May 2019 the Government issued orders clarifying that the order dated 26 November 2018, referred to as item No. 4 in the above order, added more categories of posts identified for persons with disabilities in addition to earlier orders. In that view there is absolutely no justification for the respondents to contend that they were prevented from inviting applications from persons with disabilities because the posts had not been identified. In fact, posts had been identified based on appointments that were regularly carried out in Government Schools., It should be noted that the Government, at the initial stage, placed on record Government Order (Principal) No. 19/2020, Social Justice Department dated 25 August 2020 to substantiate that the Social Justice Department had identified 49 categories of posts that can be reserved for persons with disabilities. Among those, the teachers identified are Teachers Primary – Serial No. 6, Higher Secondary Assistant (Languages and Social Studies) – Serial No. 21, and Craft Teacher – Serial No. 27., In view of the Government orders extracted above, particularly Government Order (Principal) No. 5/19, Social Justice Department dated 7 May 2019, it is emphatically clear that the exercise was not a bona fide one. As can be seen from the Government order dated 7 May 2019, almost all posts had been identified as suitable for teachers in the respective categories., Even if it is taken that the posts were not identified promptly as contended by the petitioners, it would not be of much help to them. It is appropriate to bear in mind that the Supreme Court of India, as early as in Ravi Prakash Gupta, repelled the contention of the Central Government and held that taking such a stand would be contrary to the legislative intent behind the 1995 Act and that the delay in identification of posts under Section 32 cannot be used as a tool to defer or deny the benefit of appointment under Section 33 of the Act to persons with disabilities when a duty is cast on every establishment to make appointment under Section 33 of the Act., In State of Kerala and Others v. Leesamma Joseph, the question before the Supreme Court of India was whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32. Repelling the contention, the Supreme Court observed in paragraph 21 that there can be little doubt that it was never the intention of the legislature that the provisions of Section 32 would be used as a tool to frustrate the benefits of reservation under Section 33. Identification of posts for purposes of reservation had to take place immediately after the 1995 Act., The Supreme Court of India, in Union of India v. Ravi Prakash Gupta (2010) 7 SCC 626, mandated the identification of posts for purposes of reservation. This view was affirmed by a larger bench of three judges in Union of India v. National Federation of the Blind (2013) 10. In other words, no advantage can be gained by the respondents in contending that they were not in a position to make appointments because the posts had not been identified., I am not impressed with the contention of Sri George Abraham and Sri Mohanakannan that a detailed procedure is contemplated in the Act and the Rules regarding the issuance of disability certificates. They also contend that the failure to set up Special Employment Exchanges by the State would be detrimental to the cause of persons with disabilities and that the managements cannot be directed to issue a notification calling for applications from Persons with Disabilities. At this juncture it is appropriate to note that none of the managers have a case that they have invited applications from Persons with Disabilities, in spite of Exhibit P1 order dated 18 November 2018. The Honorable Supreme Court of India has time and again observed that the beneficial provisions of the 1995 Act and the 2016 Act would remain on paper and the rights of Persons with Disabilities would be defeated by the sluggish and obstinate stand taken by the appropriate Government and the establishments., The respondents have placed on record data before this Court to show that the vacancies are only in the hundreds even if backlogs are calculated from the year 1996. They contend that by filling the vacancies which arise from 8 November 2021, the interest of persons with disabilities can be protected without causing hardship to others who secured employment. If such a stand is taken, it would be destructive to the interest of Persons with Disabilities. For instance, the petitioner in Writ Petition (Civil) No. 17632/2021 is a hearing‑impaired person who has acquired all the requisite qualifications to aspire for the post of Teacher (Hindi) in Upper Primary and High School sections. She has been applying before all managements seeking employment in the reservation category for persons with disabilities. None of the managements considered her application. In the counter‑affidavit filed by the sixth respondent‑Manager, it is stated that her application dated 14 September 2021 was received in the school office only on 20 November 2021, but in the meantime the manager appointed another teacher on 15 November 2021 in the light of the impugned Government Order. Though the respondents contend that the petitioner, being hearing‑impaired, may not be entitled to secure appointment if she was made to compete with other disabled persons, the fact remains that the manager, while calling for applications, did not invite applications from persons with disabilities., The contention of the respondents that only a few persons in the State among persons with disabilities are qualified, based on data obtained from the Employment Exchange, does not appeal to me. There is no requirement for a person with a disability who aspires for a teaching post in aided schools to register with the Employment Exchange. None of the managers have invited applications from persons with disabilities. Even in the report submitted before this Court by the first and second respondents, it is stated that the report was prepared hastily and may not reflect the actual picture. The data placed before this Court is therefore skewed and cannot be relied upon., I am also not impressed with the contention that only very few persons with disabilities have acquired the qualification required for the posts. Those matters do not require consideration in a case of this nature where the materials clearly show that the beneficial provisions of the statute, the law laid down by the courts and the orders passed by the Government were stifled by the persons and authorities who were bound to protect the interest of Persons with Disabilities. The right of reservation in employment conferred to persons with disabilities cannot be taken away by placing stumbling blocks., In Vikash Kumar v. UPSC, the Honorable Supreme Court of India, while pointing out that the enactment of the 1995 Act and the 2016 Act was the statutory manifestation of a constitutional commitment, observed that Part III of the Constitution does not explicitly include persons with disabilities within its protective fold. However, like their able‑bodied counterparts, the golden triangle of Articles 14, 19 and 21 applies with full force to persons with disabilities. The 2016 Act seeks to operationalise and give concrete shape to the promise of full and equal citizenship held out by the Constitution to persons with disabilities and to execute its ethos of inclusion and acceptance. The Court held that the fundamental postulate upon which the 2016 Act is based is the principle of equality and non‑discrimination. Section 3 of the 2016 Act casts an affirmative obligation on the Government to ensure that persons with disabilities enjoy (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally with others. Section 3 is an affirmative declaration of the legislature’s intent that the fundamental postulate of equality and non‑discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution., Referring to the law laid down in Jeeja Ghosh v. Union of India, the Supreme Court observed in paragraph 43 that there is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. To enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to merely prohibit discrimination; society must also provide additional support and facilities necessary to offset the impact of disability. The Court further observed that a key component of equality is the principle of reasonable differentiation and that specific measures must be undertaken, recognising the different needs of persons with disabilities, to achieve substantive equality., Articles 1 and 7 of the Universal Declaration of Human Rights (1948) read: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. The quintessence of the Universal Declaration of Human Rights is that all human beings are born free and equal in dignity and rights., In Jeeja Ghosh v. Union of India the Supreme Court, while expounding the need for sensitivity towards persons with disabilities and the true meaning of equality, observed in paragraphs 37 and 38 that the rights guaranteed to differently‑abled persons under the 1995 Act are founded on the principle of human dignity, which is the core value of human rights and a significant facet of the right to life and liberty. The Court noted that jurisprudentially three models for determining the content of the constitutional value of human dignity are recognised: theological models, philosophical models and constitutional models., The constitutional value of human dignity has a central normative role. It serves as a normative basis for constitutional rights set out in the Constitution, as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity, and as a factor in determining the proportionality of a statute limiting a constitutional right. Aharon Barak, former Chief Justice of the Supreme Court of Israel, has illustrated that human dignity unites human rights into one whole and ensures their normative unity., In Rajesh Motibhai Desai v. State of Gujarat and others (Special Leave Application No. 15735 of 2014, judgment dated 9 July 2015), Justice J. B. Pardiwala observed that the concept of equality enshrined in Article 14 of the Constitution of India enjoins a duty on the State to bring about a situation where fundamental rights can be exercised on the footing of equality. Accordingly, a disabled person is entitled to be placed at a level where he can enjoy his rights. The directive principle of State policy contained in Article 39A requires the State to ensure that the legal system promotes justice on the basis of equal opportunity, including providing free legal aid and ensuring that disabilities do not deny any citizen the opportunity to secure justice. Article 41 also enjoins a duty on the State, within the limits of its economic policy, to make effective provision for securing the right to work, education and public assistance in cases of unemployment, old age, sickness and disablement., There are more than 600 million persons with disabilities in the world today; 80 percent of them live in developing countries. Approximately 90 million people in India are disabled, which is almost one in every ten. At least 1.2 million people with disabilities in India live in households consisting only of people with disability. While the total number of persons with disabilities increased by just over 22 percent over a decade, from about 22 million in the 2001 Census to 26.8 million in 2011, the number of people with disabilities living on their own nearly doubled, jumping by 84 percent in the same period., As held by the Supreme Court in National Federation of the Blind, employment is a key factor in the empowerment and inclusion of persons with disabilities. Disabled people are kept out of jobs because of social and practical barriers that prevent them from joining the workforce. Millions of disabled persons live in poverty and are denied the right to make a useful contribution to their own lives and to the lives of their families and community., Having considered the issues raised from all perspectives, I am of the considered opinion that the benefit of reservation as envisaged under the 1995 Act and the 2016 Act must be extended to persons with disabilities and no stumbling blocks or limiting clauses can be placed by the respondents so as to infringe their statutory and constitutional rights for reservation to posts in aided schools., The Supreme Court of India holds that the petitioners are entitled to succeed. The following directions are issued while disposing of the writ petitions: It is declared that the Managers of Aided Schools are bound by Government Order (Principal) No. 18/2018, Social Justice Department dated 18 November 2018, and they shall provide three percent reservation of the total number of vacancies in the cadre strength in appointments in Aided Schools to the posts with effect from 7 February 1996 and fill the backlog from 7 February 1996 to 18 April 2017; and four percent reservation of the total number of vacancies in the cadre strength in appointments in Aided Schools with effect from 19 April 2017 in tune with Government Order (Principal) No. 5/19, Social Justice Department dated 7 May 2019 and the orders referred to therein. The order dated 6 September 2021 vide No. H(2)/19500/2019/D.G.E. issued by the Additional Director General (Extension P4) shall stand quashed. The order dated 7 December 2021 vide No. H(2)/295299/2021/D.G.E. issued by the Additional Director General (Extension P6) to the extent that it fixes a cut‑off date and directs that only vacancies in Aided Schools which arise after 8 November 2021 shall be filled under the 1995 Act and the 2016 Act shall also stand quashed. In terms of Government Order (Miscellaneous) No. 111/2022, General Education Department dated 25 June 2022, but without the cut‑off date of 8 November 2021, backlog vacancies from 7 April 1996 shall be calculated and the roster shall be prepared within two months from today, tabulating the first 33 vacancies from 7 February 1996 and the first 25 vacancies from 19 April 2017 onwards for absorbing differently‑abled persons in the recruitment process in Aided Schools with respect to vacancies that have arisen after the date of issuance of Government Order (Principal) No. 18/2018, Social Justice Department. Appointments already made by the management after the date of issuance of Government Order (Principal) No. 18/2018, Social Justice Department, for which approval has not been granted by the educational authorities to date shall be subject to the directions above. Only after filling the backlogs as directed shall approval be granted for those appointments. Approval of appointments already granted shall not be unsettled.
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Judgement reserved on: 20.03.2023 Judgment pronounced on: 18.05.2023 Through: Mr Mobashshir Sarwar, Advocate Versus Through: Mr Kirtiman Singh, Chief Government Standing Counsel with Mr Waize Ali Noor and Ms Durgesh Nandini, Advocates for respondent No.1 along with Mr Satish Kumar Singh and Mr Mannu Kumar, Section Officers, Ministry of Education; Mr Vikramjit Banerjee, Additional Solicitor General with Mr Pritish Sabharwal, Standing Counsel along with Mr Shruti Agarwal, Ms Janhavi Prakash, Mr Kartik Dey, Mr Shashank, Mr Sanjeet and Mr Sharad Shukla, Advocates for Jamia Millia Islamia; Mr Ravinder Agarwal, Mr Girish Pandey and Mr Lekh Raj Singh, Advocates for respondent No.3/Central Vigilance Commission; Mr Apoorv Kurup and Ms Keerti Dadheechi, Advocates for respondent No.4/University Grants Commission. [Physical Court Hearing/Hybrid Hearing (as per request)], This intra‑court appeal is directed against the judgment dated 05.03.2021 passed by the learned single judge in W.P.(C) 952/2020 (hereafter referred to as the impugned judgment). Via the impugned judgment, the learned single judge dismissed the writ action preferred by the appellant., The appellant, an alumnus of respondent No.5 Jamia Millia Islamia (hereafter referred to as JMI), sought a writ of quo warranto and/or an appropriate writ, order, or direction concerning the appointment of respondent No.2 Professor Najma Akhtar (hereafter referred to as Professor Akhtar) to the post of Vice Chancellor of JMI. The relief sought is premised on the assertion that Professor Akhtar’s appointment was made without complying with the provisions of Statute 2(1) appended to the Schedule, as promulgated by Section 24 of the Jamia Millia Islamia Act, 1988 (hereafter referred to as the JMI Act), and Regulation 7.3.0 of the University Grants Commission Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 (hereafter referred to as the 2010 UGC Regulations). Notably, JMI, via a notification dated 18.07.2018, also adopted the University Grants Commission Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 (hereafter referred to as the 2018 UGC Regulations)., Various strands of challenge were laid by the appellant to Professor Akhtar’s appointment as Vice Chancellor. Before discussing each ground, it is useful to set forth the backdrop in which the instant action was instituted. The resignation of the erstwhile Vice Chancellor of JMI, effective from 06.08.2018, prompted the Department of Higher Education, Ministry of Human Resource Development (respondent No.1) to issue an advertisement for filling the post of Vice Chancellor in JMI. The deadline for filing applications was fixed as 13.09.2018, and a total of 107 applications were received., While applications were being received, the Executive Council of JMI, in line with the provisions of Statute 2(1) of the JMI Act, nominated Justice M.S.A. Siddique, a former judge of this Court, and Professor Ramakrishna Ramaswamy, School of Physical Sciences, Jawaharlal Nehru University, New Delhi as members of the Search‑cum‑Selection Committee (hereafter referred to as the SCS Committee) at its meeting held on 31.08.2018., The decision of the Executive Council was communicated to the Ministry of Human Resource Development by JMI through a letter dated 05.09.2018. The letter brought to the notice of the Ministry that, to constitute a Committee as per the terms of Statute 2(1) of the JMI Act, the Visitor of JMI, who is the President of India, was required to choose his nominee to complete the composition of the Committee., As per Statute 2(1), the nominee of the Visitor was required to helm the SCS Committee. On 11.10.2018, the Ministry apprised the Visitor about the persons nominated by the Executive Council for the constitution of the SCS Committee and requested that the Visitor consider the nomination of one of the two persons indicated by it as the Chairman of the SCS Committee. The two persons recommended by the Ministry were Professor D.P. Singh, Chairman, University Grants Commission, and Professor (Retired) K.K. Aggarwal, former Vice Chancellor, Guru Gobind Singh Indraprastha University, Delhi. The Visitor chose Professor D.P. Singh as his nominee to helm the SCS Committee., The SCS Committee held its first meeting on 06.11.2018 for selecting the Vice Chancellor. At this meeting, the Committee perused and deliberated upon the curricula vitae of 107 applicants, considering their academic achievements, administrative experience, research contributions, and contributions made in the corporate life of the concerned institutions. The deliberation led to the zone of consideration being scaled down to thirteen candidates, who were invited for personal interaction and discussion with the Committee at its meeting convened on 28.11.2018., The Committee thereafter unanimously recommended a panel of three names, in alphabetical order, for appointment to the post of Vice Chancellor: Professor Furqan Qamar, Aligarh Muslim University, New Delhi; Professor Najma Akhtar, National Institute of Education Policy and Administration, New Delhi; and Professor Saiyed Muzaffar Ishtiaque, Indian Institute of Technology Delhi, New Delhi. These recommendations were made subject to vigilance clearance., The Central Vigilance Commission, via Office Memorandum dated 10.01.2019, advised that Professor Akhtar should not be considered for any post‑retirement assignment or re‑employment in organizations, institutions, or universities falling within the administrative control of the Ministry of Human Resource Development. Consequently, the Vigilance Section of the Ministry denied clearance for considering Professor Akhtar for appointment to the post of Vice Chancellor. The Chief Vigilance Officer of the Ministry gave fresh inputs to the Central Vigilance Commission for reconsideration. The Central Vigilance Commission, via Office Memorandum dated 26.02.2019, agreed with the view of the Chief Vigilance Officer and revised its earlier advice. As a result of the revised advice, on 05.03.2019, the Vigilance Section wrote to the Director (CU‑II), Department of Higher Education, that there was no vigilance case pending or contemplated against Professor Akhtar., A Summary Note dated 04.04.2019, prepared by the Joint Secretary to the Government of India, was placed before the Visitor for his consideration. The Summary Note alluded to the recommendation of the Minister of Human Resource Development to consider Professor Akhtar for appointment to the post of Vice Chancellor, JMI., Via communication dated 11.04.2019, the Director (Central Universities), Ministry of Human Resource Development conveyed to the Registrar, JMI, the decision of the Visitor to appoint Professor Akhtar as the Vice Chancellor of JMI. Consequently, a notification dated 12.04.2019 was issued by the Registrar, JMI, stating that Professor Akhtar had assumed charge as Vice Chancellor of JMI with effect from the date of the notification., The appellant received information regarding certain documents and processes followed for the appointment of Professor Akhtar via a response dated 20.05.2019, given pursuant to an online Right to Information application preferred by Mr Raghib Ahsan. Although the appellant was provided with the relevant information and documents on 20.05.2019, the writ petition W.P.(C) 952/2020 was filed on 22.01.2020, after a delay of a little over seven months. Notice in the writ petition was issued on 27.01.2020., During the pendency of the writ petition, one of the members of the SCS Committee, Professor Ramaswamy, addressed a letter dated 08.03.2020 to the Visitor. The letter alluded to newspaper reports indicating that the Central Vigilance Commission, via Office Memorandum dated 10.01.2019, had asserted that Professor Akhtar should not be considered for any post‑retirement assignment or re‑employment in organizations, institutions, or universities falling within the administrative control of the Ministry of Human Resource Development. According to the communication, the advice of the Central Vigilance Commission was not brought to the notice of the SCS Committee, which, according to Professor Ramaswamy, was a grave matter because the Committee had overlooked otherwise meritorious candidates on account of vigilance clearance issues., Upon completion of pleadings, the learned single judge rendered his decision on 05.03.2021. Being aggrieved, the instant appeal was preferred. Notice in the appeal was issued on 30.07.2021, and the contentions advanced on behalf of the appellant by Mr Mobashshir Sarwar, Advocate, and those advanced for respondents No.2‑5 by Mr Vikramjit Banerjee, Additional Solicitor General, were recorded., Mr Sarwar assailed the appointment of Professor Akhtar to the post of Vice Chancellor, JMI, on the following broad grounds: (i) The SCS Committee had to comprise persons of eminence in the sphere of higher education as required by Regulation 7.3 of the 2018 UGC Regulations; Justice (Retired) M.S.A. Siddique, a member of the Committee, did not fulfil this criterion. (ii) Regulation 7.3 of the 2018 UGC Regulations required the Committee to provide reasons for empanelling Professor Akhtar. (iii) The Ministry of Human Resource Development had no role to play in the constitution of the SCS Committee and therefore should not have submitted a panel of names to the Visitor. (iv) The Minister of Human Resource Development had no role to play in the selection of the Vice Chancellor and therefore could not have made a recommendation to the Visitor, as referred to in paragraph 6 of the Summary Note dated 04.04.2019. (v) The appointment was flawed because, although her empanelment was subject to vigilance clearance, due weight was not given to the Central Vigilance Commission’s advice rendered via Office Memorandum dated 10.01.2019., In support of his submissions, Mr Sarwar placed reliance on the following judgments: Gorakhpur University Affiliated College Teachers Association v. State of Uttar Pradesh, 2015 SCC Online All 3719; Kanwaljeet Singh (Dr.) v. University of India, 2018 SCC OnLine Delhi 12391; Rajesh Awasthi v. Nand Lal Jaiswal and Others (2013) 1; Hardwari Lal v. Shri G.D. Tapase and Others, Civil Writ Petition No. 3658 of 1980., Mr Banerjee made the following submissions: (i) Justice (Retired) M.S.A. Siddique was eminently fit to be part of the SCS Committee given his experience as Chairman of the National Commission for Minority Educational Institutions, New Delhi, which brings him within the scope of “persons of eminence in the sphere of higher education” under Regulation 7.3(ii) of the 2018 UGC Regulations. (ii) Regarding the appellant’s submission that the Committee had not provided reasons, Mr Banerjee relied on paragraphs 53 to 55 of the impugned judgment and contended that the Committee was only a body that recommended suitable names, and as an administrative function it was not required to furnish reasons. (iii) Concerning the argument that the Minister’s recommendation contaminated the selection process, Mr Banerjee submitted that the recommendation was not binding on the Visitor and that the 2018 UGC Regulations did not bar the Visitor from receiving inputs from the Ministry. (iv) Regarding the revision of the Central Vigilance Commission’s advice, Mr Banerjee submitted that such power was available to the Commission, relying upon clause 1.6.4 of the Central Vigilance Commission Manual, which allows reconsideration of advice when new facts are presented., Supreme Court of India has heard the learned counsel for the parties and perused the record carefully. At the time notice was issued in the appeal, the Court also directed the Central Vigilance Commission to place the relevant record concerning Professor Akhtar before the Court. The record has been perused to ascertain whether it aligns with the averments made by the respondents and to understand why and how the Central Vigilance Commission revised its initial advice rendered on 10.01.2019. This aspect forms the mainstay of the appellant’s challenge to the appointment of Professor Akhtar as Vice Chancellor of JMI., It is appropriate to extract the relevant parts of the advertisement, the provisions of Statute 2 appended to the Schedule of the JMI Act, and Regulation 7.3 of the 2018 UGC Regulations to set forth the qualifications that an applicant must have and the process required for selecting and appointing a suitable candidate to the post of Vice Chancellor of JMI., Advertisement for appointment of Vice Chancellor, JMI: The Government of India, Ministry of Human Resource Development, Department of Higher Education, issued an advertisement stating that the Vice Chancellor, being the academic as well as administrative head, is expected to be a visionary with proven leadership qualities, administrative capabilities, and teaching and research credentials; to have an outstanding academic record throughout and a minimum of ten years’ experience as a Professor in a university system or an equivalent position in a reputed research and/or academic administrative organisation; preferably not more than 65 years of age as on the closing date of receipt of applications. The post carries a pay of Rs. 2,10,000 (fixed) per month with a special allowance of Rs. 5,000 and other usual allowances. The terms and conditions of service will be those set forth in the Act, statutes and ordinances of the University. Appointment will be made from a panel of names recommended by a Committee constituted under the provisions of the Jamia Millia Islamia Act. Applications were to be sent by registered or speed post to the Deputy Secretary (CU‑I/II), Department of Higher Education, Ministry of Human Resource Development, New Delhi., Statute 2(1) of the JMI Act provides: (1) The Shaikh‑ul‑Jamia (Vice Chancellor) shall be appointed by the Visitor from a panel of at least three persons recommended by a Committee consisting of three persons: two to be nominated by the Majlis‑i‑Muntazimah (Executive Council) and one, who shall be the Chairman of the Committee, to be nominated by the Visitor; provided that no member of the Committee shall be connected with the University; further, if the Visitor does not approve any of the persons so recommended, he may call for fresh recommendations., Regulation 7.3 of the 2018 UGC Regulations states: (i) A person possessing the highest level of competence, integrity, morals and institutional commitment is to be appointed as Vice Chancellor. The person should be a distinguished academician with a minimum of ten years of experience as Professor in a university or ten years of experience in a reputed research and/or academic administrative organisation, with proof of academic leadership. (ii) Selection should be through proper identification by a panel of three to five persons by a Search‑cum‑Selection Committee, through a public notification, nomination, talent search process or a combination thereof. Members of the Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the concerned University or its colleges. One member shall be nominated by the Chairman, University Grants Commission, for selection of Vice Chancellors of State, Private and Deemed Universities. (iii) The Visitor/Chancellor shall appoint the Vice Chancellor out of the panel of names recommended by the Search‑cum‑Selection Committee. (iv) The term of office shall form part of the service period of the incumbent, making him/her eligible for all service‑related benefits., The advertisement prescribed the following qualifications: (i) an outstanding academic record throughout; (ii) a minimum of ten years’ experience as Professor in a university system or an equivalent position in a reputed research and/or academic administrative organization; (iii) preferably not more than 65 years of age as on the closing date for receipt of applications. The procedure for appointment was briefly indicated as being from a panel of names recommended by a Committee constituted under the JMI Act., Statute 2(1) further elaborates that the appointment is made by the Visitor from a panel of at least three names recommended by a Committee of three persons, two nominated by the Executive Council and the third, the Chairman, nominated by the Visitor. The first proviso makes clear that the Committee cannot comprise members connected with JMI, and the second proviso provides that the Visitor may call for fresh recommendations if he does not approve any of the persons recommended., Regulation 7.3(ii) adds that the Committee should consist of three to five persons who are persons of eminence in the sphere of higher education and not connected with the concerned University or its colleges, thereby introducing an attribute not expressly provided in Statute 2(1). This attribute has been emphasized by the appellant., Regulation 7.3(ii) also obliges the Committee to give proper weight to academic excellence, exposure to higher education systems in the country and abroad, and adequate experience in academic and administrative governance while preparing the panel, and to submit its recommendation in writing to the Visitor. The provision that one member of the Committee be nominated by the Chairman, University Grants Commission, applies to selection of Vice Chancellors of State, Private and Deemed Universities and therefore does not apply to JMI, a Central University., The first issue for consideration is, in case of variance between Regulation 7.3 of the 2018 UGC Regulations and Statute 2(1), which provision should be given preference. Since the Vice Chancellor was to be appointed to JMI, a Central University having its own Statute, the provisions of the Statute would apply., Accordingly, the submission that members nominated to the SCS Committee should be persons of eminence in the sphere of higher education is not supported by Statute 2(1), which only requires that members not be connected with the concerned University. This attribute is, however, embedded in Regulation 7.3(ii)., The appellant has not disputed that Justice (Retired) M.S.A. Siddique was Chairman of the National Commission for Minority Educational Institutions, New Delhi, and had dealt with issues concerning educational institutions. The expression “in the sphere of higher education” is broader than “in the field of higher education”; it denotes areas to which a person has been exposed or has influence. In the present case, the expression does not impose the same rigour as the phrase “field of higher education”., Since the selection was for the post of Vice Chancellor, the attribute has been consciously made broad‑based, as a University and its colleges encompass several fields of education such as law, technology, medicine, management, etc. The applicants possessed domain expertise in one or more fields, and it was not deemed necessary for the Committee members themselves to have eminence in each field., Justice (Retired) M.S.A. Siddique, after years of experience as a judge, had expertise in law and had dealt with issues concerning minority institutions engaged in imparting education in various fields., The members of the Committee, having acquired eminence and experience in various areas, were required to give weight to academic excellence, exposure to the higher education system, and experience in academic and administrative governance. There is no record showing that the Committee members were unable to evaluate candidates on these parameters., The next issue is whether the SCS Committee was required to give reasons for empanelling the three candidates out of the 107 applicants. The Committee’s exercise was administrative rather than judicial or quasi‑judicial. Consequently, there was no legal obligation to provide reasons, as the obligation to furnish reasons arises only when an authority exercises judicial or quasi‑judicial powers., A purely administrative act can always be reviewed, and the entire exercise to appoint the Vice Chancellor could have been set aside by calling for fresh recommendations if the Visitor did not approve any of the recommended persons., Therefore, the scope for interference, if any, in the exercise carried out by the SCS Committee is limited to: (i) whether the appointee possessed the stipulated qualifications; and (ii) whether the prescribed process for appointment was followed.
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The second aspect is also connected with the argument advanced by the opposing respondents, that this was not a case for the issuance of a writ of quo warranto. Before we proceed further, we must state, with emphasis, that the argument advanced by Mister Sarwar, that because the submission of the panel of names to the Visitor had to be in writing, reasons were required to be furnished by the Selection Committee, is completely untenable. The expression in writing cannot be extrapolated to mean that reasons had to be furnished for making the recommendation. It appears that since the Visitor has been vested with the power to have a final say in the appointment of the Vice Chancellor, consciously, no provision is made which obliges the Selection Committee to give reasons as to why certain persons had been empanelled. If reasons were required to be furnished, the members of the Selection Committee would necessarily tend to indicate who, according to them, was the best out of the lot made available for evaluation. Such an exercise would be fraught with several difficulties. First, this would denude, in a sense, the Visitor of his discretion. Second, it could throw up a possibility of the members of the Selection Committee not being able to arrive at a unanimous decision as to who was the best candidate. Third, while members of the Selection Committee may reach a unanimous decision as to the best candidate, their reasons could vary., The other contention of Mister Sarwar is that the selection of Professor Najma Akhtar was severely flawed, on account of the fact that before her appointment, the Central Vigilance Commission had rendered its advice via Office Memorandum dated 10 January 2019, indicating that Professor Akhtar should not be considered for any post‑retirement assignment or re‑employment in any organization, institution or university over which the Ministry of Human Resource Development had administrative control. In this context, it is also submitted by Mister Sarwar that the revision by the Central Vigilance Commission of its advice, which cleared the path for the appointment of Professor Akhtar as the Vice Chancellor of Jamia Millia Islamia, is an aspect which should have been looked at by the Selection Committee before her name was forwarded to the Registrar for consideration., In support of this submission, Mister Sarwar sought to place reliance on the communication dated 8 March 2020. We must confess that at first blush, when notice in the appeal was issued, this appeared to be a serious issue. However, after examining the matter closely, we have concluded that the revision in the Central Vigilance Commission’s stand was in order. The Ministry of Human Resource Development, in its counter‑affidavit, has broadly advertised the reasons as to why the Central Vigilance Commission had revised its advice. Since the averments were broad, we called for and examined the original record. On the aspect of revision of advice by the Central Vigilance Commission, it may be of help to extract the relevant averments made by the Ministry of Human Resource Development in its counter‑affidavit. It is submitted that the Central Vigilance Commission’s Office Memorandum dated 10 January 2019 relates to observation and advice of the Central Vigilance Commission which was tendered in reply to a report furnished by the office of the Chief Vigilance Officer, Ministry of Education, to consider the closure of the complaint against respondent number 03 as a Senior Fellow in the National Institute of Educational Planning and Administration (NIEPA). However, in the meantime the above observation and advice of the Central Vigilance Commission received under Office Memorandum dated 10 January 2019 advising the Ministry of Education not to consider respondent number 03 for post‑retirement assignment was conveyed by the Chief Vigilance Officer, Ministry of Education to the administrative Bureau of Central Universities in the Ministry of Education that had then sought vigilance clearance from the Chief Vigilance Officer, Ministry of Education in relation to her name figuring in the selection panel of Vice Chancellor, Jamia Millia Islamia., Thereafter, in the backdrop of advice of the Central Vigilance Commission, the matter relating to the complaint was again examined by the Office of the Chief Vigilance Officer, Ministry of Education and the Central Vigilance Commission was once again requested to reconsider its advice dated 10 January 2019 elaborating on the Recruitment Rules for the post of Senior Fellow in NIEPA. The Central Vigilance Commission reviewed the case and decided to revise its advice and deleted the observation made in paragraph 2(i) of its Office Memorandum dated 10 January 2019. Considering that the Central Vigilance Commission had withdrawn its observation against post‑retirement assignment of respondent number 03, vigilance clearance in view of the revised position was conveyed to the administrative Bureau which acted in the light of the same. After examining the case, the Central Vigilance Commission, via Office Memorandum dated 10 January 2019, advised as stated by the petitioner. However, the Ministry of Human Resource Development, via their Office Memorandum No. C‑34013/5/2018‑Vig dated 24 January 2019, requested to reconsider the advice of the Commission and as such the Commission examined the case and thereafter advised to delete the said portion of the advice/verdict via Office Memorandum dated 26 February 2019., The aforesaid extract would show that it was at the Ministry of Human Resource Development’s behest that the Central Vigilance Commission decided to reconsider its advice. Since both the Office Memorandum dated 24 January 2019, through which the Ministry of Human Resource Development called upon the Central Vigilance Commission to reconsider its advice, and the revised advice given by the Central Vigilance Commission via Office Memorandum dated 26 February 2019 were not on record, we directed their production. For the sake of convenience, the relevant parts of both the Office Memorandum dated 24 January 2019 and the Office Memorandum dated 26 February 2019 are set forth hereafter, as they provide a perspective as to what exactly was held against Professor Akhtar when the Central Vigilance Commission had rendered its initial advice via Office Memorandum dated 10 January 2019., Office Memorandum dated 24 January 2019, F. No. C‑34013/5/2018‑Vig, Government of India, Ministry of Human Resource Development, Department of Higher Education (Vigilance Section), Room No. 106‑C Wing, Shastri Bhawan, New Delhi dated 24 January 2019. Sub: Complaint under the Prevention of Irregularities and Delays in Recruitment (PIDR) against the officials of NIEPA. The undersigned is directed to refer to the Central Vigilance Commission’s Office Memorandum No. Conf/3657/12 dated 10 January 2019 conveying the advice of the Commission in the above subject complaint. The advice of the Commission with regard to the selection of Dr. Najma Akhtar in NIEPA has been examined and it is stated that the National Institute of Educational Planning and Administration published an advertisement dated 12 January 2002 inviting applications for the faculty position – Senior Fellow, with specialization in Educational Administration wherein the method of recruitment is mentioned as Direct Recruitment/Transfer on Deputation/Transfer (by advertisement or by personal contract or by invitation). In the said advertisement there was no mention of the faculty position being a leave vacancy and also no specific mention was made regarding the number of posts to be filled., In the minutes of the Selection Committee meeting held on 18 July 2002, it is recorded that twenty‑eight applications were received by NIEPA in response to the advertisement carried out by Employment News, the Hindustan Times, University News during January 2002, out of which twelve candidates were recommended by the Screening Committee to be called for interview. However, the record of the Screening Committee is not readily available. The Selection Committee took note of the fact that one post each of the Senior Fellows was lying vacant and the Committee recommended the empanelment of the following candidates in descending order of merit for appointment as Senior Fellow in NIEPA: Senior Fellow (Educational Administration) – Dr. Najma Akhtar (Leave Vacancy); Senior Fellow (Educational Management) – Prof. Satish Kalra; Dr. Sudhansu Bhushan., It can therefore be seen from the advertisement dated 12 January 2002 that the post of Senior Fellow (Educational Administration) which was advertised and against which Dr. Najma Akhtar was given an offer of appointment was not said to be a leave vacancy. However, the offer of appointment made to Dr. Najma by NIEPA was said to be against a leave vacancy. It can also be seen from the Selection Committee minutes that even though it states that the empanelment of candidates is being made in descending order of merit, the actual order of merit cannot be ascertained from the minutes. Further, Dr. Najma Akhtar, as per records made available, was a permanent employee of Aligarh Muslim University and was on leave. Dr. Najma Akhtar made a representation on 14 February 2003 for placing her against a clear post. The proposal was duly approved by the then Director after first informing the Executive Committee about the representation and that the same would be duly processed. Had the representation of Dr. Akhtar been declined, she could have returned to her parent organization, which is also an institution under the Central Government, where she was a permanent employee and working in a similarly placed post. The Recruitment Rules for the post of Senior Fellow inter‑alia provide the modes of recruitment as by advertisement or by personal contract by invitation. Therefore, even if it is assumed that she was initially recruited against a leave vacancy, her subsequent absorption, without any further advertisement, appears to be covered under the Recruitment Rules., In the light of the above submission, the Commission is requested to reconsider its advice dated 10 January 2019. This issue is with the approval of the Honourable Minister of Human Resource Development. (Sanjay Kumar) Under Secretary to the Government of India, Central Vigilance Commission (Shri Mukesh Kumar, Director) Satarkata Bhawan, GPO Complex Block A, INA, New Delhi – 110023., Office Memorandum dated 26 February 2019, Conf/3657/12/411518. Sub: Complaint under PIDR against the officials of NIEPA. The Ministry of Human Resource Development may refer to its Office Memorandum No. C‑34013/5/2018‑Vig dated 24 January 2019 on the subject cited above. The Commission, in agreement with the Chief Vigilance Officer, Ministry of Human Resource Development, has reviewed the case and has decided to revise its advice issued via Office Memorandum dated 10 January 2019. Accordingly, paragraph 2(i) of the Commission’s Office Memorandum dated 10 January 2019 may be treated as deleted. (Mukesh Kumar) Director, Ministry of Human Resource Development, Room No. 103, D Wing, Shastri Bhawan, New Delhi – 110001., A perusal of the extracts would reveal the following: (i) An advertisement dated 12 January 2002 was published in Employment News, the Hindustan Times, University News, at the behest of the National Institute of Educational Planning and Administration (now National University of Educational Planning and Administration), whereby applications were invited for the faculty position of Senior Fellow who had specialization in Educational Administration. (ii) The advertisement indicated that the source of recruitment would be Direct recruitment/Transfer on Deputation/Transfer (by advertisement or by personal contract or by invitation). Importantly, the advertisement did not indicate that the faculty position was sought to be filled against a leave vacancy. (iii) Apparently, the advertisement also did not make any mention, as regards the number of posts, that had to be filled. (iv) NIEPA received twenty‑eight applications. The Screening Committee, out of the twenty‑eight applications received, recommended twelve candidates. Notably, the record of the Screening Committee was not readily available. The Selection Committee thereafter recommended the empanelment of Professor Akhtar and two other persons, namely Professor Satish Kalra and Dr. Sudhansu Bhushan. While Professor Akhtar’s recommendation for the appointment was under the category of Educational Administration albeit against a leave vacancy, the recommendation made for appointment of Professor Kalra and Dr. Bhushan as Senior Fellows was under the category of Educational Management. (v) At the relevant time, Professor Akhtar was a permanent employee of Aligarh Muslim University. (vi) It is in this context that Professor Akhtar made a representation on 14 February 2003 for placing her against a clear post. (vii) Professor Akhtar’s proposal was approved by the then Director after informing the Executive Committee about the representation and that it would be duly processed., The Office Memorandum dated 24 January 2019 brought these facts to the notice of the Central Vigilance Commission. The note thus contended that the Central Vigilance Commission should revisit its initial advice, inter alia, also for the reason that since at the relevant point in time Professor Akhtar was a permanent employee of Aligarh Muslim University, had her representation for absorption against a clear vacancy/post been declined, she could have returned to her parent employer in a post similar to the one she held in the National University of Educational Planning and Administration., It was also highlighted in the same communication that the Recruitment Rules provided for recruitment to the post of Senior Fellow either pursuant to an advertisement or by personal contract by invitation. The argument was that even if Professor Akhtar, in the first instance, was recruited against a leave vacancy, her subsequent absorption without any further advertisement was covered under the Recruitment Rules. This led to the Central Vigilance Commission revising its initial advice rendered via Office Memorandum dated 10 January 2019. The revision was carried out, as noticed above, through Office Memorandum dated 26 February 2019., We may point out that the Office Memorandum dated 26 February 2019 was preceded by a detailed note dated 13 February 2019 prepared by the then Director of the Central Vigilance Commission, Mr Mukesh Kumar. A perusal of the said note shows that the issue concerning the appointment of Professor Akhtar to the post of Senior Fellow against a leave vacancy was triggered by a complaint dated 3 April 2012. A fact‑finding enquiry was conducted by Mr Sanjay Kumar Sinha, Junior Scale (Management), which led to the generation of a report. The report, insofar as Professor Akhtar was concerned, stated that the lapses were only procedural and that no mala‑fide intent had been brought out., This report was received in the Vigilance Section of the Ministry of Human Resource Development on 15 October 2018. Having examined the report, the Chief Vigilance Officer, Ministry of Human Resource Development requested that the complaint be closed. Because the Central Vigilance Commission, on 10 January 2019, came to a different conclusion, a second round was started. As indicated above, after complete facts were brought to the notice of the Central Vigilance Commission, which is recorded in great detail in the note of its Director dated 13 February 2019, the initial advice dated 10 January 2019 was revised via Office Memorandum dated 26 February 2019., Thus, the examination of this material has led us to conclude that Professor Akhtar had no role to play in her employment in the National University of Educational Planning and Administration against a leave vacancy. The advertisement issued for the post of Senior Fellow (Educational Administration) did not advertise that applications were sought against a leave vacancy. The fact that Professor Akhtar’s representation for absorption against a clear vacancy/post was accepted by the Director cannot be put against her, for the reason that if her representation had been rejected, she would have returned to her parent institution, Aligarh Muslim University. Therefore, in our view, the revisionary advice was not mala‑fide, as was sought to be conveyed on behalf of the appellant., It is important to highlight that when the Selection Committee appraised the applications, there was, concededly, no vigilance case pending against Professor Akhtar. The National University of Educational Planning and Administration had indicated the same; a factor which, concededly, was taken into account by the Selection Committee while shortlisting Professor Akhtar amongst others for empanelment., Professor Ramaswamy’s letter dated 8 March 2020 is founded on newspaper reports. Quite obviously, Professor Ramaswamy did not have the benefit of perusing the official records. For the sake of convenience, the said letter, an extract of which is available in the impugned judgment, is set forth hereafter: “From recent newspaper reports, I am given to understand that there are serious questions regarding the bona fides of the Vice Chancellor Professor Akhtar, and in particular, that the Central Vigilance Commission has denied vigilance clearance. The Central Vigilance Commission (in an Office Memorandum dated 10 January 2019) has asserted ‘not to consider Dr. Najma Akhtar for any post‑retirement assignment or re‑employment in organizations / institutions / universities falling within the administrative control of the Ministry of Human Resource Development’ as quoted in the newspaper. This is a grave matter, since in the process of arriving at a short‑list, otherwise meritorious candidates were passed over by the Committee on account of the remotest vigilance clearance issues.”, Insofar as Mister Sarwar’s argument that the aspect of revision of the Central Vigilance Commission’s initial advice should have been placed before the Selection Committee is concerned, the same is untenable, for the reason that after empanelment the Selection Committee had become functus officio. The initial advice of the Central Vigilance Commission was rendered on 10 January 2019, i.e., after the Selection Committee had arrived at its decision at the meeting held on 28 November 2018. At that point in time, no complaint or vigilance enquiry was pending against Professor Akhtar. Therefore, she was correctly cleared for shortlisting and thereafter empanelment by the Selection Committee. Professor Ramaswamy’s concern, as articulated in the letter dated 8 March 2020, is, in our view, perhaps founded on a conception that there was a complaint which had not been closed at the time when they convened and took a decision for empanelling Professor Akhtar along with the other persons. This is clearly not so, as is evident from the record placed before us., This brings us to Mister Sarwar’s submission that the Summary Note dated 4 April 2019 brought to bear influence on the Visitor, which then led to Professor Akhtar’s appointment as the Vice Chancellor. The argument advanced on this aspect is that because the Minister of Human Resource Development gave his recommendation that Professor Akhtar should be appointed as the Vice Chancellor, the final decision taken by the Visitor was flawed in law., In our opinion, this submission fails to take into account the plain language of the second proviso to Statute 2(1). As noticed above, the second proviso to Statute 2(1) provides that if the Visitor does not approve of any of the persons so recommended, he may call for fresh recommendations. The second proviso has to be read alongside the main provision, i.e., Statute 2(1), which confers the power of appointment only on the Visitor. Clause (1), read with the second proviso appended to the statute, makes it abundantly clear that the Visitor had the discretion not to go by the recommendations made to him if he did not approve the names put forth before him by the Selection Committee. The Visitor, in such a situation, is empowered to call for fresh recommendations. Therefore, while an iterative process has been put in place for selecting the most suitable candidate for appointment to the post of Vice Chancellor, the Visitor is not bound by the recommendations made to him, which includes the recommendations made even by the Selection Committee, which is constituted in terms of clause (1) of Statute 2., Therefore, if the recommendations of the Selection Committee do not bind the Visitor, then surely the recommendation made by the Minister of Human Resource Development can have no impact on the final decision taken by the Visitor. The recommendation, at best, could be categorized as a superfluity., The real question, which Mister Sarwar articulated, is whether the recommendation created a bias or likelihood of bias in favour of Professor Akhtar. In our opinion, it did neither, as the Minister was not a part of the selection process. Further, he had no legal standing in terms of the statutory process configured for the appointment of the Vice Chancellor. Had the Minister been a part of the selection process, perhaps some weight could have been given to the submission advanced by Mister Sarwar., The practice of preparing Summary Notes and making a recommendation on the part of the Ministry of Human Resource Development is a regular feature, and not a device as was sought to be portrayed on behalf of the appellant in this particular case. The necessary averment made in that behalf, in the affidavit of the Ministry of Human Resource Development, is extracted hereafter: “It is submitted that the averments contained in Paragraphs 30 and 31 relate to the recommendation of the Minister of Education. In this regard, it is pertinent to mention that this is the general practice followed by the answering respondent in all the cases of Central Universities such as the appointment of Vice Chancellor, the appointment of Chancellor, statute framing/amendment etc., which are submitted to the Visitor and have the recommendation of the Honourable Minister of Education. Further, the recommendation of the Honourable Minister of Education is suggestive only and not mandatory.”, Evidently, the Summary Note prepared went through official channels, and the appellant has not brought on record anything that would show that the Summary Note and the recommendation made therein were out of the ordinary., While the recommendation by the Minister may not be a wholesome practice, the material placed before us does not indicate that it was done to bear influence on the Visitor. We have no material before us to come to a different conclusion. In the future, it may be advisable for the Ministry of Human Resource Development to eschew the practice of indicating, as to which candidate, according to it, fits the bill., Before we conclude, it may be relevant to note the scope and ambit of the Supreme Court of India’s power to issue a writ of quo warranto. Firstly, it empowers the Court to control executive action in matters concerning the appointment of persons to public offices. Second, the Court’s power is hemmed in by examining the executive’s choice in the backdrop of the following parameters: (a) Whether the appointment is contrary to the qualifications prescribed for the office? (b) Whether the manner of selecting the appointee is contrary to the relevant statutory provisions?, In effect, if any of the aforesaid parameters are infringed, the appointee would be categorized as a usurper, triggering the Court’s power to issue the writ of quo warranto., Therefore, what cannot be questioned by the Court is the choice of the appointee, as that lies within the ken of the Visitor. In this case, the appointee chosen is Professor Akhtar. Since she was appointed to a public office, the appellant had, in our view, the locus to move the Court and challenge her appointment., To assail the appointment of appointees to a public office, the litigant who moves the Court need not have any direct interest in the matter. To that extent, no fault can be found with the appellant in instituting the writ action. However, our examination of the record has not led us to conclude that in the appointment of Professor Akhtar, the iterative process put in place had been given a go‑by. Concededly, even the appellant has raised no issue regarding Professor Akhtar’s qualification to hold the office of the Vice Chancellor., During the hearing, Mister Sarwar also referred to the judgments set forth above in paragraph 20. Insofar as Gorakhpur University was concerned, this was a matter in which a challenge was laid to the appointment of three persons as members of the Uttar Pradesh Higher Education Services Commission. The writ petitioners had contended that the appointments were contrary to the statutory provisions contained in Section 4(2‑a) of the Uttar Pradesh Higher Education Services Commission Act, 1980. It was asserted by the petitioners that since the appointees did not meet the eligibility criteria in the aforesaid provision, recourse had been taken to Clause g(2‑a) of Section 4 of the 1980 Act. This clause allowed the State Government to appoint a person as a member of the Services Commission who, in its opinion, was an eminent person having made valuable contribution in the field of education. The Court found fault with the appointments on the following grounds: (i) None of the members met the qualification criteria prescribed for appointment as members of the Services Commission. (ii) There was no notification issued concerning vacancies available in the Services Commission, which resulted in a situation where only those who knew of the vacancies could lodge their applications. (iii) The recourse to the residuary clause was taken only to avoid the rigour of the qualification criteria, which inter alia stipulated a minimum period of experience that the candidates ought to possess, without the State Government forming an opinion, based on the material placed before it, that the person being considered was not only eminent but had also made valuable contribution in the field of education. (iv) There was no Search Committee formed to scrutinize the credentials, standing and integrity of the candidates under consideration, rendering the process flawed., It is against this backdrop that the Court invalidated the appointment of the three persons whose selection was assailed before it., Mister Sarwar attempted to apply the ratio of Gorakhpur University to this case by extrapolating the principle to the constitution of the Selection Committee. The phraseology of Clause g(2‑a) of Section 4 of the 1980 Act, as seen in Gorakhpur University’s case, is clearly different from the phraseology provided in Regulation 7.3 of the 2018 University Grants Commission Regulations. For the sake of convenience, the relevant part of the Clause and Regulation is set forth hereafter: “(2‑a) No person shall be qualified for appointment as a member unless he (g) is, in the opinion of the State Government, an eminent person having made valuable contribution in the field of education. The members of such Search‑cum‑Selection Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the University concerned or its colleges.”, As noticed above, the attribute that members of the Selection Committee were required to have is not found in Statute 2(1). Furthermore, for the reasons given above, it is clear that Justice (Retired) M. S. A. Siddique could be considered as an eminent person in the sphere of higher education. Pertinently, the appellant has not questioned the eminence of Justice (Retired) M. S. A. Siddique. It was the latter aspect, i.e., eminence in the sphere of higher education, which was flagged by the appellant. We have already adverted to the fact that Justice (Retired) M. S. A. Siddique was, as also noted by the learned single judge, exposed to aspects concerning educational institutions. This judgment is, thus, in our opinion, clearly distinguishable., In Dr. Kanwaljeet Singh’s case, the Court was called upon to consider the writ action filed by the appellant challenging the appointment of Dr. Dilip Kumar Dureha as the Vice Chancellor of Laxmibai National Institute of Physical Education, Gwalior, which was validly approved by the Appointments Committee of the Cabinet, based upon the recommendation of the Minister of State for Youth Affairs and Sports. The Search‑cum‑Selection Committee constituted for the purpose of appointment of the Vice Chancellor had recommended a panel consisting of three candidates. The recommendation was drawn up in a manner which put the name of the appellant, Dr. Kanwaljeet Singh, at the top, with the person recommended by the Minister, Youth Affairs and Sports, Dr. Dilip Kumar Dureha below him, followed by the third person, Ms. Dr. Nayana D. Nimkar. The record, as placed before the Court, bore the following endorsement made by the Minister, Youth Affairs and Sports: “I have examined the bio‑data of all three candidates. I recommend Dr. Dilip Kumar Dureha considering his merits. We may seek Appointments Committee of the Cabinet approval for the same.”, The Division Bench of this Court allowed the appeal broadly on the following grounds: (i) Given the Office Memorandums issued by the concerned Department, requiring the Search‑cum‑Selection Committee to set forth their recommendation in order of merit, it would have to be construed that the recommendation made by the Search‑cum‑Selection Committee was indeed in order of merit, which put the appellant in the first position. (ii) There were no reasons given by the Minister, Youth Affairs and Sports as to why he chose Dr. Dilip Kumar Dureha over the appellant, although he was below him in the order of merit, as captured in the recommendation of the Search‑cum‑Selection Committee., Pertinently, while emphasizing the need to give reasons by an administrative authority, the Court noticed the Constitution Bench judgment of the Supreme Court rendered in the case of S. N. Mukherjee v. Union of India. The relevant part of the observation is extracted hereunder: “23. ...”
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2
The requirement of an administrative authority to record reasons for its decisions was considered by the Constitution Bench of the Supreme Court of India in S.N. Mukherjee v. Union of India (supra). In paragraph 9 of the said judgment (All India Reporter p.1988) one of the first questions formulated was \is there any general principle of law which requires an administrative authority to record the reasons for its decisions\. It was noticed that there was a divergence of opinion on the issue in common law countries. While in the United States of America, the Federal Legal Procedure Act 210/2021 Administrative Procedure Act, 1946 required administrative decisions to indicate a statement of findings and conclusions as well as reasons or basis therefor, in England there was no such requirement. A reference was then made to the recommendations of the Donoughmore Committee and the Franks Committee which led to the enactment in the United Kingdom of the Tribunals and Enquiries Act, 1958 which mandated the tribunal or Minister to furnish a statement, either written or oral, and the reasons for the decision, if requested, on or before the giving of notification of the decision to support the decision. The Tribunals and Enquiries Act, 1971 also contained a similar provision. As far as India was concerned, the 14th Report of the Law Commission of India relating to reforms in judicial administration recommended that administrative decisions should be accompanied by reasons. A reference was made to the decision of the Supreme Court of India in Madhya Pradesh Industries Ltd. v. Union of India (supra) and Bhagat Raja v. Union of India, All India Reporter 1967 Supreme Court 1606. Reference was also made to the decisions in Travancore Rayon Ltd. v. Union of India (1969) 3 Supreme Court Reporter 868 : All India Reporter 1971 Supreme Court 862; Mahabir Prasad Santosh Kumar v. State of Uttar Pradesh (1970) 1 Supreme Court Reporter 764 : All India Reporter 1970 Supreme Court 1302 and Raipur Development Authority v. Chokhamal Contractors (1989) 2 Supreme Court Reporter 721 : All India Reporter 1990 Supreme Court 1426. Thereafter in paragraphs 34 and 35, the Supreme Court of India observed as under (All India Reporter p.1995):, \34. The decisions of the Supreme Court of India referred to above dictate that with regard to the requirement to record reasons the approach of the Supreme Court of India is more in line with that of the American Courts. An important consideration which has weighed with the Supreme Court of India for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision is that such a decision is subject to the appellate jurisdiction of the Supreme Court of India under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts of India under Article 227 of the Constitution and that the reasons, if recorded, would enable the Supreme Court of India or the High Courts of India to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Supreme Court of India in taking this view are that the requirement of Legal Procedure Act 210/2021 recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency.\n\n35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with the Supreme Court of India in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.\, A careful perusal of the extract set forth from the said judgement would only highlight the principle that we noted hereinabove, which is that this obligation rests on an administrative authority when it is exercising quasi-judicial functions., The ratio of this judgement, to our minds, is distinguishable, as this is a case where the candidate who had been denied appointment had approached the Supreme Court of India. The power exercised by the Minister, YAS was, in a sense, quasi-judicial in nature. Therefore, the matter fell within the four corners of service jurisprudence. In the instant case, a public interest petition has been filed. The excluded candidates have not approached the Supreme Court of India with any grievance. The Selection Committee had made their recommendation in alphabetical order. Professor Akhtar's name was thus placed in the second position. The argument, which found favour with the Division Bench of the Supreme Court of India in Dr. Kanwaljeet Singh's case, i.e., that the Minister, YAS had not given reasons for its recommendation, is sought to be utilised to impugn the empanelment made by the Selection Committee in this case, on the ground that no reasons were given. It is important to note that even in Dr. Kanwaljeet Singh's case, a perusal of the judgement, facially, shows that no reasons were furnished by the Search-cum-Selection Committee. Therefore, the comparison made by Mr Sarwar is misconceived. The ratio of the judgement does not apply to the facts that obtain in the instant case., In Rajesh Awasthi's case, the broad facts were that the appellant had been elected as the Chairperson of the Uttar Pradesh State Electricity Regulatory Commission (SERC). The empanelment of the appellant had been carried out by the Selection Committee, constituted under Section 85(1) of the Electricity Act, 2003., At the relevant time when the selection process was on, and the appellant, along with another person, was empanelled, the appellant was working as the Joint Vice-President of J.P. Power Ventures Ltd. Sub-section (5) of Section 85 of the 2003 Act required the Selection Committee to satisfy itself before recommending any person for appointment, that the concerned person did not have any financial or other interest which is likely to affect prejudicially his functions as Chairperson or Member of the SERC. For the sake of convenience, the provision is extracted hereunder: (5) Before recommending any person for appointment as the Chairperson or other Member of the State Commission, the Selection Committee shall satisfy itself that such person does not have any financial or other interest which is likely to affect prejudicially his functions as Chairperson or Member, as the case may be., The Supreme Court of India sustained the judgement of the Allahabad High Court on the following grounds: (i) The plain language of sub-section (5) of Section 85 of the 2003 Act required the Selection Committee to satisfy itself about the aspects mentioned therein, i.e., the candidate's financial or other interest, which may affect prejudicially his functions, before his name was recommended for appointment. The Court ruled that the obligation to ascertain whether the person whose name is recommended had any financial or other interest, which was likely to prejudicially affect his functions as Chairperson, lay on the Selection Committee, and that this satisfaction had to be arrived at before making the recommendation. (ii) The Court noted that although the Selection Committee had empanelled the candidate, it had passed on the responsibility of ascertaining satisfaction, as provided in subsection (5) of Section 85 of the 2003 Act, to the State Government. The facts disclosed demonstrated that a decision was taken by the Selection Committee to empanel the appellant, along with another person on 26.12.2008. The State Government appointed the appellant as the Chairman of the SERC on 29.12.2008. The appellant had submitted a letter to the State Government on the same date, i.e., 29.12.2008, stating that he had resigned from his previous assignment on 27.12.2008, and thus severed all his links to the private sector. Undoubtedly, the decision of the Court that the Selection Committee should have satisfied itself with the suitability of the candidate before he was empanelled cannot be put at par with the facts which are present in the instant case., In the instant case, on the date when the empanelment was made by the Selection Committee, no complaint or vigilance enquiry was pending against Professor Akhtar. The Selection Committee had, based on the material available before it, empanelled Professor Akhtar. This decision was taken on 28.11.2018. The Central Vigilance Commission's initial advice came on 10.01.2019, which was revised, based on inputs from the Central Vigilance Officer, Ministry of Human Resource Development, on 26.02.2019. Therefore, the ratio in Rajesh Awasthi's case, again, cannot be made applicable to the facts and circumstances that obtain in the present case., Lastly, a perusal of the full bench judgement rendered by the Punjab and Haryana High Court in Hardwari Lal broadly reveals that this was a case where the petitioner had approached the Supreme Court of India with the grievance that his term as the Vice-Chancellor of Maharshi Dayanand University, Rohtak (University) was not being renewed, contrary to the promise made to him by the Chancellor. In this context, assertions were made that the then Chancellor had assured the petitioner that he would initially get a term of three years as the Vice-Chancellor of the University, and that the term would be renewed for another three years., The prayer for the renewal of appointment of the petitioner as the Vice-Chancellor was contested by the respondents therein, i.e., the Chancellor, Chief Minister of Haryana, as well as the Joint Secretary, Education Department, Government of Haryana. It was inter alia argued that no absolute right inhered in the petitioner to obtain renewal. Furthermore, an argument was also advanced that since respondent no.1, as the Governor of Haryana was the ex officio Chancellor of the University, no writ could be issued against the Chancellor. The Punjab and Haryana High Court, in this context, inter alia ruled that the Governor had no absolute immunity conferred on him under Article 361 of the Constitution insofar as his functions as the Chancellor were concerned., Besides this, the Punjab and Haryana High Court also examined the validity of Section 9-A of the Maharishi Dayanand University (Amendment) Act, 1980, which prevented a person from continuing in the post of the Vice-Chancellor or Pro-Vice-Chancellor beyond the age of 65 years. The Court held that the provision was designed to operate to the detriment of only the petitioner, whose term had to be renewed as a result of the promise/assurance extended to him. Mr Sarwar relied on paragraphs 111, 112, 121 and 125 of the judgement to contend that the Visitor had complete discretion in the matter, which could not be hemmed in by the State, i.e., the Ministry of Human Resource Development. As a proposition, one cannot quibble with this submission. The question which arises is whether the Visitor's discretion in the instant case was sought to be impeded. The Visitor, upon examination of the material placed before him concerning the empanelled candidates, decided to appoint Professor Akhtar as the Vice-Chancellor. Therefore, on facts, the ratio of the aforesaid judgement would not apply to the facts set out in the instant case., Thus, for the foregoing reasons, we are disinclined to interfere with the conclusion arrived at by the learned single judge., The appeal is, accordingly, dismissed., Parties will, however, bear the burden of their respective costs.
id_253
0
Mister Pravin Naik, son of Tulshidas Naik, aged 54 years, and resident of Trimurti, Chadrawadda, Fatorda, Margao, Goa, is the Appellant. Versus Mister Shrinivas Prabhu Dessai, son of Rohidas Prabhudessai, married, age 56 years, service, resident of K1 CD Good Earth, Dongorwaddo, Fatorda, Margao, Goa, is the Respondent. Miss Swati Kamat Wagh, Advocate appearing pro bono for the Appellant. Mister Varun Bhandankar, Advocate under Legal Aid Scheme for the Respondent., Heard Miss Swati Kamat Wagh, learned counsel for the Appellant, and Mister Varun Bhandankar, learned counsel for the Respondent, on 4 May 2023. Considering the decision of the Honourable Supreme Court in Commissioner, Mysore Urban Development Authority versus S. S. Sarvesh in Civil Appeal No. 1463 of 2019 decided on 5 February 2019, leave is granted to convert this petition into an appeal from order. Necessary amendment to be carried out immediately., The appeal is admitted and, with the consent, taken up for final disposal., The appeal challenges the orders dated 9 October 2019 and 12 February 2020 made by the Court of Adhoc District Judge‑1, First Tribunal Court – I, South Goa, Margao (Appeal Court). By the order dated 9 October 2019, the Appellant's Regular Civil Appeal No. 67/2018/FTC‑I was dismissed for default due to the non‑appearance of the Appellant and the advocate provided to him under the Legal Aid Scheme. By the order dated 12 February 2020, the Appeal Court dismissed the Appellant's Civil Miscellaneous Application No. 133/2019 seeking restoration or readmission of the appeal., The record indicates that the Appellant and his advocate under the Legal Aid Scheme were not diligent in pursuing the appeal. The main reason for this lack of diligence is somewhat surprising. The Appellant and his advocate believed that the presiding officer would be biased because, in the trial court, this presiding officer had framed the issues. For this reason, it appears that the Appellant and the advocate under the Legal Aid Scheme were avoiding a hearing on merits., The record also shows that the Appellant had applied for transfer on the above ground, but the Principal District Judge, South Goa, dismissed the transfer application. There was no clarity on whether such dismissal was for default or on merits., On 9 October 2019, when the appeal was dismissed for default, neither the Appellant nor his advocate under the Legal Aid Scheme was present. In the application for setting aside the ex‑parte order and readmission of the appeal, the Appellant stated that due to some personal hard‑pressed difficulties, he could not remain present in the High Court of Goa on the said date. There is a further statement that the advocate for the Appellant who appears on the free Legal Aid Scheme had some other engagement and hence could not be present in the High Court of Goa when the appeal came to be dismissed., Mister Bhandankar points out that the reasons for the absence on 9 October 2019 are wholly inadequate. Further, he points out that such reasons must not be considered in isolation but must be considered with the fact that on numerous occasions, the Appellant and his advocate failed to remain present. Finally, Mister Bhandankar referred to the observations in paragraph 8 of the impugned order dated 12 February 2020., Paragraph 8 of the impugned order dated 12 February 2020 reads as follows: 'The appeal was filed on 10 July 2018. The record indicates that from 10 July 2018 till 16 November 2018 the matter was kept for the appearance of the Respondent. On 7 December 2018 the Respondent came to be served. On 4 January 2019 this Court received the records of Regular Civil Appeal No. 67/2018. On 22 January 2019 the Appellant filed an application to send the file to any other court on the ground that the presiding officer has framed the issues in the suit and conducted the part of the matter when the presiding officer was functioning as a Trial Judge. Thereafter the Appellant took time for making necessary application for transfer of the appeal and later on, on 22 February 2019 informed that the application has been made to the District Court to transfer the appeal. Thereafter, on 16 July 2019, 30 July 2019, 28 August 2019 and 24 September 2019 several opportunities, including last and final opportunities, were given to the Appellant to proceed with the matter or to take steps. On 9 October 2019 the Appellant as also the Respondent remained absent till 12.00 noon. Hence the appeal came to be dismissed for default.', The record, however, shows that even the Respondent or his advocate were not present on some occasions, including on 9 October 2019 when the appeal came to be dismissed for default., Considering the entire material on record, it does appear that the Appellant and his advocate under the Legal Aid Scheme were not diligent in pursuing the appeal. However, the Appellant, on affidavit, explained why he could not remain present on 9 October 2019. The High Court of Goa rejected that explanation mainly by referring to a lack of antecedent diligence on the Appellant's part., The Appellant's advocate under the Legal Aid Scheme should also have been more diligent in handling the matter. When the matter is accepted under the Legal Aid Scheme, the appointed advocate must diligently attend to the matter. The excuse of being engaged in some other court should not be put forth; in any case, it should not be continuously put forth. Priorities have to be given by the advocate to the matters under the Legal Aid Scheme, even though the payment schedule for such matters may not be commensurate to the fees such an advocate would possibly command in other matters. Ultimately, this is the service that not only the legal community but also the judiciary owes to the litigating member of the public who may not be able to afford the services of an advocate. The litigants should not get the impression that quality legal services are not provided to them merely because they are not in a position to afford the services of advocates by paying substantial fees. Access to justice can never be denied to the litigant based upon their economic capacity. Therefore greater responsibility is placed on those who appear under the Legal Aid Scheme., Further, advocates appointed under the Legal Aid Scheme, or others, should not unnecessarily involve themselves in making allegations of bias against the presiding officers unless the situation clearly warrants it and the facts support such a course. They must attend to the case and conduct it to the best of their ability. In a given case, where the situation genuinely requires seeking a transfer, it would no doubt be open to the advocate under the Legal Aid Scheme to advise the litigant accordingly. However, it would not be proper for any lawyer, much less the lawyer appointed under the Legal Aid Scheme, to avoid appearing before a particular presiding officer or keep seeking adjournments based upon some fanciful notion entertained by the litigant about the bias of the presiding officer., Mister Pravin Naik, the Appellant, is present in the High Court of Goa. He tenders an apology and states that henceforth he will not make any allegations against the judges without any basis. However, he requests that another chance be granted to him to pursue his appeal against the money decree. To the Court's query about whether he will pay any costs, he states that he will pay the costs of Rs 10,000 for readmission or restoration of his appeal. He says that he has deposited a portion of the decretal amount before the executing court and is serious about the appeal., Considering the peculiar circumstances, the Appellant deserves an additional opportunity, mainly because some explanation was offered for the absence on 9 October 2019. This explanation was not considered and accepted primarily because of the lack of antecedent diligence. Nevertheless, granting such an opportunity would undoubtedly occasion some prejudice to the Respondent. However, this prejudice can be minimized, if not eliminated, by awarding costs and further directing the Appeal Court to dispose of the Regular Civil Appeal No. 67/2018/FTC‑I as expeditiously as possible and in a time‑bound manner., Although, in several cases, the Honourable Supreme Court has held that the party should not be made to suffer for the fault of his advocate, the same does not mean that the opposite party should be made to suffer for the fault of the advocate. The interest of all the parties must be balanced to the extent possible. The antecedent diligence is not entirely irrelevant, but that could not have formed the chief basis not even to consider or reject the cause shown for absence on 9 October 2019., Accordingly, this appeal is disposed of by the following order: (a) The impugned orders dated 9 October 2019 and 12 February 2020 are set aside; this is subject to the Appellant paying the offered costs of Rs 10,000 within four weeks from today. (b) Regular Civil Appeal No. 67/2018/FTC‑I is restored/readmitted to the file of the Appeal Court for disposal; (c) The Appellant and the Respondent are to appear before the Appeal Court on 19 June 2023 at 2.30 p.m. and file an authenticated copy of this order; (d) Along with the authenticated copy of this order, the Appellant must file proof of payment/deposit of costs; (e) The above relief is granted subject to the Appellant paying the Respondent Rs 10,000 within four weeks from today; (f) The amount may either be directly paid to the Respondent or deposited before the Appeal Court; (g) If the amount is deposited before the Appeal Court, then the Respondent will have the liberty to withdraw the same unconditionally; (h) If there is a failure to deposit the amount of the costs, then this appeal shall be deemed to have been dismissed without any further reference to the High Court of Goa; (i) The High Court of Goa has not gone into the rival contentions of the parties on the merits of the appeal, and therefore, the appeal must be decided on its own merits and in accord with law; (j) The Appeal Court to either hear the final arguments on the above date or fix some clear date for hearing the final arguments; (k) The learned counsel for the parties assured the High Court of Goa that no adjournments would be applied unless for pressing reasons; (l) Mister Pravin Naik also assured the High Court of Goa that he would not delay the matter; (m) The Appeal Court must dispose of the Regular Civil Appeal No. 67/2018/FTC‑I as expeditiously as possible and in any case not later than 30 September 2023., Miss Swati Kamat Wagh has appeared in the High Court of Goa pro bono. This Court acknowledges the efforts put in by her. Further, at the Appellant's request, Miss Swati Kamat Wagh has agreed to appear for the Appellant before the Appeal Court in Margao. This is appreciated by the Court and the Appellant who is present in the Court., Similarly, Mister Varun Bhandankar appeared for the Respondent under the Legal Aid Scheme before the High Court of Goa. Again, he discharged his duties with diligence and fairness. This is greatly appreciated. The Goa State Legal Services Authority must pay his fees according to the rules., The appeal is disposed of in the above terms with costs. All concerned are to act on an authenticated copy of this order.
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These applications coming on for admission this day, the Hon'ble High Court of Madhya Pradesh passed the following: These are first bail applications filed by the applicants under Section 439 of the Code of Criminal Procedure for grant of regular bail relating to FIR No. 498/2023, dated 07.06.2023 registered at Police Station Kotwali Damoh, District Damoh, Madhya Pradesh for the offences punishable under Sections 295A, 506 and 120B of the Indian Penal Code, Sections 75 and 87 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and Section 3/5(1) of the Madhya Pradesh Freedom of Religion Act, 2021. Applicants are in detention since 11.06.2023., As per the prosecution story, a complaint was received alleging that students not belonging to Muslim faith and who are studying in Ganga Jamuna Higher Secondary School, Futera Ward, Damoh from class Nursery up to class XII are being compelled to wear salwar kurti, head scarf (Hijab) and dupatta (scarf). It was also alleged that in the school, for all girl students wearing of head scarf (Hijab) is essential with the dress and when they do not wear head scarf (Hijab), they are being compelled for the same by teachers and the principal. All girl students are required to wear head scarf (Hijab). Urdu is being taught as a compulsory subject and prayers belonging to Muslim faith are being recited and taught in the school. It was alleged that students belonging to Hindu and Jain religion cannot put tilak on the forehead and cannot tie sacred thread (kalawa) on their wrist and if someone wears the sacred thread (kalawa) or puts tilak, he is being forcibly prevented by the teachers., After receiving the complaint, the matter was inquired into and investigated. In the course of investigation, the statements of some girl students were recorded and the head scarf (Hijab) which is compulsory to wear in the Ganga Jamuna Higher Secondary School was seized. On the basis of material collected, a case was registered against the Principal Asfa Sheikh, teacher Anas Athar and peon Rustom Ali and the management of the school for commission of the aforesaid offences., Learned counsel for the applicants submitted that the applicants have not committed any offence, they are innocent and have been falsely implicated. By producing a copy of the resolution passed by the school management, counsel submitted that it was the Managing Director Mohd. Idrish and members of the school management who prescribed the dress code and made it compulsory for all girl students to wear head scarf (Hijab). This shows that the head scarf has been made mandatory by the school management and not by the present applicants. The school is a minority religious institute. The present applicants are the principal and teachers and they only follow the instructions issued by the school management. It is submitted that after investigation, a charge sheet has been filed against the present applicants. Therefore, it is prayed that the applicants may be released on bail., Learned counsel for the State opposed the grant of bail to the applicants. By reading out the statements of the girl students and others, counsel submitted that the girl students are being compelled to wear head scarf (Hijab), whereas minority institutions cannot compel students belonging to other religions to wear head scarf (Hijab) and also cannot prevent students of other religions from wearing sacred thread (kalawa) and putting tilak on the forehead. It also cannot compel them to read Urdu language necessarily and to recite prayers belonging to the Islamic faith. As the students are being compelled by the principal and teachers, they should not be released on bail., Countering the submissions of counsel for the State, counsel for the applicants submitted that no offence under Section 3/5(1) of the Madhya Pradesh Freedom of Religion Act is made out as there are no allegations against them that they are involved in forced conversion of the students of the said school. It is further submitted that, as per the documents filed by the applicants, the management is liable for such offence. Therefore, they have prayed for grant of bail., In this case, after investigation, a charge sheet has been filed against the applicants who are the principal, teachers and peon. The main allegations are against the management of the school. The trial of the case will take considerable time. Therefore, without expressing any opinion on the merits of the case, but having taken into consideration all the facts and circumstances, I am of the view that it is a case in which the applicants may be released on bail., Consequently, these bail applications under Section 439 of the Code of Criminal Procedure for grant of bail filed on behalf of the applicants are allowed, subject to the following conditions to be strictly followed by the applicants: Applicants shall not repeat the commission of the offence in which they are being released on bail. They shall not prevent students of other religions from wearing the essentials of their own religion such as wearing a sacred thread (kalawa) and putting tilak on the forehead. They shall not compel the students of other religions to read or study any material or language which has not been prescribed or approved by the Madhya Pradesh Education Board. They shall not provide any religious education or material belonging to the Islamic faith to the students of other religions and shall impart only modern education as contained in Section 53(1)(iii) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Girl students of other religions i.e. Hindu and Jain etc. shall not be compelled to wear head scarf (Hijab) anywhere in the school premises or in the classrooms., It is directed that applicants Asfa Sheikh, Anas Athar and Rustom Ali be released on bail on furnishing a personal bond incorporating the aforesaid conditions, in the sum of Rupees Fifty Thousand only each with one solvent surety each in the like amount to the satisfaction of the trial Court, for their regular appearance before the trial Court during trial with a condition that they shall appear before the concerned Court on all the dates fixed by it during trial. They shall also abide by all the conditions enumerated under Section 437(3) of the Criminal Procedure Code. This order shall be effective till the end of the trial. However, in case of bail jump and breach of any of the conditions of bail, it shall become ineffective.
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Ashwini V Ali Mohammed Balwa, Petitioner, versus Directorate of Enforcement (Prevention of Money Laundering Act), Respondent. Salim Usman Balwa, Petitioner, versus Directorate of Enforcement, Respondent. Hotel Balwas Pvt Ltd, Petitioner, versus Directorate of Enforcement, Respondent. Mr Vijay Aggarwal, appearing with Mudit Jain, Yash Agrawal, Jasmin Purani, Yash Agrawal and Jasmin Puravi, in behalf of Rahul Agarwal for the Petitioner in Writ Petition No. 15474 of 2022 and Writ Petition No. 15652 of 2022. Mr Chetan Kapadia, appearing with Mudit Jain, Rahul Agarwal and Jasmin Puravi for the Petitioner in Writ Petition No. 15664 of 2022. Mr H.S. Venegavkar, appearing with Aayush Kedia for the Respondent in all Writ Petitions. Mr Rajiv Sharma, appearing with Kuldeep Singh, Enforcement Directorate Officer, in all Writ Petitions., 3 February 2023. Uploaded on 06/02/2023. Downloaded on 06/02/2023 20:11:30. Dr Neela Gokhale, Judges. DATED: 3 February 2023., The three petitions have taken an unconscionable amount of the Supreme Court of India's time, although it was clear from the moment the matters were called that, at the very least, the Petitioners ought to have considered amending the petition to include a challenge to the order dated 30 January 2023 passed under Section 8 of the Prevention of Money Laundering Act, 2002 (the PMLA Act). Mr Venegavkar for the Respondent authority pointed out at the very beginning that such an order had been passed. Mr Aggarwal for the Petitioner in Writ Petition No. 15474 of 2022 said that though he knew the order had been passed, it had not yet been served. We specifically asked whether the Petitioners wanted time to include an amendment. We were permitted to grant leave to amend immediately even without a draft amendment, let alone a formal interim application for amendment. Presumably on instructions, Mr Aggarwal said that he wished to press his petition without even considering the position and whether an amendment was necessary. He then proceeded to address us for over an hour. It then turns out that every point that was sought to be urged before us under Article 226 of the Constitution of India in relation to Section 17 of the Act and other sections, including citation of authorities, was already previously canvassed before the adjudicating authority. These submissions are noted at page 31 of the 30 January 2023 order, from paragraph 6 onwards. This is captioned as the gist of the reply. That summation goes on for a good six pages., We repeatedly asked Mr Aggarwal whether it was his case that no reasons at all were recorded as required by Section 17(1) or whether we were being asked to examine the sufficiency of those reasons. At one point, we were told, admittedly without seeing the Section 17 order, that there were no reasons at all. Surprised by so emphatic an assertion, we asked Mr Venegavkar to show us the file. He had it brought to the Supreme Court of India over the lunch recess and showed it to us. We find that there are indeed reasons. We make no comment on those reasons., In the meantime, Mr Aggarwal sought to proceed, sight unseen, on the basis that even if there were reasons these had to be insufficient, because, on his exposition of the merits of the case, there could not possibly have been adequate reasons. In other words, Mr Aggarwal's canvass was that the reasons were bound to be insufficient. This argument was advanced without even demanding a copy of the Section 17(1) reasons (and we leave open the question of whether the Petitioners are even entitled to that, which Mr Venegavkar refutes) or even seeing the subsequent Section 8 adjudication order on the question of the seizure. Even that order, apart from noting the arguments of the respondents before the officer, notes that there were reasons recorded as required by Section 17(1)., Various authorities were also shown to us for the proposition that a writ court is not denuded of its powers to intervene in an appropriate case and that the existence of an alternate remedy is not always a bar. This principle is well settled and does not require constant reiteration. But the question is whether we are being asked to judicially review the decision‑making process or the merits of a decision. When a petitioner invokes our writ jurisdiction under Article 226 of the Constitution of India, we are engaged in a judicial review of administrative or quasi‑judicial action. Typically, we do not look at the merits of the decision itself. If there are no reasons at all, or if those reasons have no nexus with the action, or if this can be shown on cogent material perhaps, other considerations may arise. However, this is not to be taken for granted or assumed, and to embark on this, the Petitioner must at the very least have the material to be able to show to the Supreme Court of India. There is no room for speculation here. The argument that has taken over an hour and a half is premised entirely on conjecture and surmise: first, that there were no reasons recorded at all (factually incorrect); and that whatever be the reasons recorded, they could not have been sufficient or adequately connected to the action (without seeing the material). The entire argument is constructed on the basis that the facts according to the Petitioner fall in a certain manner and no other view is ever possible; there can be no reasons, and the reasons, if any, are allegedly legally vulnerable., It is only now, at this late stage, when we indicated that we are not impressed by these arguments, and are inclined to reject the petitions, that both Mr Aggarwal and Mr Kapadia for the Petitioners in one of the companion matters, seek leave to amend. Mr Aggarwal now states that he proposes to include a prayer for disclosure of the Section 17(1) reasons. Mr Kapadia, perhaps more sagely, says that he intends to challenge the impugned Section 8 adjudication order of 30 January 2023., So be it. We grant leave to amend. We are, as we said, not asking for a draft amendment or an interim application. That will only waste time. But we will require these amendments to be effected with a proper re‑verification of the petition, and that re‑verification is to be done before an officer of the Supreme Court of India, not a notary public. Amendments are to be carried out by 17 February 2023., There remains this question of costs. Mr Venegavkar leaves this to the Supreme Court of India, correctly pointing out that this is a matter between the Petitioners and the court, though he does mention the amount of money alleged to be involved in this money laundering. We are not concerned with that amount. But we do believe that when we have as long a daily list as we do and others are waiting patiently with cases that range from service to pensions and to non‑payment of transit rent and delayed possession in redevelopment cases, to consume the time of the Supreme Court of India is both unfair and unconscionable. It is not just a matter of wasting the Court's time. It is the consumption of that time at the cost of other litigants, many of them in extremely dire straits, some very needy and in abject conditions. Matters are worsened when, at the outset, before even arguments began, not only did Mr Venegavkar for the Respondent point out the possible need for an amendment, but we also asked Mr Aggarwal if he wanted to amend. The answer was clearly no. Instead, this request for an amendment came only after more than an hour of persistent argumentation., Therefore, while we grant leave to amend as noted above, we do so subject to the Petitioners paying costs of Rs. 1 lakh. Mr Venegavkar says the costs may be routed to an appropriate worthy cause. We appreciate that submission. The amount of Rs. 1 lakh in each of the petitions is to be paid by 17 February 2023 to St. Jude Child Care Centres, a voluntary organisation that supports cancer‑affected children and their families. The remittance details are as follows: Name: St. Jude India Child Care Centres, Account No.: 02402320004130, Bank Name: HDFC Bank Ltd., Branch: Sandoz House, Dr. AB Road, Worli, Mumbai 400., Proof of payment of costs is required before the Registry permits the amendments to be carried out., The amended petition will be served on Mr Venegavkar's attorneys by 22 February 2023., The petition for directions will be listed on 24 February 2023., We make it clear that it is not necessary for Mr Venegavkar to file an Affidavit-in-Reply. We leave it to him to decide whether he wishes to proceed without an Affidavit-in-Reply. In any case we will endeavour to dispose of all three petitions finally on that date., As regards the amendments, all contentions are kept open on both sides.
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Sudha Bharadwaj, aged about 59 years, is currently incarcerated in Byculla District Prison, Byculla, Mumbai. She otherwise resides at F4/216, South End Apartments, Eros Garden Colony, Surajkund, Faridabad. The applicant/accused No. 9 is the National Investigation Agency, 7th Floor, Cumballa Hill, MTNL Telephone Exchange Building, Peddar Road, Mumbai 400 026, and the State of Maharashtra through Vishrambaug Police Station., The respondents are: Sudhir Prahlad Dhawale, aged 50 years, Indian inhabitant, residing at Sarnath Tower, A‑Wing, 7th Floor, Room No. 707, Buddha Nagar Co‑op. Housing Society, Nimonibaug, Govandi, Mumbai; Rona Jacob Wilson, aged 48 years, Indian inhabitant, residing at G‑1, DDA Flats, Munirka, New Delhi‑110067; Surendra Pundlik Gadling, aged 51 years, Indian inhabitant, residing at Plot No. 79, Misal Layout, Vaishali Primary School, Samrat Ashok Chowk, Post Jaripatka, Nagpur; Dr. Shoma Kanti Sen, aged 61 years, Indian inhabitant, residing at S/5, 2nd Floor, Ruturaj Apartment, Bharat Nagar, Amravati Road, Nagpur‑440033; Mahesh Sitaram Raut, aged 33 years, Indian inhabitant, residing at Plot No. 83, Dhangavdi, Pimpal Road, Nagpur; P. Varavara Rao, aged 80 years, Indian inhabitant, residing at 419, Himasai Heights, Lane No. 6, Jawahar Nagar, Secunderabad; Vernon Stanislaus Gonsalves, aged 62 years, Indian inhabitant, residing at C3, New Prem Vasundhara, Mahakali Caves Road, Andheri (East), Mumbai; and Arun Thomas Ferreira, aged 46 years, Indian inhabitant, residing at 401, Sharon C.H.S. Annaji Sundar Marg, Charai, Thane 400 601. All applicants are presently in judicial custody and lodged at Yerwada Central Prison, Pune., The applicants are versus the State of Maharashtra and the Assistant Commissioner of Police, Swargate, Pune City, Pune. The Director General of the National Investigation Agency, CGO Complex, Lodhi Road, New Delhi, also appears as a respondent. Counsel for the applicant includes Dr. Yug Mohit Chaudhary as well as Ms. Payoshi Roy and Ms. Chandni Chawla. Counsel for the respondent‑NIA includes Mr. Anil C. Singh, Additional Solicitor General, as well as Mr. Sandesh Patil, Mr. Aditya Thakkar, Mr. Chintan Shah, Ms. Smita Thakur, Mr. Pranav Thakur and Mr. Vishal Gautam. Additional counsel for the respondents includes Mr. Barun Kumar, Mr. Karl Rustomkhan and Ms. Susan Abraham on behalf of the applicants in APL No. 1458/2019 and IA/376/2020, and Advocate General Mr. A. A. Kumbhakoni with Smt. A. S. Pai, PP, Mrs. S. D. Shinde, APP and Mr. Akshay Shinde, B Panel Counsel for the respondent‑State., These applications under section 482 of the Code of Criminal Procedure, 1973 seek enlargement of bail for the applicants under section 167(2) of the Code read with section 43‑D(2) of the Unlawful Activities (Prevention) Act, 1967 in National Investigation Agency Special Case No. 871 of 2020, arising out of first information report No. 4 of 2018 initially registered with Vishrambaug Police Station. The learned judge who extended the period for investigation under section 43‑D(2) of the Unlawful Activities (Prevention) Act and took cognizance of offences punishable under sections 120B, 121, 121(A), 124(A), 153A, 505(1)(b), 117, 23 of the Indian Penal Code and sections 13, 16, 17, 18, 18‑B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act was not legally empowered to grant such extension and take cognizance., Since the factual backdrop is largely similar and common questions of law arise, both applications are determined by this common judgment and order. The background facts leading to these applications are as follows: Tushar Ramesh Damgude lodged a report on 8 January 2018 with Vishrambaug Police Station in connection with a programme organised under the banner Elgaar Parishad on 31 December 2017, alleging commission of offences punishable under sections 153A, 505(1)(b), 117 read with section 34 of the Indian Penal Code. On 6 March 2018 an offence punishable under section 120B of the Indian Penal Code was added. Searches were conducted at various places. On 17 May 2018 offences punishable under sections 13, 16, 17, 18, 18‑B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act were added. On 28 August 2018 the applicant P. Varavara Rao, Gautam Navlakha, Vernon Gonsalves and Arun Ferreira were arrested by the Pune police., The applicant was produced before the Chief Judicial Magistrate, Faridabad, Haryana, who granted transit remand for two days. On the same day a habeas corpus petition was filed on behalf of the applicant as Criminal Writ Petition No. 701 of 2018 before the Punjab & Haryana High Court. The applicant was directed to be kept under house arrest under the supervision of Surajkund police. Writ Petition No. 260 of 2018 was filed by Romila Thapar and others in the Supreme Court of India. By an order dated 29 August 2018, the house arrest was extended till further orders. The writ petition was dismissed on 28 September 2018, but the interim order continued for four weeks. The bail application preferred by the applicant was dismissed by the Sessions Court, Pune, on 26 October 2018., On 27 October 2018 the applicant was taken into custody by Pune police. The learned Additional Sessions Judge, Pune (Shri K. D. Vadane), before whom the applicant was produced, remanded the applicant to police custody for ten days. On 22 November 2018 the public prosecutor filed a report (Exhibit 33) seeking extension of the period for investigation. On 26 November 2018 the applicant filed an application (Exhibit 43) for bail under section 167(2) of the Code, as the 90‑day period from the date of arrest and production before the magistrate had expired. The learned Sessions Judge, on the prosecutor’s report, extended the period of detention by 90 days., Subsequently, the charge‑sheet was filed against the applicant and co‑accused in the Court of the learned Additional Sessions Judge, Pune. By an order dated 21 February 2019, the learned Additional Sessions Judge (Shri K. D. Vadane) took cognizance of the offence and issued process against the applicant and the co‑accused. The applicant and co‑accused filed a joint application for default bail (Exhibit 164) on 17 May 2019 and another application (Exhibit 169) on 21 June 2019. By order dated 5 September 2019, passed by the learned Additional Sessions Judge (Mr. Ravindra Pande), the default bail application (Exhibit 169) was rejected. The first and second bail applications (Exhibits 43 and 164) were rejected by the learned Additional Sessions Judge (Mr. S. R. Navandar) by order dated 6 November 2019., On 24 January 2020 the Central Government passed an order under section 6(5) read with section 8 of the National Investigation Agency Act, 2008 directing the National Investigation Agency to take up investigation of first information report No. 4 of 2018 registered with Vishrambaug Police Station. Consequently, the National Investigation Agency registered first information report No. RC‑01/2020/NIA/Mum under sections 153A, 505(1)(b), 117 read with section 34 of the Indian Penal Code and sections 13, 16, 18, 18‑B, 20, 39 of the Unlawful Activities (Prevention) Act on 24 January 2020., The applicant contends that the learned Additional Sessions Judge, Pune, who extended the period of detention under section 43‑D(2) of the Unlawful Activities (Prevention) Act and took cognizance of the offences, was not designated as a Special Judge either under section 11 or section 22 of the National Investigation Agency Act and therefore lacked jurisdiction. Information obtained under the Right to Information Act indicates that Shri K. D. Vadane and Shri R. M. Pande were never appointed as Special Judges/Additional Sessions Judges by the Central Government for the period 1 January 2018 to 31 July 2019, nor was Shri S. R. Navandar appointed as a Special Judge by the Government of Maharashtra for the period 5 September 2019 to 14 February 2020. It was further informed that Shri Aniruddha Yashwant Thatte, Shri Abhay Narharrao Sirsikar and Shri Shyam Hariram Gwalani, the learned Additional Sessions Judges, were appointed as Special Judges/Additional Special Judges by the Government of Maharashtra for the trial of cases under section 22 of the National Investigation Agency Act for Pune District., The applicant asserts that the orders dated 26 November 2018 and 21 February 2019 passed by Shri K. D. Vadane, Additional Sessions Judge, are null and void for lack of jurisdiction. The applicant relies on sections 13 and 22 of the National Investigation Agency Act, which provide that every scheduled offence investigated by the agency of the State Government shall be tried only by the Special Court within whose local jurisdiction it was committed. Since Special Courts were already constituted by the State Government under section 22 of the National Investigation Agency Act in Pune District, the orders extending detention and taking cognizance are non‑existent in law., The applicant further relies on the Supreme Court pronouncement in Bikramjit Singh v. State of Punjab, where the Court held that only the Special Court has jurisdiction to extend detention up to 180 days under section 43‑D(2)(b) of the Unlawful Activities (Prevention) Act. The applicant argues that, having applied for release on default bail under section 167(2) of the Code prior to the filing of the charge‑sheet, she had a right to be released on default bail and ought to have been so released on 26 November 2018. Even if house arrest is excluded, the 90‑day period would have expired on 25 January 2019, and since the charge‑sheet was filed on 21 February 2019 while the bail application was pending, the applicant should have been released on bail., The applicants, accused Nos. 1 to 8 in Special (ATS) Case No. 1 of 2018 arising out of C.R. No. 4 of 2018 registered with Vishrambaug Police Station, have preferred an application for quashing and setting aside the order dated 5 September 2019 passed by the learned Additional Sessions Judge (Mr. Ravindra Pande) on the default bail application (Exhibit 169) and for declaration that the learned Judge had no power to take cognizance of the offences. In that application the applicants averred that the learned Judge had no jurisdiction to take cognizance as a Court of original jurisdiction, since the case was not committed by a magistrate., In the instant applications the applicants assert that the Unlawful Activities (Prevention) Act does not contain any provision for the appointment of a Special Judge or for the constitution of Special Courts. Thus, the usurpation of jurisdiction by the learned Additional Sessions Judges under the misnomer of Special Judge was wholly illegal. Consequently, the orders granting remand, authorising detention of the accused and taking cognizance were all illegal. Referring to the notifications issued by the State Government under section 22 of the National Investigation Agency Act, the applicants aver that, well before arrest and detention, Special Courts were constituted by the State Government and therefore courts other than the designated Special Court could not have entertained any proceedings in relation to the scheduled offences. The charge‑sheet therefore cannot be said to have been lodged before a competent court, and the applicants, who had preferred applications for default bail under section 167(2) of the Code, ought to have been released on bail., An affidavit in reply was filed on behalf of the National Investigation Agency in both applications. The application preferred by the applicant Sudha Bharadwaj (Bail Application No. 2024 of 2021) is resisted on the ground that it is based on a complete misreading of the provisions of the National Investigation Agency Act, the Unlawful Activities (Prevention) Act and the Code of Criminal Procedure. Since the Unlawful Activities (Prevention) Act does not contemplate any special procedure for the offences defined therein, much less the creation of Special Courts, the jurisdiction of ordinary criminal courts functioning under the Code remains intact and the procedure prescribed therein must be followed., The National Investigation Agency contends that the Special Court constituted under the National Investigation Agency Act has no jurisdiction to deal with offences unless they are scheduled offences investigated by the agency. According to the respondent‑NIA, Special Courts constituted under section 22 of the National Investigation Agency Act have jurisdiction to try the scheduled offences only when the National Investigation Agency transfers the case to the State Government for investigation and trial under section 7(b) of the Act. Since the NIA entered into investigation in this case on 24 January 2020 pursuant to the Central Government’s order, only the Court constituted under section 11 of the Act is the competent court. As no court was constituted by the Central Government under section 11 of the Act at Pune, there was no legal impediment for the learned Additional Sessions Judge (Shri Vadane) to entertain the remand and authorise detention of the applicant., The respondent‑NIA asserts that the pronouncement in Bikramjit Singh is of no assistance to the applicant. In any event, since the applicant is assailing the legality of the orders dated 26 November 2018 and 21 February 2019, the proper remedy is to file an appeal under section 21 of the National Investigation Agency Act. Thus, the application in its present form is not tenable. The respondent further contends that even if it is assumed that the cognizance of the offences was taken by the learned Additional Sessions Judge who was not empowered to do so, the proceeding does not get vitiated on that count alone under section 460 of the Code., The application of Sudhir Prahlad Dhawale and others (Criminal Application No. 1458 of 2019) is contested on the ground that the composite application filed by all the applicants is not maintainable since the cause of application for filing the application is different for all the accused, as they were arrested on different dates. Moreover, the charge‑sheet was lodged on 15 November 2018, whereas the application (Exhibit 169) was preferred on 21 June 2019. Thus, the application for default bail under section 167 of the Code presented after filing of the charge‑sheet was not tenable and was rightly dismissed by the learned Additional Sessions Judge. The respondent‑NIA reiterated that even if a court under section 22 of the National Investigation Agency Act was constituted for Pune district, that court would not have jurisdiction unless the investigation was transferred to the State Investigation Agency under section 7(b) of the Act, and mere existence of the court would not imply exclusive jurisdiction., We have heard Dr. Yug Chaudhary, learned counsel for the applicant in Bail Application No. 2024 of 2021; Mr. Sudeep Pasbola, learned counsel for the applicants in Criminal Application No. 1458 of 2019; Mr. A. A. Kumbhakoni, learned Advocate General for the respondent‑State; and Mr. Anil Singh, learned Additional Solicitor General for the respondent‑NIA in both applications. With the assistance of the learned counsels, we have perused the material on record including the impugned orders and the notifications under which the Special Courts were constituted by the State Government under section 22 of the National Investigation Agency Act., The facts relevant for determination of the controversy are as follows: (1) On 8 January 2018, Tushar Ramesh Damgude lodged FIR No. 4 of 2018 at Vishrambaug Police Station, Pune, alleging offences punishable under sections 153A, 505(1)(b) and 117 read with section 34 of the Indian Penal Code, alleging that the programme organised by members of Kabir Kala Manch under the banner Elgaar Parishad was provocative and created communal disharmony, leading to violence near Bhima Koregaon on 1 January 2018. (2) On 22 January 2018, investigation was entrusted to the Assistant Commissioner of Police, Swargate Division, Pune City. (3) On 6 March 2018, a charge under section 120B of the Indian Penal Code was added. (4) On 17 May 2018, sections 13, 16, 17, 18‑B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act were applied. The applicants Nos. 1 to 5 – Sudhir Prahlad Dhawale, Rona Wilson, Surendra Gadling, Dr. Shoma Sen and Mahesh Raut – were arrested on 6 June 2018. (5) Applicants Nos. 6 to 8 – P. Varavara Rao, Vernon Gonsalves and Arun Ferreira – were arrested on 28 August 2018, as was applicant Sudha Bharadwaj. (6) On 15 November 2018, the State Police (Anti‑Terrorist Squad) filed a charge‑sheet against applicants Nos. 1 to 5, leading to Special ATS Case No. 1 of 2018. (7) On 22 November 2018, the learned public prosecutor filed a report (Exhibit 33) under section 43‑D(2) of the Unlawful Activities (Prevention) Act read with section 167(2) of the Code seeking extension of the investigation period and consequent detention. (8) On 26 November 2018, Sudha Bharadwaj filed an application for default bail asserting that the statutory period of 90 days for completion of investigation under section 167(2) of the Code from the date of arrest had expired, and therefore she deserved to be enlarged on bail. (9) By order dated 26 November 2018, the learned Additional Sessions Judge (Shri K. D. Vadane) extended the period of detention of applicants Nos. 6 to 8 and Sudha Bharadwaj by 90 days. (10) On 21 February 2019, the State Police filed a supplementary charge‑sheet against applicants Nos. 6 to 8 and Sudha Bharadwaj. By an order of the same date, the learned Additional Sessions Judge (Shri K. D. Vadane) took cognizance of the offences and issued process. (11) On 17 May 2019, applicants Nos. 6 to 8 and Sudha Bharadwaj filed a second bail application (Exhibit 164) under section 167(2) on the premise that the investigating agency had filed an incomplete charge‑sheet based on incomplete investigation, and thus the applicants were entitled to be released on bail. (12) On 21 June 2019, all applicants preferred an application (Exhibit 169) for bail under section 167(2) of the Code read with section 43‑D(2) of the Unlawful Activities (Prevention) Act, alleging that cognizance of the offences was not taken by a competent court. (13) On 5 September 2019, the application (Exhibit 169) was rejected by another Additional Sessions Judge (Shri Ravindra M. Pande). (14) On 6 November 2019, the first (Exhibit 43) and second (Exhibit 164) bail applications and another application (Exhibit 163) were rejected by Additional Sessions Judge (Shri S. R. Navandar), holding that since the charge‑sheet was filed within the extended period, there was no scope to entertain the applications for default bail. (15) On 24 January 2020, the Central Government passed an order directing the National Investigation Agency to take up investigation in C.R. No. 4 of 2018 (ATS Case No. 1 of 2018) under section 6(5) of the National Investigation Agency Act. (16) On 14 February 2020, the learned Additional Sessions Judge (Shri S. R. Navandar) passed an order directing the transmission of the record and proceedings of Special ATS Case No. 1 of 2018 to the Special (NIA) Court, Mumbai., The notifications issued by the State Government constituting the Special Courts under the National Investigation Agency Act are as follows: (A) By a notification dated 11 July 2017, the State Government, invoking powers under the National Investigation Agency Act and the Maharashtra Control of Organised Crime Act, 1999, constituted the Court of Special Judge at Pune presided over by Shri Shyam Hariram Gwalani, with Shri Anil Shripati Mahatme appointed as an Additional Special Judge. (B) On 29 June 2018, Shri Anil Shripati Mahatme was appointed as a Special Judge for exercising jurisdiction under the National Investigation Agency Act and the Maharashtra Control of Organised Crime Act, and Shri Abhay Narharrao Sirsikar was appointed as an Additional Special Judge. (C) By a notification dated 5 March 2019, Shri Aniruddha Yashwant Thatte was appointed as a Special Judge to preside over the Special Court constituted under section 22 of the National Investigation Agency Act, replacing Shri A. S. Mahatme. (D) By a notification dated 29 August 2008, the State Government, exercising powers under sections 11 and 185 of the Code, designated the Court of Judicial Magistrate, First Class, Anti‑Corruption, Shivajinagar, Pune and the Court of Sessions, Pune to deal with proceedings investigated by the Anti‑Terrorist Squad, Maharashtra State (ATS) for areas falling within the limits of Pune Police Commissionerate, Solapur Police Commissionerate, all districts in Kolhapur region, Raigad and Sindhudurg districts in the Konkan region. (E) By an order dated 2 August 2014, the learned Sessions Judge, Pune, designated the Court of District Judge‑3 and Additional Sessions Judge as a Special Judge for trial of offences investigated by ATS, until further orders., In light of the aforesaid notifications, the learned Advocate General submitted that the respondents do not contest the fact that Shri K. D. Vadane, Shri R. M. Pande and Shri S. R. Navandar, the learned Additional Sessions Judges, Pune, who passed the orders referred to above, were not appointed as Special Judges to preside over the Special Courts constituted by the State Government under section 22 of the National Investigation Agency Act. The fact that some orders superscribed the designation of Special Judge/Additional Special Judge is of little consequence. The learned counsel for the applicant, Dr. Yug Chaudhary, canvassed multi‑pronged submissions: first, that scheduled offences under the Unlawful Activities (Prevention) Act can be tried only before a Special Court constituted under section 11 or section 22 of the National Investigation Agency Act; second, that only the Special Court so constituted has the power to extend the period of detention under section 43‑D(2) of the Unlawful Activities (Prevention) Act; third, that the learned Additional Sessions Judge could not take cognizance of the offences as a Court of original jurisdiction without a commitment by a magistrate, as required by section 193 of the Code; and fourth, that under section 16(1) of the National Investigation Agency Act, the Special Court has original jurisdiction to take cognizance of scheduled offences without a magistrate’s commitment. The applicant further relies on Supreme Court judgments in Fatema Bibi Ahmed Patel v. State of Gujarat, Zuari Cement Limited v. Regional Director, Employees State Insurance Corporation, Hyderabad, and Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers, asserting that lack of jurisdiction renders the impugned orders null and void.
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The Central Government must be of the opinion that it is a fit case to be investigated by the National Investigation Agency and thus direct the agency to investigate the said offence. In the case at hand, indisputably, the Central Government passed an order under section 6(5) on 24 January 2020, and, therefore, according to the learned Advocate General, there was no occasion for the application of the provisions contained in the National Investigation Agency Act, 2008, till that date, if not till 12 February 2020, the day the State Government passed an order to hand over the investigation to the National Investigation Agency., The learned Advocate General urged with a degree of vehemence that the courts constituted under section 22 of the National Investigation Agency Act, by the State Government, do not have jurisdiction to try the Scheduled Offences unless the National Investigation Agency transfers the investigation to the State Government. This submission was premised on the provisions contained in section 7 of the National Investigation Agency Act which empowers the National Investigation Agency either to request the State Government to associate itself with the investigation or, with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence. A conjoint reading of the provisions contained in section 7(b) and section 22 makes this position abundantly clear. It was urged that this harmonious construction of the provisions contained in sections 7 and 22 has been resorted to by various High Courts, including this Court., To bolster this submission, the learned Advocate General relied upon the Division Bench judgments of this Court in the cases of Mr. Areeb son of Ejaj Majeed v. National Investigation Agency and Naser Bin Abu Bakr Yafai v. State of Maharashtra & Anr., a Full Bench judgment of Patna High Court in the case of Bahadur Kora v. State of Bihar and a Division Bench judgment of Delhi High Court in the case of Aqil Hussain v. State of NCT of Delhi & Ors., The learned Advocate General laid special emphasis on the definition of “Court” under section 2(d) of the Unlawful Activities (Prevention) Act to canvass the submission that if all Scheduled Offences were held to be triable only by the Special Courts constituted under the National Investigation Agency Act, the expression “Court means a Criminal Court having jurisdiction, under the Code, to try offences under this Act” would be rendered redundant. It was submitted that the fact that the legislature has employed the device “means and includes” in defining the term “Court” under section 2(d) of the Unlawful Activities (Prevention) Act cannot be lost sight of. If the provision is construed on the well‑settled canon of construction of statutes that the legislature does not use any word as surplusage, the Court under section 2(d) does not mean only the Court constituted under the National Investigation Agency Act. Attention of the Supreme Court of India was invited to a judgment of the Madras High Court in the case of Thangaraj @ Thamilarasan & Ors. v. State by the Deputy Superintendent of Police., To delineate the manner in which an inclusive definition is required to be interpreted, the learned Advocate General relied upon the pronouncement of the Supreme Court of India in the case of P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., It was further submitted by the learned Advocate General that the Schedule of the National Investigation Agency Act contains various enactments under which Special Courts have been constituted and Special Judges have been designated. If the submission on behalf of the applicants is acceded to, then according to the learned Advocate General, the courts constituted or designated under the special enactments enlisted in the Schedule would be rendered nugatory. They would be divested of the jurisdiction statutorily conferred. The learned Advocate General thus urged that exclusivity cannot be given to National Investigation Agency Courts for all offences and for all times to come., In the alternative, the learned Advocate General strenuously urged that the Special Courts have been constituted under section 22 of the National Investigation Agency Act only for trial of the Scheduled Offences as is evident from the text of section 13 of the Unlawful Activities (Prevention) Act. As a necessary corollary, the Special Courts are not empowered to entertain and deal with pre‑trial proceedings. Drawing the distinction between investigation and trial, in the backdrop of the fact that section 167 of the Code of Criminal Procedure deals with the stage of investigation, it was submitted that in any event, an application for extension of time under section 167 of the Code read with section 43‑D(2) of the Unlawful Activities (Prevention) Act could not have been entertained by the Special Courts constituted under the National Investigation Agency Act as such courts are not vested with the jurisdiction to decide pre‑trial proceedings. Lastly, it was submitted that the term “Court” in the first proviso to section 43‑D(2) of the Unlawful Activities (Prevention) Act does not envisage a Court of Magistrate, and, therefore, the application for extension could never have been made before a Magistrate. The investigating officer had thus no other recourse but to seek extension of the period of investigation and consequent detention of the accused before the jurisdictional Sessions Court., Mr. Anil Singh, the learned Additional Solicitor General, adopted the submissions of the learned Advocate General. In addition, he submitted that the applications for default bail are not at all tenable as the prerequisites to seek default bail have not been made out, on facts. The applicant Sudha Bharadwaj had made the application for default bail (Exhibit 43) much before the expiry of the period of ninety days, as the period of house arrest was required to be excluded from consideration. Whereas, the second and third applications (Exhibits 164 and 169) were filed by the applicants after the charge‑sheet was filed on 21 February 2019. With the filing of the charge‑sheet, the right to seek default bail stood extinguished, even if it is assumed that the applicants were entitled to seek default bail since the applicants did not avail the said right. In substance, the applicants did not make a valid application for default bail between the expiry of the period of ninety days and filing of the charge‑sheet., The second ground of the alleged jurisdictional defect in the order taking cognizance, according to Mr. Singh, stands on a much weaker foundation. What is material is completion of investigation and filing of the charge‑sheet within the stipulated period. The fact that the jurisdictional Court did not take cognizance of the offences within the statutory period is of no relevance and does not confer any right on the accused to seek default bail., To lend support to the above submissions, Mr. Anil Singh placed strong reliance on the observations of the Supreme Court of India in the cases of Sanjay Dutt v. State through Central Bureau of Investigation, Bombay (II) and Suresh Kumar Bhikamchand Jain v. State of Maharashtra & Anr. Mr. Singh further submitted that the applicants submitted themselves to the jurisdiction of the learned Additional Sessions Judge, preferred applications for bail before the said Court and invited the orders from the Court. He urged with tenacity that in the instant applications, there is no whisper of any prejudice having been caused to the applicants on account of the period of detention having been extended and cognizance having been taken by the learned Additional Sessions Judge. Support was sought to be drawn from the proposition that, in the case at hand, the Sessions Court does not lack inherent jurisdiction. The Special Judges are to be appointed from amongst the Sessions Judges. In the absence of any claim of prejudice, according to Mr. Singh, even if the case of the applicants is taken at par, the applicants do not deserve the relief of bail. A very strong reliance was placed on a Three‑Judge Bench judgment of the Supreme Court of India in the case of Rattiram and Ors. v. State of Madhya Pradesh to lend support to this submission., Mr. Kumbhakoni, the learned Advocate General as well as Mr. Anil Singh, the learned Additional Solicitor General, made an earnest endeavour to draw home the point that the pronouncement of the Supreme Court of India in the case of Bikramjit Singh does not govern the facts of the case and is of no assistance to the applicant., Mr. Sudeep Pasbola, the learned counsel for the applicants, would urge that the applicants herein had raised the ground of jurisdiction on the very day they were first produced before the learned Additional Sessions Judge (Shri A.S. Bhaisare). The authority of the learned Additional Sessions Judge to remand the applicants to custody was questioned. Mr. Pasbola would urge that the Unlawful Activities (Prevention) Act does not create any Special Courts, and, thus, the nomenclature assumed by the learned Additional Sessions Judge as Special Judges, was a complete misnomer. Inviting the attention of the Supreme Court of India to the definition of “Court” under section 2(d) of the Unlawful Activities (Prevention) Act, which is an inclusive definition, Mr. Pasbola strenuously submitted that the State Police ought to have filed the charge‑sheet before the jurisdictional Magistrate and the act of taking cognizance and issue of process by the learned Additional Sessions Judge was wholly without jurisdiction. Since the Special Courts were already constituted at Pune under section 22(1) of the National Investigation Agency Act, the recourse to sub‑section (3) of section 22 of the National Investigation Agency Act was not warranted. Mr. Pasbola would urge that if the provisions contained in section 13(1) and section 22(2) of the National Investigation Agency Act are read in juxtaposition, then it becomes abundantly clear that the agency includes the investigation agency of the State by whatever name called. Therefore, in any event, the charge‑sheet could not have been lodged before the Sessions Court. Mr. Pasbola further submitted that mere filing of the charge‑sheet was of no significance. The charge‑sheet was required to be filed before the competent Court and within the stipulated period. In the case at hand, since the charge‑sheet was not filed before the competent Court, all the subsequent actions were vitiated., Banking upon the pronouncements of the Supreme Court of India in the cases of State of Tamil Nadu v. Paramasiva Pandian, Bikramjit Singh, A.R. Antulay v. Ramdas Sriniwas Nayak & Anr., and State of Punjab v. Davinder Pal Singh Bhullar & Ors., and the judgment of the Rajasthan High Court in the case of Manohari v. State of Rajasthan, Mr. Pasbola would urge that the applicants are entitled to be enlarged on bail., Per contra, Mr. Singh, the learned Additional Solicitor General, vehemently submitted that the arguments sought to be canvassed on behalf of the applicants are beyond the grounds raised in the application. Evidently, the premise of the claim for default bail was the alleged failure to take cognizance of the offences by the jurisdictional Court. In view of the settled legal position that, once a charge‑sheet is filed, the aspect of cognizance or otherwise is of no relevance so far as the entitlement for default bail is concerned, the application deserves to be dismissed at the threshold as wholly misconceived., Mr. Kumbhakoni, the learned Advocate General, concurred with the submission of Mr. Singh. It does not require any authority to support the proposition that the accused is not entitled to bail on the ground that cognizance is bad in law, urged the learned Advocate General. In the instant case, since the applicants have not at all challenged the extension of time for investigation and detention of the applicants, there is no justifiable reason to entertain the plea for default bail, submitted the learned Advocate General. Mr. Kumbhakoni as well as Mr. Singh relied upon the judgment of the Supreme Court of India in the case of Suresh Kumar Bhikamchand Jain in support of the aforesaid submissions., Dealing with the submission on behalf of the applicants that the Additional Sessions Judge could not have taken cognizance of the offences, the learned Advocate General invited the attention of the Supreme Court of India to the judgment in the case of State through Central Bureau of Investigation, Chennai v. V. Arul Kumar, wherein the Supreme Court observed that the fact that the Special Court is empowered to take cognizance directly under section 5 of the Prevention of Corruption Act, 1988 does not imply that the normal procedure prescribed under section 190 of the Code empowering the Magistrate to take cognizance of such offences, though triable by the Court of Session, is not given a go‑by. Both alternatives are available., In rejoinder, Mr. Pasbola attempted to join the issue by canvassing a submission that at the heart of the controversy is the fact as to whether the charge‑sheet was lodged before, and cognizance was taken by, the competent court., In the backdrop of the nature of the challenge to the prayer of the applicants, it may be apposite to note the stand of the applicants in the application (Exhibit 169) before the learned Additional Sessions Judge. The averments in paragraphs 4 to 6 of the application make the stand of the applicants abundantly clear. Paragraph 4: That cognizance of the present offence has not been taken, and that this Hon’ble Court has no jurisdiction to take cognizance of the offence at this stage, as no Court of Session can take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate. Paragraph 5: That it is only when the present case is committed to the Court of Session by a Magistrate, and after cognizance of the present offence has been taken that the applicants/accused may be remanded in custody under any provision in law other than Section 167 of the Code of Criminal Procedure. Paragraph 6: That, in the absence of cognizance being taken of the present offence and in the absence of committal by a Magistrate, the applicants/accused, having been in detention for well over one hundred and eight days, are entitled to be released on bail as per the provisions of Section 167(2) of the Code of Criminal Procedure read with Section 43‑D(2)., It becomes evidently clear that it was the stand of the applicants before the learned Additional Sessions Judge that the charge‑sheet ought to have been filed before the learned Magistrate, and thereafter, the case ought to have been committed to the Court of Sessions, and only thereupon could cognizance of the offences have been taken, and that having not been done, according to the applicants, they were entitled to be released on bail., At this juncture, a profitable reference can be made to the judgment of the Supreme Court of India in the case of Suresh Kumar Bhikamchand Jain. In that case, the Supreme Court was confronted with the question as to whether the accused was entitled to be released on default bail under Section 167(2) of the Code of Criminal Procedure for the reason that although the charge‑sheet had been filed within the time stipulated under Section 167(2) of the Code, sanction to prosecute the petitioner had not been obtained, as a result whereof, no cognizance of the offences was taken. The Supreme Court held that the filing of the charge‑sheet was sufficient compliance with the provisions of Section 167(2)(a)(ii) of the Code. Whether cognizance is taken or not is not material as far as Section 167 of the Code is concerned. The right which may have accrued to the petitioner, had the charge‑sheet not been filed, was not attracted to the facts of the case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 of the Code, the Supreme Court held, it cannot be said that the accused was entitled to grant of statutory bail as envisaged in Section 167 of the Code., The challenge in the instant Application No. 1458 of 2019 thus converges with the challenge in Application No. 2024 of 2021 of Sudha Bharadwaj, namely that the charge‑sheet was not lodged before the competent Court within the stipulated period., Resultantly, the controversy gets boiled down to the following questions: (i) Whether the extension of period for investigation and detention, by invoking the first proviso in the provisions of section 43‑D(2) of the Unlawful Activities (Prevention) Act read with section 167(2) of the Code, was by a competent Court? (ii) Whether the charge‑sheet was lodged before, and the cognizance was taken by, the competent Court? (iii) Whether the applicants are now entitled to default bail, if the answer to the aforesaid questions is in the negative?, To begin with, sub‑section (2) of section 4 of the Code ordains that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Code further provides that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. In short, if a special enactment provides a procedure which is in derogation of the general provisions prescribed in the Code, the special procedure will prevail., In the context of the controversy, it would be imperative to note that section 193 of the Code contains an interdict against a Court of Session taking cognizance of any offence as a Court of original jurisdiction by providing that, except as otherwise expressly provided by the Code, or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. It implies that a Court of Session can take cognizance of any offence as a Court of original jurisdiction, without a committal order, if it is empowered to take cognizance either by the provisions of the Code or under any special enactment., As the controversy revolves around the construction of the provisions contained in the Unlawful Activities (Prevention) Act and the National Investigation Agency Act, the relevant provisions deserve extraction, as under: Section 2(c), “Code” means the Code of Criminal Procedure, 1973 (2 of 1974). Section 2(d), “Court” means a Criminal Court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008 (as it stood before figure 21 was substituted by figure 22, by Act 28 of 2019). Section 43‑D(2) reads as under: “Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub‑section (2), (a) the references to fifteen days, ninety days and sixty days, wherever they occur, shall be construed as references to thirty days, ninety days, and ninety days respectively; and (b) after the proviso, the following provisos shall be inserted, namely: Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may, if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days. Provided also that if the police officer making the investigation under this Act requests, for the purposes of investigation, police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.”, The relevant provisions of the National Investigation Agency Act, 2008 before it was amended by Act 16 of 2019 read as under: 2. Definitions. (1) In this Act, unless the context otherwise requires, (a) “Agency” means the National Investigation Agency constituted under section 3; (b) “Code” means the Code of Criminal Procedure, 1973 (2 of 1974); (f) “Schedule” means the Schedule to this Act; (g) “Scheduled Offence” means an offence specified in the Schedule; (h) “Special Court” means a Court of Session designated as Special Court under section 11 or, as the case may be, under section 22. Section 6: Investigation of Scheduled Offences. (1) On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer‑in‑charge of the police station shall forward the report to the State Government forthwith. (2) On receipt of the report under sub‑section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. (3) On receipt of report from the State Government, the Central Government shall determine, on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. (4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. (6) Where any direction has been given under sub‑section (4) or sub‑section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. (7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer‑in‑charge of the police station to continue the investigation. (8) Where the Central Government is of the opinion that a Scheduled Offence has been committed at any place outside India to which this Act extends, it may direct the Agency to register the case and take up investigation as if such offence has been committed in India. (9) For the purposes of sub‑section (8), the Special Court at New Delhi shall have the jurisdiction., Section 7: Power to transfer investigation to State Government. While investigating any offence under this Act, the Agency, having regard to the gravity of the offence and other relevant factors, may (a) if it is expedient to do so, request the State Government to associate itself with the investigation; or (b) with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence. Section 10: Power of State Government to investigate Scheduled Offences. Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force. Section 11: Power of Central Government to constitute Special Courts. (1) The Central Government shall, in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, for the trial of Scheduled Offences, designate one or more Courts of Session as Special Court for such area or areas, or for such case or class or group of cases, as may be specified in the notification. (2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final. (3) A Special Court shall be presided over by a Judge to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court. (6) The Central Government may, if required, appoint an Additional Judge or Additional Judges to the Special Court, on the recommendation of the Chief Justice of the High Court. (7) A person shall not be qualified for appointment as a Judge or an Additional Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State. 13. Jurisdiction of Special Courts. (1) Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed. 16. Procedure and powers of Special Courts. (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts. (3) Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session. 22. Power of State Government to constitute Special Courts. (1) The State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule. (2) The provisions of this Chapter shall apply to the Special Courts constituted by the State Government under sub‑section (1) and shall have effect subject to the following modifications, namely (i) references to Central Government in sections 11 and 15 shall be construed as references to State Government; (ii) reference to Agency in sub‑section (1) of section 13 shall be construed as a reference to the investigation agency of the State Government; (iii) reference to Attorney‑General for India in subsection (3) of section 13 shall be construed as reference to Advocate‑General of the State. (3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government under subsection (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter. (4) On and from the date when the Special Court is constituted by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is constituted., In the light of the aforesaid fasciculus of the provisions, the answer to the questions formulated above is required to be explored, keeping in view the submissions canvassed by the learned counsels for the parties. The first question which crops up for consideration is the stage at which the provisions contained in the National Investigation Agency Act come into play. Is it on the registration of the FIR in respect of the Scheduled Offences or only after the National Investigation Agency is entrusted with the investigation by the Central Government, as was urged on behalf of the respondents., The thrust of the submission on behalf of the respondents was rested on the provisions contained in section 6 of the National Investigation Agency Act. Under Chapter III, which deals with investigation by the National Investigation Agency, two modes are prescribed by sub‑sections (4) and (5) of section 6 for directing the agency to investigate the Scheduled Offence. Under sub‑section (4), upon consideration of the report submitted by the State Government under sub‑section (3), the Central Government is enjoined to determine whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the agency. The assessment of the State Government and its investigating agency as regards the offence being a Scheduled Offence is not the be‑all and end‑all of the matter. The Central Government has to determine independently whether the offences reported are Scheduled Offences or not. Only when the Central Government forms the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the agency under sub‑section (4) of section 6, it is empowered to direct the Agency to investigate the said offence. The second mode is the exercise of a suo‑motu power, irrespective of a report by the State Government.
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The only condition which is required to be satisfied is that the Central Government is of the opinion that a Scheduled Offence has been committed which warrants investigation by the Agency. The above provisions indicating the modes in which the National Investigation Agency can be entrusted with the investigation do not appear to be the repository of the entire legislative mandate to determine whether the provisions contained in the NIA Act get attracted once the Scheduled Offence is reported. The other provisions contained in the NIA Act weigh in., For the removal of doubts, sub‑section (7) of section 6 itself declares, that till the National Investigation Agency takes up the investigation of the case, it shall be the duty of the officer‑in‑charge of the police station to continue the investigation. Section 10 of the NIA Act sheds further light on the legislative intent. It declares in emphatic terms that, save as otherwise provided under the said Act, nothing contained in the said Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force., Two factors are of salience. One, the legislature has taken care to use the expression, Scheduled Offence in addition to other offences. Two, under sub‑section (7) of section 6, a duty is cast on the officer‑in‑charge of the police station to continue the investigation into the offences till the Agency takes up the investigation. In contrast, section 10 saves the power of the State Government to investigate Scheduled Offence, save as otherwise provided by the NIA Act. The intendment to the contrary is to be found in sub‑section (6) of section 6 which ordains that where any direction is given under sub‑section (4) or sub‑section (5), the State Government and any police officer of the State Government, investigating the offence, shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency., A conjoint reading and harmonious construction of the provisions contained in section 6 and section 10 of the NIA Act lead to a legitimate inference that till the National Investigation Agency takes up the investigation of the case (necessarily involving a Scheduled Offence), the State Government is not divested of the authority to investigate and prosecute any Scheduled Offence. However, once the National Investigation Agency takes up the investigation, the authority of the State and its investigating agency to investigate into and prosecute said offences ceases., Another provision, which bears upon this issue is the power of the State Government under section 22(1) of the NIA Act to constitute Special Courts. It provides that the State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule. Subsection (2) further provides that the provisions of Chapter IV, which prescribes special procedure, within the meaning of section 4(2) of the Code, shall apply to the Special Courts constituted by the State Government subject to the following modifications: (i) references to \Central Government\ in sections 11 and 15 shall be construed as references to State Government; (ii) reference to \Agency\ in sub‑section (1) of section 13 shall be construed as a reference to the \investigation agency of the State Government\; (iii) reference to \Attorney‑General for India\ in sub‑section (3) of section 13 shall be construed as reference to \Advocate‑General of the State\., If the provisions of section 22(1) of the NIA Act are read in conjunction with the provisions contained in section 10 of the NIA Act which empowers the State Government to investigate Scheduled Offences, the intent of the legislature to not only empower the State Government to investigate and prosecute any of the Scheduled Offence but also to constitute Special Courts for the trial of offences under any or all the enactments specified in the Schedule becomes explicitly clear. If we keep in view the legislative object as reflected in the statement of objects and reasons namely, establishment of a National Investigation Agency in a concurrent jurisdictional framework, then the aforesaid proposition gains credence. The scheme of the NIA Act evinces a clear intendment that the investigation into the Scheduled Offences was not envisaged as the exclusive domain of the National Investigation Agency trampling upon the powers of the State Government to investigate and prosecute the Scheduled Offences, for the States have the legislative competence under List II Entry 2 of the Seventh Schedule. Undoubtedly, where the National Investigation Agency takes up the investigation of a Scheduled Offence, the State power must yield to the wisdom of Parliament., For the foregoing reasons, we are afraid to accede to the submission on behalf of the respondents that the provisions contained in the NIA Act come into play only when the National Investigation Agency takes up the investigation., As indicated above, the respondents draw support and sustenance to the aforesaid submissions from the provisions contained in section 7 of the NIA Act and a number of pronouncements of the High Courts, including the Patna High Court, based thereon., We thus propose to deal with the submission that the Special Court constituted by the State Government under section 22(1) of the NIA Act gets jurisdiction only when a case is transferred to the State Government by the National Investigation Agency for investigation and trial under section 7(b) of the NIA Act., A Full Bench judgment of the Patna High Court in the case of Bahadur Kora constitutes the linchpin of the aforesaid proposition, sought to be canvassed on behalf of the respondents. Bahadur Kora arose in the backdrop of a judgment rendered by a Division Bench of the Patna High Court in the case of Asif P.K. Vs. State of Bihar to the effect that wherever an allegation referable to the provisions of the Unlawful Activities (Prevention) Act is made against the accused, the procedure prescribed under the NIA Act must be followed and even if the cognizance of offences was taken in accordance with the provisions of the Code and the investigation was carried out by the State Investigating Agencies, and not by the National Investigation Agency, the trial of such offences shall be conducted by the Court of Sessions, as provided for under sub‑section (3) of section 22 of the NIA Act, even if no Special Court is constituted by the State under sub‑section (1) thereof., Doubting the correctness of the aforesaid view, the matter came to be referred to the Full Bench. After adverting to the Statement of objects for enactment of the NIA Act and the provisions contained in the NIA Act, especially sections 6, 7, 10, 13 and 22, the Full Bench observed inter alia that the Division Bench lost sight of section 7 of the NIA Act, which is the only provision that provides the link between the NIA on the one hand, and the investigating agency of the State on the other hand. The Full Bench endeavoured to elucidate the purpose behind incorporating section 22 of the NIA Act which enables the State Government to constitute Special Courts. Observations in paragraphs 28 to 31 are material and hence extracted below:, It has been mentioned at the threshold itself that the objective of the Act is not to make the offences punishable under the Acts mentioned in the schedule thereof, triable, invariably and exclusively by the National Investigation Agency, or for that matter, the special courts constituted under it. It is only when the offences are entrusted for investigation to the National Investigation Agency that they become triable by the special courts. A serious doubt may arise that if the National Investigation Agency alone is the competent authority to investigate the scheduled offences, albeit entrusted to it by the Central Government, under Section 6 of the Act, where is the occasion for the State Government to create special courts under Section 22 of the Act, or for that matter, to equate the investigating agency of the State with the National Investigation Agency under Sub‑section (2) thereof. The answer is readily available in Section 7 of the National Investigation Agency Act. It reads: “7. While investigating any offence under this Act, the Agency, having regard to the gravity of the offence and other relevant factors, may (a) if it is expedient to do so, request the State Government to associate itself with the investigation; or (b) with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence.”, We have already observed that Section 6 happens to be the fulcrum, or basis to bring any particular case within the ambit of the Act, and for entrustment of its investigation to the National Investigation Agency. It is then, that the special courts come into picture. The National Investigation Agency is not given the freedom, much less conferred with the power, to investigate any case of its choice. It is only when the Central Government entrusts such cases to it, that the agency, i.e. the National Investigation Agency, can investigate the cases. In other words, the National Investigation Agency does not have the power to investigate by itself a case, even if it involves a scheduled offence referable to the Acts mentioned in the schedule. It has to wait till the case is entrusted to it by the Central Government., Section 7 deals with situation posterior to the entrustment of the case to the National Investigation Agency under Section 6 of the Act. Once a case is entrusted to it, the National Investigation Agency may undertake the investigation, exclusively, by itself, or may request the State Government to associate with it. It may also transfer the case to the State Government for investigation, depending on the facts of the case and with the previous approval of the Central Government. It is then, and then alone, that the State Government comes into picture for conducting investigation of the cases under the National Investigation Agency Act. Barring that, the State Government or its investigating agency does not have any authority, or discretion to choose or pick up cases in which offences under the enactments mentioned in the schedule are alleged; for investigation under the National Investigation Agency Act., Once a case is “transferred” under Clause (b) of Section 7 of the Act, by the National Investigation Agency to the investigating agency of the State Government, the latter gets equated to the former, under Section 22(2)(ii) and acquires the power to investigate such matters under the Act. It is only for trial of such cases, that were initially entrusted to the National Investigation Agency, under Section 6 by the Central Government and the National Investigation Agency in turn “transfers” the investigation of the case to the investigating agency of the State Government, under Section 7(b) of the Act, that the constitution of special court under Section 22 of the National Investigation Agency Act is provided for., Observing thus, the Full Bench answered the reference, inter alia, as follows: (i) the judgment in Asif’s case, insofar as it held that investigating agency of the State Government can investigate and try offences in accordance with the provisions of the National Investigation Agency Act, in the cases where offences punishable under the Unlawful Activities (Prevention) Act are alleged, and that such cases must be tried by the Courts of Sessions under sub‑section (3) of Section 22 of the National Investigation Agency Act, cannot be said to have laid the correct law; (ii) the cases even where offences punishable under the provisions of the UAPA Act are alleged shall be tried by the courts as provided for under the Code of Criminal Procedure and not in accordance with the special procedure, under the Act unless (a) the investigation of such cases is entrusted by the Central Government to the National Investigation Agency and (b) the National Investigation Agency transfers the same to the investigating agency of the State Government., Evidently, the Full Bench has laid down in unambiguous terms that the offences punishable under the provisions of the UAPA shall be tried by the Court, as provided for under the Code and not in accordance with the special procedure under the National Investigation Agency Act unless (i) the investigation of such cases is entrusted by the Central Government to the National Investigation Agency; and (ii) the National Investigation Agency transfers the same to the investigating agency of the State., The judgment in the case of Bahadur Kora was followed with approval by a Division Bench of this Court in the case of Naser Bin Abu Bakr Yafai. Since a very strong reliance was placed by both counsel on the proposition enunciated in the case of Naser Bin Abu Bakr Yafai, it may be advantageous to note the factual backdrop to appreciate the enunciation correctly., In the said case, the petitioner, Naser, was arraigned for the offences punishable under sections 120B, 471 of the Penal Code and sections 13, 16, 18, 18‑B, 20, 38 and 39 of the UAPA and sections 4, 5 and 6 of the Explosive Substances Act 1908 which arose out of C.R. No. 8 of 2006, registered with Kala Chowki Police Station, Mumbai, pursuant to the FIR lodged by Police Inspector ATS, Nanded Unit, Nanded. The petitioner was arrested by the ATS (State Investigation Agency). After completion of investigation, the ATS filed charge‑sheet before the learned Chief Judicial Magistrate, Nanded, on 7 October 2016. Cognizance of the offence was taken by the learned Chief Judicial Magistrate, and the case was committed to the Court of Additional Sessions Judge and Special Judge, ATS, on 18 October 2016. In the meanwhile, on 8 September 2016, the Central Government, in exercise of powers under section 6(4) of the NIA Act, directed the National Investigation Agency to take over further investigation into the said case. Pursuant thereto, on 14 September 2016, the NIA renumbered the said crime as RC03/16/NIA/Mumbai. By a communication dated 23 November 2016, the NIA sought transfer of the case papers in the said crime and those were handed over to the NIA on 8 December 2016., During the period of the said transition, the petitioner filed an application before the Special Judge, ATS, Nanded seeking his release on the ground that the offences under UAPA, being Scheduled Offences under the NIA Act, the Magistrate had no jurisdiction to pass remand order or to take cognizance of the offence. The jurisdiction of the learned Special Judge, ATS, Nanded to try the case was also called in question. The learned Special Judge, ATS, Nanded dismissed the application opining that since the National Investigation Agency had not taken over the investigation from ATS, the latter was competent under section 6(7) of the NIA Act to investigate the crime and file the charge‑sheet in the Court of Chief Judicial Magistrate, Nanded., In the backdrop of the aforesaid facts, the Division Bench, after adverting to the provisions contained in sections 6 and 7 of the NIA Act, enunciated the legal position as follows: Once the Central Government entrusts the investigation of the scheduled offences to the National Investigation Agency, and the National Investigation Agency chooses to exercise the option of investigating the offence by itself or in association with the State Government, then such offence is exclusively triable by a Special Court constituted by the Central Government under Section 11 of the NIA Act. Whereas, the cases transferred to the State Government in exercise of powers of Section 7(b) of the NIA Act are triable by a Special Court constituted under Section 22 of the NIA Act. Until the State Government constitutes such a Special Court, by virtue of Sub‑section (3) of Section 22, the jurisdiction conferred by this Act on a Special Court shall be exercised by the Court of Sessions within whose jurisdiction the offence is committed and it shall have all the powers and follow the procedure provided under Chapter 4 of the Act. However, once the State Government constitutes the Special Court, the trial of the offences investigated under the provisions of the Act would stand transferred to that court on the date on which it is constituted. It is therefore evident that the National Investigation Agency had taken over the investigation on 8 December 2016. Till such taking over of the investigation, in terms of sub‑section (7) of Section 6 the ATS was under obligation to continue with the investigation. It is not in dispute that the ATS Mumbai had obtained remand, continued with investigation, and filed charge‑sheet prior to 8 December 2016 i.e. prior to taking over investigation by the National Investigation Agency. Suffice it to say that by virtue of provisions under sub‑section (7) of Section 6 the ATS had jurisdiction to continue with the investigation till 8 December 2016., The Division Bench adverted to another aspect, which bears upon the controversy at hand. Whether the offences under the UAPA, being Scheduled Offences, are exclusively triable by a Special Court constituted by the State under section 22 of the NIA Act. The Division Bench answered the question in the negative, observing as follows: The next question that falls for our determination is whether the offences under the UAPA Act, being scheduled offences are exclusively triable by a special court constituted by the State under section 22 of the NIA Act. It may be noted that the UAPA Act was enacted in the year 1967 and the scope of this Act was enlarged by amendment of the years 2004, 2008 and 2013 to provide for the more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. Under this Act, the State and Central Government are conferred with the powers to declare certain associations whose activities are found to be a threat to the sovereignty of the State as unlawful. The acts undertaken by such prohibited associations are made punishable under this Act. Chapters 3 and 4 of the UAPA Act prescribe the punishment for the offences mentioned therein. It is to be noted that this Act does not prescribe any special procedure to be followed for trial of the offence defined therein. Unlike the NIA Act, it does not provide for creation of any special Court. Thus, the essential difference between the NIA Act and the UAPA Act is that the NIA Act does not classify any act as an offence, but only creates a separate agency for investigation and a special court for trial of scheduled offences, whereas the UAPA Act, which is also listed in the schedule of the NIA Act, defines certain acts as offences but does not prescribe special procedure and creation of special court., A reading of both these enactments particularly Section 10 of the NIA Act would show that there is no embargo on the State Investigation Agency to investigate the scheduled offence, which would include offences under the UAPA Act. In fact, the National Investigation Agency would have no power to investigate the scheduled offence until and unless the Central Government takes a decision and directs the National Investigation Agency to take over the investigation. In the absence of such decision and entrustment, it is primarily the duty of the State Investigation Agency to investigate the scheduled offence including offences under the UAPA Act., Furthermore, the provisions of both the enactments, particularly Section 2(d) of the UAPA Act, which defines “Court”, makes it clear that the offences under the UAPA Act which are investigated by the State Investigation Agency are triable by the criminal courts having jurisdiction under the Code, in accordance with the procedure provided under the Code. It is only when the Central Government takes a decision and entrusts the investigation to the National Investigation Agency, that the jurisdiction of the criminal court shall stand excluded and the Special Court constituted under the NIA Act will get jurisdiction to try such scheduled offences., The support was sought to be drawn to the aforesaid view by placing reliance on the Full Bench judgment of the Patna High Court in the case of Bahadur Kora. It was thus enunciated that in the absence of any decision and direction of the Central Government to the National Investigation Agency to investigate the Scheduled Offence, the State Investigation Agency was competent to investigate the said offence in accordance with the procedure prescribed under the Code and the Criminal Court had jurisdiction to try the offences in accordance with the procedure prescribed under the Code., We must note that during the course of the submissions, we were informed that a challenge to the aforesaid decision in the case of Naser Bin Abu Bakr Yafai was sub‑judice before the Supreme Court. We will advert to the judgment of the Supreme Court in the case of Naser Bin Abu Bakr Yafai Vs. State of Maharashtra, which was delivered on 20 October 2021., The learned Advocate General next relied upon the judgment of another Division Bench in the case of Areeb son of Ejaz Majeed. In the said case, the petitioner therein was arrested on 29 November 2014 in connection with FIR No. RC01/2014/NIA/MUM, registered by the National Investigation Agency for the offences punishable under sections 16, 18 and 20 of the UAPA and section 125 of the Penal Code. Since the investigation could not be completed within 90 days of the date of the first remand, on 16 February 2015, the National Investigation Agency preferred an application before the Special Court NIA under section 43‑D(2) of the UAPA. On 24 February 2015, when the petitioner was produced before the Court, the Special Judge presiding over that Court was on leave and the application seeking extension of the period of detention was placed before the Additional Sessions Judge and the application came to be allowed and the period of detention was extended by 30 days. The petitioner preferred an application for default bail under section 167(2) of the Code read with section 43D(2)(b) of the UAPA contending that since the Special Court was constituted under section 11 of the NIA Act, the ordinary Court of Session could not have entertained the application for extension of the period of detention, and, thus, the detention of the petitioner beyond 25 February 2015 was illegal., In the light of the aforesaid fact‑situation, the Division Bench posed unto itself a question as to whether the various powers exercised by a Court during the stage of information to the police and investigation of the offence could, in the said case, be only exercised by a Special Court or even a Court of Session was empowered to exercise them? The Division Bench, after considering the provisions of the Code and the UAPA, drew a distinction between the proceedings at pre‑trial stage and the trial, and observed that the exercise of powers at pre‑trial stage, i.e. remand of the accused and extension of the period of custody pending filing of a charge‑sheet, which are pre‑trial powers, are exercised by the Court both, under the provisions of the Code and by virtue of the provisions of the UAPA. The UAPA defines “Court” as a criminal court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under Section 11 or under Section 22 of the National Investigation Agency Act, 2008. The offences with which the Division Bench was concerned, namely, offences punishable under sections 16, 18 and 20 of the UAPA and Section 125 of the Penal Code, being triable under the Code by a Court of Session, the latter was empowered to exercise all the aforesaid powers., The learned Advocate General laid emphasis on the observations made by the Division Bench in paragraph Nos. 8 and 9, which read as follows: Now the question is, because a scheduled offence under the UAPA Act investigated by the National Investigation Agency is triable exclusively by a Special Court constituted under the NIA Act, is an ordinary Court of Session prohibited from exercising the powers of detention, remand and extension of custody for filing of a charge‑sheet under the UAPA Act read with the Code so far as the petitioner is concerned. In the first place, as of the date of the application for extension of time for filing of the charge‑sheet, the investigation was not accomplished. There is no warrant for concluding that the offence was one which was investigated by the National Investigation Agency and thus, exclusively triable by the Special Court. At this stage, the National Investigation Agency itself has an option, under Section 7 of the NIA Act, to investigate the offence and prosecute the accused or transfer the case to the State Government for investigation and trial of the offences. Then, of course, the State Government itself has powers to investigate and prosecute the offences, which are not affected by anything contained in the NIA Act save as otherwise provided by that Act. The matter is, in other words, in flux and it cannot be said with any certainty that the offences are triable only by the Special Court constituted under Section 11 of the NIA Act. Secondly, powers under the UAPA Act, which include the pre‑trial power of extension of the custody of the accused for filing of a charge‑sheet beyond the statutory period of ninety days under the proviso to Section 167(2) of the Code, can be exercised by “Court” defined as a “criminal court having jurisdiction, under the Code, to try offences under this Act”. Merely
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Two, in view of the definition of the Court under section 2(d) of the Unlawful Activities (Prevention) Act, the Criminal Courts having jurisdiction under the Code of Criminal Procedure to try the offences are competent to extend the period of detention under the first proviso in sub‑section (2) of section 43‑D of the Unlawful Activities (Prevention) Act. At this juncture, the reference to the judgment of the Supreme Court of India in the case of Bikramjit Singh (Supra) assumes significance. Bikramjit was arraigned for the offences punishable under sections 302, 307, 452, 427, 341 read with 34 of the Indian Penal Code, section 25 of the Arms Act, 1959, sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908, and section 13 of the Unlawful Activities (Prevention) Act. The Punjab State Police apprehended him on 22 November 2018. The 90‑day period of detention expired on 21 February 2019. The appellant applied for default bail in the Court of the Sub Divisional Judicial Magistrate, Ajnala. The application was dismissed on 25 February 2019 on the ground that the learned Sub Divisional Judicial Magistrate had already extended time from 90 days to 180 days under section 167 of the Code read with section 43‑D(2) of the Unlawful Activities (Prevention) Act, by an order dated 13 February 2019. In a revision preferred against the order of extension of period of detention, the learned Additional Sessions Judge, who was presiding over the Special Court constituted under the National Investigation Agency Act, set aside the order of the learned Magistrate by a judgment dated 25 March 2019. On the very next day, 26 March 2019, a charge‑sheet was filed before the learned Special Judge. Meanwhile, the revision petition preferred by the petitioner against the order dated 25 February 2019, which declined to release the petitioner on default bail, was dismissed by the Special Judge on 11 April 2019, opining that, since the charge‑sheet had already been presented, the revision petitioner lost his right for default bail under section 167(2) of the Criminal Procedure Code. The Punjab and Haryana High Court found no merit in the petition assailing the order. The High Court observed, inter alia, as follows:, The High Court observed that a joint interpretation of section 167(2) of the Criminal Procedure Code read with section 43(d) of the Unlawful Activities (Prevention) Act, and sections 6, 13 and 22 of the National Investigation Agency Act would show that when the investigation is being carried out by the State police, the Magistrate has power under section 167(2) of the Criminal Procedure Code read with section 43(a) of the Unlawful Activities (Prevention) Act to extend the period of investigation up to 180 days and then commit the case to the Court of Sessions as per section 209 of the Criminal Procedure Code. In contrast, when the investigation is conducted by the agency under the National Investigation Agency Act, the power shall be exercised by the Special Court and the challan will be presented by the agency before the Special Court. It is not the case of the petitioner that the investigation was conducted by the agency under section 6 of the National Investigation Agency Act, and till committal of the case to the Court of Sessions, as per section 22(3) of the National Investigation Agency Act, it cannot be said that the Magistrate has no power; therefore, the order dated 25 March 2019 suffers from illegal infirmity (extracted in Paragraph No.5 of the judgment of Bikramjit). The Supreme Court of India adverted to the relevant provisions of the Unlawful Activities (Prevention) Act, especially the definition of Court under section 2(d) and section 43‑D(2), and observed that a cursory reading of those provisions would show that offences under the Unlawful Activities (Prevention) Act listed in sections 16, 17, 18, 18‑A, 18‑B, 19, 20, 22‑B, 22‑C and 23, which carry maximum sentences of over seven years, would be exclusively triable by a Court of Session when read with Part II of the First Schedule to the Code of Criminal Procedure. It is only after the National Investigation Agency Act was enacted that the definition of Court was extended to include Special Courts set up under section 11 or section 22 of the National Investigation Agency Act., The Supreme Court thereafter analyzed the provisions of the National Investigation Agency Act and postulated that the scheme of the Act is that offences listed in the Schedule are to be tried exclusively by Special Courts set up under that Act, either by the Central Government under section 11 or by the State Government under section 22. Since in the present case, as in the case at hand, the Special Courts were constituted by the State of Punjab under section 22 of the National Investigation Agency Act, the Supreme Court expounded the consequences of such constitution. It observed that the notification issued under section 22(1) of the National Investigation Agency Act indicates that, under section 22(2)(ii), reference to the Central Agency in section 13(1) is to be construed as a reference to the investigation agency of the State Government, namely the State police. Notwithstanding anything contained in the Code, the jurisdiction conferred on a Special Court shall, until a Special Court is designated by the State Government, be exercised only by the Court of Sessions of the Division in which the offence was committed, vide subsection (3) of section 22; and by subsection (4) of section 22, from the date on which the Special Court is designated by the State Government, the trial of any offence investigated by the State Government under the provisions of the National Investigation Agency Act shall stand transferred to that Special Court. Section 13(1) of the National Investigation Agency Act, which contains a non‑obstante clause, states that every scheduled offence investigated by the investigation agency of the State Government is to be tried exclusively by the Special Court within whose local jurisdiction it was committed. When these provisions are read together with section 2(1)(d) and the provisos in section 43‑D(2) of the Unlawful Activities (Prevention) Act, the scheme of the two Acts becomes crystal clear. Under the first proviso in section 43‑D(2)(b), the 90‑day period indicated by the first proviso to section 167(2) of the Criminal Procedure Code can be extended up to a maximum of 180 days if the Court is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days. The Court, when read with the extended definition contained in section 2(1)(d) of the Unlawful Activities (Prevention) Act, now refers to the Special Court constituted under section 22 of the National Investigation Agency Act. Consequently, for all offences under the Unlawful Activities (Prevention) Act, the Special Court alone has exclusive jurisdiction to try such offences. This is further clarified by section 16 of the National Investigation Agency Act, which allows a Special Court to take cognizance of an offence without the accused being committed to it for trial upon receipt of a complaint of facts or a police report. Even where the offence is punishable with imprisonment of not exceeding three years, the Special Court may try the offence in a summary manner if it deems fit. Thus, the argument of the learned counsel appearing on behalf of the State of Punjab based on section 10 of the National Investigation Agency Act has no merit, since the Special Court has exclusive jurisdiction over every scheduled offence investigated by the State investigation agency. Before the National Investigation Agency Act was enacted, offences under the Unlawful Activities (Prevention) Act were divided into two categories: those with a maximum imprisonment of over seven years, triable by Courts of Session, and those with a maximum imprisonment of seven years or less, triable by Magistrate Courts. The 2008 Act has done away with this scheme, making all scheduled offences, irrespective of the investigating agency, triable exclusively by Special Courts. In the absence of any designated Special Court by notification issued by either the Central Government or the State Government, the fallback is the Court of Session. Therefore, the Magistrate’s jurisdiction to extend time under the first proviso in section 43‑D(2)(b) is non‑existent; the competent authority is either the Special Court or, failing that, the Court of Session. The impugned judgment that reached the contrary conclusion is incorrect as it omitted section 22(2) read with section 13 of the National Investigation Agency Act and section 16(1) of the National Investigation Agency Act, which states that a Special Court may take cognizance of any offence without the accused being committed to it for trial, inter alia, upon a police report of such facts., In our view, the following propositions emerge from the pronouncement in the case of Bikramjit Singh (Supra): (1) Once the State Government constitutes the Courts under the enabling power of section 22(1) of the National Investigation Agency Act, the provisions of Chapter IV of the Act dealing with Special Courts apply to such Court with modifications referred to in clauses (i) to (iii) of sub‑section (2) of section 22. Consequently, every scheduled offence investigated by the State Investigation Agency shall be tried by the Special Courts set up by the State Government under section 22(1). (2) The non‑obstante clause contained in section 13(1) of the National Investigation Agency Act, which confers exclusive jurisdiction on the Special Courts constituted by the Central Government under section 11, applies with equal force to the Court constituted by the State Government under section 22, with the change that the scheduled offence is investigated by the State Investigation Agency. (3) The non‑obstante clause in sub‑section (3) of section 22 mandates that, notwithstanding anything contained in the Code, until a Special Court is designated by the State Government under sub‑section (1), the jurisdiction conferred by the Act on a Special Court shall be exercised by the jurisdictional Court of Session. (4) Once a Special Court is constituted by the State Government under section 22(1), the trial of any offence investigated by the State Investigation Agency under the provisions of the National Investigation Agency Act shall be transferred to that Special Court from the date of its constitution. (5) The Court defined under section 2(1)(d) of the Unlawful Activities (Prevention) Act now refers to the Special Court constituted under section 22 of the National Investigation Agency Act, and for all offences under the Unlawful Activities (Prevention) Act, the Special Court alone has exclusive jurisdiction to try such offences. (6) The pre‑NIA regime, wherein offences punishable with maximum imprisonment of more than seven years were tried by Courts of Session and those with maximum imprisonment of seven years or less by Magistrates, has been completely displaced by the 2008 Act, which mandates that all scheduled offences be tried exclusively by Special Courts, whether investigated by the National Investigation Agency or by the State investigation agency. (7) In view of section 13(1) of the National Investigation Agency Act, if the scheduled offence is investigated by the National Investigation Agency, it must be tried only by the Special Court set up by the Central Government under section 11. (8) If the investigation is carried out by the State Investigation Agency, the trial shall be held by the Special Court constituted by the State Government under section 22(1); in the absence of such a Special Court, the trial shall be held before a Court of Session under section 22(3). (9) Finally, for all offences under the Unlawful Activities (Prevention) Act, the Magistrate has no jurisdiction to extend the period of detention under the first proviso of section 43‑D(2); the competent authority is the Special Court established under section 11 or 22 of the National Investigation Agency Act, or, failing that, the jurisdictional Court of Session., The learned Advocate General, Mr. Kumbhakoni, made a strenuous effort to persuade us that the pronouncement in Bikramjit Singh (Supra) does not govern the facts of the present case. He argued that the order passed by the Special Judge on 25 March 2019, which set aside the Magistrate’s order extending the period of detention, was never challenged by the State Government, and that the subsequent rejection of the default bail application was based on the filing of the charge‑sheet in the intervening period. He submitted that these factual differences were significant. We were invited to consider the decisions of the Supreme Court in Union of India & Ors. v. Dhanwanti Devi and Ashwani Kumar Singh v. U.P. Public Service Commission, which emphasize that the ratio decidendi, not every observation, forms the binding part of a judgment. While we acknowledge that proposition, we cannot accede to the submission that the factual backdrop in Bikramjit Singh (Supra) is so distinct as to render its pronouncement inapplicable. The Supreme Court, in the present case, similarly considered the scheme of the Unlawful Activities (Prevention) Act, the National Investigation Agency Act, and the Criminal Procedure Code, and expounded the legal position. It is noteworthy that, as in the present case, the State Government had constituted Special Courts under section 22(1) of the National Investigation Agency Act. The only distinguishing feature is the extension of the period of detention by the Magistrate, not the absence of a Special Court. At the time of hearing, we were informed that the pronouncement in Bikramjit Singh (Supra) was under consideration before another three‑Judge Bench in the case of Sadique and Others v. State of Madhya Pradesh. The decision in Sadique and Others (Supra) also involved an extension of detention by a Chief Judicial Magistrate under section 43‑D(2) of the Unlawful Activities (Prevention) Act, with the application for default bail being rejected. The revision application before the Sessions Judge and a petition under section 482 of the Code met the same fate. The Supreme Court, referring to Bikramjit Singh (Supra), especially paragraph 26, concurred that for all offences under the Unlawful Activities (Prevention) Act, the Magistrate’s jurisdiction to extend time under the first proviso in section 43‑D(2)(b) is non‑existent. Consequently, the only competent authority to consider a request for extension of time is the Court specified in the proviso, and the accused are entitled to be released on default bail. This proposition was reaffirmed by another three‑Judge Bench in Sadique and Others (Supra), which unequivocally stated that the only competent authority to consider such a request is the Court specified in the proviso to section 43‑D(2)(b). Thus, where a Special Court is constituted under section 22 of the National Investigation Agency Act by the State Government, the jurisdiction to extend the period of detention exclusively vests with that Special Court., It is pertinent to note that the Supreme Court, in Naser Bin Abu Bakr Yafai v. State of Maharashtra, affirmed the judgment of the Division Bench in that case and examined the provisions of the Unlawful Activities (Prevention) Act and the National Investigation Agency Act. The Court held that even if the Anti‑Terrorism Squad, Nanded, had the power to continue its investigation and file a charge‑sheet, it could do so only before a Special Court under the National Investigation Agency Act, since the appellant was charged under the Unlawful Activities (Prevention) Act. The Supreme Court extracted observations from Bikramjit Singh (Supra) and explained that the power to extend the 90‑day period under the first proviso to section 167(2) of the Criminal Procedure Code up to a maximum of 180 days is vested with the Court, which, read with the definition in section 2(1)(d) of the Unlawful Activities (Prevention) Act, refers to the Special Court constituted under section 22 of the National Investigation Agency Act. Applying the Bikramjit Singh proposition to the facts of Naser Bin Abu Bakr Yafai, the Supreme Court held that the principles would not apply because no Special Courts had been designated under section 22 of the National Investigation Agency Act in Maharashtra at the relevant time. Consequently, the Court of Session remained the residuary court. In the present case, however, Special Courts constituted by the State Government under section 22 of the National Investigation Agency Act did exist in Pune when the application for extension of detention was entertained by the learned Additional Sessions Judge, Shri K.D. Vadane. Therefore, the observations in Naser Bin Abu Bakr Yafai do not govern the present facts. The Division Bench’s view that a Special Court constituted under section 22 obtains jurisdiction only after the investigation is transferred by the National Investigation Agency to the State Investigation Agency under section 7(b) was not addressed by the Supreme Court. Finally, a Full Bench of the Madras High Court in Jaffar Sathiq @ Babu v. State held that the pronouncement in Bahadur Kora must be impliedly overruled by the authoritative decision of the Supreme Court in Bikramjit Singh (Supra), confirming that the applicability of the National Investigation Agency Act for offences under the Unlawful Activities (Prevention) Act is no longer open to doubt. Thus, the view that Special Courts under section 22 are merely transferee courts applicable only after a transfer of investigation by the National Investigation Agency is inconsistent with law. The power of the State Government under section 10 of the National Investigation Agency Act to investigate and prosecute any scheduled offence, subject to the concurrent jurisdiction of the National Investigation Agency, must be given effect. The interplay between section 13(1), which confers exclusive jurisdiction on the Special Court, and section 22 of the National Investigation Agency Act, underscores that the Special Court alone has jurisdiction over scheduled offences, rendering ordinary criminal courts under the Code without jurisdiction.
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Fourthly, had the intention of the legislature been to make the Special Courts, to be constituted by the State Government under section 22 of the National Investigation Agency Act, as only the transferee Court, there was no need to make elaborate provisions especially under section 22 of the National Investigation Agency Act, whereby the Special Court constituted by the State Government and the State Investigation Agency are equated with the Special Court constituted under section 11 and the National Investigation Agency, respectively, subject to primacy of the National Investigation Agency and the Special Court constituted under section 11 of the National Investigation Agency Act., This propels us to the next limb of the submission assiduously canvassed on behalf of the respondents that under section 11 of the National Investigation Agency Act, the Special Courts are to be constituted for the trial of Scheduled Offences. The Special Courts so constituted or designated under either section 11 or section 22 of the National Investigation Agency Act are not meant for conduct of pre‑trial proceedings., Since the extension of period of detention, pending completion of investigation, is squarely in the realm of investigation, the ordinary criminal courts are not divested of the jurisdiction to deal with pre‑trial proceedings, including the extension of period of detention, was the thrust of the submission on behalf of the respondents., Indeed, there is a marked difference between the stages of investigation, inquiry and trial envisaged by the Code. However, in the light of the controversy at hand, the distinction sought to be drawn between pre‑trial and trial proceedings and the jurisdiction of the Court qua those proceedings is not of much assistance to the respondents. The reason is not far to seek. The first proviso in section 43‑D(2)(b) expressly confers the power to extend the period of detention of the accused up to 180 days upon the Court, which in turn is defined in section 2(d) as a criminal court having jurisdiction to try offences under the said Act. The legislature has vested the authority to extend the period of detention in the Court which is competent to try the offences under the Unlawful Activities (Prevention) Act. We have seen that, Bikramjit Singh (Supra) lays down in emphatic terms that it is only the Special Courts constituted either under sections 11 or 22 of the National Investigation Agency Act which are competent to try the Scheduled Offences., In this view of the matter, looking from any angle, the Court referred to in the proviso in section 43‑D(2)(b) of the Unlawful Activities (Prevention) Act would be the Court competent to try those offences, which are primarily the Special Courts constituted under sections 11 or 22 and, in the absence of designation of such Courts, the Court of Session., Indisputably, in the case at hand, the Special Courts under section 22 of the Act were constituted at Pune. The question that now crops up for consideration is whether, in the face of existence of a Court constituted under section 22 of the National Investigation Agency Act, the learned Additional Sessions Judge could have entertained the prayer for extension of period of detention under section 43‑D(2)(b) of the Unlawful Activities (Prevention) Act., Dr. Chaudhary, the learned counsel for the applicant, would urge that the fact that the period of detention was extended by the learned Additional Sessions Judge is as irrelevant and inconsequential as the extension of the period of detention by the learned Magistrate, which has been held to be without jurisdiction by the Supreme Court of India in the case of Bikramjit Singh (Supra). According to Dr. Chaudhary, the question of existence of jurisdiction goes to the very heart of the matter. Reiterating that an order passed without jurisdiction is non‑est in law, Dr. Chaudhary would urge, no matter such an order is passed by a Sessions Judge. It was further urged that when the statute provides a certain thing to be done in a particular way, it must be done in that way alone. The submission based on lack of prejudice to the applicant, according to Dr. Chaudhary, does not deserve countenance., As a strong case of absence of prejudice to the applicants was pressed into service on behalf of the respondents, especially by Mr. Anil Singh, the learned Additional Solicitor General, we deem it appropriate to record that the aspect of prejudice operates in different spheres qua twin challenges, namely, the challenge to the authority to grant the extension of period of detention and competence to take cognizance. The former, in our view, stands on a higher pedestal. By a catena of decisions, it has been held that the right of the accused to be released on bail, if the investigation is not completed and charge sheet is not filed within the period prescribed under section 167 of the Code of Criminal Procedure and as extended by special enactments, is indefeasible and also partakes the character of a fundamental right flowing from the procedure established by law under Article 21 of the Constitution of India. The aspect of competence to take cognizance, on the other hand, is a matter which does not necessarily entail the consequence on personal liberty., The legislature consciously chose to vest the power to extend the period of detention up to 180 days in the Court which is competent to try the offence under the Unlawful Activities (Prevention) Act. The said power is further regulated by providing that it should be exercised only when the Court is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the further detention of the accused beyond the initial period of 90 days. The exercise of the power to extend the period of detention is thus not envisaged as a matter of routine. The Court is expected to apply its mind to the necessity of further detention and extension of period of investigation. This implies that the said power shall be exercised only by the Court which is vested with special jurisdiction by the statute., The fact that the Special Judges are to be appointed from amongst the Sessions Judges does not carry the matter any further. It is not the mere hierarchical equivalence of the presiding officers of the Special Court and the Court of Sessions which is decisive. The pivotal question is the existence of jurisdiction to extend the period of detention, which takes away the otherwise indefeasible right of the accused to be released on bail for default in completion of investigation and filing of the charge‑sheet. From this standpoint, in our view, the fact that in the cases of Bikramjit Singh (Supra) and Sadique (Supra) the period of detention was extended by the Magistrate makes no qualitative difference in the application of the principle of law expounded therein. The test is whether the Court which extended the period of detention had the jurisdictional competence; if not, it is of no relevance whether that Court was of inferior or superior rank., Had the Special Court under section 22 of the National Investigation Agency Act not been constituted at Pune, a totally different consideration would have come into play. In that event, in view of the provisions of section 22(3) read with section 13(1) and section 16 of the National Investigation Agency Act, the Court of Session would have the necessary jurisdiction to try the Scheduled Offence. However, in the face of the indubitable existence of the Special Court, the extension of period of detention by the Additional Sessions Judge can only be said to be without jurisdiction., A profitable reference in this context can be made to the judgment of the Supreme Court of India in the case of Fatema Bibi Ahmed Patel Vs. State of Gujarat & Anr., wherein, in the context of extra‑territorial operation of the Penal Code and exercise of jurisdiction under section 188 of the Code of Criminal Procedure, the Supreme Court held that where the actions taken by the Court were without jurisdiction, those actions were nullities. The observations in paragraph Nos. 20 to 22 read as follows:, The learned counsel submitted that as in the earlier application, the appellant merely complained of the absence of any sanction, this application should not be entertained. We do not agree. Principles analogous to res judicata have no application with regard to criminal cases. An accused has a fundamental right in terms of Article 21 of the Constitution of India to be proceeded against only in accordance with law. The law which would apply in India, subject of course to the provisions of Section 4 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure, is that the offence must be committed within the territory of India. If admittedly the offence has not been committed within the territorial limits of India, the provisions of the Indian Penal Code as also the Code of Criminal Procedure would not apply. If the provisions of said Acts have no application as against the appellant, the order taking cognizance must be held to be wholly illegal and without jurisdiction. The jurisdictional issue has been raised by the appellant herein. Only because on a mistaken legal advice another application was filed, which was dismissed, the same by itself, in our opinion, will not come in the way of the appellant to file an appropriate application before the High Court particularly when by reason thereof her fundamental right has been infringed., This Court, in a matter like the present one where the jurisdictional issue goes to the root of the matter, would not allow injustice to be done to a party. The entire proceedings having been initiated illegally and without jurisdiction, all actions taken by the court were without jurisdiction, and thus are nullities. In such a case even the principle of res judicata (wherever applicable) would not apply., In Chief Justice of Andhra Pradesh and Others v. L. V. A. Dixitulu and Others [AIR 1979 SC 193 at 198], this Court held: \If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case.\, In the case of Zuari Cement Limited Vs. Regional Director, Employees State Insurance Corporation, Hyderabad and Ors., the Supreme Court of India adverted to the principle enunciated in the celebrated case of Nazir Ahmad Vs. King Emperor and reiterated that, where there is want of jurisdiction, the order passed by the Court is a nullity or non‑est. The following paragraphs are material:, In Babu Verghese and Others vs. Bar Council of Kerala and Others, (1999) 3 SCC 422, it was held as follows: It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (45 LJCH 373) which was followed by Lord Roche in Nazir Ahmad v. King Emperor, (AIR 1936 PC 253) who stated: Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P., (AIR 1954 SC 322) and again in Deep Chand v. State of Rajasthan (AIR 1961 SC 1527). These cases were considered by a three‑Judge Bench of this Court in State of U.P. v. Singhara Singh (AIR 1964 SC 358) and the rule laid down in Nazir Ahmad case (AIR 1936 PC 253) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law. Where there is want of jurisdiction, the order passed by the court/tribunal is a nullity or non‑est. What is relevant is whether the Court had the power to grant the relief asked for., As regards the aspect of taking cognizance by the learned Additional Sessions Judge by the orders dated 15th November 2018 and 21st February 2019, consistent with the pronouncement of the Supreme Court of India in the case of Bikramjit Singh (Supra), in our view, the Special Court, having been constituted under section 22 of the National Investigation Agency Act, was the Court competent to take cognizance of the Scheduled Offence. This leads us to the question: What consequence emanates from the fact that cognizance of the offences was taken by the learned Additional Sessions Judge, though a Special Court under section 22 of the National Investigation Agency Act was in existence at Pune?, For an answer, it is necessary to appreciate what is the jurisdictional connotation of the term cognizance. The Code does not define the term cognizance. In the context of the proceedings before the Court, it connotes taking judicial notice of the matter placed before the Court. In a criminal prosecution, it implies that the Judge or Magistrate has taken judicial notice of the offences alleged, in order to initiate further action in accordance with the governing provisions of the Code of Criminal Procedure and/or procedure prescribed under a Special enactment., In the case of S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Ors., the Supreme Court of India expounded the juridical connotation of the term cognizance as follows: The expression cognizance has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means become aware of and, when used with reference to a Court or a Judge, it connotes taking notice judicially. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance., In the light of the uncontroverted facts of the case at hand, the question which wrenches to the fore is whether the act of taking cognizance of the Scheduled Offences by the learned Additional Sessions Judge (Shri K.D. Vadane) entails the consequence of nullifying the presentment of the charge‑sheet by the Investigating Agency, post completion of investigation. In other words, whether the act of taking cognizance by a Judge who is not legally empowered to do so vitiates the entire proceedings., The Code declares it to be an irregularity which does not vitiate the proceedings. Clause (e) of section 460 of the Code declares that if any Magistrate, not empowered by law, erroneously in good faith, takes cognizance under clause (a) or clause (b) of sub‑section (1) of section 190, his proceedings shall not be set aside merely on the ground of his not being so empowered. From the expression \merely on the ground of his not being so empowered\ used in section 460, the element of prejudice on account of irregular proceeding becomes explicit. Mere irregularity without resultant prejudice which has the propensity to lead to failure of justice is of no consequence., Mr. Anil Singh, the learned Additional Solicitor General, was justified in advancing the submission as regards lack of prejudice in the context of the cognizance having been taken by the learned Additional Sessions Judge, and placing reliance on the judgment of the Supreme Court of India in the case of Rattiram and Ors. (Supra). Rattiram and Ors. (Supra) arose in the context of the cleavage of opinion in the judgments of the Supreme Court in the cases of Moly & Anr. Vs. State of Kerala and Vidyadharan Vs. State of Kerala, wherein it was held that conviction by the Special Court is not sustainable if it had suo moto entertained and taken cognizance of the complaint under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 without the case being committed to it, and in the case of State of Madhya Pradesh Vs. Bhooraji, wherein it was opined that when a trial has been conducted by a Court of competent jurisdiction and a conviction has been recorded on proper appreciation of evidence, the same cannot be erased or effaced merely on the ground that there had been no committal proceeding and cognizance was taken by the Special Court insofar as the same does not give rise to failure of justice., A three‑Judge Bench in the case of Rattiram & Ors, after adverting to the provisions contained in section 465 of the Code to the effect that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, or any error or irregularity in any sanction for the prosecution unless, in the opinion of that court, a failure of justice has in fact been occasioned thereby, approached the controversy on the premise that failure of justice has been treated as the sine qua non for setting aside the conviction. The Supreme Court referred to a number of pronouncements which dealt with the aspect of failure of justice and concluded as follows: We may state without any fear of contradiction that if the failure of justice is not bestowed its due significance in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentially to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the Legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the Legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial., Judged from these spectrums and analysed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non‑compliance of section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and, on that ground alone, the conviction cannot be set aside nor can a direction of retrial be issued. Therefore, the decision rendered in Bhooraji lays down the correct law inasmuch as there is no failure of justice or prejudice caused to the accused. The decisions rendered in Moly and Vidyadharan have not noted the decision in Bhooraji, a binding precedent, and hence they are per incuriam; further, the law laid down therein, whereby the conviction is set aside or the matter is remanded after setting aside the conviction for fresh trial, does not expound the correct proposition of law and, accordingly, they are hereby, to that extent, overruled., The aforesaid pronouncement thus exposits the law that the fact that cognizance was taken by a Special Court, despite the interdict in section 193 of the Code (which was the position under the un‑amended Scheduled Castes and Scheduled Tribes Act, 1989), and the trial resulted in a conviction, does not necessarily lead to setting aside of the conviction on the ground of defect in taking cognizance unless the failure of justice could be demonstrated., It is true that in the case at hand, the applicants had made an endeavour to question the jurisdiction of the Additional Sessions Judge at the initial stage. However, the foundational premise was that the applicants ought to have been produced before the learned Magistrate and not the Additional Sessions Judge. In this view of the matter, the fact that the Additional Sessions Judge took cognizance of the Scheduled Offences, despite the existence of a Special Court at Pune, in the absence of material to demonstrate that there was resultant failure of justice, cannot be exalted to such a pedestal as to hold that the very presentment of the charge‑sheet by the investigating agency is non‑est in the eye of law., We are thus not persuaded to accede to the submission on behalf of the applicants that the fact that the charge‑sheet was lodged in the Court of the Additional Sessions Judge and cognizance of the Scheduled Offences was taken by the learned Additional Sessions Judge would entail the consequence of no charge‑sheet at all having been filed by the investigating agency on the given dates., For the foregoing reasons, we answer the questions (i) and (ii) formulated at paragraph No.56 as follows: (i) Extension of period of investigation and detention of the applicants by order dated 26th November 2018 by invoking the first proviso under section 43‑D(2) of the Unlawful Activities (Prevention) Act, by the learned Additional Sessions Judge was not by a Court of competent jurisdiction. (ii) Consistent with the enunciation in the case of Bikramjit Singh (Supra) and in the face of the undisputed existence of the Special Court at Pune, the charge‑sheet ought to have been lodged before the Special Court. However, the act of taking cognizance by the learned Additional Sessions Judge (Shri K.D. Vadane) does not entail the consequence of vitiation of the entire proceedings., This propels us to the answer to the third and moot question: whether the applicants are now entitled to default bail?, We have noted the facts in detail, on purpose. The challenge to the application of Sudha Bharadwaj is on the ground that it was presented at a premature stage, i.e., before the completion of the period of 90 days of detention. Whereas the application presented by all the applicants (Exh. 169) dated 21st June 2019 was assailed on the ground that it was presented after the supplementary charge‑sheet came to be filed on 21st February 2019. Thus, none of the applications were presented after the expiry of the initial period of 90 days and before lodging of the charge‑sheet, even if the order of extension of period of detention is held to be without jurisdiction and thus eschewed from consideration., In the light of the significant distinction on the factual score, the claim of the applicants in both the applications warrants independent consideration. Before we proceed to delve into the facts, we deem it appropriate to note the legal position, which is almost crystallized, as regards the right to be released on bail under section 167(2) of the Code of Criminal Procedure, by a catena of decisions. In the context of the controversy at hand, we are of the view that it would suffice to refer to the recent judgment of the Supreme Court of India in the case of M. Ravindran Vs. The Intelligence Officer, Directorate of Revenue Intelligence., In the case of M. Ravindran, a three‑Judge Bench of the Supreme Court of India surveyed the authorities on the right of the accused to be released on bail under section 167(2) of the Code of Criminal Procedure read with Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act upon expiry of 180 days or the extended period, as the case may be. The Supreme Court culled out the propositions in paragraph 25 of the said judgment. They read as follows: Once the accused files an application for bail under the proviso to Section 167(2) he is deemed to have availed of or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A(4), NDPS Act upon expiry of 180 days or the extended period, the Court must release him on bail forthwith without any unnecessary delay after obtaining necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge‑sheet or a report seeking extension of time by the prosecution before the Court; or filing of the charge‑sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge‑sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, though the accused may still be released on bail under other provisions of the Code of Criminal Procedure., A profitable reference can also be made to the observations of the Supreme Court of India in the case of Bikramjit Singh, wherein the aspect of entitlement to default bail in the backdrop of wrongful rejection of the application and the subsequent filing of the charge‑sheet was also considered. The principles are enunciated in paragraph 36 as follows: A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted., Amplifying the challenge to the claim of applicant Sudha Bharadwaj, the learned Additional Solicitor General would urge that the period during which the applicant was ordered to be kept under house arrest, i.e., 28th August 2018 to 27th October 2018 (the day the applicant was taken into custody by Pune Police), cannot be counted as the period of detention under the orders of the Court under section 167 of the Code of Criminal Procedure. Thus, the application preferred by the applicant for default bail, i.e., 26th November 2018, on the ground that the 90‑day period from the date of her initial production before the learned Magistrate had expired, cannot be said to have been made after the expiry of 90 days as the period of house arrest was required to be excluded therefrom. Hence, the application presented on 26th November 2018 was premature., The aforesaid submission was based on the enunciation of law in the case of Gautam Navlakha Vs. National Investigation Agency. In the backdrop of the fact that a similarly circumstanced co‑accused was considered by the Supreme Court and the claim of the accused that the period of house arrest was required to be reckoned as the period of detention was not accepted by the Supreme Court, and in light of the order passed by the Supreme Court on 29th August 2018 in Romila Thapar & Others Vs. Union of India & Others, Writ Petition No. 260 of 2018, it would be sufficient to extract paragraphs 134 and 141 of the judgment in the case of Gautam Navlakha. They read as follows: We would think that the reality of the situation is explained by the said Order. Upon being informed that the appellant and another were kept under house arrest, ...
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It is not a case where the Supreme Court of India even had in its mind the duty to go through the entries in the case diaries relating to them, let alone actually going through them. Quite clearly, in respect of those persons, house arrest even was the result of the choice exercised by the Senior Counsel for the Writ Petitioners, who were not the persons to undergo the house arrest. No doubt, the Public Interest Litigation was launched to have an impartial enquiry regarding their arrests. It was thereafter ordered that the house arrest of the appellant and other (Sudha Bharadwaj) may be extended in terms of the order. House arrest was, undoubtedly, perceived as the softer alternative to actual incarceration. It was in that light that the Supreme Court of India proceeded in the matter. That house arrest, in turn, involved deprivation of liberty and will fall within the embrace of custody under Section 167 of the Code of Criminal Procedure, was not apparently in the minds of both the Supreme Court of India and the High Court of Delhi. This is our understanding of the orders passed by the court. In view of the fact that the house arrest of the appellant was not purported to be under Section 167 and cannot be treated as passed thereunder, we dismiss the appeal. There will be no order as to costs., The Supreme Court of India has thus held in clear and explicit terms that the house arrest of the appellant therein, who was similarly circumstanced with the applicant, was not to be equated with the detention within the meaning of section 167 of the Code of Criminal Procedure. Thus, the submission of the learned Additional Solicitor General that the period for which the applicant was under house arrest cannot be considered in computing the period of 90 days is well grounded in facts and law. However, the further submission that the application (Exhibit 43) preferred by the applicant on 26th November 2018 was premature, and therefore could not form the basis of accrual of right of default bail, in our view, does not merit equal acceptance., The aforesaid submission, if given full play, cuts the other way too. Even before the expiry of the period of 90 days, from the date of initial arrest of the applicant (computing the period of house arrest as well) i.e. on 22nd November 2018 itself, the learned Public Prosecutor filed a report (Exhibit 33) under section 43-D(2) of the Unlawful Activities (Prevention) Act read with section 167(2) of the Code of Criminal Procedure for extension of the period of detention, presumably on the premise that the initial period of 90 days would expire on 25th November 2018. Secondly, what is of critical significance is the fact that the application for default bail, preferred by the applicant (Exhibit 43) on 26th November 2018 was not decided along with the report (Exhibit 33) filed by the Public Prosecutor. The said application was very much pending on the day the period of 90 days, excluding the duration for which the applicant was under house arrest, expired on 25th January 2019 and eventually came to be dismissed by the learned Additional Sessions Judge on 6th November 2019. The supplementary charge‑sheet against the applicant Sudha Bharadwaj was filed on 21st February 2019., In the backdrop of the view which we have taken that the order passed by the learned Additional Sessions Judge on the report (Exhibit 33) on 26th November 2018 was without jurisdiction, the respondents cannot now be permitted to draw mileage from the said order, and thus the situation which obtained on 25th January 2019 was that the period of 90 days, excluding the period for which the applicant was under house arrest, expired and the application preferred by the applicant for default bail (Exhibit 43) was still pending. Can the applicant be said not to have availed the right to be released on bail?, In the light of the pronouncement of M. Ravindran and Bikramjit Singh, once the period of detention expired and the accused manifested the intent to avail the right by making an application, no subterfuge to defeat the said indefeasible right can be countenanced. Factors such as the bail application not being decided, or being wrongly decided, or a subsequent charge‑sheet being filed, or a report seeking extension of the period of detention being filed and allowed, are of no significance. Such attempts of defeating the indefeasible right have been consistently repelled by the courts. Once the twin conditions of default in filing the charge‑sheet within the prescribed period, and the action on the part of the accused to avail the right are satisfied, the statutory right under section 167(2) of the Code of Criminal Procedure catapults into a fundamental right as further detention falls foul of the personal liberty guaranteed under Article 21 of the Constitution., In the case at hand, with the declaration that the learned Additional Sessions Judge (Shri K.D. Vadane) had no jurisdictional competence to extend the period of detention under section 43-D(2)(b) of the Unlawful Activities (Prevention) Act, the very substratum of the prosecution case that the right to default bail did not ripen into an indefeasible right, as the period of detention was extended, gets dismantled. The hard facts which emerge as to the application of Sudha Bharadwaj are: (i) the period of detention of 90 days (excluding the period of house arrest) expired on 25th January 2019; (ii) no charge‑sheet was lodged; (iii) there was no lawful order of extension of the period of detention; and (iv) an application preferred by Sudha Bharadwaj for default bail awaited adjudication., The matter can be looked at from a slightly different perspective. As the period of detention was extended by the learned Additional Sessions Judge by 90 days, the applicant Sudha Bharadwaj could not have applied for default bail after 25th January 2019 till the filing of the charge‑sheet. Therefore, it cannot be urged that the applicant Sudha Bharadwaj did not make an application during the said period and thus she did not avail the right of default bail. On the touchstone of the guarantee of personal liberty under Article 21 of the Constitution, in our view, to deprive the applicant Sudha Bharadwaj of the indefeasible right on the premise that the application preferred on 26th November 2018 (Exhibit 43) was premature would be taking a too technical and formalistic view of the matter. In our view, all the requisite conditions to release the applicant Sudha Bharadwaj on default bail stood fully satisfied., As regards the entitlement of the applicants numbered 1 to 8 in Criminal Application No. 1458 of 2019 for default bail, a brief revisit to the facts is in order. (i) Applicants 1 to 5, namely Sudhir Prahlad Dhawale, Rona Wilson, Surendra Gadling, Dr. Shoma Sen and Mahesh Raut, were arrested on 6th June 2018. (ii) The charge‑sheet against applicants 1 to 5 was filed on 15th November 2018. (iii) Applicants 6 to 8, namely P. Varavara Rao, Vernon Gonsalves and Arun Ferreira, were arrested on 28th August 2018. (iv) The charge‑sheet against applicants 6 to 8 in Criminal Application No. 1458 of 2019 and Sudha Bharadwaj in Criminal Bail Application No. 2024 of 2021 was filed on 21st February 2019., Evidently, neither applicants 1 to 5 claimed to have filed an application for default bail under section 167(2) of the Code of Criminal Procedure after the expiry of the initial period of 90 days from the date of their production before the learned Additional Sessions Judge on 7th June 2018 till the filing of the charge‑sheet on 15th November 2018. Nor did applicants 6 to 8 prefer such an application till the filing of the supplementary charge‑sheet against them on 21st February 2019., The applicants have, however, approached the Supreme Court of India with a case that they were detained beyond the period of 180 days without the cognizance of the offences having been taken by the competent court. We have extracted the averments in paragraphs 4 to 6 of the application. The applicants premised their claim for default bail on the aspect of defect in taking cognizance of the offences. For the applicants, the learned Additional Sessions Judge could not have taken cognizance without the case having been committed by the learned Magistrate., In the aforesaid view of the matter, the learned Advocate General and the learned Additional Solicitor General were on a firm ground when they urged that the applicants in Criminal Application No. 1458 of 2019 did not avail the right of default bail by filing an application within the meaning of section 167(2) of the Code of Criminal Procedure. We have seen that where the accused fails to apply for default bail when the right accrues to him and subsequently a charge‑sheet is filed before the Magistrate, the right to default bail would get extinguished as it cannot be said that the accused availed his right to be released on default bail., In this view of the matter, so far as applicants 1 to 5 in Criminal Application No. 1458 of 2019 are concerned, the legality of the extension of the period of detention is of no relevance as the applicants did not avail the right to be released on default bail before the charge‑sheet was filed against them on 15th November 2018. In the case of applicants 6 to 8, although we have held that the order passed by the learned Additional Sessions Judge on the report (Exhibit 33) on 26th November 2018 was without jurisdiction, that declaration is of no assistance to them as they did not avail the right to be released on default bail by filing an application after the expiry of the initial period of 90 days and before the lodging of the charge‑sheet on 21st February 2019. Consequently, a crucial condition of availing the right so as to cement it as an indefeasible right has not been fulfilled and the right stood extinguished by the filing of the charge‑sheet on 21st February 2019. Failure to take cognizance or defect in jurisdiction in taking cognizance, once the charge‑sheet was laid, does not entail the consequence of default bail., The conspectus of the foregoing consideration is that Criminal Application No. 1458 of 2019 preferred by Sudhir Prahlad Dhawale and seven others is liable to be rejected, whereas Bail Application No. 2024 of 2021 preferred by Sudha Bharadwaj deserves to be allowed., Hence, the following order: (i) Criminal Application No. 1458 of 2019 stands rejected; (ii) Criminal Bail Application No. 2024 of 2021 stands allowed; (iii) It is declared that Sudha Bharadwaj, the applicant in Criminal Bail Application No. 2024 of 2021, is entitled to be released on default bail under section 167(2) read with section 43-D(2) of the Unlawful Activities (Prevention) Act; (iv) The applicant Sudha Bharadwaj shall be produced before the Special Court of the National Investigation Agency, Mumbai on 6th December 2021 and the learned Special Judge shall pass an order releasing the applicant on default bail on such terms and conditions as may be found suitable in the circumstances of the case; (v) In view of the disposal of Criminal Application No. 1458 of 2019 and Criminal Bail Application No. 2024 of 2021, all pending interim applications therein shall stand disposed of. All concerned are to act on an authenticated copy of this order., At this stage, Mr. Anil Singh, the learned Additional Solicitor General for the respondent National Investigation Agency, seeks a stay to the execution, operation and implementation of this order as a pure question of law arose in this matter and the decision may have repercussions on other cases. Mr. Chaudhary, the learned counsel for the applicant Sudha Bharadwaj, opposed the prayer of stay. It was submitted that since this matter was closed for orders, two judgments have been delivered by the Supreme Court of India which have affirmed the decision in the case of Bikramjit Singh. It is sufficient to note that we have considered those two judgments in this order. In view of the nature of the question which fell for our determination, we consider it appropriate to direct that the applicant Sudha Bharadwaj be produced before the learned Special Judge, National Investigation Agency Court, Mumbai on 8th December 2021 instead of 6th December 2021 and the learned Special Judge shall pass the order in terms of clause (iv) of the order on that day.
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In the Calcutta High Court, Constitutional Writ Jurisdiction, Appellate Side, Honorable Justice Sabyasachi Bhattacharyya, WPA No. 17704 of 2023, Manab Jati Kalyan Foundation and another versus The State of West Bengal and others. For the petitioners: Mr. Tarunjyoti Tewari, Mr. Sandip Ray, Mr. Hiranmoy Debnath, Ms. Polly Banerjee, Ms. Paramita Dey. For the State: Mr. Ratul Biswas, Mr. Chandan Kumar Mondal. For the respondents numbered 5 to 7: Mr. Jishnu Chowdhury, Mr. Chayan Gupta, Mr. Sandip Dasgupta, Mr. Saqib Siddiqui. Hearing concluded on 18 August 2023. Judgment on 25 August 2023., The petitioner number one is an organization having its office in New Town, Kolkata and petitioner number two is its Chairman. The present application has been filed against the refusal to allow the petitioners to hold Durga Utsab 2023 in the New Town Mela Ground, an expanse of property used for holding different fairs., Learned counsel for the petitioner relies on Article 14 of the Constitution of India, arguing that the petitioners have an equal right as others to hold a Durga Puja Festival in the said Mela Ground. It is submitted that in the previous year, when the petitioners moved the court against refusal to hold Durga Puja Festival in a bus stand complex, the court directed an alternative ground in the vicinity to be provided. The respondents subsequently provided the New Town Mela Ground itself to the petitioners for holding such Puja. Consequently, there can be no fetter on the part of the respondents in granting such permission. It is also submitted that other cultural events are regularly being held there, including a celebration at the behest of the spouse of the Chairman, New Town Kolkata Development Authority., It is submitted that huge emotion is attached to the celebration of Durga Puja. Although the petitioners made a representation on 28 February 2023 and several representations and reminders thereafter, the respondent authorities turned a deaf ear. Accordingly, this Court was approached and, pursuant to a specific direction dated 13 July 2023 passed in WPA No. 12767 of 2023, the application of the petitioners was decided and refused by a reasoned order dated 21 July 2023., The respondents contend that the Mela Ground is surrounded by a dense residential zone. However, permission to hold Puja has been given to several other entities in nearby areas and in the City Square Area, which is also situated very close and is surrounded by more residences than the Mela Ground. In fact, the Mela Ground is a designated place for holding festivals and fairs and is not surrounded by residential accommodations., It is submitted that during the Durga Puja festival, several entities hold public Puja festivals to make the heritage festival a success; therefore, other Pujas nearby cannot be a ground for refusal. The respondents allege that the petitioners’ registered office is at Kalyani, but the mere fact that the petitioners have an office in Kalyani does not fetter their right to hold a Puja in the New Town area. Moreover, the petitioners have an intellectual wing of the organization within New Town., Learned counsel cites a copy of the order of the court dated 23 September 2022, whereby a direction was given to the respondents to provide an alternative plot to the petitioners, upon which the New Town Mela Ground had been given to the petitioners. Learned counsel for the New Town Kolkata Development Authority argues that nobody can have a right to hold worship and provide offerings in a particular place., It is submitted that the petitioners cannot claim as a matter of right the entitlement to hold Puja on the plot in question. In the previous occasion, it was not the New Town Kolkata Development Authority but the Housing Infrastructure Development Corporation (HIDCO) that allotted the said plot. Moreover, the allocation was a one‑time measure, in deference to the direction of the court and not by designating the Mela Ground as a Puja area. The New Town Kolkata Development Authority vehemently argues that the Mela Ground has never been used for organizing any other Puja by any entity and is not meant to be so used., It is submitted that permissions to hold fairs are given only at times when there are no other ongoing public festivals. As opposed to such occasions, the time when the petitioners intend to hold the Durga Puja would coincide with Durga Puja festivals being held all over the State. Several other organizers have been given permission to hold Durga Puja in close vicinity of the Mela Ground itself. The authorities are within their jurisdiction to consider the pros and cons of giving such permissions, and nobody has a right to claim entitlement to hold Puja that would put public order at peril., It is submitted that there would be utter pandemonium if the Mela Ground is used by the petitioners during the relevant period for organizing a Puja, since there would be huge footfall in the other Puja pandals held in the close vicinity, which would disrupt traffic and safety and security of residents and commuters beyond repair., Learned counsel for the New Town Kolkata Development Authority cites Dr. M. Ismail Faruqui and others v. Union of India and others, reported at (1994) 6 SCC 360, where the Supreme Court held that Article 25 of the Constitution does not contain any reference to property unlike Article 26. The right to practice, profess and propagate religion guaranteed under Article 25 does not necessarily include the right to acquire, own or possess property, nor does it extend to the right of worship at any and every place of worship. The protection under Articles 25 and 26 is to religious practice that forms an essential and integral part of the religion. While the offering of prayer or worship is a religious practice, the location where such prayers can be offered is not an essential or integral part of the religion unless the place has particular significance., In the same light, learned counsel cites Dr. Mahesh Vijay Bedekar v. State of Maharashtra, reported at 2016 SCC OnLine Bom 8894, where a Division Bench of the Bombay High Court reiterated the principles laid down in Dr. M. Ismail Faruqui, observing that the right conferred by Article 25 will not extend to celebrating festivals on streets and foot‑paths unless offering prayers at a particular place is proved to be an essential part of the religion. The same principle was reiterated in another judgment of the Bombay High Court reported at 2016 SCC OnLine Bom 9422 between the same parties. A single Judge of the Madras High Court reported at 2012 SCC OnLine Mad in O.R.A. Abubakar Gani v. State of Tamil Nadu also followed Dr. M. Ismail Faruqui. The Allahabad High Court, in a judgment reported at 2019 SCC OnLine All 7000 (Bajrangpuri Ram Leela Committee v. State of Uttar Pradesh through District Magistrate, Kanpur and others), observed that there is no reason to allow any religious activity to be performed in public places such as parks, playgrounds and open spaces., The New Town Kolkata Development Authority Act, 2007 (the NKDA Act), Chapter IX, contains provisions relating to streets and public places. By relying on the same, it is sought to be impressed that all public streets, parking or transportation terminal squares, parks and gardens are vested in the New Town Kolkata Development Authority and are regulated in accordance with the provisions of the Act., Upon hearing learned counsel for the parties, there does not appear to be any specific bar in the NKDA Act, cited by the respondents, for holding any Durga Puja Festival in a mela ground. Although the respondents vociferously claim that the Mela Ground has never been used for a Durga Puja Festival and no permission has ever been given for such purpose, this is contradicted by the respondents’ own actions last year, where similar permission was given to the petitioners pursuant to an order of the court. While the court had directed an alternative place in the vicinity to be given, the Housing Infrastructure Development Corporation itself offered the Mela Ground as a designated Puja ground., The NKDA Act, cited by the authority, is of the year 2007 and was in force last year. In the order dated 23 September 2022 passed in WPA No. 21781 of 2022, the HIDCO authorities, represented by the same learned counsel now appearing for the New Town Kolkata Development Authority, stated that they had no objection if the petitioners organized the Puja on another HIDCO plot, designated for such purpose, upon payment and fulfillment of all requisite conditions. On instruction, learned counsel for HIDCO submitted that permission could be granted in an appropriate zone near the ECO Park. It was submitted that the Rules of HIDCO prohibit any large gathering or any Puja to be held in a bus terminus, which was the intended place of the petitioners, but such Puja can be held in places designated for such purposes., The Court observed that since the HIDCO authorities had fairly assured that an alternative plot would be provided to the petitioners, subject to compliance of all formalities and payment of due charges, as near the location in question as possible, the writ petition was disposed of by granting liberty to the petitioners to apply for permission at any of the alternative locations listed by learned counsel for HIDCO. As per the grounds offered by HIDCO, the New Town Mela Ground was chosen by the petitioners., It is relevant to mention that the New Town Kolkata Development Authority was a party to the order and was represented at the time of passing the order. The New Town Kolkata Development Authority never raised any objection to such arrangement or submission by HIDCO., The Durga Puja Festival is not confined merely to worship or religious offerings; it is a melting pot of different cultures. People from all over the state, the country and even abroad come to West Bengal to observe the fanfare and cultural milieu during Durga Puja. Hence, the festival has a substantial secular component and cannot be narrowed down to a mere religious offering of a particular community., The judgments cited by the respondents rest on the rights conferred under Articles 25 and 26 of the Constitution of India. The Supreme Court and various High Courts have observed that Article 25 does not confer the right on a person to perform worship in any place of the person's choosing, particularly in public parks, roads, foot‑paths, etc., The primary distinguishing feature in the present case is that the site at which the Durga Puja Festival is sought to be held is not a street, foot‑path or playground but a specifically designated ground for holding fairs. The name New Town Mela Ground itself signifies a fair. Therefore, the premise that the ground cannot be used for a Durga Puja Festival is erroneous. No intelligible or reasonable differentiation has been made between a Durga Puja Festival and ordinary fairs or other festivals designated to be held on the Mela Ground. Both entail huge footfall and parking of vehicles of the visitors., The respondents argue that when permission to hold fairs is given, no other similar festivals are organized in the nearby areas, allowing normal traffic flow. This argument is baseless, as during a Puja Festival there are numerous large Durga Puja celebrations organized by several entities in close proximity. The Kolkata Police and administration have been lauded for law enforcement during Puja times, with checks, bounds and measures put in place to control traffic and congestion. Hence, no extra burden would be placed by a single Puja. The petitioners had applied for observing the Puja in February this year; the delay was caused by the respondent authorities’ lackadaisical attitude and negligence., The delay of about six months was occasioned primarily due to the authorities sitting tight over the matter and cannot be attributed to the petitioners., Nothing has been shown by the authorities to indicate that after the petitioners’ application in February 2023 no other Puja in the area was permitted. Hence, the refusal of the petitioners’ application to hold Puja in a validly designated place for public fairs is patently mala fide, arbitrary and does not pass the Wednesbury test of reasonableness., The guiding light of the judgments cited by the respondents is Dr. M. Ismail Faruqui. In that case, the emphasis was on Article 25, which confers the right to practice, profess and propagate religion. The Supreme Court and the High Courts, following that judgment, held that Article 25 does not confer any right to worship at any place of worship unless the specific significance of the place is shown to be an essential part of the religion., The petitioners rely on Articles 14 and 19 of the Constitution of India. Article 14 guarantees equality before the law. Since other organizers have been permitted to hold public fairs on the ground in question, there is no plausible reason to refuse the petitioners’ plea for holding a Durga Puja Festival there. The respondents themselves provided the ground last year to the petitioners, as reflected in their own submission dated 23 September 2022 in WPA No. 21781 of 2022., The respondents’ pretext that the petitioner organization is primarily based in Kalyani cannot be accepted. The cause title of the present writ petition shows that an office of the petitioner is situated within New Town. Moreover, the mere fact that a person resides or has an office elsewhere cannot be a deterrent for permitting the organization of a festival on public property designated for public functions., Article 19 guarantees that all citizens have the right to assemble peacefully without arms and to move freely throughout the territory of India. This right cannot be frustrated by public authorities on the ground of residence elsewhere unless there is a specific intelligible reason or policy decision based on intelligible criteria. No such classification or restriction applicable to a Durga Puja Festival on a public Mela ground has been pleaded by the respondents., In Mansur Hasan and others v. Muhammad Zaman and others, reported at AIR 1925 PC 36, the Privy Council held that persons of any section are entitled to conduct religious processions through public streets in a manner that does not interfere with ordinary use of such streets and subject to directions that the Magistrate may lawfully give to prevent obstruction of the thoroughfare or breach of public peace., The Mela Ground is equipped and located to handle crowd, parking and traffic congestion. Several fairs are held on the ground and several Pujas have been permitted in 2023 in the vicinity of New Town. Therefore, there can be no reason why the petitioners’ Puja would interfere with the ordinary use of the ground., The petitioners will comply with all laws and regulations regarding public peace, noise pollution and other norms, as other Puja organizers do. There is no allegation that the petitioners violated any law when they organized a similar Puja on the same ground last year. The petitioners are also agreeable to pay full charges, as sanctioned by law and procedure, for observing the festival. Hence, nothing in law can prevent the petitioners from obtaining permission. The refusal by the respondent authorities is violative of Articles 14 and 19, particularly Articles 19(1)(b) and 19(1)(d), and is arbitrary, mala fide and unreasonable., Accordingly, WPA No. 17704 of 2023 is allowed, setting aside the order passed by the respondent authorities under Memo No. 7454/CEO/NKDA/2023 dated 21 July 2023 and directing the respondent authorities to grant permission to the petitioners to organize and celebrate the Durga Puja Festival for the year 2023 at the New Town Mela Ground, subject to the petitioners paying the requisite charges and complying with the necessary formalities. There will be no order as to costs. Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities., The petitioners sought a stay of operation of the impugned order. However, keeping in view the extreme urgency of the matter, since only about fifty days remain for the Puja, such prayer is refused.
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Criminal Original Petition (Miscellaneous Division) No. 1344 of 2022, Muruganantham Petitioner. The parties: The Director General of Police, Police Headquarters, No.1, Radhakrishnan Salai, Mylapore, Chennai 600004; The Deputy Inspector General of Police, Trichy Zone, Trichy; The Superintendent of Police, Thanjavur District, Thanjavur; The Inspector of Police, Thirukattupalli Police Station, Thanjavur District (Crime No. 40 of 2022); The Immaculate Heart of Mary Society constituted by the Roman Catholic Congregation of the Order of Immaculate Heart of Mary, Pondicherry, represented by its Provincial Rev. Dr. Sr. Rosari, daughter of Palraj, Respondents (fifth respondent impleaded by order dated 28 January 2022 in Criminal Original Petition (Miscellaneous Division) No. 1250 of 2022)., Prayer: Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, to transfer the investigation of Crime No. 40 of 2022 from the file of the fourth respondent to the Central Bureau of Investigation or any other independent investigating agency under the supervision of the Director General of Police, Tamil Nadu, and to complete the investigation and file a final report within a period to be fixed by the Supreme Court of India., For petitioner: Mr. M. Karthikeya Venkatachalapathy. For respondents: Mr. T. Senthil Kumar, Additional Public Prosecutor (1 to 4). For intervenor: Dr. Fr. Xavier Arulraj, Senior Counsel, for Ms. Amala Irudhaya Mary and Mr. Benitto., This case concerns posthumous justice for a child who set the criminal law in motion and who is now deceased., L was a student studying in 12th standard at Sacred Heart Higher Secondary School, Michealpatti, residing in St. Michaels Boarding, the hostel run by the school. On 09 January 2022, in the evening, she consumed pesticide while in the hostel and began to vomit. The hostel cook took her to a local nurse who administered an injection and tablets, but she continued vomiting. The hostel authorities informed her father, the petitioner, of her condition. The petitioner came to the hostel and took the child home. L did not disclose to anyone that she had consumed pesticide. She was given treatment for stomach pain, but as her condition worsened she was taken to a local hospital and thereafter admitted to Thanjavur Medical College Hospital on 15 January 2022 at around 5.00 p.m. Dr. Soundarya identified the actual cause after examining her scan report., An intimation was sent to Thirukattupalli police station from the Government Hospital. On 16 January 2022 at around 09.30 a.m., a trainee Sub Inspector recorded the statement of the child. Crime No. 40 of 2022 was registered for offences under Sections 305 and 511 of the Indian Penal Code and Sections 75 and 82(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015. On the same day, from 04.25 p.m. to 04.50 p.m., Judicial Magistrate No. I, Thanjavur recorded her statement after obtaining a medical opinion about her fitness. On 19 January 2022 at around 15.30 hours, the child passed away. An alteration report was filed and investigation was taken over by the Inspector of Police, All Women Police Station, Thiruvaiyaru. The next day a video of the child alleging that the school correspondent had spoken to her parents about conversion to Christianity was circulated on social media. The petitioner submitted a complaint with the video to the Superintendent of Police, Thanjavur District. Since the identity of the victim was not suppressed in the video, Thanjavur Police registered a criminal case. The Superintendent of Police held a press conference stating that the preliminary investigation ruled out the conversion angle., Initial directions issued by the Supreme Court of India: Mention was made on 21 January 2022 for emergent listing. Based on the petitioner's counsel submissions, the Court directed that a forensic autopsy be done. The office of the Additional Public Prosecutor, Madurai Bench informed the Registry that the autopsy had already been done and sought clarification on whether a second post‑mortem was required. The Administrative Judge permitted a special sitting on 22 January 2022. After ascertaining the petitioner's views through video conferencing, the Court clarified that there was no need for a second autopsy and the petitioner agreed to receive the child's body. The Court directed recording of the statements of the petitioner and his wife under Section 164 of the Criminal Procedure Code., The matter was again listed on 24 January 2022. By then, the recorded statements of the parents had been received in a sealed cover. After reviewing their contents, the Court directed the Court Officer to hand them over to the investigation officer. The petitioner was asked who recorded the video; he replied that at his instance Mr. Muthuvel recorded it. The investigation officer stated that the voice in the video was that of the child but that the original mobile phone and SIM card were needed for investigation. The Court directed Mr. Muthuvel to appear before the Investigation Officer on 25 January 2022 and hand over the original mobile phone. Further directions were issued for submission of forensic reports. The case was ordered to be called on 28 January 2022., Contentions of the petitioner: When the matter was taken up on 28 January 2022, Shri Karthikeya Venkatachalapathy, counsel for the petitioner, submitted that subsequent developments had caused the petitioner to lose faith in the State police. He prayed for transfer of investigation to the Central Bureau of Investigation. He pointed out that a senior minister had publicly absolved the school authorities of any conversion charge, and that the Education Department had conducted a departmental enquiry giving a clean chit to the school administration. He argued that the State police had selectively leaked information to build a counter‑narrative and relied on a series of case laws., Objections raised by the Additional Public Prosecutor: The Additional Public Prosecutor for the State submitted that no case for transfer of investigation had been made out and that the investigation was proceeding on the right lines. After receiving intimation from Thanjavur Medical College Hospital, the police promptly recorded the victim's statement and registered the First Information Report without delay. The investigation was taken up by Shri Govindarajan, Sub Inspector of Police, Thirukattupalli police station. He recovered the bottle of pesticide and the student handbook 2018‑19 in which the child had allegedly written that she was waiting for death; the recovered articles were sent for forensic analysis. The dying declaration was recorded by the Judicial Magistrate on the same day. On 17 January 2022, nine witnesses were examined. The hostel warden against whom the child had made allegations was arrested on 18 January 2022 and remanded to judicial custody. Following the child's demise on 19 January 2022, an alteration report was filed and investigation was taken over by the Inspector of Police, All Women Police Station, Thiruvaiyaru. A video of the child apparently implicating the school correspondent was circulated on social media; the Additional Public Prosecutor described this as a mischievous act by vested interests. The petitioner, influenced by certain communal organisations, did not cooperate for inquest and post‑mortem, but the post‑mortem was conducted by forensic doctors and video‑graphed. The petitioner was initially unwilling to receive the body. The District Superintendent of Police held a press conference to dispel misgivings, stating that the investigation was being conducted from all angles and that the Court's directions had been scrupulously complied with. The forensic labs sought an additional two weeks to submit their reports; witness examination was ongoing., Further objections: The Additional Public Prosecutor criticised the conduct of the petitioner and Mr. Muthuvel for not cooperating with the investigation and warned against prejudging the issue. The petitioner and some communal organisations alleged that the school management attempted to convert the child to Christianity and, after being rebuffed, the child was harassed by the hostel warden, leading to her extreme step. The school management contested this allegation. The investigation must remain open‑minded; many classmates stated there was no pressure or suggestion to convert to Christianity, and local residents echoed this. Several classmates also disclosed that the child's mother had died eight years earlier, her father had remarried, and the step‑mother had been harsh towards the child, prompting her to join the school as a hosteller and avoid going home even during holidays. The Superintendent of Police nominated Deputy Superintendent of Police Ms. Brindha to investigate, asserting that the investigation was impartial and that it was irresponsible to question it. The petition was noted to be cryptic and only three paragraphs long. The Additional Public Prosecutor relied on a list of case laws, including AIR 1945 PC 18, AIR 1968 SC 117, AIR 1970 SC 786, 1980 CriLJ 98, 1992 CRI.L.J. 527, 1994 CriLJ 1981, 1995 AIR SCW 2212, AIR 2002 SC 1856, 2003 CriLJ 3117, (2003) 2 SCC 649, AIR 2008 SC 1614, 2009 (10) SCC 488, (2019) 9 SCC 24, AIR 2020 SC 2386, AIR 2021 SC 1918., Core submission of the Additional Public Prosecutor: The Supreme Court of India should not interfere at the investigation stage, as the province of investigation is exclusively reserved for the executive. The Court must not violate the principle of separation of powers or indulge in judicial overreach, and the petition should be thrown out as devoid of merit., Stand of the intervenor: The school in question is run by the Roman Catholic Congregation of the Order of Immaculate Heart of Mary, Pondicherry. It filed Criminal Original Petition (Miscellaneous Division) No. 1250 of 2022 to implead in the present proceedings. Although the implead petitioner is neither the de facto complainant nor the accused, the intervenor argued that, in the interest of justice, the matter should be heard. The Congregation was founded in 1844 and runs several schools and charitable institutions. Sacred Heart Primary School was established in 1859, upgraded to a middle school in 1923, became a high school in 1983, and a higher secondary school in 1998. It receives government aid for classes up to the 10th standard. Of the 786 students, 504 are Hindus; in the hostel, 42 of 52 students are Hindus. The intervenor vehemently denied any attempt to convert the child to Christianity, stating that certain groups were trying to besmirch the school's reputation., The intervenor further alleged that the petitioner was an alcoholic, that the child's step‑mother treated her cruelly, and that the domestic situation had depressed the child, leading to suicide. It was claimed that the dying declaration was engineered by the step‑mother and that the child was tutored to falsely implicate Sister Saghayamary, who cared for the child and paid her school and hostel fees. The intervenor also alleged that Mr. Muthuvel, who recorded the video, was a hate‑monger with a prior criminal case for fomenting communal trouble, and that the school management was fully cooperating and had intervened only to set the record straight., Consideration of the rival contentions: The petitioner is the father of the deceased child. The original prayer was that the investigation be entrusted to the Central Bureau of Investigation Department or another agency under the supervision of the Director General of Police, Tamil Nadu, indicating confidence in the State Police despite loss of faith in the District Police. In the final hearing, the prayer was changed to a request for transfer of investigation to the Central Bureau of Investigation., Legal principles governing transfer of investigation as laid down by the Supreme Court of India: In R. P. Kapur v. State of Punjab (AIR 1960 SC 866), it was observed that investigations must be free from objectionable features or infirmities that could give rise to a grievance of unfairness or ulterior motive. Subsequent decisions have extended this principle to victims, recognizing the right to a fair investigation under Articles 20 and 21 of the Constitution (Nirmal Singh Kahlon v. State of Punjab and Others (2009) 1 SCC 441; Babubhai v. State of Gujarat (2010) 12 SCC 254). In K. V. Rajendran v. Superintendent of Police, Central Bureau of Investigation (2013) 12 SCC 480, the Court held that transfer of investigation may be ordered where it is necessary to do justice, to instil confidence, where the state police investigation lacks credibility, where high officials may influence the investigation, or where the investigation is tainted or biased. In Pooja Pal v. Union of India (2016) 3 SCC 135, the Court held that justice must not only be done but also appear to have been done, and that the Court may intervene to effect transfer if the investigating agency appears unable to discharge its functions fairly., Applying the legal principles to the factual matrix: There is no dispute regarding the timeline. The child consumed pesticide on 09 January 2022. Her statement was recorded by the police on 16 January 2022 at 09.30 a.m., and the Judicial Magistrate recorded her dying declaration on the same day in the evening. In both statements, the child directly accused the hostel warden of burdening her with non‑academic chores, leading her to consume pesticide. Consequently, the hostel warden, Sister Saghayamary, was arrested and remanded to judicial custody on 18 January 2022. The child died at about 15.30 hours on 19 January 2022. On 20 January 2022, a private video implicating the school correspondent was circulated on social media, and the petitioner filed a fresh petition before the Superintendent of Police, Thanjavur, enclosing the video., Instead of filing an alteration report based on the petitioner's complaint, Crime No. 77 of 2022 was registered on the file of Thanjavur Medical College Hospital police station for offences under Sections 153, 504, 505(1)(b), 505(2) of the Indian Penal Code read with Section 67 of the Information Technology Act, and Section 74(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Superintendent Ms. Ravali Priya, I.P.S., Thanjavur District, held a press conference and asserted that the preliminary enquiry had ruled out the conversion angle. This statement was unwarranted because the private video was already in circulation and the parents had complained of an attempted conversion. By stating that the conversion angle was ruled out, the Superintendent brushed aside the petitioner's written complaint supported by the video., The Supreme Court of India has a duty not to throw out the petition on procedural grounds alone. In Mithilesh Kumar Singh v. State of Rajasthan (2015) 9 SCC 795, the Court held that transfer of investigation from the State police to the Central Bureau of Investigation may be allowed in rare and exceptional circumstances where the State police investigation does not inspire confidence due to external influence or other reasons. There are no rigid parameters; the Court may determine whether an exceptional situation exists by reviewing the facts. The Court may mould relief based on the exigencies of the situation., The petition was filed on 21 January 2022 and the case was taken up for final hearing on 28 January 2022. The Hindu newspaper issue dated 24 January 2022 carried an interview with Shri Anbil Mahesh Poyyamozhi, Honorable School Education Minister, who stated that the Chief Educational Officer had immediately conducted an inquiry, that information was collected from the Collector and the police, that the police had recorded the girl's statement in hospital and clarified that pressure to convert was not the cause, and that the arrest of the warden was made because the girl was agonised and forced to take the extreme step. He appealed not to divert the issue and affirmed understanding of the parents' pain and public sentiment.
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The Bharatiya Janata Party, citing a video clip of the girl, is claiming there was an attempt to convert the girl to Christianity. It was wrong. They should not have recorded the girl's statement. They had questioned her in a provocative manner and she had not given any clear‑cut answer. But a life has been lost, and whoever is responsible for it will be punished. The learned counsel appearing for the petitioner submitted that apart from the Honourable Education Minister, two other high‑ranking Ministers have also expressed opinions on the same lines. The Education Department has also come out with a statement exonerating the school management of the charge of conversion., The learned counsel appearing for the petitioner submitted that the petitioner lost faith in the State police also for the reason that they deliberately leaked the materials which were in their exclusive possession., The Honourable First Bench of the Madras High Court in Murugasamy versus State (2017) 2 L.W. (Criminal) 345 had held that the dying declaration recorded by the Judicial Magistrate should be kept confidential. In this case, the dying declaration was recorded on 16 January 2022 by Judicial Magistrate No. I, Thanjavur, a copy of which was made available to the investigation officer. However, Sun News telecasted the handwritten dying declaration on 21 January 2022. The petitioner's counsel alleged that the police leaked the contents of the dying declaration along with the copy to build a counter narrative. In the dying declaration given before the magistrate, the girl had not stated anything about conversion; it was confined only to the harassment caused by the hostel warden. Therefore, the contents of the dying declaration were used by the school management to debunk the conversion allegation. According to the petitioner's counsel, the police willingly aided that, and it was a rank illegality., Following the direction given by the Madras High Court, Mister Muthuvel handed over the original mobile phone along with the SIM card to the investigation officer on 25 January 2022. Thereafter, the information technology wing of the ruling party released portions of the private video that appear to exonerate the school authorities. This again raises considerable doubts about the credibility and impartiality of the investigation made by the State police. The original narrative is that the girl committed suicide unable to bear the treatment meted out to her by Sister Saghayamary, the hostel warden. The private video as well as the statements of the parents indicate that there was an attempt at conversion to Christianity. The complaint of the father is that since the girl did not convert to Christianity, she was harassed by the hostel warden. Whether there is truth in the allegation is a matter for investigation and eventually for the Madras High Court to decide. But a counter narrative is being built as if the father and the step‑mother of the child are responsible for the suicide. In social media, an allegation has been made that CHILDLINE received complaints some two years ago that the child in question was being cruelly treated by the step‑mother. Such deliberate leaks dent the credibility of the investigation. The statement of the child was recorded by the local police, who also video recorded her statement. Later, the Judicial Magistrate also recorded her dying declaration. In neither of the statements did the child make any allegation regarding her step‑mother. Her only target of attack was Sister Saghayamary, the hostel warden., The attempt of the police appears to be to derail the investigation. One should not lose sight of the fact that the petitioner is not the de facto complainant; the deceased child herself was the de facto complainant. The information given by her to the police can also be taken as a dying declaration. In this case, there are three dying declarations: one given to the police, one given to the Judicial Magistrate and one privately recorded by Mister Muthuvel. It is well settled that there can be more than one dying declaration. The basic legal maxim is that the person who is going to meet the Maker shortly will not utter a lie. Even a conviction can be based solely on a dying declaration, but the court will have to carefully scrutinise the veracity of its contents because the person is no longer available for cross‑examination. In this case, there is no contradiction between the police video and the private video. The private video contains extra material. It is relevant to bear in mind that though the child consumed pesticide on 9 January 2022, she did not reveal the same either to the hostel authorities, to the parents, or even to the doctors. Only when the scan report revealed the truth did she speak about it. Therefore, no adverse inference can be drawn because the child did not disclose everything in the first instance. The two videos must be taken together and a final call can be made only after a thorough investigation or perhaps a thorough trial. It is too early for the police or the politicians to jump to conclusions, but they have done so. That is why the petitioner is apprehensive that if the investigation continues to remain in the hands of the State police, he will not get justice. His apprehension is justified., In the private video, to a specific question, the child exonerated the Headmistress. Her allegation was directed only against the hostel warden. She also mentioned that the school correspondent wanted her to convert. When asked about the Fathers (ordained male priests), the child replied in the negative. If the step‑mother had tutored the child, the private video would not have contained such contents. Since the authenticity of the private video is not in doubt, there is no basis for attacking the father and the step‑mother of the child. The learned counsel appearing for the petitioner submitted that since the mother of the child had died and, since the father had remarried, the maternal grandparents would obviously be upset. The police have sent summons to the maternal grandparents for obtaining statements adverse to the step‑mother. I find merit in the petitioner's counsel's contention that the police, instead of finding out the truth of the allegations made by the deceased victim, have been trying to bolster the counter narrative., Let us take the case of sexual harassment at workplaces. The victim employee who rebuffs the sexual advances of her superior will find that she is burdened with extra and difficult work. The work ambience will be made unbearable. The offender will not be sexually harassing the victim every day. This is the standard modus operandi. The petitioner's counsel wants me to draw a similar analogy. The correspondent wanted the child to convert to Christianity. The offer was made to the parents. The parents rejected the proposal. As a consequence, through the warden, hostel life was made unbearable and suffocating for the child. I am not in a position to reject the hypothesis propounded by the learned counsel for the petitioner., It is submitted that in the unedited private video, the child is seen alleging that she was not allowed to go home even during holidays. She was made to do all kinds of work, was asked to look after the accounts, and was made to do cleaning work. The petitioner's father would allege that she was made to clean toilets. She secured 489 out of 500 in the 10th standard and was the school topper. Her father is a poor agriculturist. The girl dreamed of securing high marks in the 12th standard. Since she was burdened with other work, she was unable to concentrate on her studies. She became apprehensive that she would not secure good marks. The board exams were a short while away. She became depressed and took her own life. That the child committed suicide is not in doubt. Even the parents did not allege that the death was homicidal. What led the child to commit suicide has to be investigated. Before the investigation officer, the dying declaration of the child is available. Its authenticity is undoubted. Without doing so, the District Superintendent of Police wanted to completely suppress the conversion angle altogether. They wanted to fasten the entire blame initially on Sister Saghayamary. But now the parents are in the dock., The Madras High Court has a duty to render posthumous justice to the child. The foregoing circumstances cumulatively taken will definitely create an impression that the investigation is not proceeding on the right lines. Since a high‑ranking Honourable Minister himself has taken a stand, investigation cannot continue with the State Police. I therefore direct the Director, Central Bureau of Investigation, New Delhi to assign an officer to take over the investigation from the State Police. The criminal original petition is allowed on these terms. The registry is to mark a copy of this order to the learned Assistant Solicitor General, Madras High Court, Madurai Bench for onward transmission to the Director, CBI. The CBI will undertake an independent investigation and shall not take into account any of the observations made in this order. Since contentions were advanced on either side, this Court had to deal with them. Nothing set out in this order shall be construed as an opinion on the merits of the matter. They have been made only for the purpose of disposing of this transfer petition., Sister Saghayamary, the hostel warden, was arrested on 18 January 2022. Her continued incarceration may not serve any purpose. Her guilt or innocence will be decided later. Though the investigation has been ordered to be transferred, the formal process may take time. I therefore direct that the jurisdictional court can dispose of the bail petition of Sister Saghayamary based on the available materials and formal notice to the CBI is dispensed with., Note: In view of the present lockdown owing to the COVID‑19 pandemic, a web copy of the order may be utilized for official purposes, but ensuring that the copy of the order that is presented is the correct copy shall be the responsibility of the advocate or litigant concerned., The Director General of Police, Police Headquarters, No.1, Radhakrishnan Salai, Mylapore, Chennai 600004; the Deputy Inspector General of Police, Trichy Zone, Trichy; the Superintendent of Police, Thanjavur District, Thanjavur; the Inspector of Police, Thirukattupalli Police Station, Thanjavur District; the Director, Central Bureau of Investigation, New Delhi; the Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai; the Assistant Solicitor General of India, Madurai Bench of the Madras High Court, Madurai; the Principal District Judge, Trichirappalli.
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Date of Decision: 06 April 2022. Present batch of appeals has been filed raising a common question of law, namely, as to whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in allowing the appeal of the assessee ignoring the fact that the assessee has paid most of the scholarship amount to the students of a particular religious community which is a clear violation of Section 13(1)(b) of the Income Tax Act, 1961., The relevant portion of the impugned order passed by the Tribunal is reproduced hereinbelow: As far as the question of scholarship is concerned, in the Assessment Year 2010-11 itself, the assessee had challenged the same and the learned Commissioner of Income Tax (Appeals) in his order dated 6 March 2014 held that the benefit of scholarship to the poor and needy student was not confined to the students of a particular community and a perusal of the list submitted by the assessee shows that the benefit is granted to the students from all the communities without any discrimination. Such a finding of the learned Commissioner of Income Tax (Appeals) was accepted by the Revenue and while preferring Income Tax Appeal No. 3403/Del/2014 in respect of the Assessment Year 2010-11, the Revenue did not challenge this finding of the learned Commissioner of Income Tax (Appeals). When a similar question had arisen for the Assessment Year 2011-12 before the learned Commissioner of Income Tax (Appeals), the learned Commissioner of Income Tax (Appeals) observed that the facts are identical to the Assessment Year 2010-11 in which a factual finding was given to the effect that the scholarships were not restricted to a particular religious community and there is no violation of the provisions of Section 13(1)(b) of the Act in this year also. When a factual finding of the learned Commissioner of Income Tax (Appeals) was accepted for the Assessment Year 2010-11, and such a finding was confirmed by the learned Commissioner of Income Tax (Appeals) on a similar set of facts and circumstances for the Assessment Year 2011-12, we find every force in the argument of the learned Additional Revenue that it is not open for the Assessing Officer to raise such an issue selectively for few years and accept the findings of the first appellate authority for some years. Further, the Revenue failed to establish before us how the findings of the learned Commissioner of Income Tax (Appeals) on this factual aspect are incorrect for this Assessment Year 2011-12 by placing the material that was available before the Assessing Officer to reach a conclusion that the provisions under Section 13(1)(b) of the Act are applicable to the facts of the case. In the absence of any such collaborative piece of material, we find it difficult to disturb the factual finding written by the learned Commissioner of Income Tax (Appeals). We, therefore, while confirming the findings of the learned Commissioner of Income Tax (Appeals), dismiss this ground of appeal., Learned counsel for the appellant states that the Tribunal, while passing the impugned order, overlooked the fact that the Assessing Officer had found that the respondent-assessee had given merit-cum scholarship/financial assistance to candidates predominantly belonging to a particular religious community which is violative of Section 13(1)(b) of the Act. He further states that the advertisement for educational scholarship was published by the assessee in Urdu language and, that too, in one newspaper only. According to him, this clearly indicates that the assessee wanted to restrict the circulation of the scholarship advertisement as its intent was to provide benefit to a particular religious community only., However, upon perusal of the paperbook, this Delhi High Court finds that both the Commissioner of Income Tax (Appeals) and the Tribunal have given a concurrent finding of fact that the benefit of scholarship to the poor and needy students was not confined to students of a particular community and a perusal of the list submitted by the assessee showed that the benefit had been granted to students from all communities without any discrimination., Moreover, just because advertisement was published in Urdu language and that too in one newspaper, it cannot be presumed that it was targeted at the students belonging to a particular community only. In fact, a similar finding of the Commissioner of Income Tax (Appeals) in the assessment year 2010-11 was accepted by the revenue and was not even challenged before the Tribunal., Undoubtedly, the principle of res judicata and estoppel are not applicable in taxation matters. However, it has been held that a departure from a finding during the past years would result in a contradictory finding (Commissioner of Income Tax vs. Sridev Enterprises (1991) 192 ITR 165)., Consequently, this Delhi High Court is of the view that consistency of approach must be maintained. Accordingly, no substantial question of law arises in the present batch of appeals and the same is dismissed.
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Writ Petition (Civil) No. 38461 of 2023 Rasa @ Rasananda Bhoi, Petitioner versus State of Odisha and Others, Opposite Parties. Dated 04 January 2024, Order No. 03., This matter is taken up through hybrid arrangement. In this writ petition, the petitioner seeks a direction from the High Court of Odisha to Opposite Party Numbers 2 and 3 to consider the representations dated 18 October 2021 and 25 September 2023 filed by him for granting ex gratia assistance, as his elder son Souvagya Ranjan Bhoi has died due to snake bite., In compliance with the order dated 06 December 2023, Doctor Biswaranjan Pati, who conducted the post‑mortem report, is present through virtual mode and rendered his opinion in the format prescribed. The said opinion was written under the heading DISEASE. Under such head, he has written something which is not legible and cannot be comprehended in ordinary course of reading unless the writer himself or a handwriting expert is invited to examine such description., In many cases, the casual approach of most doctors while writing the post‑mortem report is affecting the comprehension of medico‑legal documents badly and the judicial system finds it very difficult to read those letters and come to a definite conclusion., Hence, the High Court of Odisha directs the Chief Secretary, State of Odisha to issue a direction to all doctors of the State to write the post‑mortem report and prescription in capital letters or in legible handwriting. Moreover, the tendency of writing zig‑zag handwriting, which cannot be read by any common person or by judicial officers, has become a fashion among the doctors of the State. A substantial number of doctors in the State resort to such handwriting which cannot be read by any ordinary person. In view of the matter, the Chief Secretary of the State is directed to issue a circular to all medical centres, private clinics and medical colleges and hospitals directing them to write in proper handwriting or in a typed form when they are prescribing medicine or writing medico‑legal reports., The High Court of Odisha is also aware that the duty schedule of medical professionals is very busy and taxing and finding time to write something comfortably often hinders their capacity to examine more patients within the stipulated time. The Court appreciates the services rendered by medical professionals during the COVID‑19 period or during any kind of emergency situation. However, it is generally felt that medical prescriptions and medico‑legal documents are written in poor handwriting which affects the quality of appreciation of evidence in the judicial system. Hence, any doctors dealing with medico‑legal issues and writing casually with very poor handwriting are required to change their attitude and write either in capital letters, in a typed form, or in good handwriting so that the judicial system does not suffer from unnecessary fatigue in reading their handwriting., Considering the facts of the present case and as per the post‑mortem report read out by Doctor Pati appearing through virtual mode, the High Court of Odisha is of the view that it is a case of snake bite. Accordingly, the petitioner is directed to approach the concerned Tahasildar by filling the prescribed form and seek compensation from the appropriate authority. The application shall be submitted within one month from today and the authority shall consider and dispose of the same in accordance with law within one month from the date of receipt of the application., Accordingly, the writ petition is disposed of. Personal appearance of Doctor Biswaranjan Pati is dispensed with. A free copy of this order shall be given to the learned counsel for the State.
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Criminal Revision Petition No. 837 of 2022 and Criminal Revision Petition No. 55 of 2023 dated 13 April 2023. In the early hours of 03 August 2019, a journalist on a motorbike was knocked down by a speeding car on the arterial road of the capital city of Kerala. The motorist Sri K M Basheer was hit from behind by a motorcar, killing him almost instantaneously. The driver of the offending vehicle attempted to wriggle out of the situation by alleging that he was not driving and that the driver was a lady seated beside him. However, eyewitnesses identified a male as the person behind the wheels. The driver of the car was subsequently identified as Sri Sreeram Venkittaraman, an officer of the Indian Administrative Service, Kerala cadre., The police immediately reached the spot, took the driver of the car to the General Hospital, Thiruvananthapuram, and thereafter commenced an investigation. A charge sheet was later filed, naming Sri Sreeram Venkittaraman as the first accused and the passenger in the car as the second accused. The offences alleged to have been committed by the accused include sections 304 and 201 of the Indian Penal Code, 1860, section 3(1)(2) of the Prevention of Damage to Public Property Act, 1984, and sections 184, 185 and 188 of the Motor Vehicles Act, 1988. After committal, the case was numbered as Session Case No. 595 of 2021 in the files of the Additional Sessions Court‑I, Thiruvananthapuram. The respondent in Criminal Revision Petition No. 837 of 2022 is the first accused, while the revision petitioner in Criminal Revision Petition No. 55 of 2023 is the second accused., The prosecution alleges that the first accused was the driver and the second accused the owner of a car bearing registration No. KL‑01‑BM‑360. According to the prosecution, on 03 August 2019 at around 01:00 AM, the first accused drove the car in an inebriated condition under the influence of alcohol through the Kowdiar‑Museum Road in Thiruvananthapuram, knowing that such conduct would endanger human life, and struck the motorbike driven by the deceased from behind, causing the motorcyclist’s death. The accused are thus alleged to have committed the offences., Subsequently, both accused filed separate applications for discharge. The first accused filed Criminal Miscellaneous Petition No. 2325 of 2022, and the second accused filed Criminal Miscellaneous Petition No. 1823 of 2021. Despite the objections of the State, the Additional Sessions Court‑I, Thiruvananthapuram, by the impugned order discharged both accused for the offences under sections 304 and 201 of the Indian Penal Code, section 3(1)(2) of the Prevention of Damage to Public Property Act and section 185 of the Motor Vehicles Act. However, the court found sufficient material to frame a charge against the first accused under sections 279 and 304A of the Indian Penal Code and section 184 of the Motor Vehicles Act. Regarding the second accused, the court found material to frame a charge under section 188 read with section 184 of the Motor Vehicles Act. Since the offences mentioned are triable by a Magistrate, the case was transferred to the Judicial First Class Magistrate’s Court under section 228(1)(a) of the Criminal Procedure Code., Aggrieved by the discharge of the first accused under section 304 of the Indian Penal Code and other allied sections, the State has preferred Criminal Revision Petition No. 837 of 2022, while the second accused has preferred Criminal Revision Petition No. 55 of 2023 to oppose her discharge even under section 188 of the Motor Vehicles Act. Though the brother of the deceased, Basheer, has preferred Writ Petition (Criminal) No. 789 of 2022 seeking a Central Bureau of Investigation inquiry, that writ petition was, by consensus, delinked from these two cases and will be heard separately., Sri S U Nazar, the learned Public Prosecutor appearing on behalf of the State, vehemently contended that the investigation had adduced sufficient materials in the form of CW1 to CW7, as well as CW29, CW74, CW75 and document No. 11, to frame a charge under section 304 of the Indian Penal Code and other offences alleged in the final report. According to the learned Public Prosecutor, the first accused, who is a highly influential Indian Administrative Service officer and a medical doctor by qualification, had manipulated and prevented a laboratory test from being conducted on him to analyse his blood sample until 10:30 AM, knowing fully well that the test would have revealed the alcoholic content in his blood. It was further contended that the delay in conducting the medical test, which resulted in the absence of alcohol detection, is not a reason to discharge the accused under section 304 of the Indian Penal Code, especially in view of the numerous oral and documentary evidences available. The learned Public Prosecutor relied upon the decisions in Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648], State through PS Lodhi Colony, New Delhi v. Sanjeev Nanda [(2012) 8 SCC 450], and Raju v. State of Kerala (2021 (1) KLT Online 1092). It was further argued that while considering a discharge application, the court is not expected to treat the matter as a mini‑trial and that prima facie material to proceed against the accused for the alleged offences is sufficient., Sri S Rajeev, learned counsel for the first accused, raised an objection regarding the non‑revisability of the impugned order by relying upon the decision in Prabhakaran v. Excise Circle Inspector [(1992) 2 KLT 860]. He also argued that the order of the Additional Sessions Court‑I, Thiruvananthapuram, calls for no interference as it had independently addressed all the issues and concluded that there was no material to frame a charge under section 304 of the Indian Penal Code, having properly relegated the matter to the Magistrate for framing a charge under section 304A of the Indian Penal Code and other connected offences. The learned counsel further asserted that, apart from media projection targeting the first accused, who is a reputed civil service officer, and the police playing into the hands of the media because of public pressure, there is nothing on record to frame a charge against the first accused under section 304 of the Indian Penal Code., Sri G Ranju Mohan, the learned counsel appearing for the revision petitioner in Criminal Revision Petition No. 55 of 2023, submitted that the offence under section 188 of the Motor Vehicles Act is not attracted merely because the second accused was the owner of the vehicle driven by the first accused, and that there are no materials to proceed against her for abetment of any offence., The first issue to be considered is whether the impugned order is revisable or not. An order discharging an accused for certain offences will terminate the proceedings against the accused for those offences. When the discharge, as in the present case, is in respect of the only offence triable exclusively by a court of sessions, the proceedings against the accused in the Sessions Court come to an end. Therefore such an order of discharge cannot be said to be interlocutory in nature., Further, in Sanjay Kumar Rai v. State of Uttar Pradesh and Another (2021 SCC OnLine SC 367) the Supreme Court held that the correct position of law, as laid down in Madhu Limaye (supra), is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397(2) of the Criminal Procedure Code. Consequently, no elaborate discussion is necessary to conclude that upholding the accused’s objection that an offence under section 304 of the Indian Penal Code has not been committed results in the termination of the proceedings before the Sessions Court. Therefore the impugned order is certainly revisable, and the preliminary objection to maintainability is rejected., The two main questions for consideration are whether there are sufficient materials to proceed against the first accused under sections 304 and 201 of the Indian Penal Code, and whether there are materials to proceed against the second accused for the offence under section 188 of the Motor Vehicles Act., Culpable homicide not amounting to murder, when committed with the intention to cause death, falls, as is commonly referred to, under Part I of section 304 of the Indian Penal Code. When the act is done with the knowledge that it is likely to cause death or cause such bodily injury as is likely to cause death but without the intention to cause death, the offence falls under Part II of section 304 of the Indian Penal Code. The term ‘knowledge’ has been explained by courts as awareness on the part of the person concerned of the consequences of his act of omission or commission, indicating his state of mind. There can be knowledge of the likely consequences without any intention to inflict them. Criminal culpability is determined by referring to what a person of reasonable prudence would have known as the likely consequences of his act. Rash or negligent driving on a public road, with knowledge of the dangerous character of the act, especially when the driver is inebriated, can fall in the category of culpable homicide not amounting to murder if the injured dies as a result of the injuries. A person who drives rashly or negligently, aware of the risk that a particular consequence is likely to result and that consequence occurs, can be proceeded against not only for the act but also for the result that ensued., In the decision in Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648], the Supreme Court observed that a person responsible for a reckless, rash, or negligent act that causes death can be attributed with knowledge of the consequence and may be charged with culpable homicide not amounting to murder, punishable under section 304 Part II of the Indian Penal Code, if he had knowledge that his act was dangerous enough to lead to an untoward incident resulting in death. The Court also observed that there is a presumption that a person knows the natural and likely consequences of his acts and that, merely because the consequences were unforeseen, the act does not become involuntary. The Court emphasized that each case must be decided on its own facts. However, where negligence or rashness is the cause of death without anything more, the Supreme Court observed that section 304A might be attracted, but when the rash and negligent act is preceded by knowledge that such an act is likely to cause death, section 304 Part II of the Indian Penal Code can be attracted., Driving vehicles after consuming alcohol can lead to temporary or partial impairment of cognitive faculties. This disability can lead to error in judgment relating to distance calculation, distinguishing objects, speed control and other factors essential for safe driving. Blurred vision and delayed reaction to sudden stimuli are also known consequences of alcohol consumption. Thus, when a motor vehicle is driven after consuming alcohol, road accidents become a predictable consequence. In such a scenario, attributing knowledge to the driver of the vehicle that death can be a likely consequence of drunken driving is legally tenable., In the decision in State through PS Lodhi Colony, New Delhi v. Sanjeev Nanda [(2012) 8 SCC 450], a new approach to motor accident cases was adopted by the Supreme Court. It was observed in paragraph 86 that drunken driving has become a menace to society. Every day drunken driving results in accidents and several human lives are lost. Pedestrians in many cities are not safe. Late‑night parties among the urban elite have become a way of life, followed by drunken driving. Alcohol consumption impairs consciousness and vision, making it impossible to judge accurately how far away objects are. When depth perception deteriorates, eye muscles lose precision, causing inability to focus on objects. Moreover, in adverse conditions such as fog, mist, rain, etc., whether night or day, visibility can be reduced below the limit of discernibility. In short, alcohol leads to loss of coordination, poor judgment, slowed reflexes and distortion of vision., The above‑mentioned observations of the Supreme Court are significant to the circumstances of the instant case. The prosecution alleges that the first accused was in a state of intoxication, as testified by CW2 to CW7. The doctor who first examined the first accused, as evident from document No. 11, had written that there was the smell of alcohol. However, the accused was not subjected to any medical test at that hospital; even after noting the absence of serious injuries, the first accused was referred to the Medical College. Again, the police officer accompanying the first accused permitted a friend of the accused to transfer him in a private car apparently to the Medical College Hospital. The first accused never reached the Medical College Hospital and was instead taken to MIMS Hospital, Thiruvananthapuram, where, according to the statement of CW29, the nurse attached to the hospital reported that the first accused avoided permitting a blood test until 10:30 AM under various pretexts. By the time the blood test was taken, the sample did not reveal the presence of alcohol., It is relevant in this context to observe that facts can be proved by oral evidence as per section 59 of the Indian Evidence Act, 1872, except, of course, the proof of the contents of a document. If the oral evidence adduced inspires the confidence of the court or is worthy of credit, that evidence alone is sufficient to prove a fact., For the purpose of bringing home the guilt of an accused, under section 304 of the Indian Penal Code, based upon drunken driving and the resulting knowledge of the consequences, it is not essential, in every case, that there should be documentary evidence to prove the fact of drunkenness. If the circumstances of the case and the statements of the witnesses inspire the Court to conclude that the accused was driving the vehicle in a drunken state, the absence of a statutory medical report need not deter the court from arriving at such a conclusion. These are matters for trial. At present, the court must ascertain whether there are sufficient materials to prima facie conclude that the accused was driving the vehicle in a drunken state to enable the framing of a charge against him., The learned Sessions Judge proceeded to consider the absence of a medical test report regarding the level of intoxication as significant. In this context, it is pertinent to note that the first accused is an Indian Administrative Service officer and a medical doctor by education. The doctor who initially attended to the revision petitioner at the General Hospital, Thiruvananthapuram, despite noting the smell of alcohol, did not subject him to a medical test. Witnesses stated that even before the first accused reached the hospital, the doctor was informed that an IAS officer who is also a doctor was being brought in. Moreover, after referring the revision petitioner to the Medical College Hospital, the police officer permitted the first accused to be taken by a private person in a private vehicle. These circumstances raise eyebrows., In the above perspective, the contention that there has been an apparent attempt on the part of the first accused to wriggle out of a timely medical test cannot be wholly ignored. After being referred to the Medical College Hospital, the first accused could not have gone to a private hospital, contrary to the reference, unless he wanted to cause the disappearance of the evidence of the alleged offence. Reckoning the above circumstances and the materials collected in support of the prosecution case, it can be prima facie assumed that the first accused was over‑speeding, was driving the vehicle after consuming alcohol, and had even caused the destruction of evidence relating to the offence., Absence of a medical test report may be fatal for the offence under section 185 of the Motor Vehicles Act. The statute mandates a medical report to establish the guilt of the offence under section 185 of the Motor Vehicles Act. However, the absence of a medical report regarding the level of intoxication cannot be a reason for discharge under section 304 of the Indian Penal Code if other materials allow the court to prima facie conclude that the accused was driving the vehicle after consuming alcohol., On an appreciation of the above aspects arising in the case, it is evident that the materials brought out after investigation, if proven, can establish the guilt of the first accused for the offences under sections 304 and 201 of the Indian Penal Code. In such circumstances, the first accused cannot be discharged for those offences. Consequently, the discharge of the first accused for those two offences by the impugned order is improper and irregular., As far as section 185 of the Motor Vehicles Act is concerned, the provision insists on a medical laboratory test report. Since a medical test was not conducted on the first accused within a reasonable time and the test that was eventually conducted did not reveal alcohol in the blood, the offence under section 185, as it then stood, is not attracted. The incident occurred on 03 August 2019, while section 185 was amended with effect from 09 August 2019. Prior to the amendment, only a breath analyser test report was legally accepted as proof for section 185 of the Motor Vehicles Act, and such a test was never conducted. Thus, the learned Sessions Judge was justified in discharging the first accused for the offence under section 185 of the Motor Vehicles Act., The offence under section 3(2) of the Prevention of Damage to Public Property Act requires the commission of mischief in respect of public property as its main ingredient. As rightly observed by the learned Sessions Judge, mischief cannot be said to have been committed on any public property. In this view, the order of discharge of the first accused for the offence under section 3(2) of the Prevention of Damage to Public Property Act is sustained., The second accused is alleged to have abetted the offence committed by the first accused. The vehicle involved in the accident bearing registration No. KL‑01‑BM‑360 admittedly belonged to the second accused. The prosecution alleges that the second accused committed the offence of abetment by providing the car to the first accused for driving. A perusal of witness statements and other materials does not reveal any material indicating that the second accused permitted the first accused to drive the car., Section 107 of the Indian Penal Code deals with the offence of abetment. It requires instigation, conspiracy, intentional aid, or illegal omission to enable the commission of an offence. The decision in Kashibai and Others v. State of Karnataka (2023 LiveLaw (SC) 149) is apposite. There is not an iota of material to indicate that the second accused intentionally aided, instigated or conspired with the first accused to commit the offence. Providing the facility for driving a vehicle without more cannot amount to abetment. Intentional aiding and active complicity are the essence of the offence of abetment under the third paragraph of section 107, as observed by the Supreme Court in Shri Ram v. State of U.P [(1975) 3 SCC 495]. Viewed in this perspective, this Court is of the opinion that the offence under section 188 of the Motor Vehicles Act cannot be charged against the second accused based on the materials collected. Therefore she is entitled to be discharged for that offence, and the order of the learned Sessions Judge refusing to discharge the second accused is liable to be set aside., In view of the above discussions, Criminal Revision Petition No. 837 of 2022 is allowed in part, by setting aside the order dated 19 October 2022 in Criminal Miscellaneous Petition No. 2325 of 2022 in Session Case No. 595 of 2021 on the files of the Additional Sessions Court‑I, Thiruvananthapuram, which discharged the first accused for the offence under section 304 of the Indian Penal Code, while confirming the order of discharge for the offences under sections 184 and 185 of the Motor Vehicles Act as well as that under section 3(2) of the Prevention of Damage to Public Property Act. Criminal Revision Petition No. 55 of 2023 is allowed by setting aside the order dated 19 October 2022 in Criminal Miscellaneous Petition No. 1823 of 2021 in Session Case No. 595 of 2021 on the files of the Additional Sessions Court‑I, Thiruvananthapuram, and the second accused shall stand discharged for the offence alleged against her.
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AK Petitioner Versus The State of Maharashtra, The Assistant Commissioner of Police, Simrant Jasvindarsingh Sachdeva Respondents. Mr. Shravan Giri for the Petitioner. Mr. J. P. Yagnik, Additional Public Prosecutor for the Respondents Nos. 1 and 2 – State. Mr. Viresh Purwant for the Respondent No. 3. The name of the petitioner is being masked with AK, since the petition pertains to her son, who is a juvenile. The registry is directed to delete the name of the petitioner from the record and website., At the outset, learned counsel for the petitioner seeks leave to amend to remove the photograph annexed at Exhibit B on page 20 of the petition. Leave is granted. Amendment to be carried out forthwith., Heard learned counsel for the parties., Rule is made returnable forthwith, with the consent of the parties and is taken up for final disposal. Learned Additional Public Prosecutor waives notice on behalf of the respondents Nos. 1 and 2. Mr. Purwant waives notice on behalf of the respondent No. 3., By this petition, the petitioner, mother of a nine‑year‑old minor boy, seeks quashing of the FIR registered vide Crime Report No. 219/2022 with the Vanrai Police Station, Mumbai, as against her son, at the behest of respondent No. 3, for the alleged offence punishable under Section 338 of the Indian Penal Code and consequently the proceeding pending before the Metropolitan Magistrate, 21st Court, Dongri, being Miscellaneous Application No. 8/2022., Learned counsel for the petitioner submits that having regard to the age of the petitioner’s son, i.e., nine years, no FIR could have been registered by the police, keeping in mind the mandate of Section 83 of the Indian Penal Code. He submits that after the FIR, media coverage of the incident, which was clearly an accident, traumatized the minor boy and badly affected him. He submits that the incident was clearly an accident, as is evident from the facts, and therefore no action ought to have been initiated by the police on the basis of the complaint lodged by respondent No. 3., Learned Additional Public Prosecutor submits that the prosecution has no objection to the quashing of the FIR. He submits that, in fact, the police have filed a C Summary Report in the said case and action has been initiated against the Assistant Commissioner of Police, who registered the FIR against the petitioner’s son., Learned counsel for respondent No. 3 orally submits that respondent No. 3 also has no objection to the quashing of the FIR and the proceeding., The incident took place on 27 March 2022 at 7:30 p.m., when the parents of respondent No. 3 had gone down to a podium of the society building. It is alleged by respondent No. 3 that the petitioner’s minor son, aged nine years, lost his balance while cycling and dashed against her mother, resulting in injury to the mother. Pursuant thereto, respondent No. 3 approached the Vanrai Police Station, Mumbai, and lodged a complaint, which was registered vide Crime Report No. 219/2022 with the police station. The FIR was lodged on 5 April 2022, about one week after the incident., The facts clearly reveal that it was nothing but an accident, which was unintentional. The boy was only nine years old. We are shocked and surprised that the police registered the FIR against a minor boy at the behest of respondent No. 3 without regard to the age of the boy. It appears that even before investigation, a C Summary Report was filed by the police, however, much damage was done to the boy by the allegations and the publicity given to the case., In paragraph 4 of the affidavit of Shri Tanaji Santu Patil, Police Sub‑Inspector attached to the Vanrai Police Station, Mumbai, it is stated that the FIR was registered due to a misconception of law and that it was not his intent to register an FIR against a minor child aged nine years. He further states that he prepared the report under Section 2(45) of the Juvenile Justice (Care and Protection of Children) Act, but had not taken any coercive action at any point of time. He has tendered his unconditional apology for registering the FIR against the minor child., In paragraph 6, he states that having regard to the provisions of Section 83 of the Indian Penal Code, a C Summary Report was put before the Senior Officer for approval, and the same was approved by the Deputy Commissioner of Police, Zone XII, on 16 May 2022. After verifying the papers and the report, the Deputy Commissioner suggested action against the then Assistant Commissioner of Police, i.e., respondent No. 2, and that the same is pending before the Superior Officers., We are informed that the C Summary Report was submitted to the Juvenile Court on 20 May 2022; however, no orders have been passed by the Juvenile Court to date. Despite directing the Juvenile Court to take up the report and pass appropriate orders, the Juvenile Court has not passed any orders, and hence we have proceeded to hear the petition., In paragraph 8, the concerned Police Sub‑Inspector states that he has no objection to the quashing of the FIR and tendered his unconditional apology for the act of registering the FIR at the behest of respondent No. 3., Misconception or ignorance of law is not an excuse for a police officer, especially given that the child was only nine years of age. The registration of the FIR has traumatized a nine‑year‑old boy. Despite Section 83 of the Indian Penal Code, the police proceeded to register the FIR against the petitioner’s son at the behest of respondent No. 3. The action reflects a complete lack of application of mind by the concerned officer while registering the offence., Considering the foregoing, we deem it appropriate to allow the petition. Accordingly, the petition is allowed., The FIR bearing Crime Report No. 219/2022 registered with the Vanrai Police Station, Mumbai, as against the petitioner’s son and the proceeding pending before the Metropolitan Magistrate, 21st Court, Dongri, being Miscellaneous Application No. 8/2022, are quashed and set aside., We express our displeasure at the conduct of the Metropolitan Magistrate in not taking up the matter despite the orders passed by this Supreme Court of India. At the same time, having regard to the conduct of the police, we direct the State Government to pay costs of Rs 25,000 to the petitioner within eight weeks from today. The State Government shall recover the said cost from the concerned officers responsible for the lapse., Rule is made absolute in the aforesaid terms. The petition is disposed of accordingly., Since we are informed that a departmental inquiry was conducted against the Assistant Commissioner of Police, we direct the learned Additional Public Prosecutor to place the report of the inquiry and action taken against respondent No. 2, the concerned officer, before this Supreme Court of India., List on 20 December 2022 under the caption ‘for directions’. All concerned to act on the authenticated copy of this order.