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Reportable Writ Petition (Civil) No. 640 of 2022 Supreme Court Bar Association v. Ministry of Urban Development and Others. With Writ Petition (Civil) No. 817 of 2022. Dr. Dhananjaya Y. Chandrachud, Chief Justice of India., The Supreme Court Bar Association has invoked jurisdiction of Supreme Court of India under Article 32 of the Constitution seeking a writ of mandamus directing the Ministry of Housing and Urban Affairs to (i) grant permission for conversion into a chamber block for lawyers of an entire tract of land measuring 1.33 acres situated near the ITO, which has been allotted to the Supreme Court of India; (ii) convert the entire area around the Supreme Court of India as a Supreme Court Complex so that all the buildings across the Supreme Court on Bhagwan Das Road including the Foreign Correspondents Club of South Asia, Indian Law Institute and Indian Society of International Law can be utilized for conversion into chambers or for redevelopment as a chamber block or for activities of the Supreme Court or for any other amenities for lawyers; and (iii) allot a government bungalow presently occupied by the Foreign Correspondents Club to the petitioner., According to the petitioner, the number of advocates practicing before the Supreme Court of India has increased manifestly in recent years and the existing chamber blocks are insufficient to accommodate the growing needs of lawyers eligible for allotment. An area measuring 12.19 acres in the erstwhile Appu Ghar Complex was allotted to the Supreme Court of India by the Ministry of Housing and Urban Affairs, of which a small portion has been utilized for the construction of a new chamber block for advocates. In the new chamber block, 234 chambers have been constructed which are now allotted on a dual occupancy to accommodate 468 lawyers., The petitioner asserts that out of a total area of 1.33 acres allotted to the Supreme Court of India by the Union Government near ITO for the construction of an archival block, only 0.50 acres has been earmarked for a chamber block for lawyers. Only four to five hundred chambers can be constructed in the said area. Since the land measuring 1.33 acres is the last piece of vacant land available near the Supreme Court of India, the petitioner submits that it should be entirely utilized for constructing chamber blocks for lawyers., The petitioner submits that the archives of the Supreme Court of India can be housed in the Additional Building Complex where some areas are lying vacant. The petitioner claims that they have an equal right to utilize vacant spaces in lands allotted to the Supreme Court of India as its members are an integral part of the justice delivery system., Appearing on behalf of the petitioner, Mr. Vikas Singh, learned senior counsel submitted that (i) the allotment of 12.19 acres in the erstwhile Appu Ghar Complex by the Ministry of Housing and Urban Affairs to the Supreme Court of India was expedited by the institution of a petition on the judicial side by the Supreme Court Bar Association; (ii) after the Additional Building Complex was constructed in 2018‑19, a small segment has been utilized for the construction of a chamber block for lawyers in which 234 chambers have been constructed allowing for an occupancy of 468 lawyers; (iii) the Additional Registrar of the Supreme Court of India informed the Supreme Court Bar Association that 0.50 acres out of 1.33 acres of land have been earmarked for construction of a lawyers’ chamber block, subject to a change of use; (iv) a petition under Article 32 is maintainable because a change of land use requires judicial intervention and also bearing in mind the precedent of this Court’s intervention on the issue of the electoral college., Ms. Meenakshi Arora, learned senior counsel appearing on behalf of the Supreme Court Advocates on Record Association submits that the members of the Association are required by the Rules governing their practice as Advocates on Record to maintain an office within a stipulated radius of the Supreme Court of India. In the newly constructed chamber block in the Additional Building Complex, approximately 70 percent of the chambers have been allotted to Advocates on Record, 10 percent to Senior Advocates and 20 percent to other Advocates. While emphasizing the needs of the Advocates on Record, Ms. Arora submitted that this matter is agreeable to being taken up on the administrative side with the Supreme Court of India. She further submitted that it would be desirable to grant the Association an opportunity to deliberate on the issue with the Building Committee of the Supreme Court of India., Mr. Manan Kumar Mishra, Mr. S. Prabhakaran and Mr. Debi Prasad Dhal, all learned senior counsel, appeared on behalf of the Bar Council of India., Mr. Manan Kumar Mishra, who is also the Chairperson of the Bar Council of India, urged that (i) the Bar Council of India is a statutory body entrusted with duties and functions to regulate the legal profession; (ii) though the Bar Council has a building of its own situated in proximity to the Supreme Court of India, it is inadequate to meet its needs; (iii) the Bar Council of India has to carry out disciplinary functions and all its records are lodged in a godown; (iv) hence the space should be allotted to the Bar Council of India for the construction of a building complex which would facilitate the discharge of its statutory functions under the Advocates Act, 1961. The learned senior counsel also stated that this matter should be taken up only on the administrative side and the Bar Council would be content with any decision taken by the Supreme Court of India to accommodate its reasonable needs., Mr. R. Venkataramani, learned Attorney General, appeared on behalf of the Union Government. The Attorney General submitted that the issue should be taken up on the administrative side by the Supreme Court of India and that in his own capacity he will facilitate an attempt to secure the needs of the institution and its stakeholders., Mr. Vikas Singh, learned senior counsel appearing on behalf of the Supreme Court Bar Association questioned the locus standi of the Bar Council of India in these proceedings, stating that the Supreme Court Bar Association is the recognized association representing lawyers practicing before the Supreme Court of India. Hence, according to him, the Bar Council, which has a building of its own, has no locus standi to make any submissions for asserting its own demands in the land allotted to the Supreme Court of India., On 12 September 2022, the Supreme Court of India issued notice with respect to the relief sought in prayer (a) of the petition seeking the conversion of the land measuring 1.33 acres for a chamber block for lawyers., The written submission filed by the Secretary General of the Supreme Court of India sets out the background of the allotment of land measuring 1.33 acres. On 21 August 2017, pursuant to a request by the Registrar (Administration) of the Supreme Court of India, the Union Ministry of Housing and Urban Affairs conveyed the sanction of the President of India for the allotment of the land for the specific purpose of setting up the Supreme Court Archives. On 27 August 2018, the Additional Registrar of the Supreme Court of India informed the Supreme Court Bar Association of the decision to earmark 0.50 acres out of the land for the purpose of constructing lawyers’ chambers. By a notification dated 1 February 2019, the Union Ministry of Housing and Urban Affairs modified the Master Plan of Delhi‑2021 in exercise of powers under Section 11A(2) of the Delhi Development Act, 1957 by which the land use of the land located in Planning Zone‑3 was changed to Government Office., The Secretary General also submitted that the decision to use the land for the Supreme Court Archives as well as the decision to allocate 0.5 acres of the land for construction of lawyers’ chambers is in accordance with the direction of the then Chief Justice of India and that the matter regarding the development of the land is pending consideration before the Judges Committee. The Secretary General stated that the suggestion of the petitioner that the Supreme Court Archives be shifted to Blocks A and B of the Additional Building Complex or the Annexe Building cannot be accepted as the space available in those locations is inadequate. It has been submitted that the decision to earmark 0.5 acres for the construction of lawyers’ chambers was taken after careful deliberation bearing in mind that a chamber block has also been recently constructed in the Additional Building Complex for members of the Bar., During the oral hearing, the Bench indicated that it is fully cognizant of the needs of the lawyers appearing before the Supreme Court of India who are vital stakeholders in the administration of justice. It was also noted that litigants are stakeholders as well and while creating or upgrading existing amenities, the interest and welfare of litigants has to be duly recognized and protected., The narration of submissions indicates that while Mr. Vikas Singh, learned senior counsel appearing on behalf of the Supreme Court Bar Association has sought a resolution of the demand raised in the petition on the judicial side, the Supreme Court Advocates on Record Association and the Bar Council of India have indicated that they would wish to have the issue addressed on the administrative side so that an appropriate view can be taken by this Court after deliberation with their representatives., There is no gainsaying that the members of the Bar, together with the litigants, have an important role in the functioning of the judicial institution of the Supreme Court of India. During the hearing, the Court indicated to the learned senior counsel that the views of the Bar would be solicited and deliberations will take place on the administrative side with the members of the Association and the Bar Council., The learned Attorney General for India, like the Supreme Court Advocates on Record Association and the Bar Council of India, indicated that the issue needs to be taken up on the administrative side and not on the judicial side., The Court is categorically of the view that it would not be appropriate to entertain a petition under Article 32 of the Constitution seeking a direction that the entirety of the land measuring 1.33 acres should be allotted for the construction of a chamber block for lawyers., On 27 August 2018, the Additional Registrar of the Supreme Court of India addressed a communication to the Honorary Secretary of the Supreme Court Bar Association stating that 0.50 acres out of 1.33 acres of land shall be earmarked for the construction of lawyers’ chambers subject to a change of land use by the concerned authority. Mr. Vikas Singh, learned senior counsel appearing for the Supreme Court Bar Association urged that a direction for the change of land use has to be adjudicated only on the judicial side. However, this may not be a correct perception. Issues pertaining to the change of land use, as indicated in the letter dated 27 August 2018, are eminently suitable for being addressed on the administrative side., The Supreme Court Bar Association cannot assert a right to the entirety of the land measuring 1.33 acres, which has been allotted by the Union Government for housing the Supreme Court Archives, for converting it into a chamber block for lawyers. The Supreme Court of India discharges both judicial and administrative functions. The discharge of its functions implicates diverse stakeholders including lawyers, litigants and the staff engaged in activities of the Supreme Court. A holistic view has to be taken on the allocation of available resources by balancing the needs of stakeholders both for the present and the future. These matters cannot be resolved by the application of judicial standards and have to be taken up on the administrative side of the Supreme Court of India. Administrative functioning and decision‑making, which the current issue requires, cannot be moved to the judicial side., Apart from prayer (a) which seeks the conversion of the entirety of the land measuring 1.33 acres to a chamber block for lawyers, the petitioners have also sought the conversion of the entire area around the Supreme Court of India as a Supreme Court Complex so that all buildings across the Supreme Court on Bhagwan Das Road can be utilized for conversion to lawyers’ chambers. The petitioner has also sought the allotment of a government bungalow presently occupied by the Foreign Correspondents Club to the petitioner. Such directions cannot be issued on the judicial side., The Court therefore is unable to subscribe to the reliefs sought in the petition under Article 32. However, it leaves it open to the Supreme Court of India on its administrative side to take appropriate decisions bearing in mind the needs of the institution for the present and the future and the interest of all stakeholders. The process of decision‑making would also involve consultation with the Bar. The Supreme Court Advocates on Record Association, the Supreme Court Bar Association and the Bar Council of India would be at liberty to address the issue with their representations on the administrative side. The writ petitions shall accordingly stand disposed of in the above terms.
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Both the above appeals arise out of the judgment and order dated 08.08.2007 passed by the Rajasthan High Court in Criminal Appeal No. 976 of 2002, whereby all the accused who stood convicted by the Trial Court for the offences under Sections 302, 307, 323, 324, 325, 447, 147/148 read with Section 149 of the Indian Penal Code, were acquitted for the major offences under Sections 302 and 307, and were convicted only for the offences under Sections 147, 148, 323, 324, 325/149. Their sentences were also reduced to the period already undergone by them, which roughly varied from two to five years., The complainant as well as the State have approached this Court by way of the above two appeals, which were admitted and leave was granted on 26.09.2008., We have heard learned counsel for the appellant, Dr. Charu Mathur for the victims and Dr. Manish Singhvi, learned senior advocate for the State of Rajasthan respectively, as well as senior advocate Mr. Ramakrishnan Veeraraghavan on behalf of the accused respondents., An FIR was lodged on 22.05.2001 at about 3.00 PM by complainant Birbal Nath at Police Station, Pachori, District Nagaur, Rajasthan which disclosed that at about 1:00 o'clock that afternoon, while the informant's uncle Chandernath and his aunt Rami were working in their agricultural field, seven men, armed with weapons approached their field. They were as follows: Jethnath having an axe; Dhurnath having a dang; Meghnath having a farsi; Rughnath having a shovel; Babunath having a dang; Malanath having an axe; and Devnath having a dang. All the above named accused, who were armed, started assaulting the aunt and uncle of the complainant Birbal Nath, in which both were grievously injured. Jethnath was the first to assault Chandernath with his axe and the rest joined the attack. Rami was also attacked by these assailants. This incident was also witnessed by Pratapnath, Ramunath, Dhurnath, their sister‑in‑law Rampyari, Cheni Devi and Ruparam as they had reached the spot in a few minutes, who tried to intervene in the matter and save their relatives, but in vain. Chandernath died in the ambulance while being taken to the hospital at Jodhpur. Meanwhile the police started its investigation, and filed its charge sheet against all the accused except Devnath in the case. The case was later committed to the Sessions Court where charges were framed under Sections 147, 148, 302, 323/149, 324/149, 325/149, 447, 307/149 of the Indian Penal Code against all the six accused named in the charge sheet., There were in all 24 witnesses who were examined by the prosecution. The star eye witness being Rami (PW‑2) who is the wife of the deceased and was herself grievously hurt in the incident. Apart from her there were other eye witnesses as well such as PW‑3, PW‑6 and PW‑7 i.e., Rampyari, Mohannath, Birbal Nath respectively. There was also recovery of clothes and weapons which was made on the disclosure of the accused., In their statements under Section 313 of the Code of Criminal Procedure, all the accused denied the charges and the evidence against them and also presented defence witnesses in the form of Birmaram (DW‑1), Hanutaram (DW‑2), Khemaram (DW‑3), Dr. Devkaran (DW‑4) and Hukmaram (DW‑5)., Out of all the prosecution witnesses which were examined by the prosecution, Rami (PW‑2) is the most important witness, as she was the wife of the deceased and at the relevant point of time was working in the field, along with her husband. In addition, this witness had sustained grievous injuries in the incident, including a near fatal injury on her head and therefore the testimony of this particular witness is the most credible evidence produced by the prosecution before the Trial Court. The examination‑in‑chief and cross‑examination of Rami was done before the Trial Court on 27.11.2001. She was cross examined at length by the defence, but nothing has come out in the cross examination, except minor discrepancies. These discrepancies as we shall be examining later do not discredit the witness as has been held by the Rajasthan High Court. The social background and the overall surrounding circumstances of the case are important considerations for the court while examining a witness, which has not been done. The Rajasthan High Court, as we shall see, has relied on these discrepancies, while acquitting the accused of the charges under Sections 302., In her examination‑in‑chief PW‑2 consistently held the position that she and her husband were working on their field, and each of the accused was armed with either axe, farsi or other weapon and that they were seven in number, who assaulted her and her husband. It was Jethnath who attacked on head with axe, Meghnath with shovel, Dhurnath with dang on the head of her husband, Raghunath assaulted him with shovel, Malanath attacked her husband with an axe, as did Raghunath and Babunath. All of them had attacked her as well, and as a result she sustained injuries on her head, left hand, right hand, joints and legs. Her husband too had injuries on his head, hands and legs. His hand and legs were fractured. When she raised an alarm, Pratapnath, Rampyari, Cheni, Ramnath, Birbal Nath, Dudhnath, Purkharam and Ruparam came running to the spot and tried to save them. Chandernath her husband died on the way to the hospital at Jodhpur. She (PW‑2) was given medical treatment and was examined by a doctor., Rampyari (PW‑3) who is again a witness to the incident states that on the fateful day at about 1.00 o'clock in the afternoon she heard someone crying for help. She recognised the voice of Rami and Chandernath and then she immediately ran towards the field. Chena, Birbal Nath, Shovel Dudhnath and Purkharam were also with her. They saw Jethnath, Dhumnath, Meghnath, Rughnath, Babunath, Malanath and Devnath, all armed with either axe, farsi, dang and shovel. They were all attacking Chandernath. On seeing them the accused ran away from the spot. They saw Chandernath lying on his belly and was bleeding, and so was Rami. There were injuries on her head and ear., Dr. Ramvilas who was examined as PW‑4 confirmed that the deceased died due to injuries particularly the injuries sustained on his head. Apart from Rami (PW‑2) and Rampyari (PW‑3) there are other eye witnesses as well (PW‑6 and PW‑7), who had reached the spot after they heard an alarm raised by Rami. The site plan shows that the chapter of these witnesses is nearby and hence the fact that these witnesses were in the neighbourhood was rightly held by the Trial Court, and their presence seemed natural., PW‑6 and PW‑7 had again made similar depositions as PW‑3, being in the neighbourhood at the time of the incident. Though it may be doubtful whether they had witnessed the entire sequence of events, yet they had definitely seen the assailants fleeing from the place of occurrence. These are also important witnesses though the Rajasthan High Court has said nothing on their deposition., The post mortem of the body was conducted on 23.05.2001. The post mortem report shows the following ante mortem injuries: (i) Lacerated wound of size 1 × bone deep over the left parietal region of scalp with depressed fragment of left parietal bone. (ii) Lacerated wound of size 1 × bone deep over right parietal region of scalp with puncture/fracture of right parietal bone. Pupils dilated, hazy. (iii) Lacerated wound of size X × bone deep over occipital region of scalp with puncture of occipital bone. (iv) Lacerated wound of size X × 1/8 bone deep, huge contusion over upper part of left leg with fracture of upper one‑quarter portion of tibia and fibula. (v) Lacerated wound of size X deep to bone with considerable swelling near the wound in the lower left leg; fracture in lower end of tibia and fibula. (vi) Swelling of medium size over the upper side of the right hand with fracture of first metacarpal bone. In my opinion, cause of death of Chandernath son of Gopunath is head injury and brain haemorrhage., The injuries sustained by Rami as per her injury report dated 22.05.2001 are as follows: 1. Incised wound of size 2 × bone deep over anterior portion of scalp, simple in nature; advised for X‑ray, caused by sharp weapon. 2. Swelling on right arm up to shoulder; advised for X‑ray, simple in nature, caused by blunt object. 3. Bruise of size 1 × over lower part of left thigh, simple in nature, caused by blunt object. 4. Bruise of size 1 × on middle of left arm laterally, simple in nature, caused by blunt object. 5. Bruise of size 4 × 1 over lower back, simple in nature, caused by blunt object., The Trial Court convicted all the accused under Sections 302, 323, 324, 325, 147, 148, 447 read with Section 149 of the Indian Penal Code, and sentenced them inter alia for rigorous imprisonment for life. Jethnath, Dhurnath and Meghnath in addition were also convicted under Section 307 of the Indian Penal Code., The accused filed an appeal before the Rajasthan High Court which was partly allowed, as discussed above., The statement given by PW‑2 before the police under Section 161 of the Code of Criminal Procedure, during investigation was relied upon by the defence in order to contradict the witness as to her statement in her examination‑in‑chief. The witness in her earlier statement before the police had said that the accused Jethnath was working on his adjacent field and he had some altercation with the deceased regarding their boundary in which heated arguments were exchanged between the two. Jethnath then raised an alarm which resulted in his sons and relatives coming to the spot, who were all armed with weapons. It is true that this fact of Jethnath working in the field and the altercation she did not state in her examination‑in‑chief. The Rajasthan High Court thus finds a discrepancy in the statement of PW‑2 made under Section 161 of the Code of Criminal Procedure and her examination‑in‑chief, which it believes to be sufficient to discredit this witness., As we have already stated this particular witness i.e. PW‑2 is an injured witness and wife of the deceased, who has given her clear and unambiguous statement in her examination‑in‑chief and though she was cross‑examined at length this witness stood her ground. Moreover, it is her husband who has been killed by the assailants. Why should she be accusing wrong persons? The Rajasthan High Court discredits the star witness of the prosecution due to her so‑called discrepancies between her statement under Section 161 of the Code of Criminal Procedure and in her examination‑in‑chief. It then holds that it was not a pre‑meditated attack at all and therefore no case of common intention or common object of unlawful assembly is made out nor will it be a case for Sections 302 or 307. This is what was said: First and foremost, the question which we require to look into is whether the beginning of the story, as given by the prosecution, is reliable or not. According to the eye witness' account the accused arrived at the scene of occurrence and they assaulted the deceased on his head and he fell down by the head injuries caused by Jeth Nath and then the other accused persons caused injuries. Jeth Nath having been assigned an axe and there being no axe injury, the beginning of the story as given by the prosecution witness, PW‑2 Rami injured eye witness, does not appear to be correct. In that view of the matter, if we consider the contradiction in her statement that in her police statement she has stated that things started with the handling or the thorn fencing on the boundary wall, it was a case where both the parties got enraged on the spur of the moment and there was no premeditation. If there was no pre‑meditation, then there was no pre‑motive to kill the deceased before the incident started, then it is difficult to conclude that there was a common object to eliminate the deceased. If there was no common object then conviction under sections 302/149 of the Indian Penal Code is not made out and in that view of the matter, the conviction and sentence of accused persons deserves to be set aside., Statement given to police during investigation under Section 161 cannot be read as evidence. It has a limited applicability in a Court of Law as prescribed under Section 162 of the Code of Criminal Procedure., No doubt statement given before police during investigation under Section 161 are previous statements under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to contradict such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. It is here that we feel that the learned judges of the Rajasthan High Court have gone wrong., The contradictions in the two statements may or may not be sufficient to discredit a witness. Section 145 read with Section 155 of the Evidence Act have to be carefully applied in a given case. One cannot lose sight of the fact that PW‑2 Rami is an injured eye witness, and being the wife of the deceased her presence in their agricultural field on the fateful day is natural. Her statement in her examination‑in‑chief gives detail of the incident and the precise role assigned to each of the assailants. This witness was put to a lengthy cross examination by the defence. Some discrepancies invariably occur in such cases when we take into account the fact that this witness is a woman who resides in a village and is the wife of a farmer who tills his land and raises crops by his own hands. In other words, they are not big farmers. The rural setting, the degree of articulation of such a witness in a Court of Law are relevant considerations while evaluating the credibility of such a witness. Moreover, the lengthy cross examination of a witness may invariably result in contradictions. But these contradictions are not always sufficient to discredit a witness. In Rammi v. State of Madhya Pradesh (1999) 8 SCC 649, this Court had held as under: 24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. In the same case, how far a contradiction in the two statements can be used to discredit a witness has also been discussed. 25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross‑examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below: 155. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;, A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross‑examiner to use any former statement of the witness, but it cautions that if it is intended to contradict the witness the cross‑examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross‑examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to contradict the witness., In Tahsildar Singh v. State of Uttar Pradesh, All India Reporter 1959 SC 1012, it was held that to contradict a witness would mean to discredit a witness. Therefore, unless and until the former statement of this witness is capable of discrediting a witness, it would have little relevance. A mere variation in the two statements would not be enough to discredit a witness. This has been followed consistently by this Court in its later judgment, including Rammi (supra). Moreover, in this case the Rajasthan High Court lost sight of other more relevant factors such as the witness being an injured eye witness., The purpose of the cross examination of a witness in terms of Section 145 and 155 of the Evidence Act is to bring contradictions in the two statements of the witness, in the case at hand, one given to police under Section 161 of the Code of Criminal Procedure, and the other given before the court. Even assuming for the sake of argument that there is a difference in the two statements of PW‑2 as she evidently does not disclose in her examination‑in‑chief that Jethnath was also working in the adjacent field and there was altercation between the two, this may discredit the witness only so far as the beginning of the incident; how it started. The fact that the incident happened is not in doubt. The offenders were the accused is also not in doubt. There is no doubt that the incident took place, which resulted in one death and grievous injuries to another. It may not have happened exactly as narrated by PW‑2, yet for this discrepancy the entire testimony of PW‑2 cannot be discarded., The so called injuries sustained by two of the assailants, Meghnath and Jethnath, were again relied upon by the Rajasthan High Court to reach a finding that this case could be the case of free fight between the two parties which was not pre‑meditated particularly where both sides had sustained injuries!, In our opinion, the Rajasthan High Court has given undeserved credit to the evidence placed by the defence in this regard. The Trial Court on the other hand had examined this aspect in detail and ultimately did not find the evidence placed by defence as credible. It is not very difficult for us to appreciate why this was done. To prove that the accused too had sustained injuries in the incident, the defence had produced DW‑4 Dr. Devkaran as their witness. This witness is a Government Doctor, and was under suspension at the time of his deposition, and from his own statement before the Trial Court this was so because he was charged of giving a post mortem report, though he had not conducted any post mortem. So much for the credibility of this witness. He was cross examined by the prosecution as to the overwriting and mistakes in his medical report. He denies having made the changes in the report. The Trial Court held that the medical report of this witness (DW‑4) to be suspicious, for the reasons that there was no explanation as to how the two accused had sustained these injuries. The only proof of injuries suffered by Jethnath was that there was a mention of these injuries in his arrest memo, when it was mentioned as abrasion on hand. This the Trial Court rightly held could be caused due to the force this assailant had exerted in attacking the deceased. Moreover, the injuries were in any case simple in nature., The Rajasthan High Court, though examines this aspect in a totally different perspective. It has magnified simple, doubtful and totally unexplained injuries of the accused and has belittled the brutal and murderous attack on PW‑2 and her deceased husband, and most importantly expressed serious doubt on the testimony of an injured witness, i.e., PW‑2. This approach of the Rajasthan High Court in our considered opinion was not correct., The Rajasthan High Court has gone wrong in its appreciation of the case, both on facts as well as on law. The statement of an injured eye‑witness is an important piece of evidence which cannot be easily discarded by a Court. Minor discrepancies do not matter. In State of Madhya Pradesh vs. Mansingh and Others (2003) 10 SCC 414 where conviction of the accused by the trial court, inter alia, under Section 302, was set aside by the High Court on the so‑called discrepancies of an injured witness this court while allowing the State's appeal against the acquittal said this: 9. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there was no mention of a knife in the first information report, that does not wash away the effect of the evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode the credibility of an otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to the evidence of the injured witnesses are clearly inconsequential., The reasons assigned for disbelieving the statement of PW‑2 by the Rajasthan High Court are not correct. The Rajasthan High Court discredits the statement of PW‑2 because of the discrepancies in her earlier statement given under Section 161 of the Code of Criminal Procedure, and the one given in her examination‑in‑chief. This as we have already discussed was not sufficient to totally discredit an injured eye witness. Apart from this eye‑witness, there were other eyewitnesses as well, which we have referred above. Further, there is also the recovery made of the weapons and the blood‑stained cloth of the accused. There is nothing to doubt either the recovery or the manner in which the recovery has been made. The conclusion derived by the Rajasthan High Court that the assailants were not having common intention or common object of killing deceased Chandernath is not entirely correct., The grounds for acquitting the accused under Sections 302 & 307 of the Indian Penal Code were mainly based on the presumption that it was not a pre‑meditated attack, rather it was a clash between two groups, where both were somewhat armed, which resulted in injuries on both sides, though somewhat larger injuries and a death, on the side of the complainant. This determination of the Rajasthan High Court is based primarily on two aspects, first that the assailants too had sustained injuries and secondly the discrepancies in the evidence of PW‑2., As far as the injuries sustained by some of the accused is concerned this could never be proved in the trial. DW‑4 who was produced as a witness stood thoroughly discredited and rightly so, as we have discussed in the preceding paragraphs. As to the so‑called discrepancies in the statement of PW‑2 we are again of the view that this witness is an injured eye witness and therefore her evidence cannot be completely disregarded., Having said this, however, we are also of the opinion that the possibility of the incident not being premeditated cannot be totally disregarded, considering the overall circumstances of the case, as urged before us and even considering the contradictions in the two statements of PW‑2. We do not discredit the evidence of PW‑2. She is a reliable witness. But only to the extent of what led to the incident, we are inclined to grant a limited benefit to the accused but not like the one given by the Rajasthan High Court. We are of the opinion that this case is of culpable homicide not amounting to murder, and not of murder. There were contradictions in the two statements of PW‑2 as we have discussed in the preceding paragraphs. These contradictions, however, are not enough to completely discredit this witness. All the same, these contradictions, in the given fact of the case, do give a benefit of doubt to the accused as to the case of pre‑meditated attack of the prosecution. In our opinion, therefore the attack would come under Exception 4 to Section 300 of the Indian Penal Code, the attack not being pre‑meditated, but was, in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner., Both the appeals are allowed and the order of the Rajasthan High Court dated 08.08.2007 is liable to be set aside and is hereby quashed. As far as the order of the Trial Court is concerned, we convert the findings of Section 302 to that of Section 304 part I of the Indian Penal Code, and that of Section 307 to Section 308 of the Indian Penal Code. We sentence each of the accused for seven years of rigorous imprisonment under Section 304 part I of the Indian Penal Code and three years of rigorous imprisonment under Section 308 of the Indian Penal Code. The remaining findings and sentences awarded by the Trial Court shall remain., Out of the six accused, we have been informed that Jethnath has passed away. The case against him therefore stands abated. The remaining accused shall surrender before the concerned court within four weeks from today, from where they shall be sent to prison to carry out the remaining sentence. Bail bonds, if any, shall stand discharged. The period of sentence already undergone by the accused shall be adjusted from the sentences presently awarded. All sentences will run concurrently. Let a copy of this order be sent to the concerned court for onward compliance of our orders.
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Siddharth Pithani, Applicant, versus Union of India and another, Respondents. Mr. Tariq Sayed in behalf of Advait Tamhankar appears for the applicant. Mr. Shriram Shirsat along with Amandeep Singh Sra appears for respondent 1. The applicant was arrested by the Narcotics Control Bureau on 26 May 2021 in Criminal Reference Number 16 of 2020 and seeks release on bail on the ground that the complaint does not disclose sufficient material against him, making further detention in judicial custody unnecessary and violative of Article 21 of the Constitution which guarantees the right to life and liberty., The Intelligence Officer filed a complaint before the Special Judge, National Drug Control Court for Narcotic Drugs and Psychotropic Substances against the present applicant and one Hemant Shah, in continuation of Narcotic Drugs and Psychotropic Substances Special Case Number 344 of 2021 against thirty‑three accused persons, upon completion of the investigation in Criminal Reference Number 16 of 2020, in which the applicant and Hemant Shah are shown as wanted accused. The original complaint arose from an incident dated 28 August 2020, when a team of the Narcotics Control Bureau, Mumbai and New Delhi apprehended two persons, Abbas Ramzan Ali Lakhani and Karan Arora, resident of Powai, and recovered a total of fifty‑nine grams of ganja. During the investigation of the case of the late actor Sushant Singh Rajput, thirty‑five accused persons were arrested in Criminal Reference Number 16 of 2020. Further investigation with Abbas Ali and Karan Arora led to the apprehension of six persons, and based on disclosures made by accused number six, Samuel Miranda, and accused number eight, Dipesh Sawant, the applicant was indicted for procurement of ganja, weed, joint, and charas in Mumbai. The applicant was apprehended from Hyderabad on 25 May 2021 and is charged with offences punishable under sections 8(c) read with section 20(b)(ii)(a), 27, 27‑A, 28, 29 and 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985. His statement under section 67 of the Narcotic Drugs and Psychotropic Substances Act, recorded as voluntary, admits his involvement in procurement, purchase, sale, consumption, preparation under the Act and his participation in a conspiracy., The learned counsel, Shri Tariq Sayed for the applicant, submits that the accusations, except for the charge under section 27‑A, connect the applicant to a small quantity of ganja and, even on conviction, would attract rigorous imprisonment for a term which may extend to one year or a fine which may extend to Rupees ten thousand, or both. The charge for consumption, punishable under section 27, carries a maximum punishment of one year or a fine of Rupees twenty thousand. All other offences under sections 28 and 29, pertaining to abetment, would also, at most, carry the same penalty as the concerned section. Only the offence under section 27‑A, for which he is accused, invites a punishment of rigorous imprisonment for a term not less than ten years but which may extend to twenty years and also a fine which may extend up to Rupees two lakh. The counsel argues that the complaint contains no material to establish the accusation of financing any of the activities specified in sub‑clauses (1) to (5) of clause viii(b) of section 2, and in the absence of such material his incarceration is unwarranted. He further points to various statements recorded under section 164, none of which are inculpatory. The three statements of the driver, cook and attendant of Sushant Singh Rajput, relied upon by the Narcotics Control Bureau, do not indict the applicant. He asserts that the applicant has no connection whatsoever with the other accused in the instant case and that the two accused, numbers six and eight, who have named him, were also released on bail, thereby claiming parity., Counsel for the respondent, Mr. Shriram Shirsat, referring to the material in the complaint, submits that the applicant was handling the accounts of Sushant Singh Rajput. He relies on the applicant’s statement under section 67 of the Narcotic Drugs and Psychotropic Substances Act, alleging that various entries in the bank statement of Sushant Singh refer to ‘Pooja Samagri’, a code used to identify transactions to buy weed, ganja, charas or marijuana. According to the respondent, the applicant disclosed the modus operandi: first, the amount was transferred from the main account to a secondary account of Sushant Singh; then Samuel Miranda, Ashok or Sahil Sagar would withdraw the amount and use the cash to purchase the narcotics. The respondent states that the applicant admitted operating Sushant’s banking applications, specifically the Kotak app from his iPad, and was personally aware that this account was used to purchase the contraband. The respondent relies upon the bank statement of Sushant Singh Rajput from Kotak Mahindra Bank for the period 1 March 2017 to 3 August 2020, which shows numerous withdrawals under the caption ‘Pooja Samagri’. By referring to five entries recorded in the year 2020 where amounts were received into the applicant’s account from Sushant Singh, the respondent argues that the charge under section 27‑A is made out. He also relies upon various phone calls between the accused persons, which, according to him, substantiate the department’s claim that the applicant arranged contraband in large quantity for Sushant Singh Rajput and therefore played a vital role in the commission of the offence. In view of the application of section 27‑A, the respondent submits that the rigours of section 37 of the Narcotic Drugs and Psychotropic Substances Act are attracted and that the Special Judge, National Drug Control Court has prima facie recorded the applicant’s involvement in procurement, sale, purchase, consumption and preparation of contraband., The counsel for the applicant, after perusing the complaint and the material placed on record by the Narcotics Control Bureau along with its affidavit, notes that the applicant is accused of financing illicit traffic and that it is necessary to focus upon the relevant provision contained in the Act of 1985. Section 27‑A reads: ‘Punishment for financing illicit traffic and harbouring offenders – Whoever indulges in financing, directly or indirectly, any of the activities specified in sub‑clauses (i) to (v) of clause (viiib) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term not less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.’, The word ‘financing’ in ordinary terms conveys providing money to pay for something. In commercial language it indicates the process of providing funds for business activities, making purchases or investing. When section 27‑A refers to financing, it necessarily means an activity where a person provides finances for illicit traffic in relation to narcotic drugs and psychotropic substances to various activities mentioned in section 2(viiib), which may include cultivation, production, manufacture, possession, sale, purchase, transportation, use or consumption, import or export of narcotic drugs and psychotropic substances. Since indulging in financing is a serious offence and the prime object of the Narcotic Drugs and Psychotropic Substances Act, 1985 is to deal with the menace of drug trafficking, the activity is made punishable with a harsher penalty., Very recently, the term ‘financing’ used in section 27‑A was interpreted in the case of Rhea Chakraborty versus Union of India (Criminal Bail Application S.No. 2308/2020) by the learned Single Judge of this Court, Justice Sarang Kotwal, who observed: ‘Financing’ is not defined under the Act. The Concise Oxford Dictionary defines the word ‘finance’ as (1) the management of (especially public) money, (2) monetary support for an enterprise, (3) (in plural) the money resources of a state, company, or person, to provide capital for a person or enterprise. Black’s Law Dictionary gives the meaning of the word ‘finance’ as ‘to raise or provide funds’. Thus, ‘financing’ as generally understood is offering monetary support or providing funds. Therefore, simply providing money for a particular transaction or other transactions will not be financing of that activity. Financing will have to be interpreted to mean providing funds for either making that particular activity operational or for sustaining it. It is the financial support which directly or indirectly is the cause of existence of such illicit traffic. The word ‘financing’ would necessarily refer to activities involving illegal trade or business. The allegations against the applicant of spending money in procuring drugs for Sushant Singh Rajput will not, therefore, mean that she had financed illicit traffic. It will have to be ascertained from the material in the complaint whether the applicant has indulged in financing, directly or indirectly, any of the activities specified in sub‑clauses (1) to (5) of clause viii(b) of section 2.’, Upon careful examination of the material relied upon by Mr. Shriram Shirsat in the charge‑sheet, it is found that the evidence is short of establishing financing. The Narcotics Control Bureau heavily relies on the applicant’s statement recorded under section 67 of the Narcotic Drugs and Psychotropic Substances Act. In that statement, the applicant explains that ‘Pooja Samagri’ was a code to identify transactions made to buy weed, ganja, hashish, charas or marijuana on the bank statements (Kotak) of Sushant Singh Rajput; first the amount was transferred from the main account to a secondary account, then Samuel Miranda, Ashok or Sahil Sagar would withdraw the amount and use the cash to purchase the substance. When asked whether he was operating Sushant’s banking apps and why, the applicant responded that after Haokip was fired, Sushant Singh Rajput asked him to clear all dues and he used Sushant’s phone to clear those dues. He used the iPhone to add the details in the app, upon which Sushant received an OTP on his personal iPhone, which Sushant himself entered along with the M‑pin in the app., The respondent relies upon the bank statement of Sushant Singh from Kotak Mahindra Bank, where various withdrawals are recorded under the narration ‘Pooja Samagri’. It is admitted that these are large and frequent amounts. The statement of co‑accused Samuel Miranda, also recorded under section 67, discloses that the applicant was associated with Sushant Singh and narrates that the actor and his friends often smoked ganja by frequently organizing parties and get‑togethers. The applicant is said to have accompanied the actor to Patna along with other co‑accused. After Samuel and Haokip left, the cook allegedly organized ganja for Sushant and either the applicant or the cook would transfer funds through mobile banking after obtaining Sushant’s approval and sending a screenshot to the accountant. In January, when Sushant was unwell, the applicant was asked to stay with him; Sushant proceeded to Chandigarh along with the applicant and his bodyguard Sahil, and one box of joint was given to the applicant for the actor. The bank statement of the applicant, covering the period 1 April 2018 to 29 May 2021, shows only five entries of amounts received from Sushant Singh and no major transactions. The applicant explained that these amounts were due and payable to him for services rendered to Sushant., The court also examined the statements recorded under section 164 of the driver, cook and attendant. None of these statements attribute a role of financing to the applicant, although the housekeeping person mentioned that his various friends used to party with the applicant. The cook’s statement under section 164 describes the lifestyle of the actor, noting that on 14 June 2020, when Sushant was unwell, the applicant was present in the other room and, upon entering Sushant’s room to offer juice, the room was filled with smoke and his hands were shaking. The bodyguard’s statement likewise makes no reference to the applicant financing the purchase of drugs. Consequently, the statements heavily relied upon by the prosecution do not advance the case of the Narcotics Control Bureau to establish the charge under section 27‑A., From the material compiled in the charge‑sheet, it can be discerned that the applicant is accused of smoking ganja and therefore is charged under section 20(b)(iii)(a). His statement under section 67 refers to photographs where he and Sushant Singh are seen with a joint and pipes in their hands. The method of purchasing ganja or charas by the actor appears to involve transferring an amount from one of his accounts to another account in Kotak Mahindra Bank, from where the money was withdrawn and the contraband purchased by several persons. Although the applicant handled the actor’s accounts, it is not the case of the Narcotics Control Bureau that he transferred any amount to Sushant Singh and that the contraband was purchased from that amount. The Kotak account of Sushant Singh shows withdrawals labelled ‘Pooja Samagri’, but that was the actor’s own money and the contraband was arranged using that money. Prima facie, the applicant has not financed any transaction in which the contraband consumed by the accused was purchased. When questioned about the details of the first account of Sushant Singh from which the amount was transferred to his Kotak account, Mr. Shriram Shirsat stated that there is no investigation on this aspect., Considering the material compiled in the charge‑sheet, no case is made out against the applicant for financing illicit traffic and, therefore, the counsel for the applicant is justified in relying upon the observations in the case of Rhea Chakraborty. The applicant has not provided money; the money used to purchase the contraband was the actor’s own. Consequently, there are no reasonable grounds for believing that the applicant is guilty of financing illicit traffic in narcotics or drugs. The Narcotics Control Bureau has not expressed any apprehension about the applicant’s flight risk. Satisfied that the two ingredients contemplated under section 37(1)(ii) are met, recording a prima facie case in favour of the applicant, the court is inclined to release him on bail. As the applicant is prima facie not guilty of the charge under section 27‑A, and the other offences involve a small quantity with a maximum punishment of up to one year, he deserves his liberty., The observations made above are limited to the decision on the present application filed by the applicant seeking release on bail and shall not be taken as an opinion on the merits of the prosecution case. Order: (a) The applicant, Siddharth Pithani, in connection with Criminal Reference Number 16 of 2020 registered with the Narcotics Control Bureau, shall be released on bail upon furnishing a personal surety bond to the extent of Rupees fifty thousand with one or two sureties of the like amount. (b) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to the court or any police officer, and shall not tamper with evidence. (c) The applicant shall attend the trial regularly, unless and until exempted by the trial court. The application is allowed in the aforesaid terms.
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Petition for Special Leave to Appeal (Civil) No. 13013/2022, arising out of the impugned final judgment and order dated 10 June 2022 in Writ Petition (Civil) No. 9475/2022 passed by the Delhi High Court at New Delhi, dated 09 September 2022. The petition was called on for hearing on that date. The petitioner appeared in person. Upon hearing the counsel, the Supreme Court of India allowed the application for permission to appear and argue in person., The challenge in the present Special Leave Petition is to an order passed by the Delhi High Court on 10 June 2022 whereby a writ petition filed by the petitioner seeking a mandamus to decide the candidature of the petitioner to file his nomination for the Rajya Sabha elections 2022 was dismissed., The petitioner had filed a writ petition before the Delhi High Court raising a grievance that a notification for election to the Rajya Sabha was issued on 12 May 2022 to fill the seats of members retiring from 21 June 2022 to 01 August 2022. The last date for submission of the nomination was 31 May 2022. The petitioner states that he collected the nomination form but was not allowed to file his nomination because a proper proposer was not available to propose his name. The petitioner sought to file his candidature without a proposer, which was not accepted, and therefore claims that his fundamental right of free speech and expression and right to personal liberty have been infringed., The writ petition before the Delhi High Court was entirely misconceived and so is the present Special Leave Petition. The right to contest an election is neither a fundamental right nor a common law right; it is a right conferred by a statute. In Javed v. State of Haryana, (2003) 8 SCC 369, this Court held that the right to contest an election is a statutory right and, at most, may be said to be a constitutional right only in the context of Part IX of the Constitution relating to Panchayat elections, but it cannot be equated with a fundamental right. The same statute that confers the right to contest an election also provides for the necessary qualifications and disqualifications for candidature. Reiterating the law laid down in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency [AIR 1952 SC 64] and Jagan Nath v. Jaswant Singh [AIR 1954 SC 210], this Court held in Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691, that the right to elect, the right to be elected and the right to dispute an election are statutory rights subject to statutory limitation. In Rajbala v. State of Haryana, (2016) 2 SCC 445, this Court observed that the right to contest for a seat in the Rajya Sabha or a Legislative Council is subject to constitutional restrictions and may be further restricted only by a law made by Parliament., The Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 requires the name of a candidate to be proposed while filling the nomination form. Consequently, an individual cannot claim a right to contest an election that would override this statutory requirement. Accordingly, the present Special Leave Petition is dismissed with a cost of Rs. 1,00,000 (Rupees one lakh only) to be paid to the Supreme Court Legal Aid Committee within four weeks. Any pending applications, if any, stand disposed of.
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This appeal is at the instance of the State of Jammu and Kashmir (now Union Territory of Jammu and Kashmir) and is directed against the order passed by the High Court of Jammu and Kashmir at Jammu dated 11 October 2019, by which the High Court rejected Criminal Revision Application No. 27 of 2018 filed by the appellant State, thereby affirming the order passed by the Chief Judicial Magistrate, Kathua dated 27 March 2018 holding the respondent accused to be a juvenile on the date of the commission of the alleged offence., The litigation originates from the Kathua rape case, which involved the abduction, gang rape and murder of an eight‑year‑old Muslim girl from the nomadic Bakarwal community in January 2018 in Rasana village near Kathua, Jammu and Kashmir. Six Hindu men and the respondent, who claimed to be a juvenile, were arrested. The trial of the other six co‑accused resulted in convictions: three were sentenced to life imprisonment and three to five years rigorous imprisonment. The Special Investigation Team was constituted to probe the matter and a chargesheet was filed against all accused. The victim’s father lodged a complaint at Hira Nagar Police Station stating that his daughter had gone missing., On 17 January 2018 the body of the victim was found and taken into police custody. It was sent for autopsy, which was conducted by a team of doctors at the District Hospital, Kathua on the same day. On 22 January 2018 the investigation was transferred to the Crime Branch and Crime Headquarters., The post‑mortem revealed the presence of clonazepam in the deceased girl’s body, indicating that she had been drugged before being raped and murdered. Forensic evidence suggested that she had been held on several dates by one of the accused, Sanji Ram. Hair strands recovered from the temple where the rape occurred matched those of the accused. The examination stated that the deceased had been raped multiple times by different men, strangulated to death, and hit on the head with a heavy stone., The Delhi Forensic Science Laboratory analysed fourteen packets of evidence, including vaginal swabs, hair strands, blood samples of four accused, viscera of the deceased, her frock and salwar, simple clay and blood‑stained clay. The vaginal swabs matched the DNA of the accused, as did other samples. The hair strands found at the temple matched those of the girl and the accused., One of the accused, Sanji Ram, who was the priest of the family temple where the incident allegedly took place, and the respondent, who is his nephew, were identified as the main accused., On 10 June 2019, six of the seven accused were found guilty and one was acquitted. Sanji Ram, Deepak Khajuria and Parvesh Kumar were sentenced to life imprisonment for 25 years with a fine of Rs. One lakh each. The other three accused, Tilak Raj, Anand Dutta and Surinder Kumar, were sentenced to five years in jail for destroying crucial evidence. Vishal Jangotra, son of Sanji Ram, was acquitted due to lack of evidence. The eighth accused, who is yet to be tried and claimed to be a juvenile at the time of the offence, is the respondent herein., The specific case put up by the prosecution against the respondent reads: \He immediately rushed down stairs, took three Manars and keys to Devisthan and told the victim that he had seen her horses. He led her to the jungle and also called accused Mannu who was already waiting for his signal. Sensing trouble the victim tried to flee; the juvenile stopped her by catching her neck, covering her mouth with one hand and pushing her, causing her to fall. Accused Mannu held her legs and the juvenile (respondent) administered Manars one by one forcibly to the victim. The victim fell unconscious and was raped by the juvenile. Later, they kept the girl inside Devisthan under two plastic mats and covered her with two cotton threads. At about 8.30 a.m. the juvenile again went to Devisthan and administered three sedative tablets to the unconscious girl on an empty stomach. The accused Vishal Jangotra (Shamma) raped the victim. Subsequently, the juvenile also raped the girl in the presence of accused Mannu. After committing the rape, the juvenile directed accused Vishal Jangotra (Shamma) and accused Mannu to leave Devisthan. The juvenile again took out three tablets from a strip kept near an electric pole outside Devisthan and gave them to the girl, then covered her with mats and hid the utensil container. During investigation it was found that after distributing Lohri to relatives in the evening, the juvenile informed accused Sanji Ram that he and accused Vishal Jangotra had committed gang rape with the victim inside Devisthan. On the spot, accused Deepak Khajuria (Deepu) told the juvenile to wait as he wanted to rape the girl before she was killed. The girl was then gang‑raped firstly by accused Deepak Khajuria (Deepu) and then by the juvenile. After committing the barbaric act, the juvenile applied force on her left thigh and her neck in order to kill her. When Deepak Khajuria (Deepu) was unsuccessful, another accused, JCK, killed her by pressing his knees against her back and strangulating her with a cotton thread. The juvenile then hit her twice on the head with a stone. As per plan, the juvenile, along with accused Vishal Jangotra (Shamma), went to Devisthan; Vishal Jangotra opened the door while the juvenile lifted the dead body on his shoulder, locked the door and disposed of the dead body by throwing it inside the jungle while Vishal Jangotra guarded the outside bushes.\, The supplementary charge sheet dated 09 August 2018 observed that the victim was administered sedatives during her captivity. Two tablets recovered near Devisthan Rasana were sent to a forensic lab, which revealed the presence of clonazepam salt. An expert (Professor and Head, Pharmacology, Government Medical College, Jammu) opined that clonazepam (Epitril 0.5 mg) causes drowsiness, confusion, impaired coordination, slow reflexes, slowed or stopped breathing, coma and death. The peak concentration is achieved in the blood after one to one and a half hours of oral administration, and absorption is complete irrespective of food intake., The crime for which the respondent is charged is heinous; its execution was vicious and cruel, calculated and ruthless. The case attracted nationwide attention and indignation, particularly in the State of Jammu and Kashmir, as a cruel crime that raised alarm regarding safety within the community., The adjudication in the present litigation is restricted to the question whether the respondent was a juvenile on the date of commission of the offence. It began with the order dated 21 February 2018 passed by the High Court of Jammu and Kashmir in OWP No. 259 of 2018. The order directed the Special Investigation Team to ascertain the age of Shubam Sangra within ten days by a Medical Board to be constituted by the Principal, Government Medical College, Jammu, and to locate the accused Mannu mentioned in the status report., In compliance with the High Court directions, the Special Investigation Team, by its letter dated 26 February 2018, requested the Principal, Government Medical College, Jammu to constitute a medical board for determining the age of the respondent., The Principal and Dean of the Government Medical College, Jammu constituted a Special Medical Board comprising: Dr. Mritunjay, Professor, Department of Physiology; Dr. Ashwani, Assistant Professor, Department of Anatomy; Dr. Satvinder Singh, Lecturer, Department of Oral Diagnosis, Indira Gandhi Government Dental College, Jammu; Dr. Shivani Mehta, Lecturer, Department of Forensic Medicine; and Dr. Jeevitesh Khuda, Registrar, Department of Radio Diagnosis., The Special Medical Board examined the respondent and gave its report dated 3 March 2018. The report recorded the respondent’s address as Hiranagar, Ward No. 10, NP Rasana, and listed physical identifiers such as a black mole above the left angle of the mouth and a scar on the right eyebrow. Height was 5'3\, weight 48 kg, average build, masculine voice, and well‑developed secondary sexual characters. Dental examination showed all permanent teeth erupted except 18, 28, 38 and 48; radiographic examination indicated the dental age to be 19+ years. Radiological investigations of the humerus, elbow, hand and wrist were advised. The final opinion, based on physical, dental and radiological examination, concluded that the individual’s age was between nineteen and twenty‑three years, i.e., above nineteen years., The High Court, by its order dated 14 March 2018, directed the Medical Superintendent of District Hospital, Kathua to hand over the post‑mortem report and reply to the questionnaire to the Special Investigating Team within three days. It also directed the Special Investigating Team to obtain a warrant of arrest for the absconding accused Sanji Ram and to interrogate him and other persons named in paragraph 7 of the status report. The Chief Judicial Magistrate, Kathua was directed to ascertain the age of Shubam Sangra within ten days from receipt of the certified copy of the order, without being influenced by the report submitted to the District Medical Board., The Tehsildar of Hira Nagar, in a communication dated 14 March 2018, informed the Superintendent of Police, In‑charge Special Investigation Team, Crime Branch, that the original record pertaining to the order dated 15 April 2004 concerning the date of birth of Shubam Sangra was not traceable and that the old miscellaneous record had been dilapidated., The Block Medical Officer, Health & Family Welfare, Hira Nagar, by a communication dated 15 March 2018, stated that verification of institutional records revealed that no delivery in the name of Smt. Tripta Devi, wife of Om Prakash (mother of the respondent), had taken place on 23 October 2002. The date 23 February 2002 was noted as significant because the respondent claimed to have been born on 23 October 2002., On 20 March 2018, the respondent filed an application before the Chief Judicial Magistrate, Kathua under Section 8 of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013, seeking determination of his claim as a juvenile., The State filed detailed objections to the respondent’s application. It noted that on 12 January 2018, Mohd. Yousuf of the Bakarwal community reported the disappearance of his eight‑year‑old daughter, Asifa, leading to FIR No. 10/2018 under sections 363, 302 and 343 of the Ranbir Penal Code. A juvenile delinquent, Shubam Sangra (alias Chuboo), was apprehended on 19 January 2018 and produced before the Chief Judicial Magistrate on 20 January 2018. The investigation was transferred to the Crime Branch on 22 January 2018 and formally handed over on 27 January 2018, with additional offences under sections 376, 201 and 120‑B added later., The Chief Judicial Magistrate granted remand for Shubam Sangra’s lodging in observation home R.S. Pura for a total of 67 days, and police custody for a total of 10 days. During sustained questioning, the juvenile admitted to kidnapping, rape and murder of Asifa. Witness statements under sections 161 and 164‑A of the CrPC and circumstantial evidence prima facie established the offences against Shubam Sangra., During investigation, it was found that the date of birth certificate obtained from the Municipal Committee, Hiranagar, and that obtained from Modern Public Higher Secondary School, Hiranagar, were inconsistent. The High Court, on 21 February 2018 in OHP No. 259 of 2018 (Mohd. Akhter v. State), directed the Special Investigation Team to ascertain the age of Shubam Sangra within ten days by a Medical Board constituted by the Principal, Government Medical College, Jammu., The Principal, Government Medical College, Jammu, constituted a board of doctors as mentioned earlier, which examined the juvenile on 28 February 2018. The board’s opinion, communicated on 5 March 2018, concluded that the approximate age of the individual was above nineteen years (19+). The medical report is annexed as Annexure A., Further investigation revealed that police officials of Hiranagar Police Station were part of the conspiracy, as the clothes of the deceased were washed at the police station on 17 January 2018 before being sent to the forensic laboratory. Based on confessional statements and witness testimony, police officials Tilak Raj and Anand Dutta were arrested for tampering with evidence and are currently on police remand at the Crime Branch, Jammu., The board of doctors’ opinion that Shubam Sangra is above nineteen years of age leads to the submission that he should not be declared a juvenile. The State therefore prays that the application be rejected and that Shubam Sangra be declared an adult, so that the investigation may proceed on its merits., For the purpose of adjudicating the application filed by the respondent under Section 8 of the Act, the Chief Judicial Magistrate, Kathua recorded the deposition of the Executive Officer, Municipal Committee, Hira Nagar, and of the father of the respondent, Om Prakash., Ultimately, the Chief Judicial Magistrate, Kathua, passed the final order dated 27 March 2018 holding the respondent to be a juvenile. The order recorded that the Executive Officer, Municipal Committee, Hiranagar, produced a birth and death register entry showing the respondent’s date of birth as 23 October 2002, recorded on 15 April 2004 pursuant to an order of the Executive Magistrate, 1st Class, Hiranagar. The entry was signed by the father and was deemed correct and true according to the original record.
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In cross‑examination, the witness deposed that the incumbent Executive Officer ensures signatures of any application on the birth register in his presence; that with regard to place of birth of a newborn, entry is made on the basis of information given by an applicant and no verification is made because entry is made on the basis of an order of the Magistrate; that order no. 22/JC does not mention the place of birth of the petitioner and that after the year 2012 orders pertaining to entry of date of birth are issued by courts and not by the Executive Magistrate., Another witness, Om Parkash, the father of the petitioner, was examined on 24‑03‑2018. He stated that the petitioner is his biological son; that the petitioner’s date of birth is 23‑10‑2002; that this date of birth is also entered in the record of Municipal Committee Hiranagar, made on 15‑04‑2004; that prior to this he moved an application for making entry of the date of birth of the petitioner before the Executive Magistrate, First Class, Hiranagar, and that the Tehsildar Hiranagar issued an order in the name of Municipal Committee Hiranagar pursuant to which the date of birth was recorded as 23‑10‑2002; that his wife’s name is Tripta Devi. The petitioner was admitted to Modern Public Higher Secondary School, Hiranagar, in the first class, where the date of birth was also disclosed as 23‑10‑2002. However, a wrong entry of the date of birth appears in the school records as 23‑10‑2003. The father learned of this wrong entry only when an FIR was registered against the petitioner, prompting him to go to the school to obtain the date of birth certificate., On cross‑examination, the witness deposed that he has three children, the youngest being the petitioner. Because of ignorance he moved an application for making entry of the date of birth of his children as late as 2004 even though his eldest child was born in 1996; he could not state the age at which Shubam Sangra was admitted to school and he is a fourth‑class employee in the education department., It is noted that the evidence of the Executive Officer, Municipal Committee Hiranagar, puts in perspective the process that ultimately culminated in recording the petitioner’s date of birth in the record of Municipal Committee Hiranagar in 2004. As a matter of record, it stands established that the date of birth was recorded in the birth register of Municipal Committee Hiranagar vide registration no. 80 on 15‑04‑2004, in line with order no. 22/JC dated 15‑04‑2004 passed by the then Executive Magistrate, First Class (Tehsildar), Hiranagar. The birth certificate issued by Municipal Committee Hiranagar on 17‑03‑2018 is in accord with and conforms to the original record, as demonstrated by the records of the Municipal Committee and the testimony of its Executive Officer. The date of birth certificate issued on 17‑03‑2018 depicting the date of birth as 23‑10‑2002 therefore cannot be said to have been manufactured, engineered or fabricated., Once the date of birth certificates of the petitioner do not give a prima facie sense of concoction or trickery, to subject them to over‑scrutiny would be a fallacy directed at the ambit and scope of Section 8 of the Juvenile Justice (Care and Protection of Children) Act and Rule 74 framed thereunder. Notably, the narrative unwound by the father of the petitioner is in sync with the account given by the Executive Officer, Municipal Committee Hiranagar, and the relevant official record., Another crucial aspect is that the date of birth was recorded in the birth register maintained in the course of official business by Municipal Committee Hiranagar on 15‑04‑2004. The Committee did not record this entry suo motu but in compliance with an order issued by the Executive Magistrate, First Class, Hiranagar. The alleged involvement of the petitioner occurred in January 2018. To insinuate that the entry was made in favour of the petitioner because he knew that, more than thirteen years later, he would seek a benefit in a criminal indictment is an overstatement and an erroneous assumption., As soon as the birth certificate issued by Municipal Committee Hiranagar in favour of the petitioner is found to be prima facie legitimate, recourse to other modes of age determination is not allowable. This is the mandate of Rule 74 framed under the Juvenile Justice (Care and Protection of Children) Act. Accordingly, it is held that the birth certificate issued by Municipal Committee Hiranagar depicting the date of birth as 23‑10‑2002 is legitimate, untarnished and fair, and credence must be given to it for the purpose of the Juvenile Justice Act. Reckoning the date of birth as 23‑10‑2002, the age of the petitioner on the date of passing this order is less than sixteen years. The age is ascertained in compliance with the directive of the Honourable High Court of Jammu and Kashmir dated 14‑03‑2018 in Other Written Petition No. 21., The appellant State, dissatisfied and aggrieved with the order passed by the Chief Judicial Magistrate, Kathua, dated 27‑03‑2018, challenged the same by filing a Criminal Revision Application before the Honourable High Court of Jammu and Kashmir. The High Court rejected the revision application, affirming the order of the Chief Judicial Magistrate, Kathua, holding the respondent to be a juvenile on the date of commission of the offence. The impugned order of the High Court reads: 'Admittedly, the date of birth of the respondent in the municipal record as well as school record is shown as 23‑10‑2002, meaning that on the date of registration of the FIR he was below the age of 18 years. The petitioners have not denied the authenticity of the aforesaid record. Once there is clear proof of the respondent in the shape of the birth certificate of the Municipal Committee and the certificate issued by the school authority, the medical examination regarding the age of the respondent automatically loses its significance.' The High Court further observed that the scope of revision is very limited, citing the Apex Court decision in Jabar Singh v. Dinesh and another (2010 (3) SCC 757)., The judgment reproduced states: 'A plain reading of Section 52 of the Act shows that no statutory appeal is available against any finding of the court that a person was not a juvenile at the time of commission of the offence. Section 53 of the Act, titled “Revision”, provides that the High Court may at any time, either of its own motion or on an application, call for the record of any proceeding in which any competent authority or court of session has passed an order for the purpose of satisfying itself as to the legality or propriety of such order, and may pass such order as it thinks fit. While exercising such revisional powers, the High Court cannot convert itself to an appellate court and reverse the findings of fact arrived at by the trial Court on the basis of evidence or material on record, except where the High Court is not satisfied as to the legality or propriety of the order passed by the trial Court.', The petitioners admit that the scope of revision is the same as the scope of revision under the Code of Criminal Procedure. Section 52 of the Juvenile Justice Act, 2013, referred to by the petitioners, also requires the court to satisfy itself as to the legality and propriety of any order; consequently, factual findings cannot be upset unless they are perverse. In the present case, the factual finding has been given by the lower court; therefore, there is no illegality or impropriety in the order, and no question of interference with the findings of the lower court., In the instant case, the trial Court gave a finding of fact relying upon the evidence and acted in conformity with Rule 74 of the Rules of 2014. There is no perversion in the findings of fact; consequently, the trial Court has not committed any illegality or impropriety warranting interference in this revision petition. Accordingly, the revision petition is dismissed along with connected criminal miscellaneous matters. Record, if any, be sent down. Interim direction, if any, shall stand vacated. (Jammu Tashi Rabstan, 11‑10‑2019, Judge)., In view of the aforesaid, the appellant State is before this Court with the present appeal. Submissions on behalf of the appellant State: Mr. P.S. Patwalia, the learned senior counsel for the appellant State, vehemently submitted that the orders passed by the Chief Judicial Magistrate, Kathua, and the High Court are palpably erroneous, rendering the dispensation of justice a mockery. He criticized both orders for conveniently ignoring the statutory rules governing the determination of age of a juvenile. He submitted that there is no cogent, clear and convincing documentary evidence on record to suggest that the respondent was born on 23‑10‑2002. He invited the attention of this Court to an order passed by the Executive Officer, Municipal Committee, Hiranagar, dated 15‑04‑2004, specifying the date and place of birth of three children of Om Prakash Sangra. The order was passed pursuant to an application filed by the father of the respondent under Section 19(3) of the Registration of Births and Deaths Act, 1956 read with Rule 19(3) of the Rules., The order reads: 'Application under Section 19(3) of the Registration of Births and Deaths Act, 1956 with Rule 19(3) of the Jammu and Kashmir Registration of Births and Deaths Rules. The applicant, Om Parkash Sangra, has moved an application for the issuance of date of birth certificates for his children: 1. Rahul Sangra – 23‑11‑1997, 2. Riya Sangra – 21‑02‑1998, 3. Shubam Sangra – 23‑10‑2002. The order directs that entry of the above‑named applicants be made in the Register of Births in terms of Rule 19(3) of the Registration of Births and Deaths Rules. Copy of this order shall be forwarded to the Municipal Committee, Hiranagar for information and necessary action. Executive Officer, Municipal Committee, Hiranagar.', The learned senior counsel submits that no reliance could be placed on the aforesaid order for the purpose of concluding that the respondent’s date of birth is 23‑10‑2002., It is noted that the first child of Om Prakash, Rahul Sangra, is shown to have been born on 23‑11‑1997, whereas the second child, Riya Sangra, is shown to have been born on 23‑01‑1998, i.e., within three months of the eldest child. The respondent’s date of birth is shown as 23‑10‑2002., The learned senior counsel invited the Court’s attention to a birth certificate issued by Modern Public Higher Secondary School dated 06‑09‑2017, which reads: 'Modern Public Higher Secondary School, Ward No. 10‑11, Hiranagar (Kathua), Jammu and Kashmir, Recognised by the Government of Jammu and Kashmir and Affiliated to the Jammu and Kashmir State Board of School Education. Dated 06/09/2017. Certified that the date of birth of Shubam Sangra, son of Om Parkash / Tripta Devi, is (in figures) 23/10/2003 (in words) Twenty‑third October Two Thousand Three as per school records. Admission No. 1435. Reading in Class 10th. Address: W‑No. 10, P.O. Hiranagar, Tehsil Hiranagar, District Kathua, Pin 184142. Principal, Modern Public Higher Secondary School, Hiranagar.', Thus, the certificate shows the date of birth as 23‑10‑2003. An extract of the admission withdrawal register of the primary department of the school (page 58 of Annexure‑P‑3) also records the respondent’s date of birth as 23‑10‑2003., The learned senior counsel highlighted the contradictions in the date of birth and referred to the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014, particularly Rule 74, which deals with determination of age. The full text of Rule 74 is reproduced, covering sub‑rules (1) to (6), including the provision that where there is a contradiction between certificates, the authority may refer the matter to a duly constituted Medical Board, which shall record its findings and submit them to the Juvenile Justice Board., The learned senior counsel submitted that sub‑rule (3) of Rule 74 makes it clear that in case of any contradiction between the certificates mentioned in sub‑clauses (i) and (ii), the authority deciding age may refer the matter to a duly constituted Medical Board, which shall record its findings and submit them to the Juvenile Justice Board., The learned senior counsel further submitted that there is an apparent contradiction in the documentary evidence on record, and therefore the matter had to be referred to a duly constituted Medical Board, with the age to be determined on the basis of the medical board’s report., The learned senior counsel submitted that the certificate issued by the Medical Board makes it clear that the respondent’s age at the time of commission of the offence could be between 19 and 23 years., The learned senior counsel argued that the case involves a heinous crime committed on a minor girl aged eight years. He submitted that if the plea of juvenility is not free from ambiguity, it cannot be raised merely on doubtful certificates, and the medical evidence must be given due weight. He relied on the decision of this Court in Ramdeo Chauhan alias Raj Nath v. State of Assam (2001 5 SCC 714)., The learned senior counsel prayed that, having merit in his appeal, the impugned order of the High Court be set aside and that the respondent be held not to be a juvenile on the date of commission of the offence., Submissions on behalf of the respondent accused: The learned counsel for the respondent vehemently opposed the appeal, submitting that no error of law was committed by the courts below in determining the age. He argued that sub‑rule (3) of Rule 74 does not apply as there is no contradiction in the certificates, and that the respondent’s birth on 23‑10‑2002 is crystal clear from the admission form filed with Modern Public Higher Secondary School, Hiranagar, in 2008. He contended that the seriousness of the crime does not affect the applicability of the Juvenile Justice Act, and that the medical board’s opinion is not conclusive. He further submitted that no document indicates that the respondent was not a minor on the date of the alleged offence, and that, given the order No. 22/JC issued by the Municipal Committee, recourse to Rule 74(3)(ii) is unwarranted., The learned counsel relied on the decisions of this Court in Ashwani Kumar Saxena v. State of Madhya Pradesh and Darga Ram alias Gunga v. State of Rajasthan., The learned counsel for the respondent prayed that, having no merit, the appeal be dismissed., Analysis: Having heard the counsel for the parties and examined the material on record, the only question is whether the High Court committed any error in passing the impugned order. Sub‑rule (3) of Rule 74 makes it clear that in the absence of the certificates mentioned in sub‑clauses (i) to (iii), or where a contradiction arises, the authority may refer the matter to a duly constituted Medical Board, which shall record its findings and submit them to the Juvenile Justice Board. The material on record reveals discrepancies in the certificates concerning the respondent’s date of birth. The Courts below failed to take cognizance of these discrepancies. If any doubt remains, the matter should be referred to a Medical Board, as the word “may” in the provision should be read as “shall” in view of its object., It is a well‑settled principle that the word “may” in legislation does not always convey a directory meaning; when the legislature intends a mandatory duty, the word may be interpreted as mandatory. The Court in Bachahan Devi v. Nagar Nigam, Gorakhpur (2008 12 SCC 372) held that the word “may” can have a mandatory force depending on context, purpose and legislative intent. Similarly, in Dhampur Sugar Mills Ltd. v. State of Uttar Pradesh (2007 8 SCC 338), the Court observed that the distinction between “may” and “shall” must be determined by examining legislative intent., Section 8 of the Juvenile Justice Act, 2013, provides that whenever a claim of juvenility is raised before any court, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit), and record a finding as to whether the person is a juvenile, stating the age as nearly as may be. If the court finds the person to be a juvenile, it shall forward the juvenile to the Juvenile Justice Board for appropriate order., Section 48 of the Juvenile Justice Act, 2013, deals with presumption and determination of age. It provides that a competent authority shall make a due inquiry into the age of a person brought before it, take such evidence as may be necessary (but not an affidavit), and record a finding as to whether the person is a juvenile. No order of a competent authority shall be deemed invalid merely by subsequent proof that the person is not a juvenile; the age recorded by the competent authority shall be deemed the true age for the purpose of the Act., Section 48 refers to a competent authority, whereas Section 8 refers to a court. Both provisions underscore the mandatory nature of age determination inquiries under the Juvenile Justice Act.
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However, what is relevant to note is that in both the Sections i.e., Section 8 as well as Section 48 the word 'shall' has been used., It is the High Court that passed the order dated 21 February 2018, directing the Special Investigation Team to take steps for ascertaining the age of the respondent. Pursuant to those directions, a Special Medical Board comprising five medical experts on different subjects was constituted, and the report of this board is being examined with respect to the approximate age of the respondent., We have reached the conclusion that there is no cogent and convincing documentary evidence on record regarding the date of birth or age of the respondent accused on the date of the alleged crime; therefore, there is no good reason for us to ignore the medical report prepared by the Special Medical Board, which is on record. In such circumstances, the argument advanced on behalf of the respondent concerning the applicability of sub‑rule (3)(iii) of Rule 74 becomes insignificant. In other words, the contention that the Special Medical Board should not have been constituted is untenable because the board was constituted under the directions issued by the High Court., Let us see what the Supreme Court of India has said in the case of Darga Ram @ Gunga (supra), upon which strong reliance has been placed by the learned counsel appearing for the respondent accused. In Darga Ram @ Gunga (supra), the Supreme Court of India held that the medical opinion given by the duly constituted Board comprising Professors of Anatomy, Radiodiagnosis and Forensic Medicine determined the appellant's age to be about 33 years on the date of examination. The Board could not give the exact age despite advances in the field. Accordingly, under Rule 12(3)(b) the appellant may be entitled to the benefit of fixing his age on the lower side within a margin of one year if the Court considers it necessary. Even if the estimated age of 33 years is taken as the true age, the appellant would have been about 17 years and 2 months old on the date of the occurrence, thus a juvenile within the meaning of the Act. The Court observed that it was not comfortable with the Board estimating the age in a range of 30 to 36 years., The general rule about age determination is that the age as determined can vary plus or minus two years, but the Board in the present case spread the estimate over a period of six years and took a mean to fix the age at 33 years, which the Court questioned. The Court noted that even if the upper limit of 36 years were accepted, a variation of plus or minus two years could bring the age to 34 years, making the appellant 18 years, 2 months and 7 days on the date of the occurrence. The appellant could be entitled to an additional benefit of one year under Rule 12(3)(b), thereby reducing his age to 17 years and 2 months, qualifying him as a juvenile., The learned senior counsel for the appellant State submitted that Darga Ram @ Gunga (supra) was considered by the Supreme Court of India in the case of Mukarrab v. State of Uttar Pradesh (2017) 2 SCC 210, where the Court observed that age determination cannot be certainly ascertained in the absence of original and valid documentary proof, and there is always a possibility of variation of plus or minus two years. Even with medical opinion, the Court showed a tilt towards juvenility in the specific facts of that case, but cautioned against generalising that approach., The Supreme Court of India clarified that the observations in Darga Ram @ Gunga (supra) were rendered in the peculiar facts and circumstances of that case and could not be generalised. It is noted that Darga Ram @ Gunga (supra) was decided under the Juvenile Justice (Care and Protection of Children) Act, 2000. Section 7A of that Act reads: 'Procedure to be followed when claim of juvenility is raised before any Court (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be... (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub‑section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.', From a reading of Section 7A, it becomes obvious that whenever a claim of juvenility is raised, an inquiry must be made, taking evidence necessary but not an affidavit, to determine the age of the person. The procedure for age determination is provided under Rule 12(3)(b) of the Juvenile Justice Rules, 2007, which states that the age determination inquiry shall be conducted by the court, the Board or the Committee by seeking evidence such as (a)(i) the matriculation or equivalent certificates, if available; (ii) the date of birth certificate from the school first attended; (iii) the birth certificate given by a corporation, municipal authority or panchayat; and only in the absence of these documents, the medical opinion shall be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. If exact assessment cannot be done, the Court, Board or Committee may, for reasons recorded, give benefit to the child or juvenile by considering his/her age on the lower side within a margin of one year., Sub‑clause (3) of the aforesaid Rule clearly mandates that while conducting an inquiry about the juvenility of an accused, the Juvenile Justice Board shall seek evidence by obtaining the matriculation or equivalent certificates, and in their absence the date of birth certificate from the school first attended, and if that is also unavailable, the birth certificate given by a corporation, municipal authority or panchayat. Only when all three documents are absent may the Board request medical information or an ossification test. Thus, medical evidence is permissible only in the absence of the documentary evidence., The case of Mukarrab (supra) was also decided under the Juvenile Justice (Care and Protection of Children) Act, 2000. The Supreme Court of India then examined the decision in Ashwani Kumar Saxena (supra), where it observed that there may be situations where entries in matriculation or equivalent certificates, school birth certificates or municipal birth certificates may not be correct. However, the court, Juvenile Justice Board or a committee functioning under the Juvenile Justice Act is not expected to conduct a roving enquiry to examine the correctness of those documents unless they are found to be fabricated or manipulated, in which case medical report for age determination may be sought., The Supreme Court of India further observed that the procedure to be followed under the Juvenile Justice Act for conducting the inquiry is the procedure laid down in Rule 12 of the Juvenile Justice Rules, 2007, and that the age determination inquiry contemplated under the Act and the Rules has nothing to do with inquiries under other legislations such as entry in service, retirement or promotion. The Court held that where school certificates are available, the Court or the Juvenile Justice Board is not expected to go beyond those certificates to examine their correctness, and that the credibility and acceptability of the documents depend on the facts and circumstances of each case. No hard and fast rule can be laid down, and the documents should not be viewed as doubtful merely because parents may have entered an incorrect date of birth in admission registers., In Rishipal Singh Solanki v. State of Uttar Pradesh, (2022) 8 SCC 602, after considering earlier decisions such as Parag Bhati v. State of Uttar Pradesh, Sanjeev Kumar Gupta v. State of Uttar Pradesh, Abuzar Hossain @ Gulam Hossain v. State of West Bengal, Ashwani Kumar Saxena v. State of Madhya Pradesh, Babloo Pasi v. State of Jharkhand, Arnit Das v. State of Bihar, and Jitendra Ram alias Jitu v. State of Jharkhand, the Supreme Court of India pointed out the difference in procedure under the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Act, 2015 regarding the inquiry into determination of age of the juvenile and the power to seek evidence, when to exercise that power and when to resort to an ossification test. The Court held that each case may be dealt with in light of its own peculiar facts and circumstances while keeping certain principles as guiding factors., The Supreme Court of India noted the similarity between Rule 12 of the Juvenile Justice Rules, 2007 and sub‑section (2) of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, as substantive provisions. It referred to its decisions in Ashwani Kumar Saxena and Abuzar Hossain @ Gulam Hossain, highlighting that only when certificates are found to be fabricated or manipulated does the Juvenile Justice Board need to go for a medical report, and that the yardstick for relying on school certificates may differ where the certificate is obtained after conviction., The Court kept in mind the facts and circumstances attached to the production of documents or certificates as required by the provisions of the Juvenile Justice Act before those documents could be relied upon. Even if documents are prima facie correct, there may be circumstances that alert the Court to inquire further into the correctness of the claim. The Court also referred to an opinion that when a claim of juvenility is raised for the first time in appeal or revision and depends solely on affidavits, it shall not be sufficient to justify the inquiry for determination of age unless there exist circumstances which cannot be ignored., In Sanjeev Kumar Gupta (supra), the credibility and authenticity of the matriculation certificate for the purpose of age determination under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 was considered. The Juvenile Justice Board had rejected the claim of juvenility, and the Supreme Court of India restored that decision, observing that the records maintained by the Central Board of Secondary Education were based on the final list of students forwarded by the senior secondary school, and that there was clear evidence of date of birth recorded in the records of another school attended till class 4, supported by voluntary disclosure made by the accused while obtaining both the Aadhaar Card and driving licence. The Court held that the date of birth reflected in the matriculation certification could not be accepted as authentic or credible, and that the second respondent’s date of birth was 17 December 1995, making him not entitled to claim juvenility as the alleged incident occurred on 18 August 2015., The Supreme Court of India, while considering the judgments in Ashwani Kumar Saxena and Abuzar Hossain @ Gulam Hossain, reiterated that the credibility and acceptability of documents, including the school leaving certificate, depend on the facts and circumstances of each case and no hard and fast rule can be laid down. It reproduced its earlier observation that directing an enquiry is not the same as declaring the accused to be a juvenile; the standard of proof required for a declaration is higher., The Supreme Court of India, in Rishipal Singh Solanki, summarized the cumulative position of its judgments as follows: (i) a claim of juvenility may be raised at any stage of a criminal proceeding, even after final disposal; (ii) an application claiming juvenility may be made either before the Court or the Juvenile Justice Board; (iii) when the issue arises before a Court, it falls under sub‑section (2) and (3) of Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2015, whereas when before a Board, Section 94 of the 2015 Act applies; (iv) the burden of proof lies on the person raising the claim, but documents specified in Rule 12(3)(a)(i) to (iii) of the Juvenile Justice Rules, 2007, or under sub‑section (2) of Section 94 of the 2015 Act, shall be sufficient for prima facie satisfaction; (v) such presumption is not conclusive and may be rebutted by contrary evidence; (vi) the procedure of an inquiry by a Court is not the same as a declaration by a Juvenile Justice Board, and the standard of proof differs; (vii) there is no abstract formula for age determination; it must be based on material on record and appreciation of evidence; (viii) a hyper‑technical approach should not be adopted; (ix) where two views are possible, the Court should lean in favour of holding the accused to be a juvenile in borderline cases, while ensuring the Act is not misused; (x) evidence such as school records must be considered under Section 35 of the Indian Evidence Act, giving greater credibility to public or official documents; (xi) any document consonant with public documents, such as a matriculation certificate, may be accepted if credible and authentic; (xii) an ossification test cannot be the sole criterion for age determination, and medical opinion is only a useful guiding factor in the absence of documentary evidence., The Supreme Court of India, after referring to the fact that there was no other document contradicting the date of birth shown in the matriculation certificate, held that medical evidence was not required and upheld the order of the High Court affirming the judgment of the Sessions Court as well as the Juvenile Justice Board. Thus, the decisions relied upon by the learned counsel for the respondent accused do not assist the respondent; rather, the ratio of those decisions indicates that the credibility and acceptability of documents, including school leaving certificates, depend on the facts and circumstances of each case, and no hard and fast rule can be laid down., In Parag Bhati (supra), after referring to Abuzar Hossain case and other decisions, the Supreme Court of India held that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the Juvenile Justice Act. However, when an accused commits a grave and heinous offence and attempts to take statutory shelter by claiming minority, a casual approach to recording whether the accused is a juvenile cannot be permitted, as the courts must protect the confidence of the common man in the administration of justice. The benefit of the principle of benevolent legislation attached to the Juvenile Justice Act applies only where the accused is held to be a juvenile on the basis of at least prima facie evidence; otherwise, the claim cannot be used as a shield to evade the law., The Supreme Court of India, in several decisions including Ramdeo Chauhan alias Raj Nath, observed that the petitioner was neither a child nor near the age of a child within the meaning of the Juvenile Justice Act or the Children Act. He was proved to be a major at the time of the commission of the offence. No reasonable doubt was created in the mind of the Court to entitle the accused to a lesser punishment. The Court noted that the accused attempted to create a smokescreen regarding his age, but such efforts were aimed at hiding his real age rather than creating doubt. The judicial system cannot be allowed to be taken to ransom by imaginative and concocted grounds, and the law insists on finality of judgments and strengthening of the judicial system to maintain public confidence.
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The above‑noted observations in Ramdeo Chauhan alias Raj Nath (supra) no doubt were recorded by the learned Judges of the Supreme Court of India while considering the imposition of death sentence on the accused who claimed to be a juvenile; nevertheless the views expressed therein clearly lend weight for resolving an issue where the court is not in a position to clearly draw an inference wherein an attempt is made by the accused or his guardian claiming benefit available to a juvenile which may be an effort to extract sympathy and impress upon the court for a lenient treatment towards the so‑called juvenile accused who, in fact, was a major on the date of the incident. (See Om Prakash v. State of Rajasthan (2012) 5 SCC 201)., In Om Prakash (supra), the Supreme Court of India in paragraphs 33, 34, 35, 36, 37 and 38 replied as under: Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well‑planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law‑breakers and not the accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him. The benefit of benevolent legislation under the Juvenile Justice Act obviously will offer protection to a genuine child accused/juvenile who does not put the court into any dilemma as to whether he is a juvenile or not by adducing evidence in support of his plea of minority but in absence of the same, reliance placed merely on shaky evidence like the school admission register which is not proved or oral evidence based on conjectures leading to further ambiguity, cannot be relied upon in preference to the medical evidence for assessing the age of the accused. While considering the relevance and value of the medical evidence, the doctor's estimation of age although is not a sturdy substance for proof as it is only an opinion, such opinion based on scientific medical tests like ossification and radiological examination will have to be treated as strong evidence having corroborative value while determining the age of the alleged juvenile accused. In Ramdeo Chauhan alias Raj Nath v. State of Assam [(2001) 5 SCC 714 : 2001 SCC (Cri) 915], the learned Judges have added an insight for determination of this issue when they recorded as follows: (SCC p. 720 d‑e) Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where the court gropes in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered. The situation, however, would be different if the academic records are alleged to have been withheld deliberately to hide the age of the alleged juvenile and the authenticity of the medical evidence is under challenge at the instance of the prosecution. In that event, whether the medical evidence should be relied upon or not will obviously depend on the value of the evidence led by the contesting parties. In view of the aforesaid discussion and analysis based on the prevailing facts and circumstances of the case, we are of the view that Respondent 2 Vijay Kumar and his father have failed to prove that Respondent 2 was a minor at the time of commission of offence and hence could not have been granted the benefit of the Juvenile Justice Act which undoubtedly is a benevolent legislation but cannot be allowed to be availed of by an accused who has taken the plea of juvenility merely as an effort to hide his real age so as to create a doubt in the mind of the courts below who thought it appropriate to grant him the benefit of a juvenile merely by adopting the principle of benevolent legislation but missing its vital implication that although the Juvenile Justice Act by itself is a piece of benevolent legislation, the protection under the same cannot be made available to an accused who in fact is not a juvenile but seeks shelter merely by using it as a protective umbrella or statutory shield. We are under constraint to observe that this will have to be discouraged if the evidence and other materials on record fail to prove that the accused was a juvenile at the time of commission of the offence. The Juvenile Justice Act which is certainly meant to treat a child accused with care and sensitivity offering him a chance to reform and settle into the mainstream of society, the same cannot be allowed to be used as a ploy to dupe the course of justice while conducting the trial and treatment of heinous offences. This would clearly be treated as an effort to weaken the justice dispensation system and hence cannot be encouraged., Thus, it is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor on the date of the incident and the documentary evidence at least prima facie establishes the same, he would be entitled to the special protection under the Juvenile Justice Act. However, when an accused commits a heinous and grave crime like the one on hand and thereafter attempts to take the statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of a common man in the institution entrusted with the administration of justice. As observed by the Supreme Court of India in Parag Bhati (supra), the benefit of the principle of benevolent legislation attached to the Juvenile Justice Act would thus be extended to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence inspiring confidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he is alleged to have committed and gave effect to it in a well‑planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue., It appears from the material on record that the father of the respondent, at the time of preferring the application under Section 19(3) of the Registration of Birth and Deaths Act, 1956 read with Section 19(3) of the Rules, declared before the Executive Officer Municipal Committee, Hira Nagar that the medical committee, Hira Nagar had failed to record the birth of his three children including the respondent herein and in such circumstances he sought an order from the authority concerned as regards the date and place of birth under Section 19(3) of the Act, 1956. However, the letter dated 15.03.2018 addressed by the Block Medical Officer of the Health and Family Welfare, Hira Nagar to the Superintendent of Police, Jammu stating that no delivery in the name of Smt. Tripta Devi, wife of Om Prakash had taken place on 23.10.2002 at the municipal hospital makes the picture abundantly clear., There is no good reason why we should overlook or ignore or doubt the credibility of the final opinion given by a team of five qualified doctors, one from the Department of Physiology, one from the Department of Anatomy, one from the Department of Oral Diagnosis, one from the Department of Forensic Medicine and one from the Department of Radiodiagnosis, all saying in one word that on the basis of the physical, dental and radiological examination, the approximate age of the respondent could be fixed between 19 and 23 years., We may only add that there are better techniques available and are used for determination of age across the world. For example, the United States Immigration Department uses the wisdom teeth technique for determination of age. Under this technique, the doctors examine the third molar which usually erupts between 17 to 25 years of age. The average error in this technique is also significantly lower than the ossification of any other bone. Another technique is the epigenetic clock technique. The epigenetic clock is a DNA clock which measures DNA methylation levels to estimate the age of a tissue or an organ. The median error in this technique can be reduced to less than four weeks. What we are trying to convey is that such techniques should be introduced in our country as well. (Reference: Shamin T, Age Estimation: A Dental Approach, Journal of Punjab Academy of Forensic Medicine & Toxicology, Vol. 6 Issue 1.), As observed by the Supreme Court of India in Ramdeo Chauhan alias Raj Nath (supra), the medical expert’s estimate of age may not be a statutory substitute for proof and is only an opinion but such opinion of an expert should not be brushed aside or ignored when the Court itself is in doubt in regard to the age of a citizen claiming constitutional protection. In the absence of all other acceptable materials, if such opinion of the experts points to a reasonable possibility regarding the range of his age, the Court must consider the same in the interest of justice. This is not a case wherein the appellant State has been accused of deliberately withholding the necessary records only with a view to hide or conceal the age of the alleged juvenile and the authenticity of the medical evidence is challenged at the instance of the prosecution. If such would have been the case then whether the medical evidence should be relied upon or not would obviously depend on the value of the evidence that may be led by the contesting parties., It is pertinent to note that nothing much has been said on behalf of the respondent accused in regard to the credibility of the medical report prepared by the Special Medical Board consisting of five medical experts. At the cost of repetition, the only argument is that the medical report should be ignored as there is proof of the date of birth to be found in the various documents on record. We have made ourselves very clear that the documents evidencing date of birth do not inspire any confidence and there is no other option but to fall back on the report of the Special Medical Board in the interest of justice., In the overall view of the matter, we are convinced that the order passed by the High Court affirming the Chief Judicial Magistrate's order is not sustainable in law., Before we close this matter, we would like to observe that the rising rate of juvenile delinquency in India is a matter of concern and requires immediate attention. There is a school of thought in our country that firmly believes that however heinous the crime may be, be it single rape, gang rape, drug peddling or murder, if the accused is a juvenile, he should be dealt with keeping in mind only one thing i.e., the goal of reformation. The school of thought we are taking about believes that the goal of reformation is ideal. The manner in which brutal and heinous crimes have been committed over a period of time by juveniles and still continue to be committed makes us wonder whether the Act, 2015 has subserved its object. We have started gathering an impression that the leniency with which juveniles are dealt with in the name of the goal of reformation is making them more and more emboldened in indulging in such heinous crimes. It is for the Government to consider whether its enactment of 2015 has proved to be effective or something still needs to be done in the matter before it is too late., In the result, this appeal succeeds and is hereby allowed. The impugned order passed by the Chief Judicial Magistrate, Kathua and the High Court is set aside. It is held that the respondent accused was not a juvenile at the time of commission of the offence and should be tried the way other co‑accused were tried in accordance with the law. Law to take its own course., It is needless to clarify that the guilt or the innocence of the respondent accused shall be determined strictly on the basis of the evidence that may be led by the prosecution and the defence at the time of the trial. All observations made in this judgment are meant only for the purpose of deciding the issue of juvenility., Pending application, if any, also stands disposed of.
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WP.No.181 of 2021 & WM P.Nos.245 & 248 of 2021. If the allegations made in the affidavit filed in support of the petition were to be accepted on their face value, then it only exposes the callousness with which the authorities in this district deal with the right to properties of the citizens., Some 16 years back, to be precise on 30 December 2004, a notification under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 was issued for acquiring the lands of the petitioners. This was challenged by the petitioners in a batch of two writ petitions, Writ Petition Nos. 4483 and 6247 of 2006. On 29 September 2010, these writ petitions were allowed by the Madras High Court. Indeed, in paragraph 15 of the order, the Madras High Court provided legal advice to the State Government and concerned authorities to go for fresh acquisition following the due process of law. Unfortunately, to date it has not been done. In the meantime, the petitioner has been running from pillar to post to have their properties re‑mutated in their names, which was of no avail. Hence, the petitioners have approached the Madras High Court with this writ petition., To continue with the opening line, if these allegations were true then it only displays the apathy with which the authorities deal with the right to property of the citizens of this country. They need to be told that the right to property has a close nexus to the right to life within the meaning of Article 21 of the Constitution of India. By their action and inaction, they have denied the right of these citizens for at least ten years, and to that extent, they have transgressed the quality of life of the citizens of this country within the meaning of Article 21 of the Constitution of India., Mr. D. Raja, learned Additional Government Pleader, takes notice for the respondents. He is now required to make a statement as to the correctness of the allegations made., The matter is posted on 11 January 2021 under the caption 'for orders'. The Registry is directed to upload the order copy on the official website on 8 January 2021.
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The instant petition under Articles 226 and 227 of the Constitution of India has been filed on behalf of the petitioner praying for the following reliefs: to set aside the order dated 04.03.2020 along with the Auditor memo No. 08 dated 20.01.2020; to direct the respondent to pay the complete salary along with the arrears and increments to the petitioner in accordance with law; to direct the respondent to refund the deducted amount vide the impugned order as per Annexure P1 (Colly); and to pass any such other further order or orders as the Delhi High Court may deem fit and proper in the circumstances of the case., The petitioner was employed with Bharati College, University of Delhi (hereinafter respondent College) at the post of Assistant Professor., The respondent College, vide letter dated 9th March 2018, intimated the petitioner that he was being sent on leave with effect from 6th February 2018 since the College's Internal Complaint Committee had received several complaints of sexual harassment against the petitioner., Further, vide letter dated 2nd May 2018 the petitioner's forced leave was extended by a month, i.e., with effect from 6th May 2018 to 5th June 2018 on the ground that the inquiry against the petitioner was incomplete., On 9th June 2018, a meeting convened by the Governing Body of the respondent College (hereinafter Governing Body) recommended that the petitioner would be suspended from his services with immediate effect., Meanwhile, on 20th August 2018 the Internal Complaint Committee submitted its enquiry report and recommendations to the Governing Body for further approval, pursuant to which, in a meeting held by the Governing Body on 6th October 2018 it recommended compulsory retirement of the petitioner from the services of the respondent College and the said recommendation was upheld in a meeting convened by the Governing Body on 29th October 2018., In the interim, the petitioner sought a no‑objection certificate from the respondent College in order to apply for jobs as vacancies had arisen at different educational institutions, and however, there was no response to the same., Vide Audit Memo bearing No. 8 dated 20th January 2020, issued by Audit Party III (hereinafter audit memo), the principal of the respondent College informed the petitioner that the Governing Body had recommended his suspension with effect from 9th June 2018; however, the record of the respondent College revealed that the petitioner had been paid full salary till date and on the basis of Fundamental Rule, Chapter VIII, Fundamental Rule 53 (1) (a) (hereinafter FR 53) an overpayment amounting to Rs. 6,42,131/- had been made to the petitioner which had to be verified from the record., Subsequently, vide letter dated 4th March 2020 the petitioner was apprised that as per the aforesaid audit objections, the overpaid amount of Rs. 6,42,131/- has to be recovered from the petitioner and accordingly, the petitioner was directed to deposit the same at the earliest and was informed that he was only entitled to receive the subsistence allowance from the month of February., The petitioner submitted his reply to the aforesaid letter dated 6th May 2020, thereby seeking the withdrawal of the letter dated 4th March 2020; full salary for the month of February 2020 and payment of increments along with the arrears of pay and allowance., Pursuant to the same, the petitioner made several representations requesting the respondent College to permit him to rejoin his duties and further requested that he is entitled to his monthly salary along with arrears and increments as there was neither any sanctioned suspension nor any punishment awarded to him by any authority., Subsequently, vide letter dated 14th May 2020, the Acting Principal of the respondent College responded to the representations made by the petitioner specifically addressing the query related to the payment of salary, thereby advising the petitioner to comply with the instructions communicated to him vide letter dated 4th March 2020 and to deposit the overpaid amount of Rs. 6,42,131/- in favour of the respondent College., Thereafter, vide letter dated 18th December 2020, the Vice Chancellor of the University approved the decision of the Governing Body, i.e., sanctioning compulsory retirement of the petitioner from the services, on the basis of Clause 7 of Annexure to Ordinance XII read with Clause 7 (9) of Ordinance XVII of the University of Delhi, Act, Statutes and Ordinances, 2004 (hereinafter the Act)., Pursuant to the aforesaid approval, the same was communicated to the petitioner vide letter dated 23rd December 2020 and the petitioner's services stood compulsorily retired with effect from 18th December 2020., Aggrieved by the orders dated 20th January 2020 and 4th March 2020, the petitioner has preferred the instant petition., Learned counsel appearing on behalf of the petitioner submitted that the action of the respondent College is arbitrary in nature and is violative of the petitioner's legal rights., It is submitted that the directions issued to the petitioner by way of the audit memo, to deposit a sum of Rs. 6,42,131/- has been passed without any valid reasoning and the said direction of depositing the overpaid amount is illegal and not applicable to the case of the petitioner., It is submitted that on 6th February 2018 there was no complaint against the petitioner and the order recommending forced leave of the petitioner was issued on 9th May 2018; however, the petitioner was sent on forced leave with effect from 6th February 2018., It is submitted that vide letter dated 2nd May 2018 the forced leave recommended to the petitioner was extended till the date the Internal Complaint Committee submitted its report and the petitioner raised questions in respect of the alleged inquiry and showcased his willingness to rejoin his duties at the respondent College during the pendency of the said inquiry., It is also submitted that the audit memo refers to Fundamental Rule 53 (1) (a), which specifically deals with the subsistence allowances to be paid to government employees placed under suspension; however, the said provision is not applicable to the case of the petitioner as he was never placed under suspension by the concerned authority. The audit memo has wrongly quoted FR 53 (1) (a) and no such provision is applicable to the petitioner., It is submitted that even though there were certain complaints made against the petitioner in February 2018, he was never placed under suspension or deemed suspension and therefore FR 53 is not applicable to the case of the petitioner and the recovery sought from the petitioner is not in accordance with the law., It is further submitted that despite several objections raised by the petitioner with regard to the direction issued by the respondent regarding recovery of the alleged overpaid amount, the respondent College did not stop the deductions from the salary of the petitioner., It is submitted that as per the official record of the Governing Body, the petitioner's suspension was merely recommended; however, the said suspension was never authorised by the concerned authority., It is also submitted that as per the enquiry report dated 28th August 2018 issued by the Internal Complaint Committee, which recommended the petitioner's suspension to the Governing Body, it is evident that the authority concerned did not arrive at a final decision vis‑vis the suspension of the petitioner and no order had been passed sanctioning any suspension of the petitioner., It is further submitted that the audit memo was a mere repercussion of the fact that the petitioner demanded a no‑objection certificate from the respondent College in order to apply for teaching positions at various educational institutes., It is further submitted that as per the Act, the Appointing Authority is the Vice Chancellor and no order was passed by the Vice Chancellor with regard to the petitioner's suspension and therefore, FR 53 is not applicable to the case of the petitioner., It is also submitted that the petitioner is entitled to full salary as per law and not only the subsistence allowance., In view of the foregoing submissions, it is prayed that the instant petition may be allowed and the reliefs as prayed for may be granted., Per contra, learned counsel appearing for the respondent College vehemently opposed the instant petition submitting that the acts of the respondent College are in accordance with the law and there is no arbitrariness of any kind thereto which makes the petition liable to be dismissed being devoid of any merits., It is submitted that the respondent College had received various complaints of sexual harassment against the petitioner and thus, the matter was referred to the Internal Complaint Committee of the College, which in turn recommended that the petitioner should be restrained from entering the college premises., It is submitted that the aforesaid recommendation was placed before the Governing Body in its meeting held on 7th March 2018 and the convener of the Internal Complaint Committee, namely Ms. Shobhana Sinha attended the meeting and shared that several students had expressed a sense of anger and insecurity due to the presence of the petitioner and gave representations to that effect., It is also submitted that the petitioner himself expressed feeling unsafe in the college premises and, keeping in mind the gravity of the situation and the unrest among the students at the respondent College, the Governing Body directed that the petitioner be placed on forced leave from 6th February 2018 till 9th June 2018 or till the Internal Complaint Committee submits its final report, whichever is earlier., It is submitted that the petitioner has not been taking classes since 6th February 2018 and an alternate guest lecturer has been appointed to take classes in place of the petitioner., It is further submitted that on the basis of the complaints received against the petitioner, the Governing Body in its meeting held on 9th June 2018 recommended that the petitioner may be suspended from services with immediate effect and the said recommendation was sent to the University of Delhi for the approval of the Vice Chancellor vide letter bearing No. BC/2018/462 dated 11th June 2018, and the same has been appended as Annexure III to the instant petition., It is submitted that subsequent to the Internal Complaint Committee's submission of its enquiry report, the petitioner was afforded an opportunity to present his case before the Governing Body and it was only after hearing the petitioner at length that the Governing Body accepted the ICC's report and unanimously endorsed its recommendation for the petitioner's compulsory retirement., It is submitted that the respondent College sent almost 22 reminders to Delhi University, thereby requesting them to expedite the approval of the petitioner's suspension; however, the University failed to provide any response to the same., It is further submitted that even though the respondent College has made several representations to the University seeking clarity with regard to the petitioner's salary, there has been no response at the hands of the University., It is submitted that during the pendency of the aforesaid approval from the University, the Government of National Capital Territory of Delhi conducted an internal audit in the respondent College and the auditor raised an objection regarding the petitioner receiving full salary. The auditor further directed the respondent College to pay only subsistence allowance to the petitioner and recover the amount overpaid to the petitioner in the past., It is also submitted that the aforesaid audit objection was placed before the Treasurer of the Governing Body which in turn decided to proceed as per the audit objections and to pay only the subsistence allowance to the petitioner and, in view of the same, the respondent College issued letter dated 4th March 2020 thereby initiating the process to recover the overpaid amount of Rs. 6,42,131/- from the petitioner., It is further submitted that the suspension as well as the compulsory retirement of the petitioner has been recommended by the Governing Body, which is the Appointing and Disciplinary Authority of the respondent College., It is submitted that the petitioner is bound by the audit objections raised by the Government of National Capital Territory of Delhi, which is the funding authority of the respondent College and hence the respondent College is bound to comply with the observations made by the auditor., It is submitted that the respondent College kept releasing full salary (minus Travel Allowance/Dearness Allowance) to the petitioner as per the rules. The respondent College wrote to the University stating clearly that this situation is creating serious financial implications for the college as the petitioner only has three years of permanent service in the college and if some recovery is required to be made from the amount already disbursed to him it would create a strained situation for the respondent., It is submitted that it was only due to non‑communication and pending approvals from the University that the petitioner was being paid the full salary., It is further submitted that as per Clause 7 of Ordinance XII, the petitioner cannot be terminated or suspended without the prior approval of the Vice Chancellor and the respondent College has made several representations to the Vice Chancellor with regard to the petitioner's case; however, there was no response to the same., It is also submitted that the petitioner is not entitled to annual increments as he is on forced leave and his suspension has been approved and recommended by the Governing Body since 6th February 2018. Moreover, an increment is an incidence of employment and only an employed individual can reap the benefit of the same., It is further submitted that the disciplinary proceedings against the petitioner have been completed and the punishment of compulsory retirement has been awarded to the petitioner by the Governing Body which is pending approval from the University; moreover, till the time the same is decided or concluded by the University, no decision with respect to the payment of increment can be taken as that would decide whether the period when the petitioner was on forced leave would be treated as on duty or not. The aforesaid has been settled by the Courts in cases titled Chander Sekhar v. Union of India, SCC OnLine Del 7013; Union of India v. Devi Krishan Sharma, SCC OnLine Del 13382; and State of Punjab v. Jagwant Singh., It is submitted that the petitioner cannot be granted a no‑objection certificate since the respondent is not in a position to issue any such certificate as the petitioner has not worked, i.e., taken any classes since 6th February 2018., It is further submitted that there are serious allegations of sexual harassment against the petitioner which have been upheld by the Internal Complaint Committee and approved by the Governing Body and, in light of the same, the petitioner is not entitled to any such certificate., In view of the foregoing submission, it is prayed that the instant petition may be dismissed, being devoid of any merits., Heard the parties and perused the record., The crux of the petitioner's grievance lies in the fact that pursuant to allegations of sexual harassment, the petitioner was recommended for a forced leave. Subsequently, the petitioner's forced leave was extended and ultimately was termed to be compulsory retirement. It has been contended that the aforesaid suspension was a mere recommendation on the basis of the enquiry report submitted by the Internal Complaint Committee to the Governing Body, which in turn upheld the said report and the petitioner was compulsorily retired from the services. Consequently, an audit was conducted by the Government of Delhi and as per the observations made by the auditor, the full salary being disbursed to the petitioner was brought to the notice of the respondent College. By way of the audit memo, it was alleged by the College that an amount of Rs. 6,42,131/- had been overpaid to the petitioner and the same was to be recovered from him. It has also been contended that the said audit memo bears certain errors pertaining to FR 53 being quoted incorrectly, since the same is applicable only in the event that the individual has been placed under suspension, however, the petitioner's suspension was never approved by the Vice Chancellor and therefore, the respondent College cannot ask the petitioner to deposit a sum of Rs. 6,42,131/- which has been paid to him during the period the petitioner was deemed to be on forced leave., In rival submissions, it has been contended that serious complaints alleging sexual harassment were made against the petitioner, as a result of which the respondent College was constrained to place the petitioner on forced leave as recommended by the Internal Complaint Committee. Subsequent to the ICC submitting its enquiry report, the matter was referred to the Governing Body for further adjudication. Subsequently, the Governing Body upheld the enquiry report as submitted by the ICC and the petitioner was recommended to be retired compulsorily from the services of the respondent College. It has been contended that the respondent College time and again reached out to the University in order to expedite the process of approval of the petitioner's suspension; however, even after 25 representations, the University failed to respond to the respondent College vis‑vis the status of the petitioner's suspension being approved. It has also been contended that the audit had been conducted by the Government of National Capital Territory of Delhi and the respondent College's hands were tied with regard to the overpaid amount being recovered from the petitioner since the said direction was issued directly by the State and the respondent College is bound to comply with the same. Moreover, the respondent College has made several representations to the University, thereby seeking clarity regarding the salary of the petitioner and whether he would be entitled to subsistence allowance or full salary and therefore, the respondent College cannot take any decision with respect to the payment of increment as it would decide whether the period when the petitioner was on forced leave would be treated as on duty., Bearing in mind the aforesaid facts and submissions, this Court will now adjudicate the instant petition limited to the following issues: (i) whether the order dated 4th March 2020 and the audit memo dated 20th January 2020 suffer from any illegality? (ii) whether the petitioner is entitled to receive full salary and increments?, In order to adjudicate the first issue i.e., whether the order dated 4th March 2020 and the audit memo dated 20th January 2020 suffer from any illegality, it is apposite for this Court to reproduce the aforesaid orders. The relevant portion of the order dated 4th March 2020 has been reproduced hereunder: Dear Dr. Amit Kumar, In response to your communications regarding salary, this is to inform you that as per Audit Objections raised by Audit Party No. III, Government of National Capital Territory of Delhi (Copy enclosed): 1) An over payment amounting to Rs. 6,42,131/- is recoverable. 2) You will get only subsistence allowance. The approval has been taken from the Competent Authority of the College; you will get only subsistence allowance from the month of February 2020. You are also required to deposit the amount of Rs. 6,42,131/- to the College as per the audit objections at the earliest., The aforesaid order was issued in pursuance to the internal audit conducted by Audit Party No. III, Government of National Capital Territory of Delhi, by way of which it was disclosed by the auditor that an amount of Rs. 6,42,131/- had been overpaid to the petitioner and additionally that the petitioner was only entitled to receive subsistence allowance commencing from February 2020, since he was on recommended suspension., It is now appropriate to analyse audit memo No. 08 dated 29th January 2020 issued by the Directorate of Audit, Government of National Capital Territory of Delhi. The relevant portion of the said audit memo has been reproduced herein: Subject: Irregular payment in respect of Dr. Amit Kumar under suspension. As per reply of the record memo, the Governing Body of the college had decided to recommend suspension in respect of Mr. Amit Kumar, Assistant Professor (Physical Science) w.e.f. 09.06.2018. But as per records till date full amount of salary is released. However as per FR 53(1)(a) a subsistence allowance at an amount equal to leave salary which the government servant would have drawn, if he had been on leave on half average pay or on half pay and in addition DA if admissible on the basis of such leave salary. Hence w.e.f. 09.06.2018 till 31st Dec. 2019 an overpayment of amounting Rs. 6,42,131/- (Due drawn statement enclosed) has been made and which is also accumulating every month. Reasons for above discrepancies may be elucidated to Audit. The recovery of Rs. 6,42,131/- may be made from the concerned staff under intimation to audit after due verification from the record., The aforesaid audit memo essentially states that the Governing Body of the respondent College had recommended that the petitioner may be placed under suspension w.e.f. 9th June 2018. It further noted that as per the records of the respondent College, the full amount of salary had been released to the petitioner till the date of issuance of the said audit memo. It also states that as per FR 53 (1) (a), any government servant who is under suspension or deemed suspension shall be paid a subsistence allowance at an amount equal to the leave salary which the government servant would have drawn, if he had been on leave on half average pay or on half pay and in addition to the dearness allowance, and the same should be paid only in the event wherein the period of suspension exceeds three months. Therefore an amount of Rs. 6,42,131/- was considered to be overpaid to the petitioner and the same was directed to be recovered from him., Pertinently, the primary grievance of the petitioner is that he was never placed under suspension; however, the audit memo seeking recovery of the overpaid amount of Rs. 6,42,131/- was issued to him., At this juncture, it becomes imperative for this Court to analyse the term suspension. In layman terms, the word suspension can be defined as not being allowed to do your job for a period of time, usually as a form of punishment. The law recognizes three types of suspension, firstly as a punitive measure for public servants, secondly during an ongoing inquiry if specified by the appointment order or statutory regulations, and a situation where a servant is prohibited from performing duties during an inquiry, termed as suspension. The authority to suspend for disciplinary reasons or during an inquiry is guided by employment contracts or service conditions. Thirdly it involves the master preventing the servant from work under the contract while maintaining the master's obligations, essentially allowing the servant to refrain from service while fulfilling the contractual commitments., In the present case, the petitioner was recommended to be placed under suspension in light of the complaints of sexual harassment received against him. Additionally, vide letter dated 9th March 2018, the respondent College clearly intimated to the petitioner that he would be placed under forced leave with effect from 6th February 2018 to ensure a conducive environment of safety and protection to the complainant as well as other women students studying at the respondent College and, in light of the same, the Internal Complaint Committee recommended that the College has to take immediate steps to restrain the petitioner from entering the college premises during the pendency of the proceedings against him. However, the recommended suspension was not approved by the Vice Chancellor as on the date of issuance of the letter dated 4th March 2020. As per the documents on record, it is evident that the petitioner's suspension was only approved by the Vice Chancellor on 18th December 2020., At this stage, it is imperative to analyse the letter dated 18th December 2020 whereby the petitioner's suspension was approved by the Vice Chancellor of the University of Delhi. The relevant portion of the aforesaid letter has been reproduced herein: The Principal, Bharati College, C‑4, Janakpuri, New Delhi‑110058. Madam, With reference to your letter No. BC/2019/653 dated 10.06.2019, I am directed to inform you that the Vice Chancellor has approved the decision taken by the Governing Body in its meeting held on 29.10.2018 for compulsory retirement of Dr. Amit Kumar in terms of Clause 7 of annexure to Ordinance XII read with Clause 7(9) of Ordinance XVIII of the University. Yours faithfully, Joint Registrar (Colleges)., Insofar as the issue pertaining to suspension is concerned, it is apposite for this Court to analyse the settled law along with the provisions governing suspension as provided under the Act., The law with regard to the appropriate body's approval vis‑à‑vis suspension has been reiterated time and again by different Courts. In the case titled Superintendent of Police, Manipur and Ors. v. R.K. Tomalsana Singh (Dead) By LRs, AIR 1984 SC 535, the Honorable Supreme Court dealt with the fact that in the event the statute mandates prior approval or sanction, the concerned governing body must obtain prior approval before implementing the suspension., The aforesaid judgment essentially states that it is a well‑established principle of law that if the provisions of a particular rule or a statute require an act to be done in a certain manner, then the said act is to be done in that manner or not done at all. Therefore, when there is no power with the governing body to suspend a person and prior approval of the Vice Chancellor is needed for this purpose, there cannot be said to be any power with the governing body to force a person to go on leave and not to take work from him/her which has the effect of ‘suspending the person’., At this juncture, it is necessary to analyse Clause 7 of Ordinance XII‑A, which governs the suspension as provided under the Act. The said ordinance has been reproduced hereunder: 7. The question of termination of the services of the Principal/Teacher or his suspension shall not be decided by the College/Institution without the prior approval of the Vice‑Chancellor.
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In the backdrop of the facts, the settled law as well as the statute governing the present petition, it is crystal clear that an individual will only be suspended when the approval for the said suspension has been granted by the Vice‑Chancellor. The Governing Body may only recommend the suspension of the individual, but the ultimate approval must be granted by the Vice‑Chancellor for the suspension to come into effect., In the instant petition, the petitioner was placed under forced leave due to certain allegations of sexual harassment against him. Evidently, the petitioner’s suspension only stood to be recommended and was not sanctioned by the Vice‑Chancellor till the audit was conducted and the recovery of the overpaid amount demanded from him., Therefore, the Supreme Court of India is of the view that since the petitioner’s suspension was only approved on 18 December 2020, any amount overpaid to him prior to that cannot be recovered as the petitioner was never suspended., Inasmuch as the issue pertaining to subsistence allowance to be paid to the petitioner as per the audit memo is concerned, it is well settled that the concept of subsistence allowance refers to the salary provided to an employee placed under suspension to support themselves. This allowance is lower than the employee’s entitled salary and carries a distinct penal importance. The principle has been reiterated by the Supreme Court of India in the case titled M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679. The relevant paragraph of the judgment is reproduced herein: When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nickname of subsistence allowance, so that the employee may sustain himself. An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance generally called subsistence allowance which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental enquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression subsistence allowance has an undeniable penal significance. The dictionary meaning of the word subsist as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is to remain alive as on food; to continue to exist. Subsistence means of supporting life specially a minimum livelihood., This Court discerns that firstly, the petitioner’s suspension was only recommended on 4 March 2020, that is, the date of issuance of the order for recovery of the overpaid amount of Rupees six lakh forty‑two thousand one hundred thirty‑one from the petitioner. Secondly, as per Clause 7 of Ordinance XII‑A, it is necessary for the Vice‑Chancellor to approve such recommended suspension and the same decision cannot be taken solely by the Governing Body. The Governing Body acts only as a recommending authority and is not the appropriate authority for approving such suspensions., As already noted above, it is well settled that when there is no power with the governing body to suspend a person and prior approval of the Vice‑Chancellor is required, there cannot be any power with the governing body to force a person to go on leave which has the effect of suspending the person., In light of the aforesaid discussions of law and facts, it is evident that since the petitioner’s suspension was not approved by the Vice‑Chancellor as on the date of issuance of the audit memo dated 20 January 2020 and the subsequent letter dated 4 March 2020, the respondent college is not authorized to recover the overpaid amount of Rupees six lakh forty‑two thousand one hundred thirty‑one from the petitioner., It was only after the Vice‑Chancellor’s approval, that is, 18 December 2020, that the petitioner’s suspension was approved and any amount paid to him prior to that cannot be recovered from him. Additionally, as per the audit memo, the respondent college was directed to pay the petitioner subsistence allowance; however, the petitioner’s suspension was not approved till 18 December 2020 and therefore the question of payment of subsistence allowance to the petitioner does not arise prior to that date., Accordingly, issue (i) stands decided in favour of the petitioner., Now adverting to issue (ii), that is, whether the petitioner is entitled to receive full salary and increments? Insofar as issue (ii) is concerned, it is evident that the petitioner is seeking full salary as well as certain increments. The respondent college contends that as per Clause 19.1 of the notification dated 18 July 2018 issued by the University Grants Commission, all the advance increments are non‑compounding implying that additional qualifications do not entitle any individual to additional increments and that only the highest qualification at the time of entry shall be considered., It is also pertinent to note that in light of the aforesaid notification, the petitioner was granted increments at the time of his appointment. Since the petitioner held M. Phil and Ph.D. degrees, the increments were extended to him in accordance with his higher qualification, i.e., the Ph.D. degree. Evidently, any increments thereto cannot be compounded; hence two non‑compounding advance increments on account of holding M.Phil degree are not admissible to the five non‑compounding advance increments for holding Ph.D. degree., With regard to Travel Allowance (TA) it has been contended that the allowance is only applicable to employees who have attended the college for at least one day in a calendar month and the petitioner has been paid the allowance up to the time he attended the office. Additionally, it has been stated that the petitioner’s double TA from October 2017 along with arrears was paid to him together with his salary in November 2017 and thereafter double TA of Rupees six thousand four hundred has been paid continuously with his salary till he attended college, that is, 6 February 2018., At this stage, it is apposite for the Supreme Court of India to analyse the notification dated 18 July 2018 issued by the University Grants Commission. The relevant portion is reproduced hereunder: 19.0 Other Terms and Conditions 19.1 Incentives for Ph.D./M.Phil. and other Higher Qualification i. Five non‑compounded advance increments shall be admissible at the entry level of recruitment as Assistant Professor to persons possessing the degrees of Ph.D. awarded in a relevant discipline by the University following the process of admission, registration, course work and external evaluation as prescribed by the University Grants Commission. ii. M.Phil degree holders at the time of recruitment to the post of Assistant Professor shall be entitled to two non‑compounded advance increments. iii. Those possessing postgraduate degree in the professional course such as LL.M., M.Tech., M.Arch., M.E., M.V.Sc., M.D., etc., recognized by the relevant statutory body/council, shall also be entitled to two non‑compounded advance increments at the entry level., As per the documents placed on record by the respondent college, the petitioner has been paid his dues in terms of increments and the same has been appended as Annexure CM‑1 and RAA‑2. Upon perusal, it is evident that all dues of the petitioner have been cleared up to February 2018 and since the petitioner’s forced leave commenced post February 2018, the petitioner was not entitled to any Travel Allowance or Dearness Allowance, etc., It is also evident that five non‑compounding advance increments had been extended to the petitioner at the time of his appointment since he already possessed M.Phil. and Ph.D. degrees. Moreover, as per the Office Memorandum dated 7 July 2017 issued by the Ministry of Finance, Government of India, it has been clearly stipulated that Travel Allowance is not admissible to an individual who is on leave or during suspension; hence any question pertaining to payment of TA to the petitioner does not arise., Summarily, it can be stated that the petitioner has been paid his dues as on February 2018, that is, the date on which his forced leave commenced. Since all the dues of the petitioner have been cleared as on February 2018, therefore, nothing survives for adjudication with regard to this issue., Accordingly, issue (ii) stands decided., As has been discussed in the foregoing paragraphs, the petitioner has challenged recovery of the overpaid amount of Rupees six lakh forty‑two thousand one hundred thirty‑one as well as increments due to him. Even though the petitioner has not challenged his termination, it is imperative for the Supreme Court of India to bring to light the fact that the allegations against the petitioner were of serious nature. The relationship between students and teachers dates back to the Vedas and runs through every epic that has overcome evil. Such a relationship is that of knowledge and devotion. A relationship between a student and a teacher is one of the most pious relationships in the world. A teacher is not only a person who teaches in a classroom but one who encourages and inspires the students to become a holistic person. Teachers are gifted with the power to impart wisdom and shape the minds of children who are the future, and it is imperative that such power is not misused. As a society, it is important to understand that parents of such students send their children away from their homes in the hope that their children would be in a safe and conducive environment under the guidance of their teachers; however, the act of sexual harassment by teachers has witnessed a widespread occurrence which is a serious offence and abuse of a position of power., In light of the aforementioned facts and legal principles, the Supreme Court of India is of the opinion that the respondent college cannot recover the overpaid amount of Rupees six lakh forty‑two thousand one hundred thirty‑one from the petitioner since the same had been paid to him prior to his suspension being approved by the Vice‑Chancellor., Additionally, there is a prescribed process which is to be followed in such cases, which clearly establishes the fact that the Governing Body is merely a recommending authority and the final approval must be provided by the Vice‑Chancellor of the University. The absence of such approval evidently makes the suspension void and, if the approval is granted at a later stage, the suspension would commence from the date on which such approval is granted. The petitioner may be granted subsistence allowance from 18 December 2020, that is, the date on which his suspension was approved by the Vice‑Chancellor, and the amount of Rupees six lakh forty‑two thousand one hundred thirty‑one cannot be recovered from him since the same was paid prior to his suspension being approved., Furthermore, the issue pertaining to the grant of full salary and payment of increments is concerned, this Court is of the view that as per the documents on record, it is evident that the same has been paid to the petitioner as on February 2018, and pertinently, the petitioner is not entitled to receive any Travel Allowance since the petitioner had been on forced leave since February 2018 and Travel Allowance is only granted to individuals who have attended college for one day in a calendar month., Moreover, as already observed in the foregoing paragraphs and according to the guidelines issued by the University Grants Commission, any individual who is on leave or under suspension cannot be granted Travel Allowance as per the rules governing individuals employed by the colleges under the University Grants Commission. Insofar as the grant of increments is concerned, as per the documents on record, it is evident that the petitioner has been granted the mandated increments at the time of his joining., Accordingly, the order dated 4 March 2020 and audit memo dated 20 January 2020 are set aside and it is directed that the amount declared as overpaid is not to be recovered from the petitioner; however, the petitioner is not entitled to the increments as prayed for in prayer b., In view of the aforesaid terms, the instant petition stands partly allowed, only to the extent of prayer (a) whereby the amount overpaid to the petitioner cannot be recovered since at the time the audit memo dated 20 January 2020 and subsequent letter dated 4 March 2020 were issued, the petitioner’s suspension was not approved by the Vice‑Chancellor., Accordingly, the instant writ petition stands disposed of along with pending applications, if any.
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W.P (MD) No. 21747 of 2022 Arulmigu Kalasalingam College of Education, represented by the Secretary Dr. K. Sridharan, Petitioner versus 1. The Appeal Committee, National Council for Teacher Education, represented by its Chairperson, G‑7, Sector 10, Dwarka, New Delhi 110075; 2. The Regional Director, Southern Regional Committee, National Council for Teacher Education, G‑7, Sector 10, Dwarka, New Delhi 110075; 3. The Tamil Nadu Teachers Education University, represented by its Registrar, Karapakkam, Chennai 600097, Respondents., The writ petition is filed under Article 226 of the Constitution of India, praying that the Madras High Court issue a writ of mandamus directing the third respondent, Tamil Nadu Teachers Education University, to grant continuation of affiliation for the academic year 2021‑2022 to the petitioner’s university and to permit the students of the petitioner’s university to undergo school internship teaching practice and to appear for the I and II semester examinations within the time period stipulated by the Madras High Court., The writ petition has been filed in the nature of mandamus, directing the third respondent, Tamil Nadu Teachers Education University, to grant continuation of affiliation for the academic year 2021‑2022 to the petitioner’s university and to permit the students to undergo school internship teaching practice and to appear for the I and II semester examinations. The writ petition was filed on 12 September 2022. At that time, the relief sought was to permit the students admitted to the petitioner’s university to write their I and II semester examinations. No interim order was granted. Time passed and the fourth semester examination is scheduled to be conducted from 17 April 2023. The matter was listed as urgent on 11 April 2023 and again on 12 April 2023., The learned counsel appearing for the petitioner, the learned counsel appearing for the first and second respondents, and the learned counsel appearing for the third respondent were heard., The petitioner received an order issued by the first respondent on 3 December 2019, which constituted a show‑cause notice under Section 17 of the National Council for Teacher Education Act, 1993, as to why the recognition of the petitioner should not be withdrawn. Several defects were found in the college, prompting the show‑cause notice. The petitioner replied to the notice on 17 December 2019., The petitioner applied for continuation of provisional affiliation on 14 October 2020. A further show‑cause notice was issued by the first respondent under Section 17 of the National Council for Teacher Education Act, 1993, on 27 February 2020, to which the petitioner replied on 17 March 2020., The issue moved back and forth between the petitioner and the first respondent. Finally, an order was passed and published in Gazette Part III Section 4 on 16 March 2021, which can be termed a ‘withdrawal’ order. However, the petitioner did not file a writ petition challenging that order., Consequent to the withdrawal, the third respondent, Tamil Nadu Teachers Education University, withdrew the affiliation of the college., In April, May and June 2021, admissions to various courses were conducted even though the petitioner had no recognition and no affiliation with the third respondent. The petitioner was effectively a body in suspended animation., On 28 July 2021, the third respondent issued a notice stating that there was no approval, no recognition and no affiliation, and cautioned that the petitioner should not admit any student., The course under issue is the B.Ed. programme, which trains students to become teachers. For a student aspiring to become a teacher, upholding moral ethics should be the first quality. The petitioner has fallen foul of that ethics., Despite the caution issued by the third respondent, the petitioner admitted 100 students. After admitting the 100 students, the petitioner filed the writ petition, seeking permission for them to write the first and second semesters. During arguments, permission was also sought to write the third and fourth semesters, since the course has four semesters. The students have not written any semester examination since admission., The petitioner filed an appeal before the Appellate Authority against the withdrawal order. The petitioner’s counsel complained that, owing to the Covid‑19 pandemic, the petitioner was not able to appear before the Appellate Authority. By order dated 2 September 2022, the recognition that had been withdrawn was again granted to the petitioner, effective from the academic year 2022‑23 onwards. The petitioner had admitted the students during the academic year 2021‑22, without approval or affiliation, and did not transfer the students to another college. The petitioner also collected fees from them., My attention is drawn to the Rules and Regulations of the third respondent. Chapter 13 relates to Approval of Colleges. Clause 40 states: (i) Affiliation or approval shall in no case be granted with retrospective effect. Attendance at courses of instruction provided in colleges or in subjects before affiliation or approval is granted shall not qualify for the grant of certificates of attendance for purposes of University examination and such attendance shall not entitle any candidate for exemption from the production of certificates of attendance. (ii) No college or management of a college shall advertise new courses or invite applications for admission to new courses or admit students to new courses before obtaining the order of grant of affiliation for the degree courses from the University. If any college or management does so, applications for affiliation for further courses shall not be entertained from such erring college for a period of five years, and such college shall be liable for penal action as indicated in Statute 6 of this Chapter., From the clause it is evident that affiliation cannot be granted with retrospective effect. The petitioner, as a deemed university, cannot claim ignorance of this provision nor seek indulgence of the Madras High Court., A similar provision is contained in the National Council for Teacher Education Act, 1993 and the National Council for Teacher Education Rules, 1997, which govern the first respondent., Section 17 of the National Council for Teacher Education Act, 1993 deals with contravention of provisions of the Act and consequences thereof. It provides that where the Regional Committee, on its own motion or on any representation, is satisfied that a recognised institution has contravened any provision of the Act, rules, regulations or conditions of recognition, it may withdraw recognition of such institution, provided that a reasonable opportunity of making representation is given. The order withdrawing recognition shall come into force only with effect from the end of the academic session next following the date of communication of such order. A copy of the order shall be communicated to the recognised institution and forwarded to the university or examining body to which the institution was affiliated for cancellation of affiliation, and shall be published in the Official Gazette. Once recognition is withdrawn, the institution shall discontinue the course or training in teacher education, and the concerned university or examining body shall cancel affiliation with effect from the end of the next academic session. Any qualification obtained from a course conducted after the withdrawal of recognition shall not be treated as a valid qualification for employment under the Central Government, any State Government or University, or in any school, college or other educational institution aided by the Central or State Government., Section 17(4) specifically states that if any degree is granted by a college that admitted students during the period when the college suffered withdrawal of recognition or affiliation, such degree or certificate cannot be treated as a valid qualification for employment under the Central Government, State Government, any university, school, college or educational body aided by the Central or State Government. The petitioner must be aware of these rules; if they are not aware, they have no right to function as a university. Yet they admitted 100 students in 2021., The learned counsel for the petitioner projected the plight of the students. The petitioner must answer for having admitted the students. The Madras High Court cannot rescue the petitioner merely on the basis of the students’ condition. The petitioner cannot expect a favourable order and must suffer the consequences of violating the rules., My attention is drawn to an earlier order of this Court in Writ Petition (Miscellaneous) No. 3630 of 2022, dated 16 June 2022, in St. Joseph’s College of Education versus the Registrar, Tamil Nadu Teachers Education University. The petition sought permission to write the first semester examination and a direction to grant approval to the admitted students. In that case, affiliation was cancelled by the respondent and later revoked on 22 October 2021, with recognition granted on 29 November 2021. The petitioner applied for fresh affiliation for the academic year 2021‑22, which was pending, and admitted students during the pendency. The Single Judge ordered that the students should not suffer., In the present case, admission was made even after withdrawal of recognition and affiliation. During the period of admission, the petitioner was under the operation of a withdrawal order. The primary aim appears to have been to collect fees from students. The petitioner’s bank account has been enriched by the fees paid, indicating that the petitioner is fighting for its own cause rather than for the students’ welfare., Another order, dated 11 January 2023 in Writ Petition (Miscellaneous) No. 25122 of 2022, involved Good Shepherd College of Education versus the State of Tamil Nadu. That writ petition, filed in the nature of mandamus, sought a direction to upload details of newly admitted students for online admission entry to the B.Ed. degree programme for the academic year 2022‑23. The petitioner in that case sought permission before admitting students. In the instant case, the petitioner did not approach the Madras High Court for permission to admit students; instead, the petitioner admitted the students and subsequently filed the present writ petition seeking permission for the students to write the semester examinations., Neither of those two judgments is applicable to the facts of the present case. They are neither directly nor indirectly applicable to the relief sought by the petitioner., As repeatedly pointed out, the petitioner admitted the students without recognition, without affiliation, without right and without authority. It is surprising that the petitioner collected fees from the students with a clean conscience. The petitioner must suffer the consequences of any order passed., Considering the welfare of the students, a request is placed on respondents 1 to 3 to examine the possibility of transferring the students to any other recognised college, and, if the rules permit, to scatter the students to several institutions and permit them to write the semester examinations. A certificate obtained from the petitioner’s college, which has no approval or affiliation, cannot be used by the students for any purpose; it would remain a paper with no constructive use, and the students would not obtain employment in any school, college or university., Accordingly, this writ petition is dismissed with costs of Rs 5,00,000 (Rupees Five Lakhs only) payable to the Madurai Bench of Madras High Court Legal Services Committee, Madurai. The Member Secretary of the Committee is directed to contact the Chairperson, Virudhunagar District Legal Services Committee, and to reach out to the 100 students admitted by the petitioner, examine the students and disburse the amount to those 100 students as per the apportionment fixed by the Member Secretary., The students are also permitted to institute any litigation, apart from this petition, if they seek damages or any other monetary compensation against the petitioner. They should obtain a degree from an institution that is recognised. All the students may take the above steps if advised, to alleviate any grievances. Consequently, the connected miscellaneous petition is closed. 12 April 2023.
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Date of decision: 01 February 2022. Through Mr. Sanjiv Dagar and Mr. Yogesh Verma, Advocates, versus Mr. Amit Prasad, Special Public Prosecutor for the State with Mr. Ayodhya Prasad, Advocate and Sub‑Inspector Santosh Gupta, Crime Branch., The petitioner seeks bail in FIR No. 70/2020 dated 27.02.2020 registered at Bhajanpura Police Station for offences under Sections 147, 148, 149, 302, 307, 396, 436, 455, 201, 188 and 34 of the Indian Penal Code, 1860., The FIR relates to the violence that took place in the National Capital Territory of Delhi in the month of February 2020., The brief facts leading to the instant bail application are that on 25.02.2020, around 11:00 a.m., the complainant went to purchase milk from a nearby shop when he received a call from his son Asif informing him that a huge crowd of around 100 people had gathered near their house in support of NRC and CAA. The crowd was chanting slogans of Jai Shree Ram, entered the house after breaking the locks and set it on fire. The complainant’s family members and employees rushed to the top floor of the house and were safely rescued from the roof by a police‑led rescue operation with the help of local residents., The complainant’s mother, Smt. Akbari, who was 85 years old, could not reach the rooftop due to her age. After extinguishing the fire, her body was found lying on a folding bed on the second floor and was taken to Guru Teg Bahadur Hospital, where she was declared dead vide Medical Legal Certificate No. D‑45. A post‑mortem conducted at the same hospital (PM Report No. 345/2020 dated 28.02.2020) opined the cause of death as asphyxia due to ante‑mortem inhalation of smoke., It is further stated that the crowd looted Rs. 8,00,000 in cash and a box containing gold and silver jewellery and other valuable articles from the residence., The investigation of the case was transferred from North East to Special Investigation Team‑II, Crime Branch, Delhi and subsequently to Special Investigation Unit‑I, Crime Branch, Delhi vide order No. 8266‑74/AC‑III/C&T/PHQ dated 27.02.2020 and No. 216/S/DCP/Crime (SIU & ISC) dated 04.03.2020. The investigation was undertaken by Inspector Pankaj Arora., The petitioner was arrested on 30.03.2020 and has been in custody since then. The chargesheet was filed on 07.06.2020 and on 06.04.2021 the charges were framed by the Trial Court., The petitioner had filed Bail Application No. 39‑8/2020 before the Court of Sessions Judge which was dismissed vide order dated 06.08.2020. Subsequently, another bail application vide IA No. 05/2021 in SC No. 17/2021 was filed before the Court of Sessions Judge and was dismissed vide order dated 24.06.2021., Mr. Sanjiv Dagar, the learned counsel for the petitioner, contended that the accused has been falsely implicated and that there is no evidence to prove the connection of the petitioner to the incident beyond reasonable doubt. He submitted that the FIR was registered on 27.02.2020, two days after the incident, and the name of the accused is nowhere mentioned therein. He further submitted that the accused was not called for investigation, was directly arrested and the grounds of arrest were not explained at the time of arrest., The learned counsel for the petitioner submitted that the alleged incident occurred at about 11:00 a.m. on 25.02.2020, whereas the police call records were made at 1:53 p.m. and 3:29 p.m. This delay in reporting places the case under suspicion., The learned counsel for the petitioner submitted that the complainant was not present during the incident and was informed of it by his son. The complainant’s statement dated 08.03.2020 did not mention the petitioner’s name, nor did the statement of his wife Gulista Begum. Only on 28.03.2020, vide a supplementary statement, was the petitioner’s name mentioned., The learned counsel for the petitioner submitted that the statements of the complainant’s daughters, Isha Salmani and Ayesha Salmani, dated 18.05.2020, should not be given any credence as they were recorded around three months after the incident and are not reliable., The learned counsel for the petitioner submitted that video clips bearing numbers 3, 3A and 4, as produced on record, do not pertain to the scene of the crime and are of a location about 200 metres away from the complainant’s house. He further submitted that, as per the chargesheet, the video clippings were subjected to Facial Recognition Software, the result of which indicated that the petitioner’s face did not match the face shown in the video, establishing a case of mistaken identity., Mr. Dagar contended that the accused was merely a curious onlooker and not a part of the mob. He placed reliance on Bhagwan Singh v. State of Madhya Pradesh, AIR 2002 SC 1621, where the court held that mere presence in an assembly does not make a person a member of an unlawful assembly. He submitted that the accused was not seen coming out of the house in any video and nothing has been recovered from his possession; therefore, the offences of dacoity and rioting are not made out against him., The learned counsel for the petitioner submitted that the conduct of the complainant’s family was improper and provocative. He submitted that the statement dated 10.03.2020 of Asif Salmani categorically stated that the family of the complainant pelted stones towards the crowd from their rooftop., The learned counsel for the petitioner submitted that the accused has been in custody since 30.03.2020. The investigation concerning the accused is complete, the chargesheet has been filed and there have been no new developments or further arrests. The supplementary chargesheet and the Forensic Science Laboratory report have not been placed on record even after two years. He further submitted that the trial is unlikely to conclude soon; continued incarceration would violate the petitioner’s right to life and personal liberty under Article 21 of the Constitution of India., The learned counsel for the petitioner submitted that the petitioner has no permanent employment and that his sister is specially challenged and needs extra care during the pandemic. He placed reliance on P. Chidambaram v. Directorate of Enforcement, 2019 SCC Online SC 1549, to highlight the triple test for grant of bail. He submitted that the petitioner is a permanent resident of the locality, has deep roots in society and there is no possibility of his absconding or tampering with evidence. He further submitted that the petitioner has undertaken to abide by any conditions that the Honourable Delhi Sessions Court deems fit., The learned Special Public Prosecutor submitted that during investigation, the statements of the complainant and his son Mohd. Asif Salmani, recorded under Section 161 of the Criminal Procedure Code, categorically named the petitioner as an active member of the riotous mob that set the complainant’s house on fire., The learned Special Public Prosecutor submitted that several video clippings of the incident were seized, sent to the forensic laboratory for analysis and, in a 36‑second clip provided by the complainant over WhatsApp and a six‑minute clip shot by Mohd. Parvez on the date of the incident, the petitioner along with other rioters is seen as an active member of the mob, with the petitioner muffling his face with a white cloth., The learned Special Public Prosecutor submitted that the Call Activity File and Call Detail Records of the petitioner’s mobile number show that it was activated on 05.03.2018 and has been in use since. On the date and time of the incident, the petitioner’s mobile phone was active in the area of the scene of crime. The CDRs of the witnesses also show that their mobile numbers were active at the same time., The learned Special Public Prosecutor submitted that, after the arrest of the petitioner, a dark‑blue coloured pyjama with two white stripes was recovered from a bed on the ground floor of his residence. The petitioner stated that he was wearing this pyjama at the time of the incident and that his T‑Shirt was torn off during the Holi festival celebrations., The learned Special Public Prosecutor submitted that the presence and involvement of the petitioner was also confirmed by co‑accused Prakash Chand during interrogation; Prakash Chand was arrested on 30.03.2020., The learned Special Public Prosecutor further submitted that a supplementary chargesheet was filed before the Honourable Delhi Sessions Court on 05.08.2020 under Section 173(8) of the Code of Criminal Procedure, 1973, along with the expert opinion received from the Forensic Science Laboratory., The learned Special Public Prosecutor submitted that the complainant is a well‑to‑do businessman who has been specifically targeted by the mob. He submitted that the complainant and his family have been receiving threats from family members and associates of the accused persons who live in the same street, placing them in an extremely precarious situation. Therefore, in such circumstances, especially when all statements of public witnesses have not yet been recorded and the investigation has not been conducted properly, grant of bail would be prejudicial to the trial., Mr. Pracha, the learned counsel for the complainant, contended that the incident was a pre‑mediated crime. He submitted that the complainant’s house was situated inside a narrow lane, leaving virtually no room for escape. The ground floor was set on fire, forcing residents to rush to the top floor. The mob, of which the petitioner was a part, knew that the fire would likely result in death, attracting the offence of Section 302 IPC; therefore, the accused should not be released on bail., Mr. Pracha further contended that ocular evidence is considered the best evidence unless there are grave reasons to question its credibility. He placed reliance on the judgment of Pruthiviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala, 2021 SCC OnLine SC 493., Mr. Pracha submitted that the investigation has been conducted in a shoddy manner, contrary to the principles of a fair trial under Article 21 of the Constitution of India. He placed reliance on Pooja Pal v. Union of India and Others., The Delhi Sessions Court has heard both parties and perused the material on record. A perusal of the chargesheet indicates that the petitioner is a resident of Bhajanpura. The chargesheet states that an analysis of the petitioner’s mobile number has revealed his presence at the scene of crime during the time of the incident and that the petitioner has been identified by the complainant and his son Mohd. Asif., The chargesheet shows that during the investigation certain video clips were retrieved that were shot from mobile phones of individuals present at the scene or downloaded online. The video clips merely show the petitioner muffling his face with a white cloth. It is not evident whether the petitioner was actively participating in the mob that set the complainant’s house on fire., The issue for consideration is whether, when an offence of murder is committed by an unlawful assembly, each person in the unlawful assembly should be denied bail regardless of their role. Section 149 of the Indian Penal Code reads: ‘Every member of unlawful assembly guilty of offence committed in prosecution of common object…’ (emphasis supplied)., The Supreme Court has consistently held that to convict an accused under Section 149, a clear finding regarding the nature of the unlawful common object must be made. If such a finding is absent or there is no overt act on behalf of the accused, mere possession of a weapon is insufficient to prove the common object., In Kuldip Yadav and Ors. v. State of Bihar, (2011) 5 SCC 324, the Supreme Court stated: ‘It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members…’, In Sherey and Ors. v. State of U.P., (1991) Supp (2) SCC 437, the Supreme Court examined whether Section 149 could be applied on the basis of omnibus allegations and mere presence. The Court held that conviction should be limited to those appellants consistently mentioned as having participated in the overt acts, and that it is unsafe to apply Section 149 to all members without specific evidence., Regarding the bar imposed by Section 437(1) of the Criminal Procedure Code on granting bail, the Supreme Court in Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118, held that the Court has the final say on whether reasonable grounds exist to believe the accused is guilty. There is no blanket bar; the Court may exercise discretion in granting bail provided reasons are recorded., The Supreme Court in Prabhakar Tiwari v. State of U.P., (2020) SCC Online SC 75, held that the gravity of the offence alone cannot be the basis for refusing bail, even when several criminal cases are pending against the accused., The petitioner was arrested on 30.03.2020 and has been in judicial custody for twenty months. Bail jurisprudence seeks to balance the personal liberty of an accused with the need for social security. It is contrary to constitutional principles to keep an accused languishing in jail during the pendency of trial., In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the Supreme Court laid down the parameters for granting or refusing bail: (i) prima facie or reasonable ground to believe the accused committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment; (iv) danger of absconding; (v) character and standing of the accused; (vi) likelihood of repeat offence; (vii) risk of witness tampering; and (viii) danger of justice being thwarted., In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, the Supreme Court observed that the determination of whether a case is fit for bail involves balancing numerous factors, and the court is not required to conduct a detailed analysis of the evidence to establish guilt beyond reasonable doubt at the bail stage., It is the constitutional duty of the Court to ensure that there is no arbitrary deprivation of personal liberty in the face of excess State power. Bail is the rule and jail is the exception, and courts must uphold personal liberty subject to valid legislative regulation., The petitioner has been in custody for twenty months. The chargesheet has been filed and the investigation concerning the petitioner is complete with no incriminating evidence recovered. The trial court has taken cognizance and framed charges. Whether the identification of the petitioner under Section 161 of the Criminal Procedure Code and his presence in the video footage is sufficient to deem him an active member of the unlawful assembly with the common intention to commit murder is a matter for trial and cannot be decided at this stage. The video footage only shows the petitioner muffling his face; he is not seen actively participating with the mob. The material does not justify continued incarceration, and given the likely long duration of the trial, it would not be prudent to keep the petitioner behind bars., In view of the facts and circumstances, without commenting on the merits, this Court is of the opinion that the petitioner should not be made to languish behind bars for a longer period and that the veracity of the allegations can be tested during trial., Accordingly, the Honourable Delhi Sessions Court is inclined to grant bail to the petitioner in FIR No. 70/2020 dated 27.02.2020 registered at Bhajanpura Police Station for offences under Sections 147, 148, 149, 302, 307, 396, 436, 455, 201, 188 and 34 of the Indian Penal Code, on the following conditions: (a) the petitioner shall furnish a personal bond of Rs. 35,000 with one surety of the same amount to the satisfaction of the Trial Court/Duty Magistrate; (b) the petitioner shall not leave the National Capital Territory of Delhi without prior permission of this Court; (c) the petitioner shall report to the concerned police station every Tuesday and Thursday at 10:30 a.m. and shall be released after completing formalities within half an hour; (d) the petitioner shall give all his mobile numbers to the Investigating Officer and keep them operational at all times; (e) the petitioner has given his address as House No. 53, Gali No. 1, Village Gamri, Bhajanpura, Delhi 110053.
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The Petitioner is directed to continue to reside at the same address. In case there is any change in the address, the Petitioner is directed to intimate the same to the Investigating Officer. The Petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses. Violation of any of these conditions will result in the cancellation of the bail given to the petitioner. It is made clear that the observations made in this Order are only for the purpose of grant of bail and cannot be taken into consideration during the trial. Accordingly, the bail application is disposed of along with the pending applications, if any.
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The petitioners claiming to be social activists have filed the present petition under Article 32 of the Constitution of India seeking various directions against the States and Union Territories to formulate a scheme to implement the concept of Community Kitchens to combat hunger, malnutrition and starvation and the deaths resulting thereof. The petitioners have also sought direction against the National Legal Services Authority to formulate a scheme in order to further the provisions of Article 50(1A) of the Constitution, as also against the Central Government to create a National Food Grid beyond the scope of the Public Distribution System., Supreme Court of India vide the order dated 27 October 2021 directed the Union of India to interact with the concerned stakeholders for consideration of the Community Kitchens Scheme or any other similar schemes relating to Community Kitchens which are already in operation in different states. Subsequently various orders were passed by the Court directing the States to attend the meetings managed by the Union of India for exploring the possibility of framing the Community Kitchens Scheme., The States and Union Territories have filed their counter affidavits/responses stating in detail the schemes adopted and enforced in their respective states such as Poshan Abhiyan, Take Home Ration, Pradhan Mantri Garib Kalyan Anna Yojana, Mid-Day Meal, Open Market Sales Scheme, One Nation One Ration Card Scheme, Annapurna Scheme, Antyodaya Anna Yojana etc., also stating that some of the schemes are monitored by Integrated Child Development Services and Integrated Tribal Development Programme. The States, in their respective affidavits, stated that there were no deaths reported due to starvation or malnutrition. The Union of India has also submitted that the Government is committed to focusing on combating hunger and malnutrition by implementing various schemes through the State Governments to enhance food security. As per the submission, Pradhan Mantri Garib Kalyan Anna Yojana was launched to address economic disruptions and is extended to free grain provision to Antyodaya Anna Yojana and Priority Households to alleviate poverty burdens; Atma Nirbhar Bharat Package allocated additional food grain for migrants during the Covid‑19 crisis; Pradhan Mantri Poshan Shakti Nirman Scheme aims to improve nutrition among school students and accordingly allocates food grains; Scheme for Adolescent Girls focuses on improving the health and nutrition of adolescent girls aged 11 to 18 years; Annapurna Scheme provides indigent senior citizens with free food grains. Advisories are being issued from time to time to include millets and to widen nutritional standards to enhance nutrition levels amongst the beneficiaries., The learned counsels for the petitioners submitted that undoubtedly the Union of India and the States have taken steps to combat hunger, malnutrition and starvation by implementing various Central and State Government schemes; however, according to them, even if hunger, malnutrition or starvation may not necessarily result in death, the Centre and States have the constitutional duty to ensure basic sustainability of human life. Additional Solicitor General Mr. R. Bala submitted that this being not an adversarial litigation, the details of schemes, programmes, policies and other measures taken by the Central Government and the State Governments have been submitted to satisfy the conscience of the Court that they have successfully implemented the schemes for protecting the fundamental rights of the citizens. He also submitted that there is no further need for continued monitoring by this Court., It is significant to note that although the Constitution of India does not explicitly provide for a right to food, the fundamental right to life enshrined in Article 21 includes the right to live with human dignity, food and other basic necessities. Article 47 of the Constitution also provides that the State shall regard the raising of the level of nutrition, the standard of living of its people and the improvement of public health as among its primary duties., Keeping in view the goal of eradicating extreme poverty and hunger as one of the goals of the United Nations, and the constitutional guarantees for ensuring food security of the people as also for improving the nutritional status of the population, especially of women and children, Parliament has enacted the National Food Security Act, 2013 (National Food Security Act). The object of the said Act is to provide for food and nutritional security in a life‑cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto. With the enactment of the National Food Security Act there was a paradigm shift in the approach to food security from welfare to a rights‑based approach. The Act has been implemented in all States and Union Territories. One of the guiding principles of the Act is its life‑cycle approach, wherein special provisions have been made for pregnant women, lactating mothers and children in the age group of six months to fourteen years, by entitling them to receive nutritious meals free of cost, through a widespread network of Integrated Child Development Services centres (Anganwadi centres) and also through schools under the Mid‑day Meal scheme. Higher nutritional norms have also been prescribed for malnourished children. Pregnant women and lactating mothers are entitled to receive cash maternity benefit to partly compensate them for wage loss during pregnancy and to supplement nutrition. The Central Government, after consultation with the State Governments, has also framed the Cash Transfer of Food Subsidy Rules 2015, in exercise of the powers conferred by clause (d) of sub‑section 2 of Section 39 read with clause (h) of sub‑section 2 of Section 12 of the National Food Security Act. Under the said Rules, the State Governments have been enabled to implement the scheme with the approval of the Central Government to provide food subsidy in cash directly into the bank accounts of entitled households to purchase the entitled quantity of food grains from the open market. Significantly, Chapter VI under the Head Women Empowerment provides that the eldest woman who is not less than 18 years of age in every eligible household shall be head of the household for the purpose of issue of ration cards. The Grievance Redressal Mechanism at the District and State level has also been provided for expeditious and effective redressal of grievances of aggrieved persons in matters relating to distribution of entitled food grains or meals and to enforce entitlements under the Act., Thus, there being a systematic legal framework provided under the National Food Security Act for the implementation of the schemes and programmes like Targeted Public Distribution System, Mid‑day Meal Scheme, Integrated Child Development Services and Maternity Cash Entitlement along with a Monitoring Mechanism and a Grievance Redressal Mechanism, and the States and Union Territories having also implemented various other schemes and programmes under the said Act, we do not propose to direct the States or Union Territories to implement the concept of Community Kitchens as prayed for by the petitioners in the instant petition., It is well settled that the scope of judicial review in examining policy matters is very limited. The Courts do not and cannot examine the correctness, suitability or appropriateness of a policy, nor are the Courts advisors to the executive on matters of policy which the executive is entitled to formulate. The Courts cannot direct the States to implement a particular policy or scheme on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, would be the subject of judicial review., As elaborated earlier, when the National Food Security Act with a rights‑based approach for providing food and nutritional security is in force and when other welfare schemes under the Act have also been framed and implemented by the Union of India and the States to ensure access to adequate quantity of quality food at affordable prices to people to live a life with dignity, we do not propose to give any further direction in that regard. We have not examined whether the concept of Community Kitchens is a better or wiser alternative available to the States to achieve the object of the National Food Security Act; rather we would prefer to leave it open to the States and Union Territories to explore such alternative welfare schemes as may be permissible., Subject to the foregoing observations, the writ petition is disposed of.
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Reportable Civil Appeal Number 2600 of 2022 (Special Leave Petition (Civil) Number 19574 of 2021) Appellant(s) versus Respondent(s). Civil Appeal Number 2601 of 2022 (Special Leave Petition (Civil) Number 19378 of 2021). Civil Appeal Number 2602 of 2022 (Special Leave Petition (Civil) Number 19916 of 2021). Civil Appeal Number 2603 of 2022 (Special Leave Petition (Civil) Number 19776 of 2021). Civil Appeal Number 2604 of 2022 (Special Leave Petition (Civil) Number 19582 of 2021). Civil Appeal Number 2605 of 2022 (Special Leave Petition (Civil) Number 5077 of 2022) Diary Number 28073. Civil Appeal Number 2606 of 2022 (Special Leave Petition (Civil) Number 19568 of 2021). Civil Appeal Number 2607 of 2022 (Special Leave Petition (Civil) Number 19401 of 2021). Civil Appeal Number 2608 of 2022 (Special Leave Petition (Civil) Number 19683 of 2021). Civil Appeal Number 2609 of 2022 (Special Leave Petition (Civil) Number 20167 of 2021). Civil Appeal Number 2610 of 2022 (Special Leave Petition (Civil) Number 21069 of 2021). Civil Appeal Number 2611 of 2022 (Special Leave Petition (Civil) Number 21070 of 2021). Civil Appeal Numbers 2612-2642 of 2022 (Special Leave Petition (Civil) Numbers 2312-2342 of 2022). Leave granted., The Tamil Nadu Special Reservation of seats in Educational Institutions including Private Educational Institutions and of appointments or posts in the services under the State within the Reservation for the Most Backward Classes and Denotified Communities Act, 2021 was declared unconstitutional by the Madras High Court, Madurai Bench by a judgment dated 01.11.2021. The correctness of the said judgment is challenged in these appeals., Communal representation in public services existed in the Madras Presidency prior to the Constitution of India coming into force. The Madras High Court declared Government Order Number 3437 dated 21.11.1947, by which communal representation was provided, as unconstitutional. The said judgment of the Madras High Court was upheld by the Supreme Court of India in State of Madras v. Srimathi Champakam Dorairajan. The Supreme Court of India held that the classification made in the said Government Order proceeded on the basis of religion, race and caste and constituted a violation of the fundamental rights guaranteed under Article 29(2) of the Constitution of India. On 18.06.1951, Article 15(4) was inserted by the Constitution (First Amendment) Act, 1951, enabling the State to make any special provision for advancement of socially and educationally backward classes. Consequent to the judgment of the Supreme Court of India, Government Order Number 2432 dated 27.09.1951 was issued by the Madras State adopting a 20-point roster, with three seats reserved for Scheduled Castes and Scheduled Tribes and five for Backward Classes, amounting to 15 per cent reservation for Scheduled Castes and Scheduled Tribes together and 25 per cent for Backward Classes. On 30.12.1954, Government Order Number 2643 was issued increasing reservation for Scheduled Castes and Scheduled Tribes combined to 16 per cent and Backward Classes to 25 per cent. By Government Order Number 353 dated 31.01.1957, the State Government made a sub‑classification amongst Backward Classes. Most Backward Communities were identified and educational concessions were extended to them. There were 58 communities in the list of Most Backward Communities, with Vanniakula Kshatriyas listed at serial Number 1., The State Government appointed a Backward Class Commission under the Chairmanship of Shri A.N. Sattanathan, by Government Order Number 842 dated 13.11.1969 to make a scientific and factual investigation of the conditions of backward classes in the State and recommend specific measures of relief for their advancement. The Commission submitted its report in November 1970, recommending reservation of 33 per cent of posts under the State Government for Backward Classes as well as of seats in professional and educational institutions. After considering the recommendations of the said Commission, the State Government, by Government Order Number 695 dated 07.06.1971, enhanced the existing reservation for Backward Classes from 25 per cent to 31 per cent and that for Scheduled Castes and Scheduled Tribes from 16 per cent to 18 per cent with respect to seats in all kinds of educational institutions under Government, local body and aided managements and posts for recruitment to public services. On 01.02.1980, the reservation quota for Backward Classes was enhanced to 50 per cent for appointment to posts in services and admissions to educational institutions under the State Government., Later, the Tamil Nadu Second Backward Classes Commission was appointed by the Government on 13.12.1982. The Commission was headed by Shri J.A. Ambasankar, I.A.S. (retired). A study was conducted by the Commission to determine the level of backwardness on the basis of various indicators of social and educational backwardness bearing points, with each community assessed being awarded a score from a total of 15 points. According to the Chairman, communities which secured 8, 9 and 10 points should be grouped as A, those with 11, 12 and 13 points should be placed in group B and those with 14 and 15 points should be categorised as group C. The Chairman of the Commission recommended compartmental reservation on the basis of the different groupings and provided a mechanism for implementation of the same. Fourteen members of the Commission differed from the views expressed by the Chairman of the Tamil Nadu Second Backward Classes Commission., On 30.07.1985, the State Government issued Government Order Number 1564 notifying 201 communities as Backward Classes throughout the State of Tamil Nadu for the purposes of Articles 15(4) and 16(4) of the Constitution. Government Orders Numbers 1566 and 1567 were also issued on the same day, classifying 39 communities as Most Backward Classes (MBCs) and 68 communities as Denotified Communities (DNCs), respectively. The Vanniakula Kshatriya community was placed at serial number 26 in the list of MBCs. On 28.03.1989, separate reservation of 20 per cent, out of the available 50 per cent for Backward Classes, was provided for MBCs and DNCs together and the remaining 30 per cent set aside for Backward Classes. Later, on 22.06.1990, one per cent separate reservation was provided to Scheduled Tribes in public services and educational institutions. Thus, from 1990, 30 per cent reservation was provided for Backward Classes, 20 per cent for MBCs and DNCs, 18 per cent for Scheduled Castes and 1 per cent for Scheduled Tribes, totalling 69 per cent., Act Number 45 of 1994, i.e., 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 (hereinafter, the 1994 Act) was enacted to provide for reservation in admissions to educational institutions in the State and for appointments in the services under the State. Backward Classes of citizens are defined under Section 3(a) thereof as the class or classes of citizens who are socially and educationally backward, as may be notified by the Government in the Tamil Nadu Government Gazette, and includes the Most Backward Classes and the Denotified Communities. Section 4 provides that reservation in respect of annual permitted strength in educational institutions for Backward Classes of citizens and for persons belonging to Scheduled Castes and Scheduled Tribes shall be 69 per cent. According to Section 5, 69 per cent of appointments or posts in the services under the State shall be reserved for Backward Classes of citizens, Scheduled Castes and Scheduled Tribes. The allocation of percentage of reservation for Backward Classes, MBCs and DNCs, Scheduled Castes and Scheduled Tribes remained unchanged. Additionally, by Section 7 of the 1994 Act, the Government reserved power to classify or subclassify, by notification, the Backward Classes of citizens for the purposes of the 1994 Act, on the basis of reports of the Tamil Nadu Backward Classes Commission constituted on 15.03.1993. On 19.07.1994, by Government Order Number 28, the Government of Tamil Nadu, under Section 3(a) of the 1994 Act, notified 143 communities as Backward Classes, 41 communities as MBCs and 68 communities as DNCs. By the Constitution (Seventy‑sixth Amendment) Act, 1994, which received the assent of the President on 31.08.1994, the 1994 Act was placed in the Ninth Schedule of the Constitution, as Entry 257‑A., The validity of the 1994 Act was challenged by way of writ petitions filed in the Supreme Court of India. The said writ petitions were disposed of by the Supreme Court of India on 13.07.2010 in S.V. Joshi v. State of Karnataka, after taking note of the fact that the exercise of collecting quantifiable data to justify the reservation under the 1994 Act, pursuant to judgments of the Supreme Court of India in M. Nagaraj v. Union of India and Ashoka Kumar Thakur v. Union of India, had not been undertaken. Further, the State Government was directed to place quantifiable data before the Tamil Nadu Backward Classes Commission, on the basis of which, among other things, the Commission would decide the quantum of reservation. No opinion was expressed on the validity of the 1994 Act. Consequent to the judgment of the Supreme Court of India in S.V. Joshi, by Government Order Number 50 dated 11.07.2011, the Government of Tamil Nadu decided to continue to implement reservation of 69 per cent as provided in the 1994 Act. It is mentioned therein that a report of the Tamil Nadu Backward Classes Commission was submitted to the Government on 08.07.2011 and subsequently placed before the Cabinet, which was satisfied about the justification for continuation of reservation of 69 per cent., Thereafter, Writ Petition Number 365 of 2012 was filed under Article 32 of the Constitution challenging the 1994 Act, which is pending consideration before the Supreme Court of India. On 21.03.2012, by Government Order (Number) 35, the Government prescribed additional terms of reference to the Tamil Nadu Backward Classes Commission, requesting the Commission to examine and recommend upon the demand made by various communities to provide for internal reservation, within the reservation provided to MBCs and DNCs. There is a reference in the said Government Order to a writ petition filed before the Madras High Court as well as representations made by members of the Vanniakula Kshatriya community and other communities, seeking internal reservation for each of these communities within the 20 per cent reservation for MBCs and DNCs. On 13.06.2012, a report was submitted by the Tamil Nadu Backward Classes Commission, chaired by Justice M.S. Janarthanam (retired) of the Madras High Court. The Chairman recommended internal reservation of 10.5 per cent for the Vanniakula Kshatriyas, with the remaining six members of the Commission submitting a dissent note., The Tamil Nadu Backward Classes Commission was reconstituted by Government Order (Number) 52 dated 08.07.2020 and Justice M. Thanikachalam (retired) of the Madras High Court was appointed as the Chairman. One of the terms of reference prescribed to the Backward Classes Commission was to examine and recommend upon the demand made by various communities to provide for internal reservation within the reservation provided for MBCs. In addition thereto, another Commission was constituted by Government Order (Number) 99 dated 21.12.2020, for the purpose of collection of caste‑wise quantifiable data and was headed by Justice A. Kulasekaran (retired) of the Madras High Court. The Government recognized that the caste‑wise data collected by the Ambasankar Commission was more than three decades old and there was an urgent need to collect caste and tribe wise data as on date. It was stated in the said Government Order that the Commission was constituted in response to the demands of various political parties and community organisations., A letter was written on 18.02.2021 by the Government to Justice M. Thanikachalam, Chairman of the Tamil Nadu Backward Classes Commission, to give his opinion regarding the possibility of providing internal reservation amongst the communities listed as MBCs and DNCs within the 20 per cent reservation made available to them. Justice M. Thanikachalam promptly responded on 22.02.2021, recommending sub‑categorisation amongst the MBCs and DNCs based on the proportion of their population. Immediately thereafter, on 24.02.2021, a bill for special reservation within the 20 per cent reserved for MBCs and DNCs was placed before the State Legislative Assembly. On the same day, the bill was passed and it received the assent of the Governor on 26.02.2021. By the 2021 Act, reservation of seats in educational institutions, including private educational institutions, and reservation in appointment or posts in the services under the State were provided in the following manner: ten and a half per cent for Part‑MBC (V) Communities, seven per cent for Part‑MBC and DNC Communities and two and a half per cent for Part‑MBC Communities. In terms of the Schedule annexed to the 2021 Act, Part‑MBC(V) consists of Vanniakula Kshatriya community (including Vanniyar, Vanniya, Vannia Gounder, Gounder or Kander, Padayachi, Palli and Agnikula Kshatriya), Part‑MBC and DNC comprise 25 communities from the MBCs and 68 DNCs and the remaining 22 communities of MBCs come under the category of Part‑MBC., Writ petitions were filed in the Madras High Court assailing the constitutional validity of the 2021 Act. The Madras High Court framed the following points for consideration: (i) Whether the State Legislature has competency to make the impugned Act after the 102nd Constitutional Amendment Act, 2018 and before the 105th Constitutional Amendment Act, 2021? (ii) Whether an Act placed under the Ninth Schedule of the Constitution of India can be varied without amending the said Act? (iii) Whether the State Government had the power to take any decision with regard to Backward Classes in the teeth of the Constitutional provisions, more particularly, Article 338‑B of the Constitution of India? (iv) Whether the State has power to provide reservation based on caste? (v) Whether reservation can be provided without any quantifiable data on population, socio‑educational status and representation of the backward classes in the services? (vi) Whether the impugned Act providing reservation of 10.5% to MBC(V), without any quantifiable data, is in violation of Articles 14, 15 and 16 of the Constitution of India? (vii) Whether the sub‑classification of MBC into three categories can be done solely based on adequate population data, in the absence of any objective criteria?, The Madras High Court answered points (i) to (iii) by holding that the State Legislature has no competence to enact the 2021 Act. The Madras High Court further found that the internal reservation made only on the basis of caste is violative of the Constitution. Answering points (v) to (vii), the Madras High Court was of the opinion that there was no quantifiable data relating to the population, socio‑economic status and representation of the backward classes in the services. Finally, on the basis of such conclusions, the 2021 Act was declared ultra vires the provisions of the Constitution., We have heard Dr. Abhishek Manu Singhvi, Mr. P. Wilson, Mr. Rakesh Diwedi, Mr. Mukul Rohatgi, Mr. C.S. Vaidyanathan, Mr. M. N. Rao and Mr. Radhakrishnan, learned Senior Counsel appearing for the Appellants and Dr. Rajeev Dhawan, Mr. R. Balasubramanian, Mr. K. M. Vijayan, Mr. S. Nagamuthu, Mr. Gopal Sankaranarayanan, Mr. V. Prakash, Mr. Jaideep Gupta and Mr. Colin Gonsalves, learned Senior Counsel appearing for the Respondents., At the outset, it is necessary to deal with the preliminary submission made by some Senior Counsel appearing for the State of Tamil Nadu for reference of these appeals to a Constitution Bench. Dr. Abhishek Singhvi, Mr. Rakesh Dwivedi and Mr. Mukul Rohatgi, learned Senior Counsel appearing for the State of Tamil Nadu, submitted that the case involves interpretation of constitutional provisions and therefore, it is appropriate that these appeals are heard by a Constitution Bench. Mr. P. Wilson, learned Senior Counsel appearing for the State and Mr. C.S. Vaidyanathan and Mr. M. N. Rao, learned Senior Counsel appearing for the Appellants in Civil Appeals arising from Special Leave Petition (Civil) Number 19378 of 2021 and Special Leave Petition (Civil) Number 19574 of 2021, respectively, stated that there is no necessity of referring this matter to a larger Bench. Dr. Singhvi submitted that challenge to the 1994 Act is pending consideration before a Constitution Bench of the Supreme Court of India. He further stated that adjudication of the dispute in these appeals would involve interpretation of the Constitution (One Hundred and Fifth Amendment) Act, 2021 (hereinafter, the 105th Amendment Act). According to Dr. Singhvi, this Court would have to decide whether the 105th Amendment Act is clarificatory and dates back to the introduction of Article 342‑A. It is advisable that the said issue is decided by a larger Bench. Mr. Dwivedi, supplementing the submissions of Dr. Singhvi, referred to the findings of the Madras High Court in the impugned judgment on the lack of legislative competence of the State Legislature in enacting the 2021 Act with respect to Section 31‑B of the Constitution. He stated that the words repeal or amend appearing in Article 31‑B would have to be construed by this Court in these appeals to reach a determinative finding. On this ground, he urged for these appeals to be decided by a larger Bench. Appearing on behalf of the Respondents, Dr. Rajeev Dhawan and Mr. Gopal Sankaranarayanan emphatically argued that no ground has been made out for referring these appeals to a larger Bench. Dr. Dhawan argued that the adjudication of the dispute in these appeals does not involve interpretation of any provision in the Constitution. Mr. Sankaranarayanan submitted that reference to a Constitution Bench is made only when the Court is satisfied that a substantial question of law as to interpretation of the Constitution is involved, the determination of which is necessary for disposal of the case. He placed reliance on two judgments of the Supreme Court of India in Abdul Rahim Ismail C. Rahimtoola v. State of Bombay and Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly. As both the stated conditions are not satisfied in the present case, he stated that there is absolutely no need for reference to a larger Bench. The vires of Rule 3 of the Indian Passport Rules, 1950 and Section 3 of the Indian Passport Act (34 of 1920) fell for consideration before the Supreme Court of India in Abdul Rahim Ismail C. Rahimtoola (supra). An argument was advanced in that case that the matter should be referred to a Bench of five Judges as a constitutional question was raised. While referring to an earlier judgment of the Supreme Court of India in Ebrahim Vazir Mavat v. State of Bombay, the Supreme Court of India held that the question of the impugned provision and rule being in violation of Articles 19(1)(d) and 19(1)(e) had already been decided by the Supreme Court of India and therefore, it cannot be said that any substantial question of law arises on the interpretation of a constitutional provision. The request for reference, was therefore, rejected. In Shrimanth Balasaheb Patil (supra), the Supreme Court of India refused to refer the dispute therein to a Constitution Bench on the ground that there was no substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for the disposal of the case. This Court was of the opinion that the existence of substantial question of law does not weigh on the stakes involved in the case, rather, it is determined by the impact that the question would have on the final determination of the case. Article 145(3) of the Constitution provides that any case involving substantial question of law as to the interpretation of the Constitution should be heard by a minimum number of five Judges. However, we are not in agreement with the submission of Dr. Singhvi that the question of whether the 105th Amendment Act is clarificatory involves interpretation of the 105th Amendment Act. Relying upon the parliamentary debates, Dr. Singhvi submitted that the amendment has been brought only for the purpose of clarifying the Constitution (One Hundred and Second Amendment) Act, 2018 and, therefore, the 105th Amendment Act should be deemed to have come into force from 15.08.2018, i.e., the date from which Article 342‑A was given effect. There is no necessity of interpreting the 105th Amendment Act for the purpose of deciding the question raised by Dr. Singhvi relating to the retrospectivity of the said amendment., The other point to be dealt with is the submission made by Mr. Dwivedi on the question of interpretation of Article 31‑B of the Constitution. His submission is that the Madras High Court erred in holding that the State of Tamil Nadu did not have legislative competence to enact a separate legislation varying the provisions of the 1994 Act, placed in the Ninth Schedule, on the ground that it falls foul of Article 31‑B of the Constitution. The submission of Mr. Dwivedi is that the words repeal or amend in Article 31‑B have to be interpreted to determine whether by virtue of the said constitutional provision, the State lacked legislative competence to enact a sui generis law on a subject similar or ancillary to that of a statute placed in the Ninth Schedule. Article 31‑B has been construed by the Supreme Court of India in The Godavari Sugar Mills Ltd. v. S. B. Kamble, Shri Ram Narain Medhi v. State of Bombay, Sajjan Singh v. State of Rajasthan, Ramanlal Gulab Chand Shah v. State of Gujarat, State of Orissa v. Chandrasekhar Singh Bhoi and State of Maharashtra v. Madhavrao Damodar Patil. In view of the above judgments, which are discussed later, it is not necessary for the Supreme Court of India to refer these appeals to a larger Bench. The impugned 2021 Act was passed on 26.02.2021. Relevant provisions of the Constitution as introduced by the Constitution (One Hundred and Second Amendment) Act, 2018 (hereinafter, the 102nd Amendment Act), brought into force with effect from 15.08.2018, and as amended by the 105th Amendment Act (italicized), which came into force from 15.08.2021 in terms of the notification dated 15.09.2021 issued by the Ministry of Social Justice and Empowerment, are as below: Article 338‑B. National Commission for Backward Classes. (1) There shall be a Commission for the socially and educationally backward classes to be known as the National Commission for Backward Classes. (9) The Union and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes. Provided that nothing in this clause shall apply for the purposes of clause (3) of article 342A. Article 342‑A. Socially and educationally backward classes. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. Explanation.— For the purposes of clauses (1) and (2), the expression Central List means the list of socially and educationally backward classes prepared and maintained by and for the Central Government. (3) Notwithstanding anything contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List. Article 366. Definitions. (26C) socially and educationally backward classes means such backward classes as are so deemed under article 342A for the purposes of the Central Government or the State or Union territory, as the case may be. The Madras High Court observed that the majority opinion of this Court in Dr Jaishri Laxmanrao Patil v. Chief Minister concluded that the powers of the State Legislatures to identify backward classes have been ousted and the power to modify the list of socially and educationally backward classes (SEBCs) stood vested in Parliament, after insertion of Article 342‑A in the Constitution by the 102nd Amendment Act. The Madras High Court rejected the contention on behalf of the State that the 105th Amendment Act restored the power of the States to identify and notify backward classes. The Madras High Court was of the view that the 2021 Act came into existence on 26.02.2021, whereas the 105th Amendment Act was enacted on 19.08.2021. Thus, according to the Madras High Court, the impugned legislation, which was brought into effect prior to the enactment of the 105th Amendment Act, was unconstitutional in view of the majority opinion in Dr Jaishri Laxmanrao Patil., It was contended on behalf of the State by Dr. Singhvi that the 2021 Act does not identify, exclude or include any community in relation to the list of backward classes. The said exercise was already done by Government Order Number 28 dated 19.07.1994 under the 1994 Act. What is instead sought to be done by the 2021 Act is sub‑classification of the MBCs and allocation of 10.5 per cent reservation for the Vanniakula Kshatriya community within the 20 per cent earmarked for MBCs and DNCs, which is not barred to be undertaken by the State by virtue of the 102nd Amendment Act. Though a writ petition challenging the 1994 Act is pending consideration, there has been no interim order staying the operation of the said legislation. He proceeded to submit that the 105th Amendment Act is essentially clarificatory in nature. After the judgment of the Supreme Court of India in Dr Jaishri Laxmanrao Patil, the Parliament, in exercise of its constituent power, recognised the imminent need of clarification of Articles 338‑B, 342‑A and 366(26C) of the Constitution and sought to make amendments to reflect what, according to Dr. Singhvi, was always the intention behind these provisions, i.e., for the States to continue to hold and exercise the power of identification of backward classes for reservation to educational institutions and services under the States. To emphasize this claim, Dr. Singhvi took the Court through the Statement of Objects and Reasons of the 105th Amendment Act as well as some of the debates and speeches in both houses of Parliament on the Constitution (One Hundred and Second Amendment) Bill, 2021. He further sought to impress upon this Court that the only real and operative change brought about by the 105th Amendment Act is the addition of clause (3) to Article 342‑A, which is essentially a procedural requirement on a State or Union Territory to prepare and maintain a list of SEBCs for its own purposes. He relied upon the judgment of the Supreme Court of India in K.S. Paripoornan v. State of Kerala to assert that the 105th Amendment Act, being a clarificatory amendment dealing predominantly with procedure and not a substantive amendment, will have retrospective effect. Further, support was sought from this Court’s judgment in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality to plead that while undoubtedly the Parliament had the power to enact both the 102nd Constitution Amendment Act and the 105th Constitution Amendment Act, the latter sought to clarify the circumstances which gave rise to the Court’s interpretation of the former and would, thus, be retrospective. In the alternative, Mr. Dwivedi argued that the judgment of the Supreme Court of India in Dr Jaishri Laxmanrao Patil only excluded the specification of SEBCs by the States under the 102nd Amendment Act. If a community was already included in the State’s list of SEBCs, which had been saved by the said judgment in exercise of the Court’s powers under Article 142 till the notification of the List by the President, there was no bar on the State to provide for sub‑classification. The contention put forth on behalf of the Respondents by Mr. Sankaranarayanan was that the State did not have legislative competence to identify SEBCs on 26.02.2021, the date the 2021 Act came into force. He submitted that the 102nd Constitutional Amendment Act was in force on 26.02.2021, according to which SEBCs can be specified for the purposes of the Constitution only by the President, according to the majority opinion of this Court in Dr Jaishri Laxmanrao Patil. He supported the judgment of the Madras High Court and contended that the State lacked legislative competence to identify a particular community for allocating 10.5 per cent reservation within the MBCs. On the subject of the 105th Amendment Act, it was argued that the said amendment is unquestionably prospective. Wherever it had been the intention of Parliament to give retrospective effect to constitutional amendments, it was specifically mentioned in the relevant amendment. Our attention was drawn to the Constitution (First Amendment) Act, 1951, by which changes to Article 19(2) were given retrospective effect from the date of commencement of the Constitution and Article 31‑B was inserted containing a validating provision, thereby making it applicable prior to the date of the amendment to all laws made before such date and notwithstanding any judgment. We were also directed to Article 329‑A, which excluded applicability of laws made prior to the Constitution (Thirty‑ninth) Amendment Act, 1975 to specified elections and also validated such elections which may have been declared to be void under law or any order made by any court, before such commencement. Lastly, the Constitution (Eighty‑fifth Amendment) Act, 2001 was pointed out whereby the changes to Article 16(4‑A) were given retrospective effect from 17.06.1995. It was submitted that, unlike the cited instances, there is not even a slight indication in the 105th Amendment Act that it was intended to be retrospective in operation. Countering the submission made on behalf of the Appellants as to the 105th Amendment Act being clarificatory in nature, it was further argued by Mr. Sankaranarayanan that a judgment of this Court cannot be clarified by the Parliament, as the Supreme Court of India is the final arbiter with respect to interpretation of the Constitution.
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He cited Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd. and a judgment of the United States Supreme Court in Plaut v. Spendthrift Farm Inc., amongst others, to elaborate on the limitations on the power of the Legislature to clarify an interpretation of law rendered by the Supreme Court of India. He further submitted that the 105th Amendment Act cannot be treated to be a validating provision, as there has been no invalidation of the 102nd Amendment Act. With the 102nd Amendment Act holding force at the time of enactment of the 2021 Act, he asserted that earmarking 10.5 per cent to one community is tantamount to identifying a community for the benefit of reservation, which can be done only by the President as per the 102nd Amendment Act and therefore, the 2021 Act is an impermissible exercise on the part of the State Legislature. He was vehement in his argument that a statute which is void ab initio for lack of legislative competence cannot be validated by a subsequent amendment and placed reliance on Saghir Ahmad v. State of Uttar Pradesh, Madhya Pradesh V. Sundararamier & Co. v. State of Andhra Pradesh and Deep Chand v. State of Uttar Pradesh. Dr. Dhawan, joining Mr. Sankaranarayanan in asserting that the 105th Amendment Act is prospective in operation, contested the claim of the Appellants, on the 105th Amendment Act being clarificatory and at the same time removing the basis of the judgment of the Supreme Court of India in Dr Jaishri Laxmanrao Patil (supra), as contradictory. According to Dr. Dhawan, the amendment could either be clarificatory of Parliament's intention or purport to remove the basis of the Supreme Court's judgment, but could not be both., On the issue of the 105th Amendment Act, we are unable to agree with the contention of the Appellants that the said amendment is clarificatory and dates back to the introduction of Article 342-A. The Respondents were right in submitting that Parliament had expressly specified the retrospectivity of an amendment whenever it intended to give any amendment retrospective effect. As such we do not intend to scrutinise the Statement of Objects and Reasons and the parliamentary debates on the Constitution (One Hundredth and Twenty-seventh Amendment) Bill, 2021, as it is well established and also reiterated in the majority decision in Dr Jaishri Laxmanrao Patil that where provisions of a statute are ambiguous, the first attempt should be to find meaning in the statute itself, failing which the court may turn to external aids. We have not been called upon to interpret the 105th Amendment Act and nor do we find any vagueness as regards when the 105th Amendment Act has come into effect. The 105th Amendment Act cannot be said to be a validating amendment, as admittedly the 102nd Amendment Act has not been invalidated by the Supreme Court of India. We do not find it necessary to deal with the judgments cited by the Respondents on the impermissibility of clarification of a judgment of the Supreme Court of India by Parliament, as even the Appellants do not contend that the 105th Amendment Act was made to clarify the judgment of the Supreme Court of India in Dr Jaishri Laxmanrao Patil (supra)., Rule 350-A of the Rules framed by the Borough Municipality, by which a rate on land was fixed at a percentage of the valuation based upon capital value, was declared ultra vires Section 73 of the Bombay Municipal Boroughs Act, 1925 in Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad. The Legislature of Gujarat passed the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963, validating the rates so imposed. The said validating legislation was challenged before the Supreme Court of India in Shri Prithvi Cotton Mills Ltd. (supra). The Supreme Court of India was of the opinion that the defect pointed out by the judgment in Patel Gordhandas Hargovindas (supra), being that Section 73 had not authorised the levy of a tax but that of a rate, which had acquired a special meaning in legislative practice as held by the Supreme Court of India, was cured by the validating legislation. The Court upheld the validating statute on the ground that a new meaning to the expression \rate\ was legislatively ascribed, thus putting out of action the effect of the decisions of the courts to the contrary. The Appellants cannot take aid of this judgment to argue that the 105th Amendment Act has to be given retrospective effect, since the 105th Amendment Act cannot be treated as a validating amendment as no part of the 102nd Amendment Act has been invalidated. The contention of the Appellants that the 105th Amendment Act, being an amendment relating to procedure, has to be construed as retrospective along the lines of K.S. Paripoornan (supra), is misconceived. Identifying certain communities which are to be deemed as Socially and Educationally Backward Classes for the purposes of the Central Government and the States cannot be said to be a matter of procedure. The procedural aspect of the 102nd Amendment Act and the 105th Amendment Act is only the manner of publication of the lists of SEBCs, whereas the substantive element of the said amendments is identifying and recognising certain communities as SEBCs. Thus, we see no force in the submission of the Appellants that the 105th Amendment Act is clarificatory in nature and has to be given retrospective effect from the date on which the 102nd Amendment Act came into effect., At the time of enactment of the 2021 Act, there is no doubt therefore, that the 102nd Amendment Act held force. The majority in Dr Jaishri Laxmanrao Patil (supra) was of the view that identification of SEBCs and their inclusion in a list to be published under Article 342-A can be done only by the President, after the insertion of Articles 366(26C) and 342-A. The list of SEBCs to be notified by the President under Article 342-A shall be the only list for the purposes of the Constitution. It was concluded in the said judgment that the change brought about by the 102nd Amendment Act, especially under Article 342-A, was only with respect to the process of identification of SEBCs and their list. It was categorically held that the power to frame policies and legislation with regard to all other matters, i.e., the welfare schemes for SEBCs, setting up of institutions, grants, scholarships, extent of reservation and special provisions under Articles 15(4), 15(5) and 16(4) are entirely with the State Government in relation to its institutions and its public services. It was further clarified that the extent of reservation, the kind of benefits, the quantum of scholarships, the number of schools which are to be specially provided under Article 15(4) or any other beneficial or welfare scheme conceivable under Article 15(4) can all be achieved by the State through its legislative and executive powers. Recognising that the President was yet to prepare and publish a list under Article 342-A(1), the Supreme Court of India held that a comprehensive list should be published expeditiously and, in exercise of its powers under Article 142 of the Constitution, directed that till the time of the publication of such list, the SEBC lists prepared by the States would continue to be operative., Backward Classes, Most Backward Classes (MBCs) and Denotified Communities (DNCs) have been identified for reservation in educational institutions and for public employment by Government Order No. 28 dated 19.07.1994 under the 1994 Act. Thirty per cent reservation was provided for Backward Classes and 20 per cent for MBCs and DNCs together. The Vanniakula Kshatriya community has consistently featured in the list of MBCs since 1957 and was also included in the list of MBCs in Government Order No. 28 dated 19.07.1994, pursuant to the 1994 Act. By the 2021 Act, 10.5 per cent out of the 20 per cent reservation for MBCs and DNCs was earmarked for the Vanniakula Kshatriya community. Identification of the Vanniakula Kshatriyas as a community within the MBCs was not the subject‑matter of the 2021 Act, as this exercise had already been completed pursuant to the 1994 Act. Under the 2021 Act, sub‑classification of the MBCs and DNCs and apportionment of a particular percentage of reservation is for the purpose of determining the extent of reservation for communities within the MBCs and DNCs, which is a permissible exercise of power by the State Government, according to the majority judgment in Dr Jaishri Laxmanrao Patil (supra). What the 102nd Amendment prohibits the State from undertaking is identifying a caste as SEBC or including or excluding a community from the list notified by the President. We are not in agreement with the contention of the Respondents that determining the extent of reservation for a community amongst the list of Most Backward Classes amounts to identification. In view thereof, the High Court has committed an error in holding that the 2021 Act is violative of Article 342-A., Permissibility of sub‑classification amongst backward classes. Placing reliance on the judgment of the Supreme Court of India in E.V. Chinnaiah v. State of Andhra Pradesh, the High Court held that all castes including the sub‑castes, races, tribes mentioned in the list are to be members of one group for the purpose of the Constitution and cannot be further sub‑divided so as to give more preference to a minuscule portion thereof. The High Court also observed that, as per E.V. Chinnaiah (supra), all the castes included in the Schedule under Article 341 of the Constitution would be deemed to be one class of persons., On behalf of the Appellants, it was contended that the High Court committed an error in relying upon E.V. Chinnaiah (supra), which pertained to the interpretation of Articles 341 and 342, to conclude that classification is not permissible even in respect of backward classes. It was argued that it is clear from Indra Sawhney v. Union of India that sub‑classification of backward classes is permissible. Stress was also laid on the fact that the correctness of E.V. Chinnaiah (supra) has been referred for consideration by a larger Bench in State of Punjab v. Davinder Singh. It was urged that the permissibility of sub‑classification amongst backward classes as has been done in the 2021 Act cannot be contested. Reasonableness of sub‑classification is a separate question to be determined by the Supreme Court of India., On the other hand, Dr. Rajeev Dhawan and Mr. R. Balasubramanian submitted that backward classes can be subdivided into backward and more backward classes in accordance with Indra Sawhney (supra), but further differentiation of MBCs is not permissible as it would amount to micro‑classification, as correctly held by the High Court., The Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 was challenged before the High Court of Andhra Pradesh. Fifty‑seven castes enumerated in the Presidential list of Scheduled Castes were categorised into four groups based on inter se backwardness and separate quotas were fixed in reservation for each of these groups by the State of Andhra Pradesh. A five‑Judge Bench of the High Court by a majority of 4:1 dismissed the writ petitions. In E.V. Chinnaiah (supra), the main contention of the appellants before the Supreme Court of India was that the State lacked legislative competence in enacting the said legislation which, according to the appellants, was solely meant for subdividing or subgrouping the castes enumerated in the Presidential list, as under Article 341(2) bifurcation of the Presidential list can be done only by Parliament. Alternatively, it was submitted that this subgrouping amounted to micro‑classification of the Scheduled Castes, in violation of Article 14 of the Constitution. Three questions were framed by the Supreme Court of India in E.V. Chinnaiah (supra): (1) Whether the impugned Act is violative of Article 341(2) of the Constitution of India? (2) Whether the impugned enactment is constitutionally invalid for lack of legislative competence? (3) Whether the impugned enactment creates subclassification or micro‑classification of Scheduled Castes so as to violate Article 14 of the Constitution of India?, In E.V. Chinnaiah (supra), the Supreme Court of India was of the opinion that Article 341 made it clear that the State, either by legislative or executive action, had no power of disturbing the Presidential list of Scheduled Castes and therefore any executive or legislative act of the State which interferes, disturbs, rearranges, regroups or reclassifies various castes in the Presidential list is violative of Article 341 and the scheme of the Constitution. Further, it was held that castes identified by the President under Article 341 formed a class in themselves and any division of these classes based on any consideration would amount to tinkering with the Presidential list. As the primary object of the impugned enactment in that case was to create groups of sub‑castes in the list of Scheduled Castes, the Supreme Court of India concluded that the State does not have legislative competence to divide the Scheduled Castes, tracing its claim to Entry 41 of List II and Entry 25 of List III. Regarding the contention of sub‑classification of Scheduled Castes, the Supreme Court of India rejected the respondents' argument that the ratio of Indra Sawhney applied to the facts of E.V. Chinnaiah, pointing out that subclassification dealt with by Indra Sawhney related only to Other Backward Classes and not Scheduled Castes, as the judgment in Indra Sawhney itself expressly held that subdivision of Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes because the Constitution keeps the Lists of Scheduled Castes and Scheduled Tribes out of interference by the State Governments., A close scrutiny of E.V. Chinnaiah (supra) makes it clear that the High Court was wrong in relying upon that judgment to hold that sub‑classification of backward classes is beyond the legislative competence of the State. E.V. Chinnaiah (supra) primarily relates to the power of the State legislature in categorising the Scheduled Castes identified under Article 341 into four groups, an effect held to be a modification of the Presidential list, which Article 341 precludes the States from doing. As was clearly expressed by the Supreme Court of India in E.V. Chinnaiah (supra), the issue of sub‑classification of backward classes was dealt with in Indra Sawhney (supra). The following paragraphs authored by Justice Jeevan Reddy, after referring to observations of Justice Chinnappa Reddy in K.C. Vasanth Kumar v. State of Karnataka, are pertinent: “We are of the opinion that there is no constitutional or legal bar to a State categorising the backward classes as backward and more backward. We are not saying that it ought to be done. We are concerned with the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take the criteria evolved by the Mandal Commission. Any caste, group or class which scored eleven or more points was treated as a backward class. There may be some castes/groups/classes which have scored points between 20 to 22 and some which have scored points between eleven and thirteen. It cannot reasonably be denied that there is a difference between these two sets. To give an illustration, take two occupational groups viz., goldsmiths and vaddes (traditional stone‑cutters in Andhra Pradesh) both included within Other Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both are grouped together and reservation is provided, goldsmiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them. Where to draw the line and how to effect the classification is, however, a matter for the Commission and the State and, so long as it is reasonably done, the Court may not intervene. In Andhra Pradesh the Backward Classes have been divided into four categories: Group A comprises Aboriginal tribes, Vimukta jatis, nomadic and seminomadic tribes etc.; Group B comprises professional groups like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc.; Group C pertains to Scheduled Castes converts to Christianity and their progeny; Group D comprises all other classes/communities/groups not included in Groups A, B and C. The 25 % vacancies reserved for backward classes are sub‑divided between them in proportion to their respective population. This categorisation was justified in Balram [(1972) 1 SCC 660 : (1972) 3 SCR 247]. Article 15(4) recognises only one class viz., backward class of citizens. It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Yet Scheduled Castes and Scheduled Tribes are also included in the expression backward class of citizens and separate reservations can be provided in their favour. If Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, OBCs will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation between more backward and backward. Sawant, J. was also of the opinion that sub‑classification of backward and more backward classes would be permissible, provided that separate quotas are provided for each of them. It is crystal clear from the judgment of Indra Sawhney that backward classes can be sub‑classified. Whether the subclassification under the 2021 Act is reasonable will be addressed subsequently, but there is no doubt about the permissibility of sub‑classification amongst backward classes.”, By drawing strength from E.V. Chinnaiah (supra), the High Court was of the firm view that there cannot be any subdivision of castes including sub‑castes, races and tribes mentioned in the Presidential list. In E.V. Chinnaiah (supra), it was held that castes once included in the Presidential list form a class by themselves and any division of these classes or persons based on any consideration would amount to tinkering with the Presidential list. According to the plural opinion in Dr Jaishri Laxmanrao Patil (supra), the list of SEBCs with respect to States was to be notified by the President after due consultation with the National Commission for Backward Classes under Article 342-A. Admittedly, this was not done till the time of enactment of the 2021 Act. Exercising powers under Article 142 of the Constitution, the Supreme Court of India in Dr Jaishri Laxmanrao Patil (supra) directed that till the publication of the list of SEBCs by the President, the SEBC lists prepared by the States would continue to hold the field. Thus, even on consideration of the law laid down in E.V. Chinnaiah (supra), it is clear that a Presidential list for SEBCs did not come into existence and the question of sub‑division of the said list by way of the 2021 Act does not arise. Therefore, the finding of the High Court in this regard is erroneous., Bar on competence under Article 31-B of the Constitution. The constitutionality of the 2021 Act was assessed by the High Court under Article 31-B of the Constitution. The High Court observed that a statute placed in the Ninth Schedule shall continue to be in force till it is amended or repealed. In the present set of facts, the High Court was of the view that without amending the 1994 Act, which provides for undivided 20 % reservation to MBCs and DNCs together, the State lacked the legislative competence to provide internal reservation to one community from amongst that group of communities by way of a separate but similar legislation. Reference was drawn to amendments made by the State of Tamil Nadu to statutes placed in the Ninth Schedule, which were also included in the Ninth Schedule., Dr. Singhvi, referring to Section 7 of the 1994 Act, submitted that the scheme of reservation under the 2021 Act was not a new scheme over and above the reservation provided for under the 1994 Act. Section 7 of the 1994 Act expressly provided for classification and sub‑classification of the Backward Classes of citizens by the State by notification, for the purposes of the said statute. Dr. Singhvi pointed out that the power under Section 7 had been exercised by the State earlier in enacting the Tamil Nadu Backward Class Christians and Backward Class Muslims (Reservation of Seats in Educational Institutions Including Private Educational Institutions and of Appointments or Posts in the Services Under the State) Act, 2007, whereunder three and a half per cent reservations were granted to Backward Class Muslims from the 30 % reserved for Backward Classes under the 1994 Act and which continues to be in force. Accordingly, Dr. Singhvi contended that the High Court was incorrect in its treatment of the 2021 Act as a special statute varying the provisions of the 1994 Act., Mr. Dwivedi proffered arguments on a different aspect of this issue. He submitted that the High Court completely misunderstood the scope of Article 31-B. While Article 31-B provides protection to statutes placed within the Ninth Schedule against challenge in terms of Part III of the Constitution, it cannot be interpreted to restrict the plenary powers of legislation under Article 246 and alter the federal distribution of powers. Additionally, he urged that Article 31-B does not prescribe any procedure for amendment or repeal of a statute in the Ninth Schedule and therefore the High Court's observation on amending statutes also being placed in the Ninth Schedule was only evidence of the procedure adopted with respect to certain amending statutes and not a requirement of every amending statute. Assuming that the Supreme Court of India was not inclined to accept that the 2021 Act was in exercise of Section 7 of the 1994 Act, even then the 2021 Act in its own right is a valid piece of legislation, without the protection of Article 31-B. To support his submissions, he placed reliance on judgments of the Supreme Court of India in Sri Ram Narain Medhi, Chandra Sekhar Singh Bhoi, Godavari Sugar Mills Ltd. and UCO Bank v. Dipak Debbarma., Countering these submissions, the Respondents contended that a statute placed in the Ninth Schedule becomes part of the Constitution and cannot be amended or added to by the State Legislature. Mr. Balasubramanian argued that the 2021 Act is in conflict with the 1994 Act inasmuch as the 1994 Act provides for composite reservation of 20 % for MBCs and DNCs whereas under the 2021 Act, 10.5 % has been delineated for one community from amongst the communities. Article 31-B prescribes that no statute placed in the Ninth Schedule shall be void on the ground that it is inconsistent with, takes away or abridges any right conferred under Part III of the Constitution. The statute placed in the Ninth Schedule shall continue in force, subject to the powers of the competent Legislature to repeal or amend it. According to the Supreme Court of India in Godavari Sugar Mills Ltd., the object of Article 31-B, inserted by the Constitution (First Amendment) Act, 1951, is to give a blanket protection to the acts and regulations specified in the Ninth Schedule and the provisions of those acts and regulations against any challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution. Consequently, even if a provision is violative of fundamental rights, once it is specified in the Ninth Schedule it would not be liable to be struck down. This immunity is available notwithstanding any judgment, decree or order of any court or tribunal to the contrary. The effect of Article 31-B, however, is not to prevent challenge to an enactment on the ground that it is beyond the legislative competence of the Legislature which enacted it. The language of the Article makes clear that the specification of an act or regulation does not prevent the competent legislature from repealing or amending it. The Supreme Court of India further held that the protection of Article 31-B cannot be extended to a new provision inserted as a result of amendment on the ground that it is ancillary or incidental to the provisions already protected by inclusion in the Ninth Schedule. No act, regulation or provision enjoys immunity and protection of Article 31-B unless it is expressly made a part of the Ninth Schedule. This principle holds good irrespective of whether the provision deals with new substantive matters or with matters incidental or ancillary to those already protected. While dealing with the findings of the High Court in the impugned judgment, made on the basis of an earlier decision of the Supreme Court of India in Ramanlal Gulab Chand Shah, the Supreme Court of India in Godavari Sugar Mills observed that legislation which is incidental or ancillary to a statute protected under Article 31-B can be assailed on the ground of inconsistency with Part III of the Constitution., In our view, the 2021 Act cannot be said to suffer from a lack of legislative competence merely because it deals with matters associated with or ancillary to the 1994 Act. Classification of backward classes has been made by the 1994 Act, which was placed under the Ninth Schedule. It is clear from the judgments referred to above that the State has the power to amend or repeal a statute placed under the Ninth Schedule. It is settled law that any amendment made to a statute placed under the Ninth Schedule does not get protection under Article 31-B unless the amendment is also included in the Ninth Schedule. Having scrutinised the above judgments on the objective of Article 31-B, we are unable to see how Article 31-B operates as a hurdle for the State to enact statutes on matters ancillary to the 1994 Act. Article 31-B does not place any fetter on the power of the State to legislate on such matters nor does it prescribe any mandatory requirement for such legislations to be included within the Ninth Schedule, as has been understood by the High Court. The consequence of the 2021 Act not being placed in the Ninth Schedule is that it can be assailed as being violative of the fundamental rights enshrined under Part III of the Constitution, which the Appellants have fairly admitted. It is worthwhile to reiterate the authoritative pronouncement of a five‑Judge Bench of the Supreme Court of India in Maharaj Umesh Singh v. State of Bombay, wherein it was held that the legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and, unless and until there is a provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in Lists II and III of the Seventh Schedule to the Constitution. It was conceded on behalf of the petitioners that the topic of legislation covered by the impugned Act was well within List II of the said schedule and the vires of the impugned Act could not be challenged on that ground. As no express prohibition stems from Article 31-B on the powers of the State Legislature to legislate on matters incidental to statutes placed within the Ninth Schedule, we are not in agreement with the finding of the High Court that the State Legislature lacked legislative competence to enact the 2021 Act on account of Article 31-B., The 2021 Act determined the extent of reservation for communities which had already been identified and categorised by the 1994 Act.
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Assuming that the State Legislature carried out an amendment to the 1994 Act, the said amendment would not have received the protection under Article 31-B. The question that remains to be answered is whether the determination of internal reservation for already identified communities by a separate legislation can be said to be in conflict with the 1994 Act. The Supreme Court of India is of the considered view that detailing the extent of reservation for communities which have already been identified as Most Backward Classes and Denotified Communities cannot be said to be contrary to the 1994 Act. The preamble of the 1994 Act states that in view of requests from various political parties and social forums representing backward classes to consider the ramifications of the judgment of the Supreme Court of India in Indra Sawhney, the State Government had decided that the existing level of 69 per cent reservation in admission to educational institutions in the State and services under the State shall be continued. Determination of extent of reservation for specific communities within the Backward Classes of citizens was not the subject matter of the 1994 Act., The conclusion of the High Court of Tamil Nadu that determining the extent of reservation amongst the Backward Classes of citizens can be done only by amending the 1994 Act in view of Article 31-B is unsustainable. It is made clear that it was open to the State to have amended the 1994 Act. At the same time, it cannot be said that the State Legislature lacked competence to enact a legislation for determining the extent of reservation amongst the Most Backward Classes and Denotified Communities., Effect of the 1994 Act receiving Presidential Assent under Article 31-C of the Constitution. As the 1994 Act received the assent of the President of India, the High Court of Tamil Nadu was of the opinion that the same cannot be varied by the State Government. It was contended on behalf of the Appellants that the High Court of Tamil Nadu was completely wrong in holding that the State does not have the competence to enact the 2021 Act on the ground that it has not received the assent of the President of India. It was pointed out by Mister Dwivedi that the 1994 Act had received assent of the President under Article 31-C as it was enacted for giving effect to the policy of the State towards securing principles laid down in Part IV of the Constitution, in particular, under Article 38, clauses (b) and (c) of Article 39 and Article 46. The 1994 Act contained an express declaration to this effect in Section 2 thereof. He argued that the State is at liberty to decide whether a statute should receive the protection of Article 31-C., Mister Singhvi submitted that as the impugned legislation is pursuant to the mandate of Section 7 of the 1994 Act, which had received the assent of the President, it is not necessary for the State to have reserved the 2021 Act for consideration of the President, by relying upon judgments of the Supreme Court of India in Arnold Rodricks v. State of Maharashtra and Rajiv Sarin v. State of Uttarakhand., Mister Vaidyanathan relied upon a judgment of the Supreme Court of India in State of Kerala v. Peoples Union for Civil Liberties as well as judgments of the High Court of Bombay in Dattatray Yedu Thombre v. State of Maharashtra and Citizens of Deulgaon Raja v. State of Maharashtra and a judgment of the High Court of Madhya Pradesh in Rasal Singh v. State of Madhya Pradesh to submit that assent of the President is not required for enacting a statute with respect to a matter which is within the purview of List Two of the Seventh Schedule of the Constitution and further, that amendment to a statute, which had received the assent of the President, can be carried out with the assent of the Governor, as long as provisions of the amending statute do not fall within the mischief of Article 254. Mister Vaidyanathan contended that assent of the President had not been sought while granting separate reservation provided to the Backward Class Muslims under the 2007 Act and to the Arunthathiyars, within the 18 per cent reserved for Scheduled Castes, under the Tamil Nadu Arunthathiyars (Special Reservation of seats in Educational Institutions including Private Educational Institutions and of appointments or posts in the services under the State within the Reservation for the Scheduled Castes) Act, 2009., Laws giving effect to the policy of the State towards securing principles laid down in clauses (b) and (c) of Article 39 of the Constitution are saved from challenge as being inconsistent with Articles 14 and 19 of the Constitution, as per Article 31-C. Where such law is made by the State Legislature, it shall not receive the benefit under Article 31-C unless it receives the assent of the President. The 1994 Act received the assent of the President as it was made for securing the Directive Principles under Article 38, clauses (b) and (c) of Article 39 and Article 46. The High Court of Tamil Nadu proceeded to hold that the 2021 Act has varied the provisions of the 1994 Act, which could not have been done by the Governor., As already stated, the 2021 Act deals with matters which are incidental or ancillary to those contained in the 1994 Act and the State is competent to legislate on such matters. It is for the State to decide whether a legislation, which is not repugnant to any law made by the Parliament on the same subject matter, should receive the assent of the President or not. If the assent of the President is not sought, the consequence is that the statute made by the State is susceptible to challenge as being violative of Article 14 or Article 19. However, it cannot be said that the State cannot legislate on subject matters ancillary to that of an earlier statute which has received the assent of the President, or that it is mandatory for the State Government to seek the assent of the President for a legislation which the State is otherwise competent to enact., In Indra Sawhney, Justice Jeevan Reddy, writing for himself and three other judges, conclusively clarified that Article 16(1) is a facet of Article 14 and just as Article 14 permits reasonable classification, so does Article 16(1), which means that appointment and or posts can be reserved in favour of a class under clause (1) of Article 16. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. It was further noted that Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. Where the State finds it necessary for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. Justice Pandian, while tracing the legislative history of Article 15(4), observed that the object of Article 15(4), introduced by the Constitution (First Amendment) Act, 1951, was to bring Articles 15 and 29 in line with Articles 16(4), 46 and 340 and to make it constitutionally valid for the State to reserve seats for backward class of citizens, Scheduled Castes and Scheduled Tribes in public educational institutions as well as to make other special provisions as may be necessary for their advancement. From these observations and findings, it is clear that States are empowered to make reservation for backward classes under Articles 15(4) and 16(4). We see no force in the submissions of Mister Vijayan, who attempted to convince the Supreme Court of India that the State Legislature's source of power for enacting the 2021 Act cannot be traced to any Entry in the Lists under the Seventh Schedule of the Constitution., As referenced while dealing with the competence of the State to enact the 2021 Act vis-à-vis Article 31-B, the Supreme Court of India in Maharaj Umeg Singh has unequivocally clarified that no fetter can be implied on the power of the State to legislate, unless it is expressly prohibited under the Constitution. Without any such express bar under Article 31-C, the State's competence to enact the 2021 Act with the Governor's assent cannot be faulted with nor can the State be compelled by the courts to reserve the 2021 Act for assent of the President. In view of our conclusion, we do not deem it necessary to deal with the judgments relied upon by the Appellants., Caste-based classification. Internal reservation of 10.5 per cent for the Vanniakula Kshatriyas was challenged by the writ petitioners before the High Court of Tamil Nadu as being violative of Articles 14, 15 and 16 of the Constitution. Their contention, that internal reservation was only on the basis of caste which amounted to discrimination to the other communities, was accepted by the High Court of Tamil Nadu., The point that arises for our consideration is whether the internal reservation of 10.5 per cent provided for the Vanniakula Kshatriyas is on the basis of caste alone and whether the High Court of Tamil Nadu is right in holding that such classification on the basis of caste is impermissible. This Court in K.C. Vasanth Kumar defined and described caste as below: What then is a caste? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierarchicus is expected to be the central and substantive element of the caste-system which differentiates it from other social systems. The concept of purity and impurity conceptualises the caste system. There are four essential features of the caste-system which maintained its homo hierarchicus character: hierarchy; commensality; restrictions on marriage; and hereditary occupation. Most of the castes are endogamous groups. Inter-marriage between two groups is impermissible. But Pratilom marriages are not wholly known. In Indra Sawhney, Justice Jeevan Reddy observed that caste is nothing but a social class a socially homogeneous class. Justice Jeevan Reddy then proceeded to answer the question relating to identification of backward classes. He was of the considered view that there is no recognised method for identification of backward classes. He held that caste can be the starting point for identifying backward classes, and wherever they are found, the criteria evolved for determining backwardness can be applied to see whether they satisfy the criteria., It is clear from the above that caste can be the basis for providing reservation, but it cannot be the sole basis. At present we are concerned with sub-classification. As stated, it has been held in Indra Sawhney that there is no constitutional or legal bar to a State categorising backward classes as backward and more backward. In the present case, sub-classification for providing internal reservation to a particular community, i.e., the Vanniakula Kshatriyas, will also be governed by the same principle, namely, while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the subclassification and demonstrate that caste has not been the only basis. We are not at present dealing with the inquiry of other factors relied on by the State Government to justify internal reservation for the Vanniakula Kshatriyas. We propose to deal with that point subsequently. At present, we have answered the question relating to caste being the starting basis for providing reservation and for sub-classification of backward classes so as to provide for internal reservation., Scrutiny of the report of Justice Thanikachalam and constitutional validity of the 2021 Act. According to the High Court of Tamil Nadu, there was no quantifiable data available with the State of Tamil Nadu as on the date of enactment of the 2021 Act, which would support their exercise of enabling powers under Articles 15(4) and 16(4) of the Constitution. The High Court of Tamil Nadu was of the view that subclassification of Most Backward Classes and Denotified Communities into three categories for apportionment of reservation under the 2021 Act has been done without any objective criteria and aside from the population figures of 1983, no data was available on (i) the degree of backwardness of the classes for sub-classification; (ii) inadequate representation of these sub-classes; and (iii) efficiency of the administration. Additionally, the High Court of Tamil Nadu has relied on the judgments of the Supreme Court of India in Indra Sawhney, Jarnail Singh v. Lachhmi Narain Gupta and Doctor Jaishri Laxmanrao Patil to hold that the 2021 Act, being an attempt to provide proportionate representation, is against the law laid down by this Court, as it is settled law that adequate representation is not proportionate representation. It was concluded by the High Court of Tamil Nadu that sub-classification would be permissible only on the ground that a class is far far backward than the advanced sections of that class, however, the classification under the 2021 Act was not based on any intelligible differentia as there was nothing on record to show that the other 115 communities were more advanced than the Vanniakula Kshatriyas using any yardstick. Therefore, the classification was made only on the basis of caste, which is unsustainable in law., Mister Rao, Mister Vaidyanathan and Mister Wilson relied on the reports of the Sattanathan Commission and the Ambasankar Commission to show that the condition of the Vanniakula Kshatriyas, in terms of their presence and numbers across Tamil Nadu, their typical occupations and their social and educational status had been assessed meticulously. Emphasis was laid on the manner in which the Ambasankar Commission had conducted their assessment, wherein socio, educational and economic survey of the entire populace of Tamil Nadu was undertaken by employing 2500 personnel and going door-to-door to collect particulars of around five crore people over a period of two years, with a view to find out and identify backward classes entitled to enjoy the reservation benefits for admission into educational institutions and professional colleges and for appointments or posts in the services under the State. It was further submitted that the report of the Janarthanam Commission was based on the Ambasankar Commission Report, which had collected extensive quantifiable data. The Janarthanam Commission had undertaken a feasibility analysis of castes and communities demanding internal reservation and applied a formula for finding out the feasibility factor of each such community. Only after concluding that none of the other castes or communities demanding internal reservation within the 20 per cent reservation granted to Most Backward Classes and Denotified Communities satisfied the test of viability or feasibility for internal reservation, the Janarthanam Commission had recommended 10.5 per cent internal reservation for the Vanniakula Kshatriyas. The Appellants also pointed out that the Janarthanam Commission had studied the representation of Vanniakula Kshatriyas in professional courses for academic years 2006-07 to 2010-11 and in Tamil Nadu Government Services as on 01.08.2010 to demonstrate their inadequate share of enjoyment of reservation benefits, which was far below the proportion of their population to the total population. Accordingly, it was urged by the Appellants that the impugned judgment of the High Court of Tamil Nadu had not applied its mind to the reports and the extensive findings on the basis of the data collected and evaluated. Contesting the impugned judgment, it was further argued by Mister Radhakrishnan that the High Court of Tamil Nadu had not embarked on a limited scrutiny, as is the mandate of the Supreme Court of India in Barium Chemicals Ltd. v. Company Law Board for instances where the subjective opinion of the State is involved, and that the High Court of Tamil Nadu should have restricted itself to examine whether there was data available on the basis of which the State Government had formed its opinion. These submissions were forcefully controverted by the Respondents, on grounds discussed hereinafter., The preamble of the 2021 Act refers to the recommendation of the Chairman, Tamil Nadu Backward Classes Commission for providing 10.5 per cent reservation to the Vanniakula Kshatriya community within 20 per cent. The Chairman of the Commission sought support from the recommendations made by the Janarthanam Commission to recommend internal reservation in favour of the Vanniakula Kshatriyas. To appreciate the submissions on whether the findings of the various Reports are supported by data, it is necessary to deal with the recommendations of the Tamil Nadu Backward Classes Commission, headed by Justice Janarthanam and the letter of Justice Thanikachalam. Given that the Sattanathan Commission and the Ambasankar Commission were not requested to address the issue of provision of internal reservation to specific communities within the Most Backward Classes and Denotified Communities, the reports of these Commissions are not relevant for our discussion., Before we commence our evaluation of the reports of the Janarthanam Commission and of Justice Thanikachalam, it is necessary to briefly outline the contours of judicial review of a Commission's report providing recommendations pertaining to backward classes. As identification of backward classes and grant of reservation are measures under Articles 15(4) and 16(4) of the Constitution, such measures have to pass constitutional scrutiny. While the report of a Commission has to be looked into with deference, it cannot be said that evaluation pertaining to violation of any constitutional principle or non-consideration of any constitutional requirement is beyond the reach of judicial oversight. This Court in State of Andhra Pradesh v. U.S.V. Balram categorically laid down that judicial scrutiny is permissible to enquire into whether the conclusions arrived at by the Commission are supported by the data and materials referred to in its report. In Indra Sawhney, the test laid down in Barium Chemicals was endorsed with respect to judicial review of the subjective opinion of the State in matters relating to reservation. Subsequently, this Court has cautioned against the re-evaluation of the factual material on record. Having considered the above judgments, we say with certainty that it is within the domain of the courts to scrutinise the factual material and data collected by a Commission and assess whether the conclusions of the Commission are justified by such material., By Government Order (Ms) No. 35 dated 21.03.2012, the Government of Tamil Nadu requested the Tamil Nadu Backward Classes Commission to submit a report on the demands made by various communities for internal reservation within the reservation provided for Most Backward Classes and Denotified Communities, apart from other terms of reference prescribed. The Backward Classes Commission consisted of seven members, with Justice Janarthanam chairing the Commission. The other members of the Commission, except the Chairman, expressed their concern that adequate time was not given to them to deliberate on an important issue relating to internal reservation. It was pointed out by the majority in their report that as on 2011-12, updated caste-based statistics were not furnished to them. The majority members observed that their term was coming to an end in July 2012 and it would not be proper for them to submit a report, especially when the parliamentary elections were anticipated. A suggestion was made by the members to provide an interim reply to the Government requesting that updated caste-based census data should be collected and placed before the Commission. Professor D. Sundaram, a member of the Commission, submitted a separate note, in which, along with other recommendations, he stated that there was a need for assessment of quantifiable data by a statistical expert, which should be collated in the current survey on castes. He further suggested a wider consultation with vice-chancellors of universities, directors of institutes, chairmen and members of various recruitment commissions and agencies both at the Centre and State level and all stakeholders of the communities and classes, bureaucrats in various departments, more particularly of the personnel and administrative reforms departments. He also emphasised that the representations preferred by other communities from amongst the Backward Classes for internal reservation need be examined., The Chairman of the Backward Classes Commission submitted his report on 24.05.2012, recommending internal reservation of 10.5 per cent in favour of Vanniakula Kshatriyas. In his report, there is a reference to fifty representations received by the Commission from various castes or communities seeking internal reservation in educational institutions as well as appointments to public posts. Thirty representations were made by communities within the Most Backward Classes, out of which eight were from Vanniakula Kshatriyas, five from Meenavars, one each from Thotiya Naicker, Maruthuvar, Navithar, Salavai Thozhilalar and Erra Gollar, seeking internal reservation on the basis of individual castes or communities. The Commission gathered the population data of all castes and communities listed as Most Backward Classes and Denotified Communities from the Ambasankar Commission Report submitted to the Government in 1985 and other material furnished by the Government to consider the feasibility of the requests for internal reservation. It was mentioned in the report that the total population of the State of Tamil Nadu representing all castes and communities during 1983 was 49,990,943. The population of the Most Backward Classes and Denotified Communities was 12,317,745. The population of the Vanniakula Kshatriyas was 6,504,855, which came up to 13.012 per cent of the total population. The Chairman of the Commission worked out the percentage of internal reservation from the population figures, which formed the basis of the feasibility analysis conducted. On the basis of a formula that was adopted by the Chairman, the feasibility factor of the Vanniakula Kshatriyas was 10.562 per cent. The other communities or castes seeking internal representation were found to be not entitled for the benefit as they did not satisfy the test of feasibility for making internal reservation, falling about or below two and a half per cent on the basis of their population proportionate to the population of Most Backward Classes and Denotified Communities together. The report further stated that preparation of roster for working out reservation would become complicated, if representations by other communities asking for internal reservation were to be accepted., By taking into account the population of the Vanniakula Kshatriyas as enumerated in the report of the Ambasankar Commission in 1985, the Chairman recommended internal reservation to the Vanniakula Kshatriyas in proportion to their population, i.e., 10.5 per cent. The Chairman further referred to the admissions of students belonging to the Vanniakula Kshatriya community in professional courses such as engineering, medicine, veterinary science, agriculture and law for the academic years 2006-07 to 2010-11 and found that the seats secured to engineering courses was not proportionate to their population. Insofar as public employment is concerned, representation of Vanniakula Kshatriyas in the State services averaged across Group A, Group B, Group C and Group D, as on 01.08.2010, was 8.67 per cent, which was also below 10.5 per cent, i.e., the percentage of internal reservation earmarked by the Chairman. The Chairman was of the view that providing internal reservation to the Vanniakula Kshatriyas would not amount to conferring undue advantage on them nor would it unduly affect the entitlement of reservation benefits of the other castes and communities listed as Most Backward Classes and Denotified Communities., As stated, the Tamil Nadu Backward Classes Commission was reconstituted on 08.07.2020, with Justice Thanikachalam as the Chairman, along with six members and two ex-officio members. In response to the Government's request on 18.02.2021 to send views on internal reservation to be provided for communities listed in Most Backward Classes and Denotified Communities, Justice Thanikachalam, by way of letter dated 22.02.2021, recommended 10.5 per cent reservation for Vanniakula Kshatriyas, seven per cent for Denotified Communities and some Most Backward Classes and two and a half per cent for the remaining Most Backward Classes. In the said letter, a reference was made to the recommendation of Justice Janarthanam for grant of 10.5 per cent internal reservation to Vanniakula Kshatriyas. Without providing any reasons, Justice Thanikachalam made adverse comments on the dissent of the other members by stating that such opinion was based on extraneous reasons, which were irrelevant and not germane to the consideration of issues under the additional terms of reference issued in 2012. Justice Thanikachalam was of the view that the recommendation of Justice Janarthanam, though being the minority opinion, was unassailable. However, noting that the terms of reference of the Janarthanam Commission required the Commission to consider representation for internal reservation of various communities and not just major communities, Justice Thanikachalam recommended, in addition to the 10.5 per cent reservation for the Vanniakula Kshatriyas, allocating seven per cent reservation to a grouping of communities, comprising Denotified Communities along with certain communities within Most Backward Classes bearing names similar to Denotified Communities and fishermen communities and Vannar communities within Most Backward Classes, and allocating two and a half per cent to the remaining communities within Most Backward Classes. It is worthwhile to reiterate that at the time, no report had been submitted by the Kulasekaran Commission, which was appointed by the Government on 21.12.2020 for collection of quantifiable data on castes, communities and tribes in the State of Tamil Nadu as on date., As contested by Mister Nagamuthu and Mister Balasubramanian, it is clear that the report of Justice Janarthanam, relied upon by Justice Thanikachalam, is a minority view. The views of the plurality, i.e., the remaining six members of the Tamil Nadu Backward Classes Commission were contrary to the views expressed by Justice Janarthanam. The majority opinion clearly mentioned that the data that was available before them was outdated. They highlighted the importance of collection of caste-wise data to enable them to give an opinion on internal reservation. That apart, the majority members expressed the inappropriateness of submitting the report in haste, just before the ensuing parliamentary elections in 2012. Justice Thanikachalam committed an error in brushing aside the opinion of the majority members on the ground that it was riddled with extraneous reasons. Without justifying the lack of updated data cited by the majority as a ground for being unable to comment on grant of internal reservation, Justice Thanikachalam blindly followed the recommendation of Justice Janarthanam, by stating that his view is unassailable. It is to be noted that the recommendation of internal reservation for the Vanniakula Kshatriyas is by way of a letter signed only by Justice Thanikachalam and does not enclose the views of the remaining members of the Tamil Nadu Backward Classes Commission. There is nothing in the said letter to even suggest that Justice Thanikachalam, after due deliberation with the remaining members of the Commission, has put forth recommendations on internal reservation, which have the backing of the remaining members, or at the least, the approval of the majority., Providing internal reservation of 10.5 per cent from the 20 per cent made available to Most Backward Classes and Denotified Communities would definitely be to the detriment of other communities, in the absence of any exercise undertaken or any findings arrived at to demonstrate that members of the Vanniakula Kshatriya community are unable to compete with the remaining communities within the Most Backward Classes and Denotified Communities. No data or material is referred to in the letter by Justice Thanikachalam on the representation of the remaining communities within the Most Backward Classes and Denotified Communities in educational institutions or public employment, which could support the severe restriction in the extent of reservation made available to these communities, who had been entitled to avail the benefit of 20 per cent reservation en masse till the enactment of the 2021 Act. The following paragraph from Doctor Jaishri Laxmanrao Patil, as relied upon by Mister V. Prakash, is relevant to the present context: The word adequate is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in mainstream and they are to be enabled to share power of the State by affirmative action. To be part of public service, as accepted by the society of today, is to attain social status and play a role in governance. The governance of the State is through service personnel who play a key role in implementing government policies, its obligation and duties. The State for exercising its enabling power to grant reservation under Article 16(4) has to identify inadequacy in representation of backward class who is not adequately represented. For finding out adequate representation, the representation of backward class has to be contrasted with representation of other classes including forward classes. It is a relative term made in reference to representation of backward class, other caste and communities in public services., It is relevant to note that Justice Janarthanam in his report relied upon the population figures of the Vanniakula Kshatriyas from the year 1985. His recommendation was on the basis of the figures taken from the report of the Ambasankar Commission, submitted in 1985. Reference made to admissions to engineering colleges and appointment to public posts pertained to the years 2006-07 to 2010-11 and 2010, respectively. A decision taken for providing reservation which would impact the rights of members of as many as 115 communities should be on the basis of contemporaneous inputs and not outdated and antiquated data. Any study by the Commission should be with regard to the present status since the object is to take affirmative actions in present or in future to address the needs of a particular community. In this particular case, the data that was relied on for the purpose of recommending internal reservation to the Vanniakula Kshatriyas is from 1985. The State Government, at the time of appointing the Kulasekaran Commission to collect quantifiable data on castes, communities and tribes in the State of Tamil Nadu, including migrants domiciled therein, expressly recognized the need for collection of such data as the data collected by the Ambasankar Commission had become more than three decades old.
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We are in agreement with the objection of the Respondents, that there was no contemporaneous data available to Justice Thanikachalam or even Justice Janarthanam, on the basis of which recommendations for internal reservation could have been made. It is observed that the proportion of the population of the Vanniakula Kshatriyas to the total population of Most Backward Classes and Denotified Communities, termed as the feasibility formula, was the sole criterion which was considered by Justice Janarthanam to recommend internal reservation for the Vanniakula Kshatriyas. The representations made by other communities within the Most Backward Classes seeking internal reservation were not considered feasible by Justice Janarthanam on the sole basis of the proportion of their population to the total population of the Most Backward Classes and Denotified Communities together. Supreme Court of India is of the opinion that percentage of population of the Vanniakula Kshatriyas proportionate to the total population of the Most Backward Classes and Denotified Communities cannot be the sole criterion for providing internal reservation. Adequacy of representation is different from proportionate representation, although proportion of population of the relevant community to the total population may be one of the relevant factors in determining adequacy. In Indra Sawhney, it was held as under: We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits and what is more reasonable than to say that reservation under clause (4) shall not exceed 50 percent of the appointments or posts, barring certain extraordinary situations as explained hereinafter. From this point of view, the 27 percent reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5 percent., In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in V. Narayana Rao v. State of Andhra Pradesh, AIR 1987 AP 53, 1987 Lab IC 152, (1986) 2 Andh LT 258, striking down the enhancement of reservation from 25 percent to 44 percent for Other Backward Classes. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65 percent. Accordingly, we accept the contention of Dr. Dhawan that the internal reservation recommended in the report of Justice Janarthanam and approved by Justice Thanikachalam, based only on population, cannot be sustained in view of the law laid down by this Court., The data placed by Mr. Gonsalves, on behalf of one of the Respondents, with reference to the Tamil Nadu Second Backward Classes Commission (Ambasankar Commission), appears to indicate that unlike the other 115 communities in the same class of Most Backward Classes and Denotified Communities, many of whom have been bereft of any benefit of affirmative action, the Vanniakula Kshatriyas had higher representation in public employment and educational institutions. For the years 1980‑1983, 25 communities from 48 communities identified as Most Backward Classes and 66 out of 68 communities identified as Denotified Communities did not get admission into MBBS courses. Students belonging to the Vanniyar community secured 104 seats in medical courses, with an admission to population ratio of 1:62,547. Eighty‑seven students out of these 104 were admitted on the basis of reservation whereas 17 students were admitted on their own merit. The Respondents also placed certain data obtained under the Right to Information Act, 2005 pertaining to the academic years 2019‑2020 and 2020‑2021. While the total seats available for admission to undergraduate medical courses for the year 2019‑2020 in the State of Tamil Nadu were 4,193 with 20 percent seats reserved for Most Backward Classes and Denotified Communities amounting to 960 seats, students from the Vanniyar community had secured 515 seats, which is around 57 percent of the total seats reserved for Most Backward Classes and Denotified Communities. Citing from the Ambasankar Report, it was submitted that with respect to engineering, law and veterinary science courses as well, students from the Vanniyar community fared far better than other communities within the Most Backward Classes and Denotified Communities, many of whom did not get any seats in these courses for the period from 1980 to 1983. Representation of Vanniyars in public posts in the Government of Tamil Nadu for the years 1980 to 1983, according to the Ambasankar Commission Report, was much better in comparison to persons belonging to the other communities within the Most Backward Classes and Denotified Communities. Particulars provided of staff members in Anna University for the years 2018 to 2020, obtained under the Right to Information Act, appear to paint a picture of better access and representation of members of the Vanniyar community over their compatriots belonging to other communities within Most Backward Classes and Denotified Communities. We are informed that 520 Members of the Legislative Assembly belonging to the Vanniyar caste have been elected to the Tamil Nadu Legislative Assembly between 1952 and 2021, averaging about 35 MLAs in each Assembly and forming 15 percent of the strength of the House. More than 90 persons from the Vanniyar caste have been elected to the Lok Sabha in the same period, which is also about 15 percent of the total number of Members of Parliament from Tamil Nadu. Several individuals from the Vanniakula Kshatriya community have held posts of Ministers at the Centre as well as in the State Government and have also been appointed as Judges of the High Court. We are further informed that numerous trusts have been established, which cater to the betterment of members, and educational needs of students in particular, from the Vanniyar community., We have referred to this data only to emphasize that the findings in the letter of Justice Thanikachalam had to be suitably supported by independent studies and assessment of relevant data. We make it clear that the aforesaid observations do not prevent the State, if it so decides, from undertaking suitable exercises for collecting pertinent contemporaneous data to determine how demands for internal reservation within the Backward Classes can be justly addressed., Having dealt with the recommendations from Justice Thanikachalam, which form the basis for the 2021 Act, the question which requires to be considered next is whether the 2021 Act is unconstitutional, being violative of Article 14 of the Constitution. The preamble of the 2021 Act refers to the representation made by the Vanniakula Kshatriyas for a separate quota of reservation on the ground that they could not compete with the other communities in the list of Most Backward Classes and Denotified Communities, which was referred to the Backward Classes Commission. The preamble further refers to the recommendations made by the Chairman of the Backward Classes Commission (Justice Thanikachalam), where to facilitate distributive social justice, apart from the 10.5 percent reservation for Vanniakula Kshatriyas, the other communities within the Most Backward Classes and Denotified Communities were recommended to be grouped into two categories on the proportion of their population. Accepting the suggestions made by the Chairman, Backward Classes Commission, the 2021 Act was promulgated to ensure equitable distribution of the 20 percent reservation provided to the Most Backward Classes and Denotified Communities under the 1994 Act., That there is no relevant, contemporaneous material which was examined by the Chairman, Backward Classes Commission before submitting his report in support of the claim of the Vanniakula Kshatriyas, has been dealt with in detail in the preceding paragraphs. Is the State right in contending that the classification of the Vanniakula Kshatriyas made by the 2021 Act for separate reservation is reasonable? The Appellants relied on Chiranjit Lal Chowdhuri v. Union of India to urge that the presumption is in favour of constitutionality of the 2021 Act and the burden is upon those who attack the legislation to demonstrate that constitutional principles had been clearly transgressed. Further, support was sought from Ajay Kumar Singh v. State of Bihar to contend that the State is in the best position to determine what kind of special provision should be made in favour of a particular class, having regard to the relevant facts and circumstances, and deference must be shown to legislative judgment. The Respondents contested the above submissions on the ground that the classification made under the 2021 Act amounts to discriminating equals. Reliance was placed on Col. A.S. Iyer v. V. Balasubramanyam to argue that an anxious and sustained attempt to discover some basis for classification will deprive Article 14 of the equality dispensation. In the absence of any rationale for treating the Vanniakula Kshatriyas differently, the differentiation and allocation of percentages was entirely arbitrary and falls foul of Article 14., Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same. This brings in the question of classification. As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose conditions are substantially similar under the same rule of law, while applying different rules to persons differently situated. The classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid. The whole doctrine of classification is based on discrimination without reason and discrimination with reason and on the well‑known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances., Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to equal treatment. Equality is amongst equals. Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. Articles 14, 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 reservation of appointments and posts for them to secure adequate representation. These provisions are intended to bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). However, it is to be noted that equality under Articles 15 and 16 could not have a different content from equality under Article 14. Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial., As stated supra, the object of the 2021 Act is to achieve equitable distribution of the benefit of 20 percent reservation provided to Most Backward Classes and Denotified Communities. At the time of enactment of the 2021 Act, 116 castes were found in the cumulative lists of Most Backward Classes and Denotified Communities. Choosing a particular caste and providing a special reservation of 10.5 percent out of the 20 percent to such caste is discriminatory, in the absence of any sound differentiation from communities who are similarly situated and were, therefore, grouped together for the purposes of receiving the benefits of 20 percent reservation. While the State Government has the competence to classify the Vanniakula Kshatriyas or any other community or group of communities within backward classes as a particular class for the grant of special measures, there should be a reasonable basis for categorising such communities into a different section from the rest of the communities within the Most Backward Classes and Denotified Communities, on grounds which cannot be superficial or illusory., The justification on behalf of the State is that sufficient material was gathered by the Tamil Nadu Backward Classes Commission to show that there was inadequate representation, disproportionate to the population of the Vanniakula Kshatriyas, thereby culminating in the 2021 Act, which aimed to achieve equitable distribution of reservation amongst Most Backward Classes and Denotified Communities. A perusal of the discussion in the earlier paragraphs would disclose that the letter from the Chairman, Backward Classes Commission is on the basis of antiquated data, without any assessment of the relative backwardness and representation of the Vanniakula Kshatriyas and their ability to compete with the remaining 115 communities within the Most Backward Classes and Denotified Communities. Additionally, recommendations therein are solely based on population. To differentiate a particular class or category from others, there should be a substantial distinction which clearly demarcates that class or category. In the instant case, we see no justification for how the Vanniakula Kshatriyas can be treated as a different class and meted out preferential treatment, being one amongst the 116 communities, who have all been considered on the same footing till the enactment of the 2021 Act and were, therefore, eligible to claim the benefit of undivided 20 percent reservation. Population being cited as the sole factor to support this classification is in the teeth of the judgments of this Court in Indra Sawhney and Jarnail Singh. Accordingly, we hold that the classification sought to be made under the 2021 Act is unreasonable and, therefore, the 2021 Act is violative of Articles 14, 15 and 16, as there is no substantial basis for differentiating the Vanniakula Kshatriyas and granting them separate reservation., Mr. Sankaranarayanan argued that providing internal reservation is a major policy matter, which should have been undertaken by the State only with the consultation of the National Commission for Backward Classes. As, admittedly, there was no consultation, the 2021 Act is void. Article 338B(9) provides that the Union and the State Government shall consult the Commission on all major policy matters affecting the Socially and Educationally Backward Classes. A proviso was inserted by the 105th Amendment Act, by which it was specified that clause (9) of Article 338B would not be applicable to lists of Socially and Educationally Backward Classes that are prepared and maintained by the States. However, the 2021 Act was brought into force prior to the 105th Amendment Act. Having concluded that the 105th Amendment Act was prospective in its operation, it necessarily follows that the State was required to have consulted the Commission on major policy matters prior to the 105th Amendment Act. There cannot be any dispute regarding internal reservation being provided to a specific community qualifying as a major policy decision. The point that falls for consideration is the consequence of non‑consultation by the State Government with the National Commission for Backward Classes before providing internal reservation. Given the language of the provision and its interpretation in Dr. Jaishri Laxmanrao Patil, there need not be a detailed discussion about Article 338B(9) being mandatory. The requirement of consultation with an expert constitutional body is indeed mandatory and it would be fatal to disregard the provision. However, non‑consultation by the State Government with the National Commission would not take away the competence of the State Government to enact the 2021 Act. Legislative competence can only be circumscribed by express prohibition contained in the Constitution itself and Article 338B(9) does not stop the State from enacting legislation in furtherance of a major policy matter but states that the State Government shall consult the Commission on such matters., The consequence of disregarding a mandatory consultation provision would normally render the legislation void as it is in breach of an obligatory requirement to consult an expert constitutional body. However, we refrain from going into this issue in view of our earlier conclusion that the 2021 Act does not withstand scrutiny under Articles 14, 15 and 16 of the Constitution., We hold that there is no bar on the legislative competence of the State to enact the 2021 Act and, on the different grounds urged with respect to this issue, we are of the view that: (i) The 105th Amendment Act being prospective in operation, it is the 102nd Amendment Act which held the field at the time of enactment of the 2021 Act. (ii) As the 2021 Act dealt with sub‑classification and apportionment of certain percentage of reservation for the purpose of determining the extent of reservation of communities within the Most Backward Classes and Denotified Communities, it is a permissible exercise of power by the State Government under Article 342A of the Constitution in terms of the judgment of this Court in Dr. Jaishri Laxmanrao Patil. Prior to the 105th Amendment Act, what was prohibited for the State to carry out under Article 342A is the identification of Socially and Educationally Backward Classes, by inclusion or exclusion of communities in the Presidential list of Socially and Educationally Backward Classes. It is clear that the exercise of identification of Most Backward Classes and Denotified Communities had been completed by the State pursuant to the 1994 Act. (iii) There is no bar to the sub‑classification amongst backward classes, which has been expressly approved in Indra Sawhney. Even considering the judgment in E.V. Chinnaiah, which dealt with the sub‑classification of Scheduled Castes identified in the Presidential list under Article 341 and held that any sub‑division of Scheduled Castes by the State would amount to tinkering with the Presidential list, the State’s competence in the present case to enact the 2021 Act is not taken away on this ground as, admittedly, the Presidential list of Socially and Educationally Backward Classes is yet to be published, making the question of tinkering with such list redundant. (iv) Placing of the 1994 Act under the Ninth Schedule cannot operate as a hurdle for the State to enact legislations on matters ancillary to the 1994 Act. Legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and Article 31B does not stipulate any such express prohibition on the legislative powers of the State. (v) Detailing the extent of reservation for communities already identified as Most Backward Classes and Denotified Communities, which is the thrust of the 2021 Act, cannot be said to be in conflict with the 1994 Act, as determination of extent of reservation for various communities was not the subject matter of the 1994 Act. (vi) The 1994 Act, having received the assent of the President under Article 31C, does not prohibit the State Legislature from enacting legislation with the approval of the Governor on matters ancillary to the 1994 Act, as Article 31C does not place any fetter on the legislative powers of the State. The State cannot be compelled to seek the assent of the President for legislation granting internal reservation, when it is empowered to provide reservation and other special measures for backward classes, by way of legislation as well as executive orders, under Articles 15(4) and 16(4) of the Constitution. On the issue of caste‑based classification, Indra Sawhney has, in precise and unambiguous terms, stated that caste can be the starting point for identifying backward classes, but it cannot be the sole basis. Accordingly, while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the decision and demonstrate that caste is not the sole basis. As regards the letter of Justice Thanikachalam, Chairman of the Tamil Nadu Backward Classes Commission, which forms the basis of the 2021 Act, we find that the Government has committed an error in accepting the recommendations therein for the following reasons: (i) Recommendations have been based on the report of the Chairman of the Janarthanam Commission, which had relied on antiquated data, and there is a clear lapse on the part of Justice Thanikachalam in having readily dismissed the reservations expressed by the majority members of the Janarthanam Commission, who had observed that in the absence of updated caste‑wise data, recommendations on internal reservation could not be fruitfully made. (ii) Apart from approving the report of the Chairman of the Janarthanam Commission with respect to internal reservation for the Vanniakula Kshatriyas and making additional recommendations on the grouping of the remaining communities for specific percentages of reservation, the letter from Justice Thanikachalam does not refer to any analysis or assessment of the relative backwardness and representation of the communities within the Most Backward Classes and Denotified Communities. (iii) Population has been made the sole basis for recommending internal reservation for the Vanniakula Kshatriyas, which is directly in the teeth of the law laid down by this Court. Finally, on the 2021 Act, we are of the opinion that there is no substantial basis for classifying the Vanniakula Kshatriyas into one group to be treated differentially from the remaining 115 communities within the Most Backward Classes and Denotified Communities, and therefore, the 2021 Act is in violation of Articles 14, 15 and 16. We uphold the judgment of the High Court on this aspect. Given our conclusion on the 2021 Act being ultra vires Articles 14, 15 and 16 of the Constitution, we have refrained from delving into the issue of non‑compliance by the State Government with the consultation requirement prescribed under clause (9) of Article 338B at the time of enactment of the 2021 Act., We make it clear that we have not expressed any opinion on the merits of the writ petition challenging the 1994 Act, pending consideration before Supreme Court of India, or, for that matter, challenges to any other legislation which may have been referred to herein and our findings are strictly confined to the issues which have come up for our consideration in relation to the 2021 Act.
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April 12, 2022 Writ Petition (Civil) 157 of 2022 Shaista Afreen and Others vs. State of West Bengal and Others. Writ Petition (Civil) 154 of 2022 Anindya Sundar Das vs. State of West Bengal and Others. Mr. Sabyasachi Chatterjee, Mr. Sayan Banerjee, Ms. Debolina Sarkar, Advocates for the intervenor. Ms. Susmita Saha Dutta, Mr. Sanjeeb Seni, Advocates for the petitioner in Writ Petition (Civil) 157 of 2022. Mr. Phiroze Edulji, Mr. Rajdeep Biswas, Mr. D. Dandapath, Mr. A.K. Upadhyay, Mr. Biswapriya Samanta, Mr. Debapriya Samanta, Mr. Avijit Ray, Mr. Indratanu Das Mahapatra, Mr. Mansa Ram Mondal, Mr. Sourav Mallick, Mrs. Avipra Sarkar, Advocates for the petitioner in Writ Petition (Civil) 154 of 2022. Mr. S. N. Mookherjee, Senior Advocate General. Mr. Samrat Sen, Additional Advocate General. Mr. Tapas Mukherjee, Ms. Srijita Ray, Advocates for the State. Mr. Dhiraj Trivedi, Additional Solicitor General. Mr. Aganabha Raha, Advocate for the Union of India. Mr. Samrat Goswami, Advocate for the Central Bureau of Investigation., In these Public Interest Petitions, an unfortunate incident of alleged gang rape and death of a minor girl aged about 14 years belonging to the scheduled caste category has been highlighted. It has been alleged that on 4th April 2022, the said minor girl was invited to a birthday party by one Brijgopal Goalain, Shyamnagar area in Hanskhali in Nadia district of West Bengal, who is stated to be the son of an influential political leader of the ruling Trinamool Congress Party and a member of Gazna Gram Panchayat. It is further alleged that the girl was gang raped by Brijgopal Goalain with four to five other friends. The record reflects that the girl was sent back to her house at around 8 p.m. in a sick condition. She was unable to stand up and was bleeding from her private parts and was smelling of alcohol. It was alleged that she was forced to consume alcohol. The mother of the girl went to a local doctor to take medicine and after returning, she found that her daughter was lying dead on the bed. It has been alleged that the family members were prevented from taking her to any private or government hospital and the girl died on account of excessive bleeding from the private parts., Submission of learned counsel for the petitioner is that the family members of the victim were threatened and that police had refused to register the report on the next date and with the intervention of the local non‑governmental organization, the FIR was finally registered by the police after five days. It is also submitted that the father of the accused is a Trinamool Congress leader, therefore, the police is not properly investigating the matter and that no medical legal certificate and post‑mortem of the girl has been done and she has been hurriedly cremated and that even the highest executive of the State is calling it to be an incident of love affair, hence, the people do not have faith that the State police machinery will carry out a fair investigation., This matter was taken up in the first half of the day when learned counsel for the State took time to produce the case diary along with the report in the second half, therefore, matter was passed over., Learned counsel for the State has produced the case diary and the report of the investigation., The submission of learned counsel for the State is that the police authorities are properly investigating the matter. The arrest has been made and the statements under Section 164 of the Code of Criminal Procedure of the concerned persons have been recorded., We have heard the learned counsel for the parties and perused the record., The unfortunate incident of death of a minor scheduled caste girl aged about 14 years is undisputed. Nothing relevant has been pointed out to counter the allegation of the petitioners that the victim has been cremated hurriedly without any medico‑legal examination, without any post‑mortem examination and without any death certificate. The incident had taken place on 4th April 2022 whereas the FIR has been registered on 10th April 2022. In the FIR, no reason for delay in reporting the complaint has been recorded. Learned counsel for the petitioner has made the following allegations and requested us to examine the following points in the case diary: while recording the statement of the witnesses under Section 164 of the Code of Criminal Procedure, no videography as required in terms of proviso of Sub‑section 1 of Section 164 has been done; the victim was found on the road bleeding and was taken by someone but blood‑stained mud has not been seized from the spot of recovery of the girl; no crime reconstruction scene of the incident has been done; the chemical test to trace out the bloodstains was not done, and it has been submitted that the West Bengal Police does not have the necessary facility for that test and it can be done only by ..., The clothes of the victim have not been seized for DNA sampling. The clothes of the accused, which he was wearing at the time of the incident, have not been seized. It has been submitted that those clothes were required to be seized and sent for forensic examination and, referring to the article \Persistence of DNA from laundered semen stains: Implications for child sex trafficking cases\ published by Forensic Science International: Genetics 19 (2015) 165‑171, it is submitted that with advanced techniques, a complete DNA profile can now be obtained from laundered semen stains on clothing even after a long time and multiple washes. It has also been submitted that the FIR is to be uploaded but the name of the complainant may not have been blurred in that. The bedsheet, which was used at the time of commission of the offence and may be filled with blood‑stains, has not been seized. The entire case may be based upon circumstantial evidence because the dead body has been cremated hurriedly; therefore, a minute investigation with advanced technology is required., We have examined the case diary and have also considered the above points which the learned counsel for the petitioner has raised. We find that the investigation suffers from serious lapses on several important aspects. We cannot lose sight of the fact that the accused is the son of a powerful leader of the ruling party and that there is material available in the case diary indicating that the family members of the victim have been threatened. The fact that there is no medical legal certificate, no post‑mortem report and no death certificate also creates a suspicion about an attempt to suppress the entire incident and to wipe out the evidence. Learned counsel for the State submits that there is no death certificate because there is no crematorium in the village, but the said statement appears to be incorrect because a perusal of the case diary shows that the victim was cremated in Shyamnagar Atirpur Burning Ghat (Shamsan). The case diary further reflects that the rape may have been committed upon the victim not only by the person named in the FIR but by other persons also., The Calcutta High Court, in the matter of The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum by order dated 25th March 2022 in Writ Petition (Civil) 130 of 2022, considering the circumstances and scope of handing over the investigation to an independent agency like the Central Bureau of Investigation, has taken note of the legal position as under: The Honorable Supreme Court in the matter of Gudalur M.J. Cherian and Others vs. Union of India and Others reported in (1992) 1 SCC 397, in a case of alleged rape of two nuns at Gajraula in Uttar Pradesh where after filing of charge‑sheet, a prayer for transfer of investigation to the Central Bureau of Investigation was made, has held that in a given situation to do justice between the parties and to instill confidence in the public mind, it may become necessary to ask the Central Bureau of Investigation to investigate a crime. It only shows the efficiency and the independence of the agency. The Honorable Supreme Court in that case had directed the Central Bureau of Investigation to take up the investigation., In the matter of R.S. Sodhi v. State of Uttar Pradesh and Others reported in AIR 1994 SC 38, in a case where allegations were leveled against the local police and it was held that the investigation by State police would lack credibility and that it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of investigation credibility. In the facts of the case, it was observed that however faithfully the local police may carry out the investigation, the same would lack credibility since the allegations were against them. In the matter of Punjab and Haryana High Court Bar Association, Chandigarh vs. State of Punjab and Others reported in AIR 1994 SC 1023, in a case where a practicing lawyer, his wife and child were abducted and murdered and the lawyers fraternity was not satisfied with the police investigation though the investigation was already completed, the Honorable Supreme Court, considering the facts of the case, in order to do complete justice in the matter and to instill confidence in the public mind, directed fresh investigation through a specialized agency., In the matter of State of West Bengal and Others vs. Committee for Protection of Democratic Rights, West Bengal and Others reported in AIR 2010 SC 1476, considering the scope of power of the Court to direct investigation by the Central Bureau of Investigation, it is held that direction to the Central Bureau of Investigation can be given by the Writ Court even in absence of consent of the State and such direction is not incompatible with federal structure or doctrine of separation of powers. It has further been observed that being protectors of civil liberties of the citizens, the Supreme Court and High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. It has been held that such power should be exercised sparingly, cautiously and in exceptional situations. It has also been held that the extraordinary power can be exercised when it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental right., In the matter of Rubabbuddin Sheikh vs. State of Gujarat and Others reported in AIR 2010 SC 3175, the Honorable Supreme Court has held that in order to do complete justice, even after filing of charge‑sheet, the Court can direct to hand over investigation to the Central Bureau of Investigation, more so when high profile officials of the State are involved in crime and investigation is not made in proper direction. In the matter of Ashok Kumar Todi vs. Kishwar Jahan and Others reported in AIR 2011 SC 1254, in the case of unnatural death, where the mother and brother of the deceased were suspecting murder at the hands of the in‑laws of the deceased and the State CID was interested in protracting the investigation, considering the circumstances of the case and the fact that the complainants had expressed doubt about fair investigation under the CID, the Honorable Supreme Court had found investigation by the Central Bureau of Investigation to be proper., In respect of the incident of deaths by police firing in Nandigram, this Court had registered the suo motu petition and in order to ensure fair investigation and avoid possibility of loss or destroying of the relevant evidence, had directed the investigation by the Special Team deputed by the Director of the Central Bureau of Investigation (Association for Protection of Domestic Rights vs. State of West Bengal and Others; 2007 SCC OnLine Cal 672). Counsel for the petitioners have also brought to the notice of this Court the Division Bench judgment in the matter of Bar Association of High Court at Calcutta reported in (2011) 4 CHN 736 (Cal) wherein, considering the circumstances of the case and being prima facie satisfied that the local committee of the Communist Party of India (Marxist) was involved in the incident, the Court had directed the investigation by the Central Bureau of Investigation., In the circumstances of the case and after considering the above legal position, we are of the opinion that in order to have fair investigation in the matter and to instill confidence in the family members of the victim and also the residents of the locality and the State, the investigation should be carried out by the Central Bureau of Investigation instead of the local police. Hence, we direct the State Investigating Agency to hand over the investigation to the Central Bureau of Investigation with immediate effect. The State Investigating Agency will hand over all the papers relating to the investigation along with the custody of the accused persons to the Central Bureau of Investigation forthwith. The Central Bureau of Investigation will furnish a report about the progress of investigation before this Court on the next date of hearing. The concerned authorities are also directed to extend full protection to the family members of the victim and witnesses of the case.
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Petitioner: Surya Pratap Singh. Respondent: State of Uttar Pradesh through Principal Secretary Home and Others. Counsel for Petitioner: Amrendra Nath Tripathi, Abhinav Nath Tripathi. Counsel for Respondent: G.A. Honourable Ramesh Sinha, J., Honourable Jaspreet Singh, J., Allahabad High Court has convened through video conferencing. Heard Shri Amrendra Nath Tripathi, learned counsel for the petitioner and Shri S.N. Tilhari, learned Additional Government Advocate for the State and perused the impugned First Information Report as well as material brought on record., Invoking the jurisdiction of Allahabad High Court under Article 226 of the Constitution of India, the petitioner, namely Surya Pratap Singh, prays for quashing of the First Information Report dated 13.05.2021 registered as case crime no. 0386 of 2021, under Sections 153, 465 and 505 of the Indian Penal Code, Section 21 of the Uttar Pradesh Public Health and Epidemic Diseases Control Act, 2000, Section 54 of the Disaster Management Act, 2005 and Section 67 of the Information Technology Act, 2000 as amended, Police Station Kotwali, District Unnao. He also prays that a writ of mandamus be issued to the respondents no. 1 and 2 not to arrest the petitioner in pursuance of the impugned First Information Report., The impugned First Information Report has been registered against the petitioner for a tweet which he posted on the social media website known as Twitter on 13.05.2021., The allegation levelled against the petitioner in the impugned First Information Report is that photographs attached to the tweet were dated 13.01.2014 and were deliberately used to spread hatred and resulted in spreading tension among different sections in the locality., Learned counsel for the petitioner has argued that the petitioner is a retired Indian Administrative Service officer. He has devoted his life in service of society and has served the nation with full dedication. He has only raised issues of public and social concerns through various social media and, during the outbreak of the COVID-19 pandemic, he raised the grievances of citizens on social media like Twitter. The petitioner being an I.A.S. officer has no intention to malign the image of the Government but only, by posting the contents and news items, wants to draw the attention of the Government towards the problems faced by citizens during the outbreak of the COVID-19 pandemic., While drawing attention towards Section 153A of the Indian Penal Code, learned counsel for the petitioner submitted that the ingredients of Section 153A are not made out even upon considering all materials on record. He argued that the allegations in the First Information Report, in their face value and in their entirety, do not prima facie constitute any offence or make out any case against the petitioner under Section 153A of the Indian Penal Code. He further placed reliance on the decision of the Apex Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335 and argued that applying the principles laid down in State of Haryana v. Bhajan Lal (supra) to the instant case, the materials accompanying the First Information Report (tweet and news items) do not make out any offence against the petitioner., Learned counsel for the petitioner has drawn attention to Sections 465 and 463 of the Indian Penal Code and contended that Section 465 deals with punishment for forgery, whereas Section 463 deals with forgery. In the present case, neither any false document nor electronic record was made with intent to cause damage or injury to the public or to any person, or made in order to support his claim or title in any property. Furthermore, the impugned First Information Report has not been registered by any aggrieved person but by the police suo moto, hence no offence under Sections 463 and 465 of the Indian Penal Code is made out., Learned counsel for the petitioner has drawn attention to Section 505 of the Indian Penal Code, Section 21 of the Uttar Pradesh Public Health and Epidemic Diseases Control Act, 2020, Section 54 of the Disaster Management Act, 2005 and Section 67 of the Information Technology Act, 2000 as amended and has argued that the petitioner is a responsible citizen and in his tweet never intended to spread any rumor or panic among people; the objective of the tweet was that bodies of dead persons be treated with respect and be cremated as per religious rituals. He also argued that the National Human Rights Commission had taken cognizance of the burial of dead bodies and dead bodies floating in the river Ganga and issued notice to the State Government. Therefore, his submission is that the impugned First Information Report is nothing but an attempt to throttle the voice of dissent and is violative of the freedom of speech guaranteed by the Constitution to the citizen of India., Learned counsel for the petitioner has also pointed out that on becoming aware that the representative photograph, though real, could be misused, the petitioner immediately deleted the tweet in the interest of society. The said fact has been mentioned in paragraph 31 of the writ petition., Learned counsel for the petitioner has argued that for the same allegation and the same cause of action, another First Information Report, bearing No. 0417 of 2021, under Sections 270, 505 of the Indian Penal Code, Section 67 of the Information Technology Act, 2008 and Section 3 of the Epidemic Act, 1897 at police station Lanka, District Varanasi, has also been lodged against the petitioner, which is not permissible. He argued that no First Information Report could be lodged for reporting and ventilating grievances on social media as has been held by the Apex Court in Suo Moto Writ Petition (Civil) No. 3 of 2021 titled In Re: Distribution of Essential Supplies and Services During Pandemic, vide order dated 30.04.2021. He has drawn attention towards paragraph 61 of the aforesaid judgment, which reads: “It is only appropriate then that when many cities in India are suffering through the second wave of the COVID-19 pandemic, many have turned to the internet, using applications/websites to find critical support. On these platforms, online communities led by members of civil society and other individuals have assisted the needy in multiple ways, often by helping them procure oxygen, essential drugs or find a hospital bed through their own networks or by amplifying original requests, and even by offering moral and emotional support. However, it is with deep distress that we note that individuals seeking help on such platforms have been targeted, by alleging that the information posted by them is false and has only been posted in social media to create panic, defame the administration or damage the national image. We do not hesitate in saying that such targeting shall not be condoned, and the Central Government and State Governments should ensure that they immediately cease any direct or indirect threats of prosecution and arrest to citizens who air grievances or those that are attempting to help fellow citizens receive medical aid. If this does keep happening even after the current order, this Court shall be constrained to use the powers available to it under its contempt jurisdiction. We also direct that all Directors General of Police shall ensure compliance down the ranks of the police forces within their jurisdictions.”, Learned counsel for the petitioner assures Allahabad High Court that, being a responsible citizen, the petitioner will be careful in making such types of tweets on social media platforms in the future and shall not misuse the same on any account., Having examined the submissions advanced by the learned counsel for the parties and gone through the record and the assurance given by learned counsel for the petitioner that he would be careful in future, prima facie a case for interim relief is made out., Learned Additional Government Advocate has accepted notice on behalf of the opposite parties nos. 1 to 2., Issue notice to respondent no. 3., Each of the respondents is granted four weeks' time to file a counter affidavit., Rejoinder affidavit, if any, may also be filed within two weeks thereafter., List after six weeks., Till the next date of listing or till submission of police report under section 173(2) of the Criminal Procedure Code, if any, before the competent court, whichever is earlier, the arrest of the petitioner Surya Pratap Singh in case crime no. 0386 of 2021, under Sections 153, 465 and 505 of the Indian Penal Code, Section 21 of the Uttar Pradesh Public Health and Epidemic Diseases Control Act, 2000, Section 54 of the Disaster Management Act, 2005 and Section 67 of the Information Technology Act, 2000 as amended, Police Station Kotwali, District Unnao, shall remain stayed, subject to the restraint that the petitioner shall fully cooperate with the investigation and shall appear as and when called upon to assist in the investigation., The party shall file a computer‑generated copy of the order downloaded from the official website of the High Court Allahabad, self‑attested by it along with a self‑attested identity proof of the said person(s) (preferably Aadhaar Card) mentioning the mobile number(s) to which the Aadhaar Card is linked before the concerned court, authority or official., The concerned court, authority or official shall verify the authenticity of the computerized copy of the order from the official website of the High Court Allahabad and shall make a declaration of such verification in writing.
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Non-Reportable Civil Appeal No. 3123 of 2020 Dr. Jaishri Laxmanrao Patil, Appellant(s) versus The Chief Minister & Another, Respondent(s). Civil Appeal No. 3124 of 2020 [Special Leave Petition (Civil) No. 15701 of 2019]. Civil Appeal No. 3127 of 2020 [Special Leave Petition (Civil) No. 16550 of 2019]. Civil Appeal No. 3126 of 2020 [Special Leave Petition (Civil) No. 15991 of 2019]. Civil Appeal No. 3125 of 2020 [Special Leave Petition (Civil) No. 15946 of 2019]. Civil Appeal No. 3128 of 2020 [Special Leave Petition (Civil) No. 16650 of 2019]. Civil Appeal No. 3134 of 2020 [Special Leave Petition (Civil) No. 10754 of 2020] [Diary No(s). 25447 of 2019]. Civil Appeal No. 3131 of 2020 [Special Leave Petition (Civil) No. 19743 of 2019]. Civil Appeal No. 3130 of 2020 [Special Leave Petition (Civil) No. 19742 of 2019]. Civil Appeal No. 3129 of 2020 [Special Leave Petition (Civil) No. 18845 of 2019]. Civil Appeal No. 3132 of 2020 [Special Leave Petition (Civil) No. 8593 of 2020]. Writ Petition (Civil) No. 915 of 2020. Writ Petition (Civil) No. 504 of 2020. Writ Petition (Civil) No. 914 of 2020. Writ Petition (Civil) No. 938 of 2020. Civil Appeal No. 3133 of 2020 [Special Leave Petition (Civil) No. 10753 of 2020] [Diary No(s). 23905 of 2019]. Leave granted., The Maharashtra State Reservation (of Seats for admission in Educational Institutions in the State and for appointments in the Public Services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 (hereinafter referred to as the Act) which came into force on 30 November 2018, declared Marathas to be a Socially and Educationally Backward Class. Reservations to the extent of 16 per cent of the total seats in educational institutions including private educational institutions and 16 per cent of the total appointments in direct recruitment for public services and posts under the State were separately made for socially and educationally backward classes according to Section 4 of the Act. The constitutional validity of the Act was challenged by filing Public Interest Litigations in the Bombay High Court. The Bombay High Court upheld the constitutionality of the Act but reduced the quantum of reservations from 16 per cent to 12 per cent in respect of educational institutions and from 16 per cent to 13 per cent in respect of public employment., The appellants assailed the correctness of the judgment of the Bombay High Court by filing the above appeals. By an order dated 12 July 2019, notice was issued in the Special Leave Petitions giving rise to these appeals. It was made clear that any action taken pursuant to the judgment of the Bombay High Court shall be subject to the result in the Special Leave Petitions. In view of the importance of the issue involved in these appeals, the matter was listed for hearing on 27 July 2020., Although the learned counsel appearing for the appellants pressed for the hearing to commence, the learned counsel appearing for the respondents expressed apprehensions about the feasibility of hearing the appeals through virtual hearing, stating that a large number of advocates are appearing and there is a voluminous record to be perused, which makes it difficult for hearing through video conferencing., On 27 July 2020, Mr. Mukul Rohatgi, learned senior counsel appearing for the State of Maharashtra, referred to a Government Resolution dated 4 May 2020 and submitted that the State Government has taken a decision not to undertake any type of fresh recruitment process except in the Public Health Department and Department of Medical Education and Research. He further submitted that the appeals have to be heard after the commencement of physical courts and that the appellants cannot have a grievance in view of the decision of the State Government to not make appointments to public services and posts. On the contrary, the appellants contended that postponement of the hearing of the appeals would result in loss of seats for the open category candidates in admissions to educational institutions for the current academic year., Relying upon the submissions made on behalf of the State of Maharashtra that no appointments shall be made till 15 September 2020, the Supreme Court of India directed the appeals to be listed after four weeks from 27 July 2020. It was made clear that no interference was warranted in postgraduate medical admissions as they were at a final stage. It was indicated that on 1 September 2020 arguments would be heard on grant of interim relief relating to admissions to the undergraduate medical courses. Interlocutory applications filed on behalf of the respondents for reference of the appeals to a larger bench were directed to be listed for consideration on 25 August 2020., We have heard Mr. Mukul Rohatgi and Mr. P. S. Patwalia for the State of Maharashtra, Mr. Kapil Sibal, Dr. Abhishek Manu Singhvi, Mr. C. U. Singh, Mr. P. S. Narasimha, Mr. Vinay Navare, Mr. Rafique Dada, learned senior counsel and Mr. Sudhanshu S. Choudhari, learned advocate for the applicants, and Mr. Arvind P. Datar, Mr. Shyam Divan, Mr. Pradeep Sancheti, Mr. B. H. Marlapalle, Mr. Gopal Sankaranarayanan, Mr. Siddharth Bhatnagar, and Dr. Gunratan Sadavarte, learned senior counsel, and Mr. Amit Anand Tiwari, learned counsel for the respondents in the applications. The contention of the applicants is that there are substantial questions of law as to the interpretation of the Constitution of India that arise in these appeals and, therefore, they should be referred to a larger bench. It was submitted that Articles 338‑B and 342‑A, which have been inserted by the Constitution (102nd Amendment) Act, 2018, fall for consideration of the Supreme Court of India for the first time. It was further submitted that there is a need for reconsideration of the judgment of this Court in Indra Sawhney v. Union of India, especially after the Constitution (103rd) Amendment, 2019 introduced certain changes to the Constitution of India. According to the applicants, Indra Sawhney needs a re‑look by a larger bench in view of the changing social conditions. Learned counsel for the applicants contended that Janhit Abhiyan v. Union of India, in which the validity of the Constitution (103rd) Amendment, 2019 was challenged, has already been referred to a Constitution Bench. State of Punjab v. Davinder Singh, which involves the interpretation of provisions of the Constitution pertaining to reservations, has also been referred to a larger bench. Thus, the applicants contend that these appeals similarly deserve to be considered by a larger bench. In addition, it was contended that the interplay between Articles 14, 15, 16, 338‑B and 342‑A of the Constitution has not been considered by this Court earlier. On the basis of the above submissions, the learned counsel appearing for the applicants sought reference to a larger bench., On behalf of the respondents, it was submitted that the main question for consideration of the Supreme Court of India is the validity of the Act which provided for reservations in transgression of the 50 per cent ceiling limit fixed by Indra Sawhney. The question of reservations being in excess of 50 per cent has been considered by larger benches of this Court earlier, and hence there is no necessity for reference of the appeals to a larger bench. It was argued that the applications for reference to a larger bench are premature. The respondents contended that according to the proviso to Article 145(3) of the Constitution of India, any application for reference can be filed only during the course of hearing and not at the threshold. State of Punjab v. Davinder Singh relates to subclassification of Scheduled Castes and reconsideration of the judgment of this Court in E. V. Chinnaih v. State of Andhra Pradesh. As such, the issue involved in that case is different from the dispute arising in the present matter. Instances of this Court deciding matters relating to reservations without reference to larger benches were cited by the learned counsel for the respondents. Having relied upon the judgment of this Court in Indra Sawhney before the Bombay High Court, the respondents argued that it is not open to the State of Maharashtra to now doubt the correctness of the judgment., In so far as the submission relating to the reference of these appeals to a larger bench on the ground of the extent of reservations is concerned, we are not in agreement with the learned counsel for the applicants that the appeals warrant reference to a larger bench. Undoubtedly, the Supreme Court of India in Indra Sawhney held that reservations contemplated in Article 16(4) should not exceed 50 per cent except in certain extraordinary situations. The Court was of the opinion that extreme caution has to be exercised and a special case must be made out for exceeding the limit of 50 per cent. The ceiling limit of 50 per cent on reservations has been reaffirmed by this Court in M. Nagaraj. As the question relating to the extent of reservation has already been decided by this Court, it cannot be said that any substantial question of law as to the interpretation of the Constitution arises in this case., However, we find force in the submissions made on behalf of the respondents relating to the Constitution (102nd Amendment) Act, 2018. One of the issues considered by the Bombay High Court at the instance of the writ petitioners is whether the Constitution (102nd Amendment) Act, 2018 affects the competence of the State Legislature to declare a particular caste to be a socially and educationally backward class. According to the writ petitioners, the State Legislature has been denuded of this power after the Constitution (102nd Amendment) Act, 2018 came into force. The Bombay High Court rejected the contention and upheld the legislative competence of the State Legislature. There is no authoritative pronouncement on the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018. We are satisfied that interpretation of Articles 338‑B and 342‑A, which are inserted by the Constitution (102nd Amendment) Act, 2018, involves a substantial question of law as to the interpretation of the Constitution and the determination of such question is necessary for the disposal of the appeal. Thus, as mandated by Article 145(3) of the Constitution of India, these appeals require to be considered by a larger bench. In view of our decision to refer these appeals to a larger bench, we do not consider it necessary to adjudicate on the other points raised by the applicants., In view of the reference of these appeals to a larger bench, it is necessary to consider the request of the appellants for passing interim orders. It was submitted on behalf of the appellants that a strong prima facie case is made out by them as the Act providing reservation in excess of 50 per cent is contrary to the judgment of this Court in Indra Sawhney and M. Nagaraj. It was further asserted that the Marathas have not been treated as a backward class for a long period of time and the balance of convenience is in favour of the general category candidates who would be deprived of a substantial number of seats in educational institutions and posts in public services if the Act is implemented. The appellants contended that a large number of public services and posts are to be filled and implementation of reservations as provided in the Act would cause irreparable loss to the general category candidates. Admissions made to educational institutions would deprive meritorious candidates belonging to the general category of an opportunity to pursue higher education. The learned counsel for the appellants argued that while making a reference to a larger bench, this Court can grant interim orders as has been done in the past in Ashok Kumar Thakur (8) v. Union of India, K. S. Puttaswamy v. Union of India, M. Nagaraj v. Union of India and S. V. Joshi v. State of Karnataka. It was urged on behalf of the appellants that there is no bar on passing interim orders in spite of the existence of the statute. Reliance was placed on State of Rajasthan v. Ganga Sahay Sharma, wherein this Court refused to stay the ongoing legislative process creating reservations for more backward classes which included Gujjars, but restrained the State Government from taking any action conferring reservation that would have the effect of exceeding the total reservations beyond 50 per cent. The appellants also referred to interim orders passed by the High Courts of Madhya Pradesh and Chhattisgarh staying the ordinance and legislation respectively enacted by the states providing reservations in excess of 50 per cent. The appellants pleaded that interim orders made earlier in these appeals making all admissions and appointments subject to the result of these appeals will not protect the interests of the general category candidates as admissions and appointments made on the basis of the Act will not be reversed., The respondents refuted the submissions of the appellants, contending that ordinarily the Supreme Court of India does not pass interim orders staying the operation of statutory provisions. The respondents argued that the appellants are not entitled to seek any interim orders in these appeals which have been filed against the judgment of the Bombay High Court upholding the Act. Reliance was placed on the judgment of this Court reported in Health for Millions v. Union of India, Ashita Dubey v. State of Madhya Pradesh, Ved Prakash Singh Thakur v. State of Chhattisgarh, Bhavesh Parish v. Union of India, State of U. P. v. Hirendra Pal Singh, and Health for Millions v. Union of India in support of the submission. It was argued that once the matter is referred to a larger bench, no interim orders can be passed by the referring court and it should be left open to the larger bench to consider any interim relief. To support this contention, the learned senior counsel for the State of Maharashtra cited the orders of this Court reported in Supreme Court Advocates‑On‑Record Association v. Union of India, State of Tripura v. Jayanta Chakraborty and Tamil Nadu Medical Officers Association v. Union of India. It was also urged that this Court did not pass any interim order while referring the challenge to the Constitution (103rd Amendment) Act, 2019 to a larger bench., It is true that the Act providing reservations has been upheld by the Bombay High Court and the interim relief sought by the appellants would be contrary to the provisions of the Act. The Supreme Court of India in Health for Millions v. Union of India held that courts should be extremely loath to pass interim orders in matters involving challenge to the constitutionality of legislation. However, if the Supreme Court of India is convinced that the statute is ex facie unconstitutional and factors such as balance of convenience, irreparable injury and public interest are in favour of passing an interim order, the Supreme Court of India can grant interim relief. There is always a presumption in favour of the constitutional validity of legislation. Unless the provision is manifestly unjust or glaringly unconstitutional, the courts show judicial restraint in staying the applicability of the same. It is evident from the judgment that normally an interim order is not passed to stultify statutory provisions. However, there is no absolute rule to restrain interim orders being passed when an enactment is ex facie unconstitutional or contrary to the law laid down by this Court., The orders relied upon by the learned counsel for the State of Maharashtra reveal that in those cases the grant of interim relief was left open for consideration by the larger bench. But there is no bar per se for the referring bench to pass interim orders while sending matters to a larger bench. In Ashok Kumar Thakur (8) v. Union of India, K. S. Puttaswamy v. Union of India, M. Nagaraj v. Union of India, S. V. Joshi v. State of Karnataka, P. A. Inamdar v. State of Maharashtra, and Modern Dental College & Research Institute v. State of Madhya Pradesh, this Court passed interim orders while referring the matters to a larger bench. In view of the above, we are of the considered opinion that the referring court is not disabled from passing interim orders merely because the matter is referred to a larger bench., The main contention of the appellants before the Bombay High Court was that the Act is contrary to the law laid down by this Court in Indra Sawhney as the reservations provided by the Act are in excess of 50 per cent. According to the High Court, there is no fetter placed by Indra Sawhney on the power of the State to exceed reservations by more than 50 per cent in a deserving case. In extraordinary and exceptional circumstances the State can provide reservations in relaxation of the rule of 50 per cent. The High Court observed that the extraordinary situations contemplated by Indra Sawhney were not exhaustively set out. The High Court held that the State was justified in providing reservation in excess of 50 per cent in view of the following extraordinary situation and exceptional circumstances: (a) the erroneous exclusion of the Maratha community from reservation contributed to an extraordinary situation in that the community was deprived of the benefits flowing from reservations; (b) the Gaikwad Commission found that the Maratha community is socially, educationally and economically backward and is not adequately represented in Government services, therefore the steps taken by the State Government for upliftment of the Maratha community fall within the exceptional and extraordinary circumstances; (c) according to the Gaikwad Commission there is an extraordinary situation of 85 per cent of the population of Maharashtra being backward, and adjusting them in 50 per cent, which is the permissible ceiling limit as per Indra Sawhney, is not possible. Hence, relaxation of the rule of 50 per cent is justified in view of the exceptional circumstances., It is necessary to understand the controversy relating to the ceiling limit of 50 per cent settled by Indra Sawhney for deciding the grant of interim relief. The relevant question posed by Justice Jeevan Reddy is whether the 50 per cent rule enunciated in M. R. Balaji v. State of Mysore is a binding rule or only a rule of caution or prudence. After observing that Article 16(4) should be balanced against the guarantee of equality enshrined in Article 16(1), which is a guarantee held out to every citizen, it was categorically held that reservations contemplated in Clause (4) of Article 16 should not exceed 50 per cent. The relaxation of the strict rule of 50 per cent can be made in certain extraordinary situations. People living in far‑flung and remote areas not being in the mainstream of national life should be treated in a different way. In view of the conditions peculiar to them they are entitled to be given relaxation. It was made clear that extreme caution has to be exercised and a special case made out for relaxation of the rule of 50 per cent. Applying the law laid down by this Court in Indra Sawhney, we are of the prima facie opinion that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent. The Maratha community, which comprises 30 per cent of the population in the State of Maharashtra, cannot be compared to marginalized sections of society living in far‑flung and remote areas. The State has failed to make out a special case for providing reservation in excess of 50 per cent. Neither has any caution been exercised by the State in doing so., The factors termed as extraordinary and exceptional, justifying reservations in excess of 50 per cent, are those required for the purpose of providing reservations. The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent. We are of the prima facie opinion that the High Court committed an error in treating the above factors as circumstances which are extraordinary, warranting relaxation of the strict rule of 50 per cent. Admittedly, reservations provided to the Maratha community were implemented in educational institutions for one academic year only. Implementation of the Act for admissions in educational institutions and appointments to public posts during the pendency of these appeals will cause irreparable loss to the candidates belonging to the open category. It will be difficult to cancel the admissions made in the educational institutions and appointments made to the public posts by implementing the reservations as per the Act., In view of the foregoing, we pass the following orders: (A) As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these appeals are referred to a larger bench. These matters shall be placed before the Honorable Chief Justice of India for suitable orders. (B) Admissions to educational institutions for the academic year 2020‑21 shall be made without reference to the reservations provided in the Act. We make it clear that the admissions made to postgraduate medical courses shall not be altered. (C) Appointments to public services and posts under the Government shall be made without implementing the reservation as provided in the Act.
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The State of Madhya Pradesh Appellant(s) versus Nandu @ Nandua Respondent(s). Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Madhya Pradesh, Jabalpur in Criminal Appeal No. 219 of 1995, by which the High Court of Madhya Pradesh, Jabalpur has partly allowed the appeal preferred by the respondent‑accused Nandu @ Nandua and has reduced the sentence from life imprisonment to the sentence already undergone while maintaining his conviction for the offences under Sections 147, 148, 323 and 302/34 of the Indian Penal Code, the State has preferred the present appeal., We have heard Ms. Ankita Chaudhary, learned Deputy Advocate General appearing on behalf of the appellant‑State., At the outset, it is required to be noted that the Trial Court convicted the respondent‑accused along with other accused for the offences punishable under Sections 147, 148, 323 and 302/34 of the Indian Penal Code and sentenced him to undergo life imprisonment. However, by the impugned judgment and order, though the High Court of Madhya Pradesh, Jabalpur has maintained the conviction of the accused for the offences under Sections 147, 148, 323 and 302/34 of the Indian Penal Code by giving benefit of right to private defence, the High Court thereafter interfered with the sentence and reduced it to the period already undergone by him. At that stage, the period of sentence already undergone by the respondent‑accused was approximately seven years and ten months., Ms. Ankita Chaudhary, learned Deputy Advocate General appearing on behalf of the State, has vehemently submitted that when the High Court of Madhya Pradesh, Jabalpur has maintained the conviction of the accused for the offence punishable under Section 302 of the Indian Penal Code, the punishment which can be imposed would be death or imprisonment for life and also a fine, but in any case it shall not be less than imprisonment for life. It is further submitted that once an accused is held guilty for the offence punishable under Section 302 of the Indian Penal Code, the minimum sentence which is imposable would be imprisonment for life and, therefore, any punishment or sentence less than imprisonment for life shall be contrary to Section 302 of the Indian Penal Code. Accordingly, the High Court has committed a very serious error in reducing the sentence to the period already undergone (seven years and ten months)., Having heard the learned counsel appearing on behalf of the State and considering the impugned judgment and order passed by the High Court of Madhya Pradesh, Jabalpur, by which, though the High Court has maintained the conviction of the respondent‑accused for the offence under Section 302 of the Indian Penal Code, it reduced the sentence to the period already undergone, i.e., seven years and ten months, we are of the firm view that the same is impermissible and unsustainable. The punishment for murder under Section 302 of the Indian Penal Code shall be death or imprisonment for life and a fine. Therefore, the minimum sentence provided for the offence punishable under Section 302 of the Indian Penal Code would be imprisonment for life and a fine. There cannot be any sentence or punishment less than imprisonment for life if an accused is convicted for the offence punishable under Section 302 of the Indian Penal Code. Any punishment less than imprisonment for life for the offence punishable under Section 302 would be contrary to Section 302 of the Indian Penal Code and is unsustainable., In view of the foregoing, the present appeal succeeds. The impugned judgment and order passed by the High Court of Madhya Pradesh, Jabalpur reducing the sentence of the respondent‑accused to the period already undergone while maintaining the conviction of the respondent‑accused for the offences under Sections 147, 148, 323 and 302/34 of the Indian Penal Code is hereby quashed and set aside. The judgment and order passed by the Trial Court imposing life imprisonment is hereby restored. The respondent‑accused is to be arrested and to undergo life imprisonment; eight weeks time is granted to the accused to surrender before the concerned Court or Jail Authority.
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25 January 2024. Supplementary Item No. 1 in W.P.A. No. 1790 of 2024 Sanjib Kumar Sau versus the State of West Bengal and others. Mr. Rajdeep Majumder, Mr. Moyukh Mukherjee, Mr. Pritam Roy, Ms. Sagrika Banerjee for the petitioner. Mr. Kishore Datta, learned Advocate General, Mr. Amal Kumar Sen, Additional Government Pleader, Ms. Amrita Panja Moulick for the State., Affidavit of service filed in the High Court of India today is taken on record., The petitioner is aggrieved by an order passed by the Inspector-in-charge, Hasnabad Police Station dated 22 January 2024 declining a Tiranga Yatra rally to be organized by the petitioner and their supporters from Hasnabad Bakultala to Barunhat Hospital between 12 noon and 4:00 p.m. on 26 January 2024., Counsel for the petitioner has indicated that about three thousand persons would participate in the Tiranga Yatra. The object of the rally is to commemorate and celebrate the tricolour, the national colours of the nation., In support of the refusal of the Hasnabad Police Station, Mr. Amal Kumar Sen, learned Additional Government Pleader, has produced their report., Three reasons have been indicated for declining permission for the rally. The first is that 26 January, being Republic Day, is celebrated by many schools, colleges, clubs and other organisations. The police would be busy providing security to such functions. Hasnabad Police Station does not have sufficient police personnel to spare for the rally of the petitioner., The High Court of India notes from experience that functions on Republic Day in India are mostly held in the morning and hardly any police force is deployed at schools, colleges, clubs and other organisations for the aforesaid purpose. The said ground, therefore, is not sustainable., The second defence taken by Hasnabad Police Station is that the venue of the rally is very close to Taki Town, which is thronged by tourists on a holiday., While it is true that there may be limited police personnel for crowd control, the holiday is generally spent in open spaces across the country and particularly the State, and has been mostly peaceful. People are generally in a joyous and happy mood. It is unlikely that there will be disturbance or requirement of any heavy police personnel on the particular date., The third argument of Hasnabad Police Station is a request from the Border Security Force issued under the signature of the Commandant, 85th Battalion, Border Security Force, requesting a sufficient number of police representatives on 23 January 2024 and 25 January 2024 at BOP, Sodepur., Hasnabad Police Station has under its jurisdiction about eighteen kilometres of the International Border with Bangladesh where subversive activities are anticipated. It appears from the request of the Border Security Force dated 24 January 2024 that only a representative of the police has been requested on 24, 25 or 26 January 2024., For sending one police representative to work along with the Border Security Force, it is unlikely that Hasnabad Police Station would face any shortage of police staff., Another ground indicated is that similar proposals for rallies of other political outfits have been declined by Hasnabad Police Station. Such parties or organisations have not approached the High Court of India against the refusal. Their cases may not be relevant to the facts of the present case., The petitioner has already indicated that the rally will be peaceful. The time between 12 noon and 4:00 p.m. also indicates that there are unlikely to be any Republic Day functions of any other organisation at the relevant time., Every citizen of this country takes pride in the tricolour. To promote respect and dignity for the same is to promote the building of a national identity, unity and a patriotic gesture. It is apt and appropriate to hold a Tiranga rally on Republic Day., The High Court of India is not concerned with any political colour of any person who wishes to hold a rally to promote the tricolour. It is the bounden duty of all the security forces and police in this country to promote such rallies and functions., In so far as the inconvenience to the public at large, a Division Bench of the High Court of India headed by the Hon'ble Chief Justice has already pronounced that rallies are commonplace in the State and city. The public at large are used to such rallies and inconvenience to them is taken in stride., With the aforesaid observations, the High Court of India directs the Hasnabad Police Station to permit the rally of the petitioner on the given date, time and specific venue., The petitioner shall, however, ensure that no emergency services are in any way obstructed. The writ petitioner himself shall be responsible for all the undertakings given in the writ petition and for compliance with all the stipulations and conditions that are normally imposed by the police for holding any public rally in the State., The report of the Inspector-in-charge, Hasnabad Police Station dated 25 January 2024 filed in the High Court of India today is also kept on record., With the aforesaid directions, the instant writ petition is allowed and disposed of., There will be no order as to costs., All parties are directed to act on a server copy of this order duly downloaded from the official website of the High Court of India.
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Item No. 19, 20, 21, 22 & 23, Court No. 1 (Video Conferencing), Writ Petition(s) (Civil) No(s). 1118/2020 (C) No. 1118/2020, Date: 12-01-2021. These matters were called on for orders/hearing today. For Petitioners: Mr. K. Parameshwar, Advocate on Record Mr. V. Mukunda, Advocate Ms. A. Sregurupriya, Advocate Mr. Sukumar Pattjoshi, Senior Advocate Mr. Vijendra Kasana, Advocate Mr. Manoj Sharma, Advocate Mr. Sandeep Kumar Singh, Advocate Mr. Sanjeev Malhotra, Advocate on Record Mr. Vivek K. Tankha, Senior Advocate Mr. Varun Tankha, Advocate Mr. Sumeer Sodhi, Advocate on Record Mr. Prashant Sivarajan, Advocate Mr. Ujjawal Anand Sharma, Advocate Ms. Jhanvi Dubey, Advocate Ms. Suditi Batra, Advocate Mr. Hussain Ali, Advocate Mr. Richardson Wilson, Advocate Mr. M. Shoeb Alam, Advocate Ms. Fauzia Shakil, Advocate on Record Mr. Manohar Lal Sharma, Petitioner-In-Person Mr. Harish N Salva, Senior Advocate Mr. Deepak Goel, Advocate on Record Mr. Kamal Kumar Pandey, Advocate Mr. Vipin Kumar, Advocate Ms. Madhuri Gupta, Advocate Petitioner-In-Person Mr. Vikas Singh, Senior Advocate Mr. Reepak Kansal, Advocate Ms. Deepieka Kalia, Advocate Mr. Arun Adlakha, Advocate Mr. Kuldeep Roy, Advocate Mr. Omprakash Ajitsingh Parihar, Advocate on Record Mr. Dushyant Tiwari, Advocate Mr. Yudhvir Dalal, Advocate Mr. S. Muthukrishnan, Advocate Mr. S. Mahendran, Advocate on Record Petitioner-In-Person For Respondents: Mr. K. K. Venugopal, Learned Attorney General; Applicant: Mr. Tushar Mehta, Learned Solicitor General; Mr. Kanu Agrawal, Advocate Ms. Suhasini Sen, Advocate Mr. Chinmayee Chandra, Advocate Mr. Ankur Talwar, Advocate Ms. Vanshaja Shukla, Advocate Mr. Shyam Gopal, Advocate Mr. Raj Bahadur Yadav, Advocate on Record Ms. Archana Pathak Dave, Advocate on Record Mr. Ajay Choudhary, Advocate on Record Mr. Chirag M. Shroff, Advocate on Record Mr. Tushar Mehta, Learned Solicitor General Ms. Garima Prashad, Advocate on Record Mr. Subodh Kumar Pathak, Advocate Mr. P. Chidambaram, Senior Advocate Mr. Atul Nanda, Additional Attorney General Ms. Uttara Babbar, Advocate on Record Ms. Bhavana Duhoon, Advocate Mr. Manan Bansal, Advocate Mr. Prashant Bhushan, Advocate on Record (Not Joined VC) Mr. Vivek Sharma, Advocate Mr. Abhishek Anand, Advocate Mr. Abir Roy, Advocate Mr. Ishaan Saran, Advocate Mr. Vivek Pandey, Advocate Mr. Ekansh Mishra, Advocate on Record Ms. Swati Vaibhav, Advocate on Record Mr. V. Chitambaresh, Senior Advocate Mr. Ravindra Sadanand Chingale, Advocate on Record Mr. Ashish Sonawane, Advocate Mr. Rahul Mehra, Advocate Mr. Chirag M. Shroff, Advocate on Record Ms. Abhilasha Bharti, Advocate Mr. Sushant Dogra, Advocate Ms. Geeta Singh, Advocate Ms. Richa Singh, Advocate Mr. Sharwan Kumar Goyal, Advocate Mr. Sadashiv, Advocate on Record Mrs. Revathy Raghavan, Advocate on Record Mr. Ajay Bansal, Additional Attorney General, Haryana Mr. Gaurav Yadava, Advocate Mr. Sanjay Kumar Visen, Advocate on Record Mr. Tushar Mehta, Learned Solicitor General Mr. Anil Grover, Senior Additional Attorney General Ms. Noopur Singhal, Advocate Mr. Rahul Khurana, Advocate Mr. Satish Kumar, Advocate Mr. Sanjay Kumar Visen, Advocate on Record Mr. V. Shekhar, Senior Advocate Mr. Rajeev Kumar Dubey, Advocate Ms. Sheetal Rajput, Advocate Mr. Ashiwan Mishra, Advocate Mr. Kamlendra Mishra, Advocate on Record Mr. Sridhar Potaraju, Advocate Mr. Gaichangpou Gangmei, Advocate Mr. Mukunda Rao, Advocate Ms. Shiwani Tushir, Advocate Ms. Ushasri, Advocate Mr. Vishnu Tulashi Menon., Upon hearing the counsel the Supreme Court of India made the following., Applications for impleadment and intervention are allowed., We have before us three categories of petitions, all revolving around the validity or otherwise of three laws namely: (1) Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; (2) Essential Commodities (Amendment) Act, 2020; and (3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, hereinafter referred to as the farm laws, and the protest by farmers against these laws., One category of petitions challenges the constitutional validity of the farm laws. Included within this category is a petition under Article 32 challenging the validity of the Constitution (Third Amendment) Act, 1954, by which Entry 33 was substituted in List III (Concurrent List) in the Seventh Schedule of the Constitution, enabling the Central Government also to legislate on a subject which was otherwise in the State List., Another category of petitions are those which support the farm laws on the ground that they are constitutionally valid and also beneficial to the farmers., The third category of petitions are those filed by individuals who are residents of the National Capital Territory of Delhi as well as the neighbouring states, claiming that the agitation by farmers in the peripheries of Delhi and the consequent blockade of roads/highways leading to Delhi infringes the fundamental rights of other citizens to move freely throughout the territories of India and their right to carry on trade and business., Though several rounds of negotiations have taken place between the Government of India and the farmers bodies, no solution seems to be in sight. The situation on ground is that senior citizens, women and children are at the site, exposing themselves to serious health hazards posed by cold and COVID; that a few deaths have taken place, though not out of any violence, but either out of illness or by way of suicide., Laudably, the farmers have so far carried on the agitation peacefully and without any untoward incident. But it was pointed out in the course of hearing that a few persons who are not farmers have also joined, with a view to show solidarity with the farmers. An apprehension was expressed that the possibility of some persons creating trouble cannot be entirely ruled out. In fact, a specific averment is made in an intervention application filed by one Indian Kisan Union, in I.A. No. 3324/2021 in Writ Petition (Civil) No. 1441/2020 that an organisation by name Sikhs for Justice, which is banned for anti‑India secessionist movement, is financing the agitation. This averment is supported by the Learned Attorney General also., A few farmers bodies who are now protesting have engaged a team of lawyers comprising Shri Dushyant Dave, Shri Colin Gonsalves, Shri H. S. Phoolka and Shri Prashant Bhushan to represent their cause. When Shri K. K. Venugopal, Learned Attorney General submitted that there are reports that the farmers bodies may take out a tractor rally on January 26, 2021, disrupting the Republic Day Parade and celebrations, the same was stoutly denied by Shri Dushyant Dave, Learned Senior Counsel appearing for a few of the farmers bodies on the ground that at least one member of the family of each of the farmers from Punjab is in the Army and that they would not disrupt the Republic Day celebrations. However, today this team of lawyers is absent., Be that as it may, the negotiations between the farmers bodies and the Government have not yielded any result so far. Therefore, we are of the view that the constitution of a Committee of experts in the field of agriculture to negotiate between the farmers bodies and the Government of India may create a congenial atmosphere and improve the trust and confidence of the farmers. We are also of the view that a stay of implementation of all the three farm laws for the present may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith., When we put across the above suggestions, the Learned Attorney General, even while agreeing for the constitution of a Committee, opposed vehemently the grant of any interim stay of the implementation of the farm laws. Drawing our attention to the law laid down by this Supreme Court of India in (1) Bhavesh D. Parish & Ors. vs. Union of India & Anr.; (2) Health For Millions vs. Union of India & Ors.; (3) State of Uttar Pradesh & Ors. vs. Hirendra Pal Singh & Ors.; (4) Siliguri Municipality & Ors. vs. Amalendu Das & Ors., the Learned Attorney General contended that the Court should not stay the implementation of the laws. He argued that none of the petitioners who have attacked the farm laws have pointed out any single provision which is detrimental to the farmers and that the laws enacted by Parliament cannot be stayed by this Court, especially when there is a presumption in favour of the constitutionality of legislation., Though we appreciate the aforesaid submission of the Learned Attorney General, this Supreme Court of India cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment. Even very recently this Court passed an interim order in Dr. Jaishri Laxmanrao Patil vs. The Chief Minister & Anr. (Civil Appeal No. 3123 of 2020) directing that admissions to educational institutions for the Academic Year 2020‑21 and appointments to public services and posts under the Government shall be made without reference to the reservation provided under the impugned legislation., As a matter of fact, some of the farmers bodies who are opposing the Farm Laws and who are represented before us through counsel have agreed to go before the Committee. Mr. P. Wilson, Learned Senior Counsel representing one section of farmers from Tamil Nadu welcomed the proposal to stay the implementation of the Laws and the constitution of the Committee and stated that his client would go before the Committee. Similarly, Mr. A. P. Singh, Learned Counsel appearing for Bhartiya Kisan Union also submitted that the representatives of the Union will participate in the negotiations. He even went to the extent of saying that elders, women and children will be dissuaded from being there at the site of protest. Mr. Ajay Choudhary, Learned Counsel for Kisan Maha Panchayat submitted that the farmers from Rajasthan, who are protesting at the border of Rajasthan, are willing to appear before the Committee and air their grievances., Mr. V. Chitambaresh, Learned Senior Counsel appearing for Bhartiya Kisan Sangh, the applicant in I.A. No. 136682/2020 in Writ Petition (Civil) No. 1118/2020 submitted that the Union which he represents is not aggrieved by the Farm Laws. Mr. Sridhar Potaraju, Learned Counsel appearing for the Consortium of Indian Farmers Association (CIFA) submits that his client represents fifteen farmers unions across fifteen states and that they will be badly affected if a stay of the implementation of the Farm Laws is ordered. This is for the reason that the farmers whom he represents cultivate fruits and vegetables and that about twenty‑one million tonnes of fruits and vegetables will rot if anything is done at this stage., Insofar as the apprehension regarding Minimum Support Price being done away with, it is submitted across the Bar that the same may not be dismantled. The Learned Solicitor General also confirmed that there are inherent safeguards built into the Farm Laws for the protection of the land of the farmers and that it will be ensured that no farmer will lose his land., Having heard different perspectives, we deem it fit to pass the following interim order, with the hope and expectation that both parties will take this in the right spirit and attempt to arrive at a fair, equitable and just solution to the problems: (i) The implementation of the three farm laws—Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; Essential Commodities (Amendment) Act, 2020; and Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020—shall stand stayed until further orders; (ii) As a consequence, the Minimum Support Price system in existence before the enactment of the Farm Laws shall be maintained until further orders. In addition, the farmers' land holdings shall be protected, i.e., no farmer shall be dispossessed or deprived of his title as a result of any action taken under the Farm Laws; (iii) A Committee comprising (1) Shri Bhupinder Singh Mann, National President, Bhartiya Kisan Union and All India Kisan Coordination Committee; (2) Dr. Parmod Kumar Joshi, Agricultural Economist, Director for South Asia, International Food Policy Research Institute; (3) Shri Ashok Gulati, Agricultural Economist and Former Chairman of the Commission for Agricultural Costs and Prices; and (4) Shri Anil Ghanwat, President, Shetkari Sanghatana, is constituted for the purpose of listening to the grievances of the farmers relating to the farm laws and the views of the Government and to make recommendations. This Committee shall be provided a place as well as secretarial assistance at Delhi by the Government. All expenses for the Committee to hold sittings at Delhi or anywhere else shall be borne by the Central Government. The representatives of all the farmers bodies, whether they are holding a protest or not and whether they support or oppose the laws, shall participate in the deliberations of the Committee and put forth their viewpoints. The Committee shall, upon hearing the Government as well as the representatives of the farmers bodies and other stakeholders, submit a report before this Supreme Court of India containing its recommendations. This shall be done within two months from the date of its first sitting. The first sitting shall be held within ten days from today., While we may not stifle a peaceful protest, we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmers bodies to convince their members to get back to their livelihood, both in order to protect their own lives and health and in order to protect the lives and properties of others., List the matters after eight weeks. I.A. No. 4714/2021 in Writ Petition (Civil) No. 1441/2020 and I.A. No. 4719/2021 taken on board. Issue notice returnable on 18.01.2021.
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Dated this the 25th day of July 2022. Mohammed Nias, C.P., J. The above appeals arise from the judgment of the learned single Judge in Writ Petition (Civil) No. 30638 of 2021 dated 6 June 2022., The facts leading to these writ appeals are as follows: The second respondent, National Thermal Power Corporation Ltd. (NTPC Ltd.), invited applications for the post of Assistant Law Officer at Executive Officer level for its various projects and stations as per Exhibit P3 notification, which mandates an eligibility criterion of having an LLB degree and having appeared for CLAT‑2021 (Common Law Admission Test 2021) Post Graduate Programme conducted by the Consortium of National Law Universities. The writ petitioner, who is the first respondent in Writ Appeal No. 793 of 2022 and also the appellant in Writ Appeal No. 742 of 2022, challenged the clause in Exhibit P3 that makes appearance in CLAT‑2021 mandatory for consideration for the post., The petitioner contended that the condition in Exhibit P3 created a classification between candidates who appeared for CLAT‑2021 and those who did not, and that this classification bore no nexus with the object of choosing the best available candidate. It was urged that thousands of qualified candidates who did not appear for CLAT because they did not pursue an LL.M. from the National Law Schools were excluded from consideration. The petitioner further argued that the zone of consideration was limited to persons who appeared for CLAT‑2021 and not to candidates who appeared in the CLAT PG of any other year, even though the upper age limit was fixed at 30 years. Consequently, several candidates who had appeared for CLAT examinations in previous years and were below 30 were also excluded. According to the petitioner, Exhibit P3 failed the test of equality protected under Article 14 of the Constitution of India and amounted to indirect discrimination. It was also argued that National Law Universities are public universities with high tuition fees, making many candidates unable to afford higher studies there, and that social factors such as language barrier prevented many from appearing in CLAT PG. The petitioner further pointed out that Exhibit P3, issued in December, required candidates to appear in an examination that had been conducted six months earlier, thereby excluding several thousand candidates., The respondents resisted the reliefs sought, stating that NTPC Ltd. is a Navaratna Government of India company primarily engaged in power generation and also involved in renewable energy, power distribution, and power trading. They argued that the dynamic nature of the power sector requires executive law officers with a specific set of skills, and that conducting an independent examination for recruitment would be cumbersome and cause undue delay. Therefore, they claimed that using the CLAT, a national level examination conducted by the Consortium of National Law Universities, was a fair and rational mode of recruitment. They noted that CLAT rankings are utilized by many Maharatna and Navaratna public sector undertakings for recruitment of law executives, and that NTPC had previously recruited law executives in 2016 based on performance in the CLAT PG examination. The respondents maintained that the appointing authorities have prerogative to fix eligibility criteria and that the selection process was fair, uniform, equal, and rational without discrimination or arbitrariness. They highlighted uniform industry practice and contended that the scope of judicial review in such matters is limited., The learned single Judge found that out of the 1,721 law colleges in India, only 23 are members of the Consortium of National Law Universities, and held that candidates graduating from other law colleges who appeared for CLAT‑2021 PG would constitute a minuscule minority. The Judge observed that basing selection on a test conducted prior to the issuance of Exhibit P3, which confined eligibility to candidates who appeared for CLAT‑2021 PG, amounted to indirect discrimination. The Judge further held that the focus of the test was on academics and not on the skill set expected of future Law Officers, and therefore the selection process lacked a rational nexus with the objective. Relying on the judgments of Lt. Col. Nitisha and others and Sonali Pramod Dhawade and Others, the Judge agreed that even if graduates of National Law Universities acquire more skill and knowledge, there is no reason to deny a level playing field to others. The Judge described the process as a walk‑over to the finals for a chosen few without competing in preliminaries, and concluded that the selection process fails the test of Article 16 of the Constitution of India. Accordingly, the writ petition was allowed, holding that Exhibit P3, insofar as it confines selection to candidates who participated in the CLAT‑2021 PG programme, is legally unsustainable and that the petitioner’s eligibility for appointment must be tested. The selection process itself was not interfered with., We have heard the learned senior counsel and the learned Solicitor General of India, Sri Tushar Mehta, instructed by Sri Adarsh Tripathi and Manu Srinath for the appellant, and Adv. Maitreyi S. Hegde for the respondents., The Solicitor General of India, Sri Tushar Mehta, assailed the judgment on five grounds: (1) limited scope for judicial review or intervention in a selection process; (2) the impugned judgment encroaches upon the prerogative and authority of an employer to select its employees; (3) the criteria of CLAT PG for selection is well known, widespread, fair, just and reasonable; (4) it is impractical to employ resources for conducting an All‑India examination vis‑à‑vis the limited number of vacancies; and (5) the uniform and prevalent industry practice of using CLAT scores is also interfered with. The Solicitor General relied on the judgments of the Supreme Court of India in Surinder Singh v. Union of India & Ors (2007) 11 SCC 599 and of this Court in Nisha A. B. v. State of Kerala (WPC No. 21794 of 2020)., In elaboration, the Solicitor General argued that the impugned judgment failed to appreciate that the employer’s prerogative to decide qualifications and method of appointment is in the best interest of the organization and that there is nothing in the notification that calls for judicial intervention. He cited the dictum in Surinder Singh. He further contended that NTPC issued Exhibit P3 after a span of almost five to six years for recruitment of ten Law Officers, and that it is impractical to conduct an All‑India level examination for such a limited requirement. He maintained that CLAT‑2021 is a national level, unbiased, independent and transparent examination for all law graduates wishing to pursue an LL.M., and that approximately 8,000 students took the examination in 2021. He asserted that the independence and fairness of the CLAT examination have not been challenged in the past fifteen years, establishing a rational nexus between the eligibility criteria and the object of selecting the best candidate. He further submitted that appointed candidates undergo appropriate training and that the majority of work performed by law officers relates to the Electricity Act, 2003, which is not taught in most law schools, making the CLAT’s academic focus logical. He pointed out that, in the absence of any order staying the recruitment process, NTPC proceeded, issued offer letters to ten candidates, seven of whom joined, and that 663 candidates who had appeared for CLAT PG 2021 applied under Exhibit P3, demonstrating fairness and unbiased selection., The counsel for the first respondent in Writ Appeal No. 793 of 2022 and the appellant in Writ Appeal No. 742 of 2022, Adv. Maitreyi S. Hegde, argued that the learned single Judge, having found the offending clause unconstitutional, ought to have set aside the entire selection process, as interviewing the petitioner alone would create two different yardsticks for assessing merit. She further contended that the Consortium of National Law Universities does not state that CLAT rankings will be used for future selection processes, and that petitioners similarly situated are disadvantaged by not participating in CLAT., Having heard the rival contentions at length, perused the records and considered the cited judgments, we find that the discrimination urged by the petitioner concerns the fixation of eligibility criteria by NTPC for appointment of Law Officers. The petitioner argues that confining the zone of consideration to candidates who appeared in the CLAT PG examination excludes those who could not appear and therefore discriminates in public employment. While the eligibility criteria is generally at the discretion of the employer, an employer that falls within the definition of State under Article 12 must ensure that the policy is not vitiated by arbitrariness or malafides. The question is whether such vitiating factor exists in the present case., The petitioner’s claim that insisting on CLAT appearance is discriminatory because it targets candidates not desirous of pursuing postgraduate legal studies in premier institutions is not persuasive. The practice of requiring CLAT PG appearance for Law Officer posts has been in vogue in many Central public sector undertakings since at least 2016, and the CLAT PG examination imposes no restriction on which law graduates may appear. The petitioner was not denied the opportunity to sit for the examination; rather, the examination was conducted earlier than the notification, and her inability to satisfy that eligibility requirement does not amount to discrimination. The fact that 663 persons were found eligible under the notification shows that the requirement was not impossible to comply with., The argument that NTPC compelled a category of applicants to write the CLAT PG examination is misplaced, as there was no compulsion on any qualified candidate to write an examination to the exclusion of others similarly placed; writing the examination was an eligibility requirement for all candidates interested in the job. Classification between persons must not produce artificial inequalities and must be founded on a reasonable basis and bear nexus to the object sought to be achieved to satisfy Articles 14 and 16. Judicial review of classification is limited to determining whether the classification is reasonable and bears such nexus; courts do not substitute their own judgment for that of the appointing authority. Accordingly, we hold that the criteria in Exhibit P3 do not violate any constitutional provision or principle., The petitioner heavily relied on the judgment in Sonali Pramod Dhawade and Others, which dealt with a challenge to campus recruitment for officer cadres, finding violation of Article 16 due to lack of public advertisement. In the present case there is no allegation of lack of public advertisement, and the petitioner did not meet the eligibility criteria fixed in Exhibit P3. Hence, the Dhawade judgment has no application to the facts before us., In the instant case a rational criterion for judging the inter se merit of candidates who applied under Exhibit P3 was fixed, and there can be no discrimination alleged in issuing Exhibit P3. The CLAT examination is conducted on a pan‑India basis and evaluated uniformly. Article 16 guarantees equality of opportunity for all citizens in matters of public employment, requiring only a public advertisement that enables all eligible persons to compete on merit. The object of recruitment is to secure the most suitable person who meets the requirements of the job. Accepting the petitioner’s contentions would amount to changing the eligibility criteria fixed by the employer, which cannot be countenanced. The directions in the impugned judgment that the petitioner should be allowed to participate in a process for which she is ineligible would violate constitutional principles., The learned single Judge’s finding that graduates from law colleges other than the National Law Universities who appeared for CLAT‑2021 PG would be a minuscule minority lacks empirical support, and the conclusion that the CLAT test focuses only on academics and not on the skill set expected of future officers is not acceptable. We are not persuaded that the process is a walk‑over to the finals for a chosen few. The present notification and its eligibility criteria do not violate Article 16 of the Constitution of India. Equal treatment is to be given only to eligible persons in a selection process., The appellant company is primarily involved in power generation as well as renewable energy, power distribution and power trading, and the ever‑changing nature of the power sector requires specific skill sets. The appellant must be presumed to know what is best in the public interest, and in the absence of any constitutional infirmity, its decision cannot be faulted. The qualifications fixed are reasonable and relevant to the recognized purpose of the service, and the employer’s privilege to decide on the relevance of requisite qualifications must be conceded. Accepting the petitioner’s argument would result in the court reading down the eligibility prescribed, which is contrary to the principle of judicial restraint., The basic principle underlying Article 14 is that law must operate equally on all persons under like circumstances, and a discretionary power conferred on the employer to fix eligibility standards cannot be held discriminatory. Equality does not require that every person be made eligible; the employer may prescribe qualifications deemed appropriate for the nature of the job. Article 16 speaks of equality of opportunity, not of equal results. The State may frame rules of classification to secure the standard of efficiency it aspires to, and such classifications need not be arithmetically exact. We find no discrimination or arbitrariness in the selection process and uphold it. The contention that the majority of the Indian population earns less than Rs 150 per day, and that the clause would exclude a huge number of eligible candidates, is rejected as far‑fetched., Resultantly, we set aside the judgment impugned in these appeals. Writ Appeal No. 793 of 2022 is allowed by dismissing Writ Petition (Civil) No. 30638 of 2021, and Writ Appeal No. 742 of 2022 is dismissed. Dated 13 July 2022.
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Miss Shabnamjahan, daughter of Moinuddin Ansari, Applicant; Mr. Shaikh Salim Maimuddin, Applicant; Mrs. Kaiserjahan, wife of Shaikh Salim, Applicant; versus The State of Maharashtra, Respondent; Mr. N.S. Shah and Mr. S.S. Patil, Advocate for Applicants; Mr. S.B. Pulkundwar, Additional Government Pleader for the Respondent, State. Mr. Pulkundwar, learned Additional Government Pleader, waives service for the Respondent. The Civil Revision Application is taken up for final disposal., This Civil Revision Application is filed under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 for challenging the order dated 8 March 2022, passed by the learned District Judge at Bhusawal in Civil Miscellaneous Application No. 24 of 2020. The application was filed by the present revision applicants under Section 56(2) of the Juvenile Justice Act read with Rules 51 and 55 of the Adoption Regulations, 2017. These regulations are now superseded by the Adoption Regulations, 2022 made applicable from the publication in the official gazette on 23 September 2022., Applicant No. 1, being a prospective adoptive parent, had registered in the Child Adoption Resource Information and Guidance System for the adoption of a minor child. By the impugned order, the application for the adoption of the minor child has been rejected., The Applicants state that on 13 August 2020 they filed Civil Miscellaneous Application No. 24 of 2020 before the learned District Judge, Bhusawal, seeking adoption of the minor child and declaration of Applicant No. 1 as a parent. The Applicants also prayed for directions to the Municipal Council for modifying the birth certificate of the minor child as per Rule 36 of the Adoption Regulations, 2017., The learned counsel for the Applicants submitted that after following the necessary procedure, a detailed report was prepared by the District Child Protection Unit. All necessary verifications regarding the status and health of the prospective parent and the child and the financial condition of the parties were done. However, the learned Judge rejected the application on the erroneous ground that the prospective parent is a single lady and a divorcee, observing that a working lady will not be able to give personal attention to the child, whereas the biological parents would be in a better condition to take care of the child., The learned counsel further submitted that the observations of the learned Judge are contrary to the report submitted by the District Child Protection Unit and the pre‑approval letter issued by the Central Adoption Resource Authority. All procedural statutory requirements were fully complied with, and there was no reason to reject the adoption application. The reason recorded by the learned Judge for rejecting the application is perverse and unjust. It was therefore submitted that the impugned order be set aside and the application for adoption be allowed., The learned Additional Government Pleader fairly submitted that perusal of the record showed that all statutory compliances were done and the Central Adoption Resource Authority had issued a pre‑approved letter for finalising the adoption case by completing the procedure for issuance of the Adoption Order. He therefore submitted that an appropriate order may be passed., The record of the Civil Revision Application shows that Revision Applicants Nos. 2 and 3 are the biological parents of the child and they had submitted the necessary consent form for the adoption of the child by Revision Applicant No. 1. The prospective adoptive parent is the real sister of the biological mother., It is necessary to refer to the relevant provisions of the Juvenile Justice Act and the Adoption Regulations, 2017. The present case is an in‑country adoption of a minor child by a relative from another relative. Sub‑section (2) of Section 56 permits the adoption of a child from a relative by another relative irrespective of religion, subject to the provisions of the Juvenile Justice Act and the rules framed by the Authority. Eligibility of a prospective parent is prescribed in Section 57, which reads as follows: (1) The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him. (2) In case of a couple, the consent of both spouses for the adoption shall be required. (3) A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of the adoption regulations framed by the Authority. (4) A single male is not eligible to adopt a girl child. (5) Any other criteria that may be specified in the adoption regulations framed by the Authority., The legal procedure for an in‑country adoption of a child from a relative by another relative is prescribed in Rule 55 of the Adoption Regulations, 2017, as was applicable to the present case. As per Rule 55, the prospective adoptive parents who intend to adopt the child of a relative are required to file an application in the competent Court under sub‑section (2) of Section 56 of the Juvenile Justice Act together with a consent letter of the biological parents as provided in Schedule XIX and all other documents as provided in Schedule VI. A perusal of Schedules XIX and VI shows a requirement for online registration of an exhaustive form with various details and supporting documents, including consent of biological parents in the prescribed form. Schedule XXX prescribes a model application required to be filed in the Court., Sub‑Rule (5) of Rule 55 provides that before issuing an Adoption Order, the Court shall satisfy itself of the various conditions stipulated under Section 61 of the Act and Regulations 51 to 56, as the case may be. In the present case, the relevant regulation was Rule 51, which reads as follows: (1) The prospective adoptive parents shall register in the Child Adoption Resource Information and Guidance System and follow due legal procedure as provided in Regulation 55. (2) Consent of biological parents or permission of the Child Welfare Committee, as the case may be, shall be required as provided in Schedule XIX or Schedule XXII respectively. (3) The consent of the child shall be obtained if he is five years of age or above. (4) Affidavit of adoptive parent(s) is required in cases of in‑country relative adoptions in support of their financial and social status as per Schedule XXIV. (5) The prospective adoptive parents shall file an application in the competent Court as provided in Schedule XXX., Section 61 lays down parameters for the procedure for disposal of adoption proceedings. It reads as follows: (1) Before issuing an adoption order, the District Magistrate shall be satisfied that (a) the adoption is for the welfare of the child; (b) due consideration is given to the wishes of the child having regard to the age and understanding of the child; and (c) neither the prospective adoptive parents nor the specialised adoption agency nor the parent or guardian of the child in case of relative adoption has given or agreed to give nor received any payment or reward in consideration of the adoption, except as permitted under the adoption regulations framed by the Authority towards adoption fees, service charge or child care corpus. (2) The adoption proceedings shall be held in camera and the case shall be disposed of by the District Magistrate within two months from the date of filing., Perusal of Section 61 shows that the parameters prescribed for disposal of adoption proceedings are applicable to all adoption cases. The provision requires the competent Court to be satisfied that the adoption is for the welfare of the child and that all prescribed formalities under the Juvenile Justice Act and the Adoption Rules are complied with. The prescribed forms demonstrate due care in verifying the details of the prospective adoptive parents, biological parents and the child. Thus, a duty is cast upon the competent Court to satisfy itself about the welfare of the child as per the parameters laid down in Section 61 before passing an Adoption Order., The learned counsel for the Applicants invited attention to the procedure followed in the present case, including the submission of the consent form of the biological parents in the prescribed format, the affidavit of the prospective adoptive parent, and the family background report of the child prepared by the District Child Protection Officer following a home visit on 20 October 2020. The report recommends the adoption of the child. The counsel also drew attention to the pre‑approved letter dated 23 May 2022 issued by the Assistant Director, Central Adoption Resource Authority, confirming that the affidavit of the prospective adoptive parent is furnished in the prescribed format and all statutory requirements for undertaking the in‑country relative adoption under the Juvenile Justice Act are complied with., The learned counsel relied upon a decision of this Court in the case of Sumed son of Devidas Thamke and others, wherein the adoption application was rejected on the ground that the child was neither a child in conflict with the law, nor a child in need of care and protection, nor an orphan, nor a surrendered/abandoned child, and therefore the provisions of the Juvenile Justice Act were not applicable. This Court, after referring to various provisions of the Juvenile Justice Act, held that the Act is also applicable for the adoption of a child by a relative from another relative., In the present case, the competent Court rejected the application solely on the ground that the prospective parent is a single lady and a divorcee, and that, being a working lady, she will not be able to give personal attention to the child, whereas the biological parents would be in a better condition to take care of the child. Section 57 of the Juvenile Justice Act provides that a single or divorced person is eligible to adopt, and that the prospective adoptive parent shall be physically fit, financially sound, mentally alert and highly motivated to provide a good upbringing. Thus, the reason given by the competent Court is contrary to the provisions of the Act, the recommendation of the District Child Welfare Officer, and the pre‑approved letter of the Central Adoption Resource Authority. The reason is unfounded and baseless., The competent Court was required to verify whether the statutory requirements were complied with and, after scrutinising the record, form an opinion as to whether the application for adoption was in the interest of the child. The Court erroneously rejected the application by conjecture, comparing the biological mother, a housewife, with the prospective adoptive mother, a working single parent, reflecting a medieval conservative concept of family. When the statute recognises a single parent as eligible, the Court’s approach defeats the object of the statute. A single parent may be a working person, and it cannot be held that a working single parent is ineligible to adopt., There is nothing adverse shown for rejecting the adoption application. A perusal of the record shows that all statutory compliances are done. The report of the District Child Welfare Officer and the pre‑approved letter issued by the Assistant Director of the Central Adoption Resource Authority have found the prospective adoptive parent to be a fit parent for adopting the child. The impugned order records no adverse finding regarding statutory compliances; it rejects the application only on the ground of the adoptive parent being a working lady. The reason recorded by the competent Court is unfounded, illegal, perverse, unjust and unacceptable., The Court sees no reason to refuse to grant the Adoption Order. For the reasons recorded above, the impugned order is liable to be quashed and set aside. Accordingly, the Civil Revision Application is allowed by passing the following order: (i) The order dated 8 March 2022, passed by the learned District Judge at Bhusawal in Civil Miscellaneous Application No. 24 of 2020, is quashed and set aside. (ii) Civil Miscellaneous Application No. 24 of 2020 is allowed. (iii) Applicants Nos. 2 and 3 are permitted to give the minor child in adoption to Applicant No. 1. (iv) Applicant No. 1, Ms. Shabnamjahan Moinuddin Ansari, is declared as parent of the minor child for all purposes. (v) The Birth Certificate Issuing Authority of Bhusawal Municipal Council is directed to issue a modified birth certificate incorporating the name of Ms. Shabnamjahan Moinuddin Ansari as the adoptive parent. (vi) Necessary formalities are to be completed by all concerned authorities for giving effect to the Adoption Order as expeditiously as possible and, at the latest, within four weeks from the production of a copy of this order before the concerned competent authorities. (vii) All concerned are to act on an authenticated copy of this order., The Civil Revision Application is allowed in the above terms.
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Present: Writ Petition (Civil) No. 811 of 2024 Kalighat Bahumukhi Seva Samiti versus State of West Bengal and others. For the petitioner: Mr. Tarunjyoti Tewari. For the State: Mr. Amitesh Banerjee, Mr. Rudrajit Sarkar, Mr. Suddhadev Adak. For the Kolkata Municipal Corporation: Mr. Alak Kumar Ghose, Mr. Arijit Dey. Heard on 17 January 2024. Judgment on 17 January 2024., This is an application praying for a direction upon the respondent authorities for allowing the petitioner to organize the live telecast of the inauguration of Shri Ram Mandir and to perform puja by constructing a temporary stage at a place in South Kolkata on 22 January 2024 from 9 a.m. to 9 p.m. Affidavit of service filed in the Calcutta High Court is taken on record. Learned counsel representing the petitioner submits as follows., The petitioner prayed before the police authorities for granting permission for holding the ceremony for visual display of the inauguration ceremony of Shri Ram Mandir on a giant screen and to hold puja, archana, sankirtan, aarti and bhog prasad distribution on the said date and time at 1/1A, Nepal Bhattacharjee Street, Kolkata 700026. This was objected to by the State., The municipal authorities were notified by e‑mail on 15 January 2024 in the evening. After further consultation, the petitioner decided to hold the ceremony/function at Deshpran Sasmal Park, 2249 Rashbehari Avenue, Kolkata 700026 for a period commencing from 9 a.m. and ending at 6 p.m., Learned senior counsel representing the State submits that the alternative venue suggested by the petitioner is acceptable. However, the organisers may be requested to conclude the function by 4 p.m. because a portion of the park is used by children for physical activities like gymnastics from 4 p.m., At this stage, learned counsel representing the petitioner also submits that they would occupy only a portion of the park and the participants would be around in number. Therefore, if the children come to the park to do their activities at 4 p.m., no hindrance will be caused by the participants., Learned counsel appearing for the Kolkata Municipal Corporation submits that the petitioner may be permitted to hold the programme on the said date from 10 a.m. to 2 p.m., It appears that at least the venue of the programme being Deshpran Sasmal Park could be agreed upon by the parties. The petitioner is, therefore, permitted to hold the function on 22 January 2024 from 9 a.m. to 6 p.m. on a portion (roughly half) of Deshpran Sasmal Park. The number of participants in the programme shall not exceed sixty. The Police Authorities shall render necessary help, if required. The petitioner shall abide by the necessary norms regarding the use of sound equipment and other prevailing laws. After the programme is over, the petitioner shall clean the area so that normal activities can be resumed there., With the aforesaid observations, the writ petition being Writ Petition (Civil) No. 811 of 2024 is disposed of. An urgent certified copy of this order, if applied for, shall be supplied to the parties upon compliance of all requisite formalities. Parties shall act on a server copy of this order duly downloaded from the official website of the Calcutta High Court. (Jay Sengupta, J).
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Youth For Equality, P-21, South Extension Part -II, New Delhi 110049, through its Secretary Shri Subham Kumar aged about 33 years, Male, Son of Amrendra Kumar Singh, Rajeev Nagar, P.O, Keshri Nagar, Patna; Dr. Bhurelal, Son of Shri Rajaram, Resident of Sector 128, Noida, Augusta Gold Apartments-005, PIN-201304; Professor Makkhan Lal, Son of Shri Durga Prasad Srivastava, A-9, NSG Society, P 6 Builders Area, Gautal Budh Nagar, Uttar Pradesh, PIN-201308; Professor Kapil Kumar, Son of Shri Bishan Narain Saxena, Resident of 819, Level Pinto Block, Asian Games Village, Delhi - 110049; Professor Sangit Kumar Ragi, Son of Shri Dinesh Sharma, Resident of 310, Patrakar Parisar, Section 5, Vasundhara, Ghaziabad - 2010102; Ms. Ahna Kumari, Daughter of Mr. Amol Kumar Singh, Resident of Village Vaishali, Abhay Singh House Near Vaishali Block Chowk, P.S. Vaishali, District Vaishali, Bihar - PIN 844128., Respondents: The State of Bihar through the Chief Secretary, New Secretariat, Patna, Bihar; the Principal Secretary, Department of General Administration, Government of Bihar, Patna; the Deputy Secretary, General Administration Department, Government of Bihar, Patna; the Additional Chief Secretary, Government of Bihar, Patna; the Principal Secretary to the Governor's Secretariat, Government of Bihar, Patna; the Principal Secretary to the Chief Minister, Government of Bihar, Patna; the Additional Director, Evaluation Directorate, Economic and Statistics Directorate, Bihar, Patna., Shri Akhilesh Kumar, Son of Shri Mithilesh Kumar, Resident of Village Begampur Mari, District Nalanda, Bihar 803111., Respondents: The State of Bihar through Chief Secretary, Government of Bihar, Patna; the Additional Chief Secretary, General Administration Department, Government of Bihar, Patna; the Principal Secretary to the Chief Minister, Government of Bihar, Patna; the Principal Secretary, Department of General Administration, Government of Bihar, Patna; the Deputy Secretary of the Government General Administration Department, Government of Bihar, Patna; the Union Government of India, through Secretary Ministry of Home Affairs, New Delhi; Registrar General and Census Commissioner, Union of India, New Delhi., EK SOCH EK PRAYAS through its Settlor Trustee Upendra Kumar, Son of Shri B. Ram, Office B240, Krishan Kunj Gali No. 2, North Ghonda, Delhi., Respondents: Union of India through its Home Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110001, through its General Secretary, hshso@nic.in; Government of Bihar through its Deputy Secretary, General Administration Department, Main Secretariat, Patna 800015, cs-bihar@nic.in; the Registrar General and Census Commissioner of India, NDCC-II Building, Jan Singh Road, New Delhi 110001, rgi.rgi@gov.in., Shri Suresh Kumar Bharadwaj, Indian Police Service, Retired Director General of Police, Son of Shri Chander Parkash Bharadwaj, resident of Arpana Bank Colony, Phase 2 Ram Jaipal Path, South of Bailey Road, Danapur, Patna, Bihar - 801503; Shri Amod Kumar Kanth, Indian Police Service, Retired Director General of Police, Son of Late Sri RSP Kanth, resident of A1/52 FF Safdarjung Enclave, New Delhi., Respondents: The State of Bihar through the Chief Secretary, New Secretariat, Patna, Bihar; the Principal Secretary, Department of General Administration, Government of Bihar, Patna; the Deputy Secretary, General Administration Department, Government of Bihar, Patna; the Additional Chief Secretary, Government of Bihar, Patna; the Principal Secretary to the Governor's Secretariat, Government of Bihar, Patna; the Principal Secretary to the Chief Minister, Government of Bihar, Patna; the Additional Director, Evaluation Directorate, Economic and Statistics Directorate, Bihar, Patna., Ms. Muskan Kumari, Daughter of Shri Brijnandan Singh, Gate No-92, Bajitpur, Opposite Puja Flour Mill, Patna, Dinapur - Cum-Khagaul, Patna, Bihar - 800011., Respondents: The State of Bihar through the Chief Secretary, New Secretariat, Patna, Bihar; the Principal Secretary, Department of General Administration, Government of Bihar, Patna; the Deputy Secretary, General Administration Department, Government of Bihar, Patna; the Additional Chief Secretary, General Administration Department, Government of Bihar, Patna; the Principal Secretary to the Governor's Secretariat, Government of Bihar, Patna; the Principal Secretary to the Chief Minister, Government of Bihar, Patna; the Additional Director, Evaluation Directorate, Economic and Statistics Directorate, Bihar, Patna., Ankit Roushan, Son of Mahavir Chandra Das, 15, Near Durga Asthan, Ghosh Tola Dumarama, Amarpur, Banka, Bihar- 813101., Respondents: The State of Bihar through the Chief Secretary, New Secretariat, Patna, Bihar; the Principal Secretary, Department of General Administration, Government of Bihar, Patna; the Deputy Secretary, General Administration Department, Government of Bihar, Patna; the Additional Chief Secretary, General Administration Department, Government of Bihar, Patna; the Principal Secretary to the Governor's Secretariat, Government of Bihar, Patna; the Principal Secretary to the Chief Minister, Government of Bihar, Patna; the Additional Director, Evaluation Directorate, Economic and Statistics Directorate, Bihar, Patna., Appearance (Civil Writ Jurisdiction Case Number 5542 of 2023): For the petitioners: Ms. Aprajita Singh, Senior Advocate; Mr. Abhinav Shrivastava, Advocate; Mr. Dhananjay Kumar Tiwary, Advocate; Mr. Rahul Pratap, Advocate; Mr. Raushan, Advocate; Mr. Krishna Murari, Advocate; Mr. Arpit Anand, Advocate; Mr. Pushkar Bharadwaj, Advocate. For the respondent State: Mr. P. K. Shahi, Advocate General; Mr. Anjani Kumar, Additional Advocate General-4; Mr. Sanjiv Kumar, Assistant to Advocate General; Mr. Manish Kumar, Advocate; Mr. Shailendra Kumar Singh, Advocate; Mr. Utkarsh Bhushan, Advocate (Interim Application No. 3 of 2023 in Civil Writ Jurisdiction Case Number 5542 of 2023). For the intervenor: Mr. Basant Kumar Choudhary, Senior Advocate (in person); Mr. Shashi Bhushan Kumar, Advocate., For the petitioners in Civil Writ Jurisdiction Case Number 4624 of 2023: Mr. Dinu Kumar, Advocate; Ms. Ritika Rani, Advocate; Mr. Vardaan Mangalam, Advocate; Mr. Rituraj, Advocate. For the respondents: Mr. P. K. Shahi, Advocate General; Ms. Kalpana, Advocate., For the petitioners in Civil Writ Jurisdiction Case Number 4650 of 2023: Mr. Yadunandan Bansal, Advocate; Mr. Avinash Kumar Pandey, Advocate; Mr. Upender Kumar, Advocate. For the respondents: Dr. K. N. Singh, Additional Solicitor General., For the petitioners in Civil Writ Jurisdiction Case Number 5749 of 2023: Mr. Abhinav Shrivastava, Advocate; Mr. Karandeep Kumar, Advocate. For the respondents: Mr. P. K. Shahi, Advocate General., For the petitioners in Civil Writ Jurisdiction Case Number 6506 of 2023: Mr. M. P. Dixit, Advocate; Mr. S. K. Dixit, Advocate; Mr. Swastika, Advocate; Mr. Sanjay Kumar Chaubey, Advocate. For the respondents: Mr. P. K. Shahi, Advocate General; Mr. Naresh Dikshit, Advocate; Ms. Kalpana, Advocate., For the petitioners in Civil Writ Jurisdiction Case Number 7297 of 2023: Mr. M. P. Dixit, Advocate; Mr. S. K. Dixit, Advocate; Mr. Swastika, Advocate; Mr. Sanjay Kumar Chaubey, Advocate. For the respondents: Mr. P. K. Shahi, Advocate General; Mr. Naresh Dikshit, Advocate; Ms. Kalpana, Advocate., Date: 01-08-2023., The action of the State in carrying out a caste survey, impugned in the present batch of writ petitions and the vigorous challenge raised to it on multiple grounds, inter alia of infringement of fundamental rights, by reason of infringement of privacy, reveal that despite attempts to efface it from the social fabric, caste remains a reality and refuses to be swept aside, wished away or brushed aside nor does it wither away and disperse into thin air., Learned Senior Counsel Ms. Aprajita Singh, instructed to appear in Civil Writ Jurisdiction Case Number 5542 of 2023, led the arguments on behalf of the petitioners. Referring to Annexure P/1 notification dated 06-06-2022, which initiated the caste survey and the instructions issued from the Principal Secretary to the District Collectors, followed up with directions from the District Collectors to the Block Development Officers (Annexure P/2 and P/3 respectively) and the guidelines issued through Annexure P/4 notification, the learned Senior Counsel raised objections specifically regarding the queries raised under the three heads of religion, caste and monthly income. Reliance was placed on K. S. Puttaswamy II (Aadhaar) v. Union of India (2019) 1 SCC 1 to point out that these three aspects are very sensitive personal information which defines the identity, autonomy, dignity and privacy of every individual. The Honourable Supreme Court in Justice K. S. Puttaswamy I v. Union of India (2017) 10 SCC 1 specifically dealt with these aspects and held it to be sacrosanct; the infringement of which would also fall foul of the constitutional guarantees to preserve fundamental rights and never to be impinged, other than by way of reasonable restrictions conforming to strict standards of scrutiny. The State by the above survey conducted amongst the residents of Bihar is imposing a caste status on every citizen, whether he desires it or chooses to distance himself or herself from it. The guidelines at Annexure P/5 are specifically read out which depict the manner in which the details are to be obtained from the individuals through the Government Officers, called the Enumerators. In collecting the details of religion, there is a specific option to be counted as not falling under the enumerated six religions; such persons will be classified under the heading other religion and even those who express no religious beliefs to be classified under the head no religion. Such an option is not available insofar as the caste status and it is specified that under no instance the mother’s caste will be recorded. This brings in a situation where, even a person who does not nurture any religious belief would be classified as a person belonging to one or other caste; which can only be that of the father. As far as monthly income is concerned, there is an estimation possible of the total income received by the members of the family in the whole year divided by twelve months; which, it is argued, is quite artificial and not the real income derived by an individual. It is argued that the survey, as it is intended, would be completely out of focus and there would be no possibility of verification of any of the details supplied by the individual citizen, especially in matters of religion, caste and monthly income., It is specifically argued that the power to carry out a census is exclusively on the Union Parliament as provided under Article 246 of the Constitution of India read with Entry 69 of List I, Seventh Schedule. In the year 2011, though not under the Census Act, 1948, as brought out by the Union Parliament under Entry 69 of the First List, a socio-economic caste census (SECC) was carried out by the Central Government by invoking its power under Article 73 of the Constitution. The methodology and the fallout of the same has been emphasized by the learned Senior Counsel with reference to Annexure P/9, a reply affidavit filed on behalf of the Central Government in a writ petition before the Honourable Supreme Court. The counter affidavit has emphasized that the Central Government has given up a caste wise enumeration, as a matter of policy from 1951 onwards and decided to carry out only an enumeration of the Scheduled Castes and Scheduled Tribes, notified under the Constitution. Except that of Scheduled Castes and Scheduled Tribes, it is asserted that no census was carried out in 1951 or in the succeeding six censuses of any information about the caste of the citizen. The counter affidavit further indicates that enumeration of the Other Backward Class communities has posed extremely complex impediments. When such data was collected in the pre-independence period, the data suffered from lack of completeness and accuracy and a census of the Backward Classes has been found to be administratively difficult and cumbersome. When such a conscious policy decision was taken by the Central Government, it is very difficult to perceive and accept the decision of the State Government to proceed with such an enumeration when the resources of the State are not as large as that of the Centre., Specific reference is made to the general guidelines issued which enable the enumerators and supervisors to get information regarding the caste from the head of the family, which again would not be authentic and would also impinge upon the personal choices of an individual regarding disclosure of his caste status. It is emphasized that there is no law brought out by the State to collect such sensitive data and that, in any event, there is no competence in the State to carry out a caste census in the guise of a survey. It is further emphasized that the objective of enabling affirmative action to those marginalized communities is not specifically stated in the notifications issued. Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi (1978) (3) SCR 272 is relied on to rubbish the contention of the object now declared of aiding affirmative action, which object is only an afterthought at the time of preparation of the counter affidavit. There is total absence of statement of such objective in the notification itself and what had not been thought of or stated at the time the decision was taken to initiate a caste-based survey cannot now be supplanted as an objective by way of a counter affidavit., It is vehemently argued that any individual has the right to choose or renounce his caste and there is no justification or legitimate aim, as disclosed from the notifications, to profile an individual on the basis of his caste, religion or income. Shafin Jahan v. Asokan K. M. (2018) 16 SCC 368 is relied on to argue that the Constitution recognizes the liberty and autonomy which inheres in each individual and this includes decision on aspects defining one’s person. There can be no enumeration of the required details, as is permitted under the guidelines, either from the head of the family or from neighbours and persons of a locality, which would not be accurate and would also violate the right to define oneself, which inheres in the right to privacy., The power to carry out a census, especially of caste, religion and monthly income, can only be traced to Entries 19, 69, 81 and 94 of the Union List under Schedule VII of the Constitution. Entries 20, 23, 24, 30 and 45 under the Concurrent List, as relied on by the State, can be resorted to only insofar as it does not impinge into the field exclusively reserved for the Union Parliament. The distinction of census and survey is specifically urged to further impress upon us that the exercise attempted is in measure and effect a census; thus, impinging upon the exclusive power of the Union Parliament. It is also urged that the restrictions and protection available to a citizen insofar as ensuring the integrity of the data collected and providing for its security, are not available in the present exercise. The State, which is the protector of fundamental rights under the Constitution, has turned its might against the citizen to collect data forcibly and surreptitiously, thus infringing upon the citizen’s valuable right to privacy, identity, autonomy and dignity. It is summed up that, to uphold the exercise as legal, there should be competence in the State and if competent, then a valid law should be in existence, under which the exercise can be carried out, motivated by a legitimate goal or aim; which has to be judged under the highest standards of scrutiny. If such a legitimate aim or goal is available, even then there should be narrow tailoring to ensure that nothing beyond what is necessary is done by the State. Again, if there is an alternative method available, which in this case the State has by way of appointing Commissions to aid the affirmative action, such alternatives have to be resorted to rather than involve an exercise leading to infringement of fundamental rights. Further, the test of proportionality necessarily has to be satisfied and in the present case, there can be no balance found to sustain the arbitrary action, clearly leading to infringement of fundamental rights, without any declared purpose or goal. The lack of security also assumes importance insofar as the State having not placed anything on record to indicate any audit having been conducted for ensuring the protection of the data collected. Reference is also made to a notification issued by the State Government, which the State Government itself relied on before the Honourable Supreme Court, wherein prescribed action was threatened in case of deliberate wrong information being supplied by any person. This assumes relevance especially in the context of the State having not directed the enumerator to collect the information required at the survey from the individuals themselves and goes against the assertion of the disclosure in the survey being voluntary., Sri Abhinav Srivastava, learned counsel appearing for some of the petitioners, adopted the arguments already addressed and assailed the impugned survey primarily on lack of legislative competence, disregard of the right to privacy which is also enshrined in Article 21 of the Constitution and alternatively the absence of a legislation sanctioning such survey. It is specifically argued that Article 162 only extends to the legislative power conferred on the State and insofar as caste census is concerned, there is absolute lack of it. The object of the exercise asserted by the State, to further the development of the downtrodden communities, is a mirage brought in at the second phase of the exercise. For identification of Other Backward Classes or the extremely weaker backward communities, there is sufficient power available with the States under Articles 15(4) and 16(4) of the Constitution of India. In Bihar, there is also legislation identifying the OBCs and EWBCs, which is the Bihar Reservation of Vacancies in Posts and Services (SC/ST, OBC) Act, 1991. Schedules 1 and 2 of that Act enumerate the various castes which are entitled to such benefits. There is also power on the State to identify those castes which are marginalized and are downtrodden by appointment of Commissions which is sanctioned by Indra Sawhney v. Union of India (1992) Supp. (3) SCC 217. In achieving a constitutional goal, the learned counsel asserts, the State has to adopt constitutional means and cannot otherwise proceed. Annexure 1, the initial notification and Annexures 2 and 3, insist upon collection of the data specified from each and every individual belonging to all religions and communities and there is nothing stated as to an option regarding disclosure of caste, to be voluntary. The said option now asserted by the State is an afterthought which has been stated in the counter affidavit filed by the State and not in any of the notifications issued or the guidelines brought out. Reliance is placed on the Constitution Bench decision of the Honourable Supreme Court in K. S. Puttaswamy I & Aadhaar to urge the significance and importance of the right to privacy as highlighted by the Honourable Supreme Court reversing two earlier decisions of the Apex Court itself. While K. S. Puttaswamy I upheld the right to privacy as a right protected by the Constitution, being an intrinsic part of the right to personal liberty and right to life under Article 21, the Aadhaar judgment defined the contours within which such right could be infringed. The Aadhaar judgment stressed upon the need for existence of a law which had a legitimate aim, the least infringement being occasioned and the test of proportionality being satisfied. The exercise carried out by the State fails on all three counts. If for argument’s sake, it can be sustained under Article 162, the action is bad for the complete lack of guidelines on how the exercise is to be carried out. It is reiterated that be it the exercise of legislative power or an executive fiat; necessarily it should be preceded by a legitimate object which is not discernible from any of the notifications issued. The exercise of a caste survey is being initiated without any definite objective and carried out without a proper direction and the result of the culmination of such collection of data, even now, is elusive. It is specifically pointed out that even in the interim order passed, this Court had expressed concern about protection of data; the details of which are not disclosed., Pointing out the specific details to be collected under the seventeen identified heads as per Annexure 4 notification, it is pertinently pointed out that the survey itself has been named with one of such details as the caste survey. The intention is very clear from the nomenclature given to the survey and it is the objective of the State to find out the number of persons belonging to a caste, presumably for forging alliances and carving out areas for narrow political ends; least of all is the development or upliftment of the downtrodden. It is further pointed out from the guidelines regarding collection of data that many of the guidelines are autocratic and arbitrary. It is specifically pointed out that as per the guidelines in no event the mother’s caste is to be recorded. It is also directed that an individual’s caste or other personal details can be ascertained from the head of the family. A woman who refuses to disclose the father of her child would be forced in the presence of a male member to disclose it., The very attempt of the State to record the caste of each and every individual smacks of arbitrariness and displays scant respect for the dignity of an individual. It is specifically pointed out that while the constitutional goal is to efface the caste identity, it also promotes affirmative action for upliftment of the downtrodden and marginalized. A declaration of caste or a demand to disclose it arises only when a benefit flows from it to an individual. All the members of an identified downtrodden community would not be availing the benefits of the affirmative action of the State, sanctioned by the Constitution, that flow only because of the caste identity. Even a member of the Scheduled Castes or Scheduled Tribes, if not intending to seek the benefits of reservation, cannot be forced to declare his caste status. It is in this context that the test of proportionality has to be applied on the attempt of the State to make every individual disclose his caste in the survey conducted by government officials. The learned counsel would emphasize that the mere presence of a government official is an indirect coercion on the individual who is questioned, to disclose the details under the seventeen heads, including the identification of that individual in a particular caste. The enumerators have been directed to ascertain the caste of an individual from the head of the family or from the neighbours or the people of the locality which, in effect, is a measure employed to ferret out the caste identity even of an individual who refuses to disclose it., The learned counsel relying on paragraphs 148 to 157 of the decision in Aadhaar emphasized the need to ensure the proposed survey to be one for a designated legitimate purpose, the measures adopted having a rational connection to the fulfillment of the purpose, there being no alternative measures available to achieve the very same purpose with a lesser degree of intrusion into individual rights and there existing a balance between the need to achieve the purpose and preventing any infringement of a constitutional right. It is also pointed out from Aadhaar that what stood permitted by the Honourable Supreme Court was after specifically taking into account the precautionary measures to ensure the security of the data, which have been detailed in the leading judgment., Shri Dinu Kumar, learned counsel appearing in Civil Writ Jurisdiction Case Number 8796 of 2023, while adopting the arguments already addressed before this Court, commenced with a reference to the counter affidavit of the State, speaking of a similar exercise having been carried out by a number of States; which, however, is stated to be only through a proper legislative exercise of having a Commission for making recommendations for the upliftment of the Backward Class communities. The learned counsel would specifically refer to the series of documents produced along with the reply affidavit to specifically point out the provisions in the States of Karnataka, Kerala, Maharashtra and Odisha. The functions of the Commissions are specifically referred to from the legislations produced. It is also pointed out that on similar lines there exists legislation in the State of Bihar and that makes the present exercise a futile one and an unnecessary waste of public money. It is specifically pointed out that an individual centric identification of the backward class communities has been only carried out by Karnataka and Odisha. A Division Bench judgment of the Kerala High Court in WP(C) No. 35220 of 2017, Manava Aikyavedhi v. Union of India, was relied on, in which directions were issued to the Union and the State Governments to finalize a report of socio-economic study taking into account all parameters required for identification of socially and educationally backward classes within the State of Kerala and submit a report to the statutorily constituted Commission; thus, coming within the contours of the decision of the Honourable Supreme Court in Indra Sawhney, which did not sanction an individual enumeration of caste status as distinguished from an identification of social classes or groupings for the purpose of ameliorating social and economic backwardness. But for the assertion in the counter affidavit of the State, that the disclosure of the seventeen aspects identified for enumeration from individuals is voluntary, there is nothing discernible from the various notifications and the communications addressed in furtherance of the exercise of a caste survey, which substantiate such an assertion. Ext P-23 produced is specifically referred to as the socio-economic caste census carried out by the Central Government in the year 2011, the details of which have not yet been disclosed and as argued by the other learned counsel, the Central Government had encountered many problems in proceeding with such an exercise., It is also urged that there is no reason, purpose or necessity for the exercise carried out in the name of a caste survey and it is on the mere ipse dixit of the State Government. There had to be a legitimate purpose for initiating such an exercise and there should also be a legitimate method followed, informed with reason. M. P. Oil Extraction and Another v. State of M. P.; (1997) 7 SCC 592, East Coast Railway v. Mahadev Appa Rao; (2010) 7 SCC 678 and Census Commissioner v. R. Krishnamurthy; (2015) 2 SCC 796, were relied on to argue that the executive authority of the State must be held to be within its competence to frame a policy for the administration of the State; which policy should also be absolutely free of caprice and informed by reason, failing which it could be held to be arbitrary and on the mere ipse dixit of the executive functionaries. If there was a purpose for the survey adopted and disclosure was to be voluntary then it should have come out from the scheme of things formulated by the executive authority and it cannot later be supplanted by a counter affidavit before this Court. The Census Act is specifically pointed out and Ext. P-12 produced along with IA No. 1 of 2023 is referred to where the reference to a JANGANANA meaning census; for which there is no competence on the Executive Government of the State. It is also urged that there was unnecessary expenditure and there is no clarity as to how the funds were sourced from., Shri Yadunandan Bansal, learned counsel appearing in Civil Writ Jurisdiction Case Number 4650 of 2023, went one step ahead to allege that the survey intends only to rebuild a society on the principle of divide and rule, with an eye on vote bank politics. It is pointed out that the data collected cannot be verified, is not conclusive and there is absolutely no authenticity attached to the same. It is specifically pointed out that the measure of enumeration from the head of the family and the people of the locality gives credibility to hearsay information. The preamble of the Constitution is read out to contend that it condemns the caste system and the State intends to perpetuate what the constitution framers intended to efface., Learned Advocate General commenced his arguments with the statement that everyone should realize that we have not yet attained the ideal goal of equality for all and an egalitarian society is still a mirage. It is to achieve that, the State strives, for which the exercise of a caste survey was initiated; challenged on personal predilections and vested interests. It is asserted that the purpose is very clear and it is the upliftment of the downtrodden and the marginalized for which the State has ample powers to conduct a survey of the nature now proposed; that too with the sanction of the entire legislature. The arguments raised by the learned counsel for the petitioners, of the State having no competence to proceed on the exercise of a survey and the violation of their right to privacy have no legal framework and are mere assumptions, presumptions and hypothesis.
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It is submitted that the law has to be applied on facts and there is no material produced by the petitioners to demonstrate a compulsion or coercion to disclose details in the survey carried out. It is pointed out that 80% of the survey is over and there is not even one instance of an objection from the subjects of survey regarding the disclosure of the details, including that of caste. The notifications and the communications are misread and the argument of a compulsion having been exercised by the State is misleading, especially when there is no consequence for non-disclosure. It is emphatically urged that the writ petition is not based on any empirical data; especially in a public interest litigation where Patna High Court CWJC No.5542 of 2023 dated 01-08-2023 there is an onerous duty on the petitioners to disclose materials to substantiate the arbitrariness or illegality alleged and the consequential public interest involved, so as to invoke the extraordinary remedy under Article 226., Dwelling upon the argument of the petitioners that there is no legislative power in the State, which is denuded by Entry 69 and Entry 94 of List I of the Seventh Schedule; it is contended that the source of power to legislate does not flow from the Entries in the three lists, which are mere fields of legislation, and it is sourced from Article 246 of the Constitution of India. Even according to the petitioners, the census carried out by the Central Government in 2011 was neither under Entry 69 nor under the Census Act and it was by an executive fiat under Article 73 of the Constitution of India. If that be so, it is pointed out that Entry 45 in List III, akin to Entry 94 of List I, confers power on the State to collect statistics for the purpose of verification of details, to achieve the goal under Entry 20 of List III. The exercise cannot at all be construed as a Census under Entry 69 of List I and the State has the power to proceed under the aforesaid Entries in List III., It is argued that while broad submissions are made about infringement of privacy, it is not stated as to disclosure of Patna High Court CWJC No.5542 of 2023 dated 01-08-2023 which information leads to such infringement of a right protected under Part III of the Constitution. It is also argued that the information sought for by the State is already in the public domain by way of declarations made by the very same citizens and when there is no provision for mandatory disclosure or a consequence on failure so to do; it can only be implied as a voluntary disclosure. It is argued that both the decisions cited, K.S. Puttaswamy I and Aadhaar are cited out of context and the challenge upheld in the latter was only with respect to very personal details sought for, of biometrics and iris identification., It is submitted that caste is by birth and is not by way of choice of an individual. There is neither infringement of privacy nor lack of competence on the State to carry out an enumeration of the details as attempted under the caste survey, for which heavy reliance is placed on Indra Sawhney. It is pointed out that the State had been waiting for the disclosure of the information collected by the Central Government under the 2011 Census which, unfortunately, has not materialized. It was in this circumstance that the State Legislature unanimously decided on the caste survey to further the goal as declared by the Hon'ble Supreme Court in Indra Sawhney. The dictionary meaning of census and survey are not relevant in the context of the specific power conferred on the State under Article 246 and the Entries in the concurrent list. The State sources its power also from Articles 14, 15 and 16 and the learned Advocate General points out that now there is a further category added by way of extremely weaker sections, identification of which section can only happen by collection of data. The exercise is intended at fulfilling the constitutional ideals and is not merely intended for an affirmative action. The State by the aforesaid exercise does not intend to, nor has the power to include or exclude castes from the Schedules under the Constitution. Other than affirmative action, there are many welfare schemes which are formulated by the State for the upliftment of those backward class communities identified in the survey. The aim and objective is the collection of data for the purpose of future use by the Welfare State; by inviting recommendations from the various Commissions constituted or an informed analysis made by the State Government itself., The learned Advocate General pointed out that affirmative action is a dynamic concept and since upliftment of the backward communities is what the Constitution ordains, necessarily, there should be empirical data before the State, to include those communities which require a helping hand as also Patna High Court CWJC No.5542 of 2023 dated 01-08-2023 affirmative action. Even certain communities which have been enjoying reservation for long could be considered for exclusion, if the general social, educational and fiscal conditions with respect to such communities have improved over the years. It is pointed out that in Bihar, prior to the judgment in Indra Sawhney, Mungerilal Commission was appointed. Later to the decision in Indra Sawhney, the Backward Commission Act came into force and the Bihar Reservation Act, 1991 was promulgated. For better dissemination of welfare measures, the State has to collect data and it is not the Commission's duty to collect such data. The Backward Commissions Act and the provisions thereof, especially, the functions of the Commission are pointed out to urge that a Commission appointed could only make recommendations based on the data produced before it; for which purpose the State machinery has to be employed. This is the exercise now attempted by the State which is only to attain the constitutional goal of removing inequality and bringing in equality and thus pave the path to an egalitarian society., It is pointed out that the details sought for by the State in its survey especially the three aspects of religion, caste and income on which specific objection has been raised by the Patna High Court CWJC No.5542 of 2023 dated 01-08-2023 petitioners cannot be construed to be an integral personal aspect of an independent nature, the disclosure of which will be an infringement of his or her privacy. It is reiterated that there is no compulsion on the individual to disclose any details and it can be demonstrated that it is only a voluntary disclosure that is attempted by the State. The learned Advocate General takes us through the material supplied to the enumerators to impress upon us the voluntary nature of disclosures by individuals. It is pointed out that there is a four‑stage hierarchy created for the purpose of the survey with the enumerator at the grass‑root level and the Supervisor, the Charge Officer and the Nodal Officer in the ascending positions of hierarchy. There is absolutely no substance in the contention that the aspects disclosed by the head of the family would not be at the option of the various individuals comprising the family. It is pointed out that the head of the family, as the survey defines, is not the eldest one or the one who brings income to the family and is the person who is given the position of respect in the family and handles the day‑to‑day affairs of the family. It is also pointed out that there is no gender specification and either a male member or female member of the family can give the details to the enumerator. The hierarchical officers ensure that any clarification can be obtained by the enumerator immediately and rectified. The details supplied by the head of the family or those not within the knowledge of an individual; if collected from other sources, are put to the individual before it is recorded. It is also pointed out that despite the petitioners having pointed out a provision which speaks of prescribed action in case of failure to disclose the details; there is no such prescription made. The ground of coercion and mandatory disclosure, is only on a truncated reading of the various documents. Even the income disclosure is not the exact income received by an individual and the details collected is only of the range in which an individual has income from various sources. In the event of there being no definite income, it is also stipulated that an estimated income based on the professional activity carried on, can be recorded. It is pointed out that what is intended is only the collection of approximate estimations, which though not absolutely verifiable, however, would provide the State with a platform and enable it to decide upon the socio‑economic status of families and thereby the communities/castes to which they belong., As to the competence, the learned Advocate General specifically refers to the distinction as discernible from the words employed in Clauses (3) and (4) of Article 16 and the Patna High Court CWJC No.5542 of 2023 dated 01-08-2023 authoritative pronouncement in Indra Sawhney. It is pointed out that Indra Sawhney had asserted the power of the State to make laws which, looking at the definition of State and laws as available in the Constitution was held to be including even orders, rules, regulations and notifications. The 72nd and 73rd amendment giving a Constitutional status to the local self‑government institutions and providing for reservation to such local bodies were specifically pointed out. To satisfy the Constitutional goal of providing equal opportunities to the backward and unrepresented communities to be represented in the local self‑government, the contemporaneous empirical data about such communities assume relevance. K. Krishna Murthy (Dr.) v. Union of India; (2010) 7 SCC 202 is relied on to contend that the collection of data is not the duty of the Commission and it is for the State to collect such data and provide it to the Commission for the purpose of making recommendations. Vikas Kishanrao Gawali v. State of Maharashtra; (2021) 6 SCC 73 was also relied upon to urge that collecting adequate materials and documents to identify Backward Classes for the purpose of reservation by conducting a contemporaneous rigorous empirical inquiry into the nature and implications of backwardness in the local areas concerned is the foremost requirement. Reliance was also placed on M. Nagaraj v. Union of India; (2006) 8 SCC 212., The Collection of Statistics Act, 2008 was specifically referred to and the provisions therein to contend that the caste survey initiated by the State of Bihar is perfectly within the scope and ambit of that Act. The prohibition in Section 3(a) is only with respect to any matter falling under any of the entries specified in List I in the Seventh Schedule to the Constitution. Section 3(c) on the other hand, restricts the Central Government from issuing any directions for collection of such statistics which are being collected by the State Government or Union Territories on the basis of prior directions issued by such Governments. Section 32 of the Act of 2008 is also emphatically pointed out to assert the power of the State to conduct a census or survey as defined under the definition clause of Statistical Survey (Section 2(g)), despite it being inconsistent with any other law for the time being in force., The supplementary affidavit which was filed on 28.05.2023, with the consent of the petitioners, was also referred to. The averments there were copiously read over to impress upon us that there was absolutely no coercion and that the disclosure, if at all, made by the citizens were fully voluntary. From the counter affidavit, the tedious task of preparation of caste list prior to the decision made by the Cabinet, the purpose for which it was initiated and the data security ensured were specifically referred to. It is pointed out that a scientific module has been put in place for enumeration of the seventeen heads under the survey and it is ensured that the data collected is as accurate and precise as possible in the given circumstance of the massive exercise carried out through the officers of the Government. The learned Advocate General, with an amount of consternation, pointed out the delay in approaching Patna High Court after more than 80% of the work was completed. In fact, earlier itself one of the petitioners had approached the Hon'ble Supreme Court and the said petition was not entertained specifically directing the High Court to be approached. It was after considerable time that the petitioners had approached the High Court and that too after the exercise had proceeded to a considerable extent. The two stages as contemplated was specifically pointed out which ensured the collection of data extensively, precisely and without any coercion exercised on the subjects of the survey., On the insistence for the caste of father being recorded, reference is made to prevalent practices in the State which stood altered with Rameshbhai Dabhai Naika v. State of Gujarat; (2012) 3 SCC 400. On the aspect of the sharing of data argued by the learned counsel for the petitioners, from the notification, it is pertinently pointed out that what is indicated is only apprising the various leaders of the political parties in the assembly about the stages of the caste survey and not necessarily disclosing the details. The National Health Mission Survey is pointed out wherein religion and caste are also recorded of the individuals, subjects of survey. Insofar as the Census specified in Entry 69 of List I of the Seventh Schedule and the various entries upon which the State relies to carry on the instant survey, the decisions in ITC Ltd. v. Agricultural Produce Market Committee; (2002) 9 SCC 232 and Vinodchandra Sakarlal Kapadia v. State of Gujarat; (2020) 18 SCC 144 are relied on. The words in an entry cannot be given a narrow construction and has to be given the widest amplitude so as to enable the State and the Union to have an enlarged scope and coverage to carry out welfare schemes, affirmative action and so on which are the primary obligations of a Welfare State., To sum up, it is pointed out that there are inadequate materials to support the contentions raised by the Patna High Court CWJC No.5542 of 2023 dated 01-08-2023 petitioners, purportedly in public interest, but however, projecting a very personal perspective, not taking into account the ramifications in furthering the constitutional goal of bringing the marginalized and the downtrodden to the mainstream. The caste survey as planned and implemented by the Bihar State looks at the larger public good and is an endeavor to further public interest and cannot at all be termed as a political gimmick furthering vested interests. It is prayed that the actions of the State may not be invalidated merely on individual perceptions, especially when the exercise is sanctioned by the Constitution; precisely Articles 14, 15, 16, 243‑D, 243‑T and Article 246 read with entries 20, 23, 24 and 45 of List III. The exercise does not make any inroads into the provisions of the Census Act nor does it impinge upon legislative or executive power of the Union Parliament. It is only natural that in an exercise of this magnitude there could crop up minor defects which the State has tried to rectify in the course of the implementation, as pointed out during the hearing. The reliance on Mohinder Singh Gill is specifically objected to, especially since the sequitur insofar as the reasons required to be disclosed in the order itself, is with respect to routine administrative matters and not the legislative and executive actions of the State, the reasons and objectives of which would be available in the contemporaneous documents., Learned Senior Counsel Shri Basant Kumar Chaudhary appears for an intervenor and points out that there are two perspectives to the issue: one, the constitutionality and the other, the social aspects. The learned Senior Counsel would specifically point out that eyebrows are raised only because of there being a caste enumeration; which, the objectors fail to realize, is a reality and reflected in every fabric of the society. The learned Senior Counsel would also specifically point out that there is no concern of privacy since the citizens have come forward voluntarily to disclose the details under the seventeen enumerated heads. When there is abject poverty, as is indicated from the lowest per capita income in the State of Bihar, there is a requirement for enumeration of the backward communities and castes to further the reservation process and bring development within the State and also to its citizens, especially when the statistics now available upon which the 1991 Reservation Act came into force are outlandish and obsolete. It is pointed out that of the 215 castes enumerated in the survey, only ten are now represented in the local bodies and the objections against the enumeration reveals the undercurrent of paranoia displayed by the communities holding hegemony over every aspect of political and social life within the State. Reference is made to S.R. Bommai v. Union of India; AIR 1994 SC 1918 to assert that there is no interference caused to the decennial census and to further the federal system under which our country works there should be full play of the entries in the three lists which also should suit the needs of the time. The doctrine of seeming conflict does not allow the Courts to interfere with valid actions, as has been held in Jorubha Juzer Singh v. State of Gujarat; AIR 1980 SC 358 and K.C. Gajapati Narayan Deo v. State of Orissa; AIR 1953 SC 375., In reply, it is argued that Indra Sawhney has absolutely no application to the facts of the present case since the decision deals with affirmative action of reservation which is not a disclosed object of the present exercise. The Collection of Statistics Act does not rescue the State from the quandary it is placed in, regarding competence and in any event the exercise does not comply with the provisions of that Act. It is pointed out that Article 243‑D and 243‑T have to be furthered through dedicated Commissions which are independent of political interests. Further challenging the application of Indra Sawhney, Patna High Court CWJC No.5542 of 2023 dated 01-08-2023 it is emphasized that a precedent has to be applied on the facts of each case, as has been held in Suresh Mahajan v. State of Madhya Pradesh; 2022 SCC OnLine SC 589 and Government of Karnataka v. Gowramma; AIR 2008 SC 863. It is also pointed out from the Collection of Statistics Rules, 2011 that Rule 5(5) makes it mandatory inter alia to disclose subject and purpose of collection of statistics which is not evident in the present exercise, at least in the initial stage of the notification; bringing forth to the public the intention of the Cabinet to carry out a caste survey. Rule‑6(i) specifically fetters the power of the State in impinging upon the powers of the Union; i.e., a census. Rule 6(iv) ensures the narrow stitching causing minimum intrusion into the privacy of an individual; as brought in by the Statute, even before the declaration made in Aadhaar case by the Hon'ble Supreme Court. From the decision of the Hon'ble Supreme Court, it is pointed out that privacy has been held to be not an elitist construct, not applicable to the teeming masses who are bogged down by poverty and lack of literacy. They too deserve a dignified existence and even if they are not aware of it, the Court should be cautious in ensuring their basic dignity and not allowing the State to embark upon unnecessary intrusions into their privacy. Reliance is also placed on Forum for People’s Collective Efforts (FPCE) v. State of West Bengal; (2021) 8 SCC 599 and National Confederation of Officers Association of Central Public Sector Enterprises v. Union of India; (2022) 4 SCC 764., The main grounds of challenge to the exercise of a caste survey carried out by the State Government are: (i) that there is no competence on the State legislature to carry out such a survey, which is in essence a census, (ii) that even if there is competence, there is no object or a legitimate aim declared for collecting such data from the citizens, (iii) that there is an element of coercion in disclosing personal details such as religion, income and caste, (iv) that this coercion leads to the invasion of privacy of an individual; declared to be a valuable right encompassed within Article 21 of the Constitution of India and (v) that the measures now attempted go against the principles laid down in the Aadhaar decision and fails the three‑pronged test laid down therein. There is also a contention raised in one of the writ petitions that the expenditure for the massive exercise is without due sanction of law., The allegation of Rs. 500 crores having been taken from the contingency fund without due appropriation as provided under the Constitution of India and in violation of the law on this point as also the rules of business framed by the State, was raised at the interim stage itself. It was found that two earlier writ petitions filed on similar lines were closed on the submission of the learned Advocate General that the supplementary budget stands presented and passed by the Legislative Assembly of Bihar. It was observed that one of the earlier writ petitions was filed by the very same Advocate who has filed CWJC No. 4624 of 2023, which is one of the writ petitions considered herein, in which there was no specific contention challenging or doubting the veracity of the submission made by the then Advocate General. The interim order was passed on 04.05.2023 and then and there, the matter was posted to 03.07.2023 for final hearing. The State had moved an appeal from the interim order before the Hon'ble Supreme Court in which no interference was caused, since the matter was posted to the 3rd of July, for final hearing. The Hon'ble Supreme Court permitted the State to further move the petition if hearing was not commenced on that date. Hence, it was very evident that the matter would have to be taken up for final hearing on 03.07.2023. An application was filed by the petitioner in Patna High Court No. 4624 of 2023 on 28.06.2023. The Courts were closed after that, till the date on which the hearing was scheduled i.e. 3rd of July, 2023., It had been noticed in the interim order that there was no contention raised in the writ petition doubting the veracity of the submission made by the Advocate General as to a valid appropriation having been made and the absence of such a contention prevented the State from answering it completely with substantiating records. The present application is filed making a bland prayer in Paragraph 23 that on the basis of the facts stated in the I.A. the State Government has to produce the records containing the decision of the State Government for expenditure of Rs. 500 crores for the Caste Based Survey in the State of Bihar. This has to be juxtaposed with the submission of the petitioner himself that he was aware of the decision taken by the Government of Bihar to make appropriation from the contingency fund to carry on the Caste Based Survey, after the supplementary budget was presented and passed by the State Legislative Assembly. The contentions are not properly couched and the prayer has been made belatedly, thus preventing the State from answering it completely with substantiating records. We refuse to consider the said prayer, when the State has not been given an appropriate opportunity to answer the contention raised., As for competence or rather lack of it, the petitioners rely on Entry 69 of List I of the Seventh Schedule read with Entry 94 to assert total absence of competence in the State Legislature to carry out the present exercise which is akin to a Census. Carrying out a census is argued to be the exclusive premise of the Union Parliament based on which the Union Parliament has framed the Census Act. Any survey and collection of statistics for the purpose of any of the matters in List I also is within the exclusive domain of the Union as per Entry 94, is the compelling argument. On the other hand, the State relies on Articles 15(4), 16(4), 38 and 39, Parts IX and IXA, and the 102nd Amendment to the Constitution of India bringing in Article 342A. As for the fields of legislation, the State banks on Entries 20, 23, 24 and 45 under List III of the Seventh Schedule. The State also relies on the Collection of Statistics Act, 2008 and asserts the notification to be one issued under the said enactment though there is no specific reference to the said enactment in the notification by which the caste survey was initiated. The State also placed heavy reliance on the Patna High Court judgment in Indra Sawhney., Article 15 speaks of prohibition of discrimination on grounds of religion, race, caste, sex or place of birth with clause (4) enabling the State to make specific provisions for the advancement of any socially and educationally backward class of citizens or for the Scheduled Castes and Scheduled Tribes; notwithstanding Article 15 and clause (2) of Article 29. Clause (5) of Article 15 enables State to also make similar provisions relating to admissions to educational institutions. Similarly, Article 16 speaks of equality of opportunities in matters of public employment and clause (4) enables the State to make provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. Indira Sawhney was concerned with Article 16 and specifically sub‑clause (4) and the ramifications it entails. Answering the question framed as to whether clause (4) of Article 16 is an exception to the provision, the learned Judges referred to M.R. Balaji v. State of Mysore; AIR 1963 SC 649; State of Kerala v. N.M. Thomas; (1976) 2 SCC 310 and T. Devadasan v. Union of India; AIR 1964 SC 179., M.R. Balaji found that Article 15(4) has to be read as a proviso or an exception to Articles 15(1) and 29(2); Article 15(4) being inserted by the first amendment in the light of the decision in State of Madras v. Champakam Dorairajan; AIR 1951 SC 226. M.R. Balaji also held that this principle is applicable equally to clause (4) of Article 16, following which another Constitution Bench by majority in T. Devadasan held that clause (4) of Article 16 has already been held to be a proviso or an exception to Clause (2). The dissenting opinion in the said decision that Article 16(4) is not an exception to Article 16(1), but is only an emphatic way of stating the principle inherent in the main provision was accepted by the majority in N.M. Thomas and also in Indira Sawhney; larger Benches. It was held that Article 16 does permit reasonable classification for ensuring attainment of equality of opportunity; the assurance of which is possible, only if unequally situated persons are treated unequally and not equally, in certain situations. Not doing so, according to the majority judgment in Indira Sawhney, would perpetuate and accentuate inequality. Article 16(1) being a facet of Article 14; implicitly permits classification and the minute that is recognized, clause (4) becomes an instance of classification inherent in clause (1) and the theory of it being an exception becomes untenable. In Patna High Court dealing with the question whether Article 16(4) is exhaustive of the very concept of reservations, it was held that the clause is exhaustive of reservations only in favour of backward classes and there could be exceptional situations where further reservations of whatever kind could be provided in public interest, to redress a specific situation., The leading judgment in Indira Sawhney, approved by the majority, also considered the question as to whether a provision contemplated by Article 16(4), must necessarily be made by the Parliament or Legislature of a State. It was held that the definition of State in Article 12 is not restricted to the Government, the Parliament of India or the Government and the Legislature of each of the States, but includes all local authorities and other authorities within the territory of India under the control of the respective Governments. The term, local authorities in Article 12 was also found to take within its ambit all municipalities, panchayats and other similar bodies. Viewed in that perspective of the wider definition of State in Article 12, it was held that it is not reasonable, possible and practical to say that the Parliament or Legislature of the State itself, should provide for reservation of post/appointments in the services of all such bodies, besides providing for reservation in services under the Central/State Government.
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Reading the definition of State along with Article 13(3)(a) and the definition of law, it was held that a provision as contemplated under Article 16(4) can be provided not only by the Parliament or Legislature but also by the Executive in respect of Central or State services and by the local bodies and other authorities coming within the ambit of Article 12, in respect of their respective services. We are conscious of the fact that the said declarations on the ambit and scope of Article 16 were specifically on the power conferred with respect to affirmative actions by every entity coming under the definition of State. If such affirmative action is permitted by all such entities coming within the definition of State, then as a corollary it has to be held that the decision‑making process, in so far as bringing forth such affirmative actions, would include the identification of socially and educationally backward classes under Article 15 and backward classes under Article 16. It was so held in Indira Sawhney, Paragraph 736. Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction; the exercise is an objective one. Certain objective social and other criteria have to be satisfied before any group of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power., The above extract answers the question raised in Paragraph 736 regarding the possibility of abuse of power by the political executive; the adequate safeguard against such misuse was found in Article 16(4) itself. Hence, before an affirmative action is taken by the State, there should be satisfaction of the relevant criteria by which backwardness can be defined. For that purpose the social standing of the groups or communities, taking into account factors such as social capital as well as the financial and educational capacity of the members, has to be ascertained. The ascertainment of social capital would include representation in various administrative services, legislative and governing bodies, enrollment in educational institutions and the general living standards prevalent among the members of the various communities within a local area. When affirmative action can be provided by the various entities coming under the definition of State, the executive branch of the Government, which has been conferred with the power to bring in such affirmative actions, can adopt such measures after better understanding the living conditions, social, economic and educational status of the various communities existing within its boundaries. For the State Governments to take up the cause of backward communities, as a welfare State is wont to do, there should be collection of empirical data on which the affirmative actions and the various schemes and projects to uplift the marginalized masses and bring them to the mainstream would be based., The State Governments cannot wait on their haunches for the Central Government to carry out the census and provide it with the details so as to ensure affirmative action within the State, in its services under Article 16(1) and (4) and for its downtrodden under Article 15(1) and (4). What has been stated about Article 16 and the power of the executive branch of the State applies equally to Article 15(1) and (4) of the Constitution of India. There, the State is empowered to make special provisions for the advancement of any socially and educationally backward class of citizens or for the Scheduled Castes and the Scheduled Tribes; which necessarily is not confined to an affirmative action but essentially is an upliftment of such socially and educationally backward communities so as to ensure due recognition and representation in society., Articles 15 and 16, while prohibiting any discrimination on grounds of religion, race, caste, sex or place of birth and providing for equality of opportunities in matters of public employment, inherently provide for beneficial schemes for the advancement of socially and educationally backward classes and reservation in favour of citizens not adequately represented in the services of the State, its instrumentalities and the various representative bodies of governance. Article 246, which is the source of all legislation, has to be read with Articles 15 and 16, along with the fields of legislation as relied on by the State coming under List III of the Seventh Schedule to the Constitution of India. Entry 20 of List III refers to economic and social planning and Entry 23 deals with social security and social insurance, along with employment and unemployment. The power of the State legislature to make laws under the above fields of legislation, without repugnancy to any legislation brought out by the Union, cannot be disputed. In this context, Entry 45 of List III also assumes significance as it deals with inquiries and statistics for the purpose of any of the matters specified in List II or III. Article 38 also obliges the State to secure a social order for promotion of the welfare of the people with every institution of national life permeated with justice, social, economic and political considerations, striving to minimise and eliminate inequalities amongst individuals and groups of people. Article 39 again exhorts the State to follow the principles of policy which would further equality in every aspect of human life. Though the provisions in Part IV are not enforceable, they are fundamental to the governance of the country and enjoin the State to apply them in making laws. It has been held in Atma Prakash v. State of Haryana, All India Reporter 1986 Supreme Court 859 that while the Preamble to the Constitution is the guiding light embodying the hopes and aspirations of the people, the Directive Principles set out the proximate goals. The collection of statistics to further economic and social planning and ensure social security and insurance is definitely within the premise of the State and when such action is taken by way of legislation or even by executive fiat, permissible under Article 162 of the Constitution of India, conferring privileges or favours on any particular community found to be backward or attempting to bring in such schemes or welfare measures, that cannot be faulted., The State has a duty to ensure and satisfy itself that benefits or privileges are provided to further the cause of a community or group identified as backward, as argued by the learned Advocate General. For such satisfaction to be entered by the State, which should also be an objective satisfaction, either by its legislative body or the Government, there should be empirical data available as to the conditions of a community or group earmarked for the purpose of conferring such preferential benefits, as has been held in Indira Sawhney. While the State has the power to bring in affirmative action, it also has a corresponding duty to satisfy itself that the benefit conferred satisfies the relevant criteria; this satisfaction should be objective and not subjective. The instant survey is said to be under seventeen heads, as seen from the notification issued by the State Government; a brief perusal of which would satisfy any reasonable person that these heads would bring out the social, educational and economic condition under which a community or group exists within the larger society. The objection taken is only with respect to the collection of details of religion, caste and income, which will be dealt with later. The survey initiated by the Government is within its competence since any affirmative action under Article 16 or beneficial legislation or scheme under Article 15 can be designed and implemented only after collection of the relevant data regarding the social, economic and educational situation in which the various groups or communities in the State live. The provisions under Articles 243D and 243T further enjoin reservation to local bodies, not only for Scheduled Castes and Scheduled Tribes but also for backward classes of citizens., The constitutionality of Articles 243D and 243T providing for reservation in Local Government Institutions and Bodies was examined in K. Krishna Murthy in juxtaposition with the reservation policies under Articles 15(4) and 16(4). Reservation in local self‑government was held to be not a chance to play leadership roles but a measure of protective discrimination to weaker sections at the local level, so as to afford them adequate representation in local self‑governance. The provisions under challenge were held to be analogous and based on the proportion between the population belonging to the downtrodden or backward categories and the total population of the area in question. Upholding the provision to reserve seats and the post of Chairperson in favour of backward classes, a distinction was drawn from the nature and purpose of reservation policies under Articles 15(4) and 16(4). It was held that backwardness in the social and economic sense is not the only criterion for conferring reservation benefits and hence the exclusion of the creamy layer in the context of political representation would not be proper. The State Government’s power to determine the extent of such reservation on the basis of empirical data such as population surveys was clearly emphasized, the guiding principle being proportionate representation. The rotational policy envisaged under the two provisions was also held to be a safeguard against the possibility of a particular office being reserved in perpetuity., Reservations in local bodies as well as in the position of Chairpersons, in favour of backward class citizens, do not explicitly provide any guidance regarding the quantum of reservation and in the absence of such explicit quantum the only presumption is that such reservation should be guided by the standard of proportionate representation, for which necessarily there should be collection of empirical data as to the quantum of population and the percentage of the backward classes within such population. It was held that economic backwardness should not be conflicted with political backwardness and even a person from a declared backward community having financial autonomy, if enabled to be represented in the local body, could inure to the benefit of and result in the upliftment of the category to which he or she belongs. The Court categorically held that the reservation benefits contemplated by Articles 15(4) and 16(4) cannot be mechanically applied in the context of reservations enabled by Articles 243D and 243T. Restriction of access to education and employment cannot be readily equated with disadvantage in the realm of political representation. In conclusion, while upholding the constitutional validity of both the Articles, it was held that the identification of backward classes under Article 243D(6) and Article 243T(6) should be distinct from the identification of SEBCs for the purpose of Article 15(4) and that of backward classes for the purpose of Article 16(4)., The above proposition of law was followed in Vikas Kishanrao Gawali wherein the three‑pronged test as propounded in K. Krishna Murthy was specifically adverted to. The three‑pronged test was succinctly stated as: (i) to set up a dedicated Commission to conduct contemporaneous rigorous empirical inquiry into the nature and implications of backwardness with respect to local bodies within the State; (ii) to specify the proportion of reservation required to be provided local‑body‑wise in the light of the Commission’s recommendations so as not to fall foul of overbreadth; and (iii) to ensure that such reservation does not exceed fifty per cent of the total seats reserved in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. The need for contemporaneous empirical inquiry to identify the quantum of reservation with respect to local bodies was emphasized and this is the task which the State is embarking upon., While the three‑pronged test speaks of a dedicated Commission to conduct an empirical inquiry into the nature and implications of backwardness, it has to be pertinently observed that Indira Sawhney emphasized that the appointment of Commissions is not the only procedure, method or approach to be adopted in identification of backwardness and there is no standard or model procedure. It was declared that it is for the authority appointed to identify to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted is fair and adequate, the Court has no say in the matter. It was also emphatically stated that if a Commission or Authority begins the process of identification with castes (among Hindus) and occupational groupings among others, it cannot by that reason alone be said to be constitutionally or legally bad. Hence, not only for local bodies, but also for identifying backwardness for the purpose of affirmative action or schemes or projects to ensure upliftment and adequate representation in governance, a reasonable method and procedure may be adopted, which could also be on the basis of caste., We have also looked at the various statutes produced in Civil Writ Jurisdiction Court No.4624 of 2023 for the constitution of Commissions for Backward Classes. The functions of the Commissions as seen from the statutes are more or less the same. We specifically look at the Bihar State Commission for Backward Classes Act, 1993, wherein the function of the Commission is to examine requests for inclusion of any class of citizens as a backward class in the list, hear complaints of over‑inclusion or under‑inclusion of any Backward Class in this list and tender such advice to the State Government as it seems appropriate. The advice of the Commission is also declared to be ordinarily binding on the State Government. It would be futile to expect the Commission to carry out the collection of empirical data and it cannot be said that the request of inclusion or exclusion of any class can only come from individuals or representatives of such backward classes or groups. The Welfare State, having appointed the Commission, should also further the object of upliftment of such backward communities and the State cannot be a mute spectator, waiting to put its imprimatur on the recommendations of the Commission., If the State machinery is put to use for collecting empirical data, which we have found to be possible and constitutionally permissible, the appointment of a Commission or the power to such appointment cannot deprive the State from carrying out a survey aimed at identifying backwardness to further the cause of backward communities including the Scheduled Castes and Scheduled Tribes. We specifically notice that Karnataka State had brought in an amendment by way of Section 9 to conduct a survey of the social and educational status of the citizens of India and to identify the socially and educationally backward classes for the purpose of recommending necessary measures to the State Government. If the State had the legislative power to carry out such an exercise, then necessarily the Executive Government could also bring out notifications under Article 162 of the Constitution when there is no legislation existing on that count, either of the Parliament or the State Legislature, when the matter comes within List III of the Seventh Schedule. The appointment of a Commission is one of the modes for identifying backward communities and the collection of empirical data by the Government further the process of upliftment of the backward communities; such data could also be placed before the Commission for an independent recommendation as to inclusion and exclusion of various communities., We have to specifically notice that the State in its counter affidavit has spoken about the involvement of various Commissions statutorily constituted for the purpose of identifying the various castes that exist in the State, which were later put through the Administration at the District Level for proper identification of the various castes within the State of Bihar. It is for the State to decide whether the details collected would be placed before the Commissions for the purpose of recommendations or a policy framed by itself from the details collected. At the risk of repetition, it has to be noticed that the mere possibility of an abuse for political ends cannot result in the Court interfering in a valid procedure adopted., The objection raised, which another Division Bench upheld on a prima facie consideration at the interim stage, was also of the generic meanings assigned to census and survey. The petitioners contended that what the State attempts is a census under the garb of a survey, which is a legislative power clearly conferred on the Union Parliament as per Entry 69 of List I of the Seventh Schedule. Much was also argued about the nomenclature under which the survey was published, being Caste Survey, having disclosed a surreptitious, nefarious political game of the Executive Government to identify caste equations in the State so as to hatch political alliances and even carry out delimitation of constituencies. We have to immediately notice the caution expressed in Indira Sawhney as far as the power conceded to even the executive arm of the State Government and the various entities coming under the definition of State to carry out an affirmative action within its services. The mere possibility of an abuse of power cannot lead to restriction of a provision in the Constitution, curtailing its full effect and reducing its fullest amplitude. As has been held, the action of the State should be informed with reason and an objective satisfaction of the relevant criteria; which stage we have not yet reached. The petitioners argue that the State cannot collect such data, in which case the power conceded to the State Legislature and its executive arm to give the fullest effect to the provisions of Articles 15 and 16 would be curtailed and frustrated. We are unable to accept the contention of the petitioners that the State Legislature is devoid of the power to attempt a survey in the manner it has now been attempted for lack of competence. When the power of the Legislature and the Executive Government is clear from the Constitution, there is no purpose in looking at the generic definitions of the term and solely on that ground setting aside an action of the Government which is otherwise valid under the Constitution., It has been noticed in the interim order that census, as the term is generically defined, gives the connotation of accurate facts and verifiable details while a survey brings forth only abstract opinions and perceptions of the subjects of the survey. The State Government in collecting the data, especially in finding out the social, educational and financial situation of the various communities within the State, is not looking at exactitude nor can mathematical precision be the norm in such data collection from the entire citizenry within a State. In fact, no affirmative action or beneficial legislation or schemes and measures to uplift the backward community can be made if there has to be collection of exact data. As rightly pointed out by the learned Advocate General, what is intended by the survey is collection of broad estimates based on which the State can initiate legislative action and implement beneficial schemes even by an executive fiat so as to ensure the development of the backward communities within its State., It is also to be noticed that while the Constitution includes Census under Entry 69 of List I there is no definition of the term in the Constitution. The Union Parliament has brought out the Census Act, 1948 which also does not have a definition of that term and there is no enumeration of the details which would fall under the word Census. It is, however, clear that a census under the Census Act, 1948 can only be carried out by the Central Government wherein even the staff of the local authorities have to be made available to carry on the nitty‑gritty of interfacing with the citizens and collection of data. The mandate of active cooperation of the State Government is also very clear from Section 7, wherein the District Magistrate or such authority as the State Government appoints in this behalf, being empowered to call upon any person within the State to give such assistance as has been specified in the order, towards the taking of a census of the persons who are at the time of such census occupying their lands or working in their premises or residing within the areas in which local authorities are established., The question is whether Entry 69 prohibits any survey to be conducted which could also result in enumeration of details that could be collected under the Census Act, 1948. In this context, we have to specifically notice the Collection of Statistics Act, 2008 brought in by the Union Parliament which specifically defines statistical survey as a census or a survey, whereby information is collected from all the informants in the field of inquiry or from a sample thereof, by an appropriate authority under the Act. The words census and survey have been used interchangeably with reference to appropriate governments of the Union, State or Union Territories, making it very clear that the inclusion of census under Entry 69 does not prohibit any State Government from collecting live data, as collected in a census, for the purpose of implementing welfare schemes within the State and also carrying out affirmative action., We need not dwell upon the source of power from the Collection of Statistics Act, since we have otherwise found competence on the State. Though there is a gazette notification, it does not speak of sourcing the power from that Act. The learned Advocate General pointed out that even if the source of power is not specified in the notification, if the State is conceded such power under an enactment, the Court cannot set it aside only for reason of the source not being referred to in the notification. We are conscious of the said principle, but we notice that a notification under the Collection of Statistics Act requires certain details to be provided, as mandated under Rule 5 of the Collection of Statistics Rules, 2011. Rule 5(5) of the Rules of 2011 specifies that a notification under Section 3 of the Act shall contain inter‑alia the subject and purpose for collection of statistics and the obligation of the informant, which is not available in the notification. We hasten to add that we are not dealing with the contention of there being no legitimate aim for the attempted survey at this stage, and we only notice the absence of the purpose for collection of statistics in the notification, which is a mandate under the Rules of 2011. The State could have proceeded under the Collection of Statistics Act, under proviso (c) to Section 3 or based on the authority we found earlier from the various constitutional provisions, to carry out a survey of the instant nature; both of which could be treated as valid. Proviso (a) to Section 3 prohibits a State Government or Union Territory Administration from issuing any direction with respect to collection of statistics relating to any matter falling under any of the entries specified in List I of the Seventh Schedule of the Constitution. Proviso (b) also prohibits any State Government or Union Territory Administration from issuing any direction similar to that issued by the Central Government, till the collection of statistics by the Central Government is completed. Proviso (c) likewise restrains the Central Government from issuing any similar direction when a State Government or Union Territory Administration has issued a direction under Section 3 for the collection of statistics relating to any matter. Collection of statistics is hence a power conferred on the Union, States and Union Territories. The blanket prohibition is only insofar as the States and Union Territories are disabled to carry out a survey with respect to matters in List I and even otherwise, when the Central Government is in the process of collecting any statistics. With respect to matters not included under List I, the prohibition applies equally, depending on whether the Centre or the State has first initiated the process., An overlap of power leading to repugnancy occurs only in such circumstances or when the State attempts to collect statistics from outside its boundaries either under the Collection of Statistics Act or under the various Entries in List II or III read with Article 246, Article 15(5) and Article 16(4) of the Constitution of India. We once again reiterate the use of the words census and survey interchangeably in the Collection of Statistics Act, which is an enactment brought out by the Union Parliament aware of the inclusion of Census under Entry 69 of List I of the Seventh Schedule. A PAN‑India census can only be carried out by the Central Government, which is the reason for Entry 69 in List I of the Seventh Schedule., Having found competence on the State Government to initiate a measure of survey in the nature of that challenged, we have to look at whether there is any declared objective in the survey being carried out. We cannot accept the ground raised by the petitioners that the object for which the survey is carried out should have been explicit in the notification itself, and that it cannot be declared in the counter affidavit, which would be only an afterthought to save the situation and would be in the teeth of the authoritative declaration in Mohinder Singh Gill. In Mohinder Singh Gill, it was held that when a statutory order is made, its validity must be adjudged by the reasons mentioned therein and cannot be supplemented by fresh reasons in the shape of an affidavit otherwise. The reliance placed was on Commissioner of Police, Bombay v. Gordhandas Dhanji, All India Reporter 1952 Supreme Court 16, which held that public orders publicly made in exercise of statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or intended. Public orders made by public authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. We have to accept the reservation made by the learned Advocate General that this applies to administrative orders and not necessarily to notifications made under Article 162 implementing policies of the government, which has to be tested on the background of how the decision‑making process came to be., Policy decisions shall not be interfered with by Courts unless patently arbitrary, as has been held in M.P. Oil Extraction. If there is an objective and rational foundation for the Government’s decision, the Courts will not embark upon an exercise to ferret out a better measure in substitution of what the Government proposes.
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It is trite that in matters of economic policy decisions the scope of judicial review is limited and circumscribed. If the executive authority is within its competence to frame a policy for better administration of the State, unless the policy is absolutely capricious, not informed by any reason, and can be clearly held to be arbitrary, founded on mere ipse dixit of the executive functionary thereby offending constitutional provisions or conflicting with any statutory provision, the Patna High Court Civil Writ Jurisdiction Case No. 5542 of 2023 dated 01-08-2023 held that the Court cannot and should not overstep the limits and tinker with the policy, the framing of which is in the exclusive domain of the State. It has been declared that policy decisions are in the domain of the executive authority of the State and the Court should not embark on the uncharted ocean of public policy nor question the efficacy of such policy so long as it does not offend any provision of the statute or the Constitution of India., The East Coast Railway case distinguished the requirement of sufficiency of material to base a decision from the duty to record reasons, both of which could lead to the decision being sustained. It was held that every order passed by a public authority should disclose the due and proper application of mind of the person making the order, which may be evident from the order itself or the contemporaneous record. Disclosure of the mind of the authority is best done by recording reasons; the absence of reasons in the order or in the contemporaneous record is clearly suggestive of the order being arbitrary and legally unsustainable. In the cited case the administrative decision to cancel a typing test was found to be bad because the order did not state any reasons whatsoever and no reasons were set out in any contemporaneous record., The counter‑affidavit dated 01‑05‑2023 of the State asserts the object behind the survey and describes the decision‑making process. It states that the 2021 census has not commenced, so beneficial schemes and allocations are blocked at the level of the population, as was the case in the 2011 census. Almost 80 % of the population of Bihar is rural and the literacy rate and per‑capita income are lower compared with other States in the Union. The Munger‑Lal Commission was constituted by the Government of Bihar to identify socially and educationally backward castes. Based on its report, the reservation for backward classes was first introduced by a resolution dated 10‑11‑1978, which listed backward classes and extremely backward classes. The Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes and Other Backward Classes) Act, 1991 later came into force. The State has also constituted State Commissions for Backward Classes, which are supplied with sufficient material for making recommendations., Prior to the caste‑based survey, a meeting of all the commissions related to castes in the State was convened. On 09‑06‑2022 the State Commission for Backward Classes, the Commission for Extremely Backward Classes, the State Commission for Scheduled Castes, the State Commission for Scheduled Tribes and the Commission for Upper Classes met, as shown in Annexure‑K of the counter‑affidavit dated 29‑04‑2023. The various commissions were requested to submit caste lists, which were examined by the District Magistrates as per the communication dated 13‑07‑2022. The District Magistrates held meetings at district, block and urban levels for preparation of the caste list to be used in the caste survey. Based on the reports received, a meeting was organised of the commissions, the Department of Backward Classes and the Extremely Backward Classes Welfare Department, as seen in Annexure‑C. This exercise finalised the different heads under which details are to be collected and the list of castes, brought out by notification dated 28‑07‑2022., The Governor declared the policy of the Government in both Houses of the Legislature, as shown in Annexure‑A of the counter‑affidavit dated 01‑05‑2023. The policy decision, as stated by the Governor, was later disclosed on 27‑02‑2023, explaining the object and intention behind the notification issued on 06‑06‑2022, which referred to a Cabinet Decision on 02‑06‑2022. The introductory paragraph of the Governor’s speech on the caste survey reads: ‘On the occasion of the first session of the new year, I convey my best wishes to all of you in the joint session of both the houses of the Bihar Legislature and wish for the prosperity and multidimensional development of the State. Financial, legislative and other important works are to be completed in this session. I expect all the members of the Bihar Legislative Assembly to play a constructive role for the development of Bihar. Your valuable suggestions and discussions will strengthen the progress of Bihar.’ The speech further states that the State Government is continuously working on the principle of Development with Justice and, under this principle, a caste‑based census is being conducted to ensure all‑round development of all sections of the State. Following resolutions unanimously passed by the Honorable MLAs on 02‑06‑2022, the State Government decided to conduct caste‑based enumeration from its financial resources. The first phase of the programme was completed on 21‑01‑2023 and the second phase is targeted to be completed as per schedule. A caste‑based enumeration portal and app have been created. Under this enumeration, a complete survey will be done on the caste, economic, educational and migrant status of all Biharis living inside and outside the State, on the basis of which plans will be prepared for Biharis of all regions, castes and classes., The judgment of the Supreme Court in CAG v. K.S. Jagannathan (1986) 2 SCC 679, paragraphs 30 and 31, dealt with the condition of the Scheduled Castes and Scheduled Tribes and the endeavour made in the Constitution to atone for the depredations visited on these communities. Paragraph 30 observes that it is not possible to equate members of the Scheduled Castes with goods imported from abroad; they are human beings who for centuries have been treated as sub‑human creatures. It quotes William Blake’s ‘Auguries of Innocence’ to illustrate the oppression endured by the Scheduled Castes, including denial of education, menial jobs, social contact, worship and basic human dignity. The paragraph notes that the Constitution responded by enacting Article 16(4), the Directive Principle in Article 46 and Article 335 to provide special protection. Paragraph 31 makes a similar observation regarding the Scheduled Tribes, noting that they have been isolated in remote forests, deprived of modern technology, and exploited. The Constitution therefore gave them special treatment through Articles 16(4), 46 and 335., The situation of backward communities was not much different. The debates in the Constituent Assembly on the framing of Article 16, extracted in Indira Sawhney, show that the original draft did not include the word ‘backward’. The Drafting Committee, chaired by Dr. B.R. Ambedkar, inserted the word ‘backward’ after opposition argued that it was vague and could lead to complications. Dr. H.C. Mookerjee, Vice‑President of the Assembly, opined that the clause affected sections of the population that had been treated cruelly in the past and that reparations were necessary., The speech of Dr. B.R. Ambedkar, Chairman of the Drafting Committee, was quoted in full. He defined a backward community as ‘a community which is backward in the opinion of the Government’., Paragraphs 782 and 783 of Indira Sawhney discuss the methodology for identifying backward classes. Paragraph 782 states that there is no set or recognised method or statutory instrument prescribing the methodology; the ultimate idea is to survey the entire populace. Castes can be used as a starting point because they represent explicit, identifiable social groups, especially when Article 16(4) seeks to ameliorate social backwardness. The process may also consider other communities, such as Muslims or Christians, and occupational groups, depending on the State’s conditions. Paragraph 783 clarifies that the procedure is not mandatory or uniform; the authority appointed to identify backward classes may adopt any fair and adequate approach, and the Court has no say as long as the approach is reasonable., The majority judgment approved the approach and methodology adopted by the Justice O. Chinnappa Reddy Commission in Karnataka. The Commission considered economic and cultural impoverishment and social deprivations as the singular cause of perpetual backwardness. It evolved four quantifiable indicators: (1) caste and community‑based poverty level compared with state averages; (2) caste and community averages of students appearing in matriculation compared with state averages; (3) representation of castes and communities in higher education compared with state averages; and (4) representation of castes and communities in state services, including government departments, state undertakings and universities., The 17 heads of detail to be collected in the present case would indicate the social and educational backwardness of the communities, which is also an indicator of their financial conditions. Caste has been found to be an important indicator to understand backwardness since historically deprivations were based on caste names. The constitutional goal is not to efface caste but to eradicate discrimination based on caste. Article 15 and Article 16 prohibit discrimination on the grounds of caste and assure equality of opportunity in public employment, while also providing a condition to uplift marginalized sections of society to bring them at par with the privileged class., Although the notification does not state that disclosure is voluntary, it is noted that about 80 % of the survey is completed and no complaint of coercion has been raised. The State argues that the collection of details may not have mathematical precision but will provide broad estimates for formulating schemes. There is no element of coercion in the notifications or guidelines. The 17 heads of data collect information on social, economic and educational conditions of families, enabling identification of backward classes. The caution expressed in Indira Sawhney that protection under Articles 15 and 16 is for a class or group, not for individuals, is reiterated., The State list of Backward Classes and Extremely Backward Classes includes 33 castes identified as Scheduled Tribes and 23 as Scheduled Castes, notified by the Government of India for Bihar. Additions or deletions in these lists have been made on the recommendation of dedicated commissions with due process. The State’s counter‑affidavit states that discussions were held with various commissions appointed for different classes and groups, and the identification of castes or groups was based on their recommendations and vetted by district administration. The Central Government, as a matter of policy, decided not to carry out any caste‑based enumeration, but the inclusion of Census under Entry 69 of List I does not preclude States from conducting such exercises, as Bihar is doing. The Karnataka survey, carried out through a commission and legislation, reinforces the power of a State to conduct a caste‑based survey to achieve the constitutional goal of uplifting the downtrodden and marginalized., The population of Bihar in 2011 was approximately 10.40 crore, comprising 1.89 crore households. The total number of caste and income certificates issued from 15‑08‑2012 to date is 7,29,48,500 and 6,19,69,592 respectively, totaling 13,49,18,092. The number of certificates issued for the economically weaker sections from June 2019 under the general category is approximately 10.54 lakhs. Data collected in the Socio‑Economic Census 2011 are also available with the MNRGA Scheme Portal; job cards issued in Bihar amount to 16.62 crore. Individual data are recorded in labour registration portals and for issuance of ration cards, facilitating implementation of the Food Security Act. These data can be verified with existing government records to aid policy determination regarding inclusion and exclusion of castes and communities for welfare schemes., The privacy judgments in Justice D.Y. Chandrachud’s majority opinion in Puttaswamy (1) are extracted. Paragraph 46 states that natural rights are not bestowed by the State; they inhere in human beings because they are human and exist equally irrespective of class, gender or orientation. Paragraph 318 affirms that life and personal liberty are inalienable rights essential to a dignified human existence, forming foundational pillars of the Indian Constitution. Paragraph 521 outlines three aspects of the fundamental right to privacy in the Indian context: (i) physical privacy involving bodily integrity; (ii) informational privacy concerning control over personal information; and (iii) privacy of choice protecting autonomy over fundamental personal choices. These aspects can be grounded respectively in Articles 19(1)(d) and (e) read with Article 21; Article 21; and Articles 19(1)(a) to (c), 20(3), 21 and 25. Paragraph 620 reiterates the right to control dissemination of personal information.
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The boundaries that people establish from others in society are not only physical but also informational. There are different kinds of boundaries in respect to different relations. Privacy assists in preventing awkward social situations and reducing social frictions. Most of the information about individuals can fall under the phrase 'none of your business'. When information is shared voluntarily, it may be said to be in confidence and any breach of confidentiality is a breach of trust. This is especially true in professional relationships such as with doctors and lawyers, which require candor in disclosure of information. An individual has the right to control one's life while submitting personal data for various facilities and services. It is essential that the individual knows what the data is being used for and has the ability to correct and amend it. The hallmark of freedom in a democracy is having autonomy and control over our lives, which becomes impossible if important decisions are made in secret without our awareness or participation., The Aadhaar decision succinctly stated the following features from Puttaswamy (1): It stands established, with conclusive determination of the nine‑Judge Bench judgment of this Court in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, that the right to privacy is a fundamental right. The majority judgment authored by Justice D.Y. Chandrachud, on behalf of three other judges, and five concurring judgments declared, most authoritatively, that the right to privacy is a fundamental right. This judgment also discusses in detail the scope and ambit of the right to privacy., A close reading of the judgment in K.S. Puttaswamy v. Union of India brings out the following features. Privacy has always been a natural right. The correct position has been established by a number of judgments starting from Gobind v. State of Bihar (1975 SCC (Cri) 468). Various opinions conclude that privacy is a concomitant of the right of the individual to exercise control over his or her personality; privacy is a necessary condition precedent to the enjoyment of any of the guarantees in Part III; the fundamental right to privacy covers at least three aspects: (i) intrusion upon an individual's physical body, (ii) informational privacy, and (iii) privacy of choice; and one aspect of privacy is the right to control the dissemination of personal information. Every individual should have a right to control his or her own life and image as portrayed in the world and to control commercial use of his or her identity., Informational privacy was emphasized by the learned counsel for the petitioners. Certain aspects of personal information fall under the phrase 'none of your business', meaning no one can mandatorily seek such information from citizens, especially not the State. In the present case, there is absolutely no coercion applied, nor any complaint regarding coercion to disclose details. The data sought from the citizens of the State of Bihar are details that are available in the public domain but are difficult to extract. The purpose is to identify Backward Classes, Scheduled Castes and Scheduled Tribes with the aim of uplifting them and ensuring equal opportunities through affirmative action, employment, education, representation in local bodies, and targeted schemes and projects., It has been argued that wherever personal details such as religion, caste and income are declared, a benefit is conferred on the citizen. In the caste survey, a definite privilege is sought for individuals identified as belonging to backward communities through preferential state action. Although the survey itself does not confer a direct benefit, the statistics collated can be placed before statutory commissions, leading to recommendations that benefit the identified classes when schemes are formulated. No coercion has been found, and there is no complaint of coercion by government officers in obtaining the details, especially as eighty percent of the data collection work is said to be completed. The survey of the National Health Mission also seeks similar specific details., Learned counsel for the petitioners emphasized that the Aadhaar details in the survey format are optional. No mandatory pressure is applied on the subjects of the survey merely because Aadhaar details are optional, which ensures compliance with the principles of the right to privacy as laid down by the Honourable Supreme Court., The Court held that while the State may intervene to protect legitimate interests, it must put in place a robust regime that satisfies a threefold requirement. First, there must be a law in existence to justify any encroachment on privacy, as required by Article 21. Second, there must be a legitimate State aim, ensuring that the law falls within the zone of reasonableness mandated by Article 14, a guarantee against arbitrary State action. Third, the means adopted by the legislature must be proportional to the object and needs of the law. Proportionality is essential to ensure that the nature and quality of the encroachment are not disproportionate to the purpose of the law., The Court further observed that, apart from national security, the State may have justifiable reasons for collecting and storing data. In a social‑welfare State, programmes provide benefits to impoverished and marginalised sections of society. There is a vital State interest in ensuring that scarce public resources are not diverted to persons who do not qualify as recipients. Allocation of resources for human development is coupled with a legitimate concern that utilisation of resources should not be siphoned away for extraneous purposes. Data mining to ensure proper deployment to legitimate beneficiaries is a valid ground for the State to insist on the collection of authentic data, provided the data is used for legitimate purposes and not unauthorisedly for extraneous purposes. Prevention and investigation of crime and protection of revenue are also legitimate aims. Digital platforms are vital tools for good governance, and information technology legitimately deployed is a powerful enabler of innovation and knowledge., It goes without saying that no legal right can be absolute; every right has limitations. This aspect is conceded at the Bar, and therefore even a fundamental right to privacy has limitations, identified on a case‑to‑case basis depending on the nature of the privacy interest claimed. Different standards of review test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across articles. Having interpreted the Constitution's liberty guarantee to contain a fundamental right to privacy, the Court outlines the manner in which such a right can be limited. Options for limiting the right to privacy include an Article 14 type reasonableness enquiry, limitation under the express provisions of Article 19, a just, fair and reasonable basis (substantive due process) under Article 21, and finally a just, fair and reasonable standard under Article 21 plus the amorphous standard of compelling State interest. The highest standard of scrutiny is the compelling State interest test, which the Court may adopt depending on the gravity of the right at stake., The three requirements extracted in paragraph 310 are fully satisfied in the present case. The Executive Government decided to initiate a survey to collect personal details of the natives of the State of Bihar for developmental activities to uplift backward classes, as reflected in the Governor's speech to the two Houses. The State Government issued a notification published in the official gazette, which constitutes a law under Article 162 of the Constitution of India, especially where no parliamentary law on the subject exists. Regarding the third requirement of proportionality, paragraph 311 confirms that the allocation of resources for human development and the need to prevent diversion of resources justify the data‑mining exercise undertaken by the State., The test of compelling State interest, as articulated in paragraph 378, is satisfied. As held in paragraph 380 of Puttaswamy (1), the application of this standard varies from case to case depending on the type of privacy claim. In the present case, the compelling State interest requirement is met., The Aadhaar decision held that, following the majority view in Puttaswamy (1), legitimate State interest can be taken as a permissible restriction on an individual's claim to privacy instead of the stricter compelling State interest test. The Court also extracted paragraph 157 of the Aadhaar judgment, which outlines four sub‑components of proportionality: (a) the measure must have a legitimate goal; (b) it must be a suitable means of furthering that goal; (c) there must be no less restrictive but equally effective alternative; and (d) the measure must not have a disproportionate impact on the right‑holder., The petitioners raised concerns that the head of the family is asked to disclose details of others, that the caste of the mother is not recorded, and that there is no option to refuse to declare caste status, although an option exists for religion. The State contends that mathematical precision is not warranted in identifying backward status; caste remains the best denominator, as recognised in Indra Sawhney, a Constitution Bench decision. Caste is a matter of descent while religion is a matter of belief. India has many instances of persons belonging to the same caste practising different religions, and even those who have converted retain backward status and associated privileges. The details sought in the survey are not individual‑centric and are not aimed at targeting an individual, which is consistent with existing law., The disclosures are voluntary and have the definite aim of informing development schemes for the identified backward classes and groups. The caste status collected is not intended to tax, brand, label or ostracise individuals or groups, but to identify economic, educational and other social aspects of different communities that require further state action for upliftment., The State's counter‑affidavit demonstrates that the caste‑based survey has a robust mechanism to prevent data leakage. Measures include: (a) provision and arrangement to ensure confidentiality and security of the data; (b) enumerators and supervisors instructed and trained not to share data with unrelated individuals; (c) software prevents screenshots of the mobile app; (d) device binding ensures each enumerator or supervisor works with only one mobile device; (e) data cannot be downloaded from the mobile device; (f) data of any person cannot be downloaded from the system; it is encrypted and can be read only on the dedicated database; (g) data are stored in servers of the State Data Census of the Government of Bihar, not on any other server or cloud, so only the Data Base Administrator can access it; (h) a Role Based Access Control system works with OTP verification to allow entry only by authorized users; (i) encrypted password storage and secure coding practices are employed for data security., The letter produced as Annexure‑B from the Officer on Special Duty to the Secretary of the General Administration Department states that facilities of web‑portal hosting, SMS and e‑mail are made available at the State Centre under Bihar Caste Based Census 2022. It confirms that the data of the caste‑based census are stored at the data centre of Beltron and that the infrastructure complies with the Information Technology Act, 2000 (as amended) and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011., The security aspects raised by the petitioners have been addressed, and they do not invalidate the survey., On the foregoing reasoning, the Court finds the action of the State to be perfectly valid, initiated with due competence, with the legitimate aim of providing development with justice, and the survey neither exercised nor contemplated any coercion. Having passed the test of proportionality, the survey does not violate the right to privacy of the individual, especially since it furthers a compelling public interest that is a legitimate State interest. The writ petitions are dismissed.
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Versus Appearance: Mr. A. J. Yagnik (advocate) for the Applicant No. 1; Mr. Param R. Buch (advocate) for the Respondent No. 2. Date: 30 November 2022., The applicant, by way of this application filed under Section 439 of the Code of Criminal Procedure, seeks regular bail in connection with the FIR being Crime Report No. 11186001220465 of 2022 registered with Girgadhada Police Station, Gir Somnath, for offences punishable under Section 354A of the Indian Penal Code and under Sections 10 and 18 of the Protection of Children from Sexual Offences Act., Heard learned Mr. A. J. Yagnik for the applicant and Ms. C. M. Shah, learned Appellant assisted by learned Advocate Mr. Param Buch for the respondents., Brief facts leading to filing of the present application are that on 8 July 2022 at around 10:30 a.m. the daughter of the complainant went to school and, when she returned home in the evening, started crying and informed her mother that she would not attend school because, during recess, she was alone in the classroom when one of her teachers, the accused Nihar Barad, asked her and her classmate Vidhya to decorate the school. The accused then asked Vidhya to go outside for some work, produced a knife, held the victim and moved his hands inappropriately on the private parts of the victim, after which the victim ran away from the room. The next morning the informant went to the school to make a complaint to the principal, where it was discovered that the accused was involved in similar molestation of other girls. Consequently, the FIR was lodged with Girgadhada Police Station for the commission of the aforesaid offences., Learned advocate for the applicant submitted that the applicant is absolutely innocent, has not committed any of the offences alleged, and is falsely implicated in the present FIR. He further submitted that the allegations in the First Information Report are incorrect, the FIR was lodged after a delay of thirteen days, and that the FIR constitutes an abuse of process of law filed for the motive of extracting money from the applicant. He asserted that the allegations are concocted, untrue, and intended only to disrepute the applicant. He also pointed out that the police authorities have not received any affirmative evidence in the charge sheet such as a Forensic Science Laboratory report. The investigating officer did not seize the clothes of the victim or the accused, and the police registered the FIR solely on the basis of the complainant’s statement without conducting any preliminary inquiry. He highlighted contradictions between the statements of the complainant, the victim herself, Vidhya, and the teacher Bharatbhai Umiyashankar. He further noted that Principal Shantilal Ranabhai Nandoda specifically stated that the accused Nihar has been working in the school for the last four years and that no written or oral complaint had been received against him regarding such misconduct. He also mentioned that the police have already filed the charge sheet and there is no medical evidence to prove that the victim was subjected to sexual assault. Accordingly, he argued that no case is made out against the applicant under Section 354A of the Indian Penal Code and requested the release of the applicant on bail., Opposing the bail application, learned Appellant for the State contended that there is sufficient evidence against the applicant to prove his involvement in the alleged offence. She strongly opposed the bail application, considering the nature and gravity of the offence, and held that, in view of the seriousness of the offence and the manner in which it was allegedly committed, no case is made out for exercising discretion in favour of the applicant., In the case of Eera v. State (National Capital Territory of Delhi), (2017) 15 Supreme Court Cases 133, the Honourable Apex Court observed on the Statement and Objects and Reasons of the Protection of Children from Sexual Offences Act in paragraph 20 as follows: “The purpose of referring to the Statement of Objects and Reasons and the Preamble of the POCSO Act is to appreciate that the very purpose of bringing legislation of the present nature is to protect children from sexual assault, harassment and exploitation, and to secure the best interest of the child. On a diligent discernment of the Preamble, it is manifest that it recognises the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person at all stages of a judicial process involving the child. Best interest and well‑being are regarded as paramount at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The Statement of Objects and Reasons gives regard to the constitutional mandate, directing policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation, and that they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. It also mentions that the interest of the child, both as a victim and as a witness, needs to be protected, emphasizing child‑friendly procedure. Dignity of the child has been given immense emphasis in the scheme of legislation.”, It can be seen from the Statement of Objects and Reasons of the Protection of Children from Sexual Offences Act that, since sexual offences against children were not adequately addressed by existing laws and many such offences were neither specifically provided for nor adequately penalised, the Act was enacted to protect children from sexual assault, sexual harassment and pornography and to provide for the establishment of special courts for trial of such offences., Keeping in mind the aforesaid objects and to achieve what has been provided under Articles 15 and 39 of the Constitution to protect children from sexual assault and sexual harassment, the Protection of Children from Sexual Offences Act, 2012 has been enacted. Any act of sexual assault or sexual harassment of children should be viewed very seriously, and all such offences must be dealt with in a stringent manner without leniency to the offender. By awarding a suitable punishment commensurate with the act, a message must be conveyed to society that anyone who commits an offence under the POCSO Act shall be punished suitably and no leniency shall be shown., Children are precious human resources of the country; they are the nation’s future. Unfortunately, the girl child in our country occupies a very vulnerable position and is exposed to various modes of exploitation, including sexual assault and abuse. Such exploitation is a crime against humanity and society. Therefore, children, especially girl children, deserve full protection and greater care, whether in urban or rural areas. Children need special care and protection, and the responsibility of the courts is more onerous to provide proper legal protection. A minor who is subjected to sexual abuse needs protection even more than an adult victim, because a minor may find it difficult to withstand social rationalisation and mental harassment. Most crimes against minor victims are not reported, and the perpetrator is often a family member or close friend. Hence, the child needs extra protection, and no leniency can be shown to an accused who has committed offences under the Protection of Children from Sexual Offences Act, 2012 when proved by adequate evidence before a court of law., In the present case, the victim was a child of twelve years. The accused is not a layperson but a teacher, a profession that influences the future of young people. A teacher is expected to act as a protector. Such heinous acts by the accused would cast a lifelong psychological and emotional impact on the victim. The accused has abused a child of tender age and left a permanent scar on her life. Crimes of this nature by a person of trust betray the child’s confidence and impair social values. Therefore, the accused does not deserve any sympathy or leniency., It is also beneficial to refer to the judgment of the Honourable Supreme Court in State of Kerala v. Mahesh, where paragraph 17 observed: ‘In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 Supreme Court Cases 496, the Supreme Court laid down the parameters for granting or refusing bail as follows: (i) whether there is any prima facie or reasonable ground to believe that the accused has committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger of justice being thwarted by the grant of bail.’, Before parting, it is noted that learned Advocate Mr. Param Buch appearing for the original complainant stated at the bar that the matter is amicably settled between the parties and he has no objection if the applicant‑accused is released on bail. However, the High Court is of the opinion that such practice is unwarranted when a serious and heinous crime is committed and amounts to tampering with the witness or evidence by the accused. It is surprising that such a heinous crime, which affects the entire society and the relationship between guru and disciples, should not be viewed very strictly., In that view of the matter, it is very important to note the well‑known shloka of the guru‑teacher: ‘Guru Brahma Guru Vishnu Guru Devo Maheshwaraḥ; Guru Sakṣāt Para Brahma; Tasmai Śrī Gurave Namah.’ Meaning: The guru is verily the representative of Brahma, Vishnu and Shiva. He creates, sustains knowledge and destroys the weeds of ignorance. I salute such a guru., For the foregoing reasons and based on the facts and circumstances of the case, it appears that the prosecution has clearly established a prima facie case against the applicant, and thus the High Court is not inclined to exercise the powers vested under Section 439 of the Code of Criminal Procedure for releasing the applicant on bail., Accordingly, the present application stands rejected. The rule is discharged.
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The State of Uttarakhand, Appellant, versus Sachendra Singh Rawat, Respondent. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 11 December 2018 passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No. 110 of 2016, by which the High Court has allowed the appeal preferred by the respondent accused and has held that culpable homicide in the instant case is not murder and consequently has converted the sentence from life imprisonment to ten years rigorous imprisonment, the State of Uttarakhand has preferred the present appeal., The respondent originally accused was charged and tried for the offence punishable under Section 302 of the Indian Penal Code for having committed the murder of one Virendra Singh. According to the prosecution, on 26 November 2014 the entire village was celebrating a Mehendi ceremony on the occasion of the wedding of one Anil. The ceremony was attended by the deceased Virendra Singh and the accused Sachendra Singh Rawat. In the night some altercations took place between the deceased and the accused, but due to intervention of the villagers the matter did not proceed further. After dinner, at about 12.00 midnight, the accused attacked Virendra Singh by striking him on the head with a Danda/Phakadiyat, a rough piece of wood he was carrying. The blow was on the head of the deceased. Virendra Singh ran towards his house for safety; the accused pursued him with the Phakadiyat in his hand. The deceased sustained multiple injuries on the head, including a skull fracture and a frontal wound on the left side. The complainant, the wife of the deceased, tried to rescue her husband but failed. The mother‑in‑law, Geeta Devi, also came to the rescue. Due to grievous injuries Virendra Singh fell unconscious. He was initially taken to Dr. Sharma at Ghansali, a few kilometres away, and then referred to Mahant Indresh Hospital at Dehradun, where he was operated upon. After a few days, on 5 December 2014, Virendra Singh passed away., The wife of the deceased lodged an FIR against the accused. Investigation was carried out by the police officer in charge of the police station. During the investigation the officer recorded statements of eyewitnesses including the complainant and collected medical evidence, including the post‑mortem report. On conclusion of the investigation the officer filed a charge sheet against the accused for the offence punishable under Section 302 of the Indian Penal Code. As the case was exclusively triable by the Sessions Court, it was committed to the Sessions Court where the accused was put to trial. The accused pleaded not guilty., To prove the charge, the prosecution examined fourteen witnesses, many of whom were eyewitnesses including the complainant. The prosecution also examined Dr. Pankaj Arora, who had operated upon the deceased. After closure of the prosecution evidence, a further statement of the accused under Section 313 of the Criminal Procedure Code was recorded. Appreciating the evidence of eyewitnesses, namely Darshani Devi, the wife of the deceased, and considering the nature of the injuries sustained, the trial Court held that the culpable homicide was murder, convicted the accused for the offence punishable under Section 302 of the Indian Penal Code and imposed the sentence of life imprisonment., Feeling aggrieved and dissatisfied with the judgment and order of conviction passed by the trial Court, the accused preferred Criminal Appeal No. 110 of 2016 before the High Court. By the impugned judgment and order, although the High Court believed the evidence of all eyewitnesses including the wife of the deceased, it held that the culpable homicide did not amount to murder, stating that it was not a cold‑blooded murder but a sudden fight which ensued in the heat of passion during a sudden quarrel at the marriage ceremony and that the weapon used was a Phakadiyat, a rough piece of wood, and therefore there was no intention to kill. The High Court concluded that the case fell under the fourth exception to Section 300 of the Indian Penal Code and consequently altered the finding of murder to culpable homicide not amounting to murder and converted the sentence from life imprisonment to ten years rigorous imprisonment., Shri Virendra Rawat, learned counsel appearing on behalf of the State, submitted that the High Court committed a grave error in holding that the murder of the deceased does not amount to culpable homicide. He argued that the High Court erred in observing that the case would fall within the fourth exception of Section 300. He further submitted that the mere use of a Phakadiyat cannot make the culpable homicide not amounting to murder and that the High Court did not properly appreciate the repetitive blows to the vital part of the body, the head, and the multiple injuries sustained by the deceased leading to his death. He pointed out that after the first altercation at the marriage ceremony, the matter was halted by villagers, but at about 12.00 midnight the accused attacked the deceased with the Phakadiyat, pursued him to his house and continued to give several blows. He contended that the High Court erred in holding that the case was a sudden fight arising from a sudden quarrel in the Mehendi ceremony. He also submitted that the main incident of beating the deceased occurred after the first altercation and could not be said to be a result of a sudden fight in the heat of passion. He emphasized that the accused used the Phakadiyat with such force that there was a skull fracture, a frontal wound on the left side, and wounds requiring thirty‑four stitches along with a coronal suture of sixteen centimetres. He submitted that the case therefore falls under the third and fourth clauses of Section 300 of the Indian Penal Code and that the trial Court rightly convicted the accused under Section 302 of the Indian Penal Code. In support of these submissions, counsel heavily relied upon the decisions of this Court in Stalin v. State (2020) 9 Supreme Court Cases 524, Mahesh Balmiki v. State of Madhya Pradesh (2000) 1 Supreme Court Cases 319, Dhirajbhai Gorakhbhai Nayak v. State of Gujarat (2003) 9 Supreme Court Cases 322, Pulicherla Nagaraju v. State of Andhra Pradesh (2006) 11 Supreme Court Cases 444, Singapagu Anjaiah v. State of Andhra Pradesh (2010) 9 Supreme Court Cases 799, State of Rajasthan v. Kanhaiya Lal (2019) 5 Supreme Court Cases 639, Arun Raj v. Union of India (2010) 6 Supreme Court Cases 457, Ashokkumar Magabhai Vankar v. State of Gujarat (2011) 10 Supreme Court Cases 604, State of Rajasthan v. Leela Ram (2019) 13 Supreme Court Cases 131, Bavisetti Kameswara Rao v. State of Andhra Pradesh (2008) 15 Supreme Court Cases 725, and Virsa Singh v. State of Punjab, All India Reporter 1958 SC 465., Ms. Neha Sharma, learned counsel appearing on behalf of the respondent accused, supported the impugned judgment and order of the High Court holding that the culpable homicide is not amounting to murder invoking the fourth exception to Section 300 of the Indian Penal Code. She submitted that the High Court, after considering the surrounding circumstances, rightly concluded that the case falls under the fourth exception because the weapon used was a Phakadiyat, a rough piece of wood, and therefore there was no pre‑meditation or intention to kill. She further submitted that the incident occurred in a sudden fight in the heat of passion on a sudden quarrel in the Mehendi ceremony and that the weapon was primarily used as firewood, which the accused picked up in the heat of passion. Accordingly, she argued that the High Court correctly altered the finding of murder to culpable homicide not amounting to murder and correctly converted the sentence to ten years rigorous imprisonment. She prayed that the present appeal be dismissed., We have heard the learned counsel for the respective parties at length. At the outset, it is required to be noted that the trial Court convicted the accused for the offence under Section 302 of the Indian Penal Code for having killed Virendra Singh. The incident took place in two places. The first altercation between the accused and the deceased occurred at the Mehendi ceremony and was halted by villagers. The second incident occurred at about 12.00 midnight, when the accused attacked the deceased with a Phakadiyat and gave several blows to the head, thigh and other parts. The deceased ran towards his house and the accused pursued him, continuing the assault in front of the house, as witnessed by his wife. Therefore, the second incident cannot be said to be a result of a sudden fight in the heat of passion upon a sudden quarrel. The High Court erred in observing that the incident took place due to a sudden fight in the heat of passion at the Mehendi ceremony. The second incident occurred near the house of the deceased after the first incident was over, and the accused gave several blows with the Phakadiyat., Even otherwise, the High Court has not properly appreciated the multiple injuries sustained by the deceased. As per the medical evidence, the following injuries were found on the body of the deceased: On external examination, the body was of average build, rigor mortis was present in both upper limbs extending up to the lower half of the thighs, eyes were partially open, cornea was dried, nostrils contained blood clots. Stitched wounds with thirty‑four stitches were present on the left side of the skull extending from the mid‑skull along with coronal sutures of sixteen centimetres; the sutures were metallic. A tracheotomy opening with secretions was present, along with a lacerated wound four centimetres in size with sharp, well‑defined margins. Multiple contused wounds, one to two centimetres in size, bluish‑black in colour, were found on the left side of the shin at the upper two‑thirds region. On internal examination, a skull fracture at the frontal wound on the left side was observed, with a sharp, well‑defined parietal bone wound suggestive of craniotomy. The brain was lacerated with clots present in the frontoparietal region, and a lacerated brain wound extended up to the frontoparietal and temporal areas. The main cause of death was the injuries sustained on the head., From the aforesaid multiple injuries it is evident that the accused used the Phakadiyat with such force that it resulted in a skull fracture at the frontal wound on the left side, stitched wounds with thirty‑four stitches on the left side of the skull, and a lacerated brain with clots in the frontoparietal region. Having caused such grievous injuries with such force, the accused cannot claim the benefit of the fourth exception to Section 300 of the Indian Penal Code. The case therefore falls under the third and fourth clauses of Section 300 of the Indian Penal Code., In light of the above factual scenario, several decisions of this Court on the point whether culpable homicide would tantamount to murder are relevant. In Virsa Singh (All India Reporter 1958 SC 465), paragraphs 16 and 17, the Court held that the question is whether the accused intended to inflict the injury proved to be present, and that intention is presumed unless the evidence shows otherwise. In Dhirajbhai Gorakhbhai Nayak (2003) 9 Supreme Court Cases 322, paragraph 11, the Court explained that the fourth exception of Section 300 covers acts done in a sudden fight without premeditation, requiring mutual provocation and that the offender must not have taken undue advantage or acted in a cruel or unusual manner. In Pulicherla Nagaraju (2006) 11 Supreme Court Cases 444, paragraph 29, the Court listed factors to be considered in determining intention, including the nature of the weapon, whether it was carried or picked up, the part of the body targeted, the amount of force, and whether the act occurred in a sudden quarrel or fight. In Singapagu Anjaiah (2010) 9 Supreme Court Cases 799, paragraph 16, the Court observed that intention to cause death can be gathered from the weapon used, the vital part chosen, and the nature of injuries, concluding that the appellant intended to cause death. In Kanhaiya Lal (2019) 5 Supreme Court Cases 639 and subsequent decisions, the Court held that injury to a vital part with a wooden weapon, causing skull fracture, demonstrates intention and knowledge of death, and that the fourth exception applies only when the act is without premeditation, is a sudden fight, is in the heat of passion upon a sudden quarrel, and the offender has not taken undue advantage or acted cruelly. Applying these principles to the present case, the multiple blows to the head with a Phakadiyat causing skull fracture, thirty‑four stitches and brain laceration satisfy the third and fourth clauses of Section 300 of the Indian Penal Code, and the offence amounts to murder., Accordingly, the State prays that the impugned judgment and order of the High Court be set aside, the conviction of the accused under Section 302 of the Indian Penal Code be restored, and the sentence of life imprisonment be reinstated.
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The impugned judgment and order passed by the High Court of the respective State is unsustainable both on facts as well as on law., The impugned judgment and order passed by the High Court of the respective State altering the finding of murder to one of culpable homicide not amounting to murder and consequently converting the sentence from life imprisonment to ten years rigorous imprisonment is hereby quashed and set aside. The respondent accused is held guilty for the offence under Section 302 of the Indian Penal Code for having killed and/or committed the murder of the deceased Virendra Singh and he is sentenced to undergo life imprisonment. Accordingly, the judgment and order passed by the trial Court convicting the accused for the offence under Section 302 of the Indian Penal Code and sentencing him to life imprisonment is hereby restored.
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Decided on: 11.08.2023 Through: Mr. Amit Khanna, Advocate versus Through: Mr. Manoj Pant, Additional Public Prosecutor for State with Assistant Sub-Inspector Sukhvir Singh, Police Station Ranjit Nagar. The instant application under Section 439 of the Code of Criminal Procedure, 1973 has been filed on behalf of the petitioner seeking regular bail in First Information Report bearing no. 475/2022, registered at Police Station Ranjit Nagar, for offences punishable under Sections 498A and 306 of the Indian Penal Code, 1860., Issue notice. Mr. Manoj Pant, learned Additional Public Prosecutor accepts notice on behalf of the State., Briefly stated, the facts of the present case are that the father of the deceased Panina had known the father of accused/applicant Sagar for several years, and had arranged the marriage of the deceased and the present accused/applicant, which was solemnised on 18.05.2022. After the marriage, the deceased committed suicide on the night of 30/31.05.2022 by hanging herself with the ceiling fan using a dupatta. Thereafter, the present First Information Report was registered on the statement of the father of the deceased whereby he stated that the applicant had an extramarital affair with some other female, and had killed his daughter/deceased., Learned counsel for the applicant states that the applicant is innocent and has no connection with the suicide of his wife. It is stated that the present accused/applicant and deceased were having good relations after the solemnisation of their marriage, and he was shocked to learn about the suicide of the deceased. It is stated that no suicide note has been left by the deceased, and there was no demand of dowry., Per contra, learned Additional Public Prosecutor for the State argues that the allegations against the applicant are serious in nature. It is stated that the deceased was suffering from mental agony on account of the applicant's extramarital affair, and the same is supported by the testimonies of material witnesses., The High Court of India has heard the arguments addressed by learned counsel for the applicant and learned Additional Public Prosecutor for the State, and has perused material on record., In the present case, the High Court of India is of the opinion that there are specific allegations against the accused/applicant that he was having an extramarital affair with some other female and the deceased was undergoing tremendous stress and trauma on a daily basis. There are specific allegations that the deceased was subjected to mental and physical torture. The High Court has also gone through the statement of the mother of the deceased under Section 164 of the Code of Criminal Procedure, which also reveals that the applicant had beaten the deceased when she objected to his extramarital affair. It is also noted that the deceased had committed suicide within just 13 days after marriage., The High Court of India takes note of the fact that the extramarital relationship of the applicant was disclosed to the deceased on the first day after her marriage. In the present case, it is observed that discovering infidelity shortly after marriage can have profound and devastating effects on the mental and emotional well‑being of the victim. The sense of shock can be overwhelming, as a woman may have entered the marriage with trust and hope, which in the present case was prima facie shattered by the revelation of her husband's alleged extramarital affair. The emotional trauma of discovering infidelity and subsequent ill behaviour of a spouse can drive a woman to take extreme steps to the extent of committing suicide. In the present case, it is the case of the prosecution that the suicide was committed by the deceased due to the acts of her husband. As regards the contention raised by the learned counsel for the applicant that there is no allegation for demand of dowry, it is to be noted that since the First Information Report in this case was registered under Section 306 and not under Section 304B, there is no significance of demand of dowry., Considering the overall facts and circumstances of the case, no ground for grant of bail is made out at this stage., Accordingly, the present bail application stands dismissed., It is, however, clarified that nothing expressed hereinabove shall tantamount to an expression of opinion on the merits of the case., The judgment be uploaded on the website forthwith.
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Petitioners are engaged in the business of crackers and fireworks items, with the special permissions and Trade Licenses obtained from competent authorities. They claim to have been in the business for many years. They are grieving before the Karnataka High Court against the order dated 27 September 2013 whereby the second respondent, Director General of Police, negatived their statutory appeals and thereby upheld the order dated 12 April 2012 made by the third respondent, Commissioner of Police, withdrawing No Objection Certificates. The effect of the impugned order is that the petitioners cannot run the said business in the congested area of Bangalore city., After service of notice, the official respondents, having entered appearance through their respective advocates, resisted the writ petition by making submissions in justification of the impugned order and the reasons on which it was constructed. The Additional Government Advocate representing respondent Numbers 2 and 3 also filed a detailed Statement of Objections, opposing the writ petition, after serving a copy thereof on the counsel for the petitioners well in advance., Having heard the learned counsel for the parties and having perused the petition papers, the Karnataka High Court declines indulgence in the matter for the following reasons. The Honorable Supreme Court of India, with all concerns and constraints observed, needs to be kept in view. It said amongst other things that extensive public awareness campaigns should be undertaken by the Central Government, State Governments, schools, colleges, and other institutions to inform and alert the public at large about the harmful effects of firecrackers., It needs no research to know that the production, transportation and bursting of crackers, including those with reduced emission such as green crackers, are detrimental to the environment in varying degrees. Firecrackers are a health hazard and a risk to life and limb, causing enormous environmental pollution. In dense cities such as Bangalore, which are plagued with ceaseless sound pollution, the bursting of crackers would only add to the existing woes., The following observations from the paper ‘Personal exposures to particulate matter less than 2.5 micrometres in mass median aerodynamic diameter (PM2.5) pollution during the burning of six most commonly used firecrackers in India’ have been reproduced. During the Diwali festival in India, a thirty to forty percent increase in the cases of wheezing, respiratory infections, exacerbation of bronchial asthma, and chronic obstructive pulmonary disease has been reported. Children are the most vulnerable population to the harmful effects of firecracker air pollution since their lungs are still developing and are guided by a complex sequence of chemical signals. Many of these air pollutants interfere with this pathway, making children vulnerable to infections, asthma and overall poor lung development. Their airway epithelium is more permeable to air pollutants, has a poorer defence against particulate matter compared to adults, and has a reduced ability to metabolise and detoxify environmental agents. The harmful effects of the pollutants emitted from firecrackers are not restricted to respiratory illnesses but also have a significant effect on cardiovascular health. The Supreme Court of India in Arjun Gopal, supra at paragraph 29 observed that when PM2.5 crosses normal limits, even if it remains in the air for a few days it becomes a severe health hazard, causing serious and often irreversible health problems. Therefore, the argument that air quality worsens only for a few days during Diwali is of no consequence, as even a short exposure causes severe harm to health., Several cases of ocular firecracker injuries in children aged twenty years and below have been reported. Victims who have lost their eyes face lifelong blindness. The injuries reported ranged from conjunctival or corneal burns to globe rupture. Most of the patients were below the age of twenty years. Unlike some studies where victims were mostly those actively igniting the firecracker, more than half of the victims in this study were bystanders. Many injuries were caused as a result of negligence of those igniting the firecrackers. In one instance, a patient suffered severe facial and bilateral ocular injuries when he attempted to ignite a homemade device made of un‑burnt firecracker powder. Ocular injuries by firecrackers are common during Deepavali. Lack of knowledge about safety measures, absence of parental supervision and failure to maintain a safe distance from firecrackers were contributory factors. The common practice of igniting firecrackers in the streets also exposes passersby to injury., The ill effects of firecrackers cause irreversible damage to the environment. Apart from infants, expectant mothers and patients with heart ailments or high blood pressure, even animals and birds suffer the violence caused by bursting crackers. Our scriptures, for example the Brihadaranyaka Upanishad (1.4.14), edict: ‘Sarve bhavantu sukhinah, sarve santu niraamayah’, which translates to ‘Let all people be happy and all creatures be free from affliction’. It is high time that civil society accelerates its positive response to the inner voice of the Apex Court of India as mentioned above., All petitioners have been running the business in crackers and fireworks items with the licenses granted by the competent authorities under the provisions of the Explosives Act, 1884 and the Rules promulgated thereunder. They also possess Trade Licenses granted and renewed periodically by the City Corporation, which is not in dispute. These licences have been put in peril by the impugned orders on the ground that the shops of the petitioners are situated in congested areas of the city, and that any fire mishap arising from the crackers and fireworks cannot be easily handled because fire engines cannot move in the narrow, densely populated lanes. Any fire mishap in these areas would transcend the locality and cause a chain reaction. The Commissioner of Police, having looked into the matter, took the decision in April 2012. The Director General and Inspector General of Police, who heads the Police Wing in the State, also negatived the appeals of the petitioners after considering the participation of stakeholders. The impugned orders accord with the policy considerations of the State as promulgated in the Government Orders dated 11 April 1980 and 23 September 1981., The answering respondents, who are high‑ranking officials of the All India Service, are the statutory authorities under the Explosives Act, 1884. The relevant part of Rule 115 of the Explosive Rules, 2008, providing for the cancellation of a No Objection Certificate, reads as follows: ‘115. Cancellation of No Objection Certificate. (1) A No Objection Certificate granted under Rule 103 may be cancelled by the authority issuing the same or a superior authority, if such authority is satisfied that the cancellation is absolutely necessary for public peace and safety, provided that before cancellation the licensee shall be given a reasonable opportunity of being heard.’ The text and context of this rule show the concern of the rule‑maker for public peace and safety., The two statutory authorities, one in original jurisdiction and the other in appellate jurisdiction, have looked into the matter with the participation of stakeholders. The appellate authority has concurred with the views of the original authority. After hearing the parties and perusing the material on record, the decisions were taken that are not easily vulnerable to challenge on the grounds urged here. A writ court examining these quasi‑judicial orders under the restrictive supervisory jurisdiction vested under Article 227 of the Constitution is not a court of appeal. The focal point of judicial review is the decision‑making process, not the decision itself. The doctrine of separation of powers, which is a basic feature of the Constitution, requires courts to show due deference to the decisions of the executive, except in exceptional cases., Justice Neely, in Commission, observed: ‘I have very few illusions about my own limitations as a judge and from those limitations I generalise to the inherent limitations of all appellate courts reviewing rate cases. It is not the function of a judge to act as a super‑board, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.’ It hardly needs to be stated that explosive substances are res extra commercium, like liquor and poison; therefore no citizen can claim an unrestricted fundamental right under Article 19(1)(g) of the Constitution to carry on trade., It is difficult to countenance the vehement submission of learned Senior Advocate Smt. Pramila Nesargi appearing for the petitioners that her clients are discriminated against compared with similarly situated private respondents. If the petitioners have to shift their apple carts to safer areas, other similarly situated businessmen cannot be permitted to continue in the same congested lanes. The doctrine of equality enshrined in Article 14 cannot be readily pressed into service without regard to the enormous hazards that would put the public at risk. The observations of the National Green Tribunal in Original Application Number 249/2020, dated 11 December 2020, reproduced the Supreme Court’s direction that air quality and noise level norms under the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 must be maintained to give effect to the principle of sustainable development, including the precautionary principle. Mere passing of an order does not ensure compliance; necessary coercive measures must be taken. Even if other sources of pollution exist, they do not justify ignoring the acknowledged pollution caused by bursting firecrackers, which exceeds statutory norms., The right to carry on business is not absolute. There is no right to violate air quality and noise level norms, which is a crime under the law of the land. Exceeding the norms adversely affects health and cannot be allowed. No one has a right to carry on business at the cost of the health of others. All licences, whether already granted or to be granted, are subject to the overriding requirement of preventing damage to the environment and public health., The counsel for the petitioners stressed that burning firecrackers as part of Diwali celebrations and the right to do business in such substances is constitutionally guaranteed under Article 19(1)(g). The Supreme Court of India, in Arjun Gopal, paragraphs 35 and 36, addressed this issue. Paragraph 35 observed that in Vellore Citizens’ Welfare Forum the Court banned tanneries because they caused immense environmental damage, giving supremacy to environmental protection, a facet of Article 21, over the right to carry on business under Article 19(1)(g). The Court reiterated that the right to health, recognised as a facet of Article 21, assumes greater importance. Paragraph 36 stated that while burning crackers during Diwali may be part of religious practice under Article 25, such practice is subject to Article 21; if a religious practice threatens health and lives, it is not entitled to protection under Article 25. Regulatory measures can be imposed to ensure negligible effect on health., In the above circumstances, this writ petition is devoid of merit and is liable to be dismissed with costs. The apprehension of the petitioners that this judgment may disturb their other business in the same premises is allayed by the State Counsel’s submission that the impugned orders, now upheld, are confined to the firecracker business and have no bearing on other businesses carried on by the petitioners. Before parting with this case, the court places on record its deep appreciation for the able research and assistance rendered by its official Law Clerk and Research Assistant, Mr. Faiz Afsar Sait.
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Arising out of Police Station Case Number 93 Year 2019, Thana Barsoi, District Katihar, Navjot Singh Sidhu, a petitioner, versus the State of Bihar and Rajeev Ranjan, opposite parties. Appearance: For the petitioner – Mr. Ramakant Sharma, Senior Advocate; Mr. Rakesh Kumar Sharma, Advocate; Mr. Santosh Kumar Pandey, Advocate; Mr. Amresh Kumar, Advocate. For the State – Mr. Jharkhandi Upadhyay, Additional Public Prosecutor. Date: 12-12-2023. Heard senior learned counsel for the petitioner and learned Additional Public Prosecutor for the State., Re: Interlocutory Application Number 1 of 2023. This Interlocutory Application has been filed challenging the order dated 12-10-2022 passed by the learned Additional Chief Judicial Magistrate, Katihar, by which the learned Magistrate took cognizance against the petitioner for the offence under Section 188 of the Indian Penal Code and Section 123 of the Representation of the People Act, 1951., For the reasons mentioned in the Interlocutory Criminal Miscellaneous Number 13494 of 2023 dated 12-12-2023, Application Number 1 of 2023 is allowed., Accordingly, the petitioner is permitted to challenge the cognizance order dated 12-10-2020., Re: Criminal Miscellaneous Number 13494 of 2023. The present application has been filed for quashing the FIR bearing Police Station Barsoi Case Number 93 of 2019 dated 16-04-2019, instituted for offences punishable under Section 188 of the Indian Penal Code and Sections 123(3) and 125 of the Representation of the People Act, 1951. The case is presently pending in the Court of the learned Additional Chief Judicial Magistrate, Katihar., Subsequently, after investigation the charge sheet was submitted and the learned Additional Chief Judicial Magistrate, Katihar took cognizance of the offences punishable under Section 188 of the Indian Penal Code read with Sections 123(3) and 125 of the Representation of the People Act, 1951., Learned senior counsel for the petitioner submits that the impugned FIR bearing Police Station Barsoi Case Number 93 of 2019 dated 16-04-2019 was instituted on the basis of a written report submitted by Rajeev Ranjan (Opposite Party Number 2), who claimed to be the Assistant Engineer of Rural Works Department, Barsoi, Katihar, Bihar., The brief facts are that the informant alleged in his written report that on 15-04-2019 Navjot Singh Sidhu (the petitioner), Honourable Minister, Government of Punjab, addressed a public gathering organized by the Indian National Congress at the campus ground of Utkramit High School, Ghatta, Barsoi. The gathering and the address were recorded by VST, Barsoi and, upon perusal of the recording, the Assistant Executive Officer, Katihar, Barsoi informed that the model code of conduct had been violated by the petitioner while delivering his speech., Further, the informant alleged that after watching the CD made available by VST, Barsoi, it was clear that the petitioner had violated the restraining orders while making an appeal for votes on religious grounds. After the informant submitted his written report to the concerned police station, the FIR was instituted against the petitioner and the charge‑sheet bearing Number 94/20 dated 12-07-2020 under Section 188 of the Indian Penal Code read with Section 123(3) and Section 125 of the Representation of the People Act, 1951 was filed against the petitioner., Learned senior counsel submits that the petitioner is innocent and has been falsely implicated in the instant case only due to political rivalry. The petitioner has been a political figure for almost two decades and has contested elections in a peaceful and decent manner. The issue of alleged hate speech has never arisen with respect to the petitioner., It has further been submitted that a perusal of the FIR shows that the allegation against the petitioner is only to harass him and to settle political scores. Even if the complainant’s case were assumed true, the alleged speech did not result in any incident of social turmoil, violence, hate crime or degradation of the fabric of peace and harmony., Learned senior counsel for the petitioner has submitted that no offence is made out against the petitioner under Section 188 of the Indian Penal Code and Sections 123(3) and 125 of the Representation of the People Act, 1951., Learned Additional Public Prosecutor for the State has opposed the application and submitted that the prosecution of the petitioner at the stage of cognizance cannot be quashed because, on reading the FIR and the materials collected during investigation, a prima facie offence as alleged is made out., So far as the prosecution of the petitioner under Section 188 of the Indian Penal Code is concerned, it must be examined in light of the provisions of Section 188 of the Indian Penal Code and Section 195(1) of the Criminal Procedure Code. The FIR under Section 188 was filed on the basis of the report submitted by the informant who is the Assistant Engineer., Section 195(1) of the Criminal Procedure Code reads as follows: (1) No Court shall take cognizance (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 of the Indian Penal Code when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub‑clause (i) or sub‑clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate., Sub‑section (1) of Section 195 of the Criminal Procedure Code creates a bar, restricting a Magistrate from accepting written complaints from any person other than the public servant concerned who issued the order, or from a public servant administratively subordinate to that servant., The investigation was conducted on the basis of a complaint filed by Opposite Party Number 2. That party neither mentioned the details of any cognizable offence nor claimed to be the public servant who lawfully promulgated any order, nor did it claim to be administratively superior to the concerned public servant. No record was produced to show its competency under law to make such a complaint., Learned senior counsel for the petitioner submits that Section 195 of the Criminal Procedure Code is mandatory and non‑compliance would vitiate the prosecution and all consequential orders. Section 195(1)(a)(i) bars the Court from taking cognizance of any offence punishable under Section 188 of the Indian Penal Code or attempts to commit the same unless there is a written complaint by the public servant concerned for contempt of his lawful order. This provision is an exception to the general rule contained in Section 190 of the Criminal Procedure Code, which allows any person to set the law in motion by making a complaint., From the discussions above, it is clear that under Section 195 of the Criminal Procedure Code there must be a written complaint by the public servant whose lawful order has not been complied with. The provisions of Section 195 are mandatory; non‑compliance vitiates the prosecution and all subsequent proceedings. Since the complaint was filed contrary to the mandatory requirement of Section 195(1), all subsequent action, including the investigation and the cognizance, is illegal., This Court in Criminal Miscellaneous Number 37822 of 2010 in the case of Smt. Rabri Devi vs. State of Bihar, disposed of on 01-08-2014, held that the investigating authorities acted without jurisdiction in registering the FIR under Section 188 of the Indian Penal Code on the basis of a letter written by the informant in the capacity of Revenue Karamchari. The investigation conducted by the police was also without jurisdiction. Sub‑section (1) of Section 195 creates a further bar restricting the Magistrate from accepting written complaints from any person other than the public servant who issued the order or a subordinate public servant., The trial Court acted without jurisdiction and in violation of the provisions of the Criminal Procedure Code by taking cognizance under Section 188 of the Indian Penal Code on the basis of a police report and issuing summons to the petitioner. The investigating authorities acted without jurisdiction in registering an FIR on the basis of a letter written by Opposite Party Number 2, who is an Assistant Engineer and who has not passed any order that the petitioner allegedly violated. Both the trial Court and the investigating authorities acted without jurisdiction and in complete violation of the mandatory procedural law contained in Section 195(1) of the Criminal Procedure Code., From the gist of the allegation, it appears that the petitioner was alleged to have violated the model code of conduct and to have appealed for votes on religious grounds. However, the transcript of the petitioner’s speech shows that he only said that Mr. Owaisi had floated a new party and was trying to divide votes and win the election., In my considered opinion, the portion of the speech relied upon by the informant does not support the allegation of seeking votes on religious grounds. The petitioner made no statement prejudicial to public harmony or likely to disturb public tranquility. The speech did not promote feelings of enmity or hatred between classes or religions; it merely cautioned the Muslim community about vote division by Mr. Owaisi. Therefore, the allegation that the petitioner demanded votes on the basis of religion is false., Section 123(3) of the Representation of the People Act, 1951 is reproduced below: 123(3). The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate: Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause., For prosecuting the petitioner under Section 123(3) of the Representation of the People Act, 1951, a person must appeal for voting or refrain from voting for any person on the grounds specified in Section 123(3)., In the opinion of this Court, no such appeal was made by the petitioner; he only commented on Mr. Owaisi’s attempt to divide votes. Consequently, the petitioner cannot be prosecuted under Section 123(3) of the Act., Section 125 of the Representation of the People Act, 1951 reads as follows: 125. Promoting enmity between classes in connection with election. Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both., For prosecuting a person under Section 125, the basic requirement is that the person must promote or attempt to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred between different classes of citizens of India. In the opinion of this Court, the ingredients of Section 125 are not made out against the petitioner because his statements were not made to promote or attempt to promote such enmity or hatred., From the reproduced speech it is clear that no offence under Section 125 of the Representation of the People Act, 1951 is made out against the petitioner, as the speech was not intended to promote or attempt to promote enmity or hatred on any of the prohibited grounds., The order of issuance of summons after taking cognizance dated 12-10-2020 suffers from non‑application of mind in view of the law laid down by the Honorable Supreme Court in Pepsi Food Ltd Vs. Special Judicial Magistrate (1998) 5 SCC 749. Paragraph 28 of that judgment states: \Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He must examine the nature of allegations made in the complaint and the evidence, both oral and documentary, in support thereof and decide whether it is sufficient to bring charge against the accused. The Magistrate is not a silent spectator at the time of recording preliminary evidence before summoning the accused. He must carefully scrutinise the evidence and may even put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations and then examine if any offence is prima facie committed by any of the accused.\ Paragraph 29 adds: \The Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed when the complaint does not make out any case against him.\, In view of the judgment of the Honorable Supreme Court in Pepsi Food Ltd Vs. Special Judicial Magistrate, I am of the view that the summons were issued without any application of mind and without following the law laid down by the Supreme Court, as the summons were issued mechanically by a cryptic and non‑speaking order. Therefore, the order taking cognizance and issuance of summons dated 12-10-2020 cannot be sustained., In view of the discussions above, I am of the opinion that the offences alleged under Section 188 of the Indian Penal Code and Section 125 of the Representation of the People Act, 1951 are not made out and the entire prosecution of the petitioner is held to be illegal., The order taking cognizance on 12-10-2020 and the issuance of summons are hereby quashed., Accordingly, the application stands allowed. Consequently, the cognizance order dated 12-10-2020 passed by the Additional Chief Judicial Magistrate, Katihar in FIR bearing Police Station Barsoi Case Number 93 of 2019, taking cognizance of the offence under Section 188 of the Indian Penal Code read with Sections 123(iii) and 125 of the Representation of the People Act, 1951, and the entire prosecution of the petitioner are hereby quashed. P. Kumar (Sandeep Kumar, J)
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Through: Mr. Taranpreet Singh, Advocate with Mr. Dharm Prakash and Mr. Mohd. Shameem, Advocates. Versus: Mr. Vikrant N. Goyal, Advocate with Mr. Jeet Chakravarti and Ms. Rituparna Sahoo, Advocates; Ms. Monika Arora, Central Government Solicitor with Mr. Subrodeep Saha and Ms. Prakriti Bandhan, Advocates for Union of India; Mr. Rakesh Kumar, Central Government Solicitor with Mr. Sunil, Advocate. Date of Decision: 06 October 2023., The present writ petition has been filed seeking issuance of appropriate directions from the Supreme Court of India for quashing and setting aside Clause 2.7 of the Archaeological Survey of India Photographers to perform within Centrally Protected Monuments (ASI Photographers Policy) notified by the Archaeological Survey of India on 24 May 2017, as amended on 17 July 2018. By way of Clause 2.7 of the amended policy, the licences granted by the Archaeological Survey of India to photographers prior to 2012 are revalidated subject to the said photographers undergoing refresher courses with test conducted by the Archaeological Survey of India. The petitioners have worked as photographers within the Archaeological Survey of India protected monuments since the year 2012. Since the petitioners are not covered by Clause 2.7 of the amended policy as they do not have any previous licence issued by the Archaeological Survey of India prior to 2012, and are required to take written test, practical/viva voce for grant of fresh licence as photographers in terms of the amended policy, being aggrieved by the same, the present writ petition has been filed., As borne out from the pleadings, licence was required to be taken to work as photographers within the Archaeological Survey of India protected monuments before the year 2012. However, the Archaeological Survey of India amended the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 on 20 January 2012. Thus, after the 2012 amendment, the photographers were allowed to work in the Archaeological Survey of India protected monuments by purchasing entry tickets. In view thereof, the petitioners worked as photographers within the Archaeological Survey of India protected monuments from the year 2012 till the year 2016 taking advantage of the amended Rule of 2012 by virtue of which they worked as photographers in Archaeological Survey of India protected monuments by purchasing entry tickets., Subsequently, the Archaeological Survey of India in the year 2016 issued Draft Rules pursuant to which the Archaeological Survey of India proposed renewal of licences granted to photographers prior to 2012. Thereafter, the Archaeological Survey of India notified its policy for photographers to perform within Centrally Protected Monuments on 24 May 2017, which was further amended on 17 July 2018. As per Clause 2.6 of the said amended policy, all persons who are interested to carry out photography at Archaeological Survey of India monuments for monetary consideration shall have to obtain licence from the Director General, Archaeological Survey of India. For this purpose, a selection process has been prescribed which comprises of written test, practical and viva voce. As regards the photographers who had licence prior to the year 2012, they were required to take only a refresher course with test conducted by the Archaeological Survey of India for revalidation of their licences, in terms of Clause 2.7 of the amended policy. Thus, the present writ petition has been filed challenging Clause 2.7 of the amended policy of the Archaeological Survey of India., On behalf of the petitioners, the following submissions have been made: The policy notified by the Archaeological Survey of India on 24 May 2017 as amended on 17 July 2018 has to be applied prospectively and not retrospectively in terms of Clause 2.5 of the said policy. Therefore, the said policy can in no manner be applicable to the petitioners. The petitioners cannot be subjected to various tests, written and practical/viva voce for grant of fresh licences. It is submitted that the said policy under Clause 2.5 read with amended policy dated 17 July 2018 mentions that the policy shall come into force from the date on which it is formally notified. It is submitted that taking photography at the protected monuments is a mode of self‑employment for which the respondent Archaeological Survey of India could always bring into place relevant Rules and Regulations. However, to prohibit such means of self‑employment or to favour a class and allowing them to work under the Archaeological Survey of India protected monuments to the exclusion of others will not only amount to arbitrary state action, but would also seriously jeopardise rights guaranteed to the petitioners under Article 19(1)(g) of the Constitution of India. The said exercise of allowing a class only to do photography at protected monuments seems to have been done without following due process of law in regulating such activity. It is submitted that Article 19(1)(g) of the Constitution of India cannot be curtailed in ordinary circumstances, as in the facts of the present case. The freedom as guaranteed under Article 19(1)(g) is valuable and cannot be violated on grounds which are not established to be in public interest. The petitioners have been working as photographers in the Archaeological Survey of India protected monuments since the year 2012 till 2016. They worked as photographers in the protected monuments at Agra, including Taj Mahal, Agra Fort etc. without any complaint of any kind. The petitioners over the years have professed photography as the only medium of livelihood and professed their job with passion. Therefore, it is prayed that Clause 2.7 of the Amended Archaeological Survey of India Photographers Policy to the extent it revalidates licences granted prior to 2012 to the exclusion of other photographers like the petitioners, be quashed and set aside. It is further prayed that directions be given to the Archaeological Survey of India to consider the case of the petitioners at par with pre‑2012 licence holders and allow the petitioners to work as photographers within the Centrally Protected Monuments at Agra., On behalf of the respondents, the following submissions have been made: As per the notification dated 18 January 2012, photographers were allowed to operate within the Archaeological Survey of India Protected Monuments without taking any licence. However, several complaints were received by the Archaeological Survey of India regarding misbehaviour and misconduct by such photographers or persons who by taking advantage of the notification of the year 2012, had started operating as self‑appointed photographers within the Centrally Protected Monuments as they did not have any licence at any point of time. Thus, in order to regulate the conduct of the photographers for the benefit of the visitors and tourists, it was deemed necessary by the Central Government to restore the earlier rule position which existed prior to the 2012 amendment. Fresh policy guidelines for regulating photographers within the Centrally Protected Monuments were prepared by the Archaeological Survey of India and notified on 24 May 2017, as amended on 17 July 2018. As per the said policy, there shall be licences for purpose of taking photographs of visitors. Clause 5 of the Archaeological Survey of India Photographers Policy prescribes the format of the written test, practical and viva voce to test the skills of the photographers and to ensure that the best talent in the photography comes forward to cater to the monuments. The tests under Clause 5 of the policy are justified keeping in view the market requirements and improvement in technology. The steps have been taken by the Archaeological Survey of India to issue fresh licences following the due processes prescribed in the Archaeological Survey of India Photographers Policy and also in larger public interest. The Archaeological Survey of India Photographers Policy acknowledges all old photographers having licences granted by the Archaeological Survey of India prior to 2012. Clause 7.6 of the said policy specifies that the licence granted by the Archaeological Survey of India prior to 2012 shall be required to be revalidated subject to the condition that the candidate has to undergo refresher course with test conducted by the Archaeological Survey of India. The photographers who were granted licence by the Archaeological Survey of India prior to the year 2012 were treated as a separate class in terms of the order dated 26 September 2018 passed by the Coordinate Bench of the Supreme Court of India in W.P. (C) No. 5345/2018, wherein it was directed that the said photographers would be permitted to work without undergoing various processes of selection test etc. as envisaged in the policy dated 17 July 2018. Petitioners are required to obtain licence from the Archaeological Survey of India in terms of the selection procedure in view of the policy of the Archaeological Survey of India., We have heard learned counsel for the parties and perused the record., In accordance with the notification dated 20 January 2012 issued by the Archaeological Survey of India, there was no necessity for any photographer to have a licence from 2012 onwards to operate within the Centrally Protected Monuments for the purposes of taking photographs of the visiting tourists. Thus, the petitioners are the photographers who started operating in the Archaeological Survey of India Protected Monuments taking advantage of the 2012 policy under which no licence as photographer was required. Now, after the notification of the Archaeological Survey of India Photographers Policy on 24 May 2017 as amended on 17 July 2018, all the persons who intend to operate as photographers in the Archaeological Survey of India Protected Monuments are required to obtain a licence from the Archaeological Survey of India., The relevant clauses of the Archaeological Survey of India Photographers Policy notified on 24 May 2017 material for the present case are as follows: Selection criterion. Educational Qualification: the following qualification is recommended. Educational qualification Experience (a) Matriculate/10th pass and (b) (i) One year diploma in photography from a recognised institute required. (ii) Five years experience in photography in tourist places. In absence of one year diploma, five years experience in photography in tourist places is required. Process of selection. Applications shall be invited through open advertisement specifying the number of Archaeological Survey of India licensed photographers with respect to a specific monument or group of monuments. Wide publicity shall be given while inviting applications for grant of licences and sufficient time shall be given for submitting applications. Candidates shall submit their application in the prescribed Form, as specified by the Archaeological Survey of India. The application should be accompanied by self‑attested photocopies of all documents required as proof of eligibility and in no case shall applicants be allowed to submit any additional documents at a later stage. A declaration cum undertaking shall be submitted by an applicant declaring that the information furnished is true and correct and that, in the event of any information being found false, his licence shall be liable to be cancelled without prejudice to any other applicable law. The process of selection shall comprise written test, practical and viva voce. The Archaeological Survey of India shall specify the nature, manner and mode of test to be conducted. The entire process shall be conducted in a fair and transparent manner. An individual may apply for only one licence in respect of a specific monument or a group of monuments. Issuance of either category of licence shall be a bar for issuance of licence in the other category. Individuals shall have to submit the fee as specified by the Archaeological Survey of India for the examination. Written Test, Practical and Viva Voce. Examination for selection of required numbers of candidates for grant of licences shall consist of written test, practical and viva voce. The Archaeological Survey of India shall formulate written test and practical with a view to test the knowledge and skill of candidates on general awareness, photography, computer handling, etc. The Archaeological Survey of India shall conduct written test, practical and viva voce for selection of candidates. The practical examination and viva voce shall be conducted through a committee comprising not less than three members, out of which at least one should be from the field of photography as the Archaeological Survey of India may deem fit and proper. On completion of written test, practical and viva voce, the Archaeological Survey of India shall publish a list of successful candidates for grant of licences for monument‑specific and group‑of‑monuments‑specific photographers. Publication of the results shall not vest any right upon the successful candidates to be appointed as licensed photographers. Licence being a permission for photography in centrally protected monuments under the jurisdiction of the Archaeological Survey of India, it shall have discretion to grant or not grant such licence as it may deem fit keeping in view the interest of the monument or group of monuments. Issuance of licences. On completion of the selection process, licence shall be given to successful candidates by the Archaeological Survey of India. Successful candidates shall be given licence by the Archaeological Survey of India under Rule 8(d) of AMASR Rules, 1959. All Archaeological Survey of India licensed photographers shall be issued with appropriate ID cards., The relevant clauses of the Archaeological Survey of India Photographers Policy as amended on 17 July 2018 are as follows: Any person/candidate interested to carry out photography at Archaeological Survey of India monuments for monetary consideration shall have to obtain licence under this policy from the Director General, Archaeological Survey of India. Any licences granted by the Archaeological Survey of India prior to 2012 shall have to be revalidated. Revalidation will be subject to the photographer undergoing refresher courses with test conducted by the Archaeological Survey of India. All valid licences granted by the Archaeological Survey of India prior to 2012 shall be acknowledged under this policy subject to revalidation, wherever necessary. The Archaeological Survey of India shall specify the manner, duration and place where the refresher course with test is to be conducted., Reading of the aforesaid manifests that all valid licences granted by the Archaeological Survey of India prior to 2012 are acknowledged under the aforesaid policy subject to revalidation. It is clearly stipulated that the licences granted by the Archaeological Survey of India prior to 2012 shall require revalidation subject to the condition that the candidates have to undergo a refresher course with test conducted by the Archaeological Survey of India., On the other hand, all other candidates who do not have any licence granted by the Archaeological Survey of India prior to 2012 will have to apply for licence which shall be granted after following the due process of selection. Educational qualifications and experience criteria have been prescribed under the policy. The process of selection comprises written test, practical and viva voce., From the reading of the policy notified by the Archaeological Survey of India and pleadings on record, it is manifest that the Archaeological Survey of India is the Regulating Authority in respect of monuments of national importance which have been protected under the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. Under the provisions of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959, the Archaeological Survey of India is empowered to regulate the actions and activities within the premises of the protected monuments. Thus, as per the policy notified by the Archaeological Survey of India on 24 May 2017, as amended on 17 July 2018, there shall be licences for the purpose of taking photographs of visitors. The licences are granted on the basis of various eligibility conditions like age limit, educational qualifications, and undergoing a selection process which includes written test, practical and viva voce for candidates applying for licence for the first time. As regards the candidates who were granted licence prior to 2012, they have to undergo refresher courses with test conducted by the Archaeological Survey of India for revalidation of their licence. Further, the educational qualifications are applicable only for fresh candidates who joined photography after 2012., Thus, it is evident that the policy of the Archaeological Survey of India requires the photographers who were granted licence prior to 2012 to undergo a refresher course, with test conducted by the Archaeological Survey of India for revalidation of their licence. In view of the said refresher courses being conducted by the Archaeological Survey of India, the photographers who were granted licence prior to 2012 are to be updated on the latest photographic techniques so that they are at par with new photographers, enabling them to compete with the new photographers. As put forth on behalf of the Archaeological Survey of India, the primary aim of the refresher course is to strengthen the knowledge of the old photographers working at Archaeological Survey of India monuments in light of advancements in photography, equipment, related techniques and digital modes. The refresher course is intended to upgrade all the old‑school photographers and enhance their knowledge and skill, as digital technology has modified the entire process of camera and photographs. Further, with a view to bring in new photographers, it has been stipulated that licences shall be obtained by them after passing the due selection process., Perusal of the aforesaid clearly shows that there is a reasonable classification made by the Archaeological Survey of India for revalidation of licences of the photographers who had licence prior to the year 2012 and for grant of licences to the photographers who are new entrants after 2012 and have no prior licence from the Archaeological Survey of India. This Court finds no fault with the aforesaid policy of the Archaeological Survey of India which is reasonable and fair. There is rationale in the classification and categorisation made on behalf of the Archaeological Survey of India, as the photographers having licence prior to the year 2012 constitute a separate class altogether. The photographers who are applying for licence for operating in Archaeological Survey of India Protected Monuments for the first time are a different class and cannot claim to be at par with the photographers who had valid licences from the Archaeological Survey of India prior to the year 2012 in terms of the then policy., Holding that equality does not connote absolute equality and that the rule of differentiation is inherent in the concept of equality, the Supreme Court in State of Kerala and Another Versus N. M. Thomas and Others, (1976) 2 SCC 310 held: The rule of parity is the equal treatment of equals in equal circumstances. The rule of differentiation is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set, so that the question of unequal treatment does not arise between persons governed by different conditions. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position; the varying needs of different classes of persons require special treatment. The legislature understands and appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. The rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of conditions. A classification to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness, embracing all and omitting none naturally falling into that category., It is settled law that Article 14 of the Constitution of India does not forbid reasonable classification, which is founded on intelligible differentia distinguishing persons or things that are grouped together from others left out of the group. Thus, in Confederation of Ex‑Servicemen Association and Others Versus Union of India and Others, (2006) 8 SCC 399, the Supreme Court held: While Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. To pass the test of permissible classification two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on geographical, occupational or other bases, but there must be a nexus between the basis of classification and the object of the Act., It is palpable that the Archaeological Survey of India Photographers Policy has been notified by the Archaeological Survey of India with an objective to regulate photographers within the Centrally Protected Monuments and to ameliorate the condition and treatment of visitors and tourists in the said monuments. This Court finds that there is a reasonable nexus in the policy wherein photographers who were granted licence prior to 2012 are required to undertake only a refresher course and elementary test for revalidation of their licence. Whereas photographers seeking licence from the Archaeological Survey of India for the first time are required to take the selection procedure as laid down in the policy, which includes written test, practical and viva voce. The photographers applying for licence for the first time stand on a different footing and cannot claim to be at par with the photographers who had licences from the Archaeological Survey of India prior to 2012., The contention of the petitioners regarding their rights guaranteed under Article 19(1)(g) of the Constitution of India being jeopardised is totally misplaced and liable to be rejected. Obtaining licence by following the due selection procedure laid down by the Archaeological Survey of India does not in any manner violate the right of the petitioners under Article 19(1)(g) of the Constitution of India. The policy mandating the obtaining of licence to work as photographers in Archaeological Survey of India protected monuments has been notified by the Archaeological Survey of India in the larger public interest to regulate the quality and conduct of photographers for the benefit of visitors and tourists., Holding that imposition of restrictions is a concept inbuilt into the enjoyment of fundamental rights, the Supreme Court in N. K. Bajpai Versus Union of India and Another, (2012) 4 SCC 653 held: Imposition of restrictions is a concept inbuilt into the enjoyment of fundamental rights, as no right can exist without a corresponding reasonable restriction placed on it. When restrictions are placed upon the carrying on of a profession to ensure that the intent, object or purpose achieved thereby enhances the purity of public life, such object would certainly be throttled if there arose a conflict between private interest and public duty. The principle of private interest giving way to public interest is a settled canon of administrative jurisprudence and statutory interpretation., Likewise, holding that the fundamental rights enshrined in Article 19 of the Constitution are not absolute and unqualified, but are subject to reasonable restrictions, the Supreme Court in Sri Sri Kalimata Thakurani and Sri Sri Raghunath Ji and Others Versus Union of India and Others, (1981) 2 SCC 283 held: The fundamental rights enshrined in Article 19 are not absolute and unqualified but are subject to reasonable restrictions which may be imposed under sub‑clauses (4) and (5) of Article 19. Whenever a complaint of violation of fundamental rights is made, the court must determine whether the restrictions imposed contain the quality of reasonableness. The test of reasonableness must be applied to each individual statute impugned; no abstract standard can be laid down as applicable to all cases. The nature of the right alleged to be infringed, the underlying purpose of the restrictions, the extent and urgency of the evil sought to be remedied, the proportionality of the imposition and the prevailing conditions must all enter into the judicial verdict., The contention of the petitioners that the Archaeological Survey of India Photographers Policy is sought to be applied retrospectively by respondents and that it shall not be applicable to the petitioners is totally misplaced. The policy is being applied prospectively by the Archaeological Survey of India and all persons who seek to operate as photographers in Archaeological Survey of India protected monuments are liable to obtain licence after participating in the prescribed selection process. Merely because the petitioners have operated as photographers without licence in the past owing to the policy in vogue at that time does not obviate the requirement of obtaining licence under the policy that is now prevalent., In view of the aforesaid detailed discussion, no merit is found in the present writ petition. The petition is accordingly dismissed along with the pending application.
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These petitions were called on for hearing on 11 June 2021 before the Supreme Court of India (Video Conferencing). For the petitioners: Ms. Pallavi Pratap, Advocate on Record Mr. Sanjay R. Hegde, Senior Advocate Mr. Chandrashekhar A. Chakalabbi, Advocate Mr. Awanish Kumar, Advocate Mr. Shiv Kumar Pandey, Advocate Mr. Anshul Rai, Advocate Mr. Shikha Bharadwaj, Advocate Mr. Abhinav Garg, Advocate Messrs. Dharmaprabhas Law Associates, Advocate on Record Mr. Arvind P. Datar, Senior Advocate Ms. Sonia Mathur, Senior Advocate Dr. Charu Mathur, Advocate on Record Mr. Sanjay Kumar Dubey, Advocate Ms. Tanvi Dubey, Advocate Mr. Puneet Pathak, Advocate. For the respondents: Mr. Dushyant Parashar, Advocate on Record., The writ petitions (Civil) No. 623, 631 and 632 of 2021 have been filed by doctors holding MBBS degrees who aspire to appear for the Institute of National Importance Combined Admission Test (INI CET) for admission to postgraduate courses for the July 2021 session in the units of All India Institute of Medical Sciences (AIIMS), Post Graduate Institute of Medical Education and Research (PGIMER) Chandigarh, Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER) Puducherry and National Institute of Mental Health and Neurosciences (NIMHANS) Bengaluru. The petitions are directed against Notice No. 81/2021 dated 27 May 2021 issued by the AIIMS Examination Centre, which rescheduled the INI CET for the July 2021 session to 16 June 2021., The petitioners submit that the hasty decision by AIIMS to conduct the INI CET on 16 June 2021 has seriously prejudiced innumerable aspirants for admission to postgraduate courses of the institutions of national importance, who are serving in COVID-19 hospitals across the country. Many of them are rendering services at COVID centres located far from the examination centres for which they have opted. Conducting the INI CET at such short notice is arbitrary, unfair to the aspirants and will cause gross injustice, as the aspirants have very little time to prepare. The petitioners contend that the concerned doctors had been assured of at least a month’s time to prepare for the admission test., Mr. Arvind P. Datar, learned Senior Advocate appearing on behalf of the petitioners, pointed out that the INI CET is being conducted to fill 850 MD and MS seats in six units of AIIMS, PGIMER Chandigarh, JIPMER Puducherry and NIMHANS Bengaluru, and that about 80,000 doctors with MBBS degrees are expected to take the INI CET. Post‑graduate courses of medical colleges other than those mentioned above are through the NEET‑PG, which, according to the petitioners, has been postponed beyond 31 August 2021. Mr. Datar argued that various examinations have been postponed on account of the pandemic, including the Civil Services Examination, and that it is not clear whether some examinations, including board examinations for this year, will be held at all. The attention of the Supreme Court of India has also been drawn to news reports of extensions of lockdown in many states. It is reported that in Odisha the lockdown has been extended till 16 June 2021, and in Maharashtra, Andhra Pradesh and Kolkata the lockdown has been extended till 15 June 2021. It would be extremely difficult, if not virtually impossible, for many candidates for the INI CET to reach their examination centres from their places of duty. Many of the doctors are exposed to the risk of contracting COVID‑19 and may have to isolate or quarantine themselves. Holding the INI CET on 16 June 2021 would also result in the spread of the virus and an increase in COVID‑19 cases. Having regard to these circumstances, fixing the INI CET on 16 June 2021 is arbitrary and discriminatory, especially since other important examinations, including Joint Entrance Examinations and board examinations, have been postponed., The impugned notice is therefore set aside. The INI CET is directed to be postponed by at least one month from 16 June 2021. AIIMS shall fix a convenient date for the INI CET at least one month after 16 June 2021. With the aforesaid observations, the writ petitions are disposed of. Any pending application, if any, stands disposed of., In writ petition (Civil) No. 631 of 2021, Mr. Sanjay R. Hegde, learned Senior Advocate, on instructions, submits that the petitioners shall not press the first prayer, i.e., Prayer No. 1, which seeks issuance of notice to the Union of India and to the Medical Council, returnable by 18 June 2021. Dasti service, in addition, is permitted. The Union of India may be served through the office of the Solicitor General of India.
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Through: Mr. Sanjay Ghose, Senior Advocate with Ms. Urvi Mohan, Mr. Kunal Khanna and Mr. Kanishka Khurana, Advocates versus Through: Mr. Rohan Rohatgi, Ms. Aditi Khullar and Mr. Abhinav Garg, Advocates (M-9811867909). This hearing has been done through hybrid mode., Interim Application 8948/2022 (for exemption) is an application filed by the petitioner seeking exemption from filing certified true copies of the documents. It is allowed, subject to all just exceptions. Interim Application 8948/2022 is disposed of., Interim Application 8949/2022 (for exemption) is an application for seeking exemption from filing original documents, legible copies or better copies. It is allowed, subject to all just exceptions. Interim Application 8949/2022 is disposed of., Interim Application 8947/2022 (for additional documents) is an application seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter Commercial Courts Act). The plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act. Interim Application 8947/2022 is disposed of., Interim Application 8946/2022 (for exemption) are applications for exempting the defendants from filing duly executed, affirmed original notarized and apostilled affidavits. Exemption is allowed. The original documents shall be filed within four weeks. Interim Application 8946/2022 is disposed of., The present petition has been filed under Section 9 of the Arbitration and Conciliation Act, 1996. The dispute between the parties arises out of the Distributor Framework Agreement dated 17 May 2021, which contains an arbitration clause. Since the dispute concerns the trademark ONE MOTO and other marks that were the subject‑matter of the same agreement, the matter has been placed before the Intellectual Property Division by the Coordinate Bench of the Delhi High Court, subject to the orders of the Honorable Judge‑in‑charge., By the said agreement, Respondent No. 1 – M/s Centre Systems Group Internet Content Provider (CSG ICP) was appointed as the sole and exclusive distributor of various automobile products of the petitioner. The execution of the agreement is not in dispute. Relevant clauses are set out below: 2.1 The supplier appoints the distributor on an exclusive basis as its authorised distributor for the territory to sell and distribute the products for the term and upon the terms and conditions of this agreement, and the distributor agrees to be so appointed. 2.2 The distributor shall be entitled to appoint other parties as its sub‑distributors for the purpose of effecting sales of the products and/or providing after‑sales services in the territory, subject at all times to the supplier’s prior written approval to each such appointment and to the said parties entering into agreements substantially in the same form as this agreement with the distributor. Notwithstanding any such appointment and irrespective of the approval given by the supplier, the distributor shall remain liable to the supplier for the performance of such other parties or sub‑distributors and shall not be released from performing its obligations under this agreement by virtue of its appointment of such third parties., As per the above clauses, Respondent No. 1 was to be the exclusive distributor of the petitioner’s products in India and was also permitted to use the various trademarks of the petitioner in relation to the products. Respondent No. 1 was also permitted to appoint sub‑distributors who would be bound by the terms and conditions applicable to Respondent No. 1. The agreement was for a period of three years, but the trademark rights were always to vest with the petitioner in terms of clauses 12.1, 12.2 and 12.10.2., The agreement contains an arbitration clause providing that disputes were to be referred to arbitration under the rules of the London Court of International Arbitration (LCIA) with the seat of arbitration in London. The petitioner alleges that, in addition to Respondent No. 1, Respondent No. 2 – Elysium Automotives Private Limited, of which Respondent No. 1 is a subsidiary, was also bound by the terms and conditions of the agreement., The petitioner’s grievance is that one Mohd. Abdul Majid, a director of Respondent No. 2, in his individual capacity applied for an identical mark ONE MOTO and the device, vide Application No. 5009246 dated 18 June 2021, on a proposed‑to‑be‑used basis. The applicant is the father of the signatory to the agreement on behalf of Respondent No. 1, namely Mr. Muzammil Mohammed Riyaz, who is also a director of Respondent No. 2. The petitioner contends that this constitutes a complete breach of the obligations of Respondent No. 1 and the fiduciary duty owed to the petitioner under the Distributorship Agreement dated 17 May 2021. Consequently, the agreement was terminated as of 25 May 2022., The petitioner apprehends that the respondents may start manufacturing and selling automotive products under the mark ONE MOTO. A website was also registered by the respondents under the domain name (domain omitted). Printouts of the website have been placed on record. The domain name was created on 24 September 2021 and the trademark application for the identical mark was filed shortly after the agreement was executed. The prayer in the present petition is for an injunction restraining the respondents from using the petitioner’s mark ONE MOTO and other identical marks, and for taking down the domain name., Mr. Ghosh, Senior Counsel appearing for the petitioner submits that the Distributorship Agreement contemplated the appointment of sub‑distributors across the country, including Delhi. Hence, a part of the cause of action arises in Delhi. Moreover, the website was accessible in Delhi until the filing of the present petition and has now been taken down by the respondents., On behalf of the respondents, the maintainability of the present petition and the territorial jurisdiction of the Delhi High Court are challenged by Mr. Rohatgi, Senior Counsel appearing for the respondents. However, he does not dispute that the respondents have applied for the identical mark ONE MOTO, along with the device mark and the domain name., Considering that the question of maintainability requires a hearing and there is an imminent threat of the respondents launching or using the mark ONE MOTO, including by appointment of distributors or commencing manufacturing of automotive products, it is deemed appropriate to restrain the respondents from changing the status quo as it exists today., Till the next date of hearing, the respondents shall be restrained from using the mark ONE MOTO, the device mark, or any other mark which is identical or deceptively similar to the petitioner’s trademarks SCOOTA, DELIVA and BYKA, which are the subject matter of the Distributorship Agreement dated 17 May 2021, executed between the petitioner and Respondent No. 1., With respect to the website, it has currently been taken down. The status quo shall be maintained and the domain name shall remain blocked. A copy of this order shall be communicated to the National Internet Exchange of India (NIXI) by the Senior Counsel for the petitioner., The issue of jurisdiction and maintainability of the present petition may be raised in the reply. After completion of pleadings, those issues shall be considered first before proceeding in the matter., In view of the termination of the Distributorship Agreement, the respondents cannot proceed with any contractual arrangements with sub‑distributors in respect of these marks. Any other independent relationship is, however, not restrained., Senior Counsel for the respondents submits that the obligations imposed upon the petitioner under the Distributorship Agreement have not been carried out. Accordingly, if any sub‑distributors have been appointed, a transition period may be required to bring those distribution arrangements to an end, and the respondents may negotiate with the petitioner. To enable the parties to negotiate any arrangement concerning sub‑distribution or the sponsorship of the IPL team stated to have been made by ONE MOTO, Mr. Sudhanshu Batra, Senior Advocate is appointed as the mediator to attempt an amicable resolution of the disputes. The mediation shall be without prejudice to all claims and counter‑claims which the parties may have against each other. A preliminary meeting between the senior counsels and the senior mediator is fixed for tomorrow. Accordingly, the matter is listed before the Delhi High Court Mediation and Conciliation Centre on 3 June 2022 at 4:00 pm., The matter is listed before the Delhi High Court on 23 September 2022. A copy of the present order shall be communicated to the mediator and the Delhi High Court Mediation and Conciliation Centre.
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D.B. Criminal Writ Petition No. 613/2023 Petitioner versus State of Rajasthan, Department of Home, Jaipur; District Collector, Jodhpur; Superintendent, Central Jail, Jodhpur (Respondents). Petitioners: Mr. Kalu Ram Bhati, Mr. S. D. Chavariya, Mr. Lalit Kishore Sen. Respondents: Mr. Anil Joshi, Government Advocate cum Additional Advocate General; Mr. Pallav Sharma, Additional Advocate General. Order:, This writ petition has been filed on behalf of the petitioner with a prayer that the respondents may be directed to release the petitioner on 20 days parole. The petitioner was convicted and sentenced for offence under Sections 370(4), 342, 506, Section 376(2)(D)(F) of the Indian Penal Code read with Section 23 of the Juvenile Justice Act, 2000., The grievance of the petitioner is that he has filed an application with a prayer for releasing him on 20 days parole, but Asha Ram alias Ashumal and the respondents are not taking any decision on the said application., Reply to the writ petition has been filed on behalf of the State, wherein it is stated that the District Parole Advisory Committee, Jodhpur, in its meeting dated 20 June 2023, considered the application filed by the petitioner for releasing him on 20 days parole, however, rejected the same on the ground that he is not entitled to the benefit of 20 days parole as per the provisions of the Rajasthan Prisoners Release on Parole Rules, 2021 (hereinafter referred to as the Rules of 2021)., Learned counsel for the petitioner has argued that the petitioner was convicted and sentenced by the trial court on 25 April 2018, whereas the Rules of 2021 came into effect from 30 June 2021 and, as such, the application filed by the petitioner for releasing him on 20 days parole is liable to be considered under the provisions of the Rajasthan Prisoners Release on Parole Rules, 1958 (hereinafter referred to as the Rules of 1958) and not as per the provisions of the Rules of 2021. Learned counsel for the petitioner has placed reliance on the decision passed by the Honourable Supreme Court in the case of Hitesh alias Bavko Shivshankar Dave versus State of Gujarat: Writ Petition (Criminal) No. 467/2022, decided on 24 January 2023 and the decision passed by the Honourable Rajasthan High Court in the case of Anil Kumar alias Kaley versus State of Rajasthan & Ors.: D.B. Criminal Writ Petition (Parole) No. 381/2022, decided on 02 February 2023 at Jaipur Bench., Learned Additional Advocate General has opposed this parole writ petition, however, he is not in a position to dispute the fact that the application filed by the petitioner for releasing him on 20 days parole is liable to be considered as per the provisions of the Rules of 1958 as laid down by the Honourable Supreme Court in Hitesh's case (supra)., In such circumstances, the decision taken by the District Parole Advisory Committee, Jodhpur in its meeting dated 20 June 2023, refusing to grant parole of 20 days to the petitioner, is hereby set aside and the respondents are directed to consider the application filed by the petitioner for releasing him on 20 days parole afresh in accordance with the provisions of the Rules of 1958, instead of the provisions of the Rules of 2021, within a period of six weeks from the date of production of a certified copy of this order. This parole writ petition is disposed of accordingly.
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Reserved on 10 January 2024 and pronounced on 5 February 2024. Through Mister Manish Vashishth, Senior Advocate, with Mister Karan Sharma, Mister Rishabh Sharma, Mister Vedanth Vashishth, Mohd. Irshad and Ms. Harshita Nathrani, Advocates, versus through Mister Manoj Pant, appellant for the State, Mister Raghav Awasthi, Mister Kunal Tiwari and Mukesh Sharma, Advocates for respondent number two., Essential Ingredients to Constitute Offence of Defamation., Issuance of Process or Summons vis-à-vis Offence of Defamation: Pace of Spread of Scandalous Content: From the Echo of Whispers in the Pre‑Digital Era compared to the Spread at Lightning Speed of Digital Media., The sheer magnanimity of reputational injury caused by posting defamatory content against a person who holds his reputation dear to him, which may often be dismissed as a mere tweet or retweet, has been urged to be examined, persuading the Supreme Court of India to adjudicate this critical issue since the cyber world turns whispers into a symphony., In today’s digital age, the dynamics of law change, as exemplified by the present case, where the Supreme Court of India has been posed with a situation in which reputational harm has been alleged by the complainant through a repost in cyberspace. Physical damage to a person’s reputation is no longer the only possibility; the cyber world now amplifies the effect of any defamatory statement. Statements made in the physical world may resemble a mere whisper, but when echoed in the cyber domain, the impact magnifies exponentially., The issue before the Supreme Court of India through the present petition requires the Court to lay down certain principles based on jurisprudence of defamation, in the light of the evolution of cyberspace and its extensive usage as a means to damage the reputation of someone. The Court is faced with a situation where alleged defamatory content has been posted by an original author and then the same content has been retweeted or reposted on the popular social media platform Twitter (now X) by the present petitioner., While the courts may still struggle with the issue of what amounts to publishing and whether retweeting of defamatory content also amounts to publishing so as to be covered under the definition of Section 499 of the Indian Penal Code, the concerns arising out of such vast reach of defamatory content and corresponding reputational injury have given rise to the important question of law: Whether retweeting any defamatory content will be covered in the meaning of publication under Section 499 of the Indian Penal Code and whether the person retweeting such content, though not the original author, will also be liable to attract action under Section 499 of the Indian Penal Code or can he take refuge under the argument that he was not the original author of the content., In the case reported as 2017 SCC Online Delhi 1191, the Supreme Court of India observed that it was for the Trial Court to decide if retweeting an allegedly defamatory tweet would attract the rigors of Section 499 of the Indian Penal Code, by way of a full‑fledged trial. The observation was: ‘Whether retweeting would attract liability under Section 499 IPC is a question which requires determination in the totality of the circumstances and the same will have to be determined during trial; any interference at this stage by this Court is likely to prejudice the findings of the Trial Court.’, In this background, the Supreme Court of India is of the opinion that whether a retweet is defamatory in content or not, so as to attract the rigors of Section 499 IPC, will of course be a matter of trial. However, whether retweeting by a person of defamatory content will amount to publication for the purpose of summoning an accused must essentially be decided prior to the commencement of the trial. It is not the issue for adjudication before this Court in the present case to return a finding as to whether it was proved beyond doubt that the retweet in question was defamatory., The critical issue before the Supreme Court of India is whether a retweet, being not original content by the original author, can form the basis of summoning an accused for an offence under Section 499., This major issue, which is at the centre of controversy in multiple cases pending before the Supreme Court of India, reveals the difficulties currently faced by Trial Courts and has persuaded the Court to take a comprehensive look at the issue for the purpose of summoning an accused., On 6 May 2018, Shri Dhruv Rathee, the original author of the alleged defamatory content, uploaded a video on YouTube in which, inter alia, certain allegations were made against respondent number two. On 7 May 2018, Shri Dhruv Rathee published on his Twitter account an allegation that the Information Technology Cell of the Bharatiya Janata Party had attempted to bribe a person to defame him and he drew a reference to the Uniform Resource Locator of the first impugned publication, which has now been termed the second offending publication in the petition. On the same day, the petitioner herein, Shri Arvind Kejriwal, reposted (i.e., retweeted) the second offending publication of Shri Dhruv Rathee, which is termed the impugned publication., On 28 February 2019, a complaint was filed by the complainant/respondent number two, Shri Vikas Sankritayan (also known as Vikas Pandey), against the petitioner Shri Arvind Kejriwal for initiating proceedings against him for commission of offences punishable under Sections 499 and 500 of the Indian Penal Code., Respondent number two states that he is the founder and operator of the popular social media page ‘I SUPPORT NARENDRA MODI’, which shows true and correct information and has a following of over one crore fifty lakh persons on his social media handles. He alleges that Shri Dhruv Rathee, who claims to be an engineer and lives in Germany, operates a YouTube channel under the name ‘Dhruv Rathee’ and has a huge following of 1,626,422 subscribers as on the date of filing of the complaint. According to the complaint, a YouTube video titled ‘BJP IT Cell Part‑2’ was circulated by Shri Dhruv Rathee on 6 May 2018, wherein certain defamatory statements were made against respondent number two. Extracts reproduced in the complaint include allegations that Vikas Pandey is the second‑in‑command of the BJP IT Cell, that he spreads fake news through his social media page, and that he offered a bribe of Rs 50 Lakhs to Mahavir Prasad through one Abhishek Mishra, among other statements., Thereafter, Shri Dhruv Rathee also shared the URL of the defamatory video on his Twitter account. It is alleged that the petitioner herein then retweeted the said defamatory content from his Twitter account without checking the authenticity of the video, thereby spreading it to the public at large. It is further alleged that Shri Arvind Kejriwal, who is followed by a large number of people, made the defamatory content available to a large audience at national and international level., The petitioner is also alleged to have been contacted by two of his friends, Shri Abhishek Kulshrestra and Shri Punit Agrawal, who expressed their dismay with regard to the allegations made against him., History of Judicial Proceedings: Respondent number two was examined under Section 200 of the Code of Criminal Procedure, 1973 at the pre‑summoning stage, as he had filed the complaint under Sections 499 and 500 of the Indian Penal Code. The petitioner was summoned as an accused by the learned Additional Chief Metropolitan Magistrate I, Rouse Avenue Courts, New Delhi (Trial Court) by order dated 17 July 2019. Aggrieved by the issuance of summons and the complaint, the petitioner preferred a revision petition before the Sessions Court, which was dismissed by order dated 30 October 2019 by the learned Additional Sessions Judge/Special Judge (PC Act) CBI‑09, Rouse Avenue Courts, New Delhi., Aggrieved by the aforesaid orders passed by the learned Trial Court and Sessions Court, the petitioner Shri Arvind Kejriwal approached the Supreme Court of India by way of the present petition under Section 482 of the Code of Criminal Procedure, seeking setting aside of the order dated 17 July 2019 passed by the learned Trial Court in Criminal Case No. 15/2019, and the order dated 30 October 2019 passed in Criminal Revision No. 28/2019 by the learned Sessions Court., Mister Manish Vashishth, learned Senior Counsel appearing on behalf of the petitioner, while assailing the orders passed by both the learned Trial Court and Sessions Court, argues that the learned Trial Court summoned the petitioner in a mechanical manner and presumed the alleged statements/retweet to be defamatory on its face, without properly examining the same. He states that summoning is contrary to settled principles of law since the Magistrate must carefully scrutinise the evidence and must be satisfied that the ingredients of the alleged offence are made out, which was not done in this case. He submits that a bare perusal of the retweet would show that it does not constitute any offence of defamation because the offence, besides the requirement of mens rea, must consist of three essential ingredients: (i) making or publishing any imputation concerning any person; (ii) such imputations must be made by words either spoken or intended to be read, or by signs or visible representations; and (iii) the imputation must be made with the intention to harm or with knowledge or reason to believe that it will harm the reputation of the person concerned. The learned Senior Counsel submits that the impugned orders failed to appreciate that the alleged retweet was not done with intent to harm respondent number two, nor was it likely to harm him. He further argues that the entire version deposed by PW‑2 is hearsay, and an expression of dismay is not defamation. He contends that the petitioner merely retweeted a link to a video of which he was neither creator nor publisher, and therefore the essential ingredients of defamation are not attracted as the act does not amount to publication within the meaning of Section 499 of the Indian Penal Code. He also points out that the learned Trial Court failed to consider the exceptions provided under Section 499, including the public‑good exception, and erroneously recorded that at this stage the consideration is whether there exist sufficient grounds to summon., Learned Senior Counsel for the respondent number two, Shri Raghav Awasthi, argues that the allegations made against the respondent are false, malicious and defamatory and have lowered his reputation in the eyes of right‑thinking members of society. He contends that without any proof in support of the allegations, the petitioner, who is the Chief Minister of Delhi, retweeted the video shared by Shri Dhruv Rathee on his YouTube channel without verifying its authenticity, and because of the petitioner’s large following, the video reached a large number of people not only in India but internationally. On these grounds, he argues that the impugned orders suffer from no infirmity and that the learned Trial Court rightly summoned the petitioner since a prima facie case of defamation is made out and the issues raised by the petitioner are all triable in nature., It is further submitted on behalf of respondent number two that the earlier complaint filed before the Saket Courts, Delhi was withdrawn against the present petitioner only because that Court was not competent to try a matter involving an MLA and Chief Minister of Delhi. Consequently, the respondent had no option but to withdraw the complaint from the previous Court with liberty to file a fresh complaint before a court competent to try cases pertaining to Members of Parliament or Members of Legislative Assembly. In support of this submission, reliance is placed on the decision of this Court in Satish Dayal Mathur v. Mackinnon Mackenzie and Company (MANU/DE/0240/1986) to argue that Section 257 of the Code of Criminal Procedure would not be applicable. On these grounds, learned counsel for respondent number two prays that the present petition be dismissed., The Supreme Court of India has heard arguments addressed by learned Senior Counsel for the petitioner as well as learned counsel for respondent number two, and has gone through the material placed on record and written submissions filed by both parties., The learned Trial Court, while summoning the petitioner by order dated 17 July 2019, held: ‘Defamatory statement is one which tends to injure the reputation of a person. It is a publication which tends to lower a person’s reputation in the estimation of right‑thinking members of society generally or which makes them shun or avoid that person. According to Section 499 of the Indian Penal Code, a person is said to commit the offence of defamation when he, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, except where the publication is protected by the statutory exceptions provided in this provision.’, The complaint clearly set out the imputations made against the complainant by the respondent. The complainant relied upon the defamatory video (Exhibit CW1/2) and the computer printout of the tweet (Exhibit CW1/3) wherein the respondent retweeted the video. These electronic evidences are supported by the complainant’s certificate under Section 65B of the Indian Evidence Act (Exhibit CW1/5). The complainant also filed the transcript of the video on record., The respondent is not the original author of the alleged defamatory video. The only allegation against him is that he retweeted the video containing the defamatory allegations against the complainant without confirming its veracity., In this manner, the respondent repeated the defamatory statements on a social media platform, which amounts to further publication. It is no defence to an action of defamation that the respondent published it by way of repetition. Every repetition of defamatory words is a new publication and a distinct cause of action., In order to decide whether to summon the respondent for trial, the existence of only a prima facie case to summon must be seen in contrast to the standard of proof ‘beyond reasonable doubt’ required for conviction. At this stage, the consideration is whether there exist sufficient grounds to summon, as provided by Section 204 of the Code of Criminal Procedure. Defences under Section 499 of the Indian Penal Code can be pleaded and proved only at trial., In defamation cases, one of the tests is whether, under the circumstances in which the writing was published, reasonable persons to whom the publication was made would be likely to understand it in a defamatory sense. Much also depends on the intention of the maker of the statement, which is a subject of trial., Therefore, the foregoing discussion shows that the allegations in the video are prima facie defamatory and refer to complainant Mr. Vikas Sankritayan (Vikas Pandey) making him an aggrieved person within the meaning of Section 199 of the Code of Criminal Procedure. The inquiry contemplated under Section 202 of the Code of Criminal Procedure has been duly conducted by examining the complainant and his witnesses, leading to the conclusion that there exist sufficient grounds to proceed against the respondent Arvind Kejriwal under Section 500 of the Indian Penal Code. Accordingly, Shri Arvind Kejriwal is summoned for commission of the offence of defamation under Section 500 of the Indian Penal Code., The learned Sessions Court, while dismissing the revision petition filed by the petitioner where the order of summoning was challenged, held that republication of libel is a new libel, as held in Harbhajan Singh v. State of Punjab (1961 Cri. Law Journal 710). The publisher of the libel is strictly responsible, irrespective of whether he is the originator or merely repeating it. A micro‑blogging and social networking website such as Twitter is used for spreading messages. When a user clicks the ‘retweet’ button, the tweet reaches the followers of the retweeting user, thereby constituting a new publication for those followers., The question in the present revision petition was whether the revisionist had retweeted the contents of the video. The copy of the retweet placed on record shows that the link to the video was mentioned in the retweet, along with the phrase ‘Share and RT’, indicating that the revisionist had retweeted the entire tweet together with the link., Learned counsel for the revisionist argued that there was no intention on his part to cause any defamation. He relied on the judgment in Standard Chartered Bank v. Vinay Kumar Sood (CrL M. C. No. 3828/2007, decided 6 February 2009), where the Delhi High Court observed that intention to cause harm is the most essential sine qua non for the offence under Section 499 IPC. The Court held that the offence under Section 500 IPC requires a blameworthy mind and is not a strict liability offence. However, that judgment dealt with a company as the accused, and the Court held that a company cannot be held guilty under Section 500 IPC because the essential ingredient of mens rea would be missing in a juristic entity., Section 499 of the Indian Penal Code defines the offence of defamation as follows: ‘Defamation—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.’, A bare perusal of the definition shows that the imputation which harms the reputation of the person must be made either with intention, with knowledge, or with reason to believe that such imputation will harm the reputation of the person concerned., Whether in a particular case there was any such intention, knowledge, or reason to believe is a question of fact that can be decided by leading evidence. Section 499 IPC is also subject to certain exceptions which bring the imputation out of the periphery of defamation. These exceptions are always questions of fact that can be decided at trial, taking into account the nature of the imputation, the circumstances in which it was made, the status of the person making the imputation, and whether it was made in good faith., The impugned order has dealt with all the relevant aspects of the issues involved at the stage of summoning. At this stage, the Court has only to see if there are sufficient grounds to proceed further, and the impugned order, when weighed on this scale, shows no illegality, impropriety or irregularity., With these observations, the revision petition is dismissed. The transcript of the order along with the copy of the order shall be sent to the learned trial court. The revision petition shall be consigned to the record room., It was argued on behalf of the petitioner that respondent number two had earlier withdrawn a complaint which he had filed against three accused persons in Saket Courts, Delhi, with liberty to approach the appropriate court, and that Section 257 of the Code of Criminal Procedure would apply, providing that if a complainant withdraws his complaint against an accused, the magistrate may permit the withdrawal, thereby acquitting the accused. While opposing these arguments, it was contended on behalf of respondent number two that the previous complaint against the present petitioner, who was accused number three therein, was withdrawn with liberty to file a fresh complaint in a court having competent jurisdiction to deal with cases pertaining to Members of Parliament or Members of Legislative Assembly, and that such withdrawal would not amount to an acquittal., Learned counsel for respondent number two relied on the decision of this Court in Satish Dayal Mathur v. Mackinnon Mackenzie and Company, wherein it was held that although the learned Additional Chief Metropolitan Magistrate erroneously thought the entire proceedings were illegal because of non‑compliance with the mandatory provisions of Section 200, he could not have, in all fairness, passed an order of acquittal under Section 257 of the Code. Consequently, the order dated 5 August 1983 of the learned Additional Chief Metropolitan Magistrate in the previous complaint cannot operate as an acquittal within the meaning of Section 257 so as to bar subsequent prosecution of the petitioner on the same facts., In the present case, respondent number two filed a complaint (Ct. Cases 5786/2018) titled ‘Vikas Sankritayan @ Vikas Pandey v. Dhruv Rathee & Ors.’ on 4 July 2018 for offences under Sections 499 and 500 of the Indian Penal Code against three accused persons: Shri Dhruv Rathee (the original author), Shri Mahavir Prasad Khileri, and Shri Arvind Kejriwal (the petitioner). On 18 October 2018, the complainant tendered his pre‑summoning evidence and gave a statement before the learned MM‑01, South‑East, Saket Court, Delhi, that he wishes to withdraw his complaint against accused number three with liberty to file afresh before a court of competent jurisdiction. The statement reads: ‘I wish to withdraw my complaint against alleged number three, Shri …’
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Arvind Kejriwal is granted liberty to file the same before the appropriate Court of competent jurisdiction. I may be permitted for the same. Further, on the same day, the following order was passed by the learned Magistrate: the complainant submits that he wishes to withdraw his complaint against alleged No. 3 Shri Arvind Kejriwal with liberty to file a fresh complaint as per law in the court having competent jurisdiction. The statement of the complainant is separately recorded to this effect and the name of alleged No. 3 is dropped accordingly. The complainant is examined as CW1 and discharged. The complainant seeks time to file the list of remaining witnesses and for further pre-summoning evidence. Heard. Allowed. He is to be put up for further pre-summoning., Thereafter, in the aforesaid complaint case, the learned Magistrate issued summons to the other two accused persons vide order dated 23 July 2019. It is noted that in the present case, respondent No. 2 withdrew his earlier complaint, Court Cases 5786/2018, only against accused No. 3, purely on the grounds of lack of jurisdiction of the learned Magistrate in Saket Court to adjudicate a case related to a sitting Member of Legislative Assembly who is also the Chief Minister of Delhi. In this regard, the Supreme Court of India also takes note of the fact that pursuant to directions passed by the Honourable Apex Court in the case of Ashvini Kumar Upadhyay versus Union of India & Another, Writ Petition (Civil) 699/2016, a notification No. 35/DHC/Gaz./G‑1/VI.E.2(a)/2018 dated 23 February 2018 was issued by the Supreme Court of India constituting special Courts to deal with cases against sitting or former MPs and MLAs., As regards the argument regarding applicability of Section 257 of the Criminal Procedure Code, it is important to note that the case, Court Cases 5786/2018, at the time when the complaint by the petitioner herein was withdrawn, was still at the stage of recording of pre‑summoning evidence. The petitioner, i.e., the accused, was not before the concerned Court, as he had not yet been summoned, and the learned Magistrate had not applied his mind even to the material before him to arrive at a finding as to whether the accused persons were required to be summoned. Thus, the trial in that complaint case had not yet begun when the complaint was withdrawn. Having also gone through the decision of the Supreme Court of India in the case of Satish Dayal Mathur (supra), the Supreme Court of India is of the opinion that the learned Magistrate, MM‑01, South‑East, Saket Court, Delhi, did not have jurisdiction to adjudicate the complaint case pertaining to the present petitioner, in view of the Special Courts constituted by the Supreme Court of India for dealing with cases against sitting or former MPs and MLAs. Accordingly, the learned Magistrate did not pass any order of acquittal of accused No. 3, i.e., the petitioner herein. Therefore, the Court is of the opinion that such a case would not be covered within the provisions of Section 257 of the Criminal Procedure Code, which falls under Chapter XX, Trial of Summons‑Cases by Magistrates. Moreover, as observed above, the case of the complainant, being a sitting MLA, could not have been dealt with by the concerned Magistrate., As the present case revolves around the offence of defamation, it is necessary to first examine and analyse the concept of defamation and defamatory statements, the essential ingredients to constitute this offence under Section 499 of the Indian Penal Code and the judicial precedents highlighting the role of courts while issuing summons to an accused in a complaint filed for the offence of defamation. Meaning and Definition: According to Halsbury's Laws of England, Fourth Edition, Volume 28, the term 'defamatory statement' is defined as a statement which tends to lower a person in the estimation of right‑thinking members of society generally, or to cause him to be shunned or avoided, or to expose him to hatred, contempt or ridicule, or to convey an imputation on him that is disparaging or injurious to him in his office, profession, calling, trade or business., The Black's Law Dictionary, 4th Edition, explains the meaning of defamation as the taking from one's reputation. It is the offence of injuring a person's character, fame, or reputation by false and malicious statements. In addition, P. H. Winfield in A Textbook of the Law of Tort, 5th Edition, 1950, defines defamation as the publication of a statement which tends to lower a person in the estimation of right‑thinking members of society generally, or which tends to make them shun or avoid that person. As per R. F. V. Heuston, Salmond on the Law of Torts, 17th Edition, 1977, the wrong of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification. That person must be alive. Hence, not only does an action of defamation not survive for or against the estate of a deceased person, but a statement about a deceased or unborn person is not actionable by the suit of his relatives, however great their pain and distress, unless the statement is in some way defamatory of them., The offence of defamation has been defined under Section 499 of the Indian Penal Code, which reads as follows: 499. Defamation. Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1. It may amount to defamation to impute anything to a deceased person if the imputation would harm the reputation of that person if living and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2. It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3. An imputation in the form of an alternative or expressed ironcally may amount to defamation. Explanation 4. No imputation is said to harm a person's reputation unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. First Exception. Imputation of truth which public good requires to be made or published. It is not defamation to impute anything which is true concerning any person if it is for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception. Public conduct of public servants. It is not defamation to express in good faith any opinion whatsoever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. Third Exception. Conduct of any person touching any public question. It is not defamation to express in good faith any opinion whatsoever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further. 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 enquiry in open Court preliminary 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 whatsoever 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. Sixth Exception. Merits of public performance. It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. Explanation. A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Seventh Exception. Censure passed in good faith by a person having lawful authority over another. It is not defamation for a person having over another any authority, either conferred by law or arising out of a lawful contract, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Eighth Exception. Accusation preferred in good faith to an authorised person. It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject‑matter of the accusation. Ninth Exception. Imputation made in good faith by a person for protection of his or another's interests. It is not defamation to make an imputation on the character of another provided that the imputation is made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. Tenth Exception. Caution intended for the good of the person to whom it is conveyed or for public good. It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution is intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good., Section 500 of the Indian Penal Code, which provides for punishment for defamation, reads as follows: 500. Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both., Essential Ingredients to Constitute the Offence of Defamation: In the case of Jeffrey J. Diermeier versus State of West Bengal (2010) 6 SCC 243, the Honourable Apex Court observed that to constitute defamation under Section 499 of the Indian Penal Code, the following ingredients must be fulfilled: there must be an imputation and such imputation must have been made with the intention of harming, or knowing or having reason to believe that it will harm, the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It is sufficient to show that the accused intended, knew, or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the alleged imputation., The Honourable Apex Court in the case of Subramanian Swamy versus Union of India (2016) 7 SCC 221, while analysing the constitutionality of the offence of defamation, also enumerated the essentials of Section 499 of the Indian Penal Code, which are as follows: For the aforesaid purpose, it is imperative to analyse in detail what constitutes the offence of defamation as provided under Section 499 of the Indian Penal Code. To constitute the offence, there must be an imputation and it must have been made in the manner provided in the provision with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to the reputation of a person is the basis on which the offence is founded and mens rea is a condition precedent to constitute the said offence. The complainant must show that the accused intended, knew, or had reason to believe that the imputation made by him would harm the reputation of the complainant. The criminal offence emphasises the intention or harm. Section 44 of the Indian Penal Code defines 'injury' as any harm whatsoever illegally caused to any person, in body, mind, reputation or property. Thus, the word 'injury' encapsulates harm caused to the reputation of any person. It also takes into account harm caused to a person's body and mind. Section 499 provides for harm caused to the reputation of a person, that is, the complainant., The Honourable Apex Court in Google India Private Limited versus Visakha Industries and Others (2020) 4 SCC 162 also examined the ingredients of Section 499 as well as the meaning of the terms 'making of an imputation' and 'publishing of an imputation'. The relevant observations are reproduced hereunder: Under the said provision, the Law Giver has made the making or publishing of any imputation with a requisite intention, knowledge or reason to believe, as provided therein, that the imputation will harm the reputation of any person, which are the essential ingredients of the offence of defamation. The meaning to be attached to the words 'making of an imputation' and 'publishing of an imputation' was clarified in a recent judgment reported in Mohd. Abdulla Khan versus Prakash K. (2018) 1 SCC 615. It was held that to constitute an offence of defamation, a person must make some imputation concerning any other person: (i) Such imputation must be made either (a) with intention, (b) with knowledge, or (c) having a reason to believe that such imputation will harm the reputation of the person against whom the imputation is made; (ii) Imputation could be by (a) words, either spoken or written, (b) by making signs, or (c) visible representations; (iii) Imputation could be either made or published. The difference between making an imputation and publishing it is illustrated as follows: If X tells Y that Y is a criminal, X makes an imputation. If X tells Z that Y is a criminal, X publishes the imputation. The essence of publication in the context of Section 499 is the communication of a defamatory imputation to persons other than the persons against which the imputation is made., Therefore, the essence of publication of content which is defamatory in nature, for the purpose of applicability of Section 499 of the Indian Penal Code, is the communication of such defamatory content to persons other than the person who is being defamed., To reiterate once again, in today's world, when the law with regard to posting of defamatory content by way of retweeting or reposting is still not settled and is evolving, the Court has to adjudicate a case on the basis of the test of a reasonable common man and the social background of the parties concerned, along with the relevant facts and circumstances of the case, which will become the edifice of finding for the purpose of evolving jurisprudence in the field of law, not yet effectively treaded or adjudicated upon., The Honourable Apex Court in the case of Iveco Magirus Brandschutztechnik GMBH versus Nirmal Kishore Bhartiya and Others (2023) SCC OnLine SC 1258, after considering several judicial precedents, made the following observations on the issue of summoning an accused for an offence of defamation: Thus, when a Magistrate taking cognisance of an offence proceeds under Section 200 based on a prima facie satisfaction that a criminal offence is made out, he is required to satisfy himself by looking into the allegations levelled in the complaint, the statements made by the complainant in support of the complaint, any documentary evidence in support of the allegations produced by him, as well as statements of any witness the complainant may choose to produce. Although we are not concerned with Section 202 here, if an inquiry or investigation is conducted thereunder, the reports should also be examined by the Magistrate before issuing process under Section 204. However, there can be no gainsaying that at the stage the Magistrate decides to pass an order summoning the accused, the examination of the material should not be intended to form an opinion as to whether the materials are sufficient for a conviction; instead, he is required to form an opinion whether the materials are sufficient for proceeding, as the title of the relevant chapter indicates. Since the accused does not enter the arena at that stage, the question of the accused raising a defence to thwart issuance of process does not arise. Nonetheless, the fact that the accused is not before the Magistrate does not mean that the Magistrate need not apply his judicial mind. Nothing in the applicable law prevents the Magistrate from applying his judicial mind to other provisions of law and to ascertain whether, prima facie, an offence, as defined in Section 2(n) of the Criminal Procedure Code, is made out. Without such opinion being formed, the question of proceeding as in Section 204 does not arise. The law requires the Magistrate to consider only those materials that are brought before him in terms of Sections 200 and 202 as well as any applicable statutory provision, and he is precluded from considering any material not brought on record in a manner permitted by legal process. Consequently, while deciding whether to issue process, the Magistrate may form a view by looking into the materials before him. If such materials disclose a complete defence under any of the Exceptions, nothing prevents the Magistrate, upon application of judicial mind, from according the benefit of such Exception to prevent a frivolous complaint from triggering an unnecessary trial. Since initiation of prosecution is a serious matter, it is the duty of the Magistrate to prevent false and frivolous complaints from consuming precious judicial time. If the complainant warrants dismissal, the Magistrate is statutorily mandated to record brief reasons. Conversely, if from such materials a prima facie satisfaction is reached that an offence has been committed and there is sufficient ground for proceeding, the Magistrate is under no other fetter from issuing process. Upon a prima facie case being made out, the Magistrate would have no option but to commit the accused for trial, as held in Chandra Deo Singh (supra). In the context of a complaint of defamation, at the stage the Magistrate proceeds to issue process, he must form his opinion based on the allegations in the complaint and other material obtained through the process referred to in Sections 200 and 202 as to whether sufficient ground for proceeding exists, distinct from sufficient ground for conviction, which must be determined at trial. Although there is nothing in law that expressly mandates the Magistrate to consider whether any of the Exceptions to Section 499 of the Indian Penal Code is attracted, there is no bar either. What is excepted cannot amount to defamation on the terms of the provision. It is recognised that it may be difficult to form an opinion that an Exception is attracted at that juncture because a defamation complaint is not a regular phenomenon in criminal courts and may lack detailed contents or sworn statements, providing an escape route for the accused at the threshold. Nevertheless, the Magistrate is not precluded from considering any of the Exceptions; being legally trained, he is expected to have a clear idea of what constitutes defamation. If, in the unlikely event, the contents of the complaint, supporting statements on oath, and investigation reports reveal a complete defence under any of the Exceptions to Section 499 of the Indian Penal Code, the Magistrate, upon due application of judicial mind, would be justified in dismissing the complaint, and such dismissal would not amount to an act in excess of jurisdiction if supported by reasons., Reputation is a form of honour and honour has many aspects. The recognition of reputation as a significant social asset is fundamental, and the Courts play an important role in ensuring equal protection to every individual, regardless of their standing in society., By analysing the limited sphere of jurisprudence evolved to date regarding retweet or repost being covered under the meaning of publication, the Supreme Court of India notes that the law on defamation, on the one hand, protects the complainant's reputation and, on the other hand, safeguards the fundamental right of the person alleged to be an accused to freedom of expression. Freedom of expression and the use of cyberspace and social media for this purpose, especially by persons who hold positions of authority and have a huge following on their social media accounts, needs to be kept in mind while balancing the contrasting approaches to be adopted towards both parties when they come to a Court to determine their rights., In addressing a democratic community, it is crucial to emphasize that freedom of speech, while a fundamental right, does not grant individuals the license to inflict harm or tarnish the reputation of others. This distinction becomes particularly pertinent when grappling with the court's dilemma of striking a balance between the cherished value of free expression and the equally essential need to protect an individual's reputation., Thus, a Court, while weighing the value of reputation of one party and the freedom of expression of the other, must keep in mind that in a democratic setup, a complainant may be vulnerable in a given set of circumstances in face of his competing interest with that of the accused. The principle of equal protection under the law mandates that the courts consider the plight of every individual, regardless of their societal status. In rendering equal protection, the Court must balance the right of free speech with the need to prevent unjust harm to reputation. The injurious falsehood of a statement will definitely invite defamation and loss of reputation., Whether a person has achieved great heights in society or finds himself marginalised, considering himself as the last and least in terms of access to a court of law to fight for safeguarding his reputation, his right to fair treatment and protection from unwarranted harm remains paramount before any court of law while adjudicating. This approach and duty becomes more critical when the complainant may be pitted against a person who may have more power, influence and followers., The evolution of technology and the pervasive influence of social media have transformed the landscape through which reputational harm can occur. As communication has shifted from traditional forms of speech to the digital space, the law must adapt to effectively address the new weapons of harm to reputation, particularly in the context of posts and reposts on social media platforms. Unlike private conversations, digital content posted and reposted on social media has the potential for immediate and widespread dissemination. The virality and permanence of online content amplifies its impact, making it a tool for causing reputational harm., The use of cyberspace, as in the present case—the social media platform of Twitter (now X)—has seen rapid development. Users of cyberspace, for the purpose of posting their content even by way of retweeting, should remain conscious of a keen sense of danger in this new technological method of spreading information and ideas. The content shared on such platforms spreads rapidly, and any content involving the reputation of a person will attract considerable harm if he is negatively portrayed on the basis of content that is scandalous or indictable., Twitter (now X), as a platform, serves as a megaphone that amplifies messages and broadcasts them to an extensive audience. It provides the ability to communicate with millions of people at the stroke of a button. The immediacy and accessibility of social media means that defamatory statements disseminated through tweets can rapidly reach individuals worldwide. The audience includes not only followers of the public figure but also anyone who has access to the social media platform and who may come across or be exposed to the tweet. Words that are posted, which may nowadays be in the form of a video, will amount to publication and will be actionable if they contain defamatory content or malice. Needless to say, the extensive circulation of such content in public can cause considerable injury to a person's reputation. Such written and posted content has the inherent quality of being permanent by virtue of the fact that a man's reputation suffers while the video remains available on the public platform and in cyberspace., The number of followers or the reach of an individual's online presence can significantly magnify the impact of a post or repost. As a result, the law needs to evolve to navigate the complexities of this digital era. The concept of publication, traditionally associated with printed materials, must be re-examined in the context of virtual platforms where information can reach a vast audience in seconds. Moreover, the legal system should be attuned to the dynamics of social media influence. Pace of spread of scandalous content: from the echo of whispers in the pre‑digital era compared to the spread at lightning speed of digital dissemination in the digital era., While deciding such cases, the Courts have to realise that in this advanced age of technology, defamatory content that is scandalous in nature spreads like a wildfire, leading to instant injury to a person's reputation by the sheer extent of its reach to millions within minutes, unlike the whispered scandal of the past., In other words, when a public figure tweets a defamatory post, the ramifications extend far beyond a mere whisper in someone's ears. In social media, where information travels at lightning speed and has the potential to reach a global audience, the act of tweeting transforms the communication into a form of public publication. The audience, in this context, is not restricted to those physically present or within immediate earshot but encompasses the vast and diverse online community. In the digital age, the boundaries of publication have expanded, and the implications of defamation are heightened due to the potential of widespread dissemination., The force of causing injury to reputation in virtual realms can be particularly potent, with the impact transcending physical boundaries and reaching a global audience. The virtual space provides a platform where individuals, especially those with significant influence, can disseminate information rapidly, leading to swift and widespread consequences for a person's reputation., The force of a virtual blow is often exemplified by the sheer number of followers an individual commands on digital platforms. The larger the following, the greater the potential reach and influence of their virtual actions. In the virtual realm, a damaging statement or action can reverberate across social media, online forums, and other digital spaces, magnifying its impact on the targeted individual's reputation., Unlike physical injury, which may be localized and limited in scope, virtual injury can have far‑reaching and long‑lasting effects. The force of a virtual blow is intricately tied to the dynamics of online engagement, where the virality and permanence of digital content contribute to the enduring nature of reputational harm., Recognising and addressing virtual injury requires an understanding of the power dynamics inherent in the digital landscape. Legal frameworks and societal norms must adapt to consider the implications of reputational harm inflicted through virtual modes, acknowledging the influence exerted by individuals with substantial online followings., When a person makes a smart move to dodge law, the Courts and the laws have to be smarter to catch that smartness. Courts play a pivotal role in this process, acting as the vanguards of justice. They must not only interpret the law but also possess the foresight to anticipate evolving strategies aimed at circumventing legal consequences.
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It has to be noted that a person retweeting a defamatory content, which has the potential of causing reputational injury to a person, cannot wriggle out of his responsibility by merely contending that it was a retweet and not the original tweet. Accepting this view as canvassed by the petitioner would amount to permitting people to retweet any objectionable or defamatory content in cyberspace and social media platforms, without any responsibility being attached to their act of posting such content on social media even if the content has the potential to cause reputational injury to another., The retweeting of the content in the present case which was originally created by some other person who did not have as much public following as the present petitioner, by virtue of the petitioner retweeting that content, represented to the public at large that he believed the content created by another person to be true. It has to be held so since the general public would ordinarily believe that the person retweeting such content on his own Twitter account, must have understood, verified and believed the content to be true. The critical issue to be taken note of in such circumstances is the fact that the petitioner who retweeted the content had much larger following than the original content creator, thus, having multiplied potential of spreading the defamatory content to a much larger audience., The freedom of expression is essential in a democratic setup to spread one's opinion, however, it cannot extend to the extent of affecting the right of the people not to be defamed., In case, the act of retweeting or reposting is allowed to be misused since it is still considered to be a vacant grey area of law where the sapling of jurisprudence as to whether retweeting defamatory content will be considered publication or not is yet to take place, it will encourage people with ill intentions to misuse this vacant field of law and therefore, despite retweeting the defamatory content, the accused can thereafter conveniently take a plea that he had merely retweeted a content., In this background, the Delhi High Court holds that retweeting or reposting defamatory content, without any disclaimer as to whether the person so retweeting agrees or disagrees or has verified the content so posted or not, and as to whether he projected to the world at large, who care to follow him, that he believes the content to be true so shared, a person would be republishing the original defamatory content which has the potential of lowering the moral or intellectual character or credit of a person., A sense of responsibility has to be attached while retweeting content about which one does not have knowledge. Since in case reputational injury is caused by defaming a person, the person doing so by retweeting must attract penal, civil or tort action against him in absence of any disclaimer., If we assume that the law exclusively attributes harm to the original author of a post in cases of defamation, a potential loophole emerges. Any case has to be adjudicated in its accompanying circumstances and the background of not only the facts but the actors of the act in question. When a vast majority follows a particular person on Twitter, not all may be aware of the nitty‑gritties of tweets or retweets. Most common persons who follow a person, who may be an influencer for a particular segment of community will find it enough reason to believe a content just because the content is posted on account of a particular person., The Delhi High Court, while trying to lay down foundational stone on jurisprudence of retweeting, and whether it amounts to publication or not for the purpose of Section 499 of the Indian Penal Code, presents the following scenario to explain the reasons weighing in the Delhi High Court's mind as to why this Court holds that retweeting amounts to publication for the purpose of Section 499 of the Indian Penal Code: Consider an individual, Z, who commands a specific group of followers, who regularly engage with his tweets. Z could potentially evade legal repercussions by instructing one of his followers to post defamatory content or by creating a fake account for the same purpose. Subsequently, the content is reposted on Z's account, garnering a substantial audience. In such a scenario, the crux of the concern lies in the fact that if the law only holds the original author accountable, it creates an avenue for individuals like Z to escape the clutches of law. Despite being the one actively disseminating the defamatory material on his account, Z might escape punishment if the focus is solely on the initial creator of the content. If the law fails to address situations where the true culprit is the one amplifying and reposting defamatory content, it undermines the very purpose of defamation laws that is to protect individuals from false and damaging statements., Therefore, the Delhi High Court is of the view that the rigours of Section 499 of the Indian Penal Code will be attracted prima facie in case a person retweets or reposts the alleged defamatory remarks or content, for the purpose of the general public to see, appreciate and believe., This can also be explained by way of the following illustrations, which weigh in the mind of this Court and have been purely created by this Court for the purpose of explanation, which are not exhaustive but suggestive in nature: (a) B posts defamatory content about Z on his social media account. A repostes the defamatory content, disseminating it to a larger audience. The act of both A and B is defamation, unless it falls within one of the exceptions or A posts a disclaimer in the repost that the content has not been verified regarding its correctness/genuineness. (b) B, a well‑known influencer, shares a false accusation against Z on her blog. A, a follower, reblogs the content, amplifying its reach. A's and B's act constitutes defamation, unless it falls within one of the exceptions, or A posts a disclaimer in the retweet that the content has not been verified regarding its correctness/genuineness. (c) B tweets derogatory statements about Z, a public figure. A, another user, retweets B's content, making it visible to a broader audience. A's and B's action is defamation, unless it falls within one of the exceptions or A posts a disclaimer in the retweet that the content has not been verified regarding its correctness/genuineness. (d) B publishes a misleading article about Z on an online forum. A, a forum member, reposts the article, contributing to its wider circulation. A's and B's action is defamation, unless it falls within one of the exceptions or A posts a disclaimer in the repost that the content has not been verified regarding its correctness/genuineness. (e) B uploads an edited video falsely portraying Z engaging in inappropriate behavior. A, a subscriber, shares the same video on a video‑sharing platform, expanding its viewership. A's and B's action is defamation, unless it falls within one of the exceptions or A posts a disclaimer while sharing the video that the content has not been verified regarding its correctness/genuineness., The assertion that the petitioner simply retweeted defamatory content without any intention to harm the reputation of respondent no. 2 raises a complex legal issue, especially considering the political standing and maturity of the petitioner, who also holds the position of Chief Minister of the State of Delhi., The background of the petitioner, being a Chief Minister, necessitates an acknowledgment of the inherent sense of responsibility that comes with such a significant political role. As a leader with political standing and maturity, the petitioner is presumed to be aware of the potential impact of his actions, including retweets, on the public perception. When a public figure, particularly one with a political standing, tweets or retweets a defamatory post, the stakes and repercussions escalate given the broader implications on society. The audience, therefore, becomes the citizenry at large, whose opinions and decisions may be influenced by the information they consume, including defamatory statements published on social media., In other words, the argument of mere retweeting without harmful intent has to be weighed against a public figure's duty to exercise due diligence and care in disseminating information on social media platforms., Where millions of people follow a particular person such as the petitioner herein on social media platforms such as Twitter (now X), anything which is posted by the petitioner on his account is for public notice i.e. notice for all the people who care to follow him., Let us consider a scenario where an original author Z posts defamatory content against Y on his Twitter (now X) account. The same is retweeted by thousands of users on their profiles. However, interestingly, one such retweet is from a public figure or influencer with over 10 million followers, whereas the rest of retweets are from those who do not command such levels of popularity. Now, would every such person who retweets the defamatory content be liable to face action for defamation?, In this Court's opinion, while all acts of retweeting may amount to publication of defamatory imputation, the extent of harm caused to the reputation of the aggrieved person would depend on the level of influence and the potential reach of the individual who retweets such defamatory imputation., To illustrate, the reputational harm caused by virtue of retweeting defamatory content, by a person with a mere 10 followers, in contrast to another individual with a substantial following of over 10 million, would be undoubtedly different. The gravity of the situation would also differ substantially in such cases especially in view of explanation 4 of Section 499 of the Indian Penal Code which clearly provides that for an imputation to be defamatory in nature so as to harm a person's reputation, it must inter alia directly or indirectly, in the estimation of others, lower the moral or intellectual character or credit of the person who is being defamed., Therefore, the social media reach as well as the social and political standing of the person retweeting the defamatory imputation is of great relevance. If a public figure with millions of followers retweets any defamatory content, the impact on the aggrieved person's reputation and his character will be much greater, since the larger audience and the influence wielded by a public figure would amplify the spread and longevity of the defamatory content. Such a person's influence may also make his audience believe the defamatory content to be true, thereby lowering the reputation of the aggrieved person., Conversely, if a defamatory imputation is retweeted by an individual with negligible followers or very limited influence, the impact on the complainant's reputation may be less severe or may not even be of a nature to fall within the ambit of offence of defamation, since the limited or negligible reach of such a person would reduce the potential for the defamatory content to gain any significance among the right‑thinking members of the society, this of course, would be a matter of trial as to whether a person's retweet of defamatory content, with following of ten persons or zero persons would be sufficient to attract action under Section 499 of the Indian Penal Code., If one analyses the facts of the present case in light of aforesaid observations, it is to be noted that in this case also, respondent no. 2 had examined two witnesses at the pre‑summoning stage who had deposed that they followed the present petitioner on Twitter, and they had seen the YouTube video which the petitioner had retweeted on his Twitter account, and after hearing the allegations contained in that video against respondent no. 2 herein, they had immediately called respondent no. 2 to express their dismay., Certainly, the harm inflicted upon the reputation of respondent no. 2, as claimed, by the actions of the petitioner herein, who not only commands a substantial social media following but also holds the position of the Chief Minister of Delhi, would be exponentially more than that resulting from thousands of retweets by other social media users. Thus, the petitioner herein cannot take a defence that the complainant had chosen only to prosecute him for retweeting the alleged defamatory imputation, even though several other thousands of social media users had retweeted the same original tweet containing hyperlink/URL of defamatory video., Therefore, though every retweet of defamatory imputation would ordinarily amount to publication under Section 499 of the Indian Penal Code, it is ultimately for the person so aggrieved to decide as to which retweet caused more harm to his reputation, and inter alia lowered his moral or intellectual character or his credibility among the members of society. This also will be decided by the learned Trial Court on the basis of material before it as to whether the retweet with its accompanying circumstances had the potential to defame the complainant concerned., In the present case, the petitioner had retweeted the original tweet of Shri Dhruv Rathee, and the said retweet contained the embedded hyperlink/URL to the allegedly defamatory video which had been uploaded on the YouTube channel owned and run by Shri Dhruv Rathee., While the petitioner may plead absence of any malicious intent in the act of retweeting, the Delhi High Court has to consider the responsibility that accompanies the petitioner's political and social standing. Needless to say, the large social media following of a Chief Minister of a State undoubtedly implies a wider reach, making any retweet a form of public endorsement or acknowledgment., When a political person of such standing or a public figure or a social influencer posts some content on his social media account, it can be reasonably believed by the Delhi High Court while adjudicating such cases, at the initial stage of a case where summoning is in question, that he did understand the repercussions and implications of posting such content and the corresponding harm it can cause to the person aggrieved. In this Court's opinion, the online interactions and engagement on Twitter, which involves publication of defamatory statements and content, and sharing such content with others by retweeting will surely attract liability since it would amount to posting defamatory content as one's own by believing it to be true and thus, sharing it with the public at large., The original author of the alleged defamatory content will also be liable for any action if a complaint is filed against him. However, it is the choice of the complainant, who may decide as to whether the person who retweeted such content had caused him more damage or not, since he had more friends or followers, by sharing a content., In the present case, the defamatory video in question, posted by Shri Dhruv Rathee and retweeted by the petitioner herein, was aimed at exposing the IT Cell of BJP and as alleged in the video, respondent no. 2 was the second‑in‑command of the IT Cell of BJP and was offering bribes for the purpose of defaming Shri Dhruv Rathee. Taking note of the same, the argument that the petitioner was not aware that the contents of the material retweeted by him would cause harm to the reputation of respondent no. 2 cannot be appreciated at the stage of summoning itself, since the adjudication with regard to determination of whether the petitioner had acted responsibly or not, and whether as a political person of long standing, he could have had the knowledge that the content being posted by him would cause defamation or reputational injury to the respondent, is a matter of trial., Further, if the petitioner herein wants to justify his act by any of the defences or exceptions, it can be done only at an appropriate stage of trial and not when he has just received summons and where prima facie, the case does not fall under any of the exceptions of Section 499 of the Indian Penal Code. Also, the question regarding an intentional injury or unintentional injury to a complainant's reputation by an accused can only be decided during the course of trial by leading evidence by both the parties. To prove actual defamatory injury by impairment of reputation cannot be decided at the threshold of summoning, when only a prima facie view of the matter is to be taken by the learned Magistrate., The original author of the defamatory content i.e. Shri Dhruv Rathee along with another accused i.e. Shri Mahavir Prashad are already accused in Court Cases 5786/2018, which is pending trial before the learned Metropolitan Magistrate No.01, South‑East, Saket Court, Delhi., Further, whether it was his duty or not, as a political person of long standing, to have taken some steps to verify the story or allegations against the respondent before posting it on social media, which would make an impact on a huge section of society and corresponding effect on the reputation of the person concerned who is at the centre stage of the defamatory content, will also be considered during the course of trial., Whether the impugned publication and the alleged defamatory content will help the petitioner as a political person or not, is not in the Delhi High Court's domain to go into, at this stage. Thus, regardless of whether posting such content or filing a defamation case serves the interests of the petitioner or the respondent in gaining political mileage, the Delhi High Court must adjudicate a criminal matter solely based on the legal provisions outlined in the relevant sections of criminal law and in accordance with established judicial precedents. The decision should be made without any consideration of personal agendas or the potential impact or implications on the political landscape at the threshold of journey of a case i.e. summoning on the basis of adequate material on record., The present case is still at the stage of the accused having been summoned. He has challenged the issuance of summons and the summoning order and has raised the issues of illegality in issuance of summons which have been adjudicated upon by the Delhi High Court in the preceding paragraphs. The issues have been decided against the petitioner herein. Resultantly, the Delhi High Court finds no reason to interfere with the order of summoning passed by the learned Trial Court. The petitioner herein will have opportunity to raise contentions before the learned Trial Court during the course of trial which will be decided as per law, including the issue as to whether for the purpose of trial case under Section 499 of the Indian Penal Code is made out or not. At this stage, there was sufficient material before the Court concerned to summon the petitioner under Section 499 of the Indian Penal Code., It is for the Trial Court Judge to determine at a pre‑summoning stage what is capable of being defamatory for the purpose of summoning. Whether the content has been proved to be defamatory or not is a matter of trial., At times, it is difficult to erase the reputational injury from public memory, as the tweets may be deleted but perceptions are difficult to be deleted from the minds of the community., The Delhi High Court, thus, for the purpose of adjudicating the present case, holds that retweeting a content, which is allegedly defamatory, on the Twitter account and projecting it to be as if his own views, will prima facie attract the liability under Section 499 of the Indian Penal Code, for the purpose of issuance of summons., Therefore, the Delhi High Court finds no infirmity with the impugned orders passed by the learned Trial Court as well as learned Sessions Court., Accordingly, the present petition stands dismissed., It is, however, clarified that the observations made hereinabove qua the present complaint case are solely for the purpose of deciding the instant petition challenging the summoning orders, and the same shall not be construed as opinion of the Delhi High Court on the merits of the case, which will be adjudicated upon during the course of trial., The judgment be uploaded on the website forthwith.
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Arising out of Police Station case number 1551, year 2019, Thana Patna, Complaint Case, District Patna. Mr Rahul Gandhi, Petitioner, versus the State of Bihar through the Secretary, Department of Home, Old Secretariat, Patna (Bihar) and others., Appearances: For the petitioner – Mr Ansul, Advocate. For the State – Mr P K Shahi, Advocate General. For Opposite Party No.2 – Mr S D Sanjay, Senior Advocate, Mr Aalok Kumar, Advocate, Mrs Priya Gupta, Advocate, Mrs Sushmita Mishra, Advocate., Heard on 24-04-2023: Sri Ansul, learned counsel for the petitioner; Sri P K Shahi, learned Advocate General appearing for the State of Bihar; and Sri S D Sanjay, learned senior counsel appearing for the complainant/opposite party No.2. The petitioner has filed a second supplementary affidavit in the matter and has served copies of the same upon the learned Advocate General and the learned senior counsel for opposite party No.2., It has been argued by learned counsel for the petitioner that once the petitioner has been tried and convicted by the subordinate court at Surat, Gujarat, for the same offence – his statement made in public – the present prosecution in this Patna High Court Criminal Miscellaneous Case No. 73323 of 2019 (2) dated 24-04-2023 for the same offence cannot proceed any further., Learned senior counsel for opposite party No.2 has submitted that he will file a counter-affidavit in the matter and will argue the matter in detail. He has relied upon a judgment and order dated 05-07-2022 of the Jharkhand High Court passed in Criminal Miscellaneous Petition No. 152 of 2020, by which the application of the present petitioner for quashing of the First Information Report lodged on the basis of the aforesaid statement of the petitioner has been dismissed., Learned Advocate General appearing for the State has taken to this Patna High Court Article 20(2) of the Constitution of India and has submitted that the prosecution of the petitioner for the same offence for which he was tried and convicted by the Surat subordinate court and at different places cannot continue., Learned counsel for the petitioner has submitted that the judgment of the Jharkhand High Court was passed much before the conviction of the petitioner by the Surat subordinate court and therefore the question whether the prosecution of the petitioner is barred under Section 300 of the Criminal Procedure Code has not been considered. In that view of the matter, this application needs a full-fledged hearing., Patna High Court Criminal Miscellaneous Case No. 73323 of 2019 (2) dated 24-04-2023 is listed for further hearing on 15-05-2023. Till the next date of hearing, further proceeding of the subordinate court in connection with Complaint Case No. 1551(C) of 2019 shall remain stayed.
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By way of present appeal, the appellant Union of India has challenged the judgment and order dated 02.08.2010 passed by the Delhi High Court, in Writ Petition (Civil) No. 1006 of 2008, whereby the Delhi High Court had dismissed the Writ Petition filed by the appellant and confirmed the judgment and order dated 08.06.2007 passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal) in Original Application No. 2228 of 2006., The respondent Indian Navy Civilian Design Officers Association had by way of filing the Original Application No. 2223/2006 before the Central Administrative Tribunal, challenged the decision of the appellant rejecting their representation for the grant of pay scale of Rs. 7500-12000 to the Junior Design Officers as allowed to the Civilian Technical Officers (Design), consequent to the implementation of the Fifth Central Pay Commission. As per the case of the respondent Association, the cadre of Design officers in the Indian Navy was created in the year 1965 in order to meet the functional requirements of the Navy regarding specific assignments to the Naval dockyards, Training Establishments, Directorate of Naval Design and other Technical Directorates of Naval Headquarters. The drawing staff in the Navy belonged to diverse disciplines such as Construction, Electrical, Engineering and Armament. So far as the disciplines of Construction, Electrical and Engineering were concerned, the Group B gazetted posts were designated as Junior Design Officers (JDOs), and for Armament disciplines, the Group B gazetted posts were designated as Civilian Technical Officers (CTOs) (Design). The Recruitment Rules governing the JDOs notified by Statutory Regulatory Order 367 dated 08.12.1996, were amended by Statutory Regulatory Order 246 dated 21.11.2002. The Recruitment Rules for the post of CTOs (Design) were notified by Statutory Regulatory Order 132 dated 12.05.1982., As per the further case of the respondent Association, up to the Fifth Central Pay Commission, all the pay scales of all the disciplines and all grades were the same; however, after the recommendations of the Fifth Central Pay Commission, the pay scale of Rs. 7500-12000 was fixed for the CTOs, whereas the pay scale of Rs. 7450-11500 was fixed for the JDOs. Since the pay scales of the feeder cadre had remained the same in all the disciplines, the respondent Association had made representation to the appellant for the grant of revised pay scale of Rs. 7500-12000 to the JDOs as allowed to the CTOs (Design) consequent upon the implementation of the Fifth Central Pay Commission. The Ministry of Finance having rejected the respondent's proposal for upgradation of the pay scale, the respondent Association had filed the Original Application No. 1730 of 2003 before the Central Administrative Tribunal. The Tribunal, vide the order dated 01.11.2004, disposed of the said Original Application with direction to the appellant to consider the parity of pay scale of JDOs along with CTOs by evaluating their duties and responsibilities and to pass a detailed speaking order., The Ministry of Finance reconsidered the said representation of the respondent Association, however, again rejected the same by a speaking order on 07.04.2006. Being aggrieved by the said order, the respondent Association had preferred the Original Application No. 2228 of 2006 before the Central Administrative Tribunal, which came to be allowed vide the order dated 08.06.2007. The Tribunal set aside the order dated 07.04.2006 passed by the appellant Union of India and directed the appellant to grant to the JDOs the pay scale of Rs. 7500-12000 at par with Group B gazetted posts of CTOs (Design) from the same date as it was given to the Group B gazetted posts with all consequential benefits. The appellant, being aggrieved by the said order passed by the Tribunal, had filed Writ Petition (Civil) No. 1006 of 2008, which came to be dismissed by the Delhi High Court vide the impugned order., The main question that falls for consideration before the Supreme Court of India is whether the Central Administrative Tribunal and the Delhi High Court were justified in equating the posts of Junior Design Officers with Civilian Technical Officers, and in fixing the pay scales of Junior Design Officers equivalent to that of Civilian Technical Officers, in utter disregard of the legal position settled by the Supreme Court of India in catena of decisions to the effect that the Courts should not interfere with the complex issues of evaluating the nature of duties and responsibilities of posts, and of fixing the pay scales, which task otherwise is best done by the expert bodies like the Central Pay Commission., The learned Senior Advocate Mr. R. Bala Subramanyam appearing for the appellant placed heavy reliance upon the decision of the Ministry of Finance dated 07.04.2006 and submitted that the posts of Junior Design Officers and Civilian Technical Officers are governed by two different sets of Rules. Accordingly, the qualifications for recruitment and promotion in the case of Civilian Technical Officers are higher than that of the Junior Design Officers. The probation period in case of Civilian Technical Officers is longer than that of Junior Design Officers. The duties and responsibilities attached to the posts of Civilian Technical Officers are more onerous, varied and challenging as compared to those of Junior Design Officers. The post of Civilian Technical Officers also exists in other streams like Research and Development in the revised pay scale of Rs. 7500-12000. These posts could not be given the lower pay scale of Rs. 7450-11500, as the feeder post of foreman exists in the said pay scale. The pay scales for the posts of the Junior Design Officers and Civilian Technical Officers were fixed on the basis of the specific recommendations of the Fifth Central Pay Commission, and therefore the Central Administrative Tribunal as well as the Delhi High Court had committed gross error in interfering with the same and in upgrading the pay scale of Junior Design Officers to put them at par with Civilian Technical Officers (Design)., Mr. R. Bala Subramanyam also placed on record the chart showing the promotional hierarchy of CTOs and JDOs in different CPCs. Principal Design Officer‑I – – 14500‑18300 37400‑67000, Principal Design Officer Principal Technical Officer (D)* 3700‑5000 12000‑16500 15600‑39100, Senior Design Officer GD‑I Senior Technical Officer (D) 3000‑4500 10000‑15200 15600‑39100, Senior Design Officer GD‑II 2200‑4000 8000‑13500 15600‑39100, Civilian Technical Officer (D) 2000‑3500 (upgraded to 2500‑4000 in 5th), Junior Design Officer 2000‑3500 (upgraded to 2375‑3500 in 5th), Chief D Man 2000‑3200 6500‑10500 9300‑34800, Senior D Man 1400‑2300 5000‑8000 9300‑34800, D Man 1200‑2040 4000‑6000 5200‑20200. * New grade of PTO(D) created in the cadre restructuring on 29 October 2020. # The posts of D Man in NAI cadre have been abolished in the cadre restructuring on 29 October 2020., The learned senior advocate Mr. Salman Khurshid appearing for the respondent Association made the following submissions. The Fifth Central Pay Commission had ignored the fact that from the very beginning, the posts of Junior Design Officers and Civilian Technical Officers (Design) carried the same pay scales, as they had the same duties and responsibilities. The post of Senior Foreman was granted the pay scale of Rs. 7450-11500, which was the pay scale granted to the Junior Design Officers, though the Junior Design Officers in the course of their duties had to supervise the work of Chief Draughtsman and Senior Foreman. The department itself had strongly supported the case of Junior Design Officers by putting a note dated 16 February 2005 recorded by the Joint Director who had recommended upgradation of the pay scale of Junior Design Officers. Up to the Fourth Central Pay Commission, both the posts were carrying the same pay scale. There would not have been any cascading effect if the pay scale of Junior Design Officers was upgraded, as the post of Junior Design Officers did not exist in the other organisations such as EME, MES and Air Force etc. and the financial implications were also not very big. The essential qualifications in the Recruitment Rules for Civilian Technical Officers (Design) and in the Recruitment Rules for Junior Design Officers were also more or less the same and the promotional avenues in both the cadres were also similar., Before adverting to the rival contentions raised by the learned counsels for the parties, it deserves to be noted that the power of judicial review of the High Courts in the matter of classification of posts and determination of pay scale is no more res integra. It has been consistently held by the Supreme Court of India in a plethora of decisions that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and the interference of the Court was absolutely necessary to undo the injustice., In State of U.P. and Others Vs. J.P. Chaurasia and Others, while answering the questions as to whether the Bench Secretaries in the High Court of Allahabad were entitled to the pay scale admissible to the Section Officers and whether the creation of two grades with different scales in the cadre of Bench Secretaries who were doing the same and similar work was violative of the right to have equal pay for equal work, the Supreme Court of India observed as under: The first question regarding entitlement to the pay scale admissible to Section Officers should not detain us longer. The answer to the question depends upon several factors. It does not just depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires, among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the executive Government. It must be determined by expert bodies like the Central Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Supreme Court of India should normally accept it. The Supreme Court of India should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration., The afore‑stated ratio was followed by the Supreme Court of India in Union of India and Others Vs. Makhan Chandra Roy. Again, in Secretary, Finance Department and Others Vs. West Bengal Registration Service Association and Others, the claim of Sub‑Registrars of West Bengal Registration Service claiming parity in pay scale with Munsiffs on the basis that Sub‑Registrars were conferred gazetted status, was examined by the Supreme Court of India. It was elaborately observed in paragraph 12 as under: We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Central Pay Commissions, etc. But that is not to say that the Supreme Court of India has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time‑consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include the work programme of his department, the nature of contribution expected of him, the extent of his responsibility and accountability in the discharge of his diverse duties and functions, the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties, the extent of powers vested in him, the extent of his dependence on superiors for the exercise of his powers, the need to co‑ordinate with other departments, etc. We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broad banding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g., method of recruitment, level at which recruitment is made, the hierarchy of service in a given cadre, minimum educational/technical qualifications required, avenues of promotion, the nature of duties and responsibilities, the horizontal and vertical relativities with similar jobs, public dealings, satisfaction level, employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub‑Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the Registration Service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and the Supreme Court's interference is absolutely necessary to undo the injustice., In State of Haryana and Others Vs. Charanjit Singh and Others, a three‑judge Bench in a referred matter considered whether the doctrine of equal pay for equal work was an abstract doctrine, and observed thus: Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of equal pay for equal work is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of equal pay for equal work has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by the competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of equal pay for equal work requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the Supreme Court of India must first see that there are necessary averments and there is a proof. If the Delhi High Court, on the basis of material placed before it, is convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. In all these cases, we find that the Delhi High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors., In Union of India through Secretary, Department of Personnel, Public Grievances and Pensions and Anr. Vs. T.V.L.N Mallikarjuna Rao, the Supreme Court of India reiterated the said position: The classification of posts and determination of pay structure comes within the exclusive domain of the executive and the Central Administrative Tribunal cannot sit in appeal over the wisdom of the executive in prescribing certain pay structure and grade in a particular service. There may be more grades than one in a particular service., In view of the afore‑stated legal position, it clearly emerges that though the doctrine of equal pay for equal work is not an abstract doctrine and is capable of being enforced in a Court of Law, the equal pay must be for equal work of equal value. The equation of posts and determination of pay scales is the primary function of the Executive and not of the Judiciary. The Supreme Court of India therefore should not enter upon the task of job evaluation which is generally left to the expert bodies like the Central Pay Commissions which undertake rigorous exercise for job evaluation after taking into consideration several factors like the nature of work, the duties, accountability and responsibilities attached to the posts, the extent of powers conferred on the persons holding a particular post, the promotional avenues, the statutory rules governing the conditions of service, the horizontal and vertical relativities with similar jobs etc. It may be true that the nature of work involved in two posts may sometimes appear to be more or less similar; however, if the classification of posts and determination of pay scale have reasonable nexus with the objective or purpose sought to be achieved, namely, the efficiency in the administration, the Central Pay Commissions would be justified in recommending and the State would be justified in prescribing different pay scales for the seemingly similar posts. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues or frustration due to longer duration of promotional avenues is also an acceptable reason for pay differentiation. It is also a well‑accepted position that there could be more than one grade in a particular service. The classification of posts and the determination of the pay structure, thus, falls within the exclusive domain of the Executive, and the Supreme Court of India or Central Administrative Tribunals cannot sit in appeal over the wisdom of the Executive in prescribing certain pay structure and grade in a particular service., So far as the facts of the present case are concerned, it is not disputed that the Recruitment Rules governing the Junior Design Officers are as per Statutory Regulatory Order 367 dated 08.12.1996, as amended by Statutory Regulatory Order 246 dated 21.11.2002, whereas the Recruitment Rules governing the Civilian Technical Officers (Design) are as per Statutory Regulatory Order 132 dated 12.05.1982. The probation period in case of Civilian Technical Officers is longer than that of Junior Design Officers. The duties and responsibilities of both the posts are different and the promotional avenues also have different duration and different criteria. There was not a single error, much less grave error pointed out by the learned Senior Advocate Mr. Khurshid, in the fixation of the pay scales for the Junior Design Officers and Civilian Technical Officers, which would have justified the interference of the Central Administrative Tribunal., Much emphasis was placed by the learned Senior Advocate Mr. Khurshid on the noting made by the Officer of the Naval Department in the file recommending pay scale of Junior Design Officers equivalent to that of Civilian Technical Officers; however, it may be noted that a noting recorded in the file is merely an expression of opinion by a particular officer, and by no stretch of imagination such noting could be treated as a decision of the Government., The powers of judicial review in matters involving financial implications are also very limited. The wisdom and advisability of the Supreme Court of India in matters concerning finance are ordinarily not amenable to judicial review unless a gross case of arbitrariness or unfairness is established by the aggrieved party., In that view of the matter, we are of the opinion that the Central Administrative Tribunal and the Delhi High Court had committed gross error in interfering with the pay scales recommended by the Fifth Central Pay Commission and accepted by the Union of India for the posts of Junior Design Officers and Civilian Technical Officers, and in upgrading the pay scale of Junior Design Officers making it equivalent to the pay scale of Civilian Technical Officers., Consequently, the impugned orders passed by the Delhi High Court and the Central Administrative Tribunal are quashed and set aside. The appeal stands allowed accordingly.
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Mr. Manoj Kumar M R, son of M R Ranganath, aged about 31 years, residing at No. 39/1, 2nd Cross, Near SBI Bank, Kamakshipalya, Bangalore (now in judicial custody, Central Prison Bangalore). Appellant (by Sri Hasmath Pasha, Senior Advocate for Sri Nasir Ali, Advocate). State of Karnataka, Byatarayanapura Police Station, Bangalore City (represented by Learned State Public Prosecutor, High Court of Karnataka, Bangalore). Miss Nandadeepa, daughter of Kuberrappa, aged about 27 years, residing at No. 1301, Pride Apartment, Deepanjalinagar, Mysore Road, Bangalore City-76. Respondent. Smt. Dhanalakshmi M, Advocate for Respondent 2., This criminal appeal is filed under Section 14-A of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, praying to set aside the order dated 21 December 2021 passed in Criminal Miscellaneous No. 11078/2021 by the Additional City Civil and Sessions Judge and Special Judge for Scheduled Caste and Scheduled Tribes Act, Bangalore City, and consequently enlarge bail in Crime No. 253/2021 of Byatarayanapura Police Station, Bangalore City, which is pending in Special Criminal Case No. 1851/2021 on the file of the Honorable Additional City Civil and Sessions Judge and Special Judge for Scheduled Caste and Scheduled Tribes Act, Bangalore City, for offences under sections 376, 313, 307, 417 of the Indian Penal Code and under sections 3(1)(w)(i)(ii) and 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act., This criminal appeal came on for admission through video conferencing on this day, and the Court made the following: This is an appeal filed under Section 14-A of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused has preferred this appeal challenging the order dated 21 December 2021 passed by the Additional City Civil and Sessions Judge and Special Judge, Bengaluru (Criminal Court Hearing No. 71), in Criminal Miscellaneous No. 11078/2021 rejecting his application for bail under Section 439 of the Criminal Procedure Code., Heard Sri Hasmath Pasha, learned Senior Counsel for the appellant; Sri K. S. Abhijith, learned Government Pleader for the High Court for the first respondent – State; and Smt. Dhanalakshmi M, learned counsel for the second respondent., Based on a report made by the second respondent, a First Information Report was registered in Crime No. 253/2021 by the first respondent – Police, for offences punishable under sections 376, 313, 307, 417 of the Indian Penal Code and the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Investigation was taken up and a charge sheet has now been filed., The allegations are that the appellant, while working as a manager in Bajaj Finance Limited, came in contact with the second respondent who was also working in the same company. It is alleged that as they were working together an acquaintance developed between them. The appellant told the second respondent that he loved her; one day he took her to Dr. Rajkumar International Hotel, Gandhinagar, Bengaluru. They spent a night in that hotel. At that time, the appellant told her that he would marry her and forcibly had intercourse with her. It is also stated that the appellant threatened that if she did not respond to his call, he would upload videos of their intimate moments on social media, and using this threat, he had sexual intercourse with her. She became pregnant in 2019, and this was brought to the notice of the appellant. The appellant took the second respondent to Kangaroo Care Hospital and forcibly got the pregnancy terminated. Later, he kept her in a rented house and used to go there and have intercourse with her very often. In 2020, she became pregnant once again and the pregnancy was terminated for the second time. On 10 July 2021, it is stated that when the appellant visited the second respondent's residence, he told her that he would not marry her as she belonged to the Madiga caste. It is also alleged that the appellant took a charger wire and tried to strangle her. She later attempted suicide, becoming desperate in life. Thus, making all these allegations, she made a report to the police on 6 September 2021., Sri Hasmath Pasha, learned Senior Counsel, would argue that in the report made by the second respondent, the last incident is shown as 10 July 2021, but the complaint was made to the police on 6 September 2021. The FIR is a clear attempt of afterthought. He refers to a document to show that after 10 July 2021, in the month of August 2021, the appellant approached Vanitha Sahayavani when he found it difficult to bear the torture of the second respondent. No doubt, the contents of the report and the charge sheet indicate that they spent intimate moments, but it also shows that the second respondent might have had consensual intercourse with the appellant. Even when they went to the hospital for the purpose of terminating the pregnancy, it was disclosed to the doctors that the second respondent was the wife of the appellant, and she gave consent for termination of the pregnancy. The age of the second respondent is 27 years and, in this view, the relationship between the appellant and the second respondent could be consensual. She knew the consequences of what she was doing. These being the facts and circumstances, at this stage, the appellant has been able to make out a prima facie case for grant of bail. The appellant has been in custody since 7 September 2021. Investigation is already completed. The appellant is ready to abide by any condition that the Additional City Civil and Sessions Judge may impose on him and in this view, bail should be granted. It is necessary that this appeal should be allowed and the appellant admitted to bail., Learned Government Pleader submits that the second respondent has given a statement under Section 164 of the Criminal Procedure Code which discloses that she was subjected to forcible intercourse by the appellant. Her pregnancy was also terminated forcibly. There are ample materials indicating the involvement of the appellant. He refused to marry the second respondent the moment he came to know that she belonged to the scheduled caste. Therefore, there is no case for granting bail., The learned counsel for the second respondent also submits that the appellant used to have intercourse with the second respondent by subjecting her to threat. On several occasions, the appellant had forcible intercourse with the second respondent even though she was unwilling. Her pregnancy was also terminated forcibly. The appellant developed a relationship with the second respondent in the guise of marrying her. It was a false promise to marry. In this view, the offence under Section 3(2) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act is made out. She also submits that because the appellant came to know about the case of the second respondent, he refused to marry her and this shows an offence under the Scheduled Caste and Scheduled Tribes Act being committed. Therefore, it is her submission that if bail is granted, the appellant will again resort to threatening the second respondent. Appeal is therefore to be dismissed., Having heard both sides and perusing the charge sheet, it prima facie appears that the relationship between the appellant and the second respondent since 2018 is consensual. The age of the second respondent is 27 years. She knew the consequences of having intercourse with the appellant. The appellant has produced a document which shows that both the appellant and the second respondent went to the hospital for the purpose of terminating the pregnancy and at that time, they introduced themselves as husband and wife. It is clearly stated in the letter issued by Kangaroo Care Hospital to the Assistant Police Commissioner, Kengeri Sub-Division, Bengaluru on 4 November 2021 that the appellant and the second respondent signed Form I and Form C for the purpose of terminating the pregnancy. They introduced themselves as husband and wife. They visited the hospital two or three times for the purpose of termination of pregnancy. It appears that she got her second pregnancy terminated voluntarily. So, if all these aspects are taken into consideration, it is difficult to arrive at a conclusion at this stage that the appellant used to have sexual intercourse with the second respondent forcibly., If according to the report made by the appellant, it was on 10 July 2021 that an incident took place and the appellant is said to have refused to marry the second respondent coming to know her caste and then attempted on her life. If this incident were to be true, it is not understandable why she kept quiet till 6 September 2021 without approaching the police. A document produced by the appellant shows that in August 2021, the appellant approached Vanitha Sahayavani to make a complaint against the second respondent being unable to bear her torture. If this aspect is taken into consideration, it may be stated at this stage that probably, coming to know about the complaint made by the appellant to Vanitha Sahayavani, she might have decided to approach police on 6 September 2021., Therefore, in the light of all these facts and circumstances, it is not difficult to arrive at a conclusion that the appellant has been able to make out a case for grant of bail. The Special Court ought to have considered these aspects of the matter at the time of deciding the application for bail. It appears that very routinely the Court below has come to the conclusion of denying the appellant's application for bail. The order of the trial court cannot be sustained for these reasons. Therefore the following: Appeal is allowed. The order passed by the Additional City Civil and Sessions Judge and Special Judge, Bengaluru (Criminal Court Hearing No. 71), dated 21 December 2021 in Criminal Miscellaneous No. 11078/2021 on the application of the appellant under Section 439 of the Criminal Procedure Code, is set aside. The said application is allowed. The appellant is ordered to be released on bail on executing a bond for Rs. 2,00,000 (Two Lakhs only) and providing two sureties to the satisfaction of the trial court. The appellant is also subjected to the following conditions: i. He shall not tamper with the evidence collected by the investigating officer and shall not threaten the witnesses. ii. He shall regularly appear before the trial court till the conclusion of the trial. iii. He shall not get himself involved in any other criminal case(s) in future. iv. If any complaint is received by the second respondent about an attempt by the appellant to influence her, the same will be viewed seriously for cancellation of bail.
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Judgment Reserved on 08 February 2023 and Judgment Delivered on 13 February 2023. Applicant: Suneeta Pandey. Opposite Party: State of Uttar Pradesh and Another. Counsel for Applicant: Ravindra Prakash Srivastava. Counsel for Opposite Party: Government Advocate Honourable Justice Shekhar Kumar Yadav., The learned counsel for the applicant, Ravindra Prakash Srivastava, and the learned Additional Government Advocate, R. P. Mishra, for the State were heard and the record was perused. The present application has been filed by the applicant, Suneeta Pandey, for quashing of the impugned order dated 03 December 2018, whereby the applicant was summoned to face trial under Section 376‑D and Section 212 of the Indian Penal Code in exercise of the power conferred under Section 319 of the Criminal Procedure Code, as well as the entire proceedings of Special Criminal (Sexual) Case No. 08 of 2016 (State versus Fanindra Mani Ojha alias Dablu and others) arising out of Case Crime No. 874 of 2015, pending in the court of the Additional District and Sessions Judge, First, Siddharth Nagar, with a further prayer to stay the further proceedings of the aforesaid case., According to the First Information Report, the incident took place on 24 June 2015 and the FIR was lodged against unknown persons on 28 July 2015 bearing Case Crime No. 874 of 2015, under Sections 363 and 366 of the Indian Penal Code, alleging that someone had enticed away the daughter of the informant, who was about fifteen years old, and taken her with him., The statement of the victim was recorded under Sections 161 and 164 of the Criminal Procedure Code. In her statement recorded under Section 164, the victim stated that the applicant was involved in the alleged incident, but the applicant was not named in the charge sheet. Subsequently, the opposite party filed an application under Section 319 of the Criminal Procedure Code for summoning the applicant, and the court below, vide order dated 03 December 2018, summoned the applicant to face trial for the offences under Sections 376‑D and 212 of the Indian Penal Code. This order is the subject matter of challenge before this Court., Counsel for the applicant submitted that the applicant is a lady and therefore no offence under Section 376‑D of the Indian Penal Code is made out against her, and that she has been wrongly summoned by the trial court. He further argued that the applicant was summoned in exercise of powers conferred under Section 319 of the Criminal Procedure Code solely relying upon the victim’s statement (PW‑1) and some other extraneous documents, which are not sufficient. He contended that, in view of the aforesaid facts and circumstances, the impugned order is vitiated by manifest error of law and amounts to a blatant miscarriage of justice, and therefore is liable to be quashed., Counsel for the applicant also argued that the trial court has grossly erred in summoning the applicant for the offence punishable under Section 376‑D of the Indian Penal Code and Section 212 of the Indian Penal Code. He submitted that a woman cannot commit rape and therefore she cannot be prosecuted for gang rape because a woman cannot be said to have the intention to commit rape. In support of this submission, he relied upon a decision of the Honourable Supreme Court in Priya Patel versus State of Madhya Pradesh and another, (2006) 3 SCC (Criminal) 96, and the judgment of the Apex Court in State of Rajasthan versus Hemraj and another reported in 2009 (12) SCC 402. He also submitted that the applicant cannot be held guilty even under the explanation to Section 376(2)(g) of the Indian Penal Code. The extract of Sections 375 and 376(2)(g) of the Indian Penal Code prior to amendment is as follows: 375. Rape – A man is said to commit \rape\ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: (i) Against her will. (ii) Without her consent. (iii) With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. (iv) With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (v) With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (vi) With or without her consent, when she is under sixteen years of age. Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. 376. Punishment for rape (1) Whoever, except in the cases provided for by sub‑section (1), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever, (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation I – Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection., The learned Additional Government Advocate opposed the submission of counsel for the applicant and submitted that the applicant has committed the alleged offence and it cannot be said that, being a lady, a woman cannot commit the offence under Section 376‑D of the Indian Penal Code. The judgments relied upon by counsel for the applicant are of no assistance as they relate to the law prior to the amendment of Sections 375 to 376E of the Indian Penal Code., Having considered the submission made by counsel for the applicant and the provisions of Section 319 of the Criminal Procedure Code, I have arrived at the conclusion that no interference is called for in the impugned order. The scope and ambit of Section 319 of the Code have been elucidated in the case of Hardeep Singh versus State of Punjab and others, (2014) 3 SCC 92, by the Honourable Apex Court. It has been held that all that is required for invoking the Court’s powers under Section 319 is that, from the evidence adduced before it, the person against whom no charge has been framed, but whose complicity appears to be clear, should be tried together with the accused. The ratio laid down in Hardeep Singh’s case has been explained by the Honourable Apex Court in Manjeet Singh versus State of Haryana and others, (2021) SCC Online SC 632. The Supreme Court, after noticing its subsequent judgments on the issue, summarized the scope and ambit of the powers of the Court under Section 319 and held that only material collected by the Court during the course of inquiry or trial, and not material collected by the investigating agency during investigation, can be used while arraigning an additional accused. The Court clarified that the word “evidence” in Section 319 means only such evidence as is made before the Court in relation to statements and documents which can be used by the Court for unveiling all facts, other than material collected during investigation. Of course, the evidence also includes evidence led during the trial after framing of charges. It is also laid down that besides the evidence recorded during trial, any material received by the Court after cognizance is taken and before the trial commences can be utilised only for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 of the Criminal Procedure Code., The argument that a woman cannot commit rape and therefore cannot be prosecuted for gang rape is not correct after considering the amended provisions of Sections 375 to 376E of the Indian Penal Code by Act 13 of 2013 of the Indian Penal Code. The case of Priya Patel (supra) involved a gang rape where the wife of the appellant facilitated the commission of gang rape within the meaning of Section 376(2)(g) of the Indian Penal Code. After an elaborate discussion on the provisions of Sections 375 and 376, it was held that a woman cannot be prosecuted for the alleged commission of the offence of gang rape. However, the amended provisions of Section 375 make it clear that the act of rape can only be done by a man and not by any woman; therefore, a woman cannot commit rape. Section 376‑D of the Indian Penal Code, which is a distinct offence of gang rape, provides that where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term not less than twenty years, which may extend to life, and with fine. Thus, to establish an offence under Section 376‑D, the prosecution must adduce evidence that one or more persons acted in concert; if rape was committed by even one, all the accused will be guilty irrespective of who actually committed the act. The provision embodies a principle of joint liability based on common intention, which presupposes prior concert that may be determined from the conduct of the offenders revealed during the course of action. The term “person” in the section is not to be construed narrowly; Section 11 of the Indian Penal Code defines “person” to include any company, association or body of persons, whether incorporated or not. Consequently, a woman cannot commit the offence of rape, but if she facilitates the act of rape with a group of people, she may be prosecuted for gang rape under the amended provisions. Unlike a man, a woman can also be held guilty of sexual offences and may be held guilty of gang rape if she has facilitated the act of rape with a group of persons., In view of the foregoing facts and the law laid down by the Apex Court, I find no scope for interference in the impugned order passed by the trial court at this stage. The application has no force and is accordingly dismissed.
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Nikhil H. Malkan and others, Petitioners, versus Standard Chartered Investment and Loans (India) Limited, Respondent. Mr. Firoz Bharucha in behalf of the Petitioners. Mr. S. M. Algaus, Mr. Murtaza Kachwalla, Mr. Palash Moolcha in behalf of Argus Partners, for the Respondent., By this petition filed under Section 29A of the Arbitration and Conciliation Act, 1996, the Petitioners are seeking extension of the mandate of the learned Arbitrator. The Respondent has appeared through counsel and the present petition is opposed on a point of law. It is contended that since the present petition was filed after the mandate of the learned Arbitrator had expired, as a matter of law, the Supreme Court of India under Section 29A(4) of the aforesaid Act cannot entertain the present petition., Before considering the rival submissions on the aforesaid point of law, it would be appropriate to briefly refer to the relevant facts. In the present case, the admitted position is that the pleadings were completed on 7 February 2022 and accordingly, the months period expired on 6 February 2023. As per Section 29A(3) of the said Act, the parties by consent extended the mandate for a further period of six months, as a consequence of which the mandate of the learned Arbitrator stood extended till 6 August 2023., It is also an admitted position that even after expiry of the mandate of the learned Arbitrator on 6 August 2023, since the proceedings were at the stage of final hearing, the sessions for final hearing commenced from 11 September 2023. The final hearing sessions were conducted on 11 September 2023, 13 September 2023, 29 September 2023 and 12 October 2023. When the proceedings were at the stage of the Petitioners (Original Claimants) arguing in rejoinder, an objection was raised on behalf of the Respondent on the ground that the mandate of the learned Arbitrator had expired., It is in this backdrop that the present petition came to be filed. While the mandate of the learned Arbitrator expired on 6 August 2023, the present petition was filed on 10 October 2023, which was after the mandate had already expired., Since the learned counsel appearing for the Respondent questioned the very maintainability of the petition and relied upon a judgment of the Calcutta High Court, as noted in the order dated 23 October 2023, the Supreme Court of India deems it appropriate to first consider the said objection. The learned counsel for the Respondent placed reliance on the judgment of the Calcutta High Court in the case of Rohan Builders (India) Private Limited v. Berger Paints India Limited (order dated 6 September 2023 passed in A.P. 328 of 2023). He fairly brought to the notice of the Supreme Court of India that the Supreme Court issued notice for final disposal in Special Leave Petition (Civil) No. 23320 of 2023, whereby the said judgment of the Calcutta High Court has been challenged. He further brought to the notice of the Supreme Court of India that in a subsequent petition filed before the Supreme Court in the matter of Vrindavan Advisory Services LLP v. Deep Shambhulal Bhanushali (Special Leave Petition (Civil) No. 24489 of 2023), on 6 November 2023, while issuing notice in the said petition and tagging the same along with the earlier Special Leave Petition, pending before the Supreme Court, it was specifically directed that there shall be a stay of the impugned judgment of the Calcutta High Court. Thus, it was brought to the notice of the Supreme Court of India that as on today the Calcutta High Court judgment has been stayed., Nonetheless, the learned counsel appearing for the Respondent further relied upon a judgment of the Division Bench of the Patna High Court in the case of South Bihar Power Distribution Company Limited v. Bhagalpur Electricity Distribution Company Private Limited, a Private Limited Company registered under the Companies Act, 1956, particularly paragraph no. 88 thereof. He submits that the reasoning adopted by the Division Bench of the Patna High Court was similar to the one adopted by the Calcutta High Court in the aforementioned judgments. He submitted that the said interpretation and position of law may be considered by the Supreme Court of India while determining whether the present petition can be entertained under Section 29A(4) of the said Act., On the other hand, learned counsel appearing for the Petitioners relied upon the judgment of the Delhi High Court in the case of ATC Telecom Infrastructure Private Limited v. Bharat Sanchar Nigam Limited (judgment and order dated 6 November 2023, passed in Original Miscellaneous Petition (Comm.) 466/2023 and 467/2023). Apart from this, he submitted that a bare reading of the relevant provision, i.e., Section 29A(4) of the said Act, would show that the view adopted by the Delhi High Court ought to be preferred by the Supreme Court of India, as compared to the opinions of the Calcutta High Court and the Patna High Court. It was submitted that the interpretation given by the Delhi High Court was based on a correct interpretation of the statute and that therefore, there was no question of holding that the present petition could not be entertained merely because it was filed after the mandate of the learned Arbitrator had expired., Apart from this, the learned counsel for the Petitioners invited the attention of the Supreme Court of India to Exhibit E filed along with the petition, which is a copy of minutes of meeting held on 12 April 2023 before the learned Arbitrator. It was recorded in paragraph no. 5 of the said minutes of meeting that the advocates for both the parties by consent agreed to apply for extension of the mandate of the learned Arbitrator. He submitted that having consented to do so, it cannot lie in the mouth of the Respondent to oppose the prayer made in the present petition., The Supreme Court of India has considered the rival submissions in the light of the admitted facts and in the backdrop of the judgments brought to its notice., Before adverting to the judgments, it would be appropriate to first refer to the relevant statutory provision, which is Section 29A of the Arbitration and Conciliation Act. The relevant portion reads as follows: 29A Time limit for arbitral award. (1) The award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference. Explanation: For the purpose of this sub‑section, an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their appointment. (2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree. (3) The parties may, by consent, extend the period specified in sub‑section (1) for making award for a further period not exceeding six months. (4) If the award is not made within the period specified in sub‑section (1) or the extended period specified under sub‑section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period: Provided that while extending the period under this sub‑section, if the Court finds that the proceedings have been delayed for reasons attributable to the arbitral tribunal, then it may order reduction of fees of arbitrator(s) by not exceeding five per cent for each month of such delay. (5) The extension of period referred to in sub‑section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court., A bare reading of sub‑section (4) of Section 29A shows that upon expiry of the extended period specified in sub‑section (3), the mandate of the arbitrator terminates, unless the Court extends the period. In the opinion of the Supreme Court of India, the words ‘either prior to or after the expiry of the period so specified’ are crucial. These words indicate that the Court retains the power to extend the mandate even after the period so specified has expired., The view adopted by the learned single judge of the Calcutta High Court and the Division Bench of the Patna High Court indicates that even if the Court retains power to extend the mandate after expiry of the period, an application seeking such extension has to be made prior to expiry of the said extended period. This is evident from paragraph no. 88 of the judgment of the Patna High Court, which states that the power of the Court to extend the mandate can be exercised during the existence of the mandate or after the expiry of the period so specified, but not when the mandate has already terminated., In contrast, a learned single judge of the Delhi High Court, in the case of ATC Telecom Infrastructure Private Limited v. Bharat Sanchar Nigam Limited, observed that Section 29A does not contemplate an inflexible outer deadline and affords flexibility to the parties and to the Court for extension of time in appropriate cases. The Court noted that if the legislature had intended a blanket prohibition on extension after expiry, it would have been expressed clearly., Having perused Section 29A(4) in the light of the words ‘either prior to or after the expiry of the period so specified’, the Supreme Court of India finds that the purpose for which Section 29A was introduced would be defeated if it were held that the Court could exercise power to extend the mandate only when the application is filed prior to expiry. There is nothing in the provision to indicate that the Court would be powerless to entertain an application filed after expiry, provided sufficient grounds are made out., In view of the above, the Supreme Court of India respectfully disagrees with the views expressed by the learned single judge of the Calcutta High Court and the Division Bench of the Patna High Court and is in agreement with the view adopted by the Delhi High Court. Accordingly, the objection raised on behalf of the Respondent with regard to maintainability of the petition is rejected., It is relevant to note that in the minutes of meeting recorded on 12 April 2023, the learned Arbitrator specifically recorded the consent given by both parties for applying to this Court for extension of the mandate of the learned Arbitrator. Apart from this, it is an admitted position that the Respondent participated in the final hearing of the arbitral proceedings after expiry of the mandate, in September and October 2023. The final hearing before the learned Arbitrator is virtually at the stage of culmination and therefore, sufficient grounds are made out by the Petitioners for seeking extension of the mandate., In view of the above, the petition is allowed and the mandate of the learned Arbitrator is extended from 7 August 2023 till 31 March 2024.
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Through Mr Vikas Pahwa, Senior Advocate, together with Mr Simran Jyot Singh Khandpur, Mr Varun Singh, Mr Kamlesh Anand, Mr Sumer Boparai, Ms Ruchika Wadhawan and Ms Raavi Sharma, Advocate, versus Through Mr P L Sharma, Additional Public Prosecutor for the State, Sub‑Inspector Nazma, Police Station Mehrauli. The hearing was conducted by video conferencing., The Criminal Miscellaneous Application No. 13171/2020 (Exemption) is allowed, subject to all just exceptions, and the application is disposed of., The petitioner filed the present petition under Section 438 of the Criminal Procedure Code read with Section 48(2) of the Criminal Procedure Code for grant of bail in the case of First Information Report No. 569/2020, registered under Section 376 of the Indian Penal Code at Police Station Mehrauli. Notice was issued and the Additional Public Prosecutor accepted the notice on behalf of the State. With the consent of counsel for the parties, the petition was taken up for final disposal., The prosecution, based on the complaint of the complainant, states that the petitioner and the complainant were completely unknown strangers to each other until 24 August 2020. The complainant, a personal trainer, had suffered an accident five months earlier that resulted in a fractured thigh and ankle, leaving her financially disturbed. She sought employment with a multinational company and obtained the contact number of the owner of Delta Electronics, Mr Kapil Gupta, to which she sent a job inquiry. The owner replied that he was looking for a hot personal assistant and invited further discussion. The petitioner then asked the complainant for a relationship; she said she was not comfortable in the first meeting but agreed to have coffee. The petitioner later requested wine, and the complainant sent her location. He arrived at her residence, gave her two drinks, and while she was intoxicated, he removed her clothes, punched her right leg, and raped her without protection. She attempted to call her neighbour Jasmin, but the petitioner fled after the assault. The incident occurred on 24 August 2020, leading to the filing of the First Information Report., The Additional Public Prosecutor opposed the petition, stating that the presence of the petitioner at the scene is not in dispute. He admitted that the petitioner went to the complainant’s house with wine bottles and claimed to have seen pictures that the complainant had sent. He argued that the petitioner had no business attending a stranger’s call and that the allegations against the petitioner are serious, warranting dismissal of the petition., The petitioner’s senior counsel submitted that both parties were strangers until 24 August 2020. On that date at 12:46 pm, the complainant contacted the petitioner via WhatsApp, having obtained his number from Naukri.com, an online job portal, and asked whether he was looking for a personal assistant. The petitioner responded affirmatively. Instead of sending professional photographs, the complainant sent sensuous pictures of herself in a bathing suit and bikini., The chat continued at 12:49 pm, within three minutes of the initial message, with the complainant sending additional pictures. The conversation, originally about a personal‑assistant job, turned informal as the complainant shared personal details to create an emotional connection. Later the complainant invited the petitioner to her flat in Saket, stating that she lived there with her sister who left for a night‑shift job at 6 pm, and that she would be alone thereafter. The complainant hinted at a long‑term relationship and suggested bringing wine. The petitioner’s advances were welcomed, and the messages became flirtatious and erotic., The petitioner’s counsel further submitted that when the petitioner said he would join the complainant in the shower, the complainant replied with “lol”. The petitioner claimed he was trapped and tricked by a well‑designed extortion scheme. After learning of the First Information Report, he wrote to the Sub‑Inspector of Police Station Mehrauli and the Commissioner of Police, Delhi on 30 August 2020, but no action was taken. On 9 September 2020, he filed a complaint with the Police Station Mehrauli seeking action against the complainant and her associates for extortion of money. When no action followed, he filed a petition under Section 156(3) of the Criminal Procedure Code on 18 September 2020. The learned magistrate ordered an arrest‑transfer report from the police station and fixed the matter for further proceedings on 7 November 2020., The senior counsel observed that throughout the chatting there was no discussion of any job opening, salary, work timings, or past experience; instead, the complainant repeatedly sent bikini pictures by the pool and other seductive images to lure the petitioner. Once seduced, the complainant called the petitioner to her home and, when her demand of Rs 5,00,000 (Rupees Five Lacs) was not met, she fabricated a false case of rape against the petitioner. The counsel outlined a three‑stage modus operandi common in such cases: (1) contact random strangers through WhatsApp, Facebook, Instagram or other social networks; (2) if the person responds, seduce them by sending pictures, videos or chatting; (3) trap the stranger, invite them to the home, record videos, level false accusations, intimidate, and then demand money., The Court, after reviewing the photographs and chats annexed to the petition, is of the view that the petitioner deserves protection. Accordingly, the Sub‑Inspector/Investigating Officer is directed that, in the event of arrest, the petitioner shall be released on personal bond of Rs 25,000 (Rupees Twenty‑Five Thousand). The petitioner shall cooperate with the investigation and be available for interrogation as required, and shall not contact or influence the complainant or prosecution witnesses., Although the petitioner’s acceptance of the allurement is not justified, the allurement for extortion of money is also unacceptable. The petition notes that the FIR mentions a neighbour named Jasmin, who is in fact Bhawna Thakur, a close friend and accomplice in the crime. The Court directs the Commissioner of Police, Delhi, to personally examine whether the complainant and the aforementioned Jasmin are involved in any similar cases, and to take appropriate action against the culprits. The Commissioner shall obtain reports from all police stations on similar cases and submit a report within four weeks. If the Commissioner finds similar incidents in Delhi during the year 2020, he shall issue standing orders to all concerned police stations to take action as per law without harassing the alleged accused. The directions are to be renotified on 17 November 2020, and a copy of this order shall be transmitted to the Commissioner of Police.
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CRLMC No.2636 of 2021 Ajay Pattanaik @ Ajaya Kumar Pattanayak and Another. Petitioners Mr. Deepak Ranjan Sundaray, Advocate. Versus State of Odisha and Another. Opposite Parties Mr. Soumya Ranjan Mohanty, Advocate for the opposite party., Instant petition under Section 482 of the Criminal Procedure Code is filed by the petitioners challenging the order of cognizance dated 13th April 2021 under Annexure-2 series passed in T.R. No.203 of 2021 and the consequential order dated 30th March 2021, whereby the learned Sessions Judge, Khurda, Bhubaneswar issued non-bailable warrants against them on the grounds inter alia that no case is made out for an offence under Sections 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and therefore the order is liable to be interfered with and quashed., The opposite party No.2 filed a complaint initially registered as 1CC Case No.8 of 2017 against the petitioners and others which was entertained by the learned Sessions Court and by its order under Section 156(3) of the Criminal Procedure Code, Badagad Police Station Case No.126 dated 19th May 2017 was registered and finally, the charge sheet was submitted under Sections 241, 294, 323 and 506 read with Section 34 of the Indian Penal Code and Sections 3(1)(r)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, whereafter the order of cognizance dated 13th April 2021 was passed., Heard Mr. Sundaray, learned counsel for the petitioners, Mr. Mishra, learned Additional Standing Counsel for the State opposite party No.1 and Mr. Mohanty, learned counsel for opposite party No.2., It is contended that the petitioners are in no way connected with the alleged incident and due to political rivalry, a false case has been foisted against them and hence the impugned order under Annexure-2 series is bad in law. It is claimed that opposite party No.2 is not the victim but the complaint was filed at the behest of a third party, who is a witness to the alleged incident and hence the offences under Sections 3(1)(r)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are not made out, inasmuch as the person who is supposedly affected and against whom the caste aspersion is said to have been directed never complained, and that the alleged offences under the Special Act are not established since there was no intentional insult or intimidation to the alleged victim to humiliate him for being a member of Scheduled Castes or Scheduled Tribes., Mr. Sundaray, learned counsel for the petitioners cited the following decisions: Bhagwan Singh Randhawa and Another versus State of Punjab in CRM No.42685 of 2021 disposed of on 12th October 2021 by the Punjab and Haryana High Court; Hitesh Verma versus State of Uttarakhand and Another reported in 2021 (I) OLR (SC) 85; and the judgment of this Court in Bata Krushna Moharana versus State of Orissa and Manjulata Mallick (2016) 63 OCR 134. It is thus contended that the allegations are false and furthermore, no prima facie case under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out besides the fact that the learned Sessions Court could not have taken such a drastic decision to issue non-bailable warrants in the first place., On the contrary, Mr. Mishra, learned counsel for the State submits that considering the FIR and the allegations made therein, the offences are prima facie made out as during and in course of the alleged incident, opposite party No.2, who was abused, and the alleged mischief was committed involving caste aspersion vis‑vis the person who had come to rescue the former. It is submitted that since the investigation proved the alleged occurrence leading to the submission of charge sheet, the learned Sessions Court cannot be said to have committed any error or illegality in taking cognizance of the offences and the consequential order as the petitioners were shown as absconders therein. Mr. Mohanty, learned counsel for opposite party No.2 adopted the same line of argument contending that a case is made out for enquiry and trial., The allegation as per the FIR is that on 29th April 2017 at about 9.30 P.M., when opposite party No.2 was returning home after purchasing betel from a shop, the petitioners and their associates arrived on motorcycles and abused him in filthy language, assaulted and terrorized him and committed other overacts. At that time, when other named persons including the victim, who belongs to a Scheduled Caste, arrived at the spot and tried to intervene, one of the petitioners, namely petitioner No.2, criminally intimidated and abused the said witness by making aspersion to his caste. The words uttered by the petitioners and the manner in which the mischief was committed have been described in the complaint., The defence argument is that the allegations in the complaint turned FIR are false and that, apart, no offences under the Special Act have been committed and although the aspersion on caste was allegedly directed against a witness and not opposite party No.2 and even otherwise, there was no intention to insult the petitioners or intimidate him for being a Scheduled Caste; secondly, no complaint was lodged by the witness, who said he had been abused by taking the name of his caste and hence such offences under the Special Act cannot be alleged and the petitioners be charged with. Finally, the petitioners challenged the issuance of non-bailable warrants against them without any basis or justification and not being in conformity with the established procedure of law as reiterated in Bata Krushna Moharana (supra), wherein the settled legal position as decided in State of Orissa versus Dhaniram Luhar (2004) 27 OCR (SC) 807 of the Supreme Court was followed., In Hitesh Verma (supra), the Supreme Court was seized of the matter where the point of debate was whether any such offences under the Special Act were committed in absence of mens rea or intent on the part of the accused to insult or intimidate a member of the Scheduled Caste and held and observed that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was enacted to ameliorate the socio‑economic conditions of the vulnerable sections of society, who are subjected to indignities, humiliations and harassment and they have also been deprived of life and property and therefore the object of the law is to punish the violators who commit such offences as defined in Section 3 of the said Act. Lastly, it was held that the offence under the Special Act is not established merely for the fact that the victim is a member of a Scheduled Caste without any intention to humiliate him., In the instant case, the overt acts allegedly committed by the petitioners are primarily attributed to opposite party No.2 and during the incident, the named witness intervened and in course of events, the latter was said to be abused. The question is whether it was with the requisite intention to humiliate the witness, who in any case has not lodged any complaint against the petitioners. The name of the caste was uttered by petitioner No.2 during the alleged occurrence but it was at a time when the witness tried to intervene and rescue opposite party No.2. It was on the spur of the moment that the incident happened, in course of which the alleged abuse was hurled at the witness, whose caste name was uttered by one of the petitioners. To claim that it was with an intention to insult or humiliate the witness present at the spot and that the alleged offences under the Special Act are committed would be like stretching things too far and unjustified. If someone is abused with the name of his caste or the caste is uttered suddenly in course of events, in the humble view of the High Court, by itself would not be sufficient to hold that any offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out unless the intention is to insult or humiliate the victim for the reason that he belongs to a Scheduled Caste or Scheduled Tribe is prima facie established. Considering the settled law laid down in Hitesh Verma (supra), there is no escape from the conclusion that in the case at hand, the offences under the Special Act are not established prima facie, especially when the witness did not register any complaint or lodge a report, being not related to opposite party No.2, which has again been challenged by reliance on the decision in Bhagwan Singh Randhawa (supra) though the authority does not squarely apply to the facts of the case., As to the other offences, on a reading of the FIR, the Court finds that opposite party No.2, who was intercepted and thereafter, the petitioners and other accused persons did commit the alleged mischief and even snatched away gold and cash from the former and hence a case is prima facie made out against them for enquiry and trial. The truthfulness of the allegations vis‑à‑vis the petitioners shall have to be examined in trial unless they are discharged during enquiry., Regarding the coercive action taken against the petitioners by the learned Sessions Court, the Court is of the view that after having received the charge sheet showing them as absconders and issuing non-bailable warrants against them, the court was required to satisfy itself about the need for taking coercive action as a court should normally be careful and duty bound to assign reasons, which has been rightly held in Bata Krushna Moharana (supra) that such an exercise is indispensable for a sound judicial dispensation following the dictum in Dhaniram Luhar (supra)., Accordingly, it is ordered., In the result, the Criminal Revision and Miscellaneous Civil stands allowed in part. As a necessary corollary, the impugned order of cognizance dated 13th April 2021 passed in T.R. No.203 of 2021 by the learned Sessions Judge, Khurda, Bhubaneswar is set aside to the extent indicated above. Consequently, the order under Annexure-2 series is hereby quashed with respect to Sections 3(1)(r)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act with a consequential direction for the court below to reconsider the mode of process against the petitioners taking into account the charge sheet and connected materials besides the case diary and thereafter to pass necessary order as per and in accordance with law.
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Arising Out of Police Station Case Number 7 Year 2022 Thana Darbhanga Rail Police Station District Samastipur. Akhilesh Pandey, son of Mahendra Pandit, resident of Village Ahkta, Police Station Suppi, District Sitamarhi, Bihar, 843351. Lalit Kumar, son of Ramekwal Sahni, resident of Nonahi, Police Station Parihar, District Sitamarhi, Bihar, 843324. Bhavesh Kumar, son of Kamaldev Sah, region Sonbarsa, village Jaynagar, Jinagar, Sitamarhi, Bihar, 843317. Mithun Kumar Sharma, son of Ram Prit Sharma, resident of Ward No 4, Kohwarba, Sonbarsa, Sitamarhi, Bihar, 843330. Shashi Ranjan Kumar, son of Birendra Ray, resident of Bhadian, Sitamarhi, Bihar., Petitioner(s) versus the State of Bihar Opposite Party(s) Appearance: For the Petitioners: Mr. Kumar Shanu, Advocate. For the Opposite Party: Mr. Anil Kumar Singh, Additional Public Prosecutor Number 1, APP 428-04-2022., Let the defects, as pointed out by the office, be removed within four weeks of starting of Court proceeding in physical mode in normal course., Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State. Petitioners seek bail in a case registered for the offences punishable under Sections 147, 148, 149, 341, 323, 337, 338, 307, 427, 353 of the Indian Penal Code and Section 27 of the Arms Act and Section 174(A) of the Railway Act., Patna High Court Criminal Miscellaneous Number 13149 of 2022 (4) dated 28-04-2022. As per prosecution case, in brief, on 25-01-2022 at 11:45 a.m. the alleged crowd including the petitioners armed with weapons came to the Sitamarhi Railway Station in huge numbers and blocked the freight train (Malgadi) standing near Gumti No 56., According to police officers and other government officials, when they tried to convince the crowd to leave the railway track the crowd became violent and started throwing stones at them, in which the police officers Assistant Sub-Inspector Ramanand Singh, Pramod Upadhyay, Ashok Kumar Singh got injured and the engine of the train was damaged., It is further alleged that the police while chasing the protesters had to fire two to three rounds to control the crowd and arrested thirteen protesters including the petitioners., Learned counsel for the petitioners submit that the petitioners have clean antecedents and they have been falsely implicated in the present case. In fact, the petitioners are named in the First Information Report but there is no specific allegation of overt act against the petitioners and there is a general and omnibus allegation against the petitioners. Petitioner number one is in custody since 28-01-2022 and petitioners numbers two to five are in custody since 26-01-2022., Learned Additional Public Prosecutor for the State has opposed the prayer for bail of the petitioner., Considering the facts and circumstances of the case, let the petitioners, above named, be released on bail on furnishing bail bond of Rs 10,000 (Rupees Ten Thousand) each with two sureties of the like amount each to the satisfaction of the Patna High Court below where the case is pending in connection with Rail Darbhanga (Sitamarhi) Police Station Case Number 07 of 2022, with the following conditions:, (1) Petitioners shall cooperate in the trial and shall be properly represented on each and every date fixed by the Court and shall remain physically present as directed by the Court and on their absence on two consecutive dates without sufficient reason, their bail bonds shall be cancelled by the Court below. (2) If the petitioners tamper with the evidence or the witness, the prosecution will be at liberty to move for cancellation of bail. (3) The Court below shall verify the criminal antecedent of the petitioners and in case at any stage it is found that the petitioners have concealed their criminal antecedents, the Court below shall take steps for cancellation of bail bond of the petitioners., However, the Patna High Court Criminal Miscellaneous Number 13149 of 2022 (4) dated 28-04-2022 acceptance of bail bonds in terms of the above-mentioned order shall not be delayed for purpose of or in the name of verification.
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Criminal Appellate Jurisdiction Appellate Side Present: The Honourable Justice Bibek Chaudhuri. Criminal Revision Appeal 269 of 2019 Subrata Pradhan, State of West Bengal & Anr. Criminal Revision Appeal 270 of 2019 Prasanta Das & Anr., State of West Bengal & Anr. For the Appellant: Mr. Phiroze Edulji, Mr. Ajit Kumar Mishra, Mr. Abhishek Acharya. For the State: Mr. Saswata Gopal Mukherjee, Learned Counsel; Ms. Faria Hossain, Advocate; Mr. Anand Keshari, Advocate. Heard on 02 March 2022 and 09 March 2022. Judgment on 10 March 2022 delivered by Justice Bibek Chaudhuri., These two appeals assailed the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, First Court and Special Judge, Kakdwip, in Special Sessions Trial No. 7 of 2018 under Sections 366, 376 and 120B of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act. In Criminal Appeal No. 269 of 2019 the appellant Subrata Pradhan was convicted for offences under Sections 366, 120B and 376 of the Indian Penal Code and Section 4 of the POCSO Act. The learned trial Judge sentenced him to imprisonment for three years with fine and default clause for the offence under Section 366, rigorous imprisonment for three years with fine and default clause for the offence under Section 120B, and rigorous imprisonment for seven years with fine and default clause for the offence under Section 376 and for the offence under Section 4 of the POCSO Act. The sentences were directed to run concurrently., In Criminal Appeal No. 270 of 2019 the convicts Prasanta Das and Sampa Das were sentenced to rigorous imprisonment for three years with fine and default clause for the offence under Section 366 of the Indian Penal Code and for the offence under Section 120B of the Indian Penal Code. On 14 December 2017 a school‑going girl was kidnapped by the appellants on her way to school at about 9 a.m. She was taken to an unknown place by a car. The prosecution alleges that before the incident Subrata Pradhan had repeatedly teased the girl and made inappropriate proposals, including a marriage proposal. The victim informed her parents and other elders. The de facto complainant, the uncle of the victim, used to escort her to the village bus stand (known as 5 No. Bus Stand). On the date of occurrence he could not accompany the girl, and the girl was forcibly kidnapped from the bus stand., On the basis of the complaint, the police registered Gangasagar Coastal Police Station Case No. 125 of 2017 on 15 December 2017 under Sections 363, 366 and 34 of the Indian Penal Code. Since the allegation involved sexual intercourse with a minor, the case was transferred to the Special Judge, Kakdwip, for trial. The Special Judge passed the order of conviction and sentence as narrated above., In Rama v. State of Rajasthan, (2002) 4 SCC 571, the Honourable Supreme Court held that in a criminal appeal the appellate court must re‑appraise the evidence itself and cannot dispose of the appeal solely on the trial court’s appraisal, especially after the appeal has been admitted for final hearing. The same principle was reiterated in Md. Ali @ Guddu v. State of Uttar Pradesh, 2015 AIR SCW 1711., The victim was found missing on 14 December 2017 and, according to her, was brought to the local police station by the accused Subrata Pradhan on the next day. The investigating officer contradicted this, stating that Subrata Pradhan was arrested from Benuban within the jurisdiction of the local police station and that the victim was recovered from that place. Thus the victim was away from the lawful custody of her guardian for about a day., The de facto complainant’s written complaint (Exhibit 1) stated that the victim was missing from 5 No. Bus Stand. Both the victim and the complainant, as well as the victim’s mother, said that she was kidnapped from that bus stand. The First Information Report and the victim’s deposition state that the kidnapping occurred at about 9 a.m. on her way to school. However, in examination‑in‑chief the complainant said that Subrata Pradhan picked her up when she was returning from school and took her away by a vehicle., The victim testified that while waiting at 5 No. Bus Stand, the accused arrived in a Tata Sumo, offered her a lift, and when she refused, forcibly picked her up. Accused Prasanta Das pressed her mouth and Subrata Pradhan threatened her with a knife. They took her to the bank of a river, hired a boat, crossed the river and brought her to a place called Namkhana, where she was confined in a room. Accused Sampa Das and her husband Prasanta made her wear a sari, Subrata applied vermilion on her forehead and conch bangles on her hands, and Subrata also committed sexual intercourse with her., Section 4 of the POCSO Act penalises penetrative sexual assault. To prove penetrative sexual assault, a medical examination is essential. The victim, born on 2 April 2004, was about 13 years old at the time of the incident. If she had been subjected to penetrative sexual assault, there should have been injury to her private parts. The prosecution failed to produce such medical evidence. The victim declined to undergo medical examination, stating that there was no female doctor in the hospital. The Court finds this explanation unsatisfactory., The defence case states that Subrata Pradhan previously worked as a compounder under a doctor and had helped the victim with medical treatment. The victim’s uncle filed a false case against them when Subrata demanded money for the treatment. The accused produced a series of medical documents marked ‘X’ for identification, which the victim admitted were genuine, but the trial court refused to mark them as exhibits. Even if judicial notice were taken, the documents only show that Subrata possessed some medical records of the victim and do not absolve him of the charges., The evidence of Witness 1 (P.W.1) does not state that on 14 December 2017 he returned late from the market, nor does it explain how he learned of the kidnapping. The victim had a computer examination at school that morning and left home at about 9 a.m. She did not return at the usual hour. P.W.1 conducted a search and learned that the accused had kidnapped his minor niece, but he did not disclose the source of this information. The investigation did not examine shop owners or local inhabitants at the bus stand, rendering it perfunctory., Witnesses 4 (Sk. Hossain) and 5 (Dhiraj Maity) were declared hostile by the prosecution. Witness 8 (Sk. Bapi) was tendered for cross‑examination. The evidence of Malati Goswami (P.W.6) and Gopinath Goswami (P.W.7) is of little importance as it is hearsay., The criminal case was initiated on the basis of a written complaint submitted by Gour Gobinda Goswami, the victim’s uncle. The statement in the First Information Report is hearsay. The de facto complainant’s evidence shows serious infirmity regarding the time of the alleged offence. The complainant alleges the kidnapping occurred on the way to school, whereas he later stated that Subrata Pradhan picked the girl up when she was returning home from school. This contradiction raises a reasonable doubt about the prosecution’s case., The victim’s evidence shows material contradictions. She refused medical examination, first stating she was not willing, then later claiming there was no female doctor. She did not provide the registration number of the vehicle that allegedly took her to the riverbank. She also claimed the accused took her medical documents from her school bag, a fact not mentioned to the investigating officer. These omissions and contradictions undermine the prosecution’s case., The Supreme Court in State of Madhya Pradesh v. Shriram (2019) 14 SCC 430 held that where the prosecution’s case suffers from material contradiction, the accused is entitled to the benefit of doubt. The Supreme Court in Parvat Singh v. State of Madhya Pradesh (2020) 4 SCC 33 observed that hearsay evidence is excluded unless it falls within Section 32 of the Evidence Act. In the present case, except for the victim, all other witnesses gave testimony based on what they had heard from the victim, and their statements contain various contradictions., The Supreme Court in State of Madhya Pradesh v. Anoop Singh, 2015 AIR SCW 3985, held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 applies to determine the age of a victim of rape. The victim stated she was about 13 years old, but the investigating officer did not seize any birth certificate, school leaving certificate, or other documentary proof of age, nor was a medical board opinion obtained. In the absence of such evidence, her oral testimony alone cannot establish that she was a minor, and the charge under Section 4 of the POCSO Act cannot stand., The Supreme Court in Rai Sandeep alias Deepu v. State of NCT of Delhi, AIR 2012 SC 3157, described the qualities of a ‘sterling witness’ as being of very high quality, whose version is unassailable, consistent, and able to withstand rigorous cross‑examination. The victim’s evidence in the present case fails to meet this standard, as it contains contradictions and lacks corroboration., Considering the above, the learned Trial Judge erred in convicting the appellants under Section 366 of the Indian Penal Code and convicting Subrata Pradhan under Section 376 of the Indian Penal Code and Section 4 of the POCSO Act. However, the evidence sufficiently proves a charge under Section 363 of the Indian Penal Code against Subrata Pradhan. Since Section 363 is a lesser offence, this Court may pass conviction and sentence under Section 222 of the Code of Criminal Procedure., The accused Subrata Pradhan, Prasanta Das and Sampa Das nee Pradhan are found not guilty of offences under Section 366 of the Indian Penal Code, and Subrata Pradhan is also found not guilty of offences under Section 376 of the Indian Penal Code and Section 4 of the POCSO Act. The judgment and order of conviction and sentence passed by the learned Trial Judge is set aside. Subrata Pradhan is convicted under Section 363 of the Indian Penal Code and may be sentenced to imprisonment for a term which may extend to seven years and shall also be liable to fine. Taking into account that the incident occurred in 2017, the appellant has been under trial for seven years, is a young man working as a compounder, and has no criminal antecedent, the Court imposes a lenient sentence of rigorous imprisonment for one year with a fine of Rs 10,000, and, in default, imprisonment for a further three months. The period already undergone shall be set off against the substantive sentence, but imprisonment for non‑payment of fine shall run separately. The appellants Prasanta Das and Sampa Das nee Pradhan are acquitted and discharged from bail bonds. Both appeals are disposed of on contest., Let a copy of this judgment be sent to the lower court along with its records. Let a plain photostat copy of this order, duly countersigned by the Assistant Court Officer of this Court, be handed over to the learned Advocate for the appellants free of cost.
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Rajesh, son of Panditrao Pawar, age 45 years, occupation Agriculture, resident of Pokharni, Taluka Palam, District Parbhani. Dnyanoba, son of Marotrao Pote, age 54 years, occupation Agriculture. Godavaribai, wife of Dnyanoba Pote, age 48 years, occupation Household, appellants number 2 and 3, resident of Deothana, Taluka and District Parbhani. The appellants (original defendants) versus Parwatibai, wife of Bhimrao Bende, age 48 years, occupation Agriculture, resident of Palshi, Taluka Vasamat, District Parbhani (original plaintiff). Shivaji, son of Wamanrao Tong, alleged adopted son of Sopanrao Tong, age 49 years, occupation Agriculture, resident of Pimpalgaon Tong, Taluka and District Parbhani (additional respondent, original defendant). Mr Prakashsing B. Patil, Advocate for the appellants. Mr Shahaji B. Ghatol Patil, Advocate for Respondent number 1., The matter was heard finally at the admission stage with the consent of both sides., Unsuccessful original defendants numbers 2 to 4 have preferred this second appeal against the impugned judgment and decree passed by the District Court of Parbhani in Regular Civil Appeal No. 149/2014, arising out of the judgment and decree passed in Regular Civil Suit No. 192/2009 by the learned Fourth Joint Civil Judge, Junior Division, Parbhani., It is necessary to set out a few facts to illuminate the dispute. The appellants purchased the suit property from respondent number 2, the adopted son of Kausalyabai (original plaintiff number 1, deceased), by three registered sale deeds dated 02-06-1995. The adoptive mother Kausalyabai and her sister Parwatibai filed a suit on 17-08-2019 for declaration of ownership, recovery of possession and a further declaration that the sale deeds executed by defendant number 1 (the adopted son) in favour of the appellants are not binding on their shares., During the pendency of the suit, original plaintiff number 1, Kausalyabai, died and the suit was contested by plaintiff number 2, Parwatibai. The trial court partially decreed the suit as follows: Plaintiff number 2 was declared the owner of the suit property to the extent of her half share, and defendant number 1 was declared the owner of the suit property to the extent of his remaining half share. The sale deeds bearing numbers 1418/1995, 1419/1995 and 1420/1995, all dated 02-06-1995, executed by defendant number 1 in favour of defendants numbers 2 to 4 with respect to suit property Gut No. 95 measuring a total area of 8 Hectares 95 Are situated at village Pimpalgaon Tong, Taluka and District Parbhani, were declared null and void to the extent of the half share of plaintiff number 2 and not binding on her. Plaintiff number 2 was entitled to recover her half share in the suit property. A writ of precept was to be sent to the District Collector, Parbhani for compliance. The parties were to bear their own costs and the decree was to be drawn up accordingly., Feeling aggrieved by the impugned judgment and decree passed by the Fourth Joint Civil Judge, Junior Division, Parbhani, original plaintiff number 2, Parwatibai Bhimrao Bende, filed Regular Civil Appeal No. 149/2014. The appeal was allowed with costs; the cross‑objection filed by the defendants/respondents was dismissed; the judgment and decree passed by the Fourth Joint Civil Judge, Junior Division, Parbhani in Regular Civil Suit No. 192/2009 dated 30-09-2014 was set aside; the suit was decreed, declaring the appellant as the owner of the suit property and entitled to recover the suit property from defendants numbers 2 to 4, who were ordered to vacate within one year; and the sale deeds bearing registration numbers 1418/1995 to 1420/1995 dated 02-06-1995 (Exhibits 30 to 32) were declared illegal and not binding on the plaintiff., Execution proceedings were filed by original plaintiff number 2, Parwatibai, to enforce the judgment and decree passed in Regular Civil Appeal No. 149/2014., Feeling aggrieved by the impugned judgment and decree passed in Regular Civil Appeal No. 149/2014, the appellants, original defendants numbers 2 to 4, preferred the second appeal, raising precise substantial questions of law., Mr Prakashsing B. Patil, learned counsel for the appellants, and Mr Shahaji B. Ghatol Patil, learned counsel for respondent number 1, original plaintiff number 2, were heard., It was revealed during argument and upon perusal of the impugned judgment and decree passed by the appellate court as well as the trial court that both courts below committed an error of law in determining the shares. Regarding the adoption of defendant number 1, Shivaji, son of Wamanrao and alleged adopted son of Sopanrao Tong, both courts below accepted and held that defendant number 1 is the adoptive son of the late plaintiff number 1, Kausalyabai. Thus, both courts recorded concurrent findings on the adoption, and there is no need to revisit that aspect., The substantial questions of law framed in this second appeal after hearing learned counsel for both sides are: (1) Whether the principle of relation back is applicable to the present case in view of section 12 of the Hindu Adoptions and Maintenance Act, 1956; (2) What would be the share of original plaintiff number 2, Parwatibai, the daughter, in the suit property; (3) Whether the sale deeds executed by original defendant number 1, Shivaji, adopted son of plaintiff number 1, are binding upon original plaintiff number 2, and if so, to what extent and share; (4) Whether the courts below committed any error in determining the shares of the parties in view of sections 8 and 15 of the Hindu Succession Act, 1956; (5) Whether intervention is necessary., The claim in the original suit put forth by the plaintiffs was for declaration of ownership and recovery of possession of land bearing Gut No. 95 measuring 8 Hectares 59 R situated at village Pimpalgaon Tong., A total of 2.80 R of land was purchased by the appellants, defendants numbers 2 to 4, by three different sale deeds from original defendant number 1, Shivaji. The sale deeds dated 02-06-1995 were as follows: Rajesh, son of Panditrao Pawar, purchased 2.80 R; Dnyanoba, son of Marotrao Pote, purchased 1.20 R; and Godavaribai, wife of Dnyanoba Pote, purchased 0.48 R, making a total of 2.80 R., The family tree of the parties relevant to the dispute is as follows: Rangnathrao (father‑in‑law); Wamanrao Sopanrao (died 1965), husband of the late plaintiff number 1; Shivaji (defendant number 1, adopted son); Kausalyabai (plaintiff number 1, wife, who died during the pendency of the suit); and Parwatibai (plaintiff number 2, daughter)., Mr Prakashsing Patil, learned counsel for the appellants, argued that although defendant number 1, Shivaji, was adopted in 1973, for all purposes he should be deemed a child of his adoptive parents. He submitted that all ties of the child in the natural family are terminated from the date of adoption, except blood ties for the purpose of marriage, and that all ties of the child arise in the adoptive family from the date of adoption. The adopted child is deemed the child of the adopter for all purposes and his position is that of a natural‑born son, with the same rights, privileges and obligations in the adoptive family., Mr Prakashsing Patil, learned counsel for the appellants, relied on the case of Hiralal v. Board of Revenue, AIR (RAJ) 2001 318. He submitted that when the widow of a co‑parcener adopts a son, the adopted son becomes a co‑parcener with the surviving co‑parceners of the adoptive father and acquires the same interest that his adoptive father would have had in the property had he been alive. The child adopted by the widow of the co‑parcener becomes the child of the deceased co‑parcener from the date of the co‑parcener’s death, and therefore the adopted son gets an equal share like his adopted mother., Conversely, Mr Shahaji B. Ghatol Patil, learned counsel for respondent number 1, original plaintiff, submitted that even if, for the sake of argument, Shivaji is accepted as the adopted son of Kausalyabai, he may not receive an equal share. He explained that the husband of plaintiff number 1, Kausalyabai, namely Sopanrao, died in 1965, leaving behind plaintiff number 1 as widow and plaintiff number 2 as daughter, each receiving a half share of the suit property left by Sopanrao. Shivaji was allegedly adopted by Kausalyabai in 1973. The succession opened in 1965, shortly after Sopanrao’s death, and the adopted son does not obtain any share even after his adoption in 1973. At most, he may obtain a share after the death of Kausalyabai, inheriting her half share, whereby Parwatibai, the daughter, and Shivaji, the adopted son, would receive equal shares of Kausalyabai’s share. He further submitted that the theory of relation back is not applicable because the adoption occurred in 1973., Mr Shahaji B. Ghatol Patil, learned counsel for the original plaintiff, submitted that the sale deeds executed by Shivaji, the adopted son, are not binding on the plaintiff and should be declared as such., The Court has considered the submissions of learned counsel for both sides and has carefully reviewed the judgment and decree passed by the trial court in Regular Civil Suit No. 192/2009 and the judgment and decree passed by the First Appellate Court, District Court, in Regular Civil Appeal No. 149/2014., It is undisputed that the husband of original plaintiff number 1, Sopanrao, died in 1965, leaving behind Kausalyabai as a widow (plaintiff number 1) and Parwatibai as a daughter (plaintiff number 2). According to the findings of both courts below, Shivaji was adopted by original plaintiff number 1 in 1973, after the Hindu Adoptions and Maintenance Act, 1956 came into force. The provisions of that Act must be examined., Section 8 of the Hindu Adoptions and Maintenance Act, 1956 provides that a female Hindu of sound mind and not a minor has the capacity to adopt a son or daughter, and if she has a living husband, his consent is necessary for such adoption., Having regard to section 8, plaintiff number 1, Kausalyabai, had the legal right to adopt a son or daughter and accordingly adopted son Shivaji in 1973 by way of an adoption deed. Her husband was not alive at the time of adoption, so the question of consent did not arise., The effect of adoption is governed by section 12 of the Hindu Adoptions and Maintenance Act, 1956, which provides: “An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption, and from such date all ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family, provided that (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”, Section 12 specifies that an adopted child severs all ties with the family of his or her birth from the date of adoption. The second proviso stipulates that any property vested in the adopted child before the adoption shall continue to vest in him, subject to any obligations, including the obligation to maintain relatives in the family of his birth., The question is whether the principle of relation back is applicable to the present case in view of section 12 of the Hindu Adoptions and Maintenance Act, 1956., Mr Prakashsing Patil, learned counsel for the appellants, relied on the case of Hiralal v. Board of Revenue and on the decision in Banabai and others v. Wasudeo, AIR 1979 Bombay 881. The court held that adoption takes effect only from the date of adoption and not prior to it. Under the former law, adoption related back to the date of death of the father, deeming the adopted son to be in existence at that time, but this fiction has been removed by section 12. The provisions limit the rights of the adopted son in the new family, and proviso (c) states that the adopted child shall not divest any person of any estate which vested in him before the adoption. Thus, although the adopted son becomes a member of the adoptive family and acquires rights and status similar to a natural‑born son, his rights are subject to his inability to divest any person of an estate that vested in that person before the adoption., In Banabai, the principle of relation back as a result of adoption was eliminated by section 12 of the Hindu Adoptions and Maintenance Act, 1956. Under the old Hindu law, adoption related back to the date of death of the father, deeming the adopted son to be in existence at that time. This fiction is no longer available. Accordingly, the child adopted by the widow of a co‑parcener does not acquire the status of the child of the deceased co‑parcener from the date of the co‑parcener’s death. Therefore, the adopted son, original defendant number 1, cannot claim a share in the suit property by stepping into the shoes of his late father who died in 1965. The Court records a negative finding on question 1., It is admitted that the husband of original plaintiff number 1, Kausalyabai, died in 1965, well before the adoption of Shivaji. Kausalyabai adopted Shivaji by deed dated 24-03-1973, as recorded by both courts below. Therefore, Shivaji was not present when Sopanrao died intestate in 1965, and succession opened at that time. Under section 8 of the Hindu Succession Act, 1956, the widow (plaintiff number 1) and the daughter (plaintiff number 2) each received a half share of the suit property left by Sopanrao., As discussed, the husband of plaintiff number 1 and father of plaintiff number 2, Sopanrao, died in 1965, opening succession. Plaintiff number 1, Kausalyabai (widow), and plaintiff number 2, Parwatibai (daughter), each received a half share of the property left by Sopanrao. Shivaji was adopted on 24-03-1973. Plaintiff number 1 died during the pendency of the suit in 2013. Upon her death, her share devolved upon her daughter Parwatibai and the adopted son Shivaji. Under section 15 of the Hindu Succession Act, 1956, the daughter would receive her mother's share, and Shivaji would also obtain a share in the property., It is evident from the record that adopted son Shivaji sold the entire 2 hectare and 80 R land of Gut No. 95 by three different sale deeds as shown in paragraph 13., The original plaintiff number 1, Kausalyabai, died in 2013. After her demise, her share would devolve between her daughter Parwatibai (original plaintiff number 2) and the adopted son Shivaji (original defendant number 1). Shivaji sold the suit property in 1995 when he had no title or legal interest in it, as plaintiff number 1 was alive at that time. At most, Shivaji could be said to have acquired legal right to the property after the death of his adoptive mother, Kausalyabai, in 2013., Having regard to the above legal position and in view of sections 8, 14 and 15 of the Hindu Succession Act, 1956, the sale deeds executed by original defendant number 1, Shivaji (adopted son), are certainly not binding upon original plaintiff number 2. Considering the passage of time and the death of Kausalyabai, Shivaji acquired legal right to the property only in 2013, during the pendency of the suit., In view of the above discussion, original plaintiff number 2, Parwatibai, would receive a share in the suit property and the adopted son Shivaji would also receive a share. The sale deeds executed by Shivaji in favour of the appellants are not binding on original plaintiff number 2 to the extent of her share, but are binding upon Shivaji to the extent of his share., Having regard to the above reasons and discussion, it is clear that both courts below erred in determining the shares of the parties in view of section 15 of the Hindu Succession Act. Intervention in the decree passed by the First Appellate Court and the trial court is required to correct the shares. Accordingly, the Court records findings on the substantial questions of law., In the result, the following order is passed: (A) The second appeal is disposed of by modifying the decree passed by both courts below as follows: (i) The suit is partly decreed; (ii) Plaintiff number 2, Parwatibai, is declared the owner of the suit property to the extent of her share, and defendant number 1, Shivaji, is declared the owner of the suit property to the extent of his share; (iii) The sale deeds bearing numbers 1418/1995, 1419/1995 and 1420/1995 dated 02-06-1995 concerning Gut No. 95, executed by defendant number 1, Shivaji, are declared null and void to the extent of the share of plaintiff number 2, Parwatibai, and not binding on her; (iv) The sale deeds executed by defendant number 1, Shivaji, in favour of appellants, original defendants numbers 2 to 4, shall be binding to the extent of his share; (v) Plaintiff number 2, Parwatibai, shall be entitled to recover possession of her share of the suit property; (vi) The decree shall be prepared accordingly; (vii) No order as to costs; (viii) The second appeal is disposed of accordingly; (ix) In view of the disposal of the second appeal, the civil application also stands disposed of.
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03.03.2022 Present: Shri Sachin Anand, Learned Counsel for the revisionist. Shri Nischal Singh, Learned Additional Public Prosecutor for respondent No. 1. Learned Counsel for respondent No. 2. Heard arguments as advanced by Learned Counsel for the revisionist, Learned Additional Public Prosecutor for the State and Learned Counsel for respondent No. 2., This is a revision petition filed against the order dated 09.02.2021 passed by the Learned Additional Chief Metropolitan Magistrate, South District in Criminal Case No. 169/21 titled Bula Devi vs. Seema Meena & Anr (hereinafter referred to as the Impugned Order). The material facts leading to the filing of this revision petition and which are relevant to dispose of this revision petition are mentioned in the following paragraphs., Shrimati Bula Devi filed an application under Section 156(3) of the Criminal Procedure Code seeking directions for registration of FIR and investigation into the sudden and unnatural death of her husband Sanjay Kumar. The deceased, Sanjay Kumar, was working as a Head Constable with the Delhi Police and was lastly posted at Police Station Saket, Delhi. While Sanjay Kumar was discharging his duties in Delhi, Shrimati Bula Devi and the children born out of wedlock were residing in the village at Alwar, Rajasthan. The deceased visited his family on 26.07.2020 and appeared troubled. Upon inquiry by Shrimati Bula Devi regarding his condition, he said that he was being harassed and blackmailed by one Seema Meena and another who are also police officials working with Delhi Police and in fact Ms. Seema Meena was also posted in Saket Police Station only. Further Sanjay informed his wife Shrimati Bula Devi that Ms. Seema Meena in connivance with others was trying to extort money from him, threatening to level false charges of sexual harassment against him if he did not pay the money being asked for. According to Shrimati Bula Devi, before leaving the house on 27.07.2020 her husband even raised some suspicion that something wrong may happen with him and that he feared for his life. Thereafter, Sanjay went to report for his duties in Delhi., On 28.07.2020, the dead body of Constable Sanjay (husband of Bula Devi) was found in suspicious circumstances within the jurisdiction of Police Station Saket itself. Constable Sanjay was found dead inside his car which was parked at a lonely spot and he had suffered a gunshot injury to his head. When the body was discovered, the deceased even had his official gun in his hand. A mobile phone and two SIM cards were also found from the car in which he was found dead., Shrimati Bula Devi wanted a fair investigation into the cause of unnatural, sudden death of her husband and therefore she made various complaints before different authorities seeking registration of an FIR, including complaints made to the Deputy Commissioner of Police, South District and to the Commissioner of Police. However, no FIR was registered on the asking of this widow of a young police official., She then approached the court of Learned Metropolitan Magistrate seeking registration of FIR and investigation into the cause of death of her husband. A status report was sought by the Learned Additional Chief Metropolitan Magistrate, South District from the concerned police station about the entire incident. In this status report it was informed by the police that indeed Constable Sanjay Kumar was found dead on 28.07.2020 inside a Wagon R car and was found shot with a pistol on the right side of his head. One 9 mm pistol with magazine, eight live cartridges, two empty chambers, one coin, one mobile phone and one knife were also found in the said car. Further, it was mentioned in the status report that the post‑mortem of the deceased had been conducted and exhibits like wound swab/body swab etc. were sent to the Forensic Science Laboratory for examination. It was also mentioned that call recordings between Ms. Seema Meena, one Kalu Ram and the deceased Constable Sanjay Kumar had been analysed. Proceedings/inquiry under Section 174 of the Criminal Procedure Code was also initiated. However, as per this status report, nothing suspicious came on record during police inquiry and therefore, the police did not lodge any FIR and the police authorities wanted more time to finalize the same., After considering the entire material before it and after hearing the arguments as advanced by the counsel for Shrimati Bula Devi, vide the Impugned Order, the Learned Additional Chief Metropolitan Magistrate issued directions under Section 156(3) of the Criminal Procedure Code to the Station House Officer concerned to register an FIR under the appropriate provisions of law and conduct investigation into the allegations as made by Shrimati Bula Devi. Thus, the application under Section 156(3) of the Criminal Procedure Code was disposed of vide the Impugned Order., Aggrieved by the Impugned Order, Ms. Seema Meena and Constable Kalu Ram Meena have filed this revision petition praying that the Impugned Order be set aside. It is admitted by the revisionist that they are working as constables with Delhi Police. It is the case of the revisionist Seema Meena that she had a cordial friendly relationship with the deceased. The Impugned Order has been challenged on the following grounds: (i) that the Impugned Order was passed in a mechanical manner without application of judicial mind and without mentioning the exact penal offences for which the FIR was to be registered; (ii) that the various complaints made by Shrimati Bula Devi are contradictory in nature; (iii) that the trial court ignored the status report filed by the police and the fact that the Forensic Science Laboratory results and final post‑mortem reports were still awaited and in a hurried manner gave directions for registration of FIR; (iv) that the cause of death of the deceased was not mentioned in the Impugned Order which is a cryptic and non‑speaking one. Learned Counsel for the revisionist argued on similar lines and prayed that the Impugned Order be set aside., On the other hand, Learned Counsel for Shrimati Bula Devi, i.e., respondent No. 2, argued that the Impugned Order is a speaking and well‑reasoned one which must be upheld. Counsel argued that the pendency of the final post‑mortem report and Forensic Science Laboratory report which were not available with the police, even after six months of the death of a serving police official, can be no ground for non‑registration of FIR and keeping the registration of FIR in abeyance for an even longer time will defeat the ends of justice., Before deciding the instant revision petition, it would be relevant to reproduce concerned provisions of law which are as under: Section 397: Calling for records to exercise powers of revision: (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situated within its or his local jurisdiction for the purpose of satisfying itself or himself to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. Explanation: All magistrates, whether executive or judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub‑section and of section 398. (2) The powers of revision conferred by sub‑section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them., The Hon’ble Delhi High Court in Nishu Wadhwa vs. Siddharth Wadhwa & Anr on 10 January 2017 observed at paragraph 13: “The issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an application under Section 156(3) Criminal Procedure Code. The said issue crops up when the Magistrate entertains the complaint and on taking cognizance proceeds as a complaint case. In case directions are issued for registration of FIR immediately, on registration of FIR, the person against whom allegations are made in the FIR attains the status of an accused. His rights in so far as the police can summon him for investigation, arrest him without warrants for allegations of cognizable offences are duly affected. In a situation where the fundamental right of freedom and liberty of a person is affected, it cannot be held that he has no right to be heard at that stage. Thus to hold that since directions only have been issued under Section 156(3) Criminal Procedure Code and no cognizance has been taken thus no revision would lie would be an erroneous reading of the decisions of the Supreme Court. Therefore, an order dismissing or allowing an application under Section 156(3) Criminal Procedure Code is not an interlocutory order and a revision petition against the same is maintainable. Thus, in light of the aforesaid legal position, it is clear that the instant revision petition is maintainable.” Having resolved the issue of maintainability in favour of the revisionist, now I proceed to test the case of the revisionist on its merits., It is the view of the Delhi High Court that once an application under Section 156(3) Criminal Procedure Code is moved before a Magistrate, she has two options. She can either send the case for investigation to the concerned police station in the facts and circumstances of a particular case or, instead of doing so, she may opt for taking cognizance on the complaint of the complainant, may proceed to record the testimony of the complainant and his witnesses in pre‑summoning evidence and thereafter, may decide whether a case for summoning of accused is made out or not. Once the Magistrate has opted to exercise her discretion of sending the matter for investigation by ordering registration of FIR, this court while exercising the power of revisional jurisdiction cannot substitute its own opinion with the opinion of the Learned Magistrate unless something perverse in the exercise of discretion is brought out. For this view, reliance is placed upon judgment of the Hon’ble Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123 wherein it has been observed: “Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non‑consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Criminal Procedure Code is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.” Now a perusal of the entire record and consideration of the arguments advanced does not highlight any illegality in the Impugned Order. The Impugned Order is a speaking one and self‑explanatory. Therefore, in my considered opinion, the Learned Magistrate has passed the Impugned Order after considering all the relevant factors and this court cannot interfere with the rightful exercise of the discretionary powers vested in the Learned Magistrate. Learned counsel for the revisionist has failed to point out any patent illegality or jurisdictional error in the Impugned Order. In the case at hand, I find that the Learned Magistrate has rightly exercised the discretionary power vested in her. I do not find any malafide or arbitrary exercise of discretion., The facts of this matter are such that a thorough police investigation supported by due scientific investigation is absolutely warranted. The sensitivity of the matter itself requires detailed investigation. After all a serving police official was found dead within the jurisdiction of the same police station where he was serving and was on duty. He suffered an unnatural death and as per the status report filed by the police he was found shot by a pistol on his forehead. Many notorious elements of any local area develop enmity with serving police officials. Unnatural death of a police officer on duty must be effectively investigated especially when the surviving family members are seeking such investigation raising suspicion over the cause and manner of death., Thus, in the present facts, on the one hand, the widow of the deceased is knocking on the doors of the very department her husband was serving, seeking at least registration of an FIR upon the unnatural death of her husband and on the other the police department, even in the death of one of its own, is acting in a lackadaisical, insensitive and illegal manner by refusing to lodge even an FIR in time., Interestingly, a post‑mortem has been conducted, inquiry under Section 174 Criminal Procedure Code initiated, crime team reached the spot, wound swabs – blood samples have been seized and sent for chemical examination to the Forensic Science Laboratory, Central Forensic Science Laboratory team also went to the spot and ballistic results have been sought, all this without even registration of an FIR! The Delhi High Court fails to appreciate this reverse‑gear approach adopted by the local police., Strangely the stand adopted by the police is that they will register an FIR only after receipt of all the results from the Forensic Science Laboratory and after they have analysed these results. Considering that even after more than six months of the death, the Forensic Science Laboratory results were pending and the police are willing to wait even longer before they register an FIR, the Learned Magistrate was completely justified in passing the Impugned Order., No preliminary inquiry as was pending even six months after the death of a police official was warranted. The Hon’ble Superior Courts have time and again condemned this practice of conducting lengthy, detailed and time‑consuming never‑ending preliminary inquiries by the police. It has been held that no such inquiry can be kept pending for more than a week and in case the preliminary inquiry ends up closing the complaint a copy of the entry of such closure must be supplied to the survivors forthwith. In the present case the preliminary inquiry was pending for half a year before the Impugned Order was passed. Registration of an FIR is the first step which must be taken in such cases before the police conducts further investigation. This duty of the police becomes all the more important and urgent when the deceased is a police official and his widow is sending written complaints mentioning her suspicion to higher officials of the police department., There is no merit in the argument by the Learned Counsel for the revisionist that since the Impugned Order does not mention the cognizable offence for which FIR was to be registered therefore it is bad in law. The Impugned Order clearly states that an FIR be registered under the relevant provisions of law, which is sufficient to set the wheels of the criminal justice system into motion. It is only after an investigation is conducted pursuant to the registration of FIR that the appropriate agency will know about the exact offence committed. Even otherwise an FIR is not an encyclopedia of facts., The cries of a widow have so far fallen on deaf ears giving her no answers regarding the reason behind or cause for her husband’s death. Registration of FIR will be the first step towards access to justice for the family members of the deceased police official. Registration of an FIR will facilitate swift investigation into this matter. There already has been too much delay in lodging of the FIR and the more delay is caused, the more are the chances of investigation being embellished. Thus, registering an FIR brooks no delay and must be promptly registered by the concerned Station House Officer immediately after receipt of this order., The landmark judgment delivered by the Hon’ble Apex Court in Lalita Kumari vs. State of Uttar Pradesh & others, AIR 2014 SC 187, must be honored in its letter and spirit. Non‑registration of FIR even in cases of unnatural death like the present one where suspicion is being cast in writing by the family members of the deceased clearly violates the mandate of law. If the death of a police officer, who died due to bullet injuries in an isolated spot and whose wife is crying foul blaming some people by name does not warrant even a registration of FIR, one wonders what does? An FIR is just the information of commission of a cognizable offence, reduced and recorded in writing. Other details like which offence exactly was committed, which provisions of law are attracted etc. can be ascertained later., It is clarified that this order merely upholds the Impugned Order and nothing mentioned herein should sway the investigation in any manner. The persons against whom suspicion has been raised in this matter are also experienced police officials; therefore, needless to say the investigation must be fair, unbiased and meet gold standards. The proposed accused must also feel secure that the investigation is a fair one., Accordingly, the Delhi High Court finds no valid reasons to interfere with the Impugned Order. The revision petition is accordingly dismissed.
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This reference to the larger bench of five judges arises out of the writ petitions filed challenging Notification No. 3407(E) dated 8 November 2016 (hereinafter referred to as the impugned Notification), issued by the Central Government in exercise of the powers conferred by sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934 (hereinafter referred to as the RBI Act), vide which the Central Government declared that the bank notes of denominations of the existing series of the value of five hundred rupees and one thousand rupees shall cease to be legal tender with effect from 9 November 2016, to the extent specified in the impugned Notification. This is popularly known as the demonetisation policy., Immediately after the impugned Notification was issued, several writ petitions challenging the policy of demonetisation were filed before the Supreme Court of India as also before various High Courts. Transfer petitions were filed by the Union of India, seeking transfer of all such matters pending before the High Courts to the Supreme Court of India., A bench of three learned judges of the Supreme Court of India passed an order dated 16 December 2016 in Writ Petition (Civil) No. 906 of 2016 and other connected petitions, observing that, in their opinion, the following important questions fall for consideration: (i) whether the notification dated 8 November 2016 is ultra vires Section 26(2) and Sections 7, 17, 23, 24, 29 and 42 of the RBI Act; (ii) whether the notification contravenes Article 300A of the Constitution; (iii) assuming that the notification has been validly issued under the RBI Act, whether it is ultra vires Articles 14 and 19 of the Constitution; (iv) whether the limit on withdrawal of cash from bank accounts has no basis in law and violates Articles 14, 19 and 21; (v) whether the implementation of the impugned notification suffers from procedural and/or substantive unreasonableness and thereby violates Articles 14 and 19; (vi) in the event that Section 26(2) is held to permit demonetisation, whether it suffers from excessive delegation of legislative power rendering it ultra vires the Constitution; (vii) what is the scope of judicial review in matters relating to fiscal and economic policy of the Government; (viii) whether a petition by a political party on the issues raised is maintainable under Article 32; and (ix) whether District Co‑operative Banks have been discriminated against by being excluded from accepting deposits and exchanging demonetised notes., By the order dated 16 December 2016, the Supreme Court of India also directed that if any other writ petitions or proceedings were pending in any High Court, further hearing of those matters should remain stayed. The Court further directed that no other court should entertain, hear or decide any writ petition or proceeding on the issue of, or in relation to, or arising from the decision of the Government of India to demonetise the notes of Rs. 500 and Rs. 1,000, since the entire issue was pending consideration before the Supreme Court of India., On 8 November 2016, vide the impugned Notification, the Central Government, in exercise of the powers conferred by sub‑section (2) of Section 26 of the RBI Act, notified that the specified bank notes (hereinafter referred to as Specified Bank Notes or SBNs) shall cease to be legal tender with effect from 9 November 2016. The SBNs were bank notes of denominations of Rs. 500 and Rs. 1,000. Under clause 1 of the Notification, every banking company and every Government Treasury was required to forward a return with details of SBNs held by it as on 8 November 2016, not later than 13:00 hours on 10 November 2016, to the designated Regional Office of the Reserve Bank of India. Under clause 2, individuals were entitled to exchange SBNs in specified banks up to 30 December 2016 subject to certain conditions. Initially a limit of Rs. 4,000 was provided for such exchange, to be reviewed after 15 days. For Know Your Customer (KYC) compliant bank accounts there was no limit on the quantity or value of SBNs that could be credited; for non‑KYC compliant accounts an outer limit of Rs. 50,000 was fixed., A separate notification of the same date granted various relaxations allowing SBNs to be used for payment in government hospitals, pharmacies, railway booking centres, consumer cooperative stores, milk booths, purchase of petrol, etc., valid till 11 November 2016. Subsequent notifications were issued from time to time granting further relaxations., On 30 December 2016, the Specified Bank Notes (Cessation of Liabilities) Ordinance, 2016 (hereinafter referred to as the 2016 Ordinance) was promulgated by the Hon'ble President of India. Subsequently, Parliament enacted the Specified Bank Notes (Cessation of Liabilities) Act, 2017 (hereinafter referred to as the 2017 Act), which received the assent of the Hon'ble President on 27 February 2017. Section 3 of the 2017 Act provides that, from the appointed day, notwithstanding anything contained in the RBI Act or any other law, the SBNs which had ceased to be legal tender shall also cease to be liabilities of the RBI under Section 34 of the RBI Act and shall cease to have the guarantee of the Central Government under sub‑section (1) of Section 26 of the RBI Act. Section 4 of the 2017 Act provides a grace period for certain classes of persons holding SBNs on or before 8 November 2016 to tender them to the RBI or in any other manner specified. One class includes Indian citizens who were outside India between 9 November 2016 and 30 December 2016; another class includes persons for reasons specified by a notification of the Central Government., Sub‑section (2) of Section 4 of the 2017 Act provides that the RBI may, if satisfied after verification, credit the value of notes in a KYC‑compliant bank account of a person who has genuine reasons for failure to deposit the notes within the period specified. Sub‑section (3) allows any aggrieved person to make a representation to the Central Board of the RBI within fourteen days of the communication of refusal., On the same day as the promulgation of the 2016 Ordinance, i.e., 30 December 2016, the Central Government issued Notification No. 4251(E), in exercise of the powers conferred by clause (b) of sub‑section (1) of Section 2 read with clause (i) of sub‑section (1) of Section 4 of the 2016 Ordinance. It provided a grace period till 31 March 2017 for citizens resident in India and till 30 June 2017 for non‑resident citizens. The proviso limited the amount of SBNs tendered to not exceed the amount specified under Regulation 3 or Regulation 8 of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2015, made under the Foreign Exchange Management Act, 1999., Some of the writ petitions were listed before the Supreme Court of India on 21 March 2017, when the Court ordered: (i) issue notice; (ii) Mr. R. Balasubramanyam, learned counsel, to accept notice on behalf of the Union of India and Mr. H. S. Parihar, learned counsel, to accept notice on behalf of the Reserve Bank of India; (iii) ascertain from the Union of India whether the Central Government intends to exercise the power conferred by clause (4)(1)(ii) of Ordinance 10 of 2016 and, if not, the reason for not exercising it, by filing an affidavit; (iv) comply within two weeks; (v) post for hearing on 11 April. A short affidavit was filed on behalf of the Union of India on 7 April 2017, stating that the Central Government took a conscious decision that no necessity or justifiable reason existed, either in law or fact, to invoke its power under Section 4(1)(ii) of the Ordinance to entitle any person to tender SBNs within the grace period., The matter came up for hearing before this bench initially on 12 October 2022 and thereafter on various dates. Shri P. Chidambaram and Shri Shyam Divan, learned senior counsel, Shri Prashant Bhushan, learned counsel, Shri Viplav Sharma, petitioner‑in‑person, Shri R. Venkataramani, learned Attorney General for the Union of India, and Shri Jaideep Gupta, learned senior counsel for the RBI, were heard, along with counsel appearing in the connected petitions., Shri P. Chidambaram submitted that, upon correct interpretation, sub‑section (2) of Section 26 of the RBI Act must be read down so that it does not permit the power to be exercised in respect of all series of notes of a specified denomination. He argued that the word “any” denotes that the power can be exercised only when a particular series of any denomination is sought to be demonetised. He referred to the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 and the High Denomination Bank Notes (Demonetisation) Act, 1978, where all series of high‑denomination notes were demonetised by separate enactments of Parliament, indicating that a separate enactment is required when all series of a denomination are to be demonetised., He further submitted that because bank notes are issued in different series, the words “any series” before “bank notes of any denomination” in subsection (2) of Section 26 must be construed as limiting the Government’s power to declare only a specified series as no longer legal tender, not all series. If the power were held to extend to all series, a situation could arise where notes issued on the previous day could be demonetised the very next day, which would be arbitrary and violative of Articles 14, 19, 21 and 300A of the Constitution., Shri Chidambaram argued that sub‑section (2) of Section 26 contains no policy or guidelines, and that the factors to be considered are not specified. In the absence of such guidelines, the delegation of such a drastic power to the Executive is excessive, arbitrary and violative of Articles 14, 19, 21 and 300A. He relied on the Constitution Bench judgments in Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India and Harakchand Ratanchand Banthia v. Union of India., He further contended that the decision‑making process was deeply flawed. The Central Board of the RBI, constituted under Section 8, is required to consider all relevant material and make a recommendation, but the Board at the time consisted of a majority of directors who were representatives of the Central Government, with many vacancies in the independent director category. The proposal for demonetisation was initiated by the Central Government, the Board met on 8 November 2016, gave its recommendation the same day, and the Prime Minister announced the decision on national television at 8 p.m., indicating a pre‑mediated and rushed process lacking proper deliberation., Shri Chidambaram submitted that the documents necessary to verify the process – the Central Government’s letter of 7 November 2016, the agenda note of 8 November 2016, the Board’s recommendation, the Cabinet note and the Cabinet minutes – have not been produced. Without these, it cannot be ascertained whether a quorum was present, whether an independent director was present as required by the Reserve Bank of India (General) Regulations, 1949, and whether the relevant factors were considered., He further argued that the objectives stated in the impugned Notification were false and illusory. The objective of eliminating fake currency was not achieved; the RBI’s 2016‑2017 Annual Report showed only Rs. 43.3 crore of fake currency detected out of approximately Rs. 15.31 lakh crore exchanged, representing 0.0028 % of the total. The objective of curbing unaccounted wealth also failed, as 86.4 % of the currency by value (approximately Rs. 15,44,000 crore) became illegal tender, causing severe hardship to millions, steep unemployment, disruption to farmers, and disproportionate impact on rural and North‑East regions due to inadequate ATM coverage., He submitted that the doctrine of proportionality, now recognised in Indian jurisprudence, requires that the drastic step of demonetisation be justified. No alternative method was considered, and the measure caused economic loss estimated at 1‑2 % of GDP (about Rs. 1,50,000 crore). He relied on the judgments of K.S. Puttaswamy (Retired) v. Union of India and Internet and Mobile Association of India v. Reserve Bank of India., Finally, Shri Chidambaram submitted that while the Supreme Court of India may not examine the correctness of the substantive decision, it can examine the correctness of the decision‑making process. He contended that the process adopted violated the procedure prescribed in sub‑section (2) of Section 26 of the RBI Act and therefore the impugned Notification should be set aside.
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He submits that, in any case, they have failed to take into consideration the relevant factors which were required to be taken into consideration and have taken into consideration those factors which were false from the very inception and have subsequently been proved to be so. He, therefore, submits that the Supreme Court of India is entitled to exercise its powers of judicial review and hold that the decision‑making process was not sustainable in law. In this respect, learned Senior Counsel relied on the judgments of the Supreme Court of India in the cases of Tata Cellular v. Union of India, Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil, Centre for Public Interest Litigation and others v. Union of India and others, Lt. General Manomoy Ganguly v. Union of India and others and K.S. Puttaswamy (Retired) and another (Aadhaar) (supra)., Learned Senior Counsel further submitted that, despite the passage of time, the Supreme Court of India has the power to grant declaratory relief including the relief of declaring the true meaning and interpretation of various provisions of the Reserve Bank of India Act and also to mould the relief accordingly. Learned Senior Counsel relied on the judgments of the Supreme Court of India in the cases of Somaiya Organics (India) Ltd. and another v. State of Uttar Pradesh and another, Orissa Cement Ltd. v. State of Orissa and others, and I.C. Golak Nath & Others v. State of Punjab & Another in support of the said submissions. Learned Senior Counsel further submitted that the impugned Notification is also violative of Article 19(1)(g) of the Constitution of India. He submits that if it is the contention of the State that the restriction imposed is reasonable and in the interest of the general public, then the burden is on the respondents to establish the same. However, in the present case, the respondents have failed to do so. He further submits that the Supreme Court of India in the case of Jayantilal Ratanchand Shah v. Reserve Bank of India and others has held the currency notes to be property. He, therefore, submits that depriving a person of his property by demonetisation would be violative of Article 300A of the Constitution of India., Shri Shyam Divan, learned Senior Counsel appearing on behalf of the applicant Malvinder Singh, submitted that, apart from the guarantee given by the Central Government with regard to exchange of every bank note as legal tender at any place in India, they are also the liabilities of the Issue Department under Section 34 of the Reserve Bank of India Act to an amount equal to the total of the amount of the currency notes of the Government of India and bank notes for the time being in circulation., Learned Senior Counsel submitted that the Honourable Prime Minister, in his speech on 8 November 2016, gave a categorical assurance that the rights and interests of honest, hard‑working people would be fully protected. A specific assurance was also given that if there may be some who, for some reason, are not able to deposit their old five hundred or one thousand rupee notes by 30 December 2016, they could go to specified offices of the Reserve Bank of India up to 31 March 2017 and deposit the notes after submitting a declaration form. He submits that a person of a stature no less than the Honourable Prime Minister of India has given an assurance that such persons would be able to go to specified offices of the Reserve Bank of India up to 31 March 2017 and deposit the notes after submitting a declaration form. It is further submitted that in the Press Note published on the same day, i.e., 8 November 2016, an assurance was given to the following effect: (x) For those who are unable to exchange their old high denomination bank notes or deposit the same in their bank accounts on or before 30 December 2016, an opportunity will be given to them to do so at specified offices of the Reserve Bank of India on later dates along with necessary documentation as may be specified by the Reserve Bank of India., Learned Senior Counsel submits that the said assurance was also reiterated in the Reserve Bank of India notice dated 8 November 2016. He therefore submits that the applicant’s case (petitioner in Writ Petition (Civil) No. 149 of 2017) stands on peculiar facts. Shri Divan submits that the applicant withdrew an amount of Rs. 1,20,000/- from his bank account operating in Central Cooperative Bank, Sangrur, Punjab (Branch – Ghelan) on 3 December 2015 and kept the same with his previous savings of Rs. 42,000/- in cash, which totals to Rs. 1,62,000/- (i.e., 60 notes of Rs. 500 denomination and 132 notes of Rs. 1,000 denomination). On 11 April 2016, he went to visit his son residing in the United States, leaving his above‑mentioned saving of Rs. 1,62,000/- at home in India for his future knee operation. The applicant travelled with his wife. During their absence, their home was locked and the money could not have been deposited. Learned Senior Counsel submits that, after returning to India on 3 February 2017, and relying on the assurance given by the Honourable Prime Minister of India, he made a representation to the Reserve Bank of India for exchange of the currency notes in his possession. However, the same was not considered, thus constraining him to file a writ petition (Writ Petition (Civil) No. 149 of 2017). The Supreme Court of India, vide order dated 3 November 2017, disposed of the said writ petition giving him the liberty to file an application for intervention/impleadment in Writ Petition (Civil) No. 906 of 2016 (Vivek Narayan Sharma v. Union of India), which was accordingly filed vide I.A. No. 26757 of 2018 in Writ Petition (Civil) No. 906 of 2016., Shri Divan submits that the proviso to the Notification dated 30 December 2016 issued by the Ministry of Finance, Department of Economic Affairs, Government of India, totally excludes persons like the applicant. He submits that only on account of the number of days residing abroad, the applicant was categorized as a non‑resident Indian and, as such, he was only entitled to exchange currency notes to the extent provided in the proviso to the Notification dated 30 December 2016. Learned Senior Counsel submits that, however, the applicant had not carried the cash while travelling abroad and, as such, there was no question of making a declaration under clause (i) of sub‑section (1) of Section 4 of the 2016 Notification., Learned Senior Counsel further submitted that, in view of clause (ii) of sub‑section (1) of Section 4 of the Reserve Bank of India Act, 2017, the Central Government is empowered to provide a grace period to such class of persons and for such reasons as may be specified, by notification. He submits that the said power is coupled with a duty. It is, therefore, submitted that when there are genuine cases, the Central Government is bound to exercise the power under clause (ii) of sub‑section (1) of Section 4 of the Reserve Bank of India Act and provide a grace period to the applicant and persons like him., Shri Divan further submits that the circular of the Reserve Bank of India dated 31 December 2016 is also discriminatory, inasmuch as in the case of resident Indians, there is no monetary limit for tender of high denomination bank notes. However, insofar as non‑resident Indians (NRIs) are concerned, the tender is restricted to a maximum of Rs. 25,000/- per individual depending on when the notes were taken out of India as per relevant FEMA rules. Learned counsel submits that an additional liability is imposed upon NRIs to produce a certificate issued by the Indian Customs on arrival through the red channel after 30 December 2016, indicating the import of high denomination bank notes, with details and value thereof., Shri Divan relied on the article titled “Using Fast Frequency Household Survey Data to Estimate the Impact of Demonetisation on Employment” by Mr. Mahesh Vyas, Centre for Monitoring Indian Economy (2018) in support of his submission that on account of demonetisation, there was a substantial reduction in employment, which was about 12 million lower than it was during the two months preceding demonetisation. Over a four‑month period when the entire sample was surveyed, the impact of demonetisation reduced to a loss of about three million jobs. He submits that an article in the Indian Express dated 17 January 2017, based on a study conducted by the All India Manufacturers Organisation (AIMO), indicated that the manufacturing sector suffered considerable job loss post‑demonetisation., Learned Senior Counsel also submits that in the absence of a specific study with regard to the effect of demonetisation on the Indian economy, the decision of the Central Government for demonetising about 86.4% of the total currency in circulation will have to be held to be vitiated on account of manifest arbitrariness. It is submitted that the impugned notification is also liable to be set aside applying the test of proportionality. Applying the classical equality test, he submits that it will have to be held that the decision of demonetisation had no nexus to the objectives to be achieved. Learned Senior Counsel relies on the judgment of the Constitution Bench of the Supreme Court of India in the case of K.S. Puttaswamy (Retired) and another (Aadhaar) (supra) in this regard., Shri Divan lastly submits that the right to life also includes the right to live with dignity. Relying on the Constitution Bench judgment of the Supreme Court of India in the case of Maneka Gandhi v. Union of India, he submits that the right to live with dignity also includes the right to travel abroad, especially to visit the son of the petitioner/applicant in the United States. He, therefore, submits that when the applicant/petitioner had gone to the United States to visit his son during the period wherein the currency notes could have been exchanged, he will be deprived of his right under Article 21 of the Constitution of India if he is not granted an opportunity now to exchange the demonetised notes with the new notes., Shri R. Venkatramani, learned Attorney General, at the outset, submits that the action taken vide the impugned notification stands ratified by the 2017 Act. It is, therefore, submitted that with the executive action being validated by the will of Parliament, the challenge to the same would not survive., The learned Attorney General submits that the word “any” appearing before the words “series of bank notes” in sub‑section (2) of Section 26 of the Reserve Bank of India Act should be construed as “all”. He relies on the following judgments of the Supreme Court of India in support of his submission that the word “any” will have to be construed to be “all”: (i) The Chief Inspector of Mines and another v. Lala Karam Chand Thapar etc.; (ii) Banwarilal Agarwal v. The State of Bihar and others; (iii) Tej Kiran Jain and others v. N. Sanjiva Reddy and others; (iv) Lucknow Development Authority v. M.K. Gupta; (v) K.P. Mohammed Salim v. Commissioner of Income Tax, Cochin; (vi) Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and another., The learned Attorney General submits that the action under sub‑section (2) of Section 26 of the Reserve Bank of India Act cannot be construed in a narrow compass. He submits that various factors, aspects and challenging confrontations affecting the economic system of the country and its stability will have to be given due weightage while considering the validity of the action taken under sub‑section (2) of Section 26 of the Reserve Bank of India Act., The learned Attorney General submits that the comparison of the action taken under sub‑section (2) of Section 26 of the Reserve Bank of India Act with the 1946 and the 1978 legislations is totally misconceived. He submits that, in any case, the 2017 Act not only addresses the issues relating to cessation of legal tender under sub‑section (2) of Section 26 of the Reserve Bank of India Act, but also provides for exchange of bank notes in order that Article 300A of the Constitution of India is complied with, and also extinguishes the liabilities of the Issue Department of the Reserve Bank of India under Section 34 of the Reserve Bank of India Act., The learned Attorney General submits that if the construction advanced by the petitioners is accepted, then the very purpose for which the provision is made shall stand frustrated. He, relying on the judgment of the Supreme Court of India in the case of C.I.T. v. S. Teja Singh, submits that it is a settled principle of law that the courts will strongly lean against a construction of a provision which will render it futile. He submits that the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result, is required to be accepted., The learned Attorney General submits that the argument that the word “any” would not mean “all” is fallacious in nature. If the same is accepted, the Government would technically be permitted to issue separate notifications for each series but would be prohibited from issuing a common notification for all series. He submits that if such process is permitted, it would lead to chaos and uncertainty., The learned Attorney General further submits that the word “any” has been used at two places in sub‑section (2) of Section 26 of the Reserve Bank of India Act. He submits that the word “any” preceding the words “series of bank notes” has to be construed to mean “all”, whereas the word “any” preceding the word “denomination” may be construed to be singular or otherwise. He submits that the same word used in the same provision twice could be permitted to have a different meaning. He relies on the judgment of the Supreme Court of India in the case of Maharaj Singh v. State of Uttar Pradesh and others in support of his submission., The learned Attorney General submits that the alternative submission that if the word “any” is not given any restricted meaning then sub‑section (2) of Section 26 of the Reserve Bank of India Act will have to be held invalid on the ground of vesting of excessive delegation is also without substance. He submits that the Reserve Bank of India is not just like any other statutory body created by an Act of legislature. It is a creature created with a mandate to get liberated even from its creator. He submits that the guiding factors for exercise of power under sub‑section (2) of Section 26 of the Reserve Bank of India Act have to be found from Section 3 of the Reserve Bank of India Act as well as from its preamble. He submits that the Reserve Bank of India Act was enacted for the purposes of taking over the management and regulation of the currency from the Central Government as per Section 3 of the Act. The preamble of the Act also states that the Reserve Bank has been constituted to regulate the issue of bank notes. He submits that the words “taking over the management of the currency” in Section 3 of the Act and “regulate” in the preamble have to be given the widest possible import. He submits that a narrower construction would defeat the very purpose of the Act. He submits that the word “regulate” would also include “prohibit”., The learned Attorney General, relying on the judgment of the Supreme Court of India in the case of Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and another, submits that, in order to find out whether the legislature has given guidance for the exercise of delegated powers, the court will have to consider the provisions of the particular Act with which the court has to deal, including its preamble. He submits that the preamble of the Reserve Bank of India Act read with Section 3 thereof provides sufficient guidance to the Central Government for exercising its powers. He further submits that, while considering whether the delegation is excessive, the nature of the body to which delegation is made is also a factor to be taken into consideration. He submits that in the present case, the delegation is to the Central Government and not to any subordinate office or department., The learned Attorney General submitted that the judgment of the Supreme Court of India in the case of Harakchand Ratanchand Banthia and others would not be applicable to the facts of the present case, inasmuch as in the said case the delegation was to an Administrator and this court found that the delegation to the Administrator was too wide and thus suffered from the vice of excessive delegation. He submits that, similarly, the judgment of the Supreme Court of India in the case of Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another would also not be applicable to the facts of the present case., The learned Attorney General, in addition to the reliance placed on the judgment of the Supreme Court of India in the case of Birla Cotton, Spinning and Weaving Mills Delhi, also relies on the judgments of the Supreme Court of India in the following cases: (i) Delhi Laws Act, In Re; (ii) M.P. High Court Bar Association v. Union of India and others; (iii) Kerala State Electricity Board v. The Indian Aluminium Co. Ltd.; (iv) Ajoy Kumar Banerjee and others v. Union of India and others; (v) Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. The Assistant Commissioner of Sales Tax and others; (vi) Ramesh Birch and others v. Union of India and others; (vii) M/s Gammon India Limited etc. v. Union of India & Others; (viii) Prabhudas Swami and Another v. State of Rajasthan and Others; (ix) Rojer Mathew v. South Indian Bank Ltd. represented by its Chief Manager and Others; (x) The Registrar of Co-operative Societies, Trivandrum and another v. K. Kunjabmu and others; (xi) Darshan Lal Mehra and others v. Union of India and others., The learned Attorney General also relies on the judgments of the United States Supreme Court in the cases of Yakus v. United States and Federal Energy Administration v. Algonquin SNG, Inc. in support of his submission., Insofar as the contention of the petitioners with regard to the impugned action being susceptible to challenge on the ground of proportionality is concerned, the learned Attorney General submits that the reliance placed on the judgment of the Supreme Court of India in the case of Internet and Mobile Association of India is wholly misconceived. Relying on various paragraphs from the said judgment, he submits that the observations made in paragraph 224 of the judgment have to be read in context with the issue that fell for consideration before the court in the said case. He submits that in that case the court was considering the action of the Reserve Bank of India in restricting the banks and financial institutions regulated by it from providing access to banking services to those engaged in transactions in crypto assets. He submits that, though the court held that, in view of the provisions contained in the Reserve Bank of India Act, the Banking Regulation Act, 1949 and the Payment and Settlement Systems Act, 2007, and also in view of the special place and role that the Reserve Bank of India has in the economy of the country, the Reserve Bank of India had very wide and ample powers to take preventive and curative measures. However, the court found that applying the test of proportionality, in the absence of the Reserve Bank of India pointing out some semblance of any damage suffered by its regulatory entities, the action was not sustainable. The learned Attorney General submitted that the action in the present case was taken after considering the relevant factors and to address serious concerns such as terror financing, black money and fake currency. It is, therefore, submitted that the judgment of the Supreme Court of India in the case of Internet and Mobile Association of India would not be applicable to the facts of the present case., The learned Attorney General, relying on the judgment of the Supreme Court of India in the case of State of Tamil Nadu and another v. National South Indian River Interlinking Agriculturist Association, submitted that in a case of non‑classificatory arbitrariness, the test of proportionality would be applicable. However, in a case of classificatory arbitrariness, the only test that will have to be satisfied is the rational nexus test, i.e., whether the action taken has a reasonable nexus with the object to be achieved. He submits that the present case falls in the latter category and not in the former., Countering the argument made on behalf of the petitioners that the power exercised under sub‑section (2) of Section 26 of the Reserve Bank of India Act has not been exercised in the manner provided therein and that the decision‑making process is flawed on account of patent arbitrariness, the learned Attorney General submitted that, in view of the settled legal position, the contention is also not tenable. He submits that what is postulated under sub‑section (2) of Section 26 of the Reserve Bank of India Act is that the Central Government may take a decision on the recommendation of the Central Board. He submits that, in the present case, there was a recommendation by the Central Board recommending demonetisation. The decision by the Central Government was taken after considering the said recommendation. It is, therefore, submitted that the procedure provided in sub‑section (2) of Section 26 of the Reserve Bank of India Act stands duly complied with. The learned Attorney General submitted that the Reserve Bank of India is not only an expert body but a very special institution charged with a duty of conceiving and implementing various facets of economic and monetary policy. He submits that there cannot be a straitjacket formula in the discharge of its duty. He further submits that, in any case, it is settled law that the Supreme Court of India should not interfere with the opinion of experts and leave it to experts who are more familiar with the problems they face. Reliance in this respect is placed on the judgment of the Supreme Court of India in the case of Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University, Sirsa and another, and Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and others., Relying on the judgment of the Supreme Court of India in the case of Bajaj Hindustan Limited v. Sir Shadi Lal Enterprises Limited and another, the learned Attorney General submits that economic and fiscal regulatory measures are a field where judges should encroach upon very warily as judges are not experts in these matters., The learned Attorney General submitted that the recommendation of the Reserve Bank of India and the decision of the Central Government were taken after taking into consideration that fake currency notes of the high denomination bank notes have largely been in circulation and it was difficult to identify genuine bank notes from the fake ones and to also address three serious problems viz., fake currency notes, storage of unaccounted wealth and terror financing. He submits that the material with regard to such factors cannot be considered overnight. He submits that the 2012 White Paper on Black Money throws light on the complexity of the problem. The information and data gathered from various agencies of the Government of India are required to be taken into consideration. He submits that both the Reserve Bank of India and the Central Government act in coordination with each other. The learned Attorney General submits that the discussions over the issue have taken place over a long period of time and, after considering all the aspects, the Reserve Bank of India recommended demonetisation and the Central Government took the decision to demonise., The learned Attorney General further submitted that the contention of the petitioners that demonetisation has utterly failed to achieve its objectives as stated in the impugned notification is also without substance. He submits that the repercussions of an action like the one under consideration can be best understood by considering the legal tender cessation measure not in isolation but by looking at the overall benefits flowing from such a measure. He submits that the benefits and advantages of such an action are direct as well as indirect. He submits that, as a result of the impugned action, there are direct benefits, such as: (i) significant reduction in fake currency; (ii) significant increase in the number of taxpayers; (iii) 25 % growth in filing income‑tax returns; (iv) significant increase in returns filed by corporate taxpayers; (v) substantial growth in new PAN numbers., The learned Attorney General submits that, whereas self‑assessment tax in the year 2015‑16 was Rs 55,000 crore and Rs 68,000 crore in the year 2016‑17, it jumped to Rs 1,00,000 crore in the year 2017‑18. He further submits that, as a direct benefit of demonetisation, the volume of Unified Payments Interface (UPI) transactions shot up from 1.06 crore in 2016‑17 to 90.5 crore in 2017‑18 and further to about 5,000 crore in 2021‑22. The value of the UPI transactions also grew 1,210 times in 2021‑22 as compared to 2016‑17. He submits that the real GDP growth in the year 2017‑18 was higher than the average annual growth of 6.6 % in the decade 2010‑11 to 2019‑20., The learned Attorney General further submits that there have also been various indirect benefits. Action against domestic black money resulted in undisclosed income of Rs 82,168 crore. Surveys conducted in 63,691 cases led to undisclosed income of Rs 84,396 crore being deducted. The Employees’ Provident Fund Organisation enrolment data saw an increase of 1.1 crore new enrolments. It also saw a 55 % increase in Employees’ State Insurance Corporation registrations. It is, therefore, submitted that if the effect of the impugned action is considered in a larger perspective, it will clearly show that there have been several direct as well as indirect benefits on account of demonetisation., The learned Attorney General further submits that, merely because in 1946 and 1978 demonetisation was effected by enactments of Parliament, cannot be a ground to hold that the Central Government does not have power under sub‑section (2) of Section 26 of the Reserve Bank of India Act. He submits that, in any case, the argument does not hold water inasmuch as what has been provided under the impugned notification is wholly ratified by the 2017 Act. He submits that once the executive action is ratified by Parliament by way of legislation, the argument that since Parliament chose to do so in 1946 and 1978, the Central Government could not have done it under the impugned notification itself is contradictory., The learned Attorney General submits that the perusal of the Parliamentary debates while enacting the 1978 Act would clearly show that, though the Act only demonetised high denomination bank notes of the values Rs 1,000, Rs 5,000 and Rs 10,000, the Members of Parliament advocated for demonetisation of even the bank notes of the value Rs 100., The learned Attorney General submits that the provisions of the 1978 Act have been found to be constitutional by the Constitution Bench judgment of the Supreme Court of India in the case of Jayantilal Ratanchand Shah. He submits that, for the reasoning adopted by the Constitution Bench in that case, the impugned notification, which now stands ratified by the 2017 Act, also deserves to be upheld., In respect of the submission made on behalf of the petitioners that, in order to address the genuine difficulties of various persons who could not deposit the demonised bank notes within the limited period, a window should be opened for a limited period, the learned Attorney General submitted that if such is permitted, it would amount to devising a norm which would alter the essential character of the enactment. He submits that, firstly, it is difficult to ascertain genuineness of the money. Such a request would have to be based on certain declarations made by the party whose veracity cannot be verified. He further submits that this would also provide a loophole for non‑genuine bank note holders to channelise their unaccounted money through the window. He further submits that, incidentally, law‑enforcing agencies are still recovering significant amount of high denomination bank notes from individuals., The learned Attorney General further submits that, as of now, Rs 10,719 crore of high denomination bank notes are still in circulation. He submits that, in any case, in view of the provisions of clause (i) of sub‑section (1) of Section 4 of the 2017 Act, 77,748 applications involving an amount of Rs 284.25 crore were received from resident and non‑resident Indians by the five designated Regional Offices of the Reserve Bank of India during the grace period. Out of this, a total of 57,405 cases (74 % of the total applications received) amounting to Rs 221.95 crore (78 % of the total amount under these applications) have been accepted and the amounts have been credited to their KYC‑compliant bank accounts.
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It is submitted that out of the total cases, 20,343 cases were rejected due to various reasons. The learned Attorney General submits that it will not be permissible for the Supreme Court of India to devise a norm which would result in altering the essential character of the enactment. In support of this submission, he relies on the judgment of United States Supreme Court in the case of Metropolis Theater Company et al v. City of Chicago and Ernest J. Magerstadt. The learned Attorney General lastly submits that the Supreme Court of India must not proceed for a formal judgment when it cannot grant any effectual relief. In this respect, he relies on the judgments of United States Supreme Court in the cases of North Carolina v. Wayne Claude Rice and Mills v. Green and the judgment of the Court of Appeal of New York in the case of People ex rel. Kingsland v. Clark. Taking the line further, the learned Attorney General submits that it is also a settled proposition of law that the Supreme Court of India should not decide academic questions. In this respect, he relies on the judgment of the Supreme Court of India in the cases of Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly, Central Areca Nut & Cocoa Marketing & Processing Cooperative Ltd. v. State of Karnataka and others, and R.S. Nayak v. A.R. Antulay., Shri Jaideep Gupta, learned Senior Counsel appearing on behalf of the Reserve Bank of India, would submit that the contention of the petitioners that the power under sub-section (2) of Section 26 of the Reserve Bank of India Act is uncanalised, unguided and arbitrary is without any basis. He submits that sub-section (2) of Section 26 of the Reserve Bank of India Act itself provides that the power of the Central Government has to be exercised on the recommendation of the Central Board. It is, therefore, submitted that there is an inbuilt safeguard in the provision itself., Relying on the judgment of the Supreme Court of India in the case of Peerless General Finance and Investment Co. Limited and another v. Reserve Bank of India, it is submitted that the Reserve Bank of India, which is a bankers' bank, has a large contingent of experts to render advice relating to matters affecting the economy of the entire country. It is submitted that the Reserve Bank of India plays an important role in the economy and financial affairs of India and one of its important functions is to regulate the banking system in the country. It is submitted that the recommendation of the Central Board is based upon the advice of the experts that the Reserve Bank of India has in its contingent. Shri Gupta also relies on the judgment of the Constitution Bench of the Supreme Court of India in the case of Joseph Kuruvilla Velukunnel v. Reserve Bank of India and others in support of this submission., Shri Gupta further submitted that the contention that the decision‑making process is faulty on account of not following the procedure under sub-section (2) of Section 26 of the Reserve Bank of India Act is also without substance. The learned Senior Counsel submits that the procedure under sub-section (2) of Section 26 of the Reserve Bank of India Act contemplates two things, i.e., recommendation of the Central Board and the decision by the Central Government. It is submitted that both these requirements stand fully satisfied in the present case. He submits that though it is the contention of the petitioners that the procedure is flawed, the petition itself is bereft of such averments. Shri Gupta submits that the Constitution Bench of the Supreme Court of India in the case of Ram Kishore Sen and others v. Union of India and others has held that the burden of proof primarily lies on a person who complains that the procedure prescribed has not been followed. In any case, he submits that in both the affidavits filed on behalf of the Reserve Bank of India, i.e., the counter affidavit dated 19 December 2018 filed by Haokholal, Assistant General Manager, and the additional affidavit dated 15 November 2022 of Shri Kuntal Kaim, Deputy General Manager, it has been specifically averred that the procedure as prescribed under sub-section (2) of Section 26 of the Reserve Bank of India Act read with Regulation 8 of the 1949 Regulations was duly followed. He submits that the quorum as prescribed under the 1949 Regulations was very much available when the meeting of the Central Board was held on 8 November 2016. In any case, it is submitted that in view of sub-section (5) of Section 8 of the Reserve Bank of India Act, a decision of the Board cannot be questioned merely on the ground of existence of any vacancy or any defect in the constitution of the Board. The learned Senior Counsel has placed on record an additional affidavit dated 6 December 2022 reiterating the statements made in the aforesaid two affidavits dated 19 December 2018 and 15 November 2022., Relying on the judgment of the Supreme Court of India in the case of Internet and Mobile Association of India, Shri Gupta submits that to consider the question of proportionality, a four‑pronged test, as set out in the judgment of the Supreme Court of India in the case of Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others, is required to be applied. It is submitted that since the measure is designated for the purpose of dealing with fake currency, black money and terror funding, the first test stands satisfied. The measure, i.e., demonetisation, has a reasonable nexus for the fulfillment of the purpose of the aforesaid three objectives and, as such, the second test is also fulfilled. Insofar as the third test is concerned, it is submitted that it is a matter of economic policy as to what measure is found to be appropriate for achieving the objective of dealing with the menace of the aforesaid three evils. It is submitted that it is for the experts in the economic and monetary fields to take a decision in that regard and, as such, the third test, as to whether there was no alternative less invasive measure, would not be applicable to a decision pertaining to economic policy. Insofar as the fourth test is concerned, it is submitted that, as a matter of fact, there has been no infringement of the rights of the citizens. As a matter of fact, no currency is being taken away. Full value of the legitimate currency has been exchanged. It is submitted that non‑cash transactions such as credit card, debit card, online transaction, etc., were permitted even during the period between 8 November 2016 and 31 December 2016. In any case, it is submitted that immediately after the demonetisation was notified, in spite of the enormity of operations, immediate steps were taken for the betterment of the public and to ensure adequate cash supply. It is submitted that various measures were taken in order to alleviate the genuine grievances of the citizens, which have been enumerated in paragraphs 11 to 17 of the affidavit dated 19 December 2018 filed on behalf of the Reserve Bank of India. It is, therefore, submitted that the proportionality test would not be applicable in the present case., Shri Gupta, relying on the judgment of the Supreme Court of India in the case of Small Scale Industrial Manufacturers Association (Registered) v. Union of India and others, submits that normally it is not within the domain of any court to weigh the pros and cons of the policy or to scrutinise it except only when it is found to be arbitrary and violative of any constitutional or statutory provisions of law., Shri Gupta further submits that a similar provision providing for a specified time for exchange of notes has already been found to be valid by the Constitution Bench of the Supreme Court of India in the case of Jayantilal Ratanchand Shah. He submits that the time provided in the present case is almost similar to the time provided under the 1978 Act. The said period has been found to be reasonable having regard to the purpose sought to be achieved by the said Act. It is, therefore, submitted that the challenge that the period provided was not sufficient is without any substance. It is submitted that everybody had sufficient opportunity either to deposit the notes in their banks or to exchange the same. He further submits that it was not necessary even for the individuals to go to banks to exchange notes and, on the prescribed procedure being followed, an authorized representative could also exchange the notes on their behalf., Shri Gupta further submitted that the provisions of subsection (2) of Section 4 of the 2017 Act cannot be read in isolation. He submits that if it is read in isolation, it will lead to an anomalous situation where the Reserve Bank of India has an independent power to act in violation of the provisions of Section 3 and subsection (1) of Section 4 of the 2017 Act. He submits that Section 3 and subsections (1) and (2) of Section 4 of the 2017 Act will have to be read together to hold that the power available to the Reserve Bank of India under subsection (2) of Section 4 of the 2017 Act is with regard to the grace period as provided under subsection (1) of Section 4 of the 2017 Act. It is submitted that the power vested in the Central Government under clause (ii) of subsection (1) of Section 4 of the 2017 Act is to provide grace period to such class of persons and for such reasons as may be specified by notification. However, such power has not been exercised by the Central Government and, therefore, it cannot be construed that the Reserve Bank of India will have an independent power in this regard., Shri Gupta reiterated the submission made by the learned Attorney General that since the relief sought in the petitions cannot be granted, no declaration as sought should be granted by the Supreme Court of India. In this respect, he relies on the judgment of the Supreme Court of India in the case of Bholanath Mukherjee and others v. Ramakrishna Mission Vivekananda Centenary College and others., Shri P. Chidambaram, learned Senior Counsel, in rejoinder, almost reiterated his earlier submissions. He submitted that there are two methods of demonetisation of currency, one is by legislative method and the other under subsection (2) of Section 26 of the Reserve Bank of India Act. He reiterated that the word any will always have to be read in the context of the provisions and if read in that manner, the only meaning that can be given to the word any in subsection (2) of Section 26 of the Reserve Bank of India Act is some. In this respect, he relies on the judgment of the Supreme Court of India in the case of Union of India v. A.B. Shah and others., Shri Chidambaram further submitted that from the perusal of the affidavit filed on behalf of the Central Government as well as the Reserve Bank of India, it is clear that the procedure emanated from the Central Government, which was through the advice given by the Government to the Reserve Bank of India in its communication dated 7 November 2016. The affidavit would clearly show that the Reserve Bank of India acted on the advice of the Central Government and gave its recommendation in a mechanical manner. He reiterated that, as per subsection (2) of Section 26 of the Reserve Bank of India Act, the proposal has to emanate from the Reserve Bank of India and not from the Central Government. It is reiterated that the procedure is in total breach of subsection (2) of Section 26 of the Reserve Bank of India Act., Shri Chidambaram submits that unless the documents, to which he had already referred in his arguments while opening the case, are placed for perusal of the Supreme Court of India, the Court cannot come to a satisfaction about the correctness of the decision‑making process. Relying on the judgment of the Supreme Court of India in the case of R.K. Jain v. Union of India, he submits that unless the respondents plead privilege and the issue is decided, the respondent cannot withhold the said documents, at least from this Court., Relying on an excerpt from *Forks in the Road: My Days at RBI and Beyond*, a book by former Reserve Bank of India Governor C. Rangarajan, Shri Chidambaram submits that demonetisation has nothing to do with monetary policy. Emphasising the judgment of the Supreme Court of India in the case of Internet and Mobile Association of India, the learned Senior Counsel submits that the proportionality test will have to be satisfied in the present case. It is submitted that the 2017 Act does not validate the action taken under the impugned Notification. It only extinguishes the liabilities of the Issue Department of the Reserve Bank of India. The learned Senior Counsel, therefore, submits that this is a fit case wherein the Supreme Court of India should decide the scope of subsection (2) of Section 26 of the Reserve Bank of India Act and declare that the exercise of power by the Central Government under subsection (2) of Section 26 of the Reserve Bank of India Act was not valid in law. In this respect, he relies on the judgment of the Supreme Court of India in the case of S.R. Bommai and others v. Union of India and others., Shri Shyam Divan, learned Senior Counsel, in rejoinder, submits that the perusal of subsection (1) of Section 26 of the Reserve Bank of India Act would reveal that, though the tendering of any series of bank notes of any denomination ceases to be legal under subsection (2) of Section 26 of the Reserve Bank of India Act, the guarantee of the Central Government continues to exist. It is submitted that it would be clear from the provisions contained in the 2016 Ordinance, which became the 2017 Act, that Section 3 of the 2017 Act provides that the SBNs which have ceased to be legal tender in view of the impugned notification shall cease to be liabilities of the Reserve Bank of India under Section 34 of the Reserve Bank of India Act and shall cease to have the guarantee of the Central Government under subsection (1) of Section 26 of the said Act. It is submitted that this is also clear from the affidavit dated 16 November 2022 filed on behalf of the Union of India., Shri Divan further submitted that the 2017 Act can neither be construed to validate the impugned notification nor can it be held that it is a piece of incorporation by reference. It is submitted that the argument with regard to the impugned notification having merged in the 2017 Act is also without substance. The learned Senior Counsel submits that it is simply a plenary parliamentary declaration., Taking further his argument, Shri Divan submits that clause (i) of subsection (1) of Section 4 of the 2017 Act gives a power to the Central Government which is coupled with a duty. It is submitted that genuine cases like those of the applicants/petitioners viz. Malvinder Singh and Sarla Shrivastav, who is the applicant/petitioner in I.A. No. 152009 of 2022, should be given some window to exchange the SBNs. It is submitted that there is a large section of NRIs who, during the period between 8 November 2016 and 30 December 2016, were not in India. It is submitted that they could have also not travelled to India since either the tickets were not available or the rates were prohibitively expensive., Shri Divan, in the alternative, submitted that the proviso to the Notification dated 30 December 2016 has to be read in a manner that it is silent on NRIs who have kept their money in India. It is submitted that exclusion of NRIs who have left their money in India would be manifestly arbitrary and, in order to save the proviso, it will have to be read in the manner making it inapplicable to such NRIs who had kept their money in India while residing abroad during that period., Though nine important questions have been framed by the Bench of learned three Judges vide order dated 16 December 2016 in Writ Petition (Civil) No. 906 of 2016, upon hearing the submissions advanced before us on behalf of the petitioners as well as the respondents, we find that only the following questions of law arise for consideration. The questions are: (i) Whether the power available to the Central Government under subsection (2) of Section 26 of the Reserve Bank of India Act can be restricted to mean that it can be exercised only for one or some series of bank notes and not all series in view of the word any appearing before the word series in the said subsection, specifically so, when on earlier two occasions, the demonetisation exercise was done through the plenary legislations? (ii) In the event it is held that the power under subsection (2) of Section 26 of the Reserve Bank of India Act is construed to mean that it can be exercised in respect of all series of bank notes, whether the power vested with the Central Government under the said subsection would amount to conferring excessive delegation and as such, liable to be struck down? (iii) As to whether the impugned Notification dated 8 November 2016 is liable to be struck down on the ground that the decision‑making process is flawed in law? (iv) As to whether the impugned notification dated 8 November 2016 is liable to be struck down applying the test of proportionality? (v) As to whether the period provided for exchange of notes vide the impugned notification dated 8 November 2016 can be said to be unreasonable? (vi) As to whether the Reserve Bank of India has an independent power under subsection (2) of Section 4 of the 2017 Act in isolation of provisions of Section 3 and Section 4(1) thereof to accept the demonetised notes beyond the period specified in notifications issued under subsection (1) of Section 4?, Before we proceed to consider the various issues reframed by us, we find it appropriate to refer to the scheme of the Reserve Bank of India Act., The preamble of the Reserve Bank of India Act would itself reveal that the Act was enacted since it was found expedient to constitute a Reserve Bank of India to regulate the issue of bank notes and for the keeping of reserves with a view to securing monetary stability in India and generally to operate the currency and credit system of the country to its advantage. The preamble would also show that it was amended in the year 2016 with effect from 27 June 2016 by Act No. 28 of 2016. Post amendment, it was stated in the preamble that, whereas it was essential to have a modern monetary policy framework to meet the challenge of an increasingly complex economy, and whereas the primary objective of the monetary policy is to maintain price stability while keeping in mind the objective of growth and whereas the monetary policy framework in India shall be operated by the Reserve Bank of India, the Reserve Bank of India Act was enacted., Section 3 of the Reserve Bank of India Act reveals that the Reserve Bank of India was constituted for the purposes of taking over the management of the currency from the Central Government and of carrying on the business of banking in accordance with the provisions of the Act., Section 8 of the Reserve Bank of India Act deals with composition of the Central Board and term of office of the Directors. Sub‑section (1) provides that the Central Board shall consist of the Governor, not more than four Deputy Governors appointed by the Central Government; four Directors nominated by the Central Government, one from each of the four Local Boards as constituted by section 9; ten Directors nominated by the Central Government; and two Government officials nominated by the Central Government. Sub‑section (5) provides that no act or proceeding of the Board shall be questioned on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Board., Section 17 of the Reserve Bank of India Act reveals that the Reserve Bank of India has been authorised to carry on and transact several kinds of business specified therein., Section 22 of the Reserve Bank of India Act provides that the Reserve Bank of India shall have the sole right to issue bank notes in India and may, for a period which shall be fixed by the Central Government on the recommendation of the Central Board, issue currency notes of the Government of India supplied to it by the Central Government. It further provides that the provisions of the Act applicable to bank notes shall, unless a contrary intention appears, apply to all currency notes of the Government of India issued either by the Central Government or by the Reserve Bank of India as if such currency notes were bank notes. Sub‑section (2) of Section 22 specifically provides that on and from the date on which Chapter III of the Act comes into force, the Central Government shall not issue any currency notes., Section 23 of the Reserve Bank of India Act provides that the issue of bank notes shall be conducted by the Reserve Bank of India through an Issue Department which shall be separated and kept wholly distinct from the Banking Department, and the assets of the Issue Department shall not be subject to any liability other than the liabilities of the Issue Department as defined in Section 34. Sub‑section (2) provides that the Issue Department shall not issue bank notes to the Banking Department or to any other person except in exchange for other bank notes or for such coin, bullion or securities as are permitted by the Act to form part of the Reserve., Section 24 of the Reserve Bank of India Act provides that, subject to the provisions of sub‑section (2), bank notes shall be of the denominational values of two rupees, five rupees, ten rupees, twenty rupees, fifty rupees, one hundred rupees, five hundred rupees, one thousand rupees, five thousand rupees and ten thousand rupees or of such other denominational values, not exceeding ten thousand rupees as the Central Government may, on the recommendation of the Central Board, specify. Sub‑section (2) provides that the Central Government may, on the recommendation of the Central Board, direct the non‑issue or the discontinuance of issue of bank notes of such denominational values as it may specify., Section 25 of the Reserve Bank of India Act provides that the design, form and the material of bank notes shall be such as may be approved by the Central Government after consideration of the recommendations made by the Central Board., Section 26 of the Reserve Bank of India Act is the provision which directly falls for consideration. It reads: (1) Subject to the provisions of sub‑section (2), every bank note shall be legal tender at any place in India in payment, or on account for the amount expressed therein, and shall be guaranteed by the Central Government. (2) On recommendation of the Central Board the Central Government may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender save at such office or agency of the Bank and to such extent as may be specified in the notification., Thus sub‑section (1) of Section 26 provides that, subject to the provisions of sub‑section (2), every bank note shall be legal tender at any place in India in payment, or on account for the amount expressed therein, and shall be guaranteed by the Central Government. Sub‑section (2) provides that on recommendation of the Central Board, the Central Government may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender save at such office or agency of the Bank and to such extent as may be specified in the notification., Section 34 of the Reserve Bank of India Act provides that the liabilities of the Issue Department of the Reserve Bank of India shall be an amount equal to the total of the amount of the currency notes of the Government of India and bank notes for the time being in circulation., Perusal of the aforesaid provisions of the Reserve Bank of India Act would reveal that insofar as monetary policy and specifically with regard to the matters of management and regulation of currency are concerned, the Reserve Bank of India plays a pivotal role. As a matter of fact, both the sides are ad idem on the said issue., The importance of the role assigned to the Reserve Bank of India in such matters would be amplified from the various judgments of the Supreme Court of India, which we will refer to in the paragraphs to follow. In this background, we will consider the issues that fall for our consideration., It is strenuously urged by the learned Senior Counsel appearing on behalf of the petitioners that the word any used in subsection (2) of Section 26 of the Reserve Bank of India Act will have to be given a restricted meaning to mean some. It is submitted that if subsection (2) of Section 26 of the Reserve Bank of India Act is not read in such manner, the very power available under the said subsection will have to be held to be invalid on the ground of excessive delegation. It is submitted that it cannot be construed that the legislature intended to bestow uncanalised, unguided and arbitrary power to the Central Government to demonetise the entire currency. It is, therefore, the submission of the petitioners that in order to save the said Section from being declared void, the word any requires to be interpreted in a restricted manner to mean some., Per contra, it is submitted on behalf of the respondents that the word any under subsection (2) of Section 26 of the Reserve Bank of India Act cannot be interpreted in a narrow manner and it will have to be construed to include all., A Constitution Bench of the Supreme Court of India in the case of The Chief Inspector of Mines and another v. Lala Karam Chand Thapar etc. considered whether the phrase any one of the directors in Section 76 of the Mines Act, 1952 could mean only one of the directors or could be construed to mean every one of the directors. The High Court had held that any one of the directors could only be prosecuted. The Constitution Bench observed that in some contexts, any one means one only, but the phrase is also capable of meaning every one of the directors. It quoted the Oxford English Dictionary stating that in affirmative sentences, any asserts, concerning a being or thing of the sort named, without limitation as to which, and thus collectively of every one of them.
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But, argues Mister Pathak, granting that this is so, it must be held that when the phrase any one is used with the preposition of, followed by a word denoting a number of persons, it never means every one. The extract from the Oxford Dictionary, it is interesting to notice, speaks of an assertion concerning a being or thing of the sort named; it is not unreasonable to say that the word of followed by a word denoting a number of persons or things is just such naming of a sort as mentioned there. Suppose, the illustration I challenge any one to contradict my assertions was changed to I challenge any one of my opponents to contradict my assertion. Any one of my opponents here would mean all my opponents not one only of the opponents. While the phrase any one of them or any similar phrase consisting of any one, followed by of which is followed in its turn by words denoting a number of persons or things, does not appear to have fallen for judicial construction, in our courts or in England the phrase any of the present directors had to be interpreted in an old English case, Isle of Wight Railway Co. v. Tahourdin [25 Chancery Division 320]., A number of shareholders required the directors to call a meeting of the company for two objects. One of the objects was mentioned as To remove, if deemed necessary or expedient any of the present directors, and to elect directors to fill any vacancy on the Board. The directors issued a notice to convene a meeting for the other object and held the meeting. Then the shareholders, under the Companies Clauses Act, 1845, issued a notice of their own convening a meeting for both the objects in the original requisition. In an action by the directors to restrain the requisitionists from holding the meeting, the Supreme Court of India held that a notice to remove any of the present directors would justify a resolution for removing all who are directors at the present time. Lord Cotton, L.J., pointed out, would involve all. It is true that the language there was any of the present directors and not any one of the present directors and it is urged that the word one, in the latter phrase makes all the difference. We think it will be wrong to put too much emphasis on the word one here., It may be pointed out in this connection that the Permanent Edition of Words and Phrases mentions an American case Front & Hintingdon Building & Loan Association v. Berzinski where the words any of them were held to be the equivalent of any one of them. After giving the matter full and anxious consideration, we have come to the conclusion that the words any one of the directors is ambiguous; in some contexts, it means only one of the directors, does not matter which one, but in other contexts, it is capable of meaning every one of the directors. Which of these two meanings was intended by the legislature in any particular statutory phrase has to be decided by the courts on a consideration of the context in which the words appear, and in particular, the scheme and object of the legislation., The Constitution Bench found that the words any one has been commonly used to mean every one i.e. not one, but all. It found that the word any, in affirmative sentences, asserts, concerning a being or thing of the sort named, without limitation. It held that it is abundantly clear that the word any one is not infrequently used to mean every one., It could be seen that the Constitution Bench, after giving the matter full and anxious consideration, came to the conclusion that the words any one of the directors was an ambiguous one. It held that in some contexts, it means only one of the directors, does not matter which one, but in other contexts, it is capable of meaning every one of the directors. It held that which of these two meanings was intended by the legislature in any particular statutory phrase has to be decided by the courts on consideration of the context in which the words appear, and in particular, the scheme and object of the legislation., After examining the scheme of the Mines Act, 1952, the Constitution Bench of the Supreme Court of India further observed thus: But, argues Mister Pathak, one must not forget the special rule of interpretation for penal statutes that if the language is ambiguous, the interpretation in favour of the accused should ordinarily be adopted. If you interpret any one in the sense suggested by him, the legislation he suggests is void and so the accused escapes. One of the two possible constructions, thus being in favour of the accused, should therefore be adopted. In our opinion, there is no substance in this contention. The rule of strict interpretation of penal statutes in favour of the accused is not of universal application, and must be considered along with other well established rules of interpretation. We have already seen that the scheme and object of the statute makes it reasonable to think that the legislature intended to subject all the directors of a company owning coal mines to prosecution and penalties, and not one only of the directors. In the face of these considerations there is no scope here of the application of the rule for strict interpretation of penal statutes in favour of the accused. The High Court appears to have been greatly impressed by the fact that in other statutes where the legislature wanted to make every one out of a group or a class of persons liable it used clear language expressing the intention; and that the phrase any one has not been used in any other statute in this country to express every one. It will be unreasonable, in our opinion, to attach too much weight to this circumstance; and as for the reasons mentioned above, we think the phrase any one of the directors is capable of meaning every one of the directors, the fact that in other statutes, different words were used to express a similar meaning is not of any significance. We have, on all these considerations, come to the conclusion that the words any one of the directors has been used in Section 76 to mean every one of the directors, and that the contrary interpretation given by the High Court is not correct., It could thus be seen that though it was sought to be argued before the Supreme Court of India that since the rule of strict interpretation of penal statutes in favour of the accused has to be adopted and that the word any was suffixed by the word one, it has to be given restricted meaning; the Court came to the conclusion that the words any one of the directors used in Section 76 of the Mines Act, 1952 would mean every one of the directors. It is further to be noted that the word any in the said case was suffixed by the word one, still the Court held that the words any one would mean all and not one. It is to be noted that in the present case, the legislature has not employed the word one after the word any. It is settled law that it has to be construed that every single word employed or not employed by the legislature has a purpose behind it., On the very date on which the judgment in the case of The Chief Inspector of Mines and another v. Lala Karam Chand Thapar etc. was pronounced, the same Constitution Bench also pronounced the judgment in the case of Banwarilal Agarawalla, wherein the Constitution Bench observed thus: The first contention is based on an assumption that the word any one in Section 76 means only one of the directors, and only one of the shareholders. This question as regards the interpretation of the word any one in Section 76 was raised in Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines, etc.) and it has been decided there that the word any one should be interpreted there as every one. Thus under Section 76 every one of the shareholders of a private company owning the mine, and every one of the directors of a public company owning the mine is liable to prosecution. No question of violation of Article 14 therefore arises., Another Constitution Bench of the Supreme Court of India in the case of Tej Kiran Jain and others was considering the provisions of Article 105 of the Constitution of India and, particularly, the immunity as available to the Member of Parliament in respect of anything said in Parliament. The Constitution Bench observed thus: In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of anything said in Parliament. The word anything is of the widest import and is equivalent to everything. The only limitation arises from the words in Parliament which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court. This immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Government that people's representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The Courts have no say in the matter and should really have none., This Court held that the word anything is of the widest import and is equivalent to everything. The only limitation arises from the words in Parliament which means during the sitting of Parliament and in the course of the business of Parliament. It held that, once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court., The Supreme Court of India, in the case of Lucknow Development Authority, was considering clause (o) of Section (2) of the Consumer Protection Act, 1986 which defines service, wherein the word any again fell for consideration. This Court observed thus: The words any and potential are significant. Both are of wide amplitude. The word any dictionarily means one or some or all. In Black's Law Dictionary it is explained thus, word any has a diversity of meaning and may be employed to indicate all or every as well as some or one and its meaning in a given statute depends upon the context and the subject‑matter of the statute. The use of the word any in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all., This Court held that the word any is of wide amplitude. It means one or some or all. Referring to Black's Law Dictionary, the Court observed that the word any has a diversity of meaning and may be employed to indicate all or every as well as some or one. However, the meaning which is to be given to it would depend upon the context and the subject‑matter of the statute., In the case of K.P. Mohammed Salim, this Court was considering the power of the Director General or Chief Commissioner or Commissioner to transfer any case from one or more assessing officers subordinate to him to any other assessing officer or assessing officers. This Court observed thus: The word any must be read in the context of the statute and for the said purpose, it may in a situation of this nature, mean all. The principles of purposive construction for the said purpose may be resorted to. (See New India Assurance Co. Ltd. v. Nusli Neville Wadia [(2008) 3 SCC 279 : (2007) 13 SCR 598]) Thus, in the context of a statute, the word any may be read as all in the context of the Income Tax Act for which the power of transfer has been conferred upon the authorities specified under Section 127., The Court again reiterated that the word any must be read in the context of the statute. The Court also applied the principles of purposive construction to the term any to mean all., In the case of Raj Kumar Shivhare, an argument was advanced that since Section 35 of the Foreign Exchange Management Act, 1999 uses the words any decision or order, only appeals from final order could be filed. Rejecting the contention, this Court observed thus: The word any in this context would mean all. We are of this opinion in view of the fact that this section confers a right of appeal on any person aggrieved. A right of appeal, it is well settled, is a creature of statute. It is never an inherent right, like that of filing a suit. A right of filing a suit, unless it is barred by statute, as it is barred here under Section 34 of FEMA, is an inherent right (see Section 9 of the Civil Procedure Code) but a right of appeal is always conferred by a statute. While conferring such right a statute may impose restrictions, like limitation or pre‑deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. Whenever such limitations are imposed, they are to be strictly followed. But in a case where there is no limitation on the nature of order or decision to be appealed against, as in this case, the right of appeal cannot be further curtailed by this Court on the basis of an interpretative exercise., Under Section 35 of FEMA, the legislature has conferred a right of appeal to a person aggrieved from any order or decision of the Appellate Tribunal. Of course such appeal will have to be on a question of law. In this context the word any would mean all. In the instant case also when a right is conferred on a person aggrieved to file appeal from any order or decision of the Tribunal, there is no reason, in the absence of a contrary statutory intent, to give it a restricted meaning. Therefore, in our judgment in Section 35 of FEMA, any order or decision of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal and all such decisions or orders are, subject to limitation, appealable to the High Court on a question of law., While holding that the word any in the context would mean all, this Court observed that a right of appeal is always conferred by a statute. It has been held that, while conferring such right, a statute may impose restrictions, like limitation or pre‑deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. It has been held that whenever such limitations are imposed, they are to be strictly followed. It has been held that in a case where there is no limitation, the right of appeal cannot be curtailed by this Court on the basis of an interpretative exercise., Shri P. Chidambaram, learned Senior Counsel relied on the judgment of this Court in the case of Union of India v. A.B. Shah and others. In that case, the High Court was considering an appeal preferred by the Union of India wherein it had challenged the acquittal of the accused by the learned trial court, which was confirmed in appeal by the High Court. The learned trial court and the High Court had held that the complaint filed was beyond limitation. This Court reversed the judgments of the learned trial court and the High Court. This Court while interpreting the expression at any time observed thus: If we look into Conditions 3 and 6 with the object and purpose of the Act in mind, it has to be held that these conditions are not only relatable to what was required at the commencement of depillaring process, but the unstowing for the required length must exist always. The expression at any time finding place in Condition 6 has to mean, in the context in which it has been used, at any point of time, the effect of which is that the required length must be maintained all the time. The accomplishment of object of the Act, one of which is safety in the mines, requires taking of such a view, especially in the backdrop of repeated mine disasters which have been taking, off and on, heavy toll of lives of the miners. It may be pointed out that the word any has a diversity of meaning and in Black's Law Dictionary it has been stated that this word may be employed to indicate all or every, and its meaning will depend upon the context and subject matter of the statute. A reference to what has been stated in Stroud's Judicial Dictionary Vol. I, is revealing inasmuch as the import of the word any has been explained from pp. 145 to 153 of the 4th Edition, a perusal of which shows it has different connotations depending primarily on the subject‑matter of the statute and the context of its use. A Bench of this Court in Lucknow Development Authority v. M.K. Gupta gave a very wide meaning to this word finding place in Section 2(o) of the Consumer Protection Act, 1986 defining service., Shri Chidambaram rightly argued that the word any will have to be construed in its context, taking into consideration the scheme and the purpose of the enactment. There can be no quarrel with regard to the said proposition. Right from the judgment of the Constitution Bench of the Supreme Court of India in the case of The Chief Inspector of Mines and another v. Lala Karam Chand Thapar etc., the position is clear. What is the meaning which the legislature intended to give to a particular statutory provision has to be decided by the Court on a consideration of the context in which the word(s) appear(s) and in particular, the scheme and object of the legislation., Purposive interpretation. We find that for deciding the present issue, it will also be necessary to refer an important principle of interpretation of statutes i.e. purposive interpretation., Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose (Some Reflections on the Reading of Statutes, 47 Columbia LR 527, at p. 538 (1947))., This is how Justice Frankfurter succinctly propounds the principle of purposive interpretation. It is thus necessary to cull out the legislative policy from various factors like the words in the statute, the preamble of the Act, the statement of objects and reasons, and in a given case, even the attendant circumstances. After the legislative policy is found, then the words used in the statute must be so interpreted such that it advances the purpose of the statute and does not defeat it., Francis Bennion in his treatise Statutory Interpretation, at page 810 described purposive construction in an equally eloquent manner as under: 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 (in this Code called a purposive‑and‑literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive‑and‑strained construction)., A statute must be construed having regard to the legislative intent. It has to be meaningful. A construction which leads to manifest absurdity must not be preferred to a construction which would fulfil the object and purport of the legislative intent., Aharon Barak, the former President of the Supreme Court of Israel, whose exposition of doctrine of proportionality has found approval by the Constitution Bench of the Supreme Court of India in the case of Modern Dental College and Research Centre and Others, has summarized the goal of interpretation in law as under: At some point, we need to find an Archimedean foothold, external to the text, from which to answer that question. My answer is this: The goal of interpretation in law is to achieve the objective in other words, the purpose of law. The role of a system of interpretation in law is to choose, from among the semantic options for a given text, the meaning that best achieves the purpose of the text. Each legal text will, contract, statute, and constitution was chosen to achieve a social objective., The learned Judge emphasized that purposive interpretation is the most proper system of interpretation. He observed that this system is proper because it guarantees the achievement of the purpose of law. The proper criterion for interpretation is the search for law's purpose, and that purposive interpretation best fulfills that criterion., The principle of purposive interpretation has also been expounded through a catena of judgments of this Court. A Constitution Bench of this Court in the case of M. Pentiah and others v. Muddala Veeramallappa and others was considering a question as to whether the term prescribed in Section 34 would apply to a member of a deemed committee under the provisions of the Hyderabad District Municipalities Act, 1956. An argument was put forth that, upon a correct interpretation of the provisions of Section 16, the same would be permissible. Rejecting the argument, K. Subba Rao, J, observed thus: Before we consider this argument in some detail, it will be convenient at this stage to notice some of the well established rules of construction which would help us to steer clear of the complications created by the Act. Maxwell on the Interpretation of Statutes, 10th Edition, says at p. 7 thus: if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. It is said in Craies on Statute Law, 5th Edition, at p. 82 Manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly to be avoided. Lord Davey in Canada Sugar Refining Co. v. R. provides another useful guide of correct perspective to such a problem in the following words: Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter., A.K. Sarkar, J. in his concurring opinion observed thus: There is no doubt that the Act raises some difficulty. It was certainly not intended that the members elected to the Committee under the repealed Act should be given a permanent tenure of office nor that there would be no elections under the new Act. Yet such a result would appear to follow if the language used in the new Act is strictly and literally interpreted. It is however well established that where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the courts are very reluctant to substitute words in a statute, or to add words to it, and it has been said that they will only do so where there is a repugnancy to good sense. In Seaford Court Estates Ltd. v. Asher, Denning, L.J. said: when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written word so as to give force and life to the intention of the legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases., Another Constitution Bench Judgment of this Court in the case of Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others reiterated the position in the following words: Where two alternative constructions are possible, the court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment., In the case of M/s Girdhari Lal and Sons v. Balbir Nath Mathur and others, O. Chinnappa Reddy, J. explained the position as under: So we see that the primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary, the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so‑called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary., After referring to various earlier judgments of other jurisdictions, His Lordship observed thus:
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Supreme Court of India has generally taken the view that ascertainment of legislative intent is a basic rule of statutory construction and that a rule of construction should be preferred which advances the purpose and object of a legislation and that though a construction, according to plain language, should ordinarily be adopted, such a construction should not be adopted where it leads to anomalies, injustices or absurdities, vide K.P. Varghese v. ITO [(1981) 4 Supreme Court Cases 173 : 1981 Supreme Court (Tax) 293], State Bank of Travancore v. Mohd. M. Khan [(1981) 4 Supreme Court Cases 82], Som Prakash Rekhi v. Union of India [(1981) 1 Supreme Court Cases 449 : 1981 Supreme Court (Law & Society) 200], Govindlal v. Agricultural Produce Market Committee [(1975) 2 Supreme Court Cases 482], Babaji Kondaji v. Nasik Merchants Coop. Bank Ltd. [(1984) 2 Supreme Court Cases 50] [emphasis supplied]., M.N. Venkatachaliah, J., speaking for the Constitution Bench of the Supreme Court of India in the case of Tinsukhia Electric Supply Co. Ltd. v. State of Assam and others observed thus: The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of a statute must be so construed as to make it effective and operative, on the principle ut res magis valeat quam pereat. It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void for vagueness. This is not judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a court of construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the statute the meaning and purpose which the legislature intended for it., In Manchester Ship Canal Co. v. Manchester Racecourse Co. [(1904) 2 Ch 352 : 16 Times Law Reports 429 : 83 Law Times 274] Farwell J. said: Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning and not to declare them void for uncertainty., In Fawcett Properties Ltd. v. Buckingham County Council [(1960) 3 All England Reports 503] Lord Denning, approving the dictum of Farwell J., said: But when a statute has some meaning, even though it is obscure, or several meanings, even though there is little to choose between them, the courts have to say what meaning the statute is to bear rather than reject it as a nullity., In Whitney v. Inland Revenue Commissioners [1926 AC 37] Lord Dunedin said: A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable., In the case of State of Gujarat and another v. Justice R.A. Mehta (Retired) and others, the Supreme Court of India held: The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute to be unworkable. The rules of interpretation require that construction which carries forward the objectives of the statute, protects the interest of the parties and keeps the remedy alive, should be preferred looking into the text and context of the statute. Construction given by the court must promote the object of the statute and serve the purpose for which it has been enacted and not efface its very purpose. The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of the statute must be so construed as to make it effective and operative. The court must take a pragmatic view and keep in mind the purpose for which the statute was enacted as the purpose of law itself provides good guidance to courts as they interpret the true meaning of the Act and thus legislative futility must be ruled out. A statute must be construed in such a manner as to ensure that the Act itself does not become a dead letter and the obvious intention of the legislature does not stand defeated unless it leads to a case of absolute intractability in use. The court must adopt a construction which suppresses the mischief and advances 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. The court must give effect to the purpose and object of the Act for the reason that legislature is presumed to have enacted a reasonable statute. (Vide M. Pentiah v. Muddala Veeramallappa [All India Reporter 1961 Supreme Court 1107], S.P. Jain v. Krishna Mohan Gupta [(1987) 1 Supreme Court Cases 191 : All India Reporter 1987 Supreme Court 222], RBI v. Peerless General Finance and Investment Co. Ltd. [(1987)], Tinsukhia Electric Supply Co. Ltd. v. State of Assam [(1989) 3 Supreme Court Cases 709 : All India Reporter 1990 Supreme Court 123], UCO Bank v. Rajinder Lal Capoor [(2008) 5 Supreme Court Cases 257 : (2008) 2 Supreme Court (Law & Society) 263] and Grid Corporation of Orissa Ltd. v. Eastern Metals and Ferro Alloys [(2011) 11 Supreme Court Cases 334])., The principle of purposive construction has been enunciated in various subsequent judgments of the Supreme Court of India. The law on the issue is very well crystallized., It is thus clear that it is a settled principle that the modern approach of interpretation is a pragmatic one, and not pedantic. An interpretation which advances the purpose of the Act and which ensures its smooth and harmonious working must be chosen, and any interpretation which leads to absurdity, confusion, friction, contradiction, or defeats the basic scheme and purpose of the enactment must be eschewed. The primary and foremost task of the Supreme Court of India in interpreting a statute is to gather the intention of the legislature, actual or imputed. Having ascertained the intention, it is the duty of the Court to strive to interpret the statute so as to promote or advance the object and purpose of the enactment. For this purpose, where necessary, the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be justified in departing from the so‑called golden rule of construction so as to give effect to the object and purpose of the enactment. Ascertainment of legislative intent is the basic rule of statutory construction., Applying the aforesaid pronouncements on the construction of the term “any” and the principle of purposive construction, we will now consider the scope of the term “any” used in sub‑section (2) of Section 26 of the Reserve Bank of India Act., Sub‑section (2) of Section 26 of the Reserve Bank of India Act empowers the Central Government to issue a notification in the Gazette of India declaring that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender. It further provides that such an action has to be taken by the Central Government on the recommendation of the Central Board., As already discussed, the Reserve Bank of India Act is a special Act, vesting all the powers and functions with regard to monetary policy and all matters pertaining to management and regulation of currency with the Reserve Bank of India. The Central Government is required to take its decision on the basis of the recommendation of the Central Board., It could thus be seen that power is vested with the Central Government and that power has to be exercised on the recommendation of the Reserve Bank of India. Both sides agree that the Reserve Bank of India plays a unique role in the matter of monetary policy and issuance of currency. The Central Government is empowered under sub‑section (2) of Section 26 of the Reserve Bank of India Act to notify any series of bank notes of any denomination to cease to be legal tender. The effect of such a notification would be that the liabilities as provided under Section 34 of the Reserve Bank of India Act and the guarantee as provided under sub‑section (1) of Section 26 shall cease to have effect on such notification being issued thereby demonetising the bank notes., As already discussed, the Reserve Bank of India Act has been enacted to regulate the issue of bank notes and generally to operate the currency and credit system of the country. Section 3 of the Act provides that the Reserve Bank of India has been constituted for the purposes of taking over the management of the currency from the Central Government and carrying on the business of banking in accordance with the provisions of the Act. Sub‑section (1) of Section 22 provides that the Reserve Bank of India shall have the sole right to issue bank notes in India. However, for a period which is to be fixed by the Central Government on the recommendation of the Central Board, it can issue currency notes of the Government of India supplied to it by the Central Government. Further, sub‑section (2) of Section 22 specifically prohibits the Central Government from issuing any currency notes on and from the date on which Chapter III of the Act comes into effect., It can thus clearly be seen that a primary and very important role is assigned to the Reserve Bank of India in the matter of issuance of bank notes. As held by this Court in the case Peerless General Finance and Investment Co. Limited and another, the Reserve Bank of India has a large contingent of expert advice available to it. The Central Government would exercise its power on the recommendation of the Central Board. When the legislature itself has provided that the Central Government would take a decision after considering the recommendation of the Central Board of the Reserve Bank of India, which has been assigned a primary role in matters with regard to monetary policy and management and regulation of currency, we are of the view that the legislature could not have intended to give a restricted power under sub‑section (2) of Section 26. In any case, if the argument that the provisions of sub‑section (2) of Section 26 have to be interpreted in a restricted manner is accepted, it may, at times, lead to an anomalous situation., For example, if there are twenty series of a particular denomination, and if the argument of the petitioners is accepted, the Central Government would be empowered to demonetise nineteen series, leaving one series to continue as legal tender, which would lead to a chaotic situation., As discussed, the policy underlying the provisions of Section 26 is to enable the Central Government, on the recommendation of the Central Board, to effect demonetisation. The same can be done in respect of any series of bank notes of any denomination. The legislative policy is with regard to management and regulation of currency. Demonetisation of notes is certainly a part of management and regulation of currency. The legislature has empowered the Central Government to exercise such a power. The Central Government may take recourse to such a power when it finds necessary, taking into consideration myriad factors. No doubt such factors must have a reasonable nexus with the object sought to be achieved. If the Central Government finds that fake notes of a particular denomination are widely in circulation or are being used to promote terrorism, can it be said, for instance, that out of twenty series it can demonetise only nineteen but not all twenty? In our view, this would result in nothing else but absurdity and the very purpose for which the power is vested would be frustrated. An interpretation which, in effect, nullifies the purpose for which a power is to be exercised would be opposed to the principle of purposive interpretation. Such an interpretation would defeat the object of the enactment., Another line of argument is that Parliament also meant the same, insofar as on earlier two occasions in 1946 and 1978 the demonetisation exercise in respect of all series was done by resorting to plenary legislation. Shri Chidambaram has taken us through various volumes of the history of the Reserve Bank of India. Perusal of Volume I would reveal that, in 1946, it is not known when the Government Authorities started thinking on the demonetisation measure, but the final consultation could take place with the Governor and Deputy Governor. It appears that the Reserve Bank of India authorities were not enthusiastic about the scheme. Despite the opposition by the then Governor of the Reserve Bank of India, Shri C.D. Deshmukh, the Government went ahead with the scheme and issued an ordinance on 12 January 1946. Further, perusal of Volume III would reveal that the then Governor I.G. Patel was not in favour of the demonetisation scheme of 1978. However, despite the opposition of the Governor of the Reserve Bank of India, the Government went ahead with the demonetisation scheme and issued an ordinance in the early hours of 16 January 1978 and the news was announced on All India Radio at 9 a.m. on the same day., It could thus be seen that on the earlier two occasions, since the Reserve Bank of India was not in favour of the demonetisation, the Government resorted to promulgating ordinances for the purpose. After the ordinance of 1946 was promulgated, the Reserve Bank of India Act was amended by Act No. 62 of 1956 and Section 26A was added, thereby specifically providing that no bank note of the denominational value of Rs. 500, Rs. 1,000 and Rs. 10,000 issued before the 13th day of January 1946 shall be legal tender in payment or on account for the amount expressed therein. After the ordinance was issued on 16 January 1978, the same transformed into an Act of Parliament upon the President of India giving his assent on 30 March 1978., Merely because on earlier two occasions the Government decided to take recourse to plenary legislation, this by itself cannot be a ground to give a restricted meaning to the word “any” in sub‑section (2) of Section 26. As already discussed, the legislative intent could not have been to give a restricted meaning to the word “any”., We are therefore unable to accept the contention that the word “any” has to be given a restricted meaning taking into consideration the overall scheme, purpose and object of the Reserve Bank of India Act and the context in which the power is to be exercised. We find that the word “any” would mean “all” under sub‑section (2) of Section 26 of the Reserve Bank of India Act., The second limb of argument on behalf of the petitioners is that, if the word “any” used in sub‑section (2) of Section 26 is not given a restricted meaning, then sub‑section (2) of Section 26 will have to be held invalid on the ground that it confers excessive delegation upon the Central Government., It is submitted that sub‑section (2) of Section 26 vests uncanalised, unguided and arbitrary powers in the Central Government and, as such, on this ground alone, the provision is liable to be struck down., Shri P. Chidambaram, learned Senior Counsel, has relied on the Constitution Bench judgment of the Supreme Court of India in the case of Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another to buttress his submissions., In Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another, the Constitution Bench of the Supreme Court of India, while considering the validity of clause (d) of Section 3 of the Drug and Magic Remedies (Objectionable Advertisement) Act, 1954, observed that the first sub‑section of Section 16 authorises the making of rules to carry out the purposes of the Act and clause (a) of sub‑section (2) specifically authorises the specification of diseases or conditions to which the provisions of Section 3 shall apply. The power conferred is delegated legislation. The Court held that the words impugned were vague, Parliament had established no criteria, no standards and had not prescribed any principle on which a particular disease or condition is to be specified. Consequently, the power of specifying diseases and conditions was held to be beyond the permissible boundaries of valid delegation and the Schedule in the rules must be struck down., The Court found that sub‑section (1) of Section 16 confers a power on the Central Government to make rules for carrying out the purposes of the Act. The question was whether the delegation to the administrative authority without proper guidance was constitutional. The Court held the words were vague and there was excessive delegation, rendering clause (d) of Section 3 unconstitutional., In the case of Harakchand Ratanchand Banthia and others, the Constitution Bench of the Supreme Court of India considered the power given to the Administrator under the Gold (Control) Act, 1968. Section 5 confers power on the Administrator to issue directions and orders and, under sub‑section (2)(b), to regulate, after consultation with the Reserve Bank of India, the price at which any gold may be bought or sold, and to regulate by licences, permits or otherwise the manufacture, distribution, transport, acquisition, possession, transfer, disposal, use or consumption of gold. The Court observed that the power conferred under sub‑section (2)(b) is legislative in character and extremely wide, and suffers from excessive delegation of legislative power and must be held constitutionally invalid., The Court noted that sub‑section (2)(a) of Section 5, which requires the Administrator to regulate the price after consultation with the Reserve Bank of India, provides an inbuilt safeguard. The Court rejected the argument that the phrase “so far as it appears to him to be necessary or expedient” is a subjective formula rendering the action arbitrary. It held that the expression must be construed objectively, with reference to relevant considerations, and is not subjective., Thus, while the power under Section 5(2)(b) was held to be invalid for excessive delegation, the power under Section 5(2)(a) was held valid because of the safeguard of consultation with the Reserve Bank of India., A seven‑Judge Bench of the Supreme Court of India in the case of Birla Cotton, Spinning and Weaving Mills Delhi considered the validity of Section 150 of the Delhi Municipal Corporation Act, 1957, which authorises the Corporation to pass a resolution for the levy of any of the taxes specified in sub‑section (2) of Section 113, subject to sanction by the Central Government, and to determine rates and exemptions as provided.
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It was argued that Section 150(1) delegates completely unguided power to the Corporation in the matter of optional taxes and suffers from the vice of excessive delegation and, therefore, is unconstitutional. This Court, after considering various earlier cases including Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another (supra), observed that the principle is well established that the essential legislative function consists of the determination of legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the legislature. There is no unlimited right of delegation inherent in the legislative power itself. The Constitution does not warrant such delegation. The legislature must retain in its own hands the essential legislative functions; what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. Where the legislative policy is enunciated with sufficient clarity or a standard is laid down, the courts should not interfere. Guidance to be given and the extent of such guidance depend on the provisions of the particular Act, including its preamble. The nature of the body to which delegation is made is also a factor in determining whether there is sufficient guidance. The form of guidance varies with the circumstances of each statute; in some cases broad general guidance may be enough, in others more detailed guidance may be necessary., Chief Justice K.N. Wanchoo, speaking for himself and Judge J.M. Shelat, held that where the legislative policy is enunciated with sufficient clarity or a standard is laid down, the courts should not interfere. The guidance to be given and its extent depend on the provisions of the particular Act, including its preamble. They further held that the nature of the body to which delegation is made is also a factor in determining whether there is sufficient guidance. The Court also held that the form of guidance cannot be stated in general terms; it will depend upon the circumstances of each statute. In some cases guidance in broad general terms may be enough, in other cases more detailed guidance may be necessary., The Court further observed that the first circumstance to be taken into account is that the delegation has been made to an elected body responsible to the people, including those who pay taxes. The councillors are elected every four years, so if they behave unreasonably and the inhabitants consider it so, they can be thrown out at the ensuing elections. This provides a great check on elected councillors acting unreasonably and fixing unreasonable rates of taxation. It is a democratic method of bringing to book elected representatives who act unreasonably in such matters., It was found that the delegation was made to an elected body responsible to the people, including those who pay taxes. If the councillors behave unreasonably and the inhabitants consider it so, they can be thrown out at the ensuing elections. Thus there is a great check on elected councillors acting unreasonably and fixing unreasonable rates of taxation. This is a democratic method of bringing to book elected representatives who act unreasonably in such matters., The Court further found that another guide or control on the limit of taxation is to be found in the purposes of the Act. After careful consideration of the various provisions of the Delhi Municipal Corporation Act, 1957, the Court held that the power conferred by Section 150 thereof on the Corporation is not unguided and cannot be said to amount to excessive delegation., It is apposite to refer to the concurring judgment of Justice S.M. Sikri, wherein he observed that, assuming he is bound by authorities of this Court to test the validity of Section 113(2)(d) and Section 150 of the Act by ascertaining whether a guide or policy exists in the Act, he finds an adequate guide or policy in the expression \purposes of the Act\ in Section 113. The Act points out the objectives or results to be achieved and taxation can be levied only for the purpose of achieving those objectives or results. In his view this is sufficient guidance especially to a self‑governing body like the Delhi Municipal Corporation. It is not necessary to rely on the safeguards mentioned by the learned Chief Justice to sustain the delegation., Justice S.M. Sikri, in his concurring judgment, also held that he found an adequate guide or policy in the expression \purposes of the Act\ in Section 113. He observed that the Act points out the objectives or results to be achieved and taxation can be levied only for the purpose of achieving those objectives or results. In his view this was sufficient guidance especially to a self‑governing body like the Delhi Municipal Corporation., Justice M. Hidayatullah, in his concurring judgment, observed that the question always is whether the legislative will has been exercised. Once it is established that the legislature itself has willed that a particular thing be done and has merely left the execution of it to a chosen instrumentality (provided that it has not parted with its control), there can be no question of excessive delegation. If the delegate acts contrary to the wishes of the legislature, the legislature can undo what the delegate has done. The courts may be asked to intervene when the delegate exceeds its powers and functions. Insisting that the legislature should provide for every matter connected with municipal taxation would make municipalities mere tax‑collecting departments of the Government and not self‑governing bodies. The Government might as well collect the taxes and make them available to the municipalities, which is not a correct reading of the history of municipal corporations and other self‑governing institutions in our country., Justice M. Hidayatullah also rejected the contention that the provisions of Section 150 suffer from excessive delegation. He observed that once it is established that the legislature itself has willed that a particular thing be done and has merely left the execution of it to a chosen instrumentality, there can be no question of excessive delegation, subject to the proviso that the legislature has not parted with its control. If the delegate acts contrary to the wishes of the legislature, the legislature can undo what the delegate has done., Another Constitution Bench of the Supreme Court of India, in the case of Gwalior Rayon Silk Manufacturing Co. Ltd. (supra), considered the validity of Section 8(2)(b) of the Central Sales Tax Act, 1956 on the ground that it suffered from the vice of excessive delegation. Justice H.R. Khanna, speaking for the majority, after surveying earlier judgments of this Court including Birla Cotton, Spinning and Weaving Mills Delhi (supra), observed that the growth of legislative powers of the Executive is a significant development of the twentieth century. The theory of laissez‑faire has been given a go‑by and comprehensive powers are being assumed by the State with a view to improve the social and economic well‑being of the people. Most modern socio‑economic legislations lay down guiding principles and legislative policy. Legislatures, limited by time, hardly go into matters of detail, so provision is made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation. Empowering the Executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and the pragmatic needs of a modern welfare State. The Constitution‑makers entrusted the power of legislation to the representatives of the people so that the power may be exercised not only in the name of the people but also by the people speaking through their representatives. The role against excessive delegation of legislative authority flows from, and is a necessary postulate of, the sovereignty of the people. The rule contemplates that it is not permissible to substitute in the matter of legislative policy the views of individual officers or other authorities, however competent, for that of the popular will as expressed by the representatives of the people., The Court observed that the growth of legislative powers of the Executive is a significant development of the twentieth century. The theory of laissez‑faire has been given a go‑by and comprehensive powers are being assumed by the State to improve the social and economic well‑being of the people. Most modern socio‑economic legislations lay down guiding principles and legislative policy. It is not possible for legislatures to go into matters of detail; therefore a provision has been made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation. The practice of empowering the Executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and the pragmatic needs of a modern welfare State. The role against excessive delegation of legislative authority flows from, and is a necessary postulate of, the sovereignty of the people. The rule contemplates that it is not permissible to substitute in the matter of legislative policy the views of individual officers or other authorities, however competent, for that of the popular will as expressed by the representatives of the people., It has been observed that the Constitution, as noted by this Court in Devi Das Gopal Krishnan v. State of Punjab [All India Reporter 1967 Supreme Court 430], confers a power and imposes a duty on the Legislature to make laws. The essential legislative function is the determination of legislative policy and its formulation as a rule of conduct; it cannot abdicate its functions in favour of another. However, in view of the multifarious activities of a welfare State, the Legislature cannot work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the Executive or any other agency. There is danger inherent in such delegation: an over‑burdened Legislature or one controlled by a powerful Executive may overstep the limits of delegation, may declare its policy in vague and general terms, may not set any standard for the guidance of the Executive, or may confer an arbitrary power on the Executive to change or modify the policy without reserving any control over subordinate legislation. Such self‑effacement of legislative power in favour of another agency, in whole or in part, is beyond the permissible limits of delegation. It is for a court, on a fair, generous and liberal construction of an impugned statute, to hold whether the Legislature exceeded such limits., The essential legislative function is the determination of legislative policy and its formulation as a rule of conduct. The Legislature cannot abdicate its functions in favour of another. In view of the multifarious activities of a welfare State, it must necessarily delegate the working out of details to the Executive or any other agency. The Court cautions about the danger inherent in the process of delegation. An over‑burdened Legislature or one controlled by a powerful Executive may not lay down any policy, may declare its policy in vague and general terms, may not set any standard for the guidance of the Executive, or may confer an arbitrary power on the Executive to change or modify the policy without reserving any control over subordinate legislation. It is for the Court, on a fair, generous and liberal construction of an impugned statute, to examine whether the Legislature exceeded such limits., Justice K.K. Mathew, in his concurring judgment, observed that delegation of law‑making power is the dynamo of modern Government. Delegation by the Legislature is necessary in order that the exertion of legislative power does not become a futility. While theory still affirms legislative supremacy, power is flowing back increasingly to the Executive. The Legislature comprises a broader cross‑section of interests than any one administrative organ and is less likely to be captured by particular interests. We must not lightly say that there can be a transfer of legislative power under the guise of delegation which would tantamount to abdication. At the same time, Parliament cannot go into the details of all legislative matters. The doctrine of abdication expresses a fundamental democratic concept but we should not insist that law‑making as such is the exclusive province of the Legislature. Many topics of legislation require expertise, technical knowledge and adaptability to changing situations which Parliament might not possess; therefore extensive delegation of legislative power is better secured. The legislative process would bog down if the Legislature were required to appraise beforehand the myriad situations to which a particular policy is to be applied and to formulate specific rules for each situation. The presence of a Henry VIII clause in many statutes points to the necessity of extensive delegation. The hunt by courts for legislative policy or guidance in the crevices of a statute is not an edifying spectacle. It is not clear what difference it makes in principle to say that because the delegation is to a representative body, the delegate will not exercise power unreasonably; if the Legislature must perform the essential legislative function, the representative character of the delegate offers no consolation. In other words, if no guidance is provided or policy laid down, the fact that the delegate has a representative character could make no difference in principle., The learned Judge cautioned against abdication under the guise of delegation but emphasized the practical reality that Parliament cannot go into the details of all legislative matters. He observed that the aim of Government is to gain acceptance for objectives demonstrated as desirable and to realise them as fully as possible. Many topics of legislation may require expertise, technical knowledge and adaptability to changing situations which Parliament might not possess; therefore extensive delegation of legislative power is better secured. The legislative process would frequently bog down if the Legislature were required to appraise beforehand the myriad situations to which a particular policy is to be applied and to formulate specific rules for each situation. The Court further emphasized the need for guidance for the delegate to exercise the delegated power., In the case of Registrar of Co‑operative Societies, Trivandrum and another v. K. Kunjambu and others (supra), while reversing the judgment of the Kerala High Court, which had held Section 60 of the Madras Co‑operative Societies Act, 1932 to be unconstitutional on the ground of excessive delegation, the Supreme Court of India observed that executive activity in the field of delegated or subordinate legislation has increased in direct, geometric progression. Parliament and the State Legislatures are not bodies of experts or specialists; they are skilled in discovering the aspirations, expectations, limits to patience and acquiescence, and the articulation of the views of the people they represent. They function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational intricacies, which are better left to full‑time expert executive bodies and specialist public servants. Parliament and the State Legislatures have neither the time nor the expertise to be involved in detail and circumstance, nor can they visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. That is the raison d'être for delegated legislation, which makes it inevitable and indispensable. The Indian Parliament and the State Legislatures are endowed with plenary power to legislate upon any of the subjects entrusted to them by the Constitution, subject to the limitations imposed by the Constitution itself. The power to legislate carries with it the power to delegate, but excessive delegation may amount to abdication. Unlimited delegation may invite despotism. The legislature must lay down policy and principle and may delegate to fill in detail and carry out policy. The legislature may guide the delegate by the express provision empowering delegation, the preamble, the scheme or even the subject‑matter of the statute. Wherever guidance is found, the delegation is valid. A great deal of latitude is permissible in taxing statutes and, on the same principle, a generous degree of latitude must be permissible in welfare legislation, particularly statutes designed to further the Directive Principles of State Policy., The Supreme Court of India observed that executive activity in the field of delegated or subordinate legislation has increased in direct, geometric progression. Parliament and the State Legislatures are not bodies of experts or specialists. Legislative bodies function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational intricacies, which are better left to full‑time expert executive bodies and specialist public servants. Parliament and the State Legislatures cannot visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. Guidance may be found from various factors and, once found, the delegation is valid. A great deal of latitude is permissible in taxing statutes and welfare legislations., In the case of Ramesh Birch and others (supra), after referring to earlier judgments and considering the views of various learned Judges on delegated legislation, the Supreme Court of India observed that Section 87 is quite valid even on the policy and guideline theory if proper regard is given to the context of the Act and the object and purpose sought to be achieved by Section 87. Judicial decisions make it clear that it is not necessary for the legislature to dot all the i's and cross all the t's of its policy; it is sufficient if it gives the broadest indication of a general policy of the legislature., Recently, the Constitution Bench of the Supreme Court of India, in the case of Rojer Mathew (supra), considered whether Section 184 of the Finance Act, 2017, which does not prescribe qualifications, appointment, term and conditions of service, salary and allowances, etc., suffers from the vice of excessive delegation. Rejecting the contention, the Court observed that cautioning against potential misuse of Section 184 by the executive, the learned counsel argued that any desecration by the executive of such powers threatens the independence of the tribunals. A mere possibility or eventuality of abuse of delegated powers, in the absence of evidence, cannot be a ground for striking down the provisions of the Finance Act, 2017. It is always open to a constitutional court, on a challenge to delegated legislation framed by the executive, to examine whether it conforms to the parent legislation and other laws, apply the policy and guideline test and, if found contrary, strike it down without affecting the constitutionality of the rule‑making power conferred under Section 186 of the Finance Act, 2017., It can thus be seen that the Supreme Court of India has held that a mere possibility or eventuality of abuse of delegated powers, in the absence of evidence, cannot be a ground for striking down such a provision. If a challenge is made to delegated legislation framed by the executive, the constitutional court may examine it. Applying the policy and guideline test, if the delegated legislation does not satisfy the test, it can be struck down without affecting the constitutionality of the rule‑making power conferred under Section 186 of the Finance Act, 2017., Having adverted to various judgments on delegated legislation, the Supreme Court of India finds it necessary to refer to certain judgments outlining the status of the Reserve Bank of India. The Constitution Bench, in the case of Joseph Kuruvilla Velukunnel (supra), considered a challenge to Section 38(1) and (3)(b)(iii) of the Banking Companies Act, 1949 as violative of Articles 14, 19 and 301 of the Constitution of India and therefore ultra vires. Though the Court held that Section 38 is an unreasonable restriction on the right of the Palai Bank to carry on its business and is unconstitutional, paragraph 46 of that judgment states that, in view of the history of the establishment of the Reserve Bank as a central bank for India, its position as a bankers' bank, its control over banking companies and banking in India, its position as the issuing bank, its power to licence banking companies and cancel their licences and numerous other powers, it is unanswerable that the decision to wind up a tottering or unsafe banking company in the interests of depositors may reasonably be left to the Reserve Bank. The court can also perform this task, but the decision has to be taken without delay, and the Reserve Bank already knows the affairs of banking companies intimately. If the court were called upon to take immediate action, it would almost always be guided by the opinion of the Reserve Bank; it would be impossible for the court to reach a conclusion unguided by the Reserve Bank if immediate action was demanded. Such a challenge has no force., The Court has referred to the pivotal role that the Reserve Bank of India plays as a central bank, as a bankers' bank and the numerous other powers it exercises. The law which gives an important position to the opinion of the Reserve Bank was challenged as unreasonable and such challenge had no force., In Peerless General Finance and Investment Co. Limited and another (supra), the Supreme Court of India noted that the Reserve Bank of India, which is a bankers' bank, is a creature of statute. It has a large contingent of expert advice relating to matters affecting the economy of the entire country and its bona fides in issuing the impugned directions of 1987 cannot be doubted. The Reserve Bank plays an important role in the economy and financial affairs of India and one of its important functions is to regulate the banking system in the country. It is the duty of the Reserve Bank to safeguard the economy and financial stability of the country., The Court held that the function of the judiciary is not to advise on matters relating to financial and economic policies for which bodies like the Reserve Bank are fully competent. The Court can only strike down some or all directions issued by the Reserve Bank if it is satisfied that the directions were wholly unreasonable or violative of any provision of the Constitution or any statute. It would be hazardous and risky for the courts to tread an unknown path and such tasks should be left to expert bodies. The Court has repeatedly said that matters of economic policy ought to be left to the government., The Supreme Court of India has held that it is not permissible for a court to advise on matters relating to financial and economic policies for which bodies like the Reserve Bank are fully competent. It would be risky and hazardous for the courts to tread an unknown path and such tasks should be left to expert bodies., In the case of Internet and Mobile Association of India (supra), Justice V. Ramasubramanian observed that the Reserve Bank of India is the sole repository of power for the management of the currency under Section 3 of the Reserve Bank of India Act. The Reserve Bank is also vested with the sole right to issue bank notes under Section 22(1) and to issue currency notes supplied to it by the Government of India, and it has an important role in evolving the monetary policy of the country by participation in the Monetary Policy Committee, which is empowered to determine the policy rate required to achieve the inflation target in terms of the consumer price index.
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Therefore, anything that may pose a threat to or have an impact on the financial system of the country can be regulated or prohibited by the Reserve Bank of India, despite the activity not forming part of the credit system or payment system. The expression 'management of the currency' appearing in Section 3(1) need not necessarily be confined to the management of what is recognised in law to be currency but would also include what is capable of faking or playing the role of a currency. It can thus be seen that this Supreme Court has held that the RBI is the sole repository of power for the management of currency. It is also vested with the sole right to issue bank notes and to issue currency notes supplied to it by the Government of India. It has been held that the RBI has an important role to play in evolving the monetary policy of the country., It is thus clear that this Supreme Court has consistently recognised the role assigned to the RBI in management and issuance of currency notes, as well as in evolving monetary policy of the country. We have referred to the aforesaid judgments with regard to the primary status of the RBI in dealing with the management and regulation of currency and in evolving monetary policy. Insofar as the decision to be taken by the Central Government under subsection (2) of Section 26 of the RBI Act is concerned, it is to be taken on the recommendation of the Central Board. We therefore find that there is an inbuilt safeguard in subsection (2) of Section 26 of the RBI Act, as the Central Government is required to take a decision on the recommendation of the RBI., As already discussed above, the RBI has a large contingent of expert advice available to it. It has a pivotal role in issuance and management of all matters relating to currency and also in evolving monetary policy of the country. We may fully refer to the Constitution Bench judgment of this Supreme Court in the case of Harakchand Ratanchand Banthia and others, wherein, though the Constitution Bench found clause (b) of subsection (2) of Section 5 of the Gold (Control) Act, 1968 to be unconstitutional on the ground of excessive delegation, it upheld the provisions of clause (a) of subsection (2) of Section 5 of the Gold (Control) Act, 1968, finding that there was an inbuilt safeguard as the Administrator was required to take a decision after consultation with the RBI., For considering whether the RBI Act provides guidance to the delegatee, the entire scheme, object and purpose of the Act must be taken into consideration. Guidance could be sought from the express provision empowering delegation, other provisions of the statute, the preamble, the scheme or even the very subject matter of the statute. If guidance is found in any part of the Act, the delegation is valid. A great amount of latitude must be given in such matters. It has been consistently held that Parliament and the State Legislatures are not bodies of experts; they are skilled in discovering the aspirations, expectations and needs of the people they represent. They function best when they concern themselves with general principles, broad objectives and fundamental issues rather than technical and situational intricacies, which are better left to well‑equipped full‑time expert executive bodies and specialist public servants., As already discussed above, the RBI has been constituted to regulate the issue of bank notes. The RBI is an expert body entrusted with various functions regarding monetary and economic policies. Perusal of the scheme of the RBI Act reveals that it has a primary role in the management and regulation of currency. We therefore find that there is sufficient guidance to the delegatee when it exercises its powers under subsection (2) of Section 26 of the RBI Act, from the subject matter of the statute and other provisions of the Act. Parliament has provided an inbuilt safeguard, i.e., the recommendation of the RBI. It is equally settled that economic, monetary and fiscal policies are best left to experts possessing requisite knowledge. The RBI as well as the Central Government are bodies having contingents of experts in the field. It will therefore not be proper for the Supreme Court to enter into an area which should be left to the experts., We are of the considered view that there is sufficient guidance in the preamble, scheme and object of the RBI Act. As already discussed, there cannot be a strait‑jacket formula, and the question whether excessive delegation has been conferred must be decided on the basis of the scheme, object and purpose of the statute under consideration., Another aspect that needs to be taken into consideration is the nature of the body to which the delegation is made. In the present case, the delegation is made to the Central Government and not to any ordinary body., In the case of Birla Cotton, Spinning and Weaving Mills Delhi, the seven‑Judge Bench of this Supreme Court held that the delegation was made to an elected body responsible to the people, including taxpayers. It observed that councillors are elected every four years and can be removed at the next election if they act unreasonably. The Court held that this provides a great check on elected councillors acting unreasonably and fixing unreasonable rates of taxation, constituting a democratic method of holding elected representatives accountable., In the present case also, the delegation is to the Central Government, i.e., the highest executive body of the country. India has a parliamentary system in which the Government is responsible to Parliament. If the Executive does not act reasonably while exercising its power of delegated legislation, it is responsible to Parliament, whose members are elected representatives of the citizens, providing a democratic method of holding the Executive accountable., Taking into consideration all these factors, we are of the considered view that subsection (2) of Section 26 of the RBI Act does not suffer from the vice of excessive delegation., The petitioners contend that the decision‑making process, both at the stage of making recommendations by the Central Board and at the stage of taking decision by the Central Government, is flawed because it was done without considering the relevant factors and eschewing the irrelevant ones. They also argue that, as per the scheme of subsection (2) of Section 26 of the RBI Act, the procedure should emanate from the Central Board and not from the Central Government. According to the petitioners, in the present case the procedure emanated from the Central Government via its letter dated 7 November 2016 advising the Board to convene a meeting and make a recommendation, which was hurriedly convened on 8 November 2016, where the Board recommended demonetisation and, within hours, the decision was announced by the Honourable Prime Minister., The petitioners submit that, given the hasty manner in which the recommendation was sought by the Central Government, made by the Central Board, and then taken by the Cabinet, there was no scope for the Central Board or the Cabinet to consider the relevant factors and eschew the irrelevant ones. They therefore contend that the decision was taken in a patently arbitrary manner and that the impugned notification should be set aside on the ground of patent arbitrariness. They also contend that, in the meeting of the Central Board, there was no quorum as required by the 1949 Regulations., The respondents submit that subsection (2) of Section 26 of the RBI Act contains two requirements: (i) recommendation of the Central Board; and (ii) decision of the Central Government. They argue that both requirements are satisfied in the present case. They further submit that, in an action like the present one, confidentiality and speed are of utmost importance., The law with regard to the scope of judicial review has been well crystallised in the case of Tata Cellular. In that case, this Supreme Court held that the duty of the court is to confine itself to the question of legality. Its concern should be whether a decision‑making authority exceeded its powers, committed an error of law, breached the rules of natural justice, reached a decision which no reasonable tribunal would have reached, or abused its powers. The Court held that it is not for the court to determine whether a particular policy or decision taken in the fulfilment of that policy is fair; it is only concerned with the manner in which those decisions have been taken., After referring to various pronouncements on the scope of judicial review, the Court summed up the principles: (1) modern trend points to judicial restraint in administrative action; (2) the court does not sit as a court of appeal but merely reviews the manner in which the decision was made; (3) the court lacks the expertise to correct the administrative decision and substitution may be fallible; (4) terms of invitation to tender cannot be open to judicial scrutiny as they are in the realm of contract; (5) the government must have freedom of contract, and decisions must be tested by the Wednesbury principle of reasonableness and must be free from arbitrariness, bias or mala fides; (6) quashing decisions may impose heavy administrative burden and unbudgeted expenditure. Based on these principles we will examine the facts of this case., Though various authorities are cited regarding scope of judicial review, we do not find it necessary to refer to many judgments. We may refer to the judgment of this Supreme Court in Rashmi Metaliks Limited and Another v. Kolkata Metropolitan Development Authority, wherein the Court deprecated the practice of citing several decisions when the law is already covered by the holding in Tata Cellular., Our enquiry, therefore, will be restricted to examining the decision‑making process on the limited grounds laid down in Tata Cellular., Since the issue also relates to monetary and economic policy of the country, we are guided by certain other pronouncements of this Supreme Court., We may refer to observations of the Seven‑Judge Bench in M/s. Prag Ice & Oil Mills and Another v. Union of India, where the Court held that it is not the function of any Court to sit in judgment over matters of economic policy, which must be left to the Government. Such matters involve predictions where even experts can err, and courts cannot be expected to decide them without expert assistance., In R.K. Garg v. Union of India and Others, another Constitution Bench observed that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights. The Court noted that the legislature should be allowed some flexibility in dealing with complex economic problems, and courts should give judicial deference to legislative judgment in economic regulation., The Constitution Bench in Shri Sitaram Sugar Company Limited and Another v. Union of India observed that judicial review is not concerned with matters of economic policy. The court does not substitute its judgment for that of the legislature or its agents. It only examines whether findings of fact are reasonably based on evidence and consistent with the law, and whether the price determined was with due regard to statutory considerations., Recently, this Supreme Court in Small Scale Industrial Manufacturers Association (Registered) v. Union of India considered the scope of judicial review of economic and fiscal regulatory measures. The Court observed that what is best for the national economy and how financial reliefs are formulated is ultimately to be decided by the Government and the RBI on expert advice, and such matters do not ordinarily attract judicial review. Courts do not ordinarily interfere with policy decisions unless they are tainted by mala fides, arbitrariness, or unfairness., The Court noted that judges and lawyers often lack the expertise to assess economic and fiscal regulatory measures, and therefore should encroach very warily. The correctness of the reasons prompting the Government to choose one course over another is not a matter for judicial review; policy decisions must be left to the Government, which alone can adopt appropriate policies after considering various points., The legality of the policy, not its wisdom or soundness, is the subject of judicial review. Courts do not act as appellate authorities examining the appropriateness of a policy, nor are they advisers to the executive on policy matters. The Court gives a large leeway to the executive and legislature in economic policy, intervening only when the executive action is arbitrary or violative of constitutional or statutory provisions., This Court observed that it would not interfere with any opinion formed by the Government if it is based on relevant facts, circumstances or expert advice. Interference is permissible only when the executive action is arbitrary or violative of law. The Court gives a large leeway to the executive and legislature in economic policy, as reflected in judgments such as P.T.R. Exports (Madras) Pvt. Ltd. v. Union of India and Bajaj Hindustan Limited v. Sir Shadi Lal Enterprises Limited., It is not the function of this Supreme Court or any other Court to sit in judgment over matters of economic policy; they must be left to the Government, as even experts can err and differ, and courts cannot be expected to decide them without expert assistance., Therefore, while exercising judicial review in the present case, the scope of interference is narrower. Applying the principles laid down in the aforesaid judgments, we must examine whether the decision‑making process is flawed, whether there is illegality in the process, whether the decision makers understood the law correctly, and whether the process is vitiated by irrationality under the Wednesbury principles, including any procedural impropriety., The learned Senior Counsel for the petitioners vehemently submitted that unless the letter dated 7 November 2016, the minutes of the Central Board meeting dated 8 November 2016, and the note for the Cabinet meeting dated 8 November 2016 are perused, the Court cannot determine whether the Central Board and the Central Government considered the relevant factors and eschewed the irrelevant ones. While closing the matters for judgment, we directed the Union of India and the RBI to produce the relevant records, which were subsequently produced by the respondents., We have scrutinised the entire record, i.e., the communication dated 7 November 2016 addressed by the Secretary, Department of Economic Affairs, Ministry of Finance to the Governor of the RBI, the minutes of the Central Board meeting dated 8 November 2016, the RBI recommendations dated 8 November 2016, and the note for the Cabinet meeting held on 8 November 2016., The communication dated 7 November 2016, addressed by the Secretary, Department of Economic Affairs, Ministry of Finance, Government of India to the Governor of the RBI, revealed that the Government of India was concerned about the infusion of Fake Indian Currency Notes (FICN) and generation of black money. It pointed out that FICN infusion is concentrated in the two highest denominations of Indian banknotes, Rs 500 and Rs 1000, and that the impact on the economy of these high‑denomination notes is very adverse. The communication referenced the 2012 White Paper on Black Money by the Department of Revenue, which noted that cash has always facilitated black money because cash transactions leave no audit trail, and that a parallel shadow economy corrodes the vitals of the country's economy., The communication thereafter referred to the constitution of a Special Investigation Team (SIT) headed by two former Judges of this Court, which made strong observations against the cash economy, and also referred to steps taken by the Government to reduce black money. After outlining these factors, the communication advised the Central Board to consider making necessary recommendations and requested the RBI to prepare a draft scheme to implement the measures in a non‑disruptive manner with as little inconvenience to the public and business entities as possible., We have also perused the minutes of the 561st meeting of the Central Board of Directors of the RBI held on 8 November 2016. The minutes show that the communication dated 7 November 2016 was placed before the Central Board by the Deputy Governor, followed by an elaborate discussion on the proposal. The Central Board considered the pros and cons, including the opportunity to further financial inclusion by incentivising electronic payments over cash. The Board also noted that the matter had been under discussion between the Central Government and the RBI for the last six months, during which most issues raised in the meeting were considered., After detailed deliberations, the Central Board resolved to recommend withdrawal of legal tender of bank notes in the denominations of Rs 500 and Rs 1000, both existing and any older series in circulation. Subsequently, the Deputy Governor, via communication dated 8 November 2016, informed the Secretary, Department of Economic Affairs, Ministry of Finance, Government of India of these recommendations, enclosing a draft scheme for implementation., We have also perused the note for the Cabinet dated 8 November 2016. The note contains details of relevant data from the Economic Survey for 2014‑15 and 2015‑16, the Intelligence Bureau report on FICN infusion and black money, the 2012 White Paper on Black Money, the SIT report and its recommendations, and the RBI's recommendation., Upon perusal of the material on record, we are of the considered view that the Central Board took into consideration the relevant factors while recommending withdrawal of legal tender of Rs 500 and Rs 1000 notes. Similarly, all relevant factors were placed before the Cabinet when it decided to demonetise. A draft scheme to implement demonetisation in a non‑disruptive manner with minimal inconvenience was also prepared by the RBI and considered by the Cabinet. Accordingly, we find the petitioners' contention that the decision‑making process suffered from non‑consideration of relevant factors and eschewing of irrelevant factors to be without substance., Insofar as the petitioners contend that there was no quorum as required under the 1949 Regulations, the affidavits of the RBI dated 15 November 2022 and 19 December 2018 categorically state that the requisite procedure under subsection (2) of Section 26 of the RBI Act read with Regulations 8 and 10 of the 1949 Regulations was duly followed., The minutes of the Central Board meeting show that eight directors were present, whereas the quorum is four directors, of whom not less than three must be directors nominated under Section 8(1)(b), 8(1)(c) or 12(4) of the RBI Act. An affidavit filed on 6 December 2022 specifically averred that the 561st meeting held on 8 November 2016 in New Delhi had the requisite quorum, with the Governor, two Deputy Governors, one director nominated under Section 8(1)(b), two directors nominated under Section 8(1)(c), and two directors nominated under Section 8(1)(d) present, satisfying the requirement of at least three nominated directors., In that view, the contention that the meeting of the Central Board on 8 November 2016 was not validly held for want of quorum is without substance., The petitioners submit that the procedure prescribed under subsection (2) of Section 26 of the RBI Act is breached because the proposal emanated from the Central Government, whereas the requirement is that the proposal should emanate from the Central Board. They argue that, since the Central Government is required to act on the recommendation of the Central Board, the proposal should originate from the Central Board., As already discussed, the RBI has a pivotal role in monetary and economic policies, particularly in matters pertaining to management and regulation of currency. Sections 22, 24 and 26 of the RBI Act show that in various currency matters the action is to be taken by the Central Government on the recommendation of the Central Board. While the final say on economic and monetary policies rests with the Central Government, it must rely on the expert advice of the RBI. In matters like the present one, it cannot be expected that the RBI and the Central Government act in isolated boxes; interaction and consultation between them is essential.
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As already discussed hereinabove, the record would reveal that the matter was under active consideration for a period of six months between the Reserve Bank of India and the Central Government. As such, merely because the Central Government has advised the Central Board to consider recommending demonetisation and that the Central Board, on the advice of the Central Government, has considered the proposal for demonetisation and recommended it and, thereafter, the Central Government has taken a decision, in our view, cannot be a ground to hold that the procedure prescribed under Section 26 of the Reserve Bank of India Act was breached. The two requirements of sub‑section (2) of Section 26 of the Reserve Bank of India Act are recommendation by the Central Board and the decision by the Central Government. As already discussed hereinabove, both the Central Board while making recommendation and the Central Government while taking the decision have taken into consideration all the relevant factors., The dictionary meaning of the word recommend is to advise as to a course of action, or to praise or commend. In P. Ramanatha Aiyar's Law Lexicon, the meaning of the word recommendation is a statement expressing commendation or a message of this nature. The word recommendation, therefore, will have to be construed in the context in which it is used. Reference in this respect would be made to the judgments of the Supreme Court of India in the cases of V.M. Kurian v. State of Kerala and others and Manohar s/o Manikrao Anchule v. State of Maharashtra and another., The power to be exercised by the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act is for effecting demonetisation. The said power has to be exercised on the recommendation of the Central Board. As already discussed hereinabove, the Reserve Bank of India has a pivotal role in the matters of monetary policy and issuance of currency. The scheme mandates that before the Central Government takes a decision with regard to demonetisation, it would be required to consider the recommendation of the Central Board. We find that, in the context in which it is used, the word recommendation would mean a consultative process between the Central Board and the Central Government., In our view, therefore, the enquiry would be limited as to whether there was an effective consultation between the Central Government and the Central Board before the decision was taken. Reference in this respect would be made to the following observations of the Supreme Court of India in the case of State of Gujarat and another v. Justice R.A. Mehta (Retired) and others: In State of Gujarat v. Gujarat Revenue Tribunal Bar Assn. [(2012) 10 SCC 353 : (2012) 4 SCC (Civ) 1229 : (2013) 1 SCC (Cri) 35 : (2013) 1 SCC 372, para 34], the Supreme Court of India held that the object of consultation is to render its process meaningful so that it may serve its intended purpose. Consultation requires the meeting of minds between the parties that are involved in the consultative process on the basis of material facts and points in order to arrive at a correct or at least a satisfactory solution. If a certain power can be exercised only after consultation such consultation must be conscious, effective, meaningful and purposeful. To ensure this, each party must disclose to the other all relevant facts for due deliberation. The consultee must express his opinion only after complete consideration of the matter on the basis of all the relevant facts and quintessence. Consultation may have different meanings in different situations depending upon the nature and purpose of the statute. (See also Union of India v. Sankalchand Himatlal Sheth [(1977) 4 SCC 193 : 1977 SCC (L&S) 435 : AIR 1977 SC 2328], State of Kerala v. A. Lakshmikutty [(1986) 4 SCC 331], High Court of Judicature of Rajasthan v. P.P. Singh [(2003) 4 SCC 1029], Union of India v. Kali Dass Batish [(2006) 1 SCC 779 : 2006 SCC (L&S) 225 : AIR 2006 SC 789], Andhra Bank v. Andhra Bank Officers [(2008) 7 SCC 2936] and Union of India v. Madras Bar Assn. [(2010) 11 SCC 26]. In Chandramouleshwar Prasad v. Patna High Court [(1969) 3 para 7], the Supreme Court of India held that consultation or deliberation can neither be complete nor effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other, who has a counter‑proposal in mind which is not communicated to the proposer, a direction issued to give effect to the counter‑proposal without any further discussion with respect to such counter‑proposal with the proposer cannot be said to have been issued after consultation., As such, the enquiry would be limited to find out whether both the Central Board and the Central Government had made their respective points of view known to each other and discussed and examined the relative merits of their views. It will have to be considered whether each party had disclosed to the other all relevant facts and factors for due deliberation. The limited enquiry would be whether the recommendation by the Central Board was made after complete consideration of the matter on the basis of all the relevant facts and material before it., As already discussed hereinabove, the record itself reveals that the Reserve Bank of India and the Central Government were in consultation with each other for a period of six months before the impugned notification was issued. The record would also reveal that all the relevant information was shared by both the Central Board as well as the Central Government with each other. As such, it cannot be said that there was no conscious, effective, meaningful and purposeful consultation., Another submission that is being made is that the objective with which the impugned Notification was issued, i.e., to combat fake currency, black money and parallel financing, has utterly failed. It is submitted that immediately after demonetisation was effected, currency notes of new series have been seized. It is also submitted that the fake currency is also in vogue. New series of notes have been seized from terrorists. Per contra, it is submitted that the long‑term benefits of demonetisation have been enormous, direct and indirect. The learned Attorney General has placed on record an elaborate list of the same to which we have already referred to in earlier paragraphs., However, we do not wish to go into the question as to whether the object with which demonetisation was effected is served or not or as to whether it has resulted in huge direct and indirect benefits or not. We do not possess the expertise to go into that question and it is best that it should remain in the domain of the experts., The question is succinctly answered by the Supreme Court of the United States in the case of Metropolis Theater Company et al., Plffs. In Err., v. City of Chicago and Ernest J. Magerstadt, which reads thus: \The attack of complainants (we so call plaintiffs in error) is upon the classification of the ordinance. It is contended that the purpose of the ordinance is to raise revenue, and that its classification has no relation to such purpose, and therefore is arbitrarily discriminatory, and thereby offends the 14th Amendment of the Constitution of the United States. The character ascribed to the ordinance by the supreme court of the state is not without uncertainty. But we may assume, as complainants assert, that the court considered the ordinance as a revenue measure only. The court said: 'The ordinance may be sustainable under the taxing power alone, without reference to its reasonableness as a regulatory measure.' And, regarding it as a revenue measure, complainants attack it as unreasonable in basing its classification upon the price of admission of a particular theater, and not upon the revenue derived therefrom; and to exhibit the discrimination which is asserted to result, a comparison is made between the seating capacity of complainants' theaters and the number of their performances within given periods, and the theaters of others in the same respects, and the resulting revenues. But these are accidental circumstances and dependent, as the supreme court of the state said, upon the advantages of the particular theater or choice of its owner, and not determined by the ordinance. It will immediately occur upon the most casual reflection that the distinction the theater itself makes is not artificial, and must have some relation to the success and ultimate profit of its business. In other words, there is natural relation between the price of admission and revenue, some advantage, certainly, that determines the choice. The distinction obtains in every large city of the country. The reason for it must therefore be substantial; and if it be so universal in the practice of the business, it would seem not unreasonable if it be adopted as the basis of governmental action. If the action of government have such a basis it cannot be declared to be so palpably arbitrary as to be repugnant to the 14th Amendment. This is the test of its validity, as we have so many times said. We need not cite the cases. It is enough to say that we have tried, so far as that Amendment is concerned, to declare in words, and the cases illustrate by examples, the wide range which legislation has in classifying its objects. To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void under the 14th Amendment; and such judgment cannot be pronounced of the ordinance in controversy.\ Quong Wing v. Kirkendall, 223 U.S. 59, 56 L. ed. 350, 32 Sup. Ct. Rep. 192. [emphasis supplied], It has been held that if the action of the government has a basis with the objectives to be achieved, it cannot be declared as palpably arbitrary. It has been held that, to be able to find fault with a law is not to demonstrate its invalidity. It has been held that the result of the act may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. It has been held that what is best is not always discernible, and the wisdom of any choice may be disputed or condemned. It has been held that mere errors of government are not subject to judicial review. It is only the palpably arbitrary exercises which can be declared void., We may gainfully refer to the following observations of the Supreme Court of India in the case of R.K. Garg, wherein the Court observed that it should constantly remind itself of what the Supreme Court of the United States said in the case of Metropolis Theater Company: \The Court would not have the necessary competence and expertise to adjudicate upon such an economic issue. The Court cannot possibly assess or evaluate what would be the impact of a particular immunity or exemption and whether it would serve the purpose in view or not. There are so many imponderables that would enter into the determination that it would be wise for the Court not to hazard an opinion where even economists may differ. The Court must while examining the constitutional validity of a legislation of this kind, be resilient, not rigid, forward looking, not static, liberal, not verbal and the Court must always bear in mind the constitutional proposition enunciated by the Supreme Court of the United States in Munn v. Illinois, namely, that courts do not substitute their social and economic beliefs for the judgement of legislative bodies. The Court must defer to legislative judgment in matters relating to social and economic policies and must not interfere, unless the exercise of legislative judgment appears to be palpably arbitrary.\, The Constitution Bench holds that the Court would not have the necessary competence and expertise to adjudicate upon such an economic issue. The Court cannot possibly assess or evaluate what would be the impact of a particular immunity or exemption and whether it would serve the purpose in view or not. It has been held that it would be wise for the Court not to hazard an opinion where even economists may differ. It has been held that while examining the constitutional validity of such legislation, the Court must be resilient, not rigid, forward looking, not static, liberal, not verbal., We are, therefore, of the considered view that the Court must defer to legislative judgment in matters relating to social and economic policies and must not interfere unless the exercise of executive power appears to be palpably arbitrary. The Court does not have necessary competence and expertise to adjudicate upon such economic issues. It is also not possible for the Court to assess or evaluate what would be the impact of a particular action and it is best left to the wisdom of the experts. In such matters, it will not be possible for the Court to assess or evaluate what would be the impact of the impugned action of demonetisation. The Court does not possess the expertise to do so. As already discussed hereinabove, on one hand, the petitioners urged that there has been an adverse effect upon the economy and on the other hand, the learned Attorney General had given a long list of direct and indirect advantages of demonetisation. In any case, mere errors of judgment by the government seen in retrospect are not subject to judicial review. In such matters, legislative and quasi‑legislative authorities are entitled to a free play, and unless the action suffers from patent illegality, manifest or palpable arbitrariness, the Court should be slow in interfering with the same., Another contention in this regard is that, on account of a hasty decision by the Central Government, citizens had to suffer at large, that many people were required to stand in the queues for hours, that many citizens were deprived of their meals, and that many citizens lost their jobs., As already discussed hereinabove, the Central Government had advised the Central Board to draft a scheme to implement demonetisation in a non‑disruptive manner with as little inconvenience to the public and business entities as possible. Accordingly, a draft scheme was also submitted by the Central Board along with its recommendations for demonetisation. It is stated in the affidavit that the Reserve Bank of India has subsequently issued relaxations from time to time taking into consideration the difficulties of the people and availability of the new notes. No doubt that on account of demonetisation, the citizens were faced with various hardships. However, we may again gainfully refer to the following observations of the Supreme Court of India in the case of R.K. Garg: \The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues.\, Therefore, while adjudging the illegality of the impugned Notification, we would have to examine whether the objectives for which it was enacted have nexus with the decision taken or not. If the impugned Notification had a nexus with the objectives to be achieved, then, merely because some citizens have suffered hardships would not be a ground to hold the impugned Notification to be bad in law., In this respect, we may gainfully refer to the following observations of the Supreme Court of India in the case of K.M. Sonia Bhatia v. State of U.P. and Others: \It was urged that this is an extremely hard case where the grandfather of the donee wanted to make a beneficial provision for his granddaughter after having lost his two sons in the prime of their life due to air‑crash accidents while serving in the Air Force. It is true that the District Judge has come to a clear finding that the gift in question is bona fide and has been executed in good faith but as the gift does not fulfil the other ingredients of the section, namely, that it is not for adequate consideration, we are afraid, however laudable the object of the donor may have been, the gift has to fail because the genuine attempt of the donor to benefit his granddaughter seems to have been thwarted by the intervention of sub‑section (6) of Section 5 of the Act. This is undoubtedly a serious hardship but it cannot be helped. We must remember that the Act is a valuable piece of social legislation with the avowed object of ensuring equitable distribution of the land by taking away land from large tenure‑holders and distributing the same among landless tenants or using the same for public utility schemes which is in the larger interest of the community at large. The Act seems to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. If in this process a few individuals suffer severe hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr.\, Though the Court found that the Act caused a serious hardship, it held that the Act is a valuable piece of social legislation. It held that the Act was enacted to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. It further observed that, if in this process a few individuals suffer severe hardship, that cannot be helped. It further held that individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr., In any case now, the action which was taken by the Central Government by the impugned Notification has been validated by the 2016 Ordinance and which has fructified in the 2017 Act. The Central Government is answerable to the Parliament and the Parliament, in turn, represents the will of the citizens of the country. The Parliament has therefore put its imprimatur on the executive action. This is apart from the fact that we have not found any flaw in the decision‑making process as required under sub‑section (2) of Section 26 of the Reserve Bank of India Act., The decision‑making process is also sought to be attacked on the ground that the decision was taken in a hasty manner. We find that the hasty argument would be destructive of the very purpose of demonetisation. Such measures undisputedly are required to be taken with utmost confidentiality and speed. If the news of such a measure is leaked out, it is difficult to imagine how disastrous the consequences would be., It will be interesting to note again from Volume III of the History of the Reserve Bank of India that, on 14th January 1978, one R. Janakiraman, a senior official in the Reserve Bank of India was asked by some officers of the Government of India to come immediately to Delhi for some urgent work. When he asked for what purpose he was called, he was told that the matters relating to exchange control need to be discussed. He, however, took along with him one M. Subramaniam, a senior official of the Exchange Control Department. On reaching Delhi, he was informed that the Government had decided to demonetise the high denomination notes and was required to draft the necessary Ordinance within twenty‑four hours. During the said period, no communication was allowed with anyone including the Bank's central office at Bombay. R. Janakiraman and M. Subramaniam made a request for the 1946 Ordinance on demonetisation to get an idea how it was to be drafted, which request was acceded to by the Finance Ministry. The draft Ordinance was completed on schedule. It was finalised and sent for signature of the President of India in the early hours of 16th January 1978 and on the same day, the announcement to that effect was made on All India Radio's news bulletin at 09.00 a.m., It can thus be seen that confidentiality and secrecy in such sort of measures is of paramount importance. When demonetisation was being done in the year 1978, R. Janakiraman, who had drafted the Ordinance, was not permitted to communicate with anyone including the Bank's central office at Bombay. It would thus show the great degree of confidentiality that was maintained. In any case, the material placed on record would show that the Reserve Bank of India and the Central Government were in consultation with each other for at least a period of six months preceding the action., We, therefore, find that the impugned notification dated 8th November 2016 does not suffer from any flaws in the decision making process., It is sought to be urged on behalf of the petitioners that before taking such a drastic measure, which caused enormous hardship to a number of citizens, the government ought to have found out as to whether there was an alternate course of action which could have resulted in lesser hardship to the citizens. In this respect, reliance is placed on the judgment of the Supreme Court of India in the case of Internet and Mobile Association of India and K.S. Puttaswamy (Retired) and another (Aadhaar)., In the case of Internet and Mobile Association of India, the Reserve Bank of India had issued a directive to the entities regulated by the Reserve Bank of India (i) not to deal with or provide services to any individual or business entities dealing with or settling virtual currencies and (ii) to exit the relationship, if they already have one, with such individuals/business entities, dealing with or settling virtual currencies., The said action came to be challenged by a writ petition filed under Article 32 of the Constitution of India. The challenge was on several grounds, including the ground of proportionality. Though the Court did not find favour with the other grounds raised on behalf of the petitioners therein, it held that the concern of the Reserve Bank of India is and ought to be about the entities regulated by it. It found that, till date, the Reserve Bank of India had not come out with a stand that any of the entities regulated by it, namely, the nationalised banks, scheduled commercial banks, cooperative banks or NBFCs had suffered any loss or adverse effect directly or indirectly, on account of the interface that the virtual currency exchanges had with any of them. The Court held that there must have been at least some empirical data about the degree of harm suffered by the regulated entities. The Court, therefore, while upholding the power of the Reserve Bank of India to take pre‑emptive action, upon testing the proportionality of the measure, found that in the absence of the Reserve Bank of India pointing out at least some semblance of any damage suffered by its regulated entities, the impugned measure was disproportionate., The Constitution Bench of the Supreme Court of India in the case of Modern Dental College and Research Centre, while considering a balance between the right under Article 19(1)(g) and the reasonable restrictions under clause (6) of Article 19 of the Constitution of India, observed thus: \Thus, while examining as to whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as doctrine of proportionality. Jurisprudentially, proportionality can be defined as the set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub‑components of proportionality which need to be satisfied: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (proportionality stricto sensu or balancing) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.\, The Constitution Bench held that while examining whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise required is balancing of the fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. The Court refers to four tests of proportionality which need to be satisfied. The first one is that it should be designated for a proper purpose. The second one is that the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose. The third one is that the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation. Finally, the fourth one is that there needs to be a proper relation between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. The Court held that there has to be a balance between a constitutional right and public interest. It held that a constitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others., It is pertinent to note that in the case of Modern Dental College and Research Centre, the Court was considering the validity of the Act and the Rules which regulated primarily the admission of the students in postgraduate courses in private educational institutions and the provisions made thereunder. Applying the test of proportionality, the Court held that the larger public interest warrants such a measure.
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It held that, having regard to the malpractices which are noticed in the Common Entrance Test conducted by such private institutions themselves, it is, undoubtedly, in the larger interest and welfare of the student community to promote merit and excellence and to curb malpractices. Supreme Court of India held that the impugned provisions which may amount to restrictions on the right of the appellants therein to carry on their occupation are clearly reasonable and satisfy the test of proportionality., The proportionality doctrine is sought to be placed in service on the ground that in the case of Jayantilal Ratanchand Shah (supra), Supreme Court of India held the bank notes to be property and as such, the impugned notification imposed unreasonable restrictions, violative of Article 300-A of the Constitution of India., Let us test the four‑pronged test culled out by Aharon Barak, former Chief Justice of the Supreme Court of Israel, which has been reproduced in the case of Modern Dental College and Research Centre (supra)., The impugned notification has been issued with an objective to meet the following three concerns: (i) Fake currency notes of the specified bank notes have been largely in circulation and it has been found to be difficult to easily identify genuine bank notes from the fake ones; (ii) It has been found that high denomination bank notes were used for storage of unaccounted wealth which was evident from the large cash recoveries made by law enforcement agencies; and (iii) It has also been found that fake currency is being used for financing subversive activities such as drug trafficking and terrorism, causing damage to the economy and security of the country., For the purpose of achieving these objectives, the Central Government, on the recommendations of the Central Board, took a decision to demonetize the bank notes of denominational value of Rs 500 and Rs 1000. Assuming that holding bank notes is a right under Article 300-A of the Constitution of India, the limitation that is imposed is designated for a proper purpose. By no stretch of imagination could it be said that the aforesaid three purposes, i.e., elimination of fake currency, black money and terror financing, are not proper purposes. As such, the first test is satisfied., The second test is as to whether the measure undertaken to effectuate such a limitation is rationally connected to the fulfilment of that purpose – that would be the nexus test. The question, therefore, is whether the measures taken in the present case have a reasonable nexus with the purpose to be achieved. As already discussed hereinabove, the purpose of demonetization was to eliminate the fake currency notes, black money, drug trafficking and terror financing. It can be said that demonetizing high denomination bank notes of Rs 500 and Rs 1000 has a reasonable nexus with the aforesaid purposes of addressing issues of fake currency bank notes, black money, drug trafficking and terror financing. As such, the second test stands satisfied., Insofar as the third test is concerned, it is required to be examined whether the measure undertaken is necessary in that there are no alternative measures that may similarly achieve the same purpose with a lesser degree of limitation. As held in the case of M.R.F. Ltd. v. Inspector Kerala Government and Others, to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case. What measure is required to meet the aforesaid objectives is exclusively within the domain of the experts. The Reserve Bank of India, as already held, plays a material role in economic and monetary policy and issues relating to management and regulation of currency. The Central Government is the best judge since it has all the inputs with regard to fake currency, black money, terror financing and drug trafficking. Unless the said discretion has been exercised in a palpably arbitrary and unreasonable manner, it will not be possible for Supreme Court of India to interfere with the same., In any case, what alternate measure could have been undertaken with a lesser degree of limitation is very difficult to define. Whether Supreme Court of India possesses an expertise to decide whether demonetization of only Rs 500 denomination notes ought to have been done or the denomination of only Rs 1000 notes ought to have been done, or whether particular series of the bank notes ought to have been demonetized, are all areas which are purely within the domain of the experts and beyond the arena of judicial review., Insofar as the fourth test, that is the proper relation between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right, can it really be said that there is no proper relation between the importance of curbing the menace of fake currency, black money, drug trafficking and terror financing on one hand and demonetizing the Rs 500 and Rs 1000 notes, thereby imposing restriction on the use of demonetized currency?, In any case, by demonetization, the right vested in the notes was not taken away. The only restrictions were with regard to exchange of old notes with the new notes, which were also gradually relaxed from time to time. Insofar as deposit of the demonetized notes in banks is concerned, there was no limitation. If a citizen had a Know Your Customer compliant bank account, he could deposit any amount and get to his credit the full value of legitimate currency. As such, the right to property in bank notes was not taken away. A full value of legitimate currency was entitled to be deposited in the bank account, however, up to a particular date. In any case, there was no restriction on non‑cash transactions like debit card, credit card, net banking, online transactions etc., We find that the argument that the right to property was sought to be taken away is without substance. Even if there were reasonable restrictions on the said right, the restrictions were in the public interest of curbing evils of fake currency, black money, drug trafficking and terror financing. As such, we find that applying the four‑pronged test, the doctrine of proportionality is fully satisfied., Insofar as reliance on the judgment of the Constitution Bench of Supreme Court of India in the case of K.S. Puttaswamy (Retired) and another (Aadhaar) (supra) is concerned, in the facts of that case, the Constitution Bench found that, on account of various measures taken by the Government to give a boost to the digital economy, millions of persons who are otherwise poor had opened their bank accounts and were becoming habitual to the good practice of entering into transactions through their banks and even by using digital modes for operation of their bank accounts. Supreme Court of India, in that background, found that making the requirement of Aadhaar compulsory for all such persons in the name of checking money laundering or black money was grossly disproportionate. The observations made therein were in the context of the factual background that fell for consideration in that case. In our view, those observations would not be applicable to the facts of the present case. We have already considered in detail how, upon application of the four‑pronged test of proportionality, the impugned notification cannot be struck down., In any case, in our view, there is a direct and proximate nexus between the restrictions imposed and the objectives sought to be achieved. As held by Supreme Court of India in the case of M.R.F. Ltd. (supra), if there is a direct nexus between the restrictions and the object of the action, then a strong presumption in favour of the constitutionality of the action naturally arises., We, therefore, hold that the impugned notification dated 8th November 2016 does not violate the principle of proportionality and, as such, is not liable to be struck down on that ground., It is sought to be urged that the period provided for exchange of old notes with the new notes under the impugned notification is unreasonable., Under the 1978 Act, the Ordinance was notified on 16th January 1978, which transformed into the Act on 30th March 1978. Under Section 3 of the 1978 Act, all high denomination bank notes, notwithstanding anything contained in Section 26 of the Reserve Bank of India Act, ceased to be legal tender in payment or on account at any place. Under Section 7 of the 1978 Act, every person desiring to tender for exchange demonetized notes was required to submit a declaration giving the particulars not later than 19th January 1978., Under Section 8 of the 1978 Act, a person who failed to apply for exchange of any demonetized notes within the time provided under Section 7 was entitled to tender the notes together with a declaration required under Section 7 along with a statement explaining the reasons for his or her failure to apply within the specified time limit. Under sub‑section (2) of Section 8, if the Reserve Bank of India was satisfied with the genuineness of the reasons for the failure to submit the notes prior to 19th January 1978, it could pay the value of the notes in the manner specified in sub‑section (4) of Section 7. Under sub‑section (3) of Section 8, an appeal was provided before the Central Government against the refusal of the Reserve Bank of India to pay the value of the notes., It could thus be seen that under the 1978 Act, a three‑day period was provided for exchanging the demonetized notes. If a person could not avail of the said period, a five‑day grace period was made available during which the money could be exchanged subject to the Reserve Bank of India being satisfied with the genuineness of the reasons for not submitting the same within three days. As such, the period available to everyone was three days which could be further extended by five days. A challenge was raised on the ground that the period was unreasonable and violative of the fundamental rights. Rejecting the contention, the Constitution Bench in the case of Jayantilal Ratanchand Shah (supra) observed that, when the provisions of the Act are considered in the context of the purpose the Demonetisation Act sought to achieve – namely, to stop circulation of high denomination bank notes as early as possible – the contention of the petitioners cannot be accepted. It was absolutely necessary to ensure that no opportunity was available to the holders of high denomination bank notes to transfer the same to the possession of others, while at the same time affording a reasonable opportunity to the holders to get the same exchanged. The time for such exchange was limited to 19‑1‑1978, and thereafter, under Section 8, the high denomination bank notes could be exchanged till 24‑1‑1978 provided the tenderer could satisfactorily explain the reasons for his failure to apply within the time stipulated. Sub‑section (7) of Section 7 permits the Central Government, for reasons recorded in writing, to extend the period during which high denomination bank notes may be tendered for exchange. From a combined reading of Sections 7 and 8 it is clear that furnishing a complete declaration by 19‑1‑1978 entitled the holder to exchange value without hindrance; thereafter, until 24‑1‑1978, the holder could also exchange if he could satisfactorily explain the reasons for his inability to apply by 19‑1‑1978, and after that date the Central Government was empowered to extend the period. Hence, the scheme cannot be said to be unreasonable, unjust or violative of the petitioners' fundamental rights., The Constitution Bench found that if the time for such exchange was not limited, the high denomination bank notes could be circulated and transferred without the knowledge of the authorities concerned, and any such transferee could walk into the bank on any day thereafter and demand exchange of his notes. In such an eventuality, the very object which the Demonetisation Act sought to achieve would have been defeated. The Court held that between 16th January 1978 and 19th January 1978, the holder was entitled to get the exchange value of his notes from the bank without any limit or hindrance. The challenge that the period of three days was unreasonable, unjust and violative of the petitioners' fundamental rights was specifically rejected., In the present case, the period for exchanging any amount of specified bank notes and depositing the same in a Know Your Customer compliant bank account without any limit or hindrance was 52 days, whereas the period in the case of Jayantilal Ratanchand Shah (supra) was only three days. In view of the Constitution Bench's holding, we fail to understand how the period of 52 days could be construed to be unreasonable, unjust or violative of the petitioners' fundamental rights., We, therefore, hold that the period provided for exchange of notes vide the impugned notification dated 8th November 2016 cannot be said to be unreasonable., It is sought to be urged by Shri Divan that the Reserve Bank of India has independent power under sub‑section (2) of Section 4 of the 2017 Act. Contextual and harmonious construction of the provisions of the 2017 Act is required., For appreciating the said contention, it will be appropriate to refer to Sections 3 and 4 of the 2017 Act, which read thus: 3. Specified bank notes to cease to be liability of Reserve Bank or Central Government. On and from the appointed day, notwithstanding anything contained in the Reserve Bank of India Act, 1934 or any other law for the time being in force, the specified bank notes which have ceased to be legal tender, in view of the notification of the Government of India in the Ministry of Finance, number S.O. 3407(E), dated 8th November 2016, issued under sub‑section (2) of section 26 of the Reserve Bank of India Act, 1934, shall cease to be liabilities of the Reserve Bank under section 34 and shall cease to have the guarantee of the Central Government under sub‑section (1) of section 26 of the said Act. 4. Exchange of specified bank notes. (1) Notwithstanding anything contained in section 3, the following persons holding specified bank notes on or before 8th November 2016 shall be entitled to tender within the grace period with such declarations or statements, at such offices of the Reserve Bank or in such other manner as may be specified by it, namely: (i) a citizen of India who makes a declaration that he was outside India between 9th November 2016 and 30th December 2016, subject to such conditions as may be specified by notification by the Central Government; or (ii) such class of persons and for such reasons as may be specified by notification by the Central Government. (2) The Reserve Bank may, if satisfied, after making such verifications as it may consider necessary that the reasons for failure to deposit the notes within the period specified in the notification referred to in section 3, are genuine, credit the value of the notes in his Know Your Customer compliant bank account in such manner as may be specified by it. (3) Any person, aggrieved by the refusal of the Reserve Bank to credit the value of the notes under sub‑section (2), may make a representation to the Central Board of the Reserve Bank within fourteen days of the communication of such refusal to him. Explanation: For the purposes of this section, the expression Know Your Customer compliant bank account means the account which complies with the conditions specified in the regulations made by the Reserve Bank under the Banking Regulation Act, 1949., The effect of Section 3 of the 2017 Act is that the specified bank notes, which have ceased to be legal tender in view of the impugned notification, shall cease to be liabilities of the Reserve Bank under section 34 of the Reserve Bank of India Act and shall cease to have the guarantee of the Central Government under sub‑section (1) of section 26 of that Act. The legislative intent under Section 3 of the 2017 Act is to provide clarity and finality to the liabilities of the Reserve Bank and the Central Government arising from such bank notes which have ceased to be legal tender with effect from 9th November 2016., Sub‑section (1) of Section 4 of the 2017 Act provides that notwithstanding anything contained in Section 3 of the 2017 Act, a class of persons would be entitled to tender within the grace period with such declarations or statements, at such offices of the Reserve Bank or in such other manner as may be specified by it. Clause (i) deals with a citizen of India who makes a declaration that he was outside India between 9th November 2016 and 30th December 2016, subject to conditions specified in the notification by the Central Government. Clause (ii) empowers the Central Government to issue a notification with regard to persons holding specified bank notes who would be entitled to tender within the grace period for such reasons as may be specified in the notification., It is thus clear that, though in view of the impugned notification and Section 3 of the 2017 Act, demonetized notes have ceased to be legal tender and have ceased to be liabilities of the Reserve Bank under section 34 of the Reserve Bank of India Act and the guarantee of the Central Government under sub‑section (1) of section 26 of that Act, a window is provided by Section 4 of the 2017 Act. Clause (i) deals with a citizen of India who makes a declaration that he was outside India between 9th November 2016 and 30th December 2016, subject to conditions specified in the notification by the Central Government. Accordingly, a notification was issued by the Central Government on 30th December 2016. In view of clause (ii), the Central Government is empowered to provide a window for tendering the specified bank notes which have otherwise ceased to be legal tender to such class of persons and for the reasons as may be specified in the notification., It is thus clear that Section 4 of the 2017 Act provides an integrated scheme. Sub‑section (1) empowers the Central Government to provide a grace period. Sub‑section (2) requires the Reserve Bank of India, if satisfied with the genuineness of the reasons for failure to deposit the notes prior to 30th December 2016, to credit the value of the notes in the person's Know Your Customer compliant bank account. Sub‑section (3) provides for an appeal. We are therefore of the considered view that sub‑section (2) cannot be read independently of sub‑sections (3) and (4); it must be read as part of the scheme of Section 4 of the 2017 Act., The Constitution Bench of Supreme Court of India in the case of Popatlal Shah v. State of Madras observed: 'It is a settled rule of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself.', We may gainfully refer to the following observations of Supreme Court of India in the case of Peerless General Finance and Investment Company Limited: 'Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.', The interpretation which makes the textual interpretation match the contextual has to be preferred. A statute is best interpreted when the reason and purpose for its enactment is ascertained. The statute must be read first as a whole, and then section by section, clause by clause, phrase by phrase and word by word., If we look at the purpose of the 2017 Act, it is for extinguishing the liabilities of the specified bank notes which have ceased to be legal tender with effect from 9th November 2016 so as to give clarity and finality to the liabilities of the Reserve Bank of India and the Central Government arising from such bank notes. However, in order to provide a grace period to genuine cases, Section 4 of the 2017 Act has been incorporated. Section 5 of the 2017 Act provides for prohibition on holding, transferring or receiving specified bank notes. Sections 6 and 7 of the 2017 Act are penal sections which provide for penalty for contravention of Sections 4 and 5 of the 2017 Act, respectively., It is thus clear that Section 4 of the 2017 Act provides for an integrated scheme. It is a complete code in itself. Under sub‑section (1) the Central Government is entitled to provide a grace period. Under sub‑section (2) the Reserve Bank of India is required to satisfy whether a person seeking to take benefit of the grace period is entitled thereto after satisfying that the reasons for not depositing the specified bank notes prior to 30th December 2016 are genuine, and thereafter, credit the value of the said notes in his Know Your Customer compliant bank account. Sub‑section (3) provides for an appeal. We are therefore of the considered view that sub‑section (2) cannot be read independently of sub‑sections (3) and (4); it must be read as part of the scheme of Section 4 of the 2017 Act., Shri Divan and various other learned counsel contended that there were various genuine cases wherein the persons could not deposit the demonetized notes within the specified period. The impugned notification was sought to be challenged on the ground that it has caused hardship to a number of persons. It was therefore urged that Supreme Court of India should either hold the impugned notification to be arbitrary or direct the Central Government to exercise the powers under Section 4(1)(ii) of the 2017 Act or, by exercising the powers under Article 142 of the Constitution of India, provide a window so as to enable genuine persons to exchange their demonetized notes. We have already referred to the judgment of Supreme Court of India in the case of Km. Sonia Bhatia (supra) hereinbefore., As such, the contention that the impugned notification is liable to be set aside on the ground that it caused hardship to individuals will hold no water. The individual interests must yield to the larger public interest sought to be achieved by the impugned notification.
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Insofar as the suggestion to frame a scheme and provide a window for a limited period so as to enable citizens having genuine reasons to exchange the notes is concerned, we do not find that it will be appropriate for us, in the absence of any expertise in economic, monetary and fiscal matters, to frame such a scheme. In our view, it would be encroaching upon the areas reserved for the experts. If the Central Government finds that there exists any such class of persons and there are any reasons for extending the benefit under Section 4 of the 2017 Act, it is within its discretion to do so. In our view, it cannot be done by a judicial mandate., We therefore hold that the Reserve Bank of India does not have independent power under sub‑section (2) of Section 4 of the 2017 Act in isolation of the provisions of Sections 3 and 4(1) thereof to accept the demonetized notes beyond the period specified in notifications issued under sub‑section (1) of Section 4 of the 2017 Act., We accordingly answer the Reference as under: (i) The power available to the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934 cannot be restricted to mean that it can be exercised only for one or some series of bank notes and not for all series of bank notes; the power can be exercised for all series of bank notes. Merely because on two earlier occasions the demonetization exercise was by plenary legislation, it cannot be held that such a power would not be available to the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934. (ii) Sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934 does not provide for excessive delegation inasmuch as there is an in‑built safeguard that such a power has to be exercised on the recommendation of the Central Board; therefore, it is not liable to be struck down on that ground. (iii) The impugned Notification dated 8th November 2016 does not suffer from any flaws in the decision‑making process. (iv) The impugned Notification dated 8th November 2016 satisfies the test of proportionality and, as such, cannot be struck down on that ground. (v) The period provided for exchange of notes vide the impugned Notification dated 8th November 2016 cannot be said to be unreasonable. (vi) The Reserve Bank of India does not possess independent power under sub‑section (2) of Section 4 of the 2017 Act in isolation of the provisions of Sections 3 and 4(1) thereof to accept the demonetized notes beyond the period specified in notifications issued under sub‑section (1) of Section 4 of the 2017 Act., Having answered the Reference, we direct the Registry of the Supreme Court of India to place the matter before Hon'ble Chief Justice of India for placing it before the appropriate Bench(es)., Before parting with the judgment, we place on record our deep appreciation for the valuable assistance rendered by Shri R. Venkataramani, learned Attorney General, Shri P. Chidambaram, Shri Shyam Divan and Shri Jaideep Gupta, learned Senior Counsel and all other counsel appearing for the parties., I have had the benefit of reading the judgment proposed by His Lordship B.R. Gavai, J. However, I wish to differ on the reasoning and conclusions arrived at in his judgment with regard to exercise of power by the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934 (hereinafter referred to as the Act for the sake of brevity) by issuance of the impugned notification dated 8th November. Hence, my separate judgment., By way of a preface, I state that the judgment proposed by His Lordship Gavai, J. does not recognise the essential fact that the Act does not envisage initiation of demonetisation of bank notes by the Central Government. Sub‑section (2) of Section 26 of the Act contemplates demonetisation of bank notes at the instance of the Central Board of the Reserve Bank of India (hereinafter referred to as the Bank). Hence, if demonetisation is to be initiated by the Central Government, such power is derived from Entry 36 of List I of the Seventh Schedule to the Constitution which speaks of currency, coinage and legal tender; foreign exchange. In view of the interpretation given by me to sub‑section (2) of Section 26 of the Act in the context of the powers of the Central Board of the Bank and the Central Government vis‑à‑vis demonetisation of bank notes, my answer is only with regard to question No.1 of the reference order. Incidentally, while considering the same, I would touch upon question No.7 of the reference order., The questions for consideration of this Constitution Bench framed by the Predecessor Bench on 16th December 2016 are extracted as under: (i) Whether the notification dated 8th November 2016 is ultra vires Section 26(2) and Sections 7, 17, 23, 24, 29 and 42 of the Reserve Bank of India Act, 1934; (ii) Does the notification contravene the provisions of Article 300A of the Constitution; (iii) Assuming that the notification has been validly issued under the Reserve Bank of India Act, 1934, whether it is ultra vires Articles 14 and 19 of the Constitution; (iv) Whether the limit on withdrawal of cash from the funds deposited in bank accounts has no basis in law and violates Articles 14, 19 and 21; (v) Whether the implementation of the impugned notification(s) suffers from procedural and/or substantive unreasonableness and thereby violates Articles 14 and 19 and, if so, to what effect; (vi) In the event that Section 26(2) is held to permit demonetisation, does it suffer from excessive delegation of legislative power thereby rendering it ultra vires the Constitution; (vii) What is the scope of judicial review in matters relating to fiscal and economic policy of the Government; (viii) Whether a petition by a political party on the issues raised is maintainable under Article 32; and (ix) Whether District Co‑operative Banks have been discriminated against by excluding them from accepting deposits and exchanging demonetized notes., The Registry shall accordingly place the papers before Hon'ble Chief Justice for constituting an appropriate Bench., His Lordship Gavai, J. has reframed the questions referred to this Constitution Bench and culled out six questions, which have been answered in the erudite judgment proposed by him. My views on each of such questions, as contrasted with those of His Lordship, have been expressed in a tabular form herein for easy reference., The power available to the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934 cannot be restricted to mean that it can be exercised only for one or some series of bank notes and not for all series of bank notes. The power can be exercised for all series of bank notes. Merely because on two earlier occasions the demonetisation exercise was done by plenary legislation, it cannot be held that such a power would not be available to the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934., The power vested with the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934 cannot be struck down on the ground of conferring excessive delegation., The impugned Notification dated 8th November 2016 does not suffer from any flaws in the decision‑making process., The impugned Notification dated 8th November 2016 satisfies the test of proportionality and the period provided for exchange of notes cannot be said to be unreasonable., The Reserve Bank of India does not possess independent power under sub‑section (2) of Section 4 of the 2017 Act in isolation of the provisions of Sections 3 and 4(1) thereof to accept the demonetized notes beyond the period specified in notifications issued under sub‑section (1) of Section 4 of the 2017 Act., The controversy in these cases revolves around the exercise of power by the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934. Sub‑section (1) of Section 26 provides that every bank note shall be legal tender as per the amount expressed therein and shall be guaranteed by the Central Government. However, as per sub‑section (2), bank notes can cease to be legal tender when the Central Government issues a notification in the Gazette of India declaring, with effect from such date as may be specified, any series of bank notes of any denomination shall cease to be legal tender, save at such office or agency of the Bank and to such extent as may be specified in the notification. Such a notification may be issued on the recommendation of the Central Board of the Bank., The impugned Notification dated 8th November 2016 resulted in all series of Rs.500 and Rs.1,000 denomination notes being demonetized. Subsequent to the Notification, The Specified Bank Notes (Cessation of Liabilities) Ordinance, 2016 was promulgated by the Hon'ble President of India and later enacted as The Specified Bank Notes (Cessation of Liabilities) Act, 2017, which was notified on 1st March 2017, replacing the Ordinance., The object and purpose of the Reserve Bank of India Act, 1934 is to constitute a Reserve Bank of India to regulate the issue of bank notes and to keep reserves with a view to secure monetary stability in India, and to generally operate the currency and credit system of the country to its advantage. The Preamble states that a modern monetary policy framework is essential to meet the challenge of an increasingly complex economy, with the primary objective of maintaining price stability while keeping in mind the objective of growth. The monetary policy framework in India shall be operated by the Reserve Bank of India., Section 2 defines: ‘Bank’ means the Reserve Bank of India constituted by this Act; ‘Bank for International Settlements’ means the body corporate established under the law of Switzerland; ‘bank note’ means a bank note issued by the Bank, whether in physical or digital form, under Section 22; ‘Central Board’ means the Central Board of Directors of the Bank; ‘International Monetary Fund’ and ‘International Bank for Reconstruction and Development’ mean respectively the International Fund and the International Bank referred to in the International Monetary Fund and Bank Act, 1945; ‘rupee coin’ means rupees which are legal tender in India under the provisions of the Coinage Act, 2011., Relevant provisions include Section 22 (right to issue bank notes), Section 23 (Issue Department), Section 24 (denominations of notes), Section 25 (form of bank notes), Section 26 (legal tender character of notes), Section 26A (certain bank notes to cease to be legal tender), Section 27 (re‑issue of notes), Section 28 (loss, theft, mutilation), and Section 34 (liabilities of the Issue Department)., We have heard learned senior counsel as well as counsel for the petitioners, the learned Attorney General for India and learned senior counsel for the respondent Bank, all assisted by learned counsel. According to learned senior counsel Shri P. Chidambaram, appearing for some of the petitioners, the Central Government has the power to issue a notification in the Gazette of India declaring any series of bank notes of any denomination as having ceased to be legal tender and demonetize such currency notes, subject to compliance of certain procedural conditions prescribed under sub‑section (2) of Section 26 of the Act. First, there has to be a recommendation of the Central Board of the Bank to the Central Government before the latter can issue a notification. The Central Government cannot, by a simple notification, suo moto and in the absence of any recommendation of the Central Board, demonetize any currency note in circulation., Also, the Central Government can demonetize only a particular series of bank notes of a particular denomination on the recommendation of the Central Board of the Bank. In other words, the expression ‘any series of bank notes of any denomination’ cannot be understood as all series of bank notes of all denominations.
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The procedure envisaged under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934, requires a recommendation by the Central Board of the Reserve Bank of India before the Central Government may issue a notification in the Gazette of India to demonetise bank notes. On 8 November 2016, the Government issued such a notification demonetising all series of bank notes of the denominations Rs 500 and Rs 1,000. Consequently, approximately 86 percent of all notes in circulation were demonetised. The serious effects of demonetisation are well known and judicial notice of the same may be taken. Even otherwise, carrying out demonetisation by simply issuing a notification, in the absence of a recommendation made by the Central Board of the Reserve Bank of India, which is a condition precedent, is unlawful. Further, all series of bank notes of Rs 500 and Rs 1,000 could not have been demonetised by a stroke of a pen. The expression “any” in sub‑section (2) of Section 26 means a particular series of a particular denomination, and not all series of all denominations., Learned senior counsel emphasized that sub‑section (2) of Section 26 must be given an interpretation which is legally workable and practicable and the Supreme Court of India ought not give a blank‑et power to the Central Government to demonetise all currency of a particular denomination, as such action would be contrary to the object envisaged under sub‑section (2) of the Act., Further elaborating, the senior counsel for the petitioners contended that the expression “any” ought not be interpreted as “all”, as such an interpretation would be disastrous to the Indian economy and contrary to the true letter and spirit of the Act. He argued that the word “any” means one of the many and not all. Accordingly, any one series of bank notes of a denomination could be demonetised, but not all series of notes of a particular denomination or all series of bank notes of all denominations by issuance of an executive notification. He submitted that if the Section is read down, it would be saved from the vice of unconstitutionality; otherwise, the power of the Central Government to demonetise all series of bank notes of all denominations would be arbitrary and excessive, devoid of any guidance. Such power, if vested with the Central Government, would be contrary to the provisions of the Act. He further contended that the exercise of discretion by the Central Government could be only to the extent of demonetisation of particular series of bank notes of any particular denomination, and that too on the recommendation of the Central Board of the Reserve Bank of India. Such vast powers to recommend demonetisation of all series of bank notes of any or all denominations cannot also be vested with the Bank., Learned senior counsel Shri Shyam Diwan, appearing for the petitioner Malvinder Singh in Writ Petition (Civil) No. 149 of 2017, submitted that apart from the guarantee given by the Central Government that every bank note is legal tender at any place in India, such notes are also liabilities of the Issue Department of the Reserve Bank of India under Section 34 of the Act to the extent of an amount equal to the total value of the currency notes of the Government of India and bank notes then in circulation., He further submitted that in the absence of a specific duty to mitigate the long‑lasting effects of demonetisation on the Indian economy, the decision of the Central Government to demonetise about 86.4 percent of the total currency in circulation is vitiated on account of manifest arbitrariness., The senior counsel contended that, applying the test of proportionality, the impugned notification dated 8 November 2016 is liable to be set aside., Reliance was placed on K.S. Puttaswamy (Retired) (Aadhaar) v. Union of India (2019) 1 SCC 1 to argue that the classical equality test can be applied to the present case to conclude that the decision of demonetisation had no nexus to the objective sought to be achieved., It was further contended that the circular dated 31 December 2016 is discriminatory, insofar as it prescribed no upper monetary limit for Resident Indians for submission and exchange of Specified Bank Notes, which were declared to have ceased to be legal tender, whereas a monetary limit of Rs 25,000 per individual was fixed for Non‑Resident Indians, depending on when the notes were taken out of India in accordance with the Foreign Exchange Management Act Rules. An additional liability was imposed on Non‑Resident Indians, who had to produce a certificate issued by Indian Customs upon arrival after 30 December 2016, indicating the import of Specified Bank Notes and the details and value of the same., The senior counsel brought to the Supreme Court of India's notice an article titled “Using Fast Frequency Household Survey Data to Estimate the Impact of Demonetisation on Employment” authored by Mr. Mahesh Vyas, Centre for Monitoring Indian Economy (2018), to contend that owing to the demonetisation carried out, there was a substantial reduction in employment and employment rates were 12 million lower than they were two months preceding demonetisation. Relying on the article, he submitted that demonetisation resulted in a loss of millions of jobs., Per contra, the Attorney General for India, Shri R. Venkataramani, vehemently countered the arguments of Shri P. Chidambaram, learned senior counsel, by contending that the power vested with the Central Government under sub‑section (2) of Section 26 of the Act is not arbitrary or without guidance. He argued that the power to demonetise any currency note or legal tender is vested with the Central Government and that such power is of wide import and amplitude, and the Supreme Court of India may not give an interpretation restricting the said power. He maintained that the power is exercised by the issuance of a notification in the Gazette of India on the basis of a recommendation of the Central Board of the Reserve Bank of India., In this regard, the Attorney General emphasized that earlier demonetisations were carried out in the years 1946 and 1978 by issuance of Ordinances and thereafter converting the Ordinances into Acts of Parliament. In the instant case, the demonetisation dated 8 November 2016 was for all series of bank notes of Rs 500 and Rs 1,000 denominations, by the issuance of a Gazette notification, which is perfectly valid in the eyes of law and in accordance with sub‑section (2) of Section 26 of the Act., The Attorney General contended that the impugned Gazette notification was issued having regard to the salient objectives that had to be achieved by the demonetisation of Rs 500 and Rs 1,000 currency notes, which are set out clearly in the notification dated 8 November 2016. The salient objectives were to eradicate black money, to eliminate fake currency from the Indian economy and to prevent terror funding. He therefore argued that there is no merit in the submissions made by the petitioners and that the notification dated 8 November 2016 is in accordance with sub‑section (2) of Section 26 of the Act and therefore is valid., The Attorney General further submitted that the action taken by way of the impugned notification stands ratified by the 2017 Act and, as the executive action has been validated by the will of Parliament, the challenge to the notification would not survive., He also submitted that the word “any” appearing before the words “series of bank notes” in sub‑section (2) of Section 26 should be construed to mean “all”. He argued that the petitioners’ contention that the word “any” would not mean “all” is flawed; if accepted, it would permit the Government to issue separate notifications for each series, while prohibiting a common notification for all series., The Attorney General explained that the word “any” is used in two places in sub‑section (2) of Section 26. The word “any” preceding “series of bank notes” must be construed to mean “all”, whereas the word “any” preceding “denomination” may be construed as singular or otherwise. He placed reliance on Maharaj Singh v. State of Uttar Pradesh (1977) 1 SCC 155 to contend that the same word used twice in the same provision may be permitted to have different meanings in each usage., He further contended that the petitioners’ submission that the powers under sub‑section (2) of Section 26 have not been exercised in the manner provided therein and that the decision‑making process was flawed on account of patent arbitrariness is not tenable. He submitted that sub‑section (2) postulates that the Central Government may take a decision to carry out demonetisation pursuant to the recommendation of the Central Board of the Reserve Bank of India, and in the present case there was a recommendation made by the Board to the Central Government. After considering the proposal of the Board, the Central Government took the decision to carry out demonetisation. Thus, the procedure envisaged in sub‑section (2) was duly complied with., The Attorney General placed reliance on Bajaj Hindustan Limited v. Sir Lal Enterprises Limited (2011) 1 SCC 640, observing that economic and fiscal regulatory measures are fields on which judges should encroach very warily as they are not experts in these matters. He submitted that the Reserve Bank of India is an expert body charged with conceiving and implementing various facets of economic and monetary policy and that there cannot be a strait‑jacket formula guiding the discharge of its duties. Accordingly, it must be allowed to carry out its functions as it deems fit. He further relied on Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University, Sirsa (2008) 9 SCC 284 and Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity (2010) 3 SCC 640 to contend that it is settled law that courts should not interfere with the opinion of experts., Shri Jaideep Gupta, learned senior counsel for the Reserve Bank of India, contended that the withdrawal of all series of bank notes of the two denominations of Rs 500 and Rs 1,000 was well within the jurisdiction and power conferred upon the Bank and the Central Government under sub‑section (2) of Section 26, and it is incorrect to say that the process under sub‑section (2) had not been followed. Therefore, the process cannot be criticised on the ground of procedural lapse on part of the Bank or the Central Government., The senior counsel for the Bank further argued that the petitioners’ submission that unless the phrase “any” in sub‑section (2) is read as “some” or “one”, the power conferred upon the Bank and the Central Government would be unguided and arbitrary, is without basis. He explained that the expression “any” when construed literally refers to one, several or all of a total number. Thus, the expression is broad enough to include all, and consequently the power of the Government under sub‑section (2) is not limited merely to a specific set or series alone. He contended that sub‑section (2) is an enabling provision conferring authority on the Central Government to declare that any series of bank notes of any denomination shall cease to be legal tender on the recommendation of the Central Board., The senior counsel also submitted that the decision of the Central Board to recommend demonetisation and the decision of the Central Government to accept the recommendation cannot be subject to judicial review. He argued that in the sphere of economic policy making, the Wednesbury principles are of little significance and that the proportionality principle cannot be applied for judicial review of economic policy. He asserted that it is imperative that no restrictions are placed on economic policies formulated by the Bank or by the Central Government. Reliance was placed on Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India (1992) 2 SCC 343 and BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC 333 to contend that courts cannot interfere with economic policy which is the function of experts., The senior counsel further submitted that the petitioners’ contention that the decision‑making process was faulty on account of not following the procedure under sub‑section (2) is without substance. He explained that the procedure under sub‑section (2) comprises two things: recommendation of the Central Board and the decision by the Central Government, and that in the present case both requirements have been duly followed; therefore, the petitioners’ argument does not hold water., The senior counsel placed reliance on Jayantilal Ratanchand Shah v. Reserve Bank of India (1996) 9 SCC 650, contending that a similar provision providing for a specified time for exchange of notes was found to be valid by a Constitution Bench of this Court while adjudicating on the legality of the 1978 demonetisation. He submitted that the time provided in the present case is similar to the time provided under the 1978 Act and was found to be reasonable, having regard to the purpose sought to be achieved. He further submitted that everybody had sufficient opportunity either to deposit the notes in their banks or to exchange the same., The senior counsel submitted that demonetisation was carried out in furtherance of national economic interest and ought to be given deference. The inconvenience caused to the public cannot be a ground to challenge the validity of such actions, particularly when prompt and adequate measures were taken by the Bank to mitigate the temporary hardships expected to be caused., He also submitted that the Specified Bank Notes (Cessation of Liabilities) Act, 2017 has given relief to certain categories of persons subject to verification. It was thus contended that individual cases of hardship that have not been provided for in the Act cannot be gone into., It was further submitted that Section 8 of the Reserve Bank of India Act, 1934 provides for the composition of the Central Board and sub‑section 1 of Section 4 stipulates that the Central Board shall consist of the following Directors: (i) a Governor and not more than four Deputy Governors appointed by the Central Government; (ii) four Directors nominated by the Central Government, one from each of the four Local Boards constituted under Section 9; (iii) ten Directors nominated by the Central Government; and (iv) two Government officials nominated by the Central Government. The 561st meeting of the Central Board was held on 8 November 2016 at New Delhi and business was transacted therein with the requisite quorum. During the meeting, apart from the Governor and two Deputy Governors, one Director nominated under Section 8(1)(b), two Directors nominated under Section 8(1)(c) and two Directors nominated under Section 8(1)(d) were present. Thus, the requisite quorum of four directors, of whom not less than three were nominated under Section 8(1)(b) or 8(1)(c), was satisfied., History and instances of demonetisation worldwide: The French were the first to use the term “demonetise” between 1850 and 1855. In the United States, the Coinage Act of 1873 eliminated silver as legal tender in favour of the gold standard, and in 1969 President Richard Nixon declared all currencies over US $100 to be null to combat black money. Britain stopped circulation of old pound and penny notes in 1971 and introduced new coins. In the Congo, Mobutu Sese Seko made currency changes during the 1990s. Ghana demonetised Rs 50 Cedis notes in 1982 to tackle tax evasion. Nigeria introduced new currency and banned old notes in 1984 under Muhammadu Buhari. Myanmar invalidated around 80 percent of money in 1987 to curb black marketing. The former USSR removed 50 and 100 Ruble notes in 1991 under Mikhail Gorbachev. Venezuela demonetised 100‑bolivar notes on 11 December 2016 to achieve economic stability. Zimbabwe replaced the Zimbabwe Dollar with the US Dollar in 5 15 to stabilise hyperinflation., History of demonetisation in India: The first demonetisation was carried out on 12 January 1946. An Ordinance promulgated by the Government demonetised currency notes of Rs 500, Rs 1,000 and Rs 10,000 to check unaccounted hoarding of money, directing that they could be exchanged for re‑issued bank notes within ten days. The period of exchange was extended several times by both the Bank and the Central Government. By the end of 1947, out of Rs 143.97 crores of high‑denomination notes, notes worth Rs 134.9 crores had been exchanged, while Rs 9.07 crores went out of circulation. The exercise turned out to be more like a currency conversion drive as the government could not achieve much profit in the cash‑strapped economy at that time., The second demonetisation was carried out in 1978, following the recommendation of the Wanchoo Committee appointed by the Central Government, to recall the re‑introduced Rs 1,000, Rs 5,000 and Rs 10,000 notes entirely from the cash system. The objective was to nullify black money supposedly held in high‑denomination notes. The High Denomination Bank Notes (Demonetisation) Ordinance, 1978 was issued on 16 January 1978, and people were allowed three days to exchange their notes. Out of Rs 146 crores of demonetised notes, notes worth Rs 124.45 crores were exchanged and Rs 21.55 crores (14.76 percent) were extinguished., It would be useful to discuss briefly the Acts of 1946 and 1978 and the impugned demonetisation having regard to sub‑section (2) of Section 26 of the Act. The Ordinance of 12 January 1946 stated that on the expiry of the 12th day of January 1946, all high‑denomination bank notes shall, notwithstanding anything contained in Section 26 of the Act, cease to be legal tender in British India, with provision for exchange with Rs 100 notes. The High Denomination Bank Notes (Demonetisation) Act, 1978 was enacted in public interest and defined a high‑denomination bank note as a note of Rs 1,000, Rs 5,000 or Rs 10,000 issued by the Reserve Bank of India immediately before the commencement of the Act. Section 3 of that Act provided that on the expiry of the 16th day of January 1978, all high‑denomination bank notes shall, notwithstanding anything contained in Section 26 of the Act, cease to be legal tender., As noted earlier, the previous demonetisations were not carried out on the strength of sub‑section (2) of Section 26 of the Act, as both legislations categorically stated that the demonetisation was notwithstanding anything contained in Section 26. Under the 1978 Act, one of the objects was that high‑denomination notes facilitated illicit transfer of money harmful to the national economy, and therefore it was necessary in public interest to demonetise them. The use of the non‑obstante clause indicates that the Central Government was not demonetising the currency on the recommendation of the Central Board under sub‑section (2). In fact, in 1978 the Central Government sought an opinion of the Central Board regarding demonetisation; the proposal arose from the Central Government and was therefore outside sub‑section (2)., The fact that the non‑obstante clause appears in Section 3 of the 1946 Ordinance as well as in Section 3 of the 1978 Act clearly indicates that the Central Government, in those cases, did not demonetise the high‑denomination notes on the recommendation of the Central Board under sub‑section (2) but carried out the process through plenary legislation. Hence, the Central Government chose the legislative route rather than issuing an executive notification in the Gazette of India., In contrast, the Gazette notification dated 8 November 2016 was followed by the Ordinance of 2016 and then the Act of 2017 was enacted. The 2017 Act provides that the specified bank notes would cease to be the liability of the Reserve Bank of India or the Central Government., The demonetisation carried out in 2016 of all series of bank notes of denominations Rs 500 and Rs 1,000, which forms the subject matter of the controversy, was effected by the Central Government through a notification in the Gazette of India on 8 November 2016. For ease of reference, the impugned notification is extracted as follows: (Department of Economic Affairs) New Delhi, the 8th November 2016 S.O. 3407(E). Whereas, the Central Board of Directors of the Reserve Bank of India has recommended that bank notes of denominations of the existing series of the value of five hundred rupees and one thousand rupees (hereinafter referred to as specified bank notes) shall cease to be legal tender; And whereas, it has been found that fake currency notes of the specified bank notes have been largely in circulation and it is difficult to easily identify genuine bank notes from the fake ones and that the use of fake currency notes is causing adverse effect to the economy of the country; And whereas, it has been found that high‑denomination bank notes are used for storage of unaccounted wealth as evident from large cash recoveries made by law enforcement agencies; And whereas, it has also been found that fake currency is being used for financing subversive activities such as drug trafficking and terrorism, causing damage to the economy and security of the country and the Central Government after due consideration has decided to implement the recommendations of the Board; Now, therefore, in exercise of the powers conferred by sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934, the Central Government hereby declares that the specified bank notes shall cease to be legal tender with effect from 9 November 2016 to the extent specified below, namely: (1) Every banking company defined under the Banking Regulation Act, 1949 and every Government Treasury shall complete and forward a return showing the details of specified bank notes held by it at the close of business as on 8 November 2016, not later than 13:00 hours on 10 November 2016 to the designated Regional Office of the Reserve Bank of India in the format specified by it. (2) Immediately after forwarding the return, the specified bank notes shall be remitted to the linked or nearest currency chest, or the branch or office of the Reserve Bank, for credit to their accounts.
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The specified bank notes held by a person other than a banking company referred to in sub-paragraph (1) of paragraph 1 or Government Treasury may be exchanged at any Issue Office of the Reserve Bank of India or any branch of public sector banks, private sector banks, foreign banks, Regional Rural Banks, Urban Cooperative Banks and State Cooperative Banks for a period up to and including 30 December 2016, subject to the following conditions, namely: the specified bank notes of aggregate value of Rs.4,000 or below may be exchanged for any denomination of bank notes having legal tender character, with a requisition slip in the format specified by the Reserve Bank of India and proof of identity; the limit of Rs.4,000 for exchanging specified bank notes shall be reviewed after fifteen days from the date of commencement of this notification and appropriate orders may be issued, where necessary; there shall not be any limit on the quantity or value of the specified bank notes to be credited to the account maintained with the bank by a person, where the specified bank notes are tendered; however, where compliance with extant Know Your Customer norms is not complete in an account, the maximum value of specified bank notes as may be deposited shall be Rs.50,000; the equivalent value of specified bank notes tendered may be credited to an account maintained by the tenderer at any bank in accordance with standard banking procedure and on production of valid proof of identity; the equivalent value of specified bank notes tendered may be credited to a third‑party account, provided specific authorisation therefor accorded by the third party is presented to the bank, following standard banking procedure and on production of valid proof of identity of the person actually tendering; cash withdrawal from a bank account over the counter shall be restricted to Rs.10,000 per day subject to an overall limit of Rs.20,000 a week from the date of commencement of this notification until the end of business hours on 24 November 2016, after which these limits shall be reviewed; there shall be no restriction on the use of any non‑cash method of operating the account of a person including cheques, demand drafts, credit or debit cards, mobile wallets and electronic fund transfer mechanisms or the like; withdrawal from Automated Teller Machines shall be restricted to Rs.2,000 per day per card up to 18 November 2016 and the limit shall be raised to Rs.4,000 per day per card from 19 November 2016; any person who is unable to exchange or deposit the specified bank notes in their bank accounts on or before 30 December 2016 shall be given an opportunity to do so at specified offices of the Reserve Bank of India or such other facility until a later date as may be specified by it., Every banking company and every Government Treasury referred to in sub-paragraph (1) of paragraph 1 shall be closed for the transaction of all business on 9 November 2016, except the preparation for implementing this scheme and remittance of the specified bank notes to nearby currency chests or the branches or offices of the Reserve Bank of India and receipt of bank notes having legal tender character. All Automated Teller Machines, Cash Deposit Machines, Cash Recyclers and any other machine used for receipt and payment of cash shall be shut on 9 and 10 November 2016. Every bank referred to in sub-paragraph (1) of paragraph 1 shall recall the specified bank notes from Automated Teller Machines and replace them with bank notes having legal tender character prior to reactivation of the machines on 11 November 2016. The sponsor banks of White Label Automated Teller Machines shall be responsible to recall the specified bank notes from the White Label Automated Teller Machines and replace the same with bank notes having legal tender character prior to reactivation of the machines on 11 November 2016. All banks referred to in sub-paragraph (1) of paragraph 1 shall ensure that their Automated Teller Machines and White Label Automated Teller Machines shall dispense bank notes of denomination of Rs.100 or Rs.50, until further instructions from the Reserve Bank of India. The banking company referred to in sub-paragraph (1) of paragraph 1 and Government Treasuries shall resume their normal transactions from 10 November 2016., Every banking company referred to in sub-paragraph (1) of paragraph 1 shall, at the close of business of each day starting from 10 November 2016, submit to the Reserve Bank of India a statement showing the details of specified bank notes exchanged by it in such format as may be specified by the Reserve Bank of India., The said Notification was thereafter followed by an Ordinance issued by the President on 30 December 2016 and subsequently an Act of Parliament namely the 2017 Act., The contention of the learned senior counsel for the petitioners is two‑fold: firstly, that sub‑section (2) of Section 26 of the Act cannot be interpreted as having a very wide import as it would then be lacking in guidance and being unchanneled, would be arbitrary and in violation of Article 14, and hence unconstitutional. It was further contended that if the provision has to be saved from being declared unconstitutional, then the same has to be read down which means that a restrictive interpretation must be given to the words of the provision. The second contention is with regard to the exercise of power by the Central Government by issuance of the Notification dated 8 November 2016 and the manner in which such power was exercised and the procedure followed. The aforesaid two contentions shall be dealt with together as they are intertwined., Before considering the aforesaid two contentions, it would be useful to discuss the unique position that the Reserve Bank of India holds in the Indian economy., Shri Chidambaram cited a recent judgment of the Supreme Court of India in the case of Internet & Mobile Association of India v. Reserve Bank of India (2020) 10 Supreme Court Cases 274 wherein Justice V. Ramasubramanian, while dealing with the regulation of cryptocurrency and virtual currency, highlighted the importance of the Reserve Bank of India in the Indian economy. The salient observations made in the said judgment may be culled out as under: (a) That the Bank, established for the objects spelt out under Section 3(1) of the Act, is vested with the duty to operate the monetary policy framework in India; take over the management of currency from the Central Government and carry on the business of banking, in accordance with the provisions of the Act. (b) That with a view to enable the Bank to perform the role spelt out above, the Act authorises it to carry on and transact businesses, as enlisted under Section 17 of the Act; confers under Section 22 the sole and exclusive right on the Bank to issue bank notes in India, except in relation to notes of denomination Rs.1; recognises under Section 26(1) that every note issued by the Bank shall be a legal tender; vests with the Central Board of the Bank the power to recommend to the Central Government to declare any series of bank notes of any denomination to cease to be legal tender, under Section 26(2) of the Act; prohibits under Section 38 any money from being put into circulation by the Central Government, except through the Bank. In short, it was held that the operation and regulation of the credit and financial system of the country rests, almost entirely, on the Bank. (c) That the Bank is the sole repository of power for the management of currency in India. As regards the nature, amplitude and inalienability of the power that the Bank wields in the field of currency management, it was observed that what the Bank can do in this regard, the executive acting dehors the aid of the Bank, is not adequately equipped to do. Recognising the importance of the role played by the Bank in matters pertaining to currency management, this Court declared that any observations or recommendations made by the Bank to the Central Government in this regard have to be accorded due deference. The pertinent observations of the Court on this aspect have been usefully extracted hereinunder: 192. But as we have pointed out above, the Reserve Bank of India is not just any other statutory authority. It is not like a stream which cannot be greater than the source. The RBI Act, 1934 is a pre‑constitutional legislation, which survived the Constitution by virtue of Article 372(1) of the Constitution. The difference between other statutory creatures and the Reserve Bank of India is that what the statutory creatures can do could as well be done by the executive. The power conferred upon the delegate in other statutes can be tinkered with, amended or even withdrawn. But the power conferred upon the Reserve Bank of India under Section 3(1) of the RBI Act, 1934 to take over the management of the currency from the Central Government cannot be taken away. The sole right to issue bank notes in India, conferred by Section 22(1) cannot also be taken away and conferred upon any other Bank or authority. The Reserve Bank of India by virtue of its authority is a member of the Bank of International Settlements, a position which cannot be taken over by the Central Government and conferred upon any other authority. Therefore, to say that it is just like any other statutory authority whose decisions cannot invite due deference is to do violence to the scheme of the Act. In fact, all countries have central banks or authorities which technically have independence from the Government of the country. To ensure such independence, a fixed tenure is granted to the Board of Governors, so that they are not bogged down by political expediencies. In the United States of America, the Chairman of the Federal Reserve is the second most powerful person next only to the President. Though the President appoints the seven‑member Board of Governors of the Federal Reserve, in consultation with the Senate, each of them is appointed for a fixed tenure of fourteen years. Only one among those seven is appointed as Chairman for a period of four years. As a result of the fixed tenure of fourteen years, all the members of the Board of Governors survive in office more than three Governments. Even the European Central Bank headquartered in Frankfurt has a President, Vice‑President and four members, appointed for a period of eight years in consultation with the European Parliament. Worldwide, central authorities and banks are ensured an independence, but unfortunately Section 8(4) of the RBI Act, 1934 gives a tenure not exceeding five years, as the Central Government may fix at the time of appointment. Though the shorter tenure and the choice given to the Central Government to fix the tenure, to some extent, undermines the ability of the incumbents of office to be absolutely independent, the statutory scheme nevertheless provides for independence to the institution as such. Therefore, we do not accept the argument that a policy decision taken by the Reserve Bank of India does not warrant any deference. (d) This Court acknowledged the pivotal position of the Bank in the economy of the country. That the powers of the Bank may be exercised by way of preventive as well as curative measures. That such powers may be exercised to take pre‑emptive action. However, such measures must be proportional and must be prompted by some semblance of any damage suffered by its regulated entities. The relevant observations have been reproduced as under: 224. It is no doubt true that the Reserve Bank of India has very wide powers not only in view of the statutory scheme of the three enactments indicated earlier, but also in view of the special place and role that it has in the economy of the country. These powers can be exercised both in the form of preventive as well as curative measures. But the availability of power is different from the manner and extent to which it can be exercised. While we have recognised elsewhere in this order the power of the Reserve Bank of India to take a pre‑emptive action, we are testing in this part of the order the proportionality of such measure, for the determination of which the Reserve Bank of India needs to show at least some semblance of any damage suffered by its regulated entities. But there is none. When the consistent stand of the Reserve Bank of India is that they have not banned virtual currencies and when the Government of India is unable to take a call despite several committees coming up with several proposals including two draft Bills, both of which advocated exactly opposite positions, it is not possible for us to hold that the impugned measure is proportionate., Shri Jaideep Gupta appearing for the Bank has brought to our notice the following decisions to emphasize the importance of the Reserve Bank of India: (a) In Joseph Kuruvilla Vellukunnel v. Reserve Bank of India AIR 1962 Supreme Court 1371, this Court observed that the most important function of the Bank is to regulate the banking system. The Bank has been described as a Banker’s Bank. Under the Act, the scheduled banks maintain certain balances and the Bank can lend assistance to those banks as a lender of the last resort. The Bank has also been given certain advisory and regulatory functions, but in its position as a central bank, it acts as an agency for collecting financial information and statistics. The Bank is also entrusted with the role of advising the Government and other banks on financial and banking matters, and for this purpose, the Bank keeps itself informed of the activities and monetary position of scheduled and other banks and inspects the books and accounts of scheduled banks and advises the Government after inspection of the said books and accounts as to whether a particular bank should be included in the Second Schedule or not. That the Bank has been created as a central bank with powers of supervision, advice and inspection over banks, particularly those desiring to be included in the Second Schedule or those already included in the Schedule. The Reserve Bank thus safeguards the economy and the financial stability of the country. This Court in the said case also sounded a caveat in stating that it cannot be said that the Reserve Bank can never act mistakenly or even negligently. (b) Subsequently, in Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India (1992) 2 Supreme Court Cases 343 this Court once again recognized the status of the Reserve Bank of India in the Indian economy. In the said case it was observed that the Reserve Bank of India is a Banker’s Bank and a creature of statute. That the Reserve Bank of India has a large contingent of expert advice relating to the matters affecting the economy of the entire country. It was further observed that the Reserve Bank has an important role in the economy and financial affairs of India and one of its many important functions is to regulate the banking system in the country. The aforesaid discussion is relevant for the purpose of interpreting sub‑section (2) of Section 26 of the Act. The said provision clearly states that it is only on the recommendation of the Central Board of the Bank that any series of bank notes of any denomination shall be declared to have ceased to be legal tender., Before proceeding to interpret the said provision, it would be necessary to consider another aspect of the matter which has been emphasized by the learned Attorney General, i.e., with regard to the Court’s deference to the economic and monetary policies of the Government and the restraint that the Court must exercise in interfering with the said policies, unless the same are so irrational or unreasonable as to be declared unconstitutional. The above submission was made in the context of the contention of the petitioners that the decision‑making process in the present case was deeply flawed as it was contrary to the scheme and procedure contained in sub‑section (2) of Section 26 of the Act and hence the Supreme Court of India may review the same and declare it to be in contravention, inter‑alia, of statutory provisions of the Act. The aforesaid contention was vehemently opposed by the learned Attorney General who submitted that courts cannot sit in judgment over economic policy matters of the Government. In this regard the following discussions could be made., Judicial Review of Economic Policy: The Indian judiciary has consistently exercised restraint with regard to judicial review of policy decisions. (a) Reliance was placed by the learned Attorney General on a judgment of the Supreme Court of India in State of Tamil Nadu v. National South Indian River Interlinking Agriculturist Association 2021 Supreme Court Online 1114. (b) In Rustom Cavasjee Cooper v. Union of India AIR 1970 Supreme Court 565 (Bank Nationalisation Case) it was observed that the Supreme Court of India was not the forum where conflicting policy claims may be debated; it is only required to adjudicate the legality of a measure which has little to do with relative merits of different political and economic theories. (c) The Supreme Court of India in the case of State of Madhya Pradesh v. Nandlal Jaiswal (1986) 4 Supreme Court Cases 566 observed that the Government, as laid down in Permian Basin Area Rate Cases, 20 L Ed (2d) 312, is entitled to make pragmatic adjustments which may be called for by particular circumstances. The Court cannot strike down a policy decision taken by the Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. Courts could interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. (d) In Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India (1992) 2 Supreme Court Cases 343, this Court dithered to indulge itself with matters involving domains of the executive and the legislature concerning economic policy or directions given by the Reserve Bank of India. This Court observed that it is unbecoming of judicial institutions to interfere with economic policy which is the prerogative of the Government, in consultation with experts in the field and that it is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. (e) The validity of the decision of the Government to grant licence under the Telegraph Act, 1885 to non‑government companies for establishing, maintaining and working of telecommunication system of the country pursuant to government policy of privatisation of telecommunications was challenged in Delhi Science Forum v. Union of India AIR 1996 Supreme Court 1356. It was contended that telecommunications were a sensitive service which should always be within the exclusive domain and control of the Central Government and under no situation should be part‑ed with by way of grant of licence to non‑government companies and private bodies. While rejecting this contention, this Court observed that national policies in respect of economy, finance, communications, trade, telecommunications and others have to be decided by Parliament and the representatives of the people on the floor of Parliament can challenge and question any such policy adopted by the ruling Government. (f) The reluctance of the Court to judicially examine the merits of economic policy was again emphasised in Bhavesh D. Parish v. Union of India (2000) 5 Supreme Court Cases 471. This Court opined that in the context of the changed economic scenario the expertise of people dealing with the subject should not be lightly interfered with. The consequences of such an interdiction can have large‑scale ramifications and can put the clock back for a number of years. That in dealing with economic legislations, this Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at all. (g) Buttressing the same aspect, in Balco Employees Union (Regd) v. Union of India AIR 2002 Supreme Court 350, it was held that in a democracy, it is the prerogative of each elected Government to follow its own policy. This Court observed that often a change in Government may result in the shift in focus or change in economic policies and any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court. (h) In Directorate of Film Festivals v. Gaurav Ashwin Jain AIR 2007 Supreme Court 1640, it was observed that the scope of judicial review of governmental policy is now well defined and the courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy. This Court was also of the view that Courts are not advisors to the executive on matters of policy which the executive is entitled to formulate, thus, the scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or is manifestly arbitrary. It was thus held that the Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. (i) In the case of DDA v. Joint Action Committee, Allottee of SFS Flats AIR 2008 Supreme Court 1343, the Supreme Court held as under: An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty‑gritty of the policy, or substitute one by the other, it will not be correct to contend that the court shall lay its judicial hands off when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review. Broadly, a policy decision is subject to judicial review on the following grounds: (a) if it is unconstitutional; (b) if it is dehors the provisions of the Act and the regulations; (c) if the delegate has acted beyond its power of delegation; (d) if the executive policy is contrary to the statutory or a larger policy. (j) In Small Scale Industrial Manufacturers Association (Regd.) v. Union of India (2021) 8 Supreme Court Cases 511, a writ petition was preferred under Article 32 of the Constitution of India by the Small‑Scale Industrial Manufacturers Association, Haryana for an appropriate writ, direction or order directing the Union of India and others to take effective and remedial measures to redress the financial strain faced by the industrial sector, particularly MSMEs due to the COVID‑19 pandemic. This Court while considering the submissions of the parties on the issue of whether economic and/or policy decisions taken by the Government in their executive capacity are amenable to the jurisdiction of courts, held that it was the legality of the policy, and not the wisdom or soundness of the policy, that can be the subject of judicial review. This Court observed that courts do not play an advisory role to Government and economic policy decisions should be left to experts. This Court observed that it is not normally within the domain of any Court to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning. It is only when a policy is arbitrary and violative of any constitutional, statutory or any other provisions of law, that the Courts can interfere., What emerges from an understanding of the decisions referred to above on the subject of judicial review of economic policy may be culled out as under: (i) That the Supreme Court of India is not to sit in judgment over the merits of economic or financial policy; (ii) That the scope of interference by the Supreme Court of India is limited to instances where the impugned scheme or legislation in the economic arena has been enacted in violation of any constitutional or statutory provisions; (iii) That the Supreme Court of India may not undertake a foray into the merits, demerits, sufficiency or lack thereof, success in realising the objectives etc., of an economic policy, as such an analysis is the prerogative of the Government in consultation with experts in the field., Being mindful of the limited scope of judicial review permissible in matters concerning economic policy decisions, I shall limit my examination of the matter to such extent as is necessary for the purpose of determining whether the process concluding in the issuance of the impugned notification was correct or contrary to sub‑section (2) of Section 26 of the Act and allied aspects of the case. It may be stated at this juncture that the said aspect of the matter is not one of form but of substance. Therefore, examining this aspect of the matter would not amount to interfering with, or sitting in judgment over the merits of the policy of demonetisation, and is therefore well within the limits of the Lakshmanrekha that the Supreme Court of India has carefully drawn for itself., Bearing in mind the important role played by the Bank in shaping the economy of the country, and also the principle that the constitutional courts should refrain from interfering in financial and economic policy decisions of the Government unless such policies are so irrational as to warrant interference and also having regard to the provisions of the Constitution, the relevant statutes, and considerations of public interest, the two contentions raised by the petitioners shall now be considered in analysing and interpreting Section 26(2) of the Act., Section 26 of the Act: Interpretation: With a view to lend perspective to the discussion to follow, a bird’s eye view of my analysis and conclusions has been expressed in a tabular form as under:, No. Parameters for distinction When the proposal for demonetisation originates by way of a recommendation by the Central Board of the Bank: When the proposal for demonetisation originates from the Central Government: 1. Role of the Central Government The Central Government may, on consideration of the Bank’s recommendation, accept the same and act on such acceptance by issuing a notification in the Gazette of India declaring that any series of any denomination has ceased to be legal tender; or the Central Government is also free to decide that it is not expedient to accept the recommendation of the Bank to declare that any series of any denomination has ceased to be legal tender. In the event that the recommendation is not accepted, no further action is required to be taken by the Central Government. Consultation with the Central Board of the Bank does not mean concurrence. The Central Government is free to give effect to its proposal for demonetisation, notwithstanding the opinion of the Bank. 2. Role of the Bank The Central Board of the Bank makes a recommendation to the Central Government to declare that any series of any denomination has ceased to be legal tender. The Central Government consults the Bank seeking advice on its proposal to carry out demonetisation. The Bank is bound to render its independent advice and opinion on the same. 3. Extent of demonetisation that may be proposed and carried out Demonetisation of any series of any denomination has been interpreted to mean specified series of specified denomination. Otherwise, it would be a case of excessive vesting of powers with the Bank which would be arbitrary and unconstitutional. All series of all denominations may be declared at once to have ceased to be legal tender having regard to the situation faced by the Central Government. 4. Considerations for proposed measure of demonetisation (Illustrative) i) To promote general health of the country’s economy; ii) Fiscal policy considerations; i) Sovereignty and Integrity of India; ii) Security of the State; iii) To promote general health of the country’s economy; iii) Monetary policy considerations.
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Considerations which could guide the Bank's recommendation are limited or narrow in compass. Other aspects of governance. Considerations which could guide the Central Government's proposal to carry out demonetisation are broad or wide., Process/Route to be followed to carry out demonetisation: Issuance of a Notification in the Gazette of India, indicating therein that any specified series of any specified denomination has ceased to be legal tender, from such date as specified in the Notification. Enactment of a Parliamentary Legislation, which may or may not be preceded by an Ordinance issued by the President of India., Applicability of sub-section (2) of section 26 of the Reserve Bank of India Act, 1934: Notification issued by the Central Government, giving effect to the Bank's recommendation, shall be on the strength of sub-section (2) of section 26 of the Act. Sub-section (2) of section 26 of the Act is not applicable. Hence, a notification in the Gazette of India is not the manner in which demonetisation is to be carried out, when the proposal for the same originates from the Central Government., Section 26 of the Act deals with legal tender of notes. Sub-section (1) of Section 26 declares that every bank note shall be a legal tender at any place in India in payment or on account for the amount expressed therein, and shall be guaranteed by the Central Government. There are two aspects to this provision: the first is, every bank note shall be a legal tender in any place in India and, secondly, that the Central Government shall guarantee the amount expressed on the bank note. The expression bank note is defined in Section 2 (aiv) of the Act to mean, a bank note issued by the Bank whether in physical or digital form, under Section 22 of the Act. Section 22 of the Act categorically states that the Bank has the sole right to issue bank notes in India, on the recommendations of the Central Board of the Bank. The provision further provides that the Bank has the sole right to issue currency notes of the Government of India. The provisions of the Act would be applicable in a like manner, to all currency notes of the Government of India, issued either by the Central Government or by the Bank, as if such currency notes were bank notes., Further, it is only on the recommendation of the Central Board of the Bank that the Central Government may direct the non‑issue or discontinuation of the issue of bank notes of such denominational value as it may specify in this behalf. Even the design, form and material of bank notes has to be approved by the Central Government, after considering the recommendations made by the Central Board of the Bank. Thus, the scheme of the Act envisages that the issuance of the bank notes, the various denominations of the bank notes, the design and form of the bank notes, are all to be specified by the Central Government only on the recommendation of the Central Board of the Bank. Therefore, on perusal of Sections 24, 25 and 26 of the Act, it is observed that it is only on the recommendation of the Central Board of the Bank that the Central Government would act qua the aforesaid matters, on the strength of the respective provisions. It need not be emphasised that the Bank, being the only institution, which carries out the function of currency management and formulates credit rules in the country, is recognised as having a say in the issuance of currency notes, and also in specifying the denominations of the notes, as well as the design and form of the bank notes., Further, although sub-section (1) of Section 26 states that every bank note shall be legal tender at any place in India, it acquires legal sanctity because the Central Government has guaranteed the bank note which has legal tender. Thus, a bank note statutorily has dual characteristics when it is issued by the Bank, namely, being a legal tender coupled with the guarantee of the Central Government and the said qualities go hand in hand. This would mean that it is only when the Bank which has the sole right to issue a currency note in India, issues the note and the same has been guaranteed by the Central Government, that such a note is legal tender. Therefore, the Issue Department of the Bank is not subject to any liabilities other than the liabilities under Section 34 of the Act. Section 34 of the Act states that an amount equal to the total of the amount of the currency notes of the Government of India and bank notes for the time being in circulation, would be the liability of the Issue Department. This would imply that as long as the bank notes issued by the Bank are in circulation, the liability of the Government of India would continue. The said liability is owing to the guarantee given by the Central Government in sub-section (1) of Section 26 which is in the nature of a statutory guarantee., While considering sub-section (1) of Section 26 of the Act, the first question that would arise is whether a bank note which has ceased to be a legal tender on the issuance of a notification by the Central Government would also cease to have the guarantee of the Central Government. In other words, whether the guarantee by the Central Government would continue despite the bank note ceasing to be a legal tender. The answer is in the affirmative, for a bank note may cease to be a legal tender between citizens but cannot cease to have the guarantee of the Central Government, so long as the liability of the Issue Department continues. The liability of the Issue Department of the Bank is co‑extensive with the time period within which a bank note which has ceased to be a legal tender is exchanged at a notified bank. It is because of this reason that a bank note of any denomination which is demonetised or is declared to have ceased to be a legal tender can be exchanged as indicated in the notification issued by the Central Government so that the bearer of the bank note receives an equivalent amount as that expressed in the note which has ceased to be a legal tender or demonetised. Therefore, even though such demonetised currency would cease to be legal tender, the same could be exchanged in a bank specified by the Reserve Bank owing to the guarantee of the Central Government. If the guarantee of the Central Government ceases on demonetisation, then the same cannot be exchanged by the bearer of such bank notes. This has also been the argument of learned senior counsel Shri Shyam Divan., Sub-section (2) of Section 26 of the Act states that on the recommendation of the Central Board of the Bank, the Central Government may, by notification in the Gazette of India, declare that with effect from such date as specified in the notification, any series of bank notes of any denomination shall cease to be a legal tender, save at such office or agency of the Bank and to such extent as may be specified in the said notification. The Central Government derives the power to issue a notification in the Gazette only on the recommendation of the Central Board of the Bank. The issuance of such a notification is an executive act which is backed by the recommendation of the Central Board of the Bank which has been accepted by the Central Government. The notification has to indicate the date from which any series of bank notes of any denomination shall cease to be a legal tender, save at such office and to such extent as may be specified in the notification., The essential ingredients of sub-section (2) of Section 26 of the Act can be epitomised as under: on the recommendation of the Central Board of the Bank; the Central Government by notification in the Gazette of India; may declare any series of bank notes of any denomination to cease to be legal tender; with effect from such date as may be specified in the notification; to such extent as may be specified in the notification. Therefore, under sub‑section (2) of Section 26 of the Act, the Central Government would act only on the recommendation made by the Central Board of the Bank, which is the initiator of demonetisation of bank notes., Learned Attorney General made a pertinent submission that it is not necessary that only on a recommendation of the Central Board of the Bank, the Central Government can demonetise any currency. That the Central Government has the power or jurisdiction to demonetise any bank note by the issuance of a gazette notification. He further contended that the powers of the Central Government cannot be denuded to such an extent that unless and until a recommendation of the Central Board of the Bank is made to the Central Government, the latter cannot demonetise any currency. According to learned Attorney General, if such a strict interpretation is given to sub-section (2) of Section 26, it would nullify the power of the Central Government to demonetise any bank note, having regard to the economic conditions of the country, the financial health of the economy and the monetary policy of the Government. It was submitted that the provision must be so interpreted so as to give a free play in the joints and empower the Central Government to issue a notification in the Gazette of India, in order to demonetise any bank note. He further contended that the requirement of recommendation of the Central Board of the Bank in order to enable the Central Government to issue a notification to demonetise any currency would imply that the initiation of demonetisation must only be from the Central Board of the Bank and that the Central Government has no power to initiate such an action of demonetisation., I find considerable force in the contention of the learned Attorney General inasmuch as the Central Government cannot be said to be without powers in initiating demonetisation of bank notes. This is on the strength of Entry 36 of List I of the Seventh Schedule of the Constitution. The Central Government is not just concerned with the financial health of the country as well as its economy, but it is also concerned with the sovereignty and integrity of India; the security of the State; the defence of the country; its friendly relations with foreign countries; internal and external security and various other aspects of governance. On the other hand, the Bank is only concerned with the regulation of currency notes, monetary policy framework, maintaining price stability and allied matters. Therefore, if the Central Government is of the considered opinion that in order to meet certain objectives such as the ones stated in the impugned notification, namely, to eradicate black money, fake currency, terror funding etc., it is necessary to demonetise the currency notes in circulation, then the Central Government may initiate a proposal for demonetisation., The second prong of the learned Attorney General's contention qua the interpretation of sub-section (2) of Section 26 of the Act was that the Central Government has the power to demonetise not just any one series of currency of any one denomination but it has the power to demonetise all series of currencies of all denominations at a time. It was argued that the expression any in sub-section (2) of Section 26 of the Act must mean all., Per contra, it was the submission of the learned senior counsel for the petitioners that, as the said provision stands, in the absence of any guidance vis‑vis the power of the Central Government to issue a notification to demonetise the currency notes in circulation and in order to save such measure from the vice of unconstitutionality, the expression any series and any denomination in sub-section (2) of Section 26 of the Act must be restricted to mean one series and one denomination, respectively. Otherwise, it could result in arbitrary exercise of power. He further contended that if subsection (2) of Section 26 of the Act is not read down in this context, it would confer unguided and arbitrary power on the executive Government and it would amount to impermissible delegation of legislative powers., It was further contended by Shri Chidambaram that demonetisation is resorted to in rare and exceptional circumstances and there are two justifiable reasons for which demonetisation could be resorted to, namely, (1) to weed out denominations of currency that are in disuse or are practically unusable; (2) to get rid of currency which has become worthless in value because of hyperinflation. According to learned senior counsel for the petitioners, if any demonetisation of currency has to take place, and if the power of the Central Government is not channelised or restricted by reading down sub-section (2) of Section 26 of the Act, it would result in arbitrariness and unconstitutionality. Therefore, to save it from the vice of arbitrariness and unconstitutionality, it is necessary to read down the provision in the following two respects: a) the Central Government has no power to demonetise any currency note except on the recommendation of the Central Board of the Bank under sub-section (2) of Section 26 of the Act; and b) the expression any in sub-section (2) of Section 26 of the Act must be restricted to be any one, that is, one series or one denomination of bank notes. That the addition of the words any series before the words of bank notes of any denomination limits the power of the Government to declare only a specified series of notes as no longer being a legal tender. Thus, any series means any specified series and not all series of notes of a given denomination., Since I have accepted the contention of the learned Attorney General appearing for Union of India vis‑vis the power of the Central Government for initiating the process of demonetisation, the next question would be whether the Central Government can, on initiating the process of demonetisation, proceed to issue a gazette notification to demonetise any or all series of any or all denomination of bank notes, on the strength of sub-section (2) of Section 26 of the Act. Consideration of this issue would also answer the contention of learned senior counsel for the petitioners regarding sub-section (2) of Section 26 of the Act being unguided and arbitrary in nature and hence, unconstitutional. To this end, the following aspects have to be examined: (a) Whether demonetisation can be initiated and carried out by the Central Government by issuing a notification in the Gazette of India as per sub-section (2) of Section 26 of the Act? (b) Extent of the Central Government's power to carry out demonetisation, i.e., whether all series of all denominations may be demonetised., As held hereinabove, the proposal for demonetisation can emanate either from the Central Government or from the Central Board of the Bank. It is however necessary to contrast the proposal for demonetisation initiated by the Central Government, with that initiated by the Central Board of the Bank. When the Central Board of the Bank recommends demonetisation, it is in my view, only for a particular series of bank notes of a particular denomination as specified in the recommendation made under sub-section (2) of Section 26 of the Act. The word any in sub-section (2) of Section 26 cannot be read to mean all. If read as specified or particular as against all, in my view, it would not suffer from arbitrariness or unguided discretion being given to the Central Board of the Bank. On the other hand, in my view, the Central Government has the power to demonetise all series of bank notes of all denominations, if the need for such a measure arises. It cannot be restricted in such powers in such manner as the Central Board of the Bank is, under the above provision. This is because such power is not exercised under sub‑section (2) of Section 26 of the Act but is exercised notwithstanding the said provision by the Central Government. Therefore, demonetisation of bank notes at the behest of the Central Government is a far more serious issue having wider ramifications on the economy and on the citizens, as compared to demonetisation of bank notes of a given series of a given denomination on the recommendation of the Central Board of the Bank by issuance of a gazette notification by the Central Government. Therefore, in my considered view, the powers of the Central Government being vast, the same have to be exercised only through a plenary legislation or a legislative process rather than by an executive act by the issuance of a notification in the Gazette of India. It is necessary that the Parliament, which consists of the representatives of the People of this country, discusses the matter and thereafter approves and supports the implementation of the scheme of demonetisation., The Central Government, as already noted above, could have several compulsions for initiating demonetisation of the bank notes already in circulation in the economy, and it could do so even in the absence of a recommendation, as per sub‑section (2) of Section 26 of the Act, of the Central Board of the Bank. On its proposal to demonetise the bank notes, the advice/opinion of the Central Board of the Bank which has to be consulted may not always be in support of the proposal of the Central Government as in the year 1978. The Central Board of the Bank may give a negative opinion or a concurring opinion. In either of the situations, the Central Government may proceed to demonetise the bank notes but only through a legislative process, either through an Ordinance followed by a legislation, if the Parliament is not in session; or by a plenary legislation before the Parliament and depending upon the passage of the Bill as an Act, carry out its proposal of demonetisation. Of course, depending upon the urgency of the situation and possibly to maintain secrecy, the option of issuance of an Ordinance by the President of India and the subsequent enactment of a law is always available to the Central Government by convening the Parliament. Such demonetisation of currency notes at the instance of the Central Government cannot be by the issuance of an executive notification. The reasons for stating so are not far to see: (i) Firstly, because the Central Government is not acting under sub‑section (2) of Section 26 of the Act. When the Central Government initiates the process of demonetisation it is de hors sub‑section (2) of Section 26 of the Act. (ii) Secondly, the Central Government has the power to demonetise all series of bank notes of all denominations unlike the narrower powers vested with the Central Board of the Bank under the aforesaid provision, if the situation so arises. (iii) Thirdly, the Parliament which is the fulcrum in our democratic system of governance, must be taken into confidence. This is because it is the representative of the people of the Country. It is the pivot of any democratic country and in it rest the interests of the citizens of the Country. The Parliament enables its citizens to participate in the decision‑making process of the government. A Parliament is often referred to as a nation in miniature; it is the basis for democracy. A Parliament provides representation to the people of a country and makes their voices heard. Without a Parliament, a democracy cannot thrive; every democratic country needs a Parliament for the smooth conduct of its governance and to give meaning to democracy in the true sense. The Parliament which is at the centre of our democracy cannot be left aloof in a matter of such importance. Its views on the subject of demonetisation are critical and of utmost importance. Dr. Subhash C. Kashyap in his book, Parliamentary Procedure: Law, Privileges, Practice and Precedents, 3rd Ed., (2014), while discussing the functions of the Parliament has stated as follows: Over the years, the functions of Parliament have no longer remained restricted merely to legislating. Parliament has, in fact emerged as a multi‑functional institution encompassing in its ambit various roles viz. developmental, financial and administrative surveillance, grievance ventilation and redressal, national integration, conflict resolution, leadership recruitment and training, educational and so on. The multifarious functions of Parliament make it the cornerstone on which the edifice of Indian polity stands and evokes admiration from many a quarter. It is in the above context that it is observed that on a matter as critical as demonetisation, having a bearing on nearly 86% of the total currency in circulation, the same could not have been carried out by way of issuance of an executive notification. A meaningful discussion and debate in the Parliament on the proposed measure would have lent legitimacy to the exercise. When an Ordinance is issued or a Bill is introduced in the Parliament and enacted as a law, it would mean that it has been done by taking into confidence the Members of Parliament who are the representatives of the people of India, who would meaningfully discuss on the proposal for demonetisation made by the Central Government. In such an event, demonetisation would be by an Act of Parliament and not a measure carried out by the issuance of a gazette notification by the Central Government in exercise of its executive power. Such demonetisation through an Ordinance or a legislation through the Parliament would be notwithstanding what is contained in sub‑section (2) of Section 26 of the Act. This is because in such a situation, the Central Government is not acting on the basis of a recommendation received from the Central Board of the Bank but it would be proposing the demonetisation. Precedent for the same may be found in the earlier demonetisations which were also through a legislative process and not through the issuance of a gazette notification by the Executive / Central Government. When the process of demonetisation is carried out through a Parliamentary enactment and after being the subject of scrutiny by the Members of Parliament, any opinion sought by the Central Government from the Central Board of the Bank before initiating the promulgation of the Ordinance or placing the Bill before the Parliament may also be additional material which could be considered by the Parliament. When the Central Government initiates the proposal for demonetisation and thereafter consults the Bank on such proposal, then it could be said that the necessary safeguards were taken, as the Central Government would be fortified in its proposal for demonetisation having taken the advice of not only an expert body but the highest financial authority in the country, which handles not only the monetary policy but is also the sole authority vested with the power of issuance of bank notes or currency notes in India. When the Central Government proposes to demonetise the currency notes, not only the view of the Central Board of the Bank is relevant and important but also that of the representatives of the people in the Parliament. The Members of the Parliament hold the sovereign powers of We, the People of India in trust., Of course, by contrast, there would be no difficulty if the proposal for demonetisation is initiated by the Central Board of the Bank by making a recommendation under sub‑section (2) of Section 26 of the Act, which the Central Government in its wisdom may consider and either act upon the recommendation or for good reason, decline to act on the same. That is a matter left to the wisdom of the Central Government. However, as noted above such recommendation by the Bank cannot relate to all series of a denomination or all series of all denominations of bank notes. That is a prerogative of only the Central Government., It is nobody's case that the impugned gazette notification dated 8th November, 2016, of the Central Government was published on the initiation of the proposal of demonetisation by the Central Board of the Bank. The proposal for demonetisation was initiated by the Central Government by a letter dated 7th November, 2016 addressed by the Finance Secretary to the Governor of the Bank. The Central Government, having obtained the advice of the Bank on its proposal, proceeded to issue the impugned gazette notification on the very next day, dated 8th November, 2016. The same was followed by an Ordinance and thereafter, an enactment was passed., The contention of the petitioners could now be considered and answered. The words in sub-section (2) of Section 26 of the Act would have to be interpreted/construed in their normal parlance. It is already observed that issuance of such a notification under sub-section (2) of Section 26 of the Act must be preceded by a recommendation of the Central Board of the Bank and such recommendation is a condition precedent. The Central Government in its wisdom may accept the recommendation of the Central Board of the Bank and issue a notification in the Gazette of India or it may decline to do so. This position is evident from the use of the word may in sub-section (2) to Section 26 of the Act. However, what is significant is that if demonetisation of any bank note is to take place under sub-section (2) of Section 26 of the Act, it is only by issuance of a notification in the Gazette of India and not by any other method or manner. In other words, the Central Board of the Bank must first initiate the process by recommending to the Central Government to declare that any series of bank notes of any denomination shall cease to be a legal tender by the issuance of a notification. If the Central Government accepts the recommendation of the Central Board of the Bank, it issues a notification in the Gazette of India carrying out the same, which is in the nature of an executive function and the publication of the notification in the Gazette of India is only a ministerial act., Therefore, under sub-section (2) of Section 26 of the Act, the initiation of the process of demonetisation and the exercise of power originates from the Central Board of the Bank which has to recommend to the Central Government and the latter may accept the recommendation and in such event it would issue a gazette notification. In case the Central Government does not accept the recommendation, there will be no further action on the recommendation of the Central Board of the Bank. Thus, subsection (2) of Section 26 of the Act has inherently a very restricted operation, and is limited only to the initiation of demonetisation by the Central Board of the Bank and making a recommendation in that regard. Issuance of the notification, in the Gazette of India, would imply that the Central Government has accepted the recommendation of the Central Board of the Bank and therefore, has declared that the specified series of bank notes of the specified denomination shall cease to be legal tender from the date to be specified in the notification. The operation of sub-section (2) of Section 26 of the Act is thus in a very narrow compass and it is reiterated that the said power is exercised by the Central Government on acceptance of the recommendation of the Central Board of the Bank., The reason as to why a wide interpretation as contended by the Union of India cannot be given to sub-section (2) of Section 26 of the Act is because a plain reading of the provision as well as a contextual understanding would suggest that it is only when the initiation of a proposal for demonetisation is by the Central Board of the Bank by making a recommendation to the Central Government that the provision would apply., This position, however, does not imply that the Central Government is bereft of any power or jurisdiction to declare any bank note of any denomination to have ceased to be a legal tender. As already observed while accepting the contention of learned Attorney General, the Central Government in its wisdom may also initiate the process of demonetisation as has been done in the instant case. But what is important and to be noted is that the said power cannot be exercised by the mere issuance of an executive notification in the Gazette of India. In other words, when the proposal to demonetise any currency note is initiated by the Central Government with or without the concurrence of the Central Board of the Bank, it is not an exercise of the executive power of the Central Government under sub-section (2) of Section 26 of the Act.
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In such a situation, as already held, the Central Government would have to resort to the legislative process by initiating a plenary legislation in Parliament. What is being emphasised is that the Central Government cannot act in isolation in such matters. The Central Government has to firstly take the opinion of the Central Board of the Reserve Bank of India for the proposed demonetisation. The Central Board of the Reserve Bank of India may not accept the proposal of the Central Government or may partially concur with the proposal on specific aspects. In fact, in 1978, when the then Governor of the Reserve Bank of India did not accept the proposal of the Central Government to demonetise Rs.5,000 and Rs.10,000 bank notes, the Central Government initiated the said process through Parliament and this culminated in the passing of the Act of 1978. In drafting the said legislation, the expert assistance of two officers of the Reserve Bank of India was taken so as to fortify the legislation. The said legislation was also challenged before the Supreme Court of India in the case of Jayantilal Ratanchand Shah, Devkumar Gopaldas Aggarwal versus Reserve Bank of India (1996) 9 SCC 650 whereby the vires of the 1978 Act was ultimately upheld by the Supreme Court of India vide judgement dated 9th August 1996, after eighteen years of its enactment., The reasons why the Central Government cannot unilaterally issue a gazette notification but has to resort to legislation when it initiates the proposal for demonetisation have already been discussed. The Central Government may have very valid objectives, as in the instant case, that is, to eradicate black money, fake currency and prevent currency from being utilised for terror funding. However, those objects would not be the objects with which the Central Board of the Reserve Bank of India may make a recommendation under sub‑section (2) of Section 26 of the Act. The reason is that the Central Government would view the entire scheme of demonetisation in a larger perspective, having several objects in mind and in the interest of the sovereignty and integrity of India, the security of the State, the financial health of the economy, etc. The Central Board of the Reserve Bank of India may not be in a position to visualise such objectives. Under such circumstances the Central Government must consult the Reserve Bank of India but need not mandatorily obtain the imprimatur of the Central Board of the Reserve Bank of India to its proposal. If the Central Board of the Reserve Bank of India, when consulted by the Central Government, gives a negative opinion, would it mean that the Central Government would then not resort to demonetisation in deference to that opinion? It may do so if it finds that the opinion tendered by the Reserve Bank of India is just and proper, but the Central Government may have its own reasons for not accepting the opinion of the Central Board of the Reserve Bank of India and therefore, in such a situation the Central Government will have to initiate the proposal for demonetisation through a plenary legislation, by way of introduction of a Bill in Parliament resulting in an Act of Parliament., Therefore, the sum and substance of the discussion is that when the Central Board of the Reserve Bank of India initiates or originates the proposal for demonetisation of any series of bank notes of any denomination, it has to make a recommendation to the Central Government as per sub‑section (2) of Section 26 of the Act. The Central Government may act on such recommendation by issuing a gazette notification. On the other hand, when the Central Government is the originator of the proposal for demonetisation of any currency note, as in the instant case, it has to seek the advice of the Central Board of the Reserve Bank of India, for it cannot afford to proceed in isolation and without bringing the proposal to the notice of the Reserve Bank of India having regard to the important position the Reserve Bank of India holds in the Indian economy. Irrespective of the opinion of the Central Board of the Reserve Bank of India to the Central Government’s proposal, the legislative route would have to be taken by the Central Government for furthering its objectives of demonetisation of bank notes. Thus, the same cannot be carried out by the issuance of a simple notification in the Gazette of India declaring that all bank notes or currency notes are demonetised. This is because when the Central Government is the originator of a proposal for demonetisation, it is acting de hors sub‑section (2) of Section 26 of the Act., Such an interpretation is necessary as it is the contention of the Union of India that the Central Government has the power to demonetise all series of bank notes of all denominations, which would mean that every Rs.1, Rs.5, Rs.10, Rs.20, Rs.10,000 could be demonetised. Since the same is possible theoretically, in my view, such an extensive power cannot be exercised by issuance of a simple gazette notification in exercise of an executive power of the Central Government as if it were under sub‑section (2) of Section 26 of the Act. The same can only be through a plenary legislation, by way of an enactment following a meaningful debate in Parliament on the proposal of the Central Government. This would also answer the other contention of the learned senior counsel for the petitioners that sub‑section (2) of Section 26 of the Act cannot be interpreted to mean all series of bank notes of all denominations when the words used in the provision are 'any series of any denomination'. Deciphering the plain meaning of sub‑section (2) of Section 26:, The reason why power is vested only with the Central Board of the Reserve Bank of India under sub‑section (2) of Section 26 of the Act to recommend to the Central Government to declare specified series of specific denomination of bank notes as having ceased to be legal tender becomes clear when the plain meaning of the words of the provision is recognised. When interpreted as such, no power to demonetise currency notes at the behest of the Central Government is envisaged under the provision. This is because the power of the Central Government to do so is vast and has a wide spectrum. Such a power is not traceable to sub‑section (2) of Section 26 of the Act which operates in a narrower compass. Hence, to save sub‑section (2) of Section 26 from the vice of unconstitutionality, it must be given an interpretation appropriate to the object for which the provision is intended. In this context, the following principles become relevant., When the words of a statute are clear, plain or unambiguous, that is, they are reasonably susceptible to only one meaning, the Supreme Court of India is bound to give effect to that meaning and admit only one meaning and no question of construction of a statute arises, for the provision would speak for itself. The judicial dicta relevant to the above principle of interpretation are as follows: (i) In Kanailal Sur versus Paramnidhi Sadhu Khan AIR 1957 SC 907 at page 910, the Supreme Court of India observed that if the words used are capable of only one construction then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the purported object and policy of the Act. Reference was made to Section 162 of the Code of Criminal Procedure, 1898 and interpretation of the expression 'any person' by Lord Atkin, speaking for the Privy Council, who observed that the expression 'any person' includes any person who may thereafter be an accused, and he observed that when the meaning of the words is plain, it is not the duty of courts to busy themselves with supposed intentions, vide Pakala Narayanaswami versus Emperor AIR. (ii) Similarly, while construing Sections 223 and 226 of the Indian Succession Act, 1925, which contain a prohibition in relation to grant of probate or letters of administration to any association of individuals unless it is a company, this Court in Illachi Devi versus Jain Society Protection of Orphans India (2003) 8 SCC 413 applied the plain meaning rule and held that the expression would not include a society registered under the Societies Registration Act as a society even after registration does not become distinct from its members and does not become a separate legal person like a company. (iii) For a proper application of the plain meaning rule to a given statute, it is necessary first to determine whether the language used is plain or ambiguous. Any ambiguity means that a phrase is fairly and equally open to diverse meanings. A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It is only when a provision contains a word or phrase which in a particular context is capable of having more than one meaning that it would be ambiguous. (iv) Hence, in order to ascertain whether certain words are clear and unambiguous, they must be studied in their context. Context in this connection is used in a wide sense as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia and the mischief which by those and other legitimate means can be discerned that the statute was intended to remedy. [Source: Interpretation of Statutes by Justice G.P. Singh, 15th Edition], Applying the above rule, if sub‑section (2) of Section 26 of the Act is read as per the plain meaning of the words of the provision, then it does not lead to any ambiguity. The plain meaning rule is the golden rule of construction of statutes and it does not lead to any absurdity in the instant case. On a plain reading of the provision, it is observed that the Central Government can issue a notification in the Gazette of India to demonetise any series of bank notes of any denomination but only on the recommendation of the Central Board of the Reserve Bank of India. In my view sub‑section (2) of Section 26 is not vitiated by unconstitutionality. This is for two reasons: firstly, the plain meaning of the words 'any series of bank notes of any denomination' would not imply all series of bank notes of all denominations. The word 'any' means specified or particular and not all as contended by the respondents. If the contention of the Union of India is accepted and the word 'any' is read as 'all', it would lead to disastrous consequences as the Central Board of the Reserve Bank of India cannot be vested with the power to recommend demonetisation of all series of currency of all denominations. The interpretation suggested by the learned Attorney General would lead to vesting of unguided power in the Central Board of the Reserve Bank of India whereas giving a wider power to the Central Government to initiate such a demonetisation wherein all series of a denomination could be demonetised is appropriate as it is expected to consider all pros and cons from various angles and then to initiate demonetisation on a large scale through a legislative process. Such a power is vested only in the Central Government by virtue of Entry 36 of List I of the Seventh Schedule of the Constitution, which of course has to be exercised by means of a plenary legislation and not by issuance of a gazette notification under sub‑section (2) of Section 26 of the Act. Hence, the word 'any' cannot be interpreted to mean 'all' having regard to the context in which it is used in the provision., Secondly, any recommendation of the Central Board of the Reserve Bank of India under sub‑section (2) of Section 26 is not binding on the Central Government. If the Central Government does not accept the recommendation of the Reserve Bank of India then no notification would be published in the Gazette of India by it. In fact, the Central Government is not bound by the recommendation made by the Central Board of the Reserve Bank of India to demonetise any bank note, although the Central Board of the Reserve Bank of India may comprise experts in matters relating to finance, having knowledge and experience of economic affairs of the country, and such knowledge may be reflected in the recommendation made to the Central Government. As already noted, the Central Government has the option to accept the recommendation and accordingly issue a gazette notification or elect not to act on the same. However, the Central Government should consider the recommendation with all seriousness and, in its wisdom, take an appropriate decision in the matter., In the instant case, on perusal of the records submitted by the Union of India and the Reserve Bank of India, it is noted that the proposal for demonetisation had been initiated by the Central Government by writing a letter to the Reserve Bank of India on 7th November 2016 and not by the Central Board of the Reserve Bank of India. On the very next evening, that is, on 8th November 2016 at 05:30 p.m., there was a meeting of the Central Board of the Reserve Bank of India at New Delhi and a resolution was passed and a little while thereafter on the same evening, the notification was issued invoking sub‑section (2) of Section 26 of the Act by the Central Government. Such a procedure is not contemplated under sub‑section (2) of Section 26 of the Act when the proposal for demonetisation is initiated by the Central Government., Hence, it is held that in the instant case the Central Government could not have exercised power under sub‑section (2) of Section 26 of the Act in the issuance of the impugned gazette notification dated 8th November 2016. It is further held that in the present case, the object and purpose of issuance of an Ordinance and thereafter the enactment of the 2017 Act by Parliament was, in my view, to give a semblance of legality to the exercise of power by issuance of the notification on 8th November 2016., Section 3 of the Ordinance and of the 2017 Act states: 'On and from the appointed day, notwithstanding anything contained in the Reserve Bank of India Act, 1934 or any other law for the time being in force, the specified bank notes which have ceased to be legal tender, in view of the notification of the Government of India in the Ministry of Finance, number S.O. 3407(E), dated 8th November 2016, issued under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934, shall cease to be liabilities of the Reserve Bank under Section 34 and shall cease to have the guarantee of the Central Government under sub‑section (1) of the said Act.', The said section contains an inherent contradiction because it includes a non‑obstante clause vis‑à‑vis the Act or any other law for the time being in force, yet it also refers to Sections 26 and 34 of the Act. A non‑obstante clause, such as 'notwithstanding anything contained in the Act or any other law for the time being in force', is sometimes appended to a provision to give the enacting part an overriding effect over the provision or Act mentioned in the clause. Judicial dicta on the use of a non‑obstante clause include: (a) In T.R. Thandur versus Union of India (1996) 3 SCC 690, the Supreme Court of India observed that a non‑obstante clause may be used as a legislative device to modify the ambit of the provision or law mentioned in the clause or to override it in specified circumstances, and that the court must ascertain the extent to which the legislature intended to give it an overriding effect. (b) In Central Bank of India versus State of Kerala (2009) 4 SCC 94, the Supreme Court of India held that while interpreting a non‑obstante clause the court must determine the extent of the legislature's intended overriding effect. (c) In A.G. Varadarajulu and Anr. versus State of Tamil Nadu (1998) 4 SCC 231, the Court observed that it is well‑settled that when dealing with a non‑obstante clause, the court must find the extent to which the legislature intended one provision to have overriding effect over another. The effect of inserting a non‑obstante clause into legislation is that the consideration arising from the provisions sought to be excluded shall be excluded, as noted in Madhav Rao Scindia versus Union of India (1971) 1 SCC 85. Applying these principles to interpret Section 3 of the 2017 Act, the non‑obstante clause appears to override the provisions of the Act insofar as they are not applicable to the processes under the 2016 Ordinance and the 2017 Act. It is significant that the clause reads 'notwithstanding anything contained in the Act or any other law for the time being in force', which is appropriate because the demonetisation is not exercised under the powers of sub‑section (2) of Section 26 of the Act. However, Section 3 also states that the specified bank notes which have ceased to be legal tender, in view of the notification dated 8th November 2016 issued under sub‑section (2) of Section 26 of the Act, shall cease to impose liabilities on the Reserve Bank under Section 34 and shall cease to have the guarantee of the Central Government under sub‑section (1) of Section 26. Therefore, while the impugned gazette notification dated 8th November 2016 has been admittedly issued exercising powers under sub‑section (2) of Section 26 of the Act, Section 3 of the 2017 Act also states that it is notwithstanding anything contained in the Act. If so, the impugned notification could not have been issued invoking sub‑section (2) of Section 26 of the Act. The liability could have ceased only if the power exercised by the Central Government for the issuance of the notification dated 8th November 2016 was under sub‑section (2) of Section 26 of the Act on the recommendation of the Central Board of the Reserve Bank of India. Had the measure of demonetisation been carried out by way of enactment of a plenary legislation, the non‑obstante clause could have been employed to exclude the applicability of the Act. However, having sought to rely on sub‑section (2) of Section 26 of the Act to issue the notification, the non‑obstante clause is misplaced and gives rise to a contradiction regarding the basis on which the notification dated 8th November 2016 was issued., Affidavits and Record of the Case: It has been observed in the preceding paragraphs that when the proposal to carry out demonetisation originates from the Central Government, irrespective of whether or not the Reserve Bank of India concurs with or endorses such proposal, the Central Government would have to take the legislative route through a plenary legislation and cannot proceed with demonetisation by simply issuing a notification. It is necessary to examine the proposal to carry out demonetisation in the present case, which originated from the Central Government. For this purpose, reference may be had to the recitals of the affidavits filed by the Union of India and the Reserve Bank of India, and, to the extent permissible, to the records submitted by the Union of India and the Reserve Bank of India in a sealed cover., I have perused the following photocopies of the original records submitted on behalf of the Union of India and the Reserve Bank of India: (i) Letter by the Secretary, Department of Economic Affairs, Ministry of Finance, dated 7th November 2016, bearing F. No. 10.03/2016 Cy.I, addressed to the Governor of the Reserve Bank of India; (ii) Draft Memorandum of the Deputy Governor of the Reserve Bank of India, placed before the Central Board of the Reserve Bank of India at its 561st meeting; (iii) Minutes of the 561st meeting of the Central Board of the Reserve Bank of India, convened at New Delhi on 8th November 2016 at 05:30 p.m., and signed on 15th November 2016; (iv) Letter addressed by the Deputy Governor of the Reserve Bank of India to the Central Government on 8th November 2016., On a reading of the records listed above, the following facts emerge: (1) A letter bearing F. No. 10.03/2016 Cy.I dated 7th November 2016 was addressed by the Secretary, Ministry of Finance, Department of Economic Affairs, Government of India, to the Governor of the Reserve Bank of India, referring to certain facts and figures to indicate two major threats to the security and financial integrity of the country: (i) Fake infusion of currency notes (FICN); (ii) Generation of black money in the Indian economy. The desire of the Central Government to proceed with the measure of demonetisation was expressed in that letter and a request was made to the Reserve Bank of India to consider recommending such measure in terms of the relevant clauses of the Act. (2) The Draft Memorandum of the Deputy Governor of the Reserve Bank of India, placed before the Central Board of the Reserve Bank of India, categorically states that the need for a meeting to deliberate on the proposed measure of demonetisation had arisen pursuant to the letter addressed to the Reserve Bank of India from the Central Government dated 7th November 2016. The Draft Memorandum further records that the Government had recommended that the withdrawal of the tender character of existing Rs.500 and Rs.1,000 notes was appropriate. It also records that, as desired by the Central Government, a draft scheme for implementation of demonetisation had been enclosed. (3) In view of the contents of the Draft Memorandum, the Central Board of the Reserve Bank of India in its 561st meeting commended the Central Government’s proposal for demonetisation and directed that the same be forwarded to the Central Government. (4) Accordingly, a letter was addressed by the Deputy Governor of the Reserve Bank of India to the Central Government on 8th November 2016, stating that the proposal of the Central Government pertaining to withdrawal of legal tender of bank notes of denominational values of Rs.500 and Rs.1,000 was placed before the Central Board of the Reserve Bank of India in its 561st meeting. It was also stated that the necessary recommendation to proceed with the proposal had been obtained from the Central Board of the Reserve Bank of India., On a comparative reading of the records submitted by the Union of India as well as the Reserve Bank of India, it becomes crystal clear that the process of demonetisation of all series of bank notes of denominational values of Rs.500 and Rs.1,000 commenced/originated from the Central Government. This fact is crystallised in the communication addressed by the Secretary, Department of Economic Affairs, Ministry of Finance, dated 7th November 2016 to the Governor of the Reserve Bank of India. The phrases and words emphasized clearly indicate that the proposal for demonetisation was from the Central Government. In substance, the Central Government sought the opinion/advice of the Reserve Bank of India on such proposal. The use of expressions such as 'as desired by the Central Government', 'Government had recommended the withdrawal of the legal tender of existing Rs.500 and Rs.1,000 notes', 'recommendation has been obtained', etc., are self‑explanatory. This demonstrates that there was no independent application of mind by the Reserve Bank of India. Neither was there any time for the Reserve Bank of India to apply its mind to such a serious issue. This observation is made having regard to the fact that the entire exercise of demonetisation of all series of bank notes of Rs.500 and Rs.1,000 was carried out in twenty‑four hours. A situation where an independent authority such as the Reserve Bank of India, based on its own appreciation of the economic climate of the country, recommends a measure to the Central Government must be contrasted with a situation where a measure originating from the Central Government is simply placed before such independent authority for seeking its advice or opinion. A proposal of the Central Government on a scheme having serious economic ramifications has to be placed before the Reserve Bank of India to seek its expert opinion as to the viability of the scheme. The Reserve Bank of India as an expert body may render advice on such a proposal and on some occasions may even concur with it. However, even such concurrence to a proposal originating from the Central Government is not akin to an original recommendation of the Central Board of the Reserve Bank of India within the meaning of Section 26(2) of the Act., The following points emerge on perusal of the affidavits submitted on behalf of the Union of India: (1) The Central Board of the Reserve Bank of India made a specific recommendation to the Central Government on 8th November 2016 for the withdrawal of legal tender character of the existing series of Rs.500 and Rs.1,000 bank notes, which could tackle black money, counterfeiting and illegal financing, and also proposed a draft scheme for the implementation of the recommendation. (2) The consultations between the Central Government and the Reserve Bank of India began in February 2016; however, the process of consolidation and decision‑making was kept confidential. (3) The Reserve Bank of India and the Central Government were together engaged in the finalisation of new designs, development of security inks and printing plates for the new designs, change in specifications of printing machines and other critical aspects., The following points emerge upon perusal of the affidavits submitted on behalf of the Reserve Bank of India: (1) A letter dated 7th November 2016 was received by the Reserve Bank of India from the Ministry of Finance, Government of India, which contained a proposal to withdraw the legal tender character of existing Rs.500 and Rs.1,000 bank notes. (2) The proposal was considered, together with a draft scheme for implementing the withdrawal of existing Rs.500 and Rs.1,000 bank notes, at the 561st meeting of the Central Board of Directors of the Reserve Bank of India, held on 8th November 2016 at 05:30 p.m. in New Delhi. (3) The Central Board of Directors was assured that the matter had been the subject of discussion between the Central Government and the Reserve Bank of India for six months, and that the Central Government would take adequate mitigating measures to contain the use of cash. (4) The Board, having observed that the proposed step presents a significant opportunity to advance the objects of financial inclusion and to incentivise the use of electronic modes of payment, recommended the withdrawal of legal tender of old bank notes in the denominations of Rs.500 and Rs.1,000., On a conjoint reading of the affidavits submitted by the Union of India and the Reserve Bank of India, the following deductions may be drawn: (1) The Central Government, in its letter addressed to the Reserve Bank of India dated 7th November 2016, proposed to withdraw the legal tender character of existing Rs.500 and Rs.1,000 bank notes. (2) The Central Board of the Reserve Bank of India, at its 561st meeting held on 8th November 2016, resolved that the withdrawal of legal tender of old bank notes in the denominations of Rs.500 and Rs.1,000 be made. (3) The objects guiding the Board’s opinion were two‑fold: first, pertaining to financial inclusion, and second, to incentivise the use of electronic modes of payment. (4) The object guiding the Government’s proposal to withdraw currency of the specified denominations was to tackle black money, counterfeiting and illegal financing., In my view, there is a contradiction as to the subject of demonetisation, as well as the object thereof, as stated by the Reserve Bank of India versus the Central Government, as discernible from the affidavits. The affidavit of the Reserve Bank of India indicates that the object of demonetisation was (i) financial inclusion and (ii) incentivising the use of electronic modes of payment. The affidavit of the Central Government indicates that the purpose was to tackle (i) black money, (ii) counterfeiting, and (iii) illegal financing. The subject of demonetisation, according to the Reserve Bank of India, was the old bank notes in the denominations of Rs.500 and Rs.1,000, whereas the Central Government referred to the existing Rs.500 and Rs.1,000 bank notes. The object of the measure and the subject are relevant in assessing the resolution of the Reserve Bank of India dated 8th November 2016.
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On a close reading of the Notification dated 8th November 2016, in juxtaposition with the records, the following aspects emerge: One aspect that emerges with no ambiguity is that the proposal for demonetisation originated from the Central Government, by way of its letter addressed to the Reserve Bank of India, dated 7th November 2016. This forms the central plank of the controversy. The recommendation did not originate from the Bank under subsection (2) of Section 26 of the Reserve Bank of India Act, but was obtained from the Bank in the form of an opinion on the proposal for demonetisation submitted by the Central Government. Such an opinion could not be considered a recommendation as required by the Central Government to proceed under subsection (2) of Section 26. Even if it were assumed for the sake of argument that the opinion was a recommendation under subsection (2) of Section 26, in light of the interpretation given to the phrase “any series or any denomination” to mean a specified series/specified denomination, the recommendation is void as it pertained to demonetisation of all series of bank notes of denominations Rs.500 and Rs.1,000. The term “any” in subsection (2) of Section 26 cannot be interpreted to mean “all”, as such an interpretation would vest unguided and expansive discretion with the Central Board of the Reserve Bank of India. The Notification expressly states that it is issued under subsection (2) of Section 26; therefore Section 3 of the Ordinance and Act could not, in the non‑obstante clause, state that subsection (2) of Section 26 is not applicable. Having observed that demonetisation could not have been carried out by issuing a Notification as contemplated under subsection (2) of Section 26 and that Parliament has the competence to carry out demonetisation on the strength of Entry 36 of List I of the Seventh Schedule of the Constitution, the Central Government could not have exercised the power by issuance of an executive notification., Legal principles applicable to the case: One principle is expressed in the maxim “to do a thing a particular way or not at all”, also expressed by the Latin maxim *expressio unius est exclusio alterius*, meaning that when a manner is specified for doing a certain thing, all other modes are expressly excluded. The other principle is the exercise of discretion, a well‑known principle in Administrative Law., The Supreme Court of India has applied this maxim in the following cases: (i) *Parbhani Transport Co‑operative Society Ltd. v. The Regional Transport Authority, Aurangabad* (1960) 3 SCR 177, where it was observed that an expressly laid down mode of doing something necessarily implies a prohibition of doing it in any other way; (ii) *Dipak Babaria v. State of Gujarat* AIR 2014 SC 1972, where the Court set aside the sale of agricultural land because the sale was not in compliance with the statutory procedure prescribed under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958; (iii) *Kameng Dolo v. Atum Welly* AIR 2017 SC 2859, where the election of an unopposed candidate was declared invalid because the nomination of the opponent was not withdrawn as per the statutory procedure; (iv) *The Tahsildar, Taluk Office, Thanjore v. G. Thambidurai* AIR 2017 SC 2791, where the assignment of land was cancelled because statutory requirements were not followed; (v) *Union of India v. Charanjit S. Gill* (2000) 5 SCC 742, where the Court held that notes appended to the sections of the Army Act, 1950 could not be read as part of the Act and could not take away any right vested under the Act., The discussion above shows that when a statute contemplates a specific procedure to be adhered to in order to achieve a desired end, such procedure cannot be substituted by an alternative procedure not contemplated under the statute. Accordingly, what ought to have been done through a parliamentary enactment or plenary legislation could not have been carried out by simply issuing a notification under subsection (2) of Section 26 of the Reserve Bank of India Act by the Central Government. The provision does not apply to cases where the proposal for demonetisation originates from the Central Government and is not envisaged under the Act. Hence, the issuance of a notification to give effect to the Central Government’s proposal for demonetisation was based on an incorrect understanding of subsection (2) of Section 26. The Central Government did not follow the procedure contemplated under law; this is a matter of substance, as the powers of the Central Board of the Reserve Bank of India and the Central Government are distinct in the matter of demonetisation of bank notes., The other legal principle concerns the exercise of discretion in Administrative Law. Lords Halsbury in *Sharp v. Wakefield* (1891) AC 173 described discretion as the requirement that a decision be made according to the rules of reason and justice, not according to private opinion, and that it must be exercised within the limits to which an honest person competent to discharge his office ought to confine himself., It is a well‑established rule of administrative law that discretionary power must be exercised by the authority to whom the discretion is entrusted by the statute. Non‑exercise of discretion occurs when an authority does not consider a matter on its merits but takes a decision as if directed by a higher authority. When an authority exercises discretion vested in it by law at the behest of another authority, the action amounts to non‑exercise of its discretionary power and is invalid., The petitioners contend that subsection (2) of Section 26 implicitly requires adequate time and attention by both the Central Board of the Reserve Bank of India and the Central Government before proceeding with a measure of such magnitude as demonetisation. They submit that the procedure with such implicit obligations was abandoned. The proposal emanated from the Central Government and was not initiated by the Bank. The Central Board of the Reserve Bank of India passed a resolution in a hurried manner, having had hardly twenty‑four hours to consider the proposal after the Central Government’s letter of 7th November 2016. The Central Government assured the Board that sufficient safeguards would be taken and that demonetisation would reduce bank notes in the economy and promote digitalisation. The Board’s opinion was therefore given only on those assurances., The Central Government cannot, under the guise of seeking an opinion on its proposal to demonetise bank notes, obtain a recommendation from the Central Board of the Reserve Bank of India as if acting under subsection (2) of Section 26, and then issue a gazette notification to give effect to demonetisation. Such a procedure is contrary to the import of subsection (2) because the Board has no jurisdiction to recommend demonetisation of all series of all denominations. The Board can only recommend that a particular series of a particular denomination cease to be legal tender. Consequently, the impugned notification dated 8th November 2016 issued under subsection (2) of Section 26 is unlawful, and the subsequent 2016 Ordinance and 2017 Act incorporating its terms are also unlawful., The action of demonetisation initiated by the Central Government by issuance of the impugned notification was an exercise of power contrary to law and therefore unlawful. Consequently, the 2016 Ordinance and 2017 Act are also unlawful. However, given that the demonetisation process was given effect from 8th November 2016, the status quo ante cannot be restored at this point., In view of the above conclusion, the question of moulding relief is considered. The petitioners state that about 86 % of the volume of currency notes in circulation was demonetised, causing severe financial, socio‑economic and psychological hardships. They question whether the Central Board of the Reserve Bank of India had visualised the consequences. Although the objective of the Central Government may have been sound, the manner in which the objectives were achieved and the procedure followed were not in accordance with law. It is also recorded that around 98 % of the value of the demonetised currency has been exchanged for legal tender, and a new series of Rs.2,000 notes was released. The Supreme Court does not base its decision on the effectiveness of legislation, but on legality; therefore any relief is without regard to the success of the measure., The learned Attorney General for the Union of India submitted that the objectives were sound but the procedure was not in accordance with law, and that the issues have become academic as demonetisation has been acted upon. The Court must examine the nature of relief that could be moulded. Several judgments are relevant: (i) *S.R. Bommai v. Union of India* AIR 1994 SC 1918, where the Court held that substantive relief may be granted only if the issue remains live, but the Court may prospectively declare a law for posterity; (ii) *Golak Nath v. State of Punjab* (1967) 2 SCR 762, where the Court declared that it may find a law invalid and restrict its operation to the future; (iii) *Orissa Cement Ltd. v. State of Orissa* 1991 SCC 430, where the Court distinguished between declaration of invalidity and determination of relief, holding that the Court has discretion to mould or restrict relief., The elementary question is whether the challenge to the validity of the Central Government’s decision dated 8th November 2016 to demonetise all Rs.500 and Rs.1,000 bank notes, adjudicated upon after more than six years, can still be considered, and what relief may be granted. The controversy relates to the true meaning and interpretation of subsection (2) of Section 26. The Court may declare the law as to the validity of an action even after the action has been given effect in toto, with the declaration applying prospectively. Such a declaration would deter future measures carried out in a similar manner. The Court can make such a declaration under Article 141 of the Constitution, and may mould its effect under Article 142., The decision in *Jayantilal Ratanchand Shah & Devkumar Gopaldas Aggarwal v. Reserve Bank of India* AIR 1997 SC 370, which dealt with the constitutional validity of the High Denomination Bank Notes (Demonetisation) Act, 1978, is also relevant. Although the enactment related to 1978, its validity was declared only in 1997. The Court clarified the parliamentary power to enact such legislation. A similar declaration regarding the validity or invalidity of the impugned actions and notification is sought in the present petitions., In view of the foregoing discussion, the following conclusions are reached: (i) Subsection (1) of Section 26 provides that every bank note shall be legal tender throughout India and shall be guaranteed by the Central Government, subject to subsection (2); (ii) Subsection (2) applies only when a proposal for demonetisation is initiated by the Central Board of the Reserve Bank of India by way of a recommendation to the Central Government, and the recommendation can be in respect of any specified series of any specified denomination; (iii) The expression “any series of bank notes of any denomination” has its plain grammatical meaning, i.e., a specified series of a specified denomination, not all series of all denominations; (iv) Interpreting “any” to mean “all” would vest unguided and unlimited powers in the Board, rendering the provision unconstitutional, so it is read down to apply only to a particular series of a particular denomination; (v) Upon receipt of a recommendation under subsection (2), the Central Government may accept it and, if so, may issue a Gazette notification specifying the date from which the specified series shall cease to be legal tender and lose the Government’s guarantee; (vi) The Act does not bar the Central Government from proposing or initiating demonetisation under its plenary powers under Entry 36 of List I of the Seventh Schedule, but such action must be effected by an Ordinance of the President followed by an Act of Parliament or by plenary legislation, not by a Gazette notification under subsection (2); (vii) When exercised by legislation, the power derives from Entry 36, List I, which deals with currency, coinage, legal tender and foreign exchange; (viii) The Central Government must seek the opinion of the Reserve Bank of India, which, although not binding, should be independent and given due weight; (ix) Even if the Board concurs, the Government must still follow the legislative process and cannot rely on a Gazette notification; (x) The impugned notification dated 8th November 2016 issued under subsection (2) of Section 26 is unlawful, rendering the demonetisation of Rs.500 and Rs.1,000 notes void; (xi) Consequently, the subsequent 2016 Ordinance and 2017 Act incorporating the terms of the notification are also unlawful; (xii)
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However, having regard to the fact that the impugned notification dated 8th November 2016 and the Act have been acted upon, the declaration of law made herein would apply prospectively and would not affect any action taken by the Central Government or the Bank pursuant to the issuance of the Notification dated 8th November 2016. This direction is being issued having regard to Article 142 of the Constitution of India. Hence, no relief is being granted in the individual matters. In view of the above conclusions, I do not think it is necessary to answer the other questions raised in the reference order., Before parting, I wish to observe that demonetisation was an initiative of the Central Government, targeted to address disparate evils plaguing the Nation's economy, including practices of hoarding black money, counterfeiting, which in turn enable even greater evils such as terror funding, drug trafficking, emergence of a parallel economy, and money laundering including Hawala transactions. It is beyond the pale of doubt that the said measure, which was aimed at eliminating these depraved practices, was well-intentioned. The measure is reflective of concern for the economic health and security of the country and demonstrates foresight. At no point has any suggestion been made that the measure was motivated by anything but the best intentions and noble objects for the betterment of the Nation. The measure has been regarded as unlawful only on a purely legalistic analysis of the relevant provisions of the Act and not on the objects of demonetisation., In view of the answer given by me to question no.1 of the reference order, I do not deem it necessary to answer all other questions of the reference order or even the questions reframed by His Lordship B.R. Gavai, Judge during the course of the judgment except to the extent discussed above., In the result, the writ petitions, special leave petitions and transfer petitions are directed to be posted before the appropriate Bench after seeking orders from Honorable the Chief Justice of India. I would like to acknowledge and place on record my appreciation for the learned Attorney General for India, all learned senior counsel, learned instructing counsel as well as the learned counsel, for their assistance in the matter.
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Friday, the 19th day of May 2023 / 29th Vaisakha, 1945. The petitioner filed a Writ Petition (Civil) praying that, in the circumstances stated in the affidavit filed along with the Writ Petition (Civil), the Kerala High Court be pleased to direct the respondents to terminate the pregnancy of the victim girl in Crime No. 331/2023 of the Vazhikadavu Police Station as expeditiously as possible, pending disposal of the Writ Petition (Civil)., The petition was again called for orders after perusing the petition and the affidavit filed in support of the Writ Petition (Civil) and the Kerala High Court's order dated 16.05.2023. Upon hearing the arguments of Sri K. Rakesh, Advocate for the pleader for respondents 2 to 7, the Kerala High Court passed the following., The petitioner, the father of a minor girl aged 15 years, seeks the following reliefs: Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to terminate the pregnancy of the victim girl in Crime No. 331/2023 of the Vazhikadavu Police Station as expeditiously as possible. Declare that the pregnancy would cause serious mental injury to the minor girl and hence is liable to be terminated. Issue a writ of mandamus or any other appropriate writ, order or direction directing the eighth respondent to restore the custody of the minor girl child to her parents forthwith. Dispense with the filing of an English translation of vernacular documents. Grant such other reliefs as the Honourable Kerala High Court may deem fit and proper in the circumstances of the case., The unfortunate situation is that the minor daughter of the petitioner became impregnated by the son of the petitioner and is now seven months pregnant. The prayer for termination is sought in these circumstances., The Medical Board, after examination, submitted a report expressing the following opinions: The child is physically and mentally fit for medical termination of pregnancy. Continuation of pregnancy is likely to cause grave injury to the social and mental health of the child. Physical health of the child is likely to be affected by the complications of teenage pregnancy. As she has crossed 32 weeks of pregnancy, there is a possibility of giving birth to a live baby with all the problems of prematurity, raising concerns about further care of the baby., Earlier, when the matter came up for consideration before the Kerala High Court, taking note of the eventuality highlighted by the Medical Board, the petitioner was directed to submit an affidavit undertaking to undergo the risks highlighted by the Medical Board. In compliance, the petitioner has submitted the affidavit., Upon perusal of the medical report, it is evident that the child is physically and mentally fit for medical termination of pregnancy and that continuation of pregnancy is likely to cause grave injury to the social and mental health of the child. Considering that the child is born from his own sibling, various social and medical complications are likely to arise, making the permission to terminate the pregnancy inevitable. Even while addressing the issue and passing appropriate orders, the possibility of giving birth to a live baby cannot be overruled, as highlighted by the Medical Board., In these circumstances, the Kerala High Court is inclined to allow medical termination of pregnancy of the petitioner’s daughter, in light of the principles laid down by this Court in the decisions reported in xxx v. Union of India and others [2021(3) KLT 279] and xxx v. Union of India and others [2022 KHC 2022]. Accordingly, respondents 4 and 5 are directed to take urgent steps to medically terminate the pregnancy of the minor daughter of the petitioner without any delay. After completion of the procedure, a report shall be submitted to the Kerala High Court to enable it to pass appropriate orders addressing further issues likely to arise in this case.
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Applicant: Khajan Singh and another. Opposite Party: State of Uttar Pradesh and another. Counsel for Applicant: Pankaj Sharma, Prashant Sharma. Counsel for Opposite Party: G.A. Honourable Mrs. Manju Rani Chauhan, J. On 05 October 2020, learned counsel for opposite party no.2 was directed to file a short counter affidavit along with vakalatnama in the Registry, which was filed on 06 October 2020 as is clear from the receipt placed on record. Learned counsel for the applicants is permitted to make necessary corrections in the prayer clause of the application during the course of the day., Heard Mr. Pankaj Sharma, learned counsel for the applicants, the learned Additional Government Advocate for the State, and Mr. Deepak Kumar, Advocate holding brief of Mr. R.C. Yadav, learned counsel for opposite party no.2. This application under Section 482 of the Criminal Procedure Code has been filed challenging the impugned order dated 14 February 2019 passed by the learned Chief Judicial Magistrate, Hathras as well as the entire proceedings of Case 5 of 2008 (State Vs. Khajan Singh & Others), arising out of Case Crime No. 411 of 2007, under Sections 363, 366, 376 of the Indian Penal Code, Police Station Hathras, District Hathras, pending in the Court of Chief Judicial Magistrate, Hathras on the basis of the compromise., In compliance with the order of the High Court dated 5 October 2020, the applicant no.1, namely Khajan Singh, and the opposite party no.2, namely Rekha, are present in Court today, having been identified by their counsel and having attested their signatures. They state that they have married and are living happily as husband and wife and that the first information report was lodged by the father of opposite party no.2 with false and frivolous allegations. After compromise, an application was moved before the concerned court below, which was rejected on 14 February 2019 on the ground that the court does not have jurisdiction to pass an order in such compromise in non‑compoundable offences., On the instruction received, learned counsel for the applicants submits that since the parties have entered into a compromise, opposite party no.2 has no objection if the proceedings in the aforesaid case are quashed., Before proceeding further it is apt to make a brief reference to the case of Gian Singh Vs. State of Punjab reported in (2012) 10 Supreme Court Cases 303, wherein the Supreme Court of India has categorically held that the compromise can be made between the parties even in respect of certain cognizable and non‑compoundable offences. The relevant portion of the said judgment reads as follows: “57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; to secure the ends of justice or to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc.; cannot provide any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominately civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc., or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.”, The aforesaid judgments confirm that compromise can be made between the parties even in respect of certain cognizable and non‑compoundable offences. Reference may also be made to the decision given by this Court in Shaifullah and Others Vs. State of Uttar Pradesh & Another, 2013 (83) All India Reporter 278, in which the law expounded by the Supreme Court of India in the aforesaid cases has been explained in detail., Considering the facts and circumstances of the case, as noted herein above, and also the submissions made by the counsel for the parties, the Court is of the considered opinion that no useful purpose shall be served by prolonging the proceedings of the above‑mentioned criminal case as the parties have already settled their dispute. Accordingly, the impugned order dated 14 February 2019 passed by the learned Chief Judicial Magistrate, Hathras is set aside and the proceedings of Case 5 of 2008 (State Vs. Khajan Singh & Others), arising out of Case Crime No. 411 of 2007, under Sections 363, 366, 376 of the Indian Penal Code, Police Station Hathras, District Hathras, pending in the Court of Chief Judicial Magistrate, Hathras, are hereby quashed., This application under Section 482 of the Criminal Procedure Code is, accordingly, allowed. There shall be no order as to costs.
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Criminal Original Petition (Madras) No. 15546 of 2017 and Criminal Miscellaneous Petition (Madras) Nos. 10350 & 11272 of 2017. Balamurugan @ Bala – Petitioner. State Representative by the Inspector of Police, District Crime Branch, Tirunelveli (Crime No. 21 of 2017). N. Sandeep, the District Collector, Office of the District Collector, Tirunelveli District – Respondent., Prayer: Criminal Original Petition filed under Section 482 of the Criminal Procedure Code to call for the records in connection with the FIR in Crime No. 21 of 2017 on the file of the first respondent for alleged offences under Section 501 of the Indian Penal Code and Section 67 of the Information Technology Act, 2000 and to quash the same as illegal., This petition has been filed seeking to quash the First Information Report in Crime No. 21 of 2017 on the file of the first respondent police. The second respondent, the de facto complainant, was working as the District Collector at the relevant time and on 31 October 2017 lodged a complaint with the first respondent police on the following grounds: the accused, who is the petitioner, published a cartoon on his personal Facebook page on 24 October 2017 regarding the self‑immolation incident that took place on 23 October 2017. In the cartoon he portrays the burning body of a baby, which was watched by three persons, without clothes and carrying currency notes to cover their private parts. The three persons are named as the District Collector, the Superintendent of Police and the Honourable Chief Minister of Tamil Nadu. The cartoon is highly humiliating and defamatory, was published without proper verification of the facts, and has prevented the Government officers from discharging their duties because of the false accusation., On the basis of the complaint given by the second respondent, a case in Crime No. 21 of 2017 was registered for offences punishable under Section 501 of the Indian Penal Code and Section 67 of the Information Technology Act, 2000., When the investigation was undertaken, the accused preferred this petition to quash the First Information Report on the following grounds: the petitioner was arrested on 5 November 2017 without following the dictum laid down in D.K. Basu's case and later was released on bail; the first respondent police have no jurisdiction to register a case as it clearly falls under Section 199 of the Criminal Procedure Code; the offence under Section 67 of the Information Technology Act is a non‑cognizable offence and the police have no right to register the case and investigate without prior permission under Section 152 of the Criminal Procedure Code; the First Information Report has been filed against the accused's freedom of thought and expression, which is guaranteed to citizens under Article 19(1) of the Constitution of India., In the counter affidavit filed by the first respondent, it is mentioned that investigation was started, statements of witnesses were recorded and the investigation was almost completed, and only because of the interim order passed by the Madras High Court, they are not in a position to file the final report. The facts and aspects raised in the petition cannot be entertained at this stage., The short point which arises for consideration in this petition is exactly similar to that dealt with by the Madras High Court in Criminal Original Petition (Madras) No. 13285 of 2013 dated 5 April 2008. A cartoon in dispute in that case related to the internal affairs of a political party. The Court, by the order, compared the cartoon with the story of the capseller and the monkeys. During the discussion, the Honourable Judge, known for his unique approach, compared the cartoon now under dispute with that one., The question which arises for consideration is where the fundamental right of freedom of thought and expression must begin and where it must end. Freedom of thought and expression is subject to the limitations set out in Article 19(2) of the Constitution of India. Like any other citizen, a cartoonist is also bound by law and, in the form of a cartoon, he cannot defame anyone; this is the settled position of law., Moreover, in recent times another problem created by a cartoonist worldwide is the Toon controversy. That cartoon was about the Prophet Muhammad and created controversy throughout the world. The discussion emanating from this episode concerns the limitations of freedom of speech and expression as well as the principles of hate speech. In a democratic country, freedom of thought, expression and speech are the foundations upon which democracy survives; without them there can be no democracy and therefore no evolution of human society. However, as mentioned earlier, these freedoms have their own limitations. The determining factor is the context; words spoken or cartoons drawn, if taken away from the context, lose their soul and life., Here, as mentioned earlier, the petitioner wanted to express his anger, grief and criticism regarding the inability of the administration, both executive and police, to contain the collection of exorbitant interest by money lenders. Three lives were lost in the premises of the Collectorate over the demand of exorbitant interest by a money lender. The problem does not pertain to the grief, criticism or social interest the petitioner wanted to highlight, but the manner in which it was expressed created controversy. Depicting officials from the head of the executive down to the district police in that form humiliated the Collector of Tirunelveli. An ordinary person may view the cartoon as an exaggeration, as a sign that authorities are not taking proper steps, or as highly obscene. The depiction created humiliation in the mind of the Collector, leading to the complaint. The point that arises for consideration is whether the cartoon is obscene and highly defamatory. The question of obscenity does not arise., The learned counsel for the petitioner submits that the judgment of the Honourable Supreme Court in Ranjit D. Udeshi v. State of Maharashtra, followed in several judgments, particularly in the famous judgment in Maqbool Fida Husain v. Raj Kumar Pandey, states: whether the work is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort. Where art and obscenity are mixed, art must be so preponderant as to throw the obscenity into the shadow, or the obscenity must be so trivial and insignificant that it can have no effect and may be overlooked., The intention of the petitioner in depicting the people in such a form can be easily understood. He wants to express his grief that the authorities should be ashamed of themselves for the inability or inaction in containing the demand of exorbitant interest by money lenders. He alleges that they protect their shamelessness with currency notes. The intention is not to defame the authorities but to expose the gravity of the issue. Section 499 of the Indian Penal Code defines defamation; the ingredients are: (i) making or publishing any imputation concerning any person; (ii) such imputation must be made by words either spoken or intended to be read or by visible representations; (iii) the imputation must be made with the intention to harm, or with knowledge or reason to believe that such imputation will harm the reputation of the person concerned., It is to be noted that what the petitioner intended, as mentioned earlier, was to express his anger. This cannot be construed as an intention to indulge in obscenity or defamation. The complaint by the second respondent states that the intention of the petitioner is to defame the Chief Minister as well as the Government officials, but his intention is not so; at most it is an exaggeration of inaction on the part of the officials. The context shows that it does not contain any criminality. Ethical questions may arise, but the Court cannot teach ethics to the people; it is for society to evolve and follow ethical standards., Before concluding, in the words of Benjamin Franklin, 1722: 'Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech, which is the right of every man, as far as by it he does not hurt or control the right of another; and this is the only check it ought to suffer, and the only bounds it ought to know.' Two centuries later it remains difficult in law to draw the outermost bounds of freedom of speech and expression, the limit beyond which the right would fall foul and can be subordinated to other democratic values and public law considerations, so as to constitute a criminal offence. The difficulty arises in ascertaining the legitimate countervailing public duty, and in the proportionality and reasonableness of the restriction which criminalises written or spoken words. Further, criminalisation of speech is often demarcated by past and recent significant events affecting the nation., With the above observations, continuing the investigation against the petitioner will serve no purpose. In my considered opinion, no criminality is involved in the cartoon and therefore the criminal proceedings are liable to be quashed., Accordingly, this Criminal Original Petition stands allowed. The First Information Report in Crime No. 21 of 2017 on the file of the first respondent stands quashed. Consequently, the connected miscellaneous petition is closed.
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Number HHC/VIG/Misc. Instructions/93-V-W-33 dated Shimla, 3 June 2022. From the Registrar (Vigilance), High Court of Himachal Pradesh, Shimla 171001. To all the Judicial Officers in Himachal Pradesh. Subject: Issuance of instructions regarding acceptance of downloaded copies of bail orders and interim orders passed by the Honourable High Court., Sir/Madam, it has been noticed by the Honourable High Court that whenever litigants and lawyers submit downloaded copies of bail orders and interim orders passed by the Honourable High Court before the trial court, the presiding officers of the trial courts insist on certified copies of such orders. This practice is cumbersome, causing inconvenience to litigants and contravening the fundamental rights of under‑trials. You are therefore requested to accept the downloaded copies of bail orders and interim orders passed by the Honourable High Court if they are attested as true copies by the counsel representing the parties. However, before accepting such orders, they may be verified on the High Court website. The above instructions must be followed in letter and spirit., Yours faithfully, Registrar (Vigilance)., Copy forwarded for information to: the Principal Private Secretary to the Honourable Chief Justice; all the Additional Registrars and Deputy Registrars of this Registry; all the Secretaries to the Honourable Judges; the Secretary, Private Secretary, Personal Assistant to the Registrar General, Registrar (Vigilance), Registrar (Judicial), Registrar (Rules), Registrar (Administration), District and Sessions Judge (Leave), Training Reserve, Registrar (Accounts), Registrar (Establishment) and the Civil Procedure Code; all the Assistant Registrars and Section Officers (Judicial Branch) of this Registry; the Technical Director, National Informatics Centre, Himachal Pradesh High Court, Shimla, with a request to upload the same on the High Court website; and the Guard File.
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Preface: Whereas to imbue greater transparency, inclusivity, and foster access to justice, it is expedient to set up infrastructure and the framework to enable live streaming and recording of proceedings. These rules are framed by the High Court of Jammu and Kashmir and Ladakh in the exercise of powers under Article 225 and Article 227 of the Constitution of India and all other powers enabling in this behalf., Short Title, Applicability and Commencement: These Rules shall be called the Live Streaming and Recording of Court Proceedings Rules of the High Court of Jammu and Kashmir and Ladakh, 2023. These Rules will apply to the High Court of Jammu and Kashmir and Ladakh and to the courts and tribunals over which it has supervisory jurisdiction. These rules will come into force from the date notified by the High Court of Jammu and Kashmir and Ladakh., Definitions: Archival Data means audio and visual data recorded during the conduct of the proceedings and retained by the High Court of Jammu and Kashmir and Ladakh. Bench means the Judge or Judges assigned to hear the case filed before the High Court of Jammu and Kashmir and Ladakh. Chief Justice means the Chief Justice of the High Court of Jammu and Kashmir and Ladakh, including the Acting Chief Justice. Communication Device means a hardware device capable of transmitting analog or digital signal over the telephone and other communication devices, whether wired or wireless. Court means the High Court of Jammu and Kashmir and Ladakh and/or all the courts or tribunals under its supervision under Article 227 of the Constitution of India. Court Master or Reader means the court staff that assists the High Court of Jammu and Kashmir and Ladakh in the conduct of proceedings, including updating of the cause lists published on the display board. Court Premises means and includes buildings and complexes under the authority of the High Court of Jammu and Kashmir and Ladakh. Designated Officer means the Registrar (Information Technology) or any other officer mandated to carry out the function of granting access to copies of recordings under these rules. Designated Venue means and includes a courtroom or any other place where the proceedings are conducted, whether within the court premises or at a remote location. Hardware means and includes equipment to be installed for live streaming and recording of proceedings or any ancillary activity. IT Committee means and includes a committee constituted by the Chief Justice to deal with matters concerning information and communication technology, also referred to as the High Court Computer Committee. Live‑stream, Live‑streamed, Live streaming means and includes a live television link, webcast, audio‑video transmissions via electronic means or other arrangements whereby any person can view the proceedings as permitted under these rules. Proceedings mean and include judicial proceedings, Lok Adalat proceedings, full‑court references, official transfer, elevation, retirement, farewells organised by the High Court of Jammu and Kashmir and Ladakh. Recording means audio and video data of proceedings stored in electronic format, whether it is live streamed or not. Recording Device means and includes a device capable of recording images or sound, including but not limited to camera, audio recorder, video recorder, mobile telephone, or screen recorder. Registrar (Information Technology) means and includes any officer so designated by the Chief Justice of the High Court of Jammu and Kashmir and Ladakh. Remote Location means and includes a geographical location, different from the court premises, from where proceedings are conducted. Transcript means the official written record of the proceedings published as per the directions of the High Court of Jammu and Kashmir and Ladakh., Hardware Placement and Control: Cameras will be ordinarily installed in the courtroom covering at least five angles; one towards the bench, the second and third towards the advocates engaged in the concerned matter, the fourth towards the accused where applicable and the fifth towards the deponent or witness as required. If the High Court of Jammu and Kashmir and Ladakh has employed an electronic evidence presentation system, an additional feed shall be captured there from. A remote‑control device shall be provided to the presiding judge on the bench to pause or stop the live streaming at any time. Advocates, witnesses, accused, or any other person permitted by the bench shall use appropriate microphones while addressing the High Court of Jammu and Kashmir and Ladakh. In so far as a remote location is concerned, appropriate hardware will be deployed to the extent practicable, bearing in mind the provisions made in the aforementioned sub‑rules. Where proceedings are conducted through weblinks, including video conferencing services, appropriate software and hardware will be employed, if necessary, to generate an integrated feed for live streaming., Requisitioning and Positioning of Human Resources: A dedicated control room shall be set up for every court complex. The dedicated control room shall, inter alia, comprise an officer of the High Court of Jammu and Kashmir and Ladakh, technical and video‑recording experts. The dedicated control room will monitor and track proceedings as they are live streamed, recorded, and transcribed and shall ensure that nothing uncivil or inappropriate is streamed in the public domain. The coverage of proceedings will be coordinated by the technical experts under the direct supervision of the Registrar (Information Technology) or his or her nominee. The Registrar (Information Technology) and/or his or her nominee shall be subject to the directions of the IT Committee for the overall implementation of live streaming and recording of proceedings., Personnel positioned in the Court: In addition to the court master and court staff attached to the bench, technical experts shall be appointed or deputed in each of the court premises or designated venue to enable the live streaming of proceedings. The technical experts shall function under the overall supervision of the dedicated control room., Live streaming and Recording of Proceedings: Subject to the exclusions contained within these rules, all proceedings will be live streamed by the High Court of Jammu and Kashmir and Ladakh. The following will be excluded from live streaming: matrimonial matters, child adoption and child custody including transfer petitions arising thereunder; cases concerning sexual offences, including proceedings instituted under Section 376 of the Indian Penal Code, 1860; cases concerning gender‑based violence against women; matters registered under or involving the Protection of Children from Sexual Offences Act, 2012 (POCSO) and the Juvenile Justice (Care and Protection of Children) Act; matters registered under or involving the Medical Termination of Pregnancy Act, 1971; in‑camera proceedings as defined under Section 327 of the Code of Criminal Procedure, 1973 or Section 153B of the Code of Civil Procedure, 1908; matters where the bench records in writing that publication would be antithetical to the administration of justice; cases which, in the opinion of the bench, may provoke enmity amongst communities likely to result in a breach of law and order; recording of evidence, including cross‑examination; privileged communications between the parties and their advocates, cases where a claim of privilege is accepted by the High Court of Jammu and Kashmir and Ladakh, and non‑public discussions between advocates; and any other matter in which a specific direction is issued by the bench or the Chief Justice. Live streaming in certain cases may be restricted to final arguments. The court master or reader shall duly inform the parties, before the commencement of the proceedings, that the proceedings are being live streamed and that objections, if any, should be articulated at that juncture to the concerned bench., Objections and Decisions: Objections, if any, to live streaming may be raised at the time of institution of the case or at any later stage. The final decision in that behalf shall be of the bench. An objection to live streaming, if any, shall be raised by the party by filing the form prescribed in Schedule I. A person objecting to live streaming at a later stage shall do so by filing the form prescribed in Schedule II. The final decision as to whether to allow the live streaming of the proceedings or any portion thereof will be of the bench, guided by the principle of an open and transparent judicial process. The decision of the bench shall not be justiciable, provided that, in case of difference of opinion, the matter can be referred to a larger bench for a final decision., Recording Usage in Non‑Live‑Streamed Cases: In cases where the proceedings are not live streamed, the recording shall be maintained for usage by the High Court of Jammu and Kashmir and Ladakh and the appellate courts, subject to the following: access to the recording of the testimony of witnesses will not be given until such time that the evidence is recorded in its entirety; transcript of the recordings would be made available to the advocate or litigant‑in‑person; in case of a litigant‑in‑person who is also a witness, the bench in its discretion will decide the stage at which the litigant‑in‑person should have access to the recordings of the testimonies concerning the other witnesses., Criminal Matters Recording: In criminal matters, the testimony of victims and witnesses will be recorded for the exclusive use of the concerned bench and the appellate courts, as per the direction issued in that behalf. The anonymity of the victims and witnesses shall be maintained in the recordings via dummy names, face‑masking, pixelation and/or electronic distortion of voice, as and when directed by the High Court of Jammu and Kashmir and Ladakh., Prohibition of Unauthorized Recording: Audio‑video recording or recording of proceedings by any other means, beyond the mandate of the present Rules, is expressly prohibited., Manner of Recording of Proceedings: The cameras in the High Court of Jammu and Kashmir and Ladakh shall be as per the hardware placement rule. Cameras shall not ordinarily audio‑video record the media persons and the visitors present during the proceedings. The following will ordinarily not be live streamed or saved in the archival data or transcribed: discussions between the judges on the bench; instructions given by a judge to the administrative staff during the proceedings; any communication, message or document given by the court master or reader to the bench; documents given to the judge during the proceedings; notes taken down by the judge during the proceedings; notes made by an advocate either on paper or in electronic form for assistance while making submissions before the bench; communication between the advocate and client, inter se, and communications which are not submissions exchanged between the advocate and the court. If any of these circumstances occur, the monitor will display the message “Live streaming paused as per applicable Rules”. If the judge concerned on the bench wishes to opt out of live streaming while dictating the order or oral judgment, live streaming will be paused during that period and the monitor will display the message “Order dictation in progress”. Likewise, when the bench rises for recess or otherwise, the live streaming will be paused and the monitor will display the message “Court not in session”., Storage and Access: The recordings will be archived. Recordings may be uploaded, wholly or in part, on the High Court of Jammu and Kashmir and Ladakh website or made available on other digital platforms, as directed by the High Court of Jammu and Kashmir and Ladakh. Access to copies of the recordings not uploaded will be sanctioned by the designated officer, who will act as per law. An application for copies of recordings shall be made in the form prescribed in Schedule III. The archived data should ordinarily be retained by the High Court of Jammu and Kashmir and Ladakh for at least six months, subject to special directions issued by the concerned bench in a particular case. The Chief Justice may issue practice directions regarding the cases and the period for which archived data will be preserved. Archived data shall be stored in electronic devices in encrypted form with a specific hash value., Relay of Proceedings and Recordings: Personal information such as date of birth of parties, home address, identity card number, bank account information, and the personal information of related parties, such as close relatives, witnesses and other participants, will be deleted or muted during live streaming. Any one of the masking techniques provided in the rules may be adopted. However, such proceedings will be preserved in the archival data. The advocates and litigants‑in‑person may request the bench to redact personal and sensitive information of the kind referred to in this rule. Subject to the limitations contained in these rules, the live stream shall commence as soon as the bench assembles and instructs the court staff to start the proceedings and shall end when the bench signals its conclusion for the day. There shall be a delay of ten minutes in streaming, which may be changed as per the direction of the High Court of Jammu and Kashmir and Ladakh. The live streaming shall be carried out from the designated venue as decided by the bench. The content of the recording will be vetted and shall be posted, usually within three days of the conclusion of the proceedings, on the High Court of Jammu and Kashmir and Ladakh website or on such digital platforms as directed by the High Court of Jammu and Kashmir and Ladakh., Disclaimers, Prohibitions and Restrictions: The daily cause list published on the website of the High Court of Jammu and Kashmir and Ladakh shall contain requisite information and disclaimer regarding live streaming. The archival data shall not constitute the official record of the court proceedings unless otherwise directed by the bench. No person or entity, including social media platforms, shall record, print, or disseminate live streamed proceedings or archival data without authorization. Any person or entity acting contrary to this provision will be prosecuted as per law. The High Court of Jammu and Kashmir and Ladakh shall have the exclusive copyright in the recordings and archival data. Unauthorised usage of the live stream will be punishable as an offence under the Indian Copyright Act, 1957, the Information Technology Act, 2000, and other provisions of law, including the law of contempt. Any party or litigant‑in‑person accessing the live stream will be bound by these Rules. The live stream shall not, without the prior written authorisation of the High Court of Jammu and Kashmir and Ladakh, be reproduced, transmitted, uploaded, posted, modified, published or republished in any form. The use of authorised recordings in their original form may be permitted by the High Court of Jammu and Kashmir and Ladakh, inter alia, to disseminate news and for training, academic and educational purposes. Authorised recordings handed over for the aforesaid purposes shall not be further edited or processed and shall not be used for commercial, promotional or advertising purposes. No person shall use a recording device for recording or transcribing the proceedings, other than those authorised by the High Court of Jammu and Kashmir and Ladakh., Use of Communication Device or Recording Device During Proceedings: A person must not use a communication device or a recording device to disturb proceedings in a manner that may cause concern to a witness or other participants or allow a person who is not a participant to receive information about the proceeding to which the person is not otherwise entitled. During proceedings, all personnel shall follow the instructions of the presiding judge, adhere to courtroom etiquette and discipline, and shall not engage in audio or video recording, taking screenshots or using mobile communication tools to relay the proceedings. Violation of these provisions will result in prosecution as per law and the bench may also direct seizure of the communication device or recording device., Transcription and Access: Transcripts shall be prepared of recordings only when directed by the High Court of Jammu and Kashmir and Ladakh. The transcripts may be translated into other scheduled languages. Recordings that are uploaded will be made accessible for differently‑abled persons., Dedicated Rooms for Live Streaming: In order to decongest the courtrooms, dedicated rooms for viewing the live stream may be made available within the court premises. Access shall be given to law researchers, staff, litigants, academicians and media personnel authorised to enter the court premises upon receipt of necessary permissions or approvals. Appropriate arrangements shall be made to enable viewing of live streams from multiple benches within these rooms. Special arrangements will be made for differently‑abled persons., Power to Relax: The High Court of Jammu and Kashmir and Ladakh may, if satisfied that the operation of any rule is causing undue hardship, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as may be stipulated to deal with the case in a just and equitable manner., Reference to Words and Expressions: Words and expressions used and not defined in these rules shall have the same meaning as assigned to them by the law for the time being in force, including the Information Technology Act, 2000, the Code of Civil Procedure, the Code of Criminal Procedure, the Indian Evidence Act, 1872, and the General Clauses Act., Residual Provisions: Matters concerning which no express provision is made in these rules shall be decided by the High Court of Jammu and Kashmir and Ladakh consistent with the principle of furthering the interest of justice.
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Reserved on: 21.12.2022 Pronounced on: 05.01.2023 Through: Ms. Gayatri Nandwani Sharda, Advocate versus Through: Mr. Naresh Kumar Chahar, Appellant for the State with Sub Inspector Sandeep Yadav, Police Station Malviya Nagar., The present appeal has been filed by the appellant under Section 374 read with Section 482 of the Code of Criminal Procedure, 1973 seeking setting aside of the impugned judgment dated 19.03.2009 and order on sentence dated 30.03.2009 passed by the learned Additional Sessions Judge, South, Patiala House Court, New Delhi in Sessions Case No. 124/07, whereby the appellant was convicted for offences punishable under Sections 399 and 402 of the Indian Penal Code, 1860 and Section 25 of the Arms Act, 1959., The facts on which the present FIR was registered are that on 11.07.2007 Sub Inspector K.C. Kaushik, together with Head Constable Pritam Singh, Constable Ram Saran, Constable Maz Ahmed and later Constable Dev Lagan, were on patrolling duty. A secret information was received by Sub Inspector Kaushik that in MCD/ACC Park, Panchsheel Park, five to six miscreants were sitting intending to commit a crime. The information was passed on to the Station House Officer, Police Station Malviya Nagar, by telephone. Four to five passersby were requested to join the raiding party but they declined and left without revealing their names and addresses. Subsequently, Sub Inspector Kaushik and the raiding team reached Badarpur Service Lane near Panchsheel Park at about 10.00 PM. Head Constable Pritam Singh heard the conversation of the accused persons and reported that five accused were sitting while one had a country‑made revolver in his hand. They were discussing tying the guard of a person named Sabharwal and taking away valuables kept in the kothi, and they threatened to open fire if anyone raised alarm. The raiding team surrounded the accused; four accused named Omkar, Sukhpal, Sunil and Suraj were overpowered. A loaded country‑made revolver was recovered from accused Sukhpal, a button‑dar knife and a raxine bag containing a 2.5 metre long plastic rope and a black coloured cloth were recovered from accused Sunil, and a knife was recovered from accused Omkar. The fifth accused escaped and could not be arrested. A chargesheet was prepared for offences punishable under Sections 399 and 402 of the Indian Penal Code read with Section 25 of the Arms Act, and charges were framed against the four arrested persons. By the impugned judgment, the four accused were convicted for offences under Sections 399 and 402 of the Indian Penal Code as well as under Section 25 of the Arms Act. Although no arms were recovered from accused Suraj, he was also convicted under Section 25 of the Arms Act., The learned counsel for the appellant argues that, as per the mandate of Sections 399 and 402 of the Indian Penal Code, the essential ingredient for the offence of dacoity is the association of at least five persons, whereas in the present case only four persons were arrested and the fifth person could not be arrested. It is contended that the fifth person could never be found and therefore there was no fifth person present to constitute the offence. It is further submitted that the accused were allegedly preparing to commit dacoity at the house of Sabharwal by tying his guard, but there is no investigation into the existence of such a person or house. Additionally, a perusal of the trial court record reveals a lack of legal assistance rendered to the accused, including the present appellant, during the trial., The appellant for the State argues that the accused persons have been rightly held guilty of preparation for committing dacoity. It is stated that the name of the fifth accused is mentioned in the disclosure statement, although that person ran away when the raiding party reached the spot., The arguments of both sides have been heard and the records of the case have been perused., The prosecution alleges that Head Constable Pritam Singh overheard the accused making preparations and hatching a conspiracy to commit dacoity at the house of Sabharwal after tying his guard. However, the material on record does not identify the place where the alleged preparation was to take place, nor were the accused made to point out the location during investigation, casting serious doubt on the prosecution's case as to whether such a house actually existed. The FIR states that during the search of the appellant Sunil, five black cloth masks and a plastic rope measuring 2.5 metres were recovered, but the testimony of all witnesses, including the investigating officer, is silent on this point. The seizure memo regarding the bag, plastic rope and masks is on record, yet no witness spoke about it and the seized property was not produced before the Patiala House Court, New Delhi, nor identified by any witness. The investigating officer has not explained in his statement or in the FIR how the rope was measured to be 2.5 metres. This omission indicates that the trial court failed to appreciate this crucial evidence., The Patiala House Court, New Delhi notes that the trial court failed to provide effective legal aid to the accused. The record shows that five police witnesses were examined, none of whom were cross‑examined, and the accused were not represented by counsel nor provided legal aid counsel. Although an order dated 03.09.2008 records that the accused requested legal aid, all five witnesses had already been examined. Order sheet dated 18.02.2008 mentions that counsel for the accused was present, but the name of the counsel is not mentioned, and the material witnesses were examined without any cross‑examination. It is clear that the accused remained unrepresented and unaided during the entire effective stages of the trial., The Constitution of India guarantees certain fundamental rights to the accused which stand unfettered during the trial and imposes duties upon the State. Article 21 provides that no person shall be deprived of life or personal liberty except according to procedure established by law. Article 22 provides that a person who is arrested shall be informed of the grounds of arrest and shall have the right to consult and be defended by a legal practitioner of his choice. Article 39A mandates that the State shall secure equal justice and provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities., The trial in this case for a heinous offence attracting punishment up to ten years was conducted in a casual manner. The trial court did not deem it appropriate to appoint any counsel to defend the appellant, neither when the counsel engaged by him failed to appear at the commencement of the trial nor at the time of recording the prosecution witnesses’ evidence. Consequently, the accused did not have legal aid at any stage of the trial. The appointment of an Amicus Curiae at a much later stage, after the entire evidence had been recorded, resulted in the Amicus Curiae appearing only twice and not being present during the recording of the statement under Section 313 of the Code of Criminal Procedure, nor during the hearing of final arguments on 07.03.2009. The accused therefore remained unrepresented throughout the trial., In Kartar Singh v. State of Punjab (1994) 3 SCC 569, the Supreme Court explained that cross‑examination is an acid‑test of the truthfulness of a witness’s statement. Section 137 of the Evidence Act defines cross‑examination, and Sections 139 and 145 prescribe its mode. The objects of cross‑examination are to destroy or weaken the evidentiary value of the adverse witness, to elicit facts favourable to the cross‑examining party, and to impeach the credibility of the witness., The Apex Court reiterated this view in Jayendra Vishnu Thakur v. State of Maharashtra (2009) 7 SCC 104, observing that the right to cross‑examine a witness is both a natural and statutory right under Section 137 of the Evidence Act. An accused has the right to be informed of this right, and any exception must be expressly provided by statute., The Supreme Court has held that the right to a fair trial is inherent in the right to life and personal liberty. In Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374, the Court emphasized that a fair trial involves balancing the interests of the accused, the victim and society, and that the courts have an overriding duty to maintain public confidence in the administration of justice., The Court has also emphasized the importance of legal aid in several judgments. In M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544, the Supreme Court stressed that lawyer’s services are an essential ingredient of fair procedure. In Mohd Hussain v. State (Govt. of NCT of Delhi) (2012) 2 SCC 584, the Court observed that the trial court’s failure to appoint counsel deprived the accused of a real opportunity to cross‑examine witnesses, thereby violating the right to a fair trial., The absence of cross‑examination in the present case resulted in a gross miscarriage of justice. The appellant was denied the opportunity to challenge the testimony of witnesses, and poverty prevented him from engaging counsel of his choice. Despite numerous judgments emphasizing the need for effective legal aid, no such aid was provided to the accused throughout the trial, especially at the stage of final arguments and recording of evidence. This constitutes a violation of the fundamental right to a fair trial guaranteed under Article 21 of the Constitution.
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It is to be remembered that in India, the absence of fair and proper trial is not only a violation of fundamental principles of judicial procedure and constitutional mandate, but also a violation of mandatory provisions of Section 304 of the Criminal Procedure Code. The assistance of a legal counsel, in a meaningful way, was absent throughout the trial. The judiciary has a crucial role to play in ensuring enforcement of human rights and has to meet the great challenge towards making justice accessible in practical terms to the poor in the country., It is important to understand the reality of disadvantage of an individual and ensure proactive steps to prevent injustice by providing effective legal aid in order to deliver equality in justice. The constitutional guarantees of free and fair trial should remain meaningful to the poor of the country and the judiciary has to remain vigilant to protect the interests of the disadvantaged groups also., This is a classic case where all canons of justice were kept aside while passing the impugned judgment as the accused was not provided legal aid which he was entitled to get under the Constitution of India as well as under the Criminal Procedure Code. The accused has faced trial for the last fifteen long years. At times, though the agony of a person undergoing trial is not mentioned on the paper while a judge writes a judgment, the trial which has been prolonged beyond fifteen years is an agony itself. The stress of facing a criminal trial is punishment unannounced in a case, as the present one., Considering the overall facts and circumstances of the case, the Supreme Court of India judicial conscience does not permit to now remand back the matter and direct the learned Trial Court to again conduct a fresh trial. In view thereof, the accused is acquitted of all the charges since the trial in itself was vitiated due to non‑assistance of the accused by legal aid counsel, besides the existence of several inconsistencies and lacunae in the case of prosecution before the learned Trial Court., The bail bond, if any, stands canceled. The surety stands discharged., Accordingly, the appeal is allowed in the above terms., A copy of this judgment be circulated by the learned Registrar General of the Supreme Court of India to all the District Courts in Delhi and also be sent to the learned Director (Academics), Delhi Judicial Academy for doing the needful.
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Shiv Rahul Uttam Phadtare Applicant Sarika Rahul Phadtare Respondent Sarika Rahul Phadtare Applicant. Rahul Uttam Phadtare Respondent. Ms. Sangeeta Salvi for the Applicant in Miscellaneous Civil Application No.284/2022 and for the Respondent in Miscellaneous Civil Application No.191/2022. Mr. Akshay Kapadia for the Respondent in Miscellaneous Civil Application No.284/2022 and for the Applicant in Miscellaneous Civil Application No.191/2022., Heard learned advocate for the applicant‑wife in Miscellaneous Civil Application No.191 of 2022 and learned advocate for the applicant‑husband in Miscellaneous Civil Application No.284 of 2022., These are two transfer applications. Miscellaneous Civil Application No.191 of 2022 is filed by the wife for transfer of the restitution petition filed by the husband before the Family Court, Pune and she wants transfer of the same to the Court of Civil Judge, Senior Division, Thane. Before the Court of Civil Judge, Senior Division, Thane her petition for divorce is pending. Whereas the husband is praying for transfer of the divorce petition filed by the wife to the Family Court, Pune wherein his restitution petition is pending., Both spouses have not filed replies to the transfer applications filed by each of them. They submitted that averments in their respective applications are sufficient. So by consent both these applications are heard on the basis of averments made in their individual applications., After hearing both learned advocates, one thing is clear and that is both the petitions need to be tried together by one and the same court. The reason is if both the petitions are tried by separate courts, there may be a possibility of conflicting orders and it may lead to problems in execution. It is also for the reason that it will be in the best interest of the parties considering the witnesses to be examined by both of them in each of these petitions. So in view of the above, the question is whether the Court of Civil Judge, Senior Division, Thane is the appropriate forum or whether it is the Family Court, Pune which is the appropriate forum., Learned advocate for the husband invited my attention to the provision of Section 21A of the Hindu Marriage Act. He has also read that provision. It contemplates transfer of petitions consisting of various reliefs mentioned therein. So far as the present two petitions are concerned, one of the relief sought in one petition is for divorce, whereas the husband is seeking restitution. Admittedly, the prayer for restitution is not mentioned under the provision of Section 21A of the Hindu Marriage Act. So both these petitions need to be decided as per Section 24 of the Code of Civil Procedure., In support of the prayer for transfer, learned advocate for the wife invited my attention to various grounds mentioned in paragraph 28 of her transfer petition. It consists of her financial condition, atrocities alleged to be committed on her by the husband, danger to her life. Whereas all these allegations are denied by the husband through his advocate by way of arguments., Learned advocate for the husband invited my attention to averments in paragraph 5 and various sub‑clauses of paragraph 5. It is submitted that two children born out of the said wedlock are residing at present with their father. Both are school‑going children. They are being taken care of by the mother, Kaki (aunt) and cousin sister of the husband. There is also emphasis on the distance between Pune and Thane. The husband has also shown readiness to reimburse travelling expenses to the wife. It is also emphasized that the wife is required to travel from Navi Mumbai to Thane for attending the court at Pune. There is also emphasis that after both spouses started residing separately from 25 July 2021, initially the wife stayed at her husband’s house at Satara and now she claims that she is residing at Kopar Khairane, Navi Mumbai. It is also submitted that the wife claims that she is unemployed and being a housewife it is not convenient for her to attend the Family Court, Pune., The order dated 20 April 2022 passed by the Family Court, Pune in Miscellaneous Civil Application No.79 of 2022 is relied upon on behalf of the husband. In that matter the Family Court, Pune was pleased to reject the transfer request made by the wife and on the other hand directed the husband to pay a certain sum of money towards travelling allowance., By way of reply, it is submitted that the observations in that order are factual observations. It is submitted that the application for grant of interim alimony filed by the wife and also custody petitions are pending before the Court of Civil Judge, Senior Division, Thane. It is true that the allegations and counter‑allegations made by both spouses against each other cannot be looked into by the Family Court, Pune for deciding this transfer application except for limited purpose. If the wife comes with a grievance that during cohabitation she was being ill‑treated to a great extent and on that background if there is danger to her life to visit the place where the husband is residing, certainly it can be considered as a ground for transfer. In this case, to a certain extent, this ground is taken by the applicant‑wife. At the same time it is true that she is not coming with the case that she has approached any authority so far as danger to her life is concerned., When the Family Court, Pune has considered the grounds for transfer taken by both spouses, after balancing them this court feels that the petition for restitution filed by the husband at Pune needs to be transferred to the Court of Civil Judge, Senior Division, Thane. It may be true that the husband has shown his bonafides to pay travelling cost. It may be true that at present he is having custody of both children and certainly being the father he is required to look after them. At the same time he has said that his mother, aunt and his sister are taking care. It may be true that the husband is undertaking a painting contract and as such he is required to devote some time towards that., Even though this reason may be of some importance, the fact that the applicant in Miscellaneous Civil Application No.171 of 2022 is a lady, her inconvenience needs to be given more priority because the law considers a woman as belonging to a weaker section of society and needs more protection. Except the grounds taken by the husband as stated above, there are no other special grounds to say that the applicant‑wife is having more financial means to take care of herself and also having all means of transport at her disposal to attend the Pune court, the request by the husband cannot be accepted. Hence the Family Court, Pune is inclined to allow the transfer application by the wife and inclined to reject the transfer application of the husband. The observations made by this court in the above‑referred order are factual observations. Hence it is not useful to the husband., In view of that the following order is passed: (i) Transfer Application No.284 of 2022 filed by the applicant‑husband is rejected. (ii) Transfer Application No.191 of 2022 filed by the applicant‑wife is allowed. (iii) The proceedings of Petition No. A.2202 of 2021 pending before the Family Court, Pune are transferred to the Court of Civil Judge, Senior Division, Thane for inquiry and disposal as per law. (iv) The petition at Thane is fixed on 17 September 2022 and in view of that the applicant‑husband is directed to attend the Court at Thane on 17 September 2022 without any further notice. (v) The Civil Judge, Senior Division, Thane is directed to try both the proceedings together and dispose of them as per law., At this stage learned advocate for the applicant‑husband prays for a stay for a period of six weeks. It is opposed on behalf of learned advocate for the wife. The stay is granted for a period of six weeks to the present order., Till that time the parties are at liberty to mutually decide about interim relief by interacting with each other through respective counsel or other marriage counsellors.
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Company Appeal (AT) (Insolvency) No. 327 of 2024 Ravi Kumar Appellant versus Chevrox Construction Pvt. Ltd. & Another Respondents. Present: For Appellant: Mr. Abhijit Sinha, Senior Advocate with Mr. Nakul Mohta, Mr. Gursharan H. Virk, Ms. Riya Dhingra, Advocates. For Respondents: Mr. Malak Bhatt, Mr. Munjaal Bhatt, Ms. Neeha Nagpal and Mr. Mandeep Singh, Advocates, and R. C. A. Subodh Kumar Agrawal, Interim Resolution Professional. (Hybrid Mode) 16 February 2024: This Appeal has been filed against the order dated 9 February 2024 passed by the National Company Law Tribunal, Kolkata Bench, Court 1 in an application under Section 9 of the Insolvency and Bankruptcy Code. The Adjudicating Authority by the impugned order has admitted the Section 9 application and appointed an Interim Resolution Professional. This Appeal was filed by the Appellant on 13 February 2024, on which date the following order was passed by this Tribunal., 13 February 2024: Learned counsel for the Appellant submits that after the order dated 9 February 2024 admitting Company Appeal (AT) (Insolvency) No. 327 of 2024 Section 9 application filed by the Operational Creditor, there has been a settlement between the parties and as per the settlement part payment has already been made and the entire amount has to be paid by 19 February 2024 i.e. Monday. It is submitted that the Appellant is ready to pay the amount even before the agreed date. Respondent No. 1 has agreed to the settlement, as stated by learned counsel for Respondent No. 1. Learned counsel for the Appellant seeks liberty to file an affidavit/application bringing the settlement and details of payment on record. List this Appeal on 16 February 2024. In the meantime, the order dated 9 February 2024 passed by the National Company Law Tribunal, Kolkata Bench, Court 1 in Company Petition (Insolvency) No. 311/KB/2022 shall remain stayed., An interim application has been e-filed by the Appellant praying for allowing the application and setting aside the impugned order. In the application it is stated that the entire amount has been paid to the Operational Creditor., Learned counsel for the Respondent Operational Creditor appears and submits that he has received the entire amount., The Interim Resolution Professional appears and submits that he has made publication and he is to receive payment for his fee and expenses., In the facts of the present case, we direct the Appellant to pay fifty percent of the fee of the Interim Resolution Professional as directed by the Adjudicating Authority i.e. Rs. 1.50 lakh, Company Appeal (AT) (Insolvency) No. 327 of 2024, which shall cover expenses and fee of the Interim Resolution Professional. The said amount shall be paid to the Interim Resolution Professional within two weeks from today. Taking the application on record, we allow the application, set aside the impugned order dated 9 February 2024, close the Corporate Insolvency Resolution Process. The Appeal is disposed of.
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Sarabjit Kaur, Appellant, versus the State of Punjab & Another. Justice Rajesh Bindal. The Appellant, having failed before the Punjab and Haryana High Court, has filed the present appeal. A prayer was made for quashing of First Information Report No. 430 dated 16 October 2017 under Sections 420, 120B and 506 of the Indian Penal Code, 1860. The petition filed before the Punjab and Haryana High Court seeking quashing thereof was dismissed., Learned counsel for the appellant submitted that the appellant entered into an agreement to purchase a plot measuring one kanal on 27 May 2013 with Malkit Kaur, wife of Surender Singh, resident of Dhillon Colony, Near Electricity Grid, G.T. Road, Moga, Jagraon, District Ludhiana, Punjab. On that basis the appellant entered into an Agreement to Sell the same to Sarabjit Kaur, wife of Darshan Singh (respondent No.2) on 18 November 2013. The date for execution of the sale deed was fixed as 25 June 2014. It was categorically mentioned in the Agreement to Sell that at present the vendor was not the owner of the property. The appellant received a sum of five lakh rupees as earnest money and the date of registration of sale deed was fixed as 25 June 2014. The date for execution of sale deed was extended to 24 December 2014 on receipt of an additional sum of seventy‑five thousand rupees. A complaint was filed by Darshan Singh (complainant/respondent No.2), son of Jangir Singh, on 30 September 2015 with reference to the same alleged Agreement to Sell however against property dealers Manmohan Singh, son of Prakash Singh and Ranjit Singh alias Billa, son of Pal Singh. In the aforesaid complaint, reference was made to two other transactions entered into by Darshan Singh and the prayer was that an amount of twenty‑nine lakh thirty‑nine thousand five hundred rupees be recovered from the property dealers., The aforesaid complaint was investigated and finally on 18 May 2016, it was opined that the dispute was civil in nature and no police action was required. Darshan Singh made another complaint on 5 October 2016 with the same allegations without disclosing the fate of his earlier complaint. Referring to the earlier enquiry, the complaint was consigned to record on 23 January 2017. Thereafter, another complaint was made by Darshan Singh against the appellant, Ranjit Singh and Manmohan Singh. It is on the basis thereof that the First Information Report in question was registered under Sections 420, 120B and 506 of the Indian Penal Code against the appellant, Manmohan Singh and Ranjit Singh., The argument raised by learned counsel for the appellant is that respondent No.2, who claims to be the husband of the vendee, had filed two complaints earlier with the same set of allegations and those were consigned to record on the basis of a legal opinion that the case was civil in nature. In the first such complaint there were no allegations against the appellant; the dispute was purely civil. If the appellant failed to execute the sale deed for which the last date fixed was 24 December 2014, respondent No.2 could have availed his appropriate remedy of specific performance of the Agreement to Sell but no suit was filed. However, a third complaint was filed without disclosing the fate of the earlier two complaints. The First Information Report in question was registered on the basis of the complaint filed by respondent No.2 on 15 June 2017, nearly three years after the date fixed for execution of the sale deed. Respondent No.2 had never issued any notice prior to filing the complaint with the police seeking any remedy. A perusal of the three complaints filed by respondent No.2 clearly suggests that from the initial prayer for return of the amount paid by him, subsequently allegations of cheating were made. In the first complaint, while referring to different transactions, the allegation was only against the property dealers and not against the appellant, whereas in subsequent complaints the appellant was also implicated., Learned counsel for the State submitted that the charge sheet having been filed, the appellant can raise all the pleas before the Punjab and Haryana High Court. It is not a case for quashing of the First Information Report., Despite service of notice, respondent No.2, the complainant, has not appeared., The learned counsel for the parties were heard and the paper book was perused., On the material placed on record by the parties, it is evident that an Agreement to Sell was executed by the appellant in favour of the wife of respondent No.2, namely Sarabjit Kaur, for the sale of a plot measuring one kanal. The Agreement to Sell specifically mentions that the appellant/vendor is entitled to the property on the basis of the Agreement to Sell executed in her favour by Malkit Kaur on 27 May 2013. The last date fixed for registration of the sale deed was 25 June 2014, which was extended to 24 December 2014. There is nothing placed on record by the complainant or the State to show that, besides filing the criminal complaint, respondent No.2 had initiated any civil proceedings for execution of the sale deed on the basis of the Agreement to Sell or, alternatively, for return of the earnest money., A perusal of the first complaint made by respondent No.2 on 30 September 2015 shows that the prayer was for return of the amount paid by him with no allegation of cheating. It was filed only against Manmohan Singh and Ranjit Singh, the property dealers. Reference in the complaint was made to the Agreement to Sell executed between the parties and to two other Agreements to Sell. A prayer was made for getting an amount of twenty‑nine lakh thirty‑nine thousand five hundred rupees refunded from the property dealers. Although the complaint referred to the Agreement to Sell in question, there was no complaint against the appellant. The complaint was investigated by the Economic Offences Wing and a report was submitted to the Senior Superintendent of Police on 22 March 2016. On the basis of the report, a legal opinion was sought from the District Attorney, who opined that no criminal offence was made out and the complainant was at liberty to invoke the jurisdiction of the civil court. The opinion was accepted by the Senior Superintendent of Police, Ludhiana (Rural) on 18 May 2016., Thereafter, Darshan Singh (respondent No.2) made another complaint to the Director General of Police, Ludhiana on 5 October 2016, which was again investigated and found to be identical to the earlier complaint, with no criminal offence made out, and the second complaint was consigned to record. In the second complaint there was no reference to the earlier complaint filed by Darshan Singh., Still not satisfied with the result of the earlier complaint, respondent No.2 filed another complaint on 23 January 2017. Thereafter, another complaint was filed by respondent No.2 on 15 June 2017, on the basis of which the First Information Report in question was registered. On the facts of the case, it is evident that the effort of respondent No.2 was merely to put pressure on the appellant while involving her in a criminal case to get his money back, whereas there is no pleading that respondent No.2 was ever ready and willing to get the sale deed registered. No effort was made by respondent No.2 or the vendee under the Agreement to Sell to initiate any civil proceedings to get the sale deed executed. In fact, the last date fixed for execution of the sale deed, even after extension, was 24 December 2014., There is nothing on record to suggest that any notice was issued by respondent No.2 or the vendee to the appellant to get the sale deed registered either before expiry of the last date fixed for execution of the sale deed or immediately thereafter. No civil proceedings were initiated; respondent No.2 proceeded only by filing complaints with the police, two of which were earlier filed. Had any civil proceedings been initiated, the question of readiness and willingness of the vendee would also be an aspect to be examined by the Court., A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. Merely alleging failure to keep a promise is not enough to initiate criminal proceedings. From the facts on record, it is evident that respondent No.2 improved his case ever since the first complaint was filed, which contained no allegations against the appellant and only targeted the property dealers; subsequent complaints named the appellant. In the first complaint the only request was for return of the amount paid by respondent No.2. When the offence was alleged on the basis of the first complaint, the second complaint was filed with an improved version making allegations against the appellant, which were absent in the earlier complaint. The entire idea seems to be to convert a civil dispute into a criminal one and put pressure on the appellant for return of the amount allegedly paid. Criminal courts are not meant to be used for settling scores or pressurising parties to settle civil disputes. Wherever the ingredients of criminal offences are made out, criminal courts must take cognizance. The complaint on the basis of which the First Information Report was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the Court., Hence, in our opinion the impugned order passed by the Punjab and Haryana High Court deserves to be set aside. The petition filed by the appellant for quashing of the First Information Report is ordered to be allowed. Consequently, First Information Report No. 430 dated 16 October 2017 and all subsequent proceedings therewith are ordered to be quashed. The appeal is, accordingly, allowed.
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Through Video Conferencing Present: Mister Jamshed Ahmed, Advocate for the petitioners. The present petition has been filed under Articles 226 and 227 of the Constitution of India with a prayer for issuance of directions to respondents No.2 and 3 to protect the life and liberty of the petitioners and to respondents No.4 to 12 not to harass or interfere in the peaceful married life of the petitioners. Notice of motion to the respondents. Mister Deepak Manchanda, Additional Advocate General, Haryana accepts notice on behalf of the respondents No.1, 2 and 3., It is a shocking case where the protection is being sought by two petitioners i.e. petitioner No.1 being a girl of 19 years of age and petitioner No.2 being a man of the age of 67 years and they are stated to have married each other vide Annexure P-3. It is not clear from the pleadings or from the arguments raised by the learned counsel for the petitioners as to whether petitioner No.2 has solemnized his first marriage or multiple marriages or under what circumstances a girl of 19 years of age had got married with an old man of 67 years of age. Prima facie this High Court of Punjab and Haryana is of the view that there is some suspicion with regard to the aforesaid marriage and the possibility of forced marriage can also not be ruled out at this stage., In view of the peculiar facts and circumstances of the case, it is directed that Superintendent of Police, Palwal shall forthwith today depute a team of police officials including lady police officials to reach out to petitioner No.1, namely Sanjida and ensure her protection forthwith thereafter. The team constituted by the Superintendent of Police, Palwal shall enquire into the entire matter not only with the present marriage but also with regard to the background of petitioner No.2 and produce petitioner No.1 before the Ilaqa Magistrate for recording her statement. The Ilaqa Magistrate shall record the statement of petitioner No.1 after ascertaining the voluntariness of petitioner No.1. Thereafter the Superintendent of Police, Palwal shall also file his affidavit himself in this High Court of Punjab and Haryana. Let the entire exercise be carried out within a period of one week from today. So far as the protection to be granted to petitioner No.1 is concerned, the same shall be done forthwith., Mister Manchanda, learned Additional Advocate General, Haryana is requested to inform the Superintendent of Police, Palwal immediately. Adjourned to 10.8.2021. The Secretaries of the High Court of Punjab and Haryana are directed to upload the copy of the present order during the lunchtime break.
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Writ Petition (Criminal) No. 509/2021 is filed under Article 226 of the Constitution seeking the following reliefs: (i) to entrust the investigation of Crime No. 1989 of 2021 of Palakkad Town South Police Station and Crime No. 457 of 2020 of Palakkad Kasba Police Station with the Central Bureau of Investigation for further investigation; (ii) to issue such other writ, order or direction as may be necessary in the interest of justice., The petitioner is the widow of the late Sanjith, who was attacked and brutally killed by a group of five identifiable persons on 15 November 2021 while he was moving on a motorcycle with the petitioner on the pillion seat, after dropping her at her workplace. The attack occurred at Mambaram Pudugramam within Palakkad Town South Police Station limits. While the motorcycle was slowed down because of road gutters, a group of five persons standing beside a white Maruti car attacked Sanjith with dangerous weapons, including swords. Both the rider and the pillion fell on the road; one assailant dragged the petitioner away and continued the assault on Sanjith. The assailants fled in the car. Sanjith was immediately taken to the District Hospital, Palakkad, where the doctor declared him dead. On the same day, Palakkad Town South Police registered the crime based on the first information furnished by the petitioner., According to the petitioner, her husband Sanjith was the Secretary of Rashtriya Swayamsevak Sangh (RSS) Thenari Mandalam in Elappully Panchayat. He was an eye‑sore to the Popular Front of India (PFI) and Social Democratic Party of India (SDPI), both known organisations propagating extremist ideologies. Sanjith had tried to maintain peace between various communities and opposed the extremist groups, which are engaged in conversion of people from other communities to Islam by threat, coercion and intimidation, creating tense situations in the area. On 27 June 2020 an attack was made against Sanjith by SDPI and PFI workers, leading to the registration of Crime No. 457 of 2020 at Kasba Police Station alleging offences under Sections 452, 324, 326, 307 read with Section 34 of the Indian Penal Code. The investigation in that crime has been slow, with no final report filed, and the petitioner alleges that the police have shielded the real culprits., The petitioner contends that the death of Sanjith is the result of a larger criminal conspiracy hatched among activists of SDPI and PFI, and that the investigating agency has not conducted a proper, effective and timely investigation in Crime No. 457 of 2020, which resulted in her husband’s death. She points out that the brutal attack was carried out in broad daylight at 8.45 a.m. on 15 November 2021, and that repeated requests to respondents 1 and 2 to investigate the larger conspiracy were ignored. She also notes that when Crime No. 1989 of 2021 was registered, the respondents were reluctant to name SDPI and PFI in the FIR, despite the organisations having national and international ramifications. The petitioner cites previous incidents, such as the killing of Ramalingam in Tamil Nadu on 5 February 2019, investigated by the National Investigation Agency, to demonstrate the extremist nature of SDPI and PFI., The writ petition was filed on 21 December 2021. The final report in Crime No. 1989 of 2021 was filed on 10 February 2022, after which the petitioner amended the original petition. The fifth respondent filed a statement negating the petitioner’s contentions, and the investigating officer, Deputy Superintendent of Police, Palakkad, also filed a statement asserting that the investigation had been conducted on proper lines and that there was no basis for handing over the investigation to the Central Bureau of Investigation., According to the Deputy Superintendent of Police, immediately after the crime was registered on the basis of the petitioner’s first information, the Station House Officer of Town South Police Station started the investigation. The weapons used by the culprits were found abandoned in a sack about six kilometres from the place of occurrence at Kannanoor on the National Highway and were retrieved by the police. The items were sent to the Regional Forensic Science Laboratory, Thrissur for examination. The five persons who executed the murder were travelling in an old Maruti 800 that later developed mechanical flaws and was taken to two workshops between Kannanoor and Kuzhalmannam. CCTV footage showed that the first accused arrived on a KL‑70‑7945 motorcycle to collect the car from the workshop; the motorcycle belonged to Sakkir, son of Mohammed, an employee of the first accused. Consequently, the first accused and the other accused were arrested without further delay. A Special Investigation Team was constituted on the directions of the Additional Director General of Police, Law & Order, Thiruvananthapuram, which arrested the five persons who executed the crime and identified the prime conspirators. The accused persons are activists of the SDPI, and the persons who attacked Sanjith in Crime No. 457 of 2020 are also sympathisers of the SDPI., The investigation has been conducted in Kozhikode, Malappuram, Wayanad, Ernakulam and Tamil Nadu. About 450 witnesses have been questioned, recoveries effected, 25 CCTV footages verified, three tower dumps collected and analysed, six vehicles (including two cars, one autorickshaw and three motorbikes) seized, and 780 call data records verified and analysed. Material objects have been sent to the Rajiv Gandhi Centre for Biotechnology for DNA extraction. A charge sheet has been laid against accused Nos. 1 to 8 and 12 to 14. All accused persons have been identified and steps are being taken to apprehend the remaining accused; telephonic calls of all suspects are monitored. Although the names of SDPI and PFI were not disclosed in the first information statement, subsequent reports have established their roles. The accused belong to Palakkad and Malappuram districts, and there is no evidence to establish the involvement of other leaders of SDPI and PFI at the state or inter‑state level., Counsel for the petitioner, Senior Counsel Sri S. Sreekumar, assisted by Advocate Sri P. Martin Jose, appeared along with Senior Counsel Gracious Kuriakose, Additional Director General of Prosecution, Senior Public Prosecutor Sri C. K. Suresh, and Central Government Counsel Sri Suvin R. Menon on behalf of the Assistant Solicitor General of India., The petitioner’s senior counsel reiterated the contentions in the writ petition, stating that Exhibit P4 demonstrates a lack of effective investigation. At the time the writ petition was filed, the prosecution had booked only three accused persons and the final report was not laid. He argued that the investigating agency is groping in the dark, that the actual persons behind the conspiracy have not been identified or arrested, and that SDPI and PFI are involved in the murder. He emphasized that the extremist organisations have deep roots beyond the state and receive regular foreign funding, and that only the Central Bureau of Investigation can uncover the entire truth, urging transfer of the investigation to that agency., The Additional Director General of Prosecution strongly opposed the writ petition, raising a preliminary objection that such a petition is not maintainable without giving notice to the accused. He relied on the decisions reported in State of Punjab v. Davinder Pal Singh Bhullar and others (2011 KHC 5083) and State of Kerala and others v. C. P. Mohammed and others [2019 (4) KHC 359]. He asserted that the investigation has been conducted by the State police in an effective manner, that the persons who executed the heinous act and those who hatched the conspiracy have already been identified and arrested, and that the final report was laid with the least possible delay, preventing the accused from obtaining statutory bail. He warned that handing over the investigation to the Central Bureau of Investigation could cause further delay and lead to the release of accused persons on bail., The learned Additional Director General of Prosecution further stated that there are no valid grounds to hand over the investigation to the Central Bureau of Investigation. He noted that the petition contains no pleadings supporting the prayer for transfer, and that there is no allegation that the investigation is arbitrary or biased. Referring to the first information statement of Sanjith, he said that although the petitioner claimed no SDPI or PFI involvement, the police later traced the actual culprits and found that SDPI and PFI activists were behind the attack. He dismissed the claim of national and international ramifications, stating that the weapons used were indigenous swords recovered and sent for forensic examination. He explained that the Central Bureau of Investigation is constituted for specific classes of offences such as those under the Prevention of Corruption Act, and that in the absence of valid reasons, transferring the investigation would adversely affect the morale of the local police., The Central Government Counsel, citing Dinubhai Boghabhai Solanki v. State of Gujarat and Others [(2014) 4 SCC 626], observed that the Supreme Court decision in Davinder Pal Singh Bhullar is distinguished and clarified by the Supreme Court. He quoted paragraph 45 of the Bhullar judgment, which explained that the High Court’s suo motu re‑opening of proceedings was aimed at targeting police officers rather than the proclaimed offenders., Further, referring to the Supreme Court decision in Narender G. Goel v. State of Maharashtra [2009 (6) SCC 65], the counsel noted that an accused has no right to be heard at the stage of investigation. Consequently, the preliminary objection that the writ petition is not maintainable without giving notice to the accused cannot be accepted, and the objection that the accused should be given an audition before a decision is also untenable., The facts of the case are not in dispute. While the petitioner was travelling with her husband Sanjith on a motorcycle at about 8.40 a.m. on 15 November 2021, the vehicle had to be slowed down at Mambaram Pudugramam because of road gutters. The accused persons unleashed an attack with swords, causing fatal injuries to Sanjith. He was rushed to the hospital where he was found dead, having sustained thirty‑four cut wounds. The crime was registered on the first information furnished by the petitioner. A Special Investigation Team under the Deputy Superintendent of Police, Palakkad, was constituted, and twenty accused persons have been identified. Accused Nos. 1 to 5, who actually carried out the murder, have been arrested; accused Nos. 6 to 14, who hatched the conspiracy, are at large, with two still to be arrested., It has also emerged that a fierce rivalry exists in the area between the RSS, to which the deceased was an office bearer, and activists of SDPI/PFI. On 27 June 2020, Sanjith was brutally attacked by men of SDPI/PFI, resulting in grievous hurt and the registration of Crime No. 457 of 2020 at Kasba Police Station under Sections 326, 307 etc. of the Indian Penal Code; he remained in hospital for nearly one month. The first information statement for that crime did not reveal any extremist organisation involvement; the investigating agency later uncovered their role. Subsequently, a Sakkir Hussain, an SDPI sympathiser, was attacked by RSS workers, leading to the registration of Crime No. 487 of 2021 at Kozhinjampara Police Station. The prosecution maintains that the attack on Sanjith was a continuation of the assault on Sakkir Hussain. The petitioner complains that the investigating agency has been lackadaisical in investigating Crime No. 457 of 2020 and the larger conspiracy, and that only the Central Bureau of Investigation can properly investigate the matter given its alleged national and international ramifications., Charge sheets were filed on 23 December 2021 in Crime No. 457 of 2020 at Kasba Police Station before the Judicial First Class Magistrate I, Palakkad, and on 7 September 2021 in Crime No. 487 of 2021 at Kozhinjampara Police Station before the Judicial First Class Magistrate I, Chittur. At the time the writ petition was instituted, only three accused persons had been apprehended; most of the remaining accused were arrested during the pendency of the petition. The final report was laid on 10 February 2022, after the filing of the petition, but the petitioner alleges that the report is truncated and many important aspects remain uninvestigated., The report of the investigating officer indicates that, on conclusion of the investigation, all culprits and their respective roles have been identified, although accused Nos. A8 to A11 and A15 to A19 remain at large. Out of the twenty accused, A1 to A7 and A12 to A14 have been arrested and charge sheets laid against them; only A20 remains in judicial custody. Accused Nos. 1 to 5 were the perpetrators who translated the conspiracy into action. Approximately 550 witnesses have been examined, numerous documents seized, material objects produced before the court and sent for chemical examination, and the Exhibit P4 final report was laid within the statutory period, preventing the accused from obtaining default bail. The investigating agency acted promptly to ensure that the culprits do not obtain default bail., It has been pointed out that activists of SDPI/PFI were behind the attack, and that there have been a series of attacks and counter‑attacks between RSS activists and SDPI/PFI activists. After the incident, two further killings occurred in Palakkad, resulting in one death from each rival group. The Additional Director General of Prosecution submitted that Sanjith was a history‑sheeter with numerous cases against him, but emphasized that the mere fact that the accused are activists of SDPI/PFI does not justify transferring the investigation to the Central Bureau of Investigation., The Kerala High Court notes that, despite the wide powers conferred by Articles 32 and 226 of the Constitution, the Court must exercise self‑imposed limitations on the exercise of these powers. An order directing the Central Bureau of Investigation to conduct an investigation should be exercised sparingly, cautiously and only in exceptional situations where credibility of the investigation is in doubt, or where the incident has national and international ramifications, or where it is necessary for complete justice. Routine transfers of cases to the Central Bureau of Investigation would flood the agency and impair its ability to investigate serious cases effectively., After considering the materials placed before the Court and hearing counsel on both sides, the Court finds that overwhelming reasons are not set out for transferring the investigation to the Central Bureau of Investigation. The Special Investigation Team, with the least possible delay, identified the culprits, arrested the main accused and conspirators, and laid the charge sheet, thereby preventing their release on default bail. All the culprits have been identified; the remaining task is to apprehend accused Nos. 8 to 11 and 15 to 19. The claim of a larger conspiracy involving leaders of SDPI/PFI lacks material evidence, and the allegations of ineffective investigation are vague and unsupported. Transferring the investigation to the Central Bureau of Investigation in a light‑hearted manner would adversely affect the morale of the local police, and there is no allegation of bias or arbitrariness in the investigation.
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As pointed out by the learned Senior Counsel for the petitioner, the State of Kerala had even recently handed over a case allegedly committed under Section 376 of the Indian Penal Code for investigation by the Central Bureau of Investigation. No doubt, the Social Democratic Party of India and the Popular Front of India are extremist organisations indulging in serious acts of violence. All the same, those are not banned organisations. The Investigating Officer has denied the involvement of State level or national level leaders in the commission of the crime. Given Writ Petition (Criminal) No. 509/2021 the fact that police have taken care to file a final report within 90 days adds to their credibility and proves bona fides., Merely for the reason that some of the culprits remain at large, the Central Bureau of Investigation cannot be asked to conduct investigation. Here the investigating agency does not appear to have special interest in the case or interest in shielding the culprits. In other words, partisan attitude could not be inferred. The question of transferring investigation to the Central Bureau of Investigation arises only if overwhelming reasons are made out. In other words, it cannot be done by the mere asking., Here all the culprits have been identified and many of them have been arrested. If investigation is handed over to the Central Bureau of Investigation, that would result in further delay in the proceedings. It is not in public interest. That may also pave way for raising demand by the accused persons for release on bail. Given the mindset of the rival groups, if the accused persons are released on bail that would entail further clashes and may lead to a law and order situation., On evaluation of the totality of the circumstances, it does not seem that the petitioner is justified in seeking transfer of investigation to the Central Bureau of Investigation. The petitioner is not entitled to any relief and the writ petition is dismissed. However, it is noticed that some more accused are at large. Even though the roles allegedly played by them are less important, still they have to be apprehended and brought before the Supreme Court of India. Therefore, the second respondent is directed to personally review the progress in apprehending the remaining accused and will file fortnightly reports to the Supreme Court of India till the last accused is arrested.
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Through: Mr. Pravin Anand, Ms. Archana Chakar, Mr. Kumar Abhishek and Mr. Shivang Sharma, Advocates versus Respondents Through: Mr. Vijay Joshi, Mr. Gurjas Singh Narula and Mr. Mohit Joshi, Advocates. Interim Application No. 2023 (to be numbered). Registry is directed to number the aforesaid application. Considering that there has been only a short delay in filing the present appeal, the application is allowed and the delay is condoned. Disposed of., Petitioner's Indian Patent Application No. 2170/DEL/2008 for the invention Text Selection Using a Touch Sensitive Screen of a Handheld Mobile Communication Device (hereinafter, the subject invention) was filed on 16 September 2008, claiming priority since 26 October 2007 from a corresponding European application. The First Examination Report was issued on 28 August 2014, to which the Appellant responded on 13 March 2015. Hearing was scheduled after four years on 23 October 2019, whereafter, by order dated 23 June 2020, the Assistant Controller of Patents and Designs refused the application under section 15 of the Patents Act, 1970 (hereinafter, the impugned order)., As nearly three quarters of the twenty‑year patent term have expired, the Appellant is confronted with a scenario in which, even if the questioned order were to be nullified, their battle continues. They must re‑engage with the patent office to establish their invention's validity in order to secure a patent., Having set out the chronology of events, let us briefly note the subject invention and the grounds for rejection in the impugned order. The subject invention, comprising 23 claims, is a method and system for facilitating character or text selection by a user on the touch screen of a handheld device where displayed characters available for selection are small enough that user contact with the screen can overlap a plurality of simultaneously displayed characters. It is intended to provide accurate control for selection of text or icons displayed on the touch screen., The impugned order rejecting the application has been structured as follows: European Application No. 07119388. It begins by noting the procedural history of the application. In paragraph 2, the Assistant Controller reproduces the objections contained in the hearing notice. Paragraph 3 records that the Appellant's agent attended the hearing on 23 October 2019 and submitted written submissions on 27 November 2019., Paragraph 4 is devoted to summarising the invention and records the points on which the Appellant laid emphasis. The alleged invention is summarised as follows: A system and method is disclosed that provides for character or text selection and editing. The text and character selection is made by user contact with a touch‑sensitive screen. To allow refinement of the selection, a second expanded view is implemented compared to the original display configuration of the screen. The selection is described in relation to two endpoints of the block of text, and a point is specified as the desired insertion point for the selected text. The expanded view is implemented along with the original view as required when making character selection. The applicant also emphasized the following points in the submitted reply document: (i) The present invention provides a technical effect by providing an efficient system of selection of text without compromising storage capacity, thereby making the system more robust and resource‑effective. (ii) The method claims do not refer to an executable list of defined instructions and do not claim a logical, arithmetical or computational method. Accordingly, the method claims of the present application do not fall within the scope of Section 3(k) as defined in the Manual of Patent Practice and Procedure., In paragraph 5, the Assistant Controller was unpersuaded by the Appellant's submissions and stated: Without prejudice to the above, having considered the aforesaid submission, I do not find the submission persuasive. Claims 1‑18 mainly describe a method for accommodating character or text selection by a user on a touch screen of a handheld electronic device where displayed characters available for selection are small enough that user contact with the touch screen when making a character selection is capable of overlapping a plurality of simultaneously displayed characters. The method comprises: displaying text on a touch screen of a handheld electronic device in which selectable characters are smaller than the area of user contact with the screen, constituting an original display configuration; detecting that a first area of the touch screen has been contacted by the user, the first area encompassing a plurality of characters of which at least two have been partially covered by the user's contact; displaying an expanded view of the first area expanded to an extent that each of the at least two partially covered characters is individually sufficiently large that only one of the at least two characters can be predominantly covered by similar user contact; detecting a first character from the at least two characters that is being selected in the first expanded view by being predominantly covered by such user contact; and resuming the original display configuration of the text with the first character that has been detected as being user‑selected in the first expanded view being signified., Paragraph 6 contains the conclusion that the subject invention is not patentable. The paragraph reads: The oral argument and the written submission of the applicant's agent have been carefully considered. However, without prejudice, although the hearing submissions have attempted to address the other requirements, the substantive requirement of the Patents Act, 1970, i.e., Section 3(k), is not found complied with. Hence, in view of the above and unmet requirements, this instant application is not found in order for grant. I also agree with the findings of the examiner that the subject matter as described and claimed attracts the provisions of Section 2(l)(j) of the Patents Act, 1970., Although the initial sentences of paragraphs 5 and 6 may appear to demonstrate thoughtful consideration, a more meticulous examination reveals a contrasting reality. The reasons for dismissing the Appellant's arguments, as detailed in paragraph 5, are merely a word‑for‑word replication of their own claims; therefore, no reasoning is discernible. The minimal reasoning found in paragraph 6 is the expression 'without prejudice' despite the hearing submissions attempting to address other requirements, yet the substantive requirement of the Patents Act, 1970, i.e., Section 3(k), is not found complied with. The above lines are the only shred of rationale in the impugned order. The Supreme Court of India is therefore unable to comprehend how this conclusion has been drawn. Simply remarking that the subject invention is not patentable because it is a mathematical or business method, a computer programme per se, or an algorithm is not sufficient. The Controller ought to have disclosed reasons to support his conclusion. Reasoning through a speaking order is a vital aspect of the principles of natural justice and must be underscored. If the patent office's orders lack proper reasoning, it may be difficult for the applicant to identify the grounds for appeal. The legal proposition that an order of such kind should be supported by reasons needs no reiteration. Not only does this benefit the applicant, whose rights are likely to be affected, but also assists the Supreme Court of India in ascertaining how the concerned officer applied his mind and reached the impugned conclusion while exercising judicial review. In an earlier decision of SK Geo Centric Co Ltd. v. The Controller of Patents, the Supreme Court of India observed that such reasoning should be discernible to the Court and, in its absence, the entire order stands vitiated. In the impugned order, the Supreme Court of India is bewildered as to how the Controller concluded that the subject invention is hit by Section 3(k) of the Patents Act and has plainly agreed with the examiner's opinion that the claimed patent is not an invention., The entire text of the impugned order is dedicated to noting the details of the invention, the claims made therein, and how the proceedings were conducted (dated 08 February 2023 in Civil Appeal (COMM. IPD‑PAT) 241/2022). While that may be necessary, the crux of the issue is the lack of reasoning supporting the final decision, a task at which the Assistant Controller has completely fallen short. This makes the decision arbitrary, suggesting a subjective determination without any objective criteria. Such mechanical, template, and cut‑and‑paste orders cannot sustain and must be strongly discouraged. In a recent decision of Dolby International AB v. The Assistant Controller of Patents and Designs, Honourable Mr. Justice C. Hari Shankar considered an unreasoned order of the Controller. The Judge was at pains to identify the reasoning in the impugned order and observed that officers of the Controller of Patents and Designs must bear in mind that the question of grant and rejection of a patent is a serious matter. Well‑articulated reasons in such orders would demonstrate that the decision has been made with proper consideration and allow for more effective judicial review, if necessary., The impugned order fails to satisfy the basic requirements of any order adjudicating on the patentability of an invention. Because of this arbitrary approach of the Assistant Controller, the Supreme Court of India is not in a position to examine the impugned order on its merits. Accordingly, the order is quashed and set aside, and the following directions are issued: (i) The matter is remanded back to the Controller of Patents for reconsideration. (ii) Prior to deciding the matter afresh, the Appellant shall be granted a hearing. (iii) The application for the subject invention shall not be decided by the officer who passed the impugned order. (iv) The above exercise shall be completed and a fresh order passed within three months from the date of release of this order., De novo consideration will proceed independently, uninfluenced by the impugned order. The appeal is disposed of in the above terms, along with pending applications. A copy of the order shall also be brought to the notice of the Controller General of Patents, Designs and Trademarks for information and necessary administrative action.
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Madhya Pradesh High Court Advocates Bar Association and Anr. Petitioner(s) Versus Union of India and Anr. Respondent(s) Justice Hrishikesh Roy, J., Through this writ petition filed under Article 32 of the Constitution of India, the petitioners who are the Madhya Pradesh High Court Advocates Bar Association and the District Bar Association, both with their registered offices at Jabalpur, have raised a challenge to the vires of the National Green Tribunal Act, 2010 (hereinafter referred to as the NGT Act), and pray for the following reliefs: (a) Issue an appropriate writ of certiorari or any other writ of similar nature directing that the Bench of National Green Tribunal be set up at all the places where the principal seat of the High Court is situated. (b) Hold and declare that the proposed sitting up of Bench of NGT at Bhopal is not constitutionally and/or sustainable. (c) Declare the provision of Section 14 read with Section 22 of the National Green Tribunal Act as unconstitutional insofar as they purport to exclude the writ jurisdiction of the High Court under Article 226/227 of the Constitution of India., The issues to be considered in this writ petition are: A. Whether the National Green Tribunal (hereinafter referred to as the NGT) ousts the High Court's jurisdiction under Sections 14 and 22 of the NGT Act? B. Whether a seat of the NGT should be in every State? If yes, should they invariably be established at the principal seat of the High Court, which in this case would be Jabalpur instead of Bhopal? C. Whether the remedy of direct appeal to the Supreme Court from the decisions of the NGT under Section 22 of the NGT Act is ultra vires to the Constitution? Whether an appeal mechanism be provided to the High Courts from the decisions of the NGT? D. Whether Section 3 of the NGT Act is ultra vires to the Constitution as suffering from the vice of excessive delegation?, We have heard Mr. Siddhartha R. Gupta, the learned counsel for the petitioners. The Union of India is represented by Mr. K.K. Venugopal, the learned Attorney General for India together with Ms. Aishwarya Bhati, learned Additional Solicitor General. The State of Madhya Pradesh (respondent No. 2) is represented by Mr. Sunny Choudhary, learned counsel., The petitioners, who are espousing the cause of the Jabalpur based lawyers practicing before the High Court and the Civil Courts, contend that the Bhopal Bench of the NGT is located arbitrarily and the decision is inconsistent with the direction in S.P. Sampath Kumar vs. Union of India where the Supreme Court of India observed that for ensuring the efficacy and efficiency of any Tribunal, its seat should be at a place where the principal seat of the High Court is situated. As the Bench of the NGT is set up at Bhopal for catering to the environment related cases covering three States i.e., Madhya Pradesh, Chhattisgarh, and Rajasthan, the petitioners pray for setting up the Benches of the NGT at the principal seats of the High Courts in each of the three States and for their State of Madhya Pradesh, the petitioners want it at Jabalpur., According to the petitioners, environmental litigation is predominantly related to local factors and therefore an easily accessible and available forum is necessary to be constituted, without requiring the litigants to move to distant places to secure environmental justice., The petitioners argue that through incorporation of Section 14 and Section 22 in the NGT Act, the jurisdiction and the role of the High Courts under Article 226/227 is extinguished. This, therefore, has impacted the basic feature of the Constitution and as such the provisions of Section 14 read with Section 22 of the NGT Act should be struck down to the extent they divest the High Courts of their power as a superior Court., Adverting to the power of the Central Government to identify the ordinary place of sitting of the NGT and specifying their respective territorial jurisdiction under Section 4(3) of the NGT Act, the petitioners argue that such power being unguided suffers from the vice of excessive delegation. Laying stress on location of the NGT Bench at Jabalpur where adequate infrastructure is available, the petitioners question the choice of the seat at Bhopal instead of at Jabalpur, which is the principal seat of the Madhya Pradesh High Court. According to the petitioners, this impacts the right of the litigant in the field of environmental law to access justice., The remedy of appeal to the Supreme Court under Section 22 of the NGT Act in the petitioners' perception practically amounts to denial of access to justice for the economically vulnerable litigants and this is contended to defeat the inherent objective of access to justice by bypassing the conveniently accessible remedy before the High Courts under Article 226 and 227 of the Constitution of India., The petitioners next argue that the NGT does not enjoy the authority and autonomy available to judges in the High Courts and bearing in mind the conditions of service, tenure, and other aspects of the judicial and non‑judicial members of the NGT, according to the petitioners, it is neither an effective nor an appropriate substitute of the High Courts, which were entertaining environmental disputes through respective Green Benches, prior to the enactment of the NGT Act. More specifically, the process of appointment, service conditions and other related provisions for appointment of presiding members of the NGT are not at par with the judges of the High Court and therefore, the NGT can only play a supplemental or subservient role instead of being an effective and appropriate substitute for the High Courts., Per contra, Mr. K.K. Venugopal, the learned Attorney General leading the arguments for the respondents, projects that the NGT was set up because of the prodding and recommendations made by the Supreme Court while dealing with environmental cases and the Parliament was repeatedly entreated by the Court to create specialized environmental courts with qualified judges and technical experts on the Bench. The learned Attorney General refers to the exhortations made by the Supreme Court in M.C. Mehta v. Union of India, Indian Council for Enviro‑Legal Action v. Union of India, Vellore Citizens' Welfare Forum v. Union of India, A.P. Pollution Control Board v. Prof. M.V. Nayudu and A.P. Pollution Control Board II v. Prof. M.V. Nayudu and their acceptance by the Parliament, following the 186th Report of the Law Commission which led to the establishment of environmental courts. The Law Commission suggested in its Report that appeals from the environmental courts should lie before the Supreme Court. It is in this backdrop the learned Attorney General submits that the NGT Act was enacted and the environmental cases which were hitherto heard by green benches in the High Court were ordered to be transferred to the NGT by the Supreme Court itself as the same would help in rendering expeditious and specialized justice in the field of environment., Insofar as the creation and setting up of the NGT and the location of their Benches, the learned Attorney General submits that this was done under the active supervision of the Supreme Court and only after the proposed places of sitting recommended by the Central Government received the concurrence of the Supreme Court, the concerned Benches and their place of sitting were notified by the Central Government. It is therefore argued that the related notification had the imprimatur of the Supreme Court. The respondents point out that the Supreme Court monitored and oversaw the implementation of the NGT Act and setting up of its Benches in Union of India Vs. Vimal Bhai (SLP(C) No. 12065 of 2009) and the various orders passed on 19.9.2011, 6.12.2012 and 15.3.2013 by this Supreme Court would reflect that individual Bench of the NGT was set up to cater to multiple States and the location so chosen for the NGT at Bhopal also had the approval of the Supreme Court., The learned Attorney General next contends that the remedy before the High Court for a litigant under Article 226 and 227 continues to be available notwithstanding the enactment of the NGT Act and the provision for appeal to the Supreme Court under Section 22 of the NGT Act. It is specifically submitted by the learned Attorney General that the High Court's power of judicial review remains unaffected by the NGT Act as it is a part of the basic structure of our constitution, as was declared in L. Chandra Kumar v. Union of India., The precursor to the NGT Act was the 186th Report of the Law Commission of India dated 29.3.2003 which came after the Supreme Court repeatedly urged Parliament through various judgments to establish specialized environmental courts, with qualified judges and technical experts on the bench. The Supreme Court also put forward that there should be direct appeals to the Supreme Court from such environmental courts. The Law Commission then recommended creation of a specialized court to deal with the environmental issues. The Law Commission expressed the view that it is not convenient for the High Courts and the Supreme Court to make local inquiries or to receive evidence. Moreover, the superior Courts will not have access to expert environmental scientists on a permanent basis to assist them. The NGT was conceived as a complementary specialized forum to deal with all multidisciplinary environmental issues, both as original as well as an appellate authority. The specialized forum was also made free from the rules of evidence applicable to normal courts and was permitted to lay down its own procedure to entertain oral and documentary evidence, consult experts etc., with specific mandate to observe the principles of natural justice., In order to understand the objective of the NGT Act, we may usefully extract the following from the Municipal Corporation of Greater Mumbai vs. Ankita Sinha & Ors.: The Statement of Objects and Reasons of the NGT Act will now require attention. Paragraphs 2 to 6 of the Statement of Objects and Reasons 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 healthy environment has been construed as a part of the right to life under article 21 of the Constitution in the judicial pronouncement in India. 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 thereof refers to the National Environmental 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 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 Article 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 right to life necessarily should be given the most liberal construction., The 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., 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 on construing the right to 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., The limited mandate conferred on the earlier forum i.e. the NET and the narrow scope of jurisdiction of the National Environment Appellate Authority along with the involvement of multidisciplinary issues arising in environmental cases, were intended to be addressed through the constitution of the NGT. Explaining the purpose to constitute the specialized court to deal with environmental issues, in Mantri Techzone (P) Ltd. vs. Forward Foundation, Justice S. Abdul Nazeer writing for the three Judges Bench made the following pertinent observation, on the status of the Tribunal: 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 and conservation of forests and other natural resources including enforcement of any legal right relating to the environment. The right to healthy environment has been construed as a part of the right to life under Article 21 by way of judicial pronouncements. Therefore, the Tribunal has special jurisdiction for enforcement of environmental rights., The NGT is set up under the constitutional mandate under Entry 13 List I of Schedule VII to enforce Article 21 in regard to the environment and the Tribunal was conferred special jurisdiction for enforcement of environmental rights. It thus appears that the role of the NGT was not simply adjudicatory, but it also had the equally vital role which is preventive, ameliorative, or of the remedial category. The functional capacity of the NGT was intended to leverage wide powers to do full justice in the field of environment. The NGT came into existence as a sui generis institution established for the enforcement of environmental rights emanating from Article 21 of the Constitution., After the NGT was set up, the Supreme Court pertinently directed the transfer of environmental cases pending before the High Courts to the NGT for expeditious and specialized justice for all concerned. The Supreme Court also actively oversaw the implementation of the Act and creation of the NGT itself through various Orders. Those also pertained to, inter alia, the location of the NGT benches. In other words, the Supreme Court was not only conscious of the location of the benches of the NGT but also had given its imprimatur to the NGT's creation and other aspects., With the above prefatory contexts in mind, we may now look at the challenge. A. Whether the NGT ousts the High Court's jurisdiction under Sections 14 and 22 of the NGT Act? Insofar as the contention of the petitioners that there is ouster of jurisdiction of the High Courts under Article 226 and 227 of the Constitution because of Sections 14 and 22 of the NGT Act, it must be recalled that in L. Chandra Kumar vs. Union of India, it has been categorically declared that the power of judicial review under Articles 226, 227, and 32 are part of the basic structure of our constitution and the same is inviolable. The following pertinent opinion rendered by the seven Judges bench of this Supreme Court of India must be remembered on this aspect: We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Supreme Court of India under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided., Apart from the clear enunciation on legal position to the effect that the NGT is within the purview of Article 226 and 227 jurisdiction of the High Courts, the learned Attorney General on behalf of the Union of India has also made submissions consistent with L. Chandra Kumar and conceded the legal position. It can further be noted that in terms of the above ratio in L. Chandra Kumar, the High Courts have been entertaining petitions under Article 226 and 227 of the Constitution against orders of the NGT. While exercising such jurisdiction, the Courts necessarily exercise due discretion on whether to entertain or to reject the petition, as per the test broadly laid down in Whirlpool Corp. Vs. Registrar of Trade Marks, Mumbai and Others; The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose., Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Supreme Court of India not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case‑law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field., It is also noteworthy that nothing contained in the NGT Act either impliedly or explicitly ousts the jurisdiction of the High Courts under Article 226 and 227 and the power of judicial review remains intact and unaffected by the NGT Act. The prerogative of writ jurisdiction of High Courts is neither taken away nor can it be ousted, as without any doubt, it is definitely a part of the basic structure of the Constitution. The High Courts exercise their discretion in tandem with the law depending on the facts of each particular case. Since the High Courts' jurisdiction remains unaffected, the first question is answered in the negative, against the petitioners., The petitioners in pleading for a NGT Bench in each state place heavy reliance on S.P. Sampath. To appreciate this, the Court's following observation needs consideration in the context of administrative tribunals: I may also add that if the Administrative Tribunal is to be an equally effective and efficacious substitution for the High Court on the basis of which alone the impugned Act can be sustained, there must be a permanent or if there is not sufficient work, then a Circuit Bench of the Administrative Tribunal at every place where there is a seat of the High Court. I would, therefore, direct the government to set up a permanent Bench and if that is not feasible having regard to the volume of work, then at least a circuit Bench of the Administrative Tribunal wherever there is a seat of the High Court, on or before March 31, 1987. That would be necessary if the provisions of the impugned Act are to be sustained., As is seen, Justice Bhagwati made the above observation in the case where the Supreme Court was concerned with the Central Administrative Tribunal where the volume of litigation is substantially higher. This is why the direction to establish permanent benches or circuit benches in every State is predicated on assessing feasibility by reference to the volume of litigation. To underscore the issue, the CAT have 17 Benches and 21 Circuit Benches as opposed to only five Benches of the NGT. The NGT caters to a limited number of cases unlike the CAT, where the volume of cases is substantially higher. As per the report tabled in Rajya Sabha by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, the CAT have over 48,000 cases pending as on 6th March, 2020., While on this, we may also notice the data available on the website of the National Green Tribunal which reflects the pendency of cases before the NGT as on zone wise pendency as on Bench Pendency Principal Bench (Delhi) 621, SZB (Chennai) 517, CZB (Bhopal) 107, WZB (Pune) 694, EZB (Kolkata) 298. Total: 2237., As is apparent from the above chart the volume of cases handled by the NGT and the CAT are not comparable. Looking at the large volume of service‑related cases, it was suggested that the Benches of the CAT should be located at the seat of each High Court. But such logic cannot apply to the NGT, where the zone wise pendency in aggregate is only 2,237 cases as on 31.3.2022 from the date of its inception. Therefore, the ratio in S.P. Sampath does not aid the petitioners who want the NGT Bench to be relocated from Bhopal to Jabalpur, where the Madhya Pradesh High Court is located., It is also worthy of attention that the total disposal by all Benches of the NGT is 2,799 cases during 12 months i.e., March 2021 to February 2022. The pendency figure for this period is 2,237 only. The rate of disposal being higher than the pendency, no major backlog issue is seen before the NGT. The strikingly small 107 cases in the NGT's Bhopal Bench must also receive our due attention. These data do not provide for a reasonable basis to entertain a prayer for a NGT Bench at Jabalpur or for that matter, an individual NGT Bench in each of those three States., With the low case load, if the NGT Benches are set up in all 28 States and 8 union territories as is suggested by the petitioners, the judges and other members in these forums might be left twiddling their thumbs. Accordingly, no basis is seen to allow one NGT bench in every State., With the above answer to the first part of issue B, the second part becomes superfluous. However, since earnest submission is made by the petitioners' counsel, the issue needs to be decided. The petitioner put forth that the seat of the NGT must be at Jabalpur where the principal seat of the Madhya Pradesh High Court is located as per the dicta in S.P. Sampath. On this aspect, the cited case is entirely inapplicable as the Bhopal Bench caters to multiple States. In such a situation, the location of the Bench to the extent possible, should be convenient and accessible to litigants of all three States. Here the respondents project that Bhopal is centrally located in relation to Rajasthan, Madhya Pradesh, & Chhattisgarh. Moreover, Bhopal being the capital of Madhya Pradesh, is well connected and accessible without much difficulty. This would commend to us that Bhopal is a sound locational choice for the NGT which caters to the litigants from three States., The low case load in the Bhopal Bench does not match with the strident plea of the petitioners to locate the Bench at Jabalpur. This is therefore perceived as an attempt by the petitioners (who are practicing lawyers in Jabalpur), to primarily espouse their professional interest. No other rational basis is seen for the Association's plea for relocation of the NGT Bench to Jabalpur from Bhopal. We see no justification to grant such relief to the petitioners and the second segment of issue B is accordingly answered against them., The petitioners have also pleaded that instead of appeal to the Supreme Court under Section 22 from the orders passed by the NGT, an appeal mechanism as a matter of right should also be provided before the concerned High Courts. According to them, appeal to the Supreme Court is inadequate and unaffordable and therefore inaccessible.
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On this aspect it needs to be observed that even when a direct appeal to the Supreme Court of India is provided by a statute against the decision of a tribunal, the remedy under Article 226 or Article 227 before the High Court remains unextinguished. Moreover, the appeal under Section 22 of the National Green Tribunal Act is limited to the grounds under Section 100 of the Code of Civil Procedure and the Supreme Court of India does not function as a regular first appellate Court. However, under Article 226 or Article 227, remedies on issues of jurisdiction and also under the principles set out in Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation are available. Subject to discretion being exercised, the affected litigants can move the High Court under Article 226 or Article 227 and in such cases, a Special Leave Petition under Article 136 of the Constitution could also be maintained to the Supreme Court of India from the High Court's verdict., Also importantly, the right to appeal before the High Court is a creature of the statute and is not an inherent right. The provision for appeal to the High Court should not therefore be created by issuing a writ of mandamus as that would be legislating through judicial order, and would impinge upon the well‑founded concept of separation of powers., The options available to a litigant to either move to the Supreme Court of India in a case where a substantial question of law arises or proceed under Article 226 or Article 227 must not also be overlooked. If necessary, a party can also approach the Supreme Court of India by way of an Article 136 petition. With such choices being available for a party, rational justification is found for striking down Section 22 of the Act which provides for a direct appeal to the Supreme Court of India., A litigating party must also realise that in any event, if the opposite side approaches the Supreme Court of India, the litigant on the other side would have to defend his case before the Supreme Court of India and at that stage they cannot be complaining about the distance to Delhi. Thus, the remedy of direct appeal to the Supreme Court of India under the National Green Tribunal Act from the National Green Tribunal's decision cannot be seen as denial of access to justice to the litigants in the field of environmental law., The issue of direct appeals to the Supreme Court of India, or entertaining petitions under Article 136 to challenge a tribunal's decision, was considered in the case of R.K. Jain v. Union of India. In paragraph 76 of the said judgment, the Supreme Court of India addressed a similar submission to the effect that an appeal mechanism should be provided from a tribunal's decision to a division bench of the High Court. The three‑judge bench of the Supreme Court of India, however, expressly refrained from issuing direction for creation of appeal provisions to the High Courts, which was perceived to be an impermissible judicial function. So far, the legislature has not acted on the recommendation of the Supreme Court of India but that issue is within the policy domain of the legislative wing of the State., The implication of the Supreme Court of India being conceived as the first appellate forum was considered in Rojer Mathew v. South Indian Bank Ltd., and in that case the Union Government was directed to do a study on the effect of direct appeals to the Supreme Court of India and place the resultant report before Parliament. But even in Rojer Mathew, the Supreme Court of India had no occasion to say that direct appeals to the Supreme Court of India are constitutionally impermissible., It must also be underscored that the ground raised by the petitioners about the Supreme Court of India being inaccessible would equally apply to litigants from all across the country who have to travel to the Supreme Court of India, either by way of Article 136, Article 32 or any other provision. Despite the provision under Article 130 of the Constitution, the Supreme Court of India has no other bench away from Delhi. In these circumstances, pleading inaccessibility also questions the location of the Supreme Court of India at New Delhi. Such a contention on its face would be irrational and not acceptable., It cannot also be overlooked that it is the Supreme Court of India itself which had recommended the setting up of an environmental court with direct appeals to the Supreme Court of India. This would also support the proposition on constitutional validity of Section 22 of the National Green Tribunal Act and that it is not ultra vires to the Constitution. Consequently, the answer to both aspects of question C is answered in favour of the respondents., Whether Section 3 of the National Green Tribunal Act is ultra vires to the Constitution as suffering from the vice of excessive delegation? Adverting next to the argument of the petitioners that Section 3 is a case of excessive delegation to the Union Government, it must be borne in mind that the operationalisation of the National Green Tribunal, including the location of its benches, was closely monitored by the Supreme Court of India. It is further seen that the Union Government is to specify the ordinary place of sitting of the National Green Tribunal and its territorial jurisdiction under Section 3 of the National Green Tribunal Act, being mindful of the demand for environmental litigation within a particular territorial area. The Government is also to be guided by the objects of the Act as also the directions given by the Supreme Court of India from time to time. Since the Government is acting on the issue with the guidance of the Supreme Court of India and is obliged to follow the objectives of the National Green Tribunal Act, adequate safeguards are seen to guide the government. We are therefore of the opinion that Section 3 of the National Green Tribunal Act is not a case of excessive delegation., The petitioners are seen to have founded their contentions with considerable reliance on the decision in Madras Bar Association v. Union of India and others to argue that the National Green Tribunal is neither accessible nor independent in dealing with environmental cases. In the relied case, the Supreme Court of India struck down certain provisions of the National Tax Tribunal Act, 2005 (for short, NTT Act) but this must be appreciated in the context of that case. Moreover, one must not overlook the distinction between the operation of the NTT Act vis‑vis the National Green Tribunal Act. Specifically, the NTT Act provided that the NTT would ordinarily sit at New Delhi. The National Green Tribunal Act, however, provides for the creation of benches across the country. Additionally, the NTT was vested with the power of adjudicating appeals arising from orders passed by the Income Tax Appellate Tribunal on substantial questions of law. This was a jurisdiction that the High Courts were exercising under Article 227 in certain cases, and in that context, it was found that the NTT was indirectly impinging on the jurisdiction of the High Courts under Article 227. The jurisdiction exercised by the National Green Tribunal is however distinct and different and not comparable. Also glaring was the fact that the Union Government had the power to transfer members of the NTT from one bench to another. No such provision exists in the National Green Tribunal Act. Besides, the NTT was constituted only to determine substantial questions of law and it was unclear how accountants and other technical members with no legal training would deal with the issues raised in such matters. Those troubling issues do not arise in the National Green Tribunal Act. One must also be cognizant of the fact that the Selection Committee under Section 7 of the NTT Act was dominated by two secretaries of the Government, as opposed to the Selection Committee for the National Green Tribunal under the Tribunal Reforms Act which clearly has judicial dominance., Taking into account all the striking distinctions between the operation of the National Green Tribunal Act and the NTT Act, the petitioners' reliance on the NTT judgment, which was rendered in the context of the provisions of the NTT Act, is found to be wholly misplaced., Addressing next the argument of the petitioners that the National Green Tribunal does not enjoy the same status and independence as the High Courts on account of the conditions of service and tenure etc., it would be appropriate to say that although in paragraph 33 of the written submissions the petitioners deal with specific provisions of the Tribunal Reforms Act, 2021 and the Rules framed, those were neither raised in the petition nor any relief is claimed in reference to the Tribunal Reforms Act. Conspicuously, those were also not argued during the oral hearing. Therefore, we need not delve into those aspects as the same is beyond the scope of the instant proceeding., It must also be borne in mind that the question of validity of the Tribunal Reforms Act is pending in the Supreme Court of India in a batch of cases tagged with Writ Petition (Civil) 1018/2021 Madras Bar Association v. Union of India. Few similar issues like the present have also been raised in the pending cases where the Union of India has filed a counter‑affidavit indicating their stand. As those issues are under consideration in the pending case, the same is left to be decided in those matters., For all the aforesaid reasons, Section 3 of the National Green Tribunal Act is found to be intra vires to the Constitution of India. However, it is clarified that our conclusion is based on the specific facts of this case, and we make no comments on the issues which are sub‑judice in the Writ Petition (Civil) 1018/2021 Madras Bar Association v. Union of India., Conclusions: In consequence of the above analysis, our conclusions are: A. The National Green Tribunal under Section 14 and Section 22 of the National Green Tribunal Act does not oust the High Court's jurisdiction under Article 226 and Article 227 as the same is a part of the basic structure of the Constitution. B. The remedy of direct appeal to the Supreme Court of India under Section 22 of the National Green Tribunal Act is intra vires the Constitution of India. C. Section 3 of the National Green Tribunal Act is not a case of excessive delegation of power to the Central Government. D. The seat of the National Green Tribunal benches can be located as per exigencies and it is not necessary to locate them in every State. The prayer for relocating the Bhopal National Green Tribunal to Jabalpur is unmerited and is rejected., With the foregoing conclusions, the Writ Petition is found devoid of merit and is dismissed. The parties are to bear their own costs.
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Re: Filling up vacancies of judges in the Supreme Court of India. The Supreme Court of India has a sanctioned strength of thirty four Judges and is presently functioning with twenty seven Judges. Thus, there are seven clear vacancies. On 13 December 2022, the Collegium recommended five names for appointment as Judges of the Supreme Court, namely Mr Justice Pankaj Mithal, Mr Justice Sanjay Karol, Mr Justice P.V. Sanjay Kumar, Mr Justice Ahsanuddin Amanullah, and Mr Justice Manoj Misra. Their appointment is yet to be notified by the Government., The Collegium resolves to recommend two more names for appointment as Judges of the Supreme Court against the two remaining vacancies. The Collegium deliberated on and discussed the names of Chief Justices and senior puisne Judges of the High Courts eligible for appointment to the Supreme Court. Judgments authored by those falling in the zone of consideration for elevation to the Supreme Court were circulated among the members of the Collegium for a meaningful discussion and assessment of their judicial acumen., After carefully evaluating the merit, integrity and competence of eligible Chief Justices and senior puisne Judges of the High Courts and also accommodating a plurality of considerations, the Collegium finds the following persons to be more deserving and suitable in all respects for being appointed as Judges of the Supreme Court of India: Mr Justice Rajesh Bindal, Chief Justice, High Court of Judicature at Allahabad, and Mr Justice Aravind Kumar, Chief Justice, High Court of Gujarat., Mr Justice Rajesh Bindal was appointed as a Judge of the Punjab and Haryana High Court on 22 March 2006. He was appointed as Chief Justice of the High Court of Judicature at Allahabad on 11 October 2021. Mr Justice Bindal stands at Serial Number 02 in the combined All‑India seniority of High Court Judges. He is the seniormost Judge hailing from the Punjab and Haryana High Court. While recommending his name, the Collegium has taken into consideration the fact that the Punjab and Haryana High Court, which is one of the largest High Courts with a sanctioned strength of eighty five judges, is not adequately represented on the Bench of the Supreme Court. The High Court of Punjab and Haryana is a common High Court for two States., Mr Justice Aravind Kumar was appointed as an Additional Judge of the Karnataka High Court on 26 June 2009 and as permanent Judge on 7 December 2012. He was elevated as Chief Justice of the High Court of Gujarat on 13 October 2021. Mr Justice Aravind Kumar stands at Serial Number 26 in the combined All‑India seniority of High Court Judges. While recommending his name, the Collegium is conscious of the fact that in the seniority of Judges hailing from the Karnataka High Court, Mr Justice Aravind Kumar stands at Serial Number 02 and that at present, the Bench of the Supreme Court is represented by two Judges from the Karnataka High Court., While recommending the above names the Collegium has taken into consideration the following aspects: the seniority of Chief Justices and senior puisne Judges in their respective parent High Courts as well as overall seniority of the High Court Judges; the merit, performance and integrity of the judges under consideration; and the need to ensure diversity and inclusion in the Supreme Court by representation of High Courts which are not represented or are inadequately represented, appointing persons from marginalized and backward segments of society, gender diversity, and representation of minorities., The Collegium resolves to recommend that Mr Justice Rajesh Bindal and Mr Justice Aravind Kumar be appointed as Judges of the Supreme Court of India. The names recommended earlier by the Collegium by its resolution dated 13 December 2022 shall have precedence over the two names recommended presently for appointment to the Supreme Court. Therefore, the appointments of five judges recommended on 13 December 2022 should be notified separately and earlier in point of time before the two judges recommended by this resolution., The resolution of the Collegium in regard to the appointment of Mr Justice Rajesh Bindal, Chief Justice of the High Court of Judicature at Allahabad is unanimous. However, in regard to the appointment of Mr Justice Aravind Kumar, Chief Justice of the High Court of Gujarat, Justice K M Joseph has expressed his reservations on the ground that his name can be considered at a later stage. (Dhananjaya Y Chandrachud), Chief Justice of India.
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Writ Petition (Civil) No. 27982 of 2022 dated this the 1st day of September 2022. This writ petition is filed by a District and Sessions Judge challenging Exhibit P2 order of transfer in so far as it transfers him as Presiding Officer, Labour Court, Kollam. It is submitted by the learned counsel for the petitioner that the petitioner has only nine months more to retire from service and that he had been posted as District and Sessions Judge, Kozhikode only by Exhibit P1 order dated 8 April 2022. It is stated that the post of Presiding Officer, Labour Court is a post to which appointment has to be made by the Government in its Labour Department in accordance with Section 7 of the Industrial Disputes Act and that the petitioner's consent is required for a deputation as Presiding Officer. It is further contended that Exhibit P4 general transfer norms provide that an officer is entitled to continue in one station for a period of three years and there will be a transfer during the middle of the term only if it is necessary in the interest of administration or special circumstances necessitating such transfer. It is further contended by the learned counsel for the petitioner that the petitioner has an unblemished service of twenty‑seven years and the transfer of the petitioner from the post of Principal District and Sessions Judge for passing a judicial order is completely untenable and unjustified. The learned counsel for the petitioner places reliance on a decision of the Supreme Court in State of Punjab and others versus Inder Singh and others [(1997) 8 Supreme Court Cases 372] to contend that where the deputation is to a different service outside the service where the employee retains lien, such deputation cannot be unilateral and it requires the consent of the persons so deputed., The learned Government Pleader would contend that an order has been passed by the Government on 29 August 2022 appointing the petitioner as Presiding Officer, Labour Court, Kollam in pursuance to Exhibit P2 proceedings., The petitioner is a Judicial Officer working as a Selection Grade District and Sessions Judge and there is no doubt that the petitioner is liable to render service anywhere in the State of Kerala. Exhibit P2, which is an order by which four transfers have been effected, does not cast any aspersions on the petitioner and there is no mention in the said order with regard to any judicial orders or to his conduct as a Judicial Officer. The post of Presiding Officer of the Labour Court is a post borne on the cadre of District and Sessions Judges in the State of Kerala and the contention of the petitioner that it is a deputation or a Government appointment which requires a consent from the appointee is completely untenable. Even if willingness had been obtained on any earlier occasions, that will not support the contention of the petitioner that such consent of the incumbent is legally required for a transfer. As is evident from the impugned order itself, the post of Presiding Officer of Labour Court in the State of Kerala is habitually being filled up by transfer from the Kerala Higher Judicial Service and all that is required is an order of the Government, which has also been issued in this case. The petitioner cannot be said to be prejudiced in any manner by his transfer as Presiding Officer of the Labour Court, Kollam., The contention raised by the petitioner that Exhibit P4 norms are violated is also not a tenable argument in view of the fact that Exhibit P4 are only transfer guidelines intended as guidance in effecting transfers, generally and particularly in the matter of general transfers and will not confer any right on the transferred employee to contend that an order passed without strict adherence thereto is prejudicial to such employee. Transfer being a necessary incident of service, an order of transfer to a post borne on the cadre cannot be challenged by an incumbent on the ground that he is in any way aggrieved by it., It is trite law that an order of transfer can be interfered with within judicial review only on extremely limited grounds and in extraordinary situations. The exercise of the power of transfer for the proper administration of justice can, by no stretch of imagination, be held to be fettered by the provisions of Exhibit P4 guidelines. The contention that the order was not passed after a meeting of the Full Court is also untenable and Exhibit P2, which is a competent order of transfer cannot be assailed by the petitioner on those grounds and the said contention does not require consideration., The petitioner, who is a member of the Higher Judicial Service, cannot be said to be prejudiced in any manner by his posting as Presiding Officer of the Labour Court, which is a post borne on the cadre of District Judge and which is admittedly being filled up by the State Government by appointment of District Judges on the recommendation of the High Court. Being a responsible member of the District Judiciary, the petitioner is expected to render his services wherever he is posted. I fail to see what legal right of the petitioner is infringed by Exhibit P2 order. I am of the opinion that the grounds raised in the writ petition do not justify the grant of any of the reliefs as sought for. The writ petition fails and the same is, accordingly, dismissed., Anu Sivaraman, Judge (Senior Judge) 23 August 2022.
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Writ Petition (Civil) No. 1011/2022 Date: 25-11-2022. This petition was called for hearing today. For Petitioners: Mr. Mukul Rohatgi, Senior Advocate; Mr. Saurabh Kirpal, Senior Advocate; Ms. Tahira Karanjawala, Advocate; Ms. Niharika Karanjawala, Advocate; Mr. Vardaan Wanchoo, Advocate; Mr. Shreyas Maheshwari, Advocate; Mr. Ritwik Mohapatra, Advocate; Karanjawala & Co., Advocate on Record; Mr. Neeraj Kishan Kaul, Senior Advocate; Dr. Menaka Guruswamy, Senior Advocate; Ms. Arundhati Katju, Advocate; Ms. Priya Puri, Advocate on Record; Mr. Govind Manoharan, Advocate; Mr. Dhruv Sharma, Advocate; Mr. Toshiv Goyal, Advocate; Mr. Raghav Agrawal, Advocate; Mr. Yash S. Vijay, Advocate; Mr. Utkarsh Pratap, Advocate; Ms. Shristi Borthakur, Advocate; Ms. Ritika Meena, Advocate; Mr. Ranjay Dubey, Advocate; Mr. Rishabh Sharma, Advocate., Upon hearing the counsel, the High Court of Kerala made the following order: A Writ Petition invoking Article 226 of the Constitution has been filed before the High Court of Kerala on the same subject. On 21 November 2022, the Single Judge of the High Court passed an order directing Respondents Nos. 2-6 and all authorities thereunder or their agents to accept and process the notice to be given by the Petitioners under Section 5 of the Special Marriage Act, 1954, pending final disposal of this writ petition., The Deputy Solicitor General submitted that similar matters are pending before the High Court of Delhi and that the Ministry is taking steps to get all the writ petitions, including the instant case, transferred to the Honourable Supreme Court., We have heard Mr. Mukul Rohatgi, Mr. Neeraj Kishan Kaul and Dr. Menaka Guruswamy, Senior Counsel together with Mr. Saurabh Kirpal and Ms. Arundhati Katju, counsel appearing on behalf of the Petitioners., A list of petitions pending before various courts on the same subject has been tendered during the course of the hearing and is extracted below: 1. Nikesh P.P. & Anr. v. Union of India & Anr., Writ Petition (Civil) 2186/2020, Special Marriage Act. 2. Abhijit Iyer Mitra & Ors. v. Union of India & Anr., Writ Petition (Civil) 6371/2020, Hindu Marriage Act. 3. Vaibhav Jain & Anr. v. Union of India & Anr., Writ Petition (Civil) 7657/2020, Foreign Marriage Act. 4. Dr. Kavita Arora & Anr. v. Union of India & Anr., Writ Petition (Civil) 7692/2020, Special Marriage Act. 5. Udit Sood & Ors. & Anr. v. Union of India & Anr., Writ Petition (Civil) 2574/2021, Special Marriage Act. 6. Joydeep Sengupta & Ors. v. Ministry of Home Affairs & Ors., Writ Petition (Civil) 6150/2021, Foreign Marriage Act, Special Marriage Act and Citizenship Act. 7. Nibedita Dutta & Anr. v. Union of India & Anr., Writ Petition (Civil) 13528/2021, Hindu Marriage Act. 8. Zainab Patel v. Union of India & Anr., Writ Petition (Civil) 13535/2021, All Matrimonial Laws., Notice shall also be issued to the Attorney General for India, in addition.
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Special Leave Petition (C) No.11059 of 2020 is a writ petition filed in public interest under Article 32 of the Constitution of India. It questions the admission notification dated 03 September 2020 issued by National Law School of India University, Bengaluru for conducting a separate admission entrance examination, the National Law Aptitude Test (NLAT) scheduled for 12 September 2020. The petitioner seeks a direction to National Law School of India University (hereinafter referred to as NLSIU) to admit students only through the Common Law Admission Test 2020 (CLAT) examination scheduled to take place on 28 September 2020. The writ petition is filed by two petitioners: the father of a student aspiring to gain admission into the five‑year LL.B. programme of National Law University, and the former Vice‑Chancellor of National Law School of India University, Bengaluru., NLSIU, a premier law university of the country, was established pursuant to a joint initiative of the Supreme Court of India, the Bar Council of India and the Karnataka Bar Council. The Bar Council of India set up a society, namely National Law School of India Society, as a registered society under the Karnataka Societies Registration Act, 1960. Upon request to the Government of Karnataka for establishing the school as a university by a statute, the State Government established National Law School of India University, Bengaluru by the National Law School of India Act, 1986 (hereinafter referred to as the Act, 1986). The NLSIU was intended to be a premier school of legal education offering a five‑year undergraduate law course., Following the footsteps of NLSIU, the National Academy of Legal Studies and Research (NALSAR) was established in Hyderabad in 1998, the National University of Juridical Sciences, Kolkata (NUJS) was established in 1999, and the National Law Institute University, Bhopal (NLIU) was established by Act No. 41 of 1997 of the Madhya Pradesh Legislature. Over time, states enacted similar statutes to create institutions for legal education known as National Law Universities across the country. All the National Law Universities prescribed criteria for admission as well as syllabus structure. In the initial years, all National Law Universities conducted their own admission tests for admitting students to the five‑year law course., A writ petition, Writ Petition (C) No.68 of 2006, Varun Bhagat vs Union of India, was filed in the Supreme Court of India under Article 32 of the Constitution, impleading the Union of India through the Secretary, Ministry of Law, Justice and Company Affairs, the Ministry of Human Resource Development through its Secretary, the Bar Council of India, NLSIU, Bengaluru and five other National Law Universities. The writ petitioner prayed for a direction to lay down a mechanism of a centralized admission process to the various National Law Universities to facilitate the interests of the students. The Supreme Court of India issued notice. The Additional Solicitor General of India stated that the Ministry of Human Resource Development, in consultation with the various law universities and other concerned stakeholders, would take steps to examine and evolve a scheme or policy under which a combined entrance examination could be conducted for premier National Law Universities. The Government of India convened various meetings with directors, vice‑chancellors and other educational functionaries., In the counter‑affidavit filed on behalf of the Department of Higher Education, Ministry of Human Resource Development, detailed steps taken by the Ministry were enumerated, including details of various meetings held with vice‑chancellors of law universities between September 2006 and December 2006. Paragraph 10 of the counter‑affidavit stated: 'It is expected that all the required informational notes shall be received during the course of February 2007 and further steps shall be timely taken in order to ensure that the process of holding a Combined Admission Test for the academic session 2008‑2009 is put in place as expeditiously as possible.', The National Law Universities entered into a Memorandum of Understanding dated 27 November 2007, deciding to hold a common admission test, namely the Common Law Admission Test (CLAT). Each university would conduct the examination starting with the oldest university. When the writ petition No.68 of 2006 came for hearing on 25 July 2008, the Supreme Court of India noticed that the prayers sought in the writ petition had already been accomplished and disposed of the petition., The CLAT started to be held with effect from the year 2008 for admission to the five‑year law course of National Law Universities, providing relief to the student community aspiring to join a professional law course. The CLAT was conducted at different centres throughout the country. The number of National Law Universities kept on growing and currently there are twenty‑three National Law Universities in the country., Writ Petition (C) No.600 of 2015 was filed by Shamnad Basheer praying that an independent professional body conducting CLAT on an annual basis be constituted. The Supreme Court of India passed various orders in the writ petition. On 28 November 2018, the Court dismissed an application for intervention as withdrawn. Shri Atmaram N. S. Nadkarni, Additional Solicitor General appearing on behalf of the Union of India, Ministry of Human Resource Development, stated that the Government had prepared a report and would convene a meeting of all parties to the petitions, the National Testing Agency and the Bar Council of India, seek their views and make appropriate recommendations for holding the examination within four weeks., A meeting was held on 10 December 2018 by the Secretary, Department of Higher Education, Government of India, in compliance with the aforesaid order. The Bar Council of India, a statutory body, stated that it had no objection to the constitution of a consortium of NLSIU for conducting the examination, but as a key stakeholder it would be part of the monitoring body. The meeting highlighted the need for a robust, transparent and accountable institutional structure for conduct of the examination through a consortium of NLSIU, agreed by the petitioner, the Bar Council of India and the National Law Institute Association. The Consortium of National Law Universities was incorporated as a registered society under the Karnataka Registration of Societies Act, 1960 on 26 March 2019. The Vice‑Chancellor of NLSIU was to be the ex‑officio Secretary‑Treasurer of the Consortium., The Memorandum of Understanding of the Consortium noted the directions issued by the Supreme Court of India in Varun Bhagat vs Union of India and deliberations made by the University Grants Commission, Ministry of Human Resource Development and Government of India. The main aims and objectives of the Consortium, inter alia, were: (i) to provide the highest standards of legal education to make Indian legal education comparable with the most reputed international institutions; (iii) to provide better coordination among the National Law Universities and other legal institutions to achieve the highest standard of legal education in the country; (v) to administer, control and monitor the conduct of the All‑India common entrance examination for law (CLAT) on behalf of all participating National Law Universities and facilitate admission of students; (xi) to make the benefits of legal education of one or more National Law Universities available to the rest; (xix) to evolve uniform policies in terms of admission, course semester system, uniform grading system and the like in tune with global standards., Clause 5 provided for the governing body of the Society. The first governing body was constituted with sixteen academicians and vice‑chancellors, the first name being petitioner No.2, Prof. R. Venkata Rao, Vice‑Chancellor of NLSIU. Bye‑laws defined a member institution as a National Law University formally admitted to the membership of the Society in accordance with the bye‑laws, having paid the subscription fee and signed the master list of member institutions maintained by the Society., Clause XV dealt with membership. The bye‑laws required each member institution to ensure admission on merit assessed through CLAT. Paragraph 15.3.3 stated: 'In order that appropriate intellectual rigor may be maintained, a member institution shall ensure that admission to every academic course or programme of study shall be based on merit assessed through a transparent and reasonable evaluation namely CLAT operated by the Society, prior to admitting any student. Nothing in this provision shall prevent a member institution from making special provisions for the employment or admission of women, persons with disabilities or for persons belonging to any socially and educationally backward classes of citizens, in particular the Scheduled Castes and the Scheduled Tribes.', The Consortium successfully conducted the CLAT for admission in the academic year 2019‑20. For the academic year 2020‑21 the Consortium notified the schedule for admission, fixing 10 May 2020 for the CLAT 2020 test. Due to the pandemic caused by the COVID‑19 virus, a nationwide lockdown was imposed on 23 March 2020 by the Government of India. Consequently, the CLAT scheduled for 10 May 2020 was postponed. The Executive Committee of the Consortium on 29 June 2020 resolved to shift from a physical test to a centre‑based online test. The date 22 August 2020 was fixed for conduct of the test, but due to a surge in COVID‑19 cases and lockdown until 30 August 2020, the examination was postponed to 7 September 2020. The Executive Committee received a communication from Professor Nirmal Kanti Chakrabarti, Vice‑Chancellor, NUJS, Kolkata, that West Bengal had decided to impose a complete lockdown on 7 September 2020. The Consortium met on 28 August 2020 and postponed the examination to 28 September 2020., The five‑year degree course offered by NLSIU consists of five academic years, each divided into three trimesters, each term having a minimum of 70 working days. The academic terms ordinarily start from 1 July to 30 September, the second from November to February and the third from March to June. After the postponement of CLAT from 22 August 2020 to 7 September 2020, a faculty meeting of NLSIU was held on 6 August 2020 to consider a contingency plan to prevent a zero year., The faculty meeting discussed various possible solutions and noted that, as a last option, a separate admission procedure should be developed. An executive council meeting of NLSIU was held on 12 August 2020, resolving that if there is any further delay in the CLAT examination, the Vice‑Chancellor is empowered to take all necessary steps to ensure that the admission process for 2020‑21 is completed in September 2020. In an adjourned meeting of the executive council on 18 August 2020, the council reaffirmed the resolution to empower the Vice‑Chancellor and the university to conduct an independent admission process in the event of further delay. Another faculty meeting on 31 August 2020 noted that CLAT 2020 was postponed from 7 September 2020 to 28 September 2020. On 3 September 2020, NLSIU, Bengaluru issued a notice for admission to the five‑year B.A. LL.B. (Hons.) programme 2020‑21 proposing to conduct the NLAT test 2020 on 12 September 2020, with candidates to attempt the examination using a computer device at their respective locations. Paragraph 4.4.2 of the notice stated that candidates who have submitted a valid application form will be required to appear for the NLAT, an online entrance examination to be held on 12 September 2020, and that NLSIU shall not be responsible for any connectivity issues or failure of internet connection during the examination., A press release of NLSIU for admission 2020‑21 was issued on 4 September 2020. The Vice‑Chancellor, respondent No.2, gave an interview with Bar and Bench regarding the separate admission test, namely NLAT by NLSIU. The writ petition was filed in the Supreme Court of India on 8 September 2020 praying for: (i) an appropriate writ, order or direction to quash the impugned undated admissions notification released on 3 September 2020; (ii) an appropriate writ, order or direction to quash the impugned notification for technical/system requirements for NLAT 2020; and (iii) an appropriate writ, order or direction to direct respondent No.1 to admit students only through CLAT., On 11 September 2020, the Supreme Court of India, by issuing notice, directed that the examination for admission in pursuance to the notification dated 4 September 2020 may take place but neither the result shall be declared nor any admission be made consequent thereto. Counter‑affidavits have been filed by respondents No.1, 2 and 3, to which a common rejoinder‑affidavit has been filed on behalf of the petitioner. A sur‑rejoinder affidavit has also been filed by respondent No.1., The Special Leave Petition (C) No.11059 of 2020 was filed against the judgment dated 11 September 2020 of the High Court of Jharkhand at Ranchi in Writ Petition (C) No.2454 of 2020. The writ petition was filed by five students in the High Court of Jharkhand praying for quashing the notification dated 3 September 2020 issued by NLSIU for declaring a separate examination for admission to its five‑year LL.B. (Hons.) course. The petitioners had registered for the CLAT 2020 to be conducted by the CLAT Consortium and challenged the notice dated 3 September 2020 issued by NLSIU. The High Court dismissed the writ petition. The Special Leave Petition challenges that judgment. The petitioners also filed Interim Application No.91083/2020 in writ petition No.1030 of 2020 to intervene, pleading that they had applied for the undergraduate examination through CLAT 2020 and prepared for it for a couple of years. The notice dated 3 September 2020 came as a surprise to the applicants, who, aggrieved, filed the writ petition in the High Court., The learned senior counsel Shri Nidesh Gupta, appearing for the petitioners, submitted that the notification dated 3 September 2020 issued by respondent No.1 notifying a separate admission test NLAT is in breach of the statutory provisions of the Act, 1986. He argued that under the Act, the Academic Council of NLSIU is empowered with regard to admission of students, whereas the Executive Council has no power to determine the mode of enrolment. Section 13 empowers the Executive Council to frame regulations for administration and management of the school, but the second proviso stipulates that, except with the prior concurrence of the Academic Council, the Executive Council shall not make any regulation affecting mode of enrolment or admission. He submitted that no meeting of the Academic Council was held nor any resolution obtained before issuing the notice dated 3 September 2020. He referred to the schedule to the Act, which enumerates the powers and duties of the Academic Council, including the power to appoint committees for admission, and noted that the Executive Council does not have such power. He further submitted that NLSIU, as a member of the Consortium, was obliged to admit students on the basis of the CLAT 2020, and that the decision to conduct a combined test was arrived at by the direction issued by the Supreme Court of India in Varun Bhagat vs Union of India and subsequent deliberations by the University Grants Commission, Ministry of Human Resource Development and Bar Council of India. He argued that respondent No.1, still a member of the Consortium, had no authority to conduct a separate NLAT for admission for the year 2020‑21., Shri Gopal Sankaranarayan, learned senior counsel for petitioner No.1, submitted that unilateral withdrawal from CLAT 2020 by respondent No.1 was not possible. He noted that students had been preparing for CLAT 2020 in a particular manner and were suddenly told to appear for NLAT, which is in a different format. He observed that the executive council meeting of 28 August 2020 did not indicate that a separate entrance test would be held if CLAT was postponed, and that the notification dated 3 September 2020 was surprising. He pointed out that respondent No.1 conducted three exams on 12 September 2020 and a retest on 14 September 2020, and that the excuse of a zero year was a bogus justification., Shri Arvind Datar, learned senior counsel for respondent No.1, contended that the writ petitioners have no locus to file the petition, that petitioner No.2, a former Vice‑Chancellor, has no locus to challenge the admission notification, and that at best the Consortium could be said to be aggrieved, which has not approached the Court. He argued that due to inordinate delay in conducting CLAT 2020, respondent No.1 had no option except to hold a separate test to save the academic year 2020 from being declared a zero year. He submitted that NLSIU maintains a trimester system with each trimester requiring a minimum of 70 working days, and that unless the first trimester starts from 18 September 2020, respondent No.1 could not complete all three trimesters. He stated that NLSIU made bona‑fide efforts to convince the Consortium to conduct CLAT 2020 in a timely manner, and that the faculty meeting on 6 August 2020 resolved that NLSIU needed to take all necessary steps to avoid a zero year., Shri Datar further submitted that under Section 10, the Executive Council is the chief executive body of the school with the right of administration, management and control, which includes the right to admit students. He referred to the first Executive Council meeting dated 29 August 1987/30 August 1987 wherein the mode of admission was decided by the Executive Council as a common entrance test, and argued that the determination of the method of admission vests with the Executive Council. He contended that the second proviso to Section 13 of the Act, 1986, has no application because no regulation regarding admission has yet been framed. He also relied on Clause 18(5) of the schedule to the Act, 1986, giving the Vice‑Chancellor emergency powers with regard to compliance with the Consortium bye‑laws. He asserted that the process for admission initiated by the notice of 3 September 2020 was transparent, that the application fee of Rs 150 for general category candidates and Rs 125 for SC/ST candidates was affordable, and that the online home‑proctored examination incorporated extensive human and AI proctoring, pre‑exam, during‑exam and post‑exam checks, as well as an independent forensic audit. He argued that allegations of malpractice and paper leakage were not credible and that there was no violation of Article 14 of the Constitution of India., Shri Sajan Poovayya, learned senior counsel for respondent No.2, submitted that respondent No.2 was bound by the resolutions of the Executive Council on 12 August 2020 and 18 August 2020, and that the faculty meeting on 6 August 2020 had taken the best option. He argued that only the General Body of the Consortium could have taken the decision to adjourn the CLAT examination, and that the decision on 28 August 2020 to postpone the examination from 7 September 2020 to 28 September 2020 was taken by the Executive Committee of the Consortium, which had no authority. He noted that until 5 August 2020 respondent No.2 had not taken any action for a separate examination, and that on 31 August 2020 the entire faculty again met and decided for a home‑based computer test., Shri P. S. Narasimha, learned senior counsel for respondent No.3, stated that the Consortium was formed as described, and referred to the orders of the Supreme Court of India in Varun Bhagat vs Union of India and Shamnad Basheer vs Union of India.
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He submits that due to judicial interventions and considerable time and effort from all the stakeholders, the different Universities have come together to form the Consortium, whose primary objective is to conduct the Common Law Admission Test for the benefit of admissions of all its members., The Consortium and all the members of the Society ought not to be relegated to the status of a private society or club. Although Universities joining the Consortium have done so voluntarily, the fact remains that statutorily set up Universities bear statutory duties and have come together to form the Consortium to achieve a statutory purpose. With the formation of the Consortium, statutory obligations of the respective Universities to regulate their admission procedure stand jointly crystallized and vested in the Consortium. In effect, the Consortium today undertakes a statutory function in furtherance of a laudable public purpose., The Bye-Laws of the Consortium are to be harmoniously read with the statutory prescriptions of the respective Universities under the State legislations. The institutional integrity of the Consortium, which has been achieved after a long process, must be preserved and facilitated for the purpose for which it is established. It must rigorously demonstrate transparency and uphold the trust reposed on it by its beneficiaries., The Consortium was kept in the dark about the decision of respondent Nos. 1 and 2 to hold a separate entrance examination until the issuance of the notification dated 03.09.2020. In the Consortium meeting dated 10.08.2020, respondent No. 2 did not inform about the Faculty meeting dated 06.08.2020. Further, respondent No. 2 failed to disclose the decisions arrived at the Executive Council meetings dated 12.08.2020 and 18.02.2020 to the Consortium in its meeting dated 28.08.2020. While conducting the Common Law Admission Test, the Consortium essentially undertakes a statutory public duty and must not betray the trust reposed in it by the aspirants. The abrupt decision of respondent No. 1 to hold its own examination, without taking the Consortium into confidence, undermines the credibility of the Consortium., Shri Nayyar, appearing for the Special Leave Petition petitioners as well as in Interlocutory Application No. 91083 of 2020, submits that the applicants are the students who have registered themselves for the Common Law Admission Test 2020 and they have challenged the notice dated 03.09.2020 in the Jharkhand High Court, which writ petition has been dismissed, resulting in filing of Special Leave Petition (C) No. 11059 of 2020. The applicants have also filed Interlocutory Application No. 91083 of 2020 in Writ Petition No. 1030 of 2020 and have supported the cause of the writ petition. Shri Nayyar further submits that the above applicants also appeared in the examination held on 12.09.2020. He submits that all‑India tests are being conducted which have their own benefits. Shri Nayyar submits that when the decision was taken by the Consortium on 18.05.2020 to postpone the examination fixed for 21.06.2020, it was mentioned that 21 days’ notice would be given to the students for fixing a date. He has also submitted that the test conducted on 12.09.2020 was neither transparent nor fair. A mock test was held only one day before. Shri Nayyar submits that there is negative marking of 0.25 for not answering a question, which was not a condition in the Common Law Admission Test. He submits that one of the reasons for the respondent to proceed to hold a separate test is an alleged loss of 17 crores, which cannot be a relevant reason., Shri Gopal Sankaranarayan, learned counsel appearing for the petitioner, contended that the Academic Council consists of Judges of the Supreme Court of India, whose meetings were neither called nor convened by respondent No. 1. He reiterates that it is the Academic Council which is the body competent to take decisions regarding admission and procedure of admission. He has referred to Clauses 13 and 14 of the Schedule to the National Law School of India Act, 1986., Learned counsel for the parties have also referred to several judgments of this Court which shall be referred to while considering the submissions of the parties. We have considered the submissions of the parties and have perused the records., From the submissions of the learned counsel for the parties and pleadings, the following questions arise for consideration: (1) Whether the petitioners have locus to file the writ petition? (2) Whether the admission notification dated 03.09.2020 by respondent No. 1 could have been issued only after recommendations to that effect by the Academic Council, which is the statutory authority under the National Law School of India Act, 1986 for admission of the students to the five‑year integrated B.A.LL.B. (Hons.) Programme 2020? (3) Whether respondent No. 1, being a founder member of the Consortium of National Law Universities, a registered society, is bound by its Bye‑Laws and was obliged to admit the students for the integrated B.A.LL.B. (Hons.) Programme through the Common Law Admission Test 2020? (4) Whether the online home‑proctored examination proposed by the notification dated 03.09.2020 lacks transparency, is against the very concept of fair examination and violative of the rights of the students under Article 14 of the Constitution? (5) Whether the National Law Admission Test held on 12.09.2020 with a retest on 14.09.2020 was marred by malpractices and deserves to be set aside?, Shri Arvind P. Datar, learned senior counsel appearing for respondent No. 1, has questioned the maintainability of the writ petition at the instance of petitioners Nos. 1 and 2. He submits that petitioner No. 1 claimed to be the father of an aspiring law student; however, no material has been placed on record to depict the said fact. Petitioner No. 2 is the Chairperson of a private law college, which is not a member of the Consortium; hence, respondent No. 2 is not aggrieved in any manner., The objection raised by the learned senior counsel for the respondent has been refuted by the learned counsel for the petitioners. It is submitted that the writ petition, which has been filed in the public interest, is fully maintainable at the instance of the petitioners. It is submitted that petitioner No. 1, being the parent of an aspiring law student, can very well maintain the writ petition to secure the future of his ward. Petitioner No. 2 has been the ex‑Vice Chancellor of respondent No. 1 and was a founder member of the Consortium, which was registered as a society under the Karnataka Societies Registration Act, 1960. It is submitted that petitioner No. 2, who has been at the helm of affairs and has been associated with legal education, has every right to espouse the cause of education and students., It is true that although petitioner No. 1 claimed to be the parent of an aspiring law student, no details have been given in the writ petition or in the common rejoinder affidavit as to whether the ward of petitioner No. 1 is an applicant to the Common Law Admission Test 2020. The petitioner No. 1 in the writ petition has pleaded that he is the parent of a Common Law Admission Test 2020 aspirant, who also seeks to represent various similarly placed students across the nation, who are aggrieved. In paragraph 5 of the writ petition, it is pleaded that petitioner No. 2 is a notable legal scholar whose involvement in the development of legal education in India and, more particularly, the respondent No. 1 University is paramount. The petitioner No. 2 has previously served as the Vice Chancellor of respondent No. 1 University and has also closely contributed to the development of the Common Law Admission Test. The petitioner No. 2, with his vast experience in the academic sector, is aggrieved by the arbitrary conduct of respondent No. 1 University., Even though details of petitioner No. 1’s ward have not been given except that he is a parent of a Common Law Admission Test 2020 student, in view of the credentials of petitioner No. 2 as noted above, we are of the view that the writ petition is fully maintainable at his instance. The affidavit in support of the writ petition has been sworn by petitioner No. 2, and a common rejoinder affidavit has also been sworn by petitioner No. 2. The Memorandum of Association of the Consortium of National Law Universities, which is a registered society under the Karnataka Societies Registration Act, 1960, registered on 26.03.2019, contains a list of Initial Members Subscribers of the Consortium in which the name of petitioner No. 2 was mentioned as Member Subscriber No. 1. Petitioner No. 2, being Vice‑Chancellor of respondent No. 1, became the ex‑officio Secretary‑Treasurer of the Society; his details are also mentioned in paragraph 7 of the Memorandum. A person who has worked as Vice‑Chancellor of respondent No. 1 and was also a member of the Consortium, which is entrusted to conduct the Common Law Admission Test, is fully competent to espouse the cause of education by means of the writ petition. We thus reject the objection of the respondent that petitioners have no locus to file the writ petition. It is also relevant to notice that along with the writ petition a Special Leave Petition (C) No. 11059 of 2020 has been listed, which has been filed by five petitioners who were candidates for the Common Law Admission Test 2020‑2021. The admission notice dated 03.09.2020 was challenged by them by means of Writ Petition (C) No. 2454 of 2020 in the High Court of Jharkhand at Ranchi, which writ petition was dismissed. Challenging that judgment, they have filed the aforesaid Special Leave Petition., The above five petitioners have also filed an application Interlocutory Application No. 91083 of 2020 in Writ Petition (C) No. 1030 of 2020 to intervene in the matter, they being affected and aggrieved persons by the notice dated 03.09.2020. Those students, who are aggrieved by the admission notification dated 03.09.2020, are also before this Court, represented by Shri Nikhil Nayyar, learned senior counsel., We are of the view that the issues raised have to be decided on merits, rejecting the objection of respondent No. 1 regarding locus., As noted above, the submission of Shri Nidesh Gupta, learned senior counsel for the petitioners, is that it is the Academic Council of respondent No. 1, which is the statutory authority under the National Law School of India Act, 1986, to take decisions regarding admission of the students in the integrated B.A.LL.B. (Hons.) Programme. Shri Arvind Datar, learned senior counsel appearing for respondent No. 1, has relied on Minutes of the Executive Council dated 12.08.2020 and 18.08.2020 and contends that the Executive Council of respondent No. 1 is fully authorised and entitled to take a decision regarding admission of the students and that the actions taken by the Vice‑Chancellor in pursuance of the aforesaid decision of the Executive Council are fully valid and are in accordance with the provisions of the Act, 1986., Before we enter into the respective submissions of the learned counsel for the parties regarding the above question, we may notice the provisions of the statute in the above regard. The National Law School of India Act, 1986 was enacted to establish and incorporate the National Law School of India University at Bengaluru (now Bengaluru). Under Section 8, authorities of the school have been enumerated, which includes the Executive Council as well as the Academic Council. Section 10 deals with the Executive Council to the following effect:, Section 10. The Executive Council. (1) The Executive Council shall be the chief executive body of the School. (2) The administration, management and control of the School and the income thereof shall be vested with the Executive Council which shall control and administer the property and funds of the School., Section 11 of the Act deals with the Academic Council in the following manner: The Academic Council shall be the academic body of the School, and shall, subject to the provisions of this Act and the regulations, have power of control and general regulation of, and be responsible for, the maintenance of standards of instruction, education and examination of the School, and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by this Act or the regulations. It shall have the right to advise the Executive Council on all academic matters., The Executive Council is empowered to frame Regulations to provide for the administration and management of the affairs of the school under Section 13 of the Act. Section 13 provides that, subject to the provisions of the Act, the Executive Council shall have, in addition to all other powers vested in it, the power to frame regulations, provided that the Executive Council shall not make any regulation affecting the status, powers or constitution of any authority of the School until such authority has been given an opportunity to express an opinion in writing, and that except with the prior concurrence of the Academic Council, the Executive Council shall not make, amend or repeal any regulation affecting matters including (g) mode of enrolment or admission of students., The Academic Council shall have the power to propose regulations on all the matters specified in (a) to (h) above and matters incidental and related thereto. Where the Executive Council has rejected the draft of a regulation proposed by the Academic Council, the Academic Council may appeal to the Chancellor, who may direct that the proposed regulation be laid before the next meeting of the General Council for its approval., Section 18 deals with authorities and officers of the school, their composition, powers and functions, subject to the provisions of the Act, as specified in the Schedule or as may be provided by the regulations., The Schedule provides for membership, term and powers of the Executive Council. Clause 9 of the Schedule provides for powers and functions of the Executive Council, including appointment of Vice Chancellor, Registrar, Professors, creation of posts, management of finances, investment, property, contracts, provision of buildings, adjudication of grievances, appointment of examiners, selection of common seal, and other duties., Clause 14 deals with powers and duties of the Academic Council. Subject to the provisions of the Act and the regulations, the Academic Council shall have powers to report on matters referred by the General Council or Executive Council, make recommendations on teaching posts, formulate schemes for faculties, make arrangements for instruction and examination of persons other than those enrolled, promote research, consider proposals, appoint committees for admission, recognise diplomas and degrees of other universities, fix conditions for fellowships and scholarships, make recommendations on appointment and removal of examiners, conduct examinations, declare results, award degrees and honours, award stipends, scholarships, medals and prizes, publish prescribed textbooks and syllabus, prepare forms and registers, and perform all duties necessary for proper carrying out of the provisions of the Act and the regulations., We having noticed the statutory provisions under the Act, 1986, now proceed to consider the respective submissions of the learned counsel for the parties. The question for consideration is whether, with regard to admission of students, recommendation of the Academic Council is a statutory requirement., Shri Datar submits that, as per Section 10, the Executive Council is the Chief Executive Body of the school and the administration, management and control of the school is vested with the Executive Council; hence, with regard to admission of students, power is vested with the Executive Council. He submits that admission of students is one of the facets of administration. He has relied on the judgment of this Court in T.M.A. Pai Foundation and Ors. Vs. State of Karnataka and Ors., (2002) 8 SCC 481, where paragraph 50 held that the right to establish and administer broadly comprises the right to admit students., There can be no dispute that the Executive Council is the Chief Executive Body of the school and that the right to admit students is included in its administration, but the statute must be further examined to determine whether any other statutory provisions regulate admission of students or whether any other authority of the school is vested with the power to decide admission., To buttress his submission, Shri Gupta has placed reliance on the second proviso of Section 13 of the Act. Section 13(1) empowers the Executive Council to frame regulations, but the power is conditioned by the second proviso, which provides that, except with the prior concurrence of the Academic Council, the Executive Council shall not make, amend or repeal any regulation affecting matters including (g) mode of enrolment or admission of students., Shri Datar submits that there can be no quarrel with the statutory requirement contained in the second proviso to Section 13; however, he submits that the second proviso is not applicable in the present case, since no regulations have been framed regarding enrolment or admission of students. When no regulations have been framed and the Executive Council has not proposed any regulation or amendment therein, the embargo under the second proviso is not attracted. He further submits that the power under Section 13 to frame regulations is a separate and independent power. When the power is given to the Executive Council under Section 10, he submits that even if no regulations were framed by the Executive Council under Section 13, it can exercise its general power conferred by Section 10 of the Act. Shri Datar has placed reliance on the judgment of this Court in PTC India Limited Vs. Central Electricity Regulatory Commission, (2010) 4 SCC 603. The Constitution Bench held that the functions enumerated in one provision are separate and distinct from the power to make regulations in another provision., We may notice another judgment of this Court in V.T. Khanzode and Ors. Vs. Reserve Bank of India and Anr., (1982) 2 SCC 7. Section 58(1) of the Reserve Bank of India Act, 1934 provides that the Central Board may, with the previous sanction of the Central Government, make regulations consistent with the Act. No regulations were framed under Section 58(1). The Court held that the power to make regulations is an enabling provision and that the Board may exercise its general power of administration and superintendence even without framed regulations.
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We find substance in the submission of Shri Datar that power under Section 13 empowering the Executive Council to frame regulations and power under Section 10 to administer, manage and control the school are two separate powers and even though the regulations have not been framed under Section 13 regarding admission of the students, the Executive Council can very well exercise its power under Section 10 to administer, manage and control the affairs of the school. However, the provisions contained in Section 13 throw considerable light on the statutory scheme. The second proviso providing for prior concurrence of the Academic Council on enumerated subjects including mode of enrolment and admission of students has been provided for since under the Scheme of the Statute it is the Academic Council which has been empowered to take decisions regarding mode of enrolment or admission of students, which we shall notice hereinafter. The above restriction in regulations making power of the Executive Council has been engrafted with purpose and object. The subjects which are mentioned under second proviso where prior concurrence of the Academic Council is required are all matters which are in domain of the Academic Council, thus, even though strictly second proviso of Section 13(1) is not attracted when no regulations have been framed by the Executive Council but the object and purpose for conditioning the exercise of regulation making power of the Executive Council cannot be lost sight. Sub‑section (3) of Section 13 also contains a special provision which provides that where the Executive Council rejects the draft of a regulation proposed by the Academic Council, the Academic Council may appeal to the Chancellor and the Chancellor may, by order, direct that the proposed regulation may be laid before the next meeting of the General Council for its approval and pending such approval of the General Council it shall have effect from such date as may be specified in that order. Thus, Academic Council regulations which even though rejected by the Executive Council can be allowed to operate by the Chancellor and required to be placed before the General Council for approval and after approval it shall be operated. The above provision indicates that in certain matters the recommendations of the Academic Council have been given prominence and as per subsection (2) of Section 13, the Academic Council shall have the power to propose regulations on all the matters specified in (a) to (h) as enumerated in the second proviso of sub‑section (1) of Section 13. Thus, Academic Council can propose regulations on mode of enrolment and admission of students also., Now, we proceed to examine the other provisions of the Statute to find out as to whether apart from provisions of Section 13 whether there are any other statutory provisions empowering the Academic Council to take decisions regarding admission of students. As noted above, Section 18 of the Act provides that composition, powers and functions of the authorities of the school subject to the provisions of the Act shall be as specified in the Schedule. Clause 14 of the Schedule provides subject to the provisions of this Act and the regulations, the Academic Council shall, in addition to all other powers vested in it, have the following powers namely: (7) to appoint committees for admission to the School; (11) to make arrangements for the conduct of examinations and to fix dates for holding them; (16) to perform, in relation to academic matters, all such duties and to do all such acts as may be necessary for the proper carrying out of the provisions of this Act and the regulations., The above provisions in the Schedule specifically empower the Academic Council to appoint the committees for admission to the school. Admissions to the school, thus, were contemplated to be under the control of Academic Council and the appointment of committees was with the purpose to monitor and conduct the admission of the school. When the Act was enacted in 1986, no procedure was in place regarding admission and the Statute empowered the Executive Council to appoint committees for admission to the school. By virtue of Clause 14(16) with regard to appointment of committees for admission to the school, the Academic Council was to perform all such duties and to do all such acts as may be necessary for the proper carrying out of the provisions of the Act. Thus, the above statutory provision gave all incidental power to the Academic Council in relation to the admission., Now, we contrast with the power given to the Academic Council with regard to admission to the school with that of the powers and functions of the Executive Council as given in Clause 9. The powers given to the Executive Council under Clause 9 can be divided in three parts: (i) sub‑clauses (1), (2), (3) & (9) relate to appointment and service conditions; (ii) sub‑clauses (4), (5), (6), (7) & (8) relating to finance and properties; and (iii) other contains clauses (10), (11) and (12). Clause (11) empowers the Executive Council to select a common seal for the school and sub‑Clause (12) is a general power providing that Executive Council may exercise such other powers and perform such other duties as may be imposed., We are left with only Clause i.e. sub‑Clause (10) which is to the following effect: to appoint examiners and moderators, and if necessary to remove them and fix their fees, emoluments and travelling and other allowances after consulting the Academic Council. Shri Arvind Datar while referring to power of the Academic Council given in Clause 14 sub‑clause (11), which empowers the Academic Council to make arrangements for the conduct of examinations and to fix dates for holding them, submitted that the said power relates to conduct of examination of various courses, which are run by the school. Sub‑clause (10) of Clause 9 of Schedule has to be, thus, also read to mean that appointment of examiners and moderators is with regard to courses run by the school. It is relevant to notice that even the power to appoint examiners and moderators is with the condition, i.e., after consulting the Academic Council. When appointment of examiners by the Executive Council is by consultation of the Academic Council, how can in the mode and manner of the admission of the students, the Academic Council be ignored. The Statutory Scheme of the Act as delineated above, thus, indicates that there is no specific power given to the Executive Council with regard to admission of students except the general power of the Executive Council as contained in Section 10 whereas the statutory provision of Clause 14 of the Schedule specifically empowers the Academic Council to appoint committees for admission to the school., Thus, the Statute contemplated admission to the school under the aegis of Academic Council. Sub‑clause (7) of Clause 14 read with sub‑clause (16) of Clause 14 of Schedule clothes the Academic Council with all powers including mode and manner of admission of the students. Section 11 of the Act also needs to be referred to. Section 11 of the Act provides that Academic Council shall be the academic body of the school and shall have power of control and general regulation of, and be responsible for the maintenance of standards of instruction, education and examination of the school. Section 11 used the three expressions namely power of control, general regulation of and be responsible. The expressions used in Section 11 are maintenance of standards of instruction, education and examination of the school., It is now settled law that the standards of education include admission to the course. The Constitution Bench of the Supreme Court of India in Dr. Preeti Srivastava and Anr. Vs. State of M.P. and Ors., (1999) 7 SCC 120 held that norms of admissions can have direct impact on the standards of education. In paragraph 36, the Court laid down: “It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education.”, When the Academic Council has been given power of control, general regulations and is responsible for maintenance of standards of instruction, education and examination of the school, one of its functions, undoubtedly, is to regulate the admission of students. Reading of Section 11 with Section 18 and Clause 14 of the Schedule clearly provides for the role of Academic Council in the admission of students., At this stage, we may also refer to the meeting of the Executive Council dated 29.08.1987 and 30.08.1987 relied by Shri Arvind Datar, learned senior counsel for the respondent No.1. The proceedings have been brought on the record along with the counter affidavit of respondent No.1. Item No. 16 of the meeting dealt with selection of students. It is relevant to extract the item no. 16 of the proceedings which is to the following effect: Item No.16 Selection of Students – The draft proposal of the Academic Council to have the selection of the students done through an all India admission test and interview was approved. The procedure for admission test and the selection may be decided by the Academic Council and implemented by the Director. However, the Executive Council disapproved the recommendation of the Academic Council to pay one‑way second class train fare to the students called for the interview. The Council noted the sample objective type question paper prescribed by the two experts on the request of Professor Upendra Baxi. However the matter of finalising the test was left to the Academic Council and the Director. The Council noted the format of admission test provided by M/s R.C. Mishra and C.B. Dwivedi of Banaras Hindu University as the instance of Professor Upendra Baxi. The Council also noted the recommendations of Dr. Baxi to pay an honorarium of Rs.1,000.00 to each of the two professors for the work in this regard. The Council approved the payment accordingly of Rs.2,000.00 (Rs.1,000.00 to each) and authorised the Director to write thanking the professors for their contribution. For expenses involved in organising the test and interview, the Council approved a budget allotment of an amount not exceeding Rs.25,000.00. The Council further decided that the admission to the Ist Year LL.B. class be limited to 80 students and for LL.M. class the admission be limited to 10 students. The application fee for admission test and interview may be fixed at Rs.125.00 for LL.B. though it may be reduced to Rs.50/- in the case of SC/ST candidates., The above resolution of the Executive Council indicates that it was a draft proposal of the Academic Council regarding admission test, which was approved by the Executive Council. The next following sentence in the resolution is relevant: the procedure for admission test and the selection may be decided by the Academic Council and implemented by the Director. The respondent No.1 himself has brought on the record the proceedings of the meeting of the Academic Council dated 12.12.1987 as Annexure R‑1/2 where the mode of selection of the students to the LL.B. Programme was provided for. Thus, the above proceedings of Executive Council and Academic Council itself make it clear that the Executive Council was of the opinion that it is the Academic Council who is the statutory authority regarding mode and manner of the admission of the students in the LL.B. course. The above proceedings of the Executive Council dated 29.08.1987 and Academic Council dated 12.12.1987 fully support the submission of the learned counsel for the petitioners that it is the Academic Council who is empowered under the statute to take a resolution regarding admission of the students in the, The authorities of the University exercise powers and functions as entrusted to them in the Statute. The Supreme Court of India in Marathwada University Vs. Seshrao Balwant Rao Chavan, (1989) 3 SCC 132 while considering the provisions of the Marathwada University Act, 1974, held that when a Statute prescribes a particular body to exercise a power, it must be exercised only by that body. In paragraph 20, the Court observed: “Counsel for the appellant argued that the express power of the Vice‑Chancellor to regulate the work and conduct of officers of the University implies as well the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under Section 24(1)(xxix) of the Act. It is, therefore, futile to contend that the Vice‑Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the Act prescribes a particular body to exercise a power it must be exercised only by that body. It cannot be exercised by others unless it is delegated.”, We, however, make it clear that Executive Council in its resolution dated 12.08.2020/18.08.2020 in exercise of general power of administration could have very well taken any resolution regarding completion of admission process but for implementing the decision of 12.08.2020/18.08.2020 the recommendation of Academic Council was required to be obtained regarding mode and manner of conducting separate admission tests by respondent No.1. The recommendation of Academic Council was necessary for holding a separate entry test namely National Law Admission Test (NLAT) especially when respondent No.1 was proposing to hold the above test instead of admitting the students by the Common Law Admission Test (CLAT) from which common law admission test, admission in LL.B. course was being done for more than a decade. When the respondent No.1 wanted to conduct NLAT as an online home‑proctored test of 45 minutes containing 40 questions which mode and manner was different from earlier prescriptions, the recommendations of Academic Council were a must. The proceedings of the Executive Council meeting, which has been relied upon by respondent No.1 dated 12.08.2020, recorded that it was resolved unanimously that if there is a further delay in CLAT, the Vice‑Chancellor is empowered to take all necessary steps to ensure that the admission process for 2020‑21 is completed in September 2020. National Law School of India University (NLSIU) is authorized to run its own admission process and conduct an independent admission test if necessary if there is further postponement of the CLAT exam. On 18.08.2020 the Executive Council unanimously reaffirmed its resolution taken on 12.08.2020 to empower the Vice‑Chancellor and the University to conduct an independent admission process in the event that CLAT 2020 is delayed further. The resolution was empowering the Vice‑Chancellor to take all necessary steps. All necessary steps have to be understood as steps which are required to be taken as per the statute. When the Act, 1986 empowers the Academic Council to take decision regarding admission of the students in the LL.B. Course and with regard to mode and manner of conducting the admission test, it was obligatory for the Vice‑Chancellor to have obtained the recommendations of the Academic Council. The Vice‑Chancellor himself is the Chairman of the Academic Council and there was no difficulty; with regard to meetings of the Academic Council Clause 15 sub‑clause (6) provides that if urgent action by the Academic Council becomes necessary, the Chairman of the Academic Council is empowered to permit the business to be transacted by circulation of papers to the members of the Academic Council., We, thus, are of the considered opinion that respondent No.1 was required by the Statute to obtain recommendation of Academic Council before proceeding to hold NLAT by issuing admission notification dated 03.09.2020. We, thus, in view of the foregoing discussions, hold that admission notification dated 03.09.2020 issued by respondent No.1 could not have been issued without obtaining the recommendation to this effect by the Academic Council. Admission notification dated 03.09.2020 having been issued without recommendation of Academic Council is not in accordance with the provisions of the Act, 1986 and is unsustainable., Whether the respondent No.1 being founder member of Consortium of National Law Universities, a registered society, is bound by its Bye‑Laws and was obliged to admit the students for integrated B.A. LL.B. (Hons.) Programme through the Common Law Admission Test (CLAT) 2020? We have noted above the sequence of events leading into the creation of a Consortium of National Law Universities. A Memorandum of Understanding was signed by seven, then existing National Law Universities on 23.11.2007 to hold the Combined Admission Test to be organised by NLU on rotation basis on the basis of seniority. In November 2014, in a meeting of Vice‑Chancellors of National Law Universities, the decision was taken to constitute a Consortium of National Law Universities. The Consortium got registered as a Society in Karnataka Societies Registration Act, 1960 on 26.03.2019. The Consortium in its various meetings took decisions to streamline conduct of the Common Law Admission Test (CLAT) and for coordination and cooperation among NLUs. One of the aims and objectives of the Society as incorporated in the Memorandum is to the following effect: “To administer, control and monitor the conducting of all India common entrance examination for law i.e. CLAT, for and on behalf of all the participating NLUs, and facilitate admission of students into various NLUs in the country.”, The aims and objectives further disclosed that the Consortium aims to make the benefit of legal education of one or more NLUs to the rest of the NLUs. Clause 3 deals with the governance of the society. Clause 3.3 provides that the society shall exercise powers and perform functions as enumerated therein. Clause 3.3.5 provides that the society shall organise Common Admission Test for undergraduate, postgraduate, Doctoral, Post‑Doctoral courses for the National Law Universities across the country. Clause 3.3.6 provides that the society shall provide a platform for admission to all National Law Universities in India through CLAT for undergraduate and postgraduate Law courses if such National Law Universities become the members of the society., The President and Vice‑President under the Bye‑Laws are to be elected at the annual meeting of the governing body. As per Bye‑Law clause 12.1, Vice‑Chancellor of National Law School of India University, Bangalore shall be ex‑officio Secretary Treasurer of the society. Bye‑Law 15 deals with Membership whereas Bye‑Law 15.3 contains the heading Requirement of Membership. Bye‑Laws 15.3.1 and 15.3.3 which are relevant are as follows: 15.3.1 – The obligation of membership is to ensure that the Member institution reflects the core values and standards set by the Consortium with appropriate respect for the autonomy of its Member institution. 15.3.3 – In order that appropriate intellectual rigor may be maintained, a Member institution shall ensure that admission to every academic course or programme of study in each Member institution shall be based on merit assessed through a transparent and reasonable evaluation namely CLAT operated by the Society, prior to admitting any student. Provided that nothing in this provision shall be deemed to prevent a Member institution from making special provisions for the employment or admission of women, persons with disabilities or for persons belonging to any socially and educationally backward classes of citizens and, in particular, for the Scheduled Castes and the Scheduled Tribes., A perusal of the Memorandum of Association and Bye‑Laws indicates that laudable objects for which National Law Universities came together stood cemented by the Consortium being registered as a society. As of date, there are 23 National Law Universities which are part of the Consortium. We have noticed above that the respondent No.1 was the first National Law University which came into existence by Act, 1986 of Karnataka Legislature. Other States followed the suit creating National Law Universities. Different National Law Universities established in different parts of the Country have contributed immensely to the cause of legal education., National Law School of India University, Bangalore from the beginning shouldered the leading role in conduct of CLAT. Different National Law Universities have been established by different statutes and have statutory functions and obligations to achieve a common purpose and to give a boost to legal education in the country. They have themselves imposed obligations on them to be a part of the Consortium for a common cause. CLAT being an All India Examination for different National Law Universities has achieved its own importance and prominence in legal education. The steps taken by National Law Universities to form a Consortium and to cooperate with each other in conduct of CLAT is towards discharge of their public duty entrusted under the different statutes. The duty to uphold its integrity lies on the shoulder of each and every member., Thousands of the students who aspire to have a career in law look forward to the CLAT as a prestigious test and CLAT has proved its usefulness and utility in this country. Students look forward to the Consortium for providing correct and fair assessment of the merits of the students. The Bye‑Laws under which members are required to admit the students in their law universities on the basis of the CLAT for undergraduate and postgraduate law courses are binding on the members. Bye‑Laws although are non‑statutory they have been framed with the aim and object to be followed by its members., Even though obligations on members of the Consortium under the Bye‑Laws are not statutory obligations, those obligations are binding on the members. All members occupying significant and important status have to conduct themselves in a fair and reasonable manner to fulfil the aspirations of thousands of students who look on these National Law Universities as institutions of higher learning, personality and career builders. Further the statutes under which National Law Universities have been established cast public duties on these NLUs to function in a fair, reasonable and transparent manner. These institutions of higher learning are looked upon by society and students with respect and great trust. All NLUs have to conduct themselves in a manner which fulfills the cause of education and maintains the trust reposed on them., Shri Datar submits that Bye‑Laws are in the nature of contract between the society and its members. Shri Datar also referred to the judgment of the Supreme Court of India in Hyderabad Karnataka Education Society versus Registrar of Societies and others, (2000) 1 SCC 566. The Court in the above case had occasion to consider the Karnataka Societies Registration Act, 1960, under which the Consortium has been registered. The submission was made before the Court that Bye‑Laws of the society bind both the parties with which the Court expressed its concurrence. In paragraph 28, the Court observed: “Before leaving the discussion on this point, we may mention that learned senior counsel for the appellant, Shri Sanyal, placed reliance on some of the decisions of this Court in T.P. Dover v. Lodge Victoria No. 363, S.C. Belgaum [1964] 1 SCR 1, The Co‑operative Central Bank Ltd. and Ors. v. The Additional Industrial Tribunal, Andhra Pradesh and Ors., Kulchhinder Singh and Ors. v. Hardayal Singh Brar and Ors. and Takraj Vasandi Alias K.L. Basandhi v. Union of India and Ors. on the full Bench judgment of the Andhra Pradesh High Court in the case of Sri Kanaseema Co‑operative Central Bank Ltd. v. N. Seetharama Raju AIR (1990) (77) A.P. 171, and contended that Bye‑Laws of a society are a contract between the parties and bind both the parties. That may be so, however, the question remains whether an illegal Bye‑Law or an illegal contract for that matter can bind any of the contracting parties.”, The Court in the above case was concerned with the legality of Rule 7A; in the present case we are not concerned with the challenge to any rule of the Consortium., Shri Datar has contended that by accepting the membership of the Consortium, the autonomy of its members is maintained. He has referred to Bye‑Law 15.3.1 which we have already extracted above. Bye‑Law 15.3.1 itself contemplates that the obligation of membership is to ensure that the member institution reflects core values and standards set by the Consortium with appropriate respect for the autonomy of its member institution. The autonomy of member institutions does not in any manner come in the way of holding the Common Law Admission Test (CLAT). Every institution maintains its autonomy as per the statute governing it; the obligation to maintain core value of the Consortium in no manner affects the autonomy of the member university. The core values of the Consortium aim to enhance the prestige and content of legal education. Legal education has a pivotal role in the development of society and regulating the inter‑se relations between the members of the society., The Supreme Court of India had an occasion to consider the challenge to National Eligibility cum Entrance Test (NEET) for admission in medical courses in Transferred Case (Civil) No.98 of 2012, Christian Medical College Vellore Association versus Union of India and others. A pertinent observation was made by the Court in paragraph 55: “Building the nation is the main aspect of education, which could not be ignored and overlooked. They have to cater to national interest first, then their interest, more so, when such conditions can be prescribed for recognition, particularly in the matter of professional education.”, The Court in the above case has held that holding of NEET is a national interest. What was observed by the Court with regard to NEET is equally applicable to the CLAT. To conduct a Common Law Admission Test for all the Law Universities is both in the national interest as well as in the interest of education. We have already noticed that it was on a writ petition by a student Varun Bhagat that the idea of a Common Law Entrance Test emerged after discussion with the Government of India, Law Universities, etc., and other stakeholders., We have come a long way with the Common Law Admission Test which has to be further strengthened and streamlined. The Supreme Court of India time and again has emphasised the importance and usefulness of a common admission test for a group of institutions imparting the same or similar education. In P.A. Inamdar and others vs. State of Maharashtra and others, (2005) 6 SCC 537, the Court held in paragraph 136: “There is nothing wrong in an entrance test being held for one group of institutions imparting the same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen.” In paragraph 138 the Court further stated: “It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit‑based admissions on a transparent basis. Till regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty.”, Shri Arvind Datar, learned counsel appearing for the respondent No.1 has fairly submitted that the respondent No.1 is still a member of the Consortium and has not gone out of the Consortium and NLAT conducted by it is only for the present academic year to avoid this academic year as a zero year. He submits that insofar as the next academic year the respondent No.1 shall admit students on the basis of the result of CLAT. Shri Datar has referred to the unique system of trimester which is operating in the respondent No.1 University. Shri Datar has further submitted that unless the undergraduate law course was started by 18.09.2020, respondent No.1 would not have been able to complete its trimester., In the counter affidavit filed by the respondent No.1, details of the Trimester are given and proceeding of Academic Council dated 12.12.1987 has been brought on record as Annexure‑R‑1/2 in which Academic Council has taken the decision on academic terms in the following manner: (b) Academic Terms: Each Academic year be divided into 3 Academic terms each with a minimum of 70 working days. This academic term be called a Trimester. Thus the 5‑year B.A. LL.B. (Hons.) Programme will have 15 Trimesters. It is suggested that the Academic year may begin from 1st July and the Academic terms may adopt the following pattern: September 30, January 15, April 30., As per Academic Council's above decision, each Academic year is divided into three Academic terms called Trimester with a minimum of 70 working days., Shri Sajan Poovayya, learned counsel appearing for the respondent No.2, has explained that for completing three trimesters, 285 working days are required.
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He submits that 210 days is for teaching in all three semesters, 36 days shall be three Sundays in each three months term, 24 days for Government holidays, etc., in three months and 15 days for evaluation and assessment, totalling to 285 days. It is true that respondent No.1 University follows a unique system of Trimester, each semester has 70 teaching days per three months term. The first Trimester as per resolution of academic council was to begin on 01.07.2020 and was to end on 30 September 2020. This period of three months is not available for respondent No.1 to start the first semester. The entire country is struggling with the Covid-19 pandemic from March 2020. Loss in the academic year is for all Universities in the country. The Academic Calendar of each University stood disrupted by Covid-19. None of the Universities have declared the year as a zero year., The University Grants Commission, being aware of the consequences of the Covid-19 pandemic, issued guidelines on the examination in the Academic Calendar. In the guidelines dated 29 April 2020 with regard to Academic Calendar for the Session 2020-21, it was provided that several school boards are yet to complete their Class XII examinations. Examinations for the even semester in the universities are also getting delayed due to national lockdown. Naturally, all these things will delay the admission process in the university system for the next academic session. In order to tackle this situation, the universities may require some amendments in their academic calendar for the academic session 2020-21., As provided by University Grants Commission guidelines, which were continued by subsequent guidelines dated 06 July 2020, the UGC expected the Universities to carry out some amendments in their academic calendar for the session 2020-21. The Universities are not powerless to modify their Academic Calendar looking to the pandemic. The academic year 2020-21 is not a normal academic year in which Universities are expected to carry on their teaching and other activities in normal mode and manner. Respondent No.1 University could have very well found out ways and means to start the undergraduate law course even if it starts in mid‑October 2020 after conduct of the CLAT on 28 September 2020., The counter affidavit filed by respondent No.3 suggested various alternatives to be adopted by the Universities to modify their academic year in paragraphs 51 and 52. It is sufficient to observe that it is for respondent No.1 to take appropriate decision in the above regard., Shri Datar submits that holding of a separate exam has become a sheer necessity and not with the intention to violate the Consortium Bye‑Laws. He reiterated his submissions that to avoid the academic year 2020-21 being declared as a zero year, respondent No.1 proceeded with a separate exam., We are not persuaded to accept the submission that the doctrine of necessity was applicable in the fact situation of the ongoing pandemic. As noted above, the University Grants Commission in its guidelines dated 29 April 2020 has already asked all the Universities to modify their academic calendar for the academic year 2020-21. The UGC, being the body to maintain standards of education in the entire country and having contemplated suitable amendment of the academic year, the doctrine of necessity does not arise. We thus conclude that, being members of the Consortium, respondent No.1 ought not to have proceeded with holding a separate test namely NLAT nor should the academic year 2020-21 be required to be declared as a zero year even if the course starts in mid‑October 2020., With regard to the admission notice dated 03 September 2020, respondent No.1 University issued Press Release NLSIU admission 2020 on 04 September 2020. Clause 4.4.2 of the notice dated 03 September 2020 provided that the test shall be an online entrance examination to be held on 12 September 2020, and the candidates will attempt the examination using a computer device at their respective locations. The clause reads: “Candidates who have submitted a valid application form will be required to appear for the NLAT. The test shall be an online entrance examination to be held on 12 September 2020. Candidates will attempt this examination using a computer device at their respective locations. Candidates will have to ensure that they can appear for the examination on the appropriate date and time using a computer device as per the detailed specifications that will be provided, including video and audio inputs. NLSIU shall not be responsible for any connectivity issues, or failure of internet connection during the examinations. NLSIU reserves the right to cancel any candidate’s examination based on misconduct or examination malpractice.”, The notification for technological/system requirements for NLAT 2020 was issued by the University and provided, among other requirements: Supported devices – desktop computers and laptop computers only (the use of tablets and other mobile devices, including phones, shall not be supported nor permitted); Operating system – Windows 7 or above (Windows 10 recommended); Minimum configuration – processor Core 2 Duo and above, processor speed 1.5 GHz and above; Browser – Google Chrome (version 84.0.4147.135 or later) only; The user account must have administrator privileges to install required applications; Pop‑up blockers on the web browser must be disabled; JavaScript must be enabled; Antivirus must be disabled; Minimum internet bandwidth – 1 Mbps minimum; the remote proctoring software streams exam data, including audio and video, directly to the cloud as the NLAT 2020 is taken. The specified minimum connection speed must be maintained at all times., In pursuance of the notice dated 03 September 2020, 24,603 candidates applied and only 23,225 appeared in the test. For CLAT 2020, above 69,000 students registered for the undergraduate law course., The first leg of the challenge raised by the petitioner is the home‑proctored test as notified by respondent No.1. It is submitted that a home‑proctored test does not fulfill the requirement of a fair and transparent test expected for a premier law university. The petitioners rely on the affidavit of respondent No.2, Prof. (Dr.) Sudhir Krishnaswamy, filed in Writ Petition (Civil) No. 4848 of 2020, V. Govinda Ramanan versus Consortium of National Law Universities and others, filed in Delhi High Court. Respondent No.2, as Secretary of the Consortium, filed the counter affidavit on behalf of the Consortium of National Law Universities in Delhi University sworn on 25 August 2020. The writ petitioner claimed that he should be permitted to appear in the examination from his home. The counter affidavit pleaded that conducting a computer‑based online centre‑based test is legal. Opposing the home‑based online test, respondent No.2 made the following statements: (i) A home‑based online test for around 78,000 students would not be possible as the test would be completely compromised and may even be manipulated by the participants or coaching centres. (ii) Respondent No.1, after several meetings, assessed the feasibility of conducting CLAT‑2020 through various modes including the mode suggested by the petitioner. After due consideration, respondent No.1 determined that an online test at home with technological measures cannot ensure transparency, fairness and the integrity of a high‑stakes examination such as CLAT., Respondent No.2 categorically took the stand on behalf of the CLAT that an online test at home with technological measures cannot ensure transparency and would be completely compromised. There was no reason for a change of mind by respondent No.2 within a week. The affidavit was sworn on 25 August 2020 and on 03 September 2020, after a week, a notification was issued for conducting NLAT permitting participants to join the online examination from their homes. When something was not permitted for CLAT‑2020, the same test cannot be permitted for NLAT‑2020., We thus find substance in the submissions of the petitioner that permitting a home‑based online test could not have ensured transparency, fairness and integrity of the examination, especially when the test was to be conducted for entrance into a premier law university of the country., Petitioners also submit that due to a short period of notice to apply and the technological requirements, a large number of students, especially belonging to marginalized sections of society, were unable to apply within the time allowed by NLAT. The requirement of fulfilling technological support as envisaged by NLAT could not have easily been procured by a large number of students., In the proceeding of the faculty meeting dated 06 August 2020, brought on record by respondent No.1 along with his counter affidavit as Annexure‑R‑1/10, it was mentioned that NLSIU is the first preference for more than 60 percent of CLAT applicants. About 69,000 students registered for CLAT‑2020; 60 percent of 69,000 equals 41,400. The registration into NLAT was only 24,603, of which only 23,225 could appear, making it clear that a large number of students who could have wanted to apply for admission in respondent No.1 University could not even apply due to shortage of time and technical requirements insisted by respondent No.1 University. The above figures fully support the submissions of the petitioner that a large section of the students, especially belonging to marginalized sections of society, were denied the opportunity to appear in the examination., We thus conclude that the home‑based online examination as proposed by respondent No.1 University for NLAT 2020‑21 could not be held to be a test which was able to maintain transparency and integrity of the examination. The short notice and technological requirements insisted by the University deprived a large number of students from participating in the test, violating their rights under Article 14 of the Constitution of India., Petitioners have submitted that the examination held on 12 September 2020 as well as the re‑test held on 14 September 2020 was marred by several malpractices which proved that the apprehensions of the petitioner were true., Shri Gupta highlights various shortcomings in the proctoring protocol. He also referred to the press release dated 14 September 2020 by respondent No.1, which stated that some candidates had copied the questions and circulated them on messaging apps and emails after logging in. Shri Gupta submits that even after noticing the aforesaid fact, the press release further states that while this is a malpractice under NLAT proctoring guidelines, it does not affect the integrity of the exams as questions were already available to all candidates after logging in., Shri Gupta submits that if candidates are able to send questions through messaging apps and emails, obviously they could receive the answers as well. He also referred to the press release dated 15 September 2020 by respondent No.1 where the University stated that some cases of examination malpractice deserve criminal investigation and the University has already lodged criminal complaints against some actors., Shri Arvind Datar strongly refuted the above submission and referred to the sur‑rejoinder affidavit filed by respondent No.1 where details of technological measures taken by NLSIU for NLAT 2020 were explained., It is submitted that extensive technological and other measures are implemented to ensure that any candidate attempting any form of malpractice is caught and disqualified from the process either during the exam itself or after the post‑examination audit and scrutiny., Shri Datar submits that NLAT 2020 made use of a combination of artificial intelligence and human proctoring. In order to give full effect to human and artificial intelligence proctoring measures available post‑examination, respondent No.1 appointed a leading audit firm to carry out an independent forensic audit and assessment of data relating to the examination and submit the report. He submits that care and precautions were taken by the University for conduct of a free and fair test and on the basis of some media reports and few materials brought on record, it cannot be concluded that the examination is marred by malpractices, especially in proceeding under Article 32 of the Constitution., After having considered the above submissions of the learned counsel for the parties, we are of the view that for the present case, it is not necessary for this Supreme Court of India to enter into various materials referred to by the petitioners and the reports to decide whether malpractices were actually adopted in the examination or not. Respondent No.1, being a premier University, we have no doubt that it must have taken all necessary precautions to avoid any malpractices and cheating in the examination., As noted above, the University has also filed a complaint of cyber crime which may be inquired in accordance with law. We need not express any opinion in this proceeding under Article 32 with regard to the aspect of malpractices in the test conducted on 12 September 2020 and 14 September 2020, which is essentially a matter of scrutiny of facts and evidence., In view of the foregoing discussion, we are of the considered opinion that the admission notification dated 03 September 2020 issued by respondent No.1 was not in accordance with law and deserves to be set aside., The CLAT examination is already fixed for 28 September 2020 which needs to be conducted on the said date without fail after following all necessary protocols for safety and health of the students and after following the Standard Operating Procedures issued by the Ministry of Health and Family Welfare and the Ministry of Human Resource Development., We further notice that after the issuance of the notification dated 03 September 2020 by respondent No.1, the meeting of the governing body of the Consortium of National Law Universities was held on 05 September 2019 where the decision was reiterated to hold CLAT 2020 on 28 September 2020. The governing body further resolved to divest functions of respondent No.2 as Secretary and Treasurer of the Consortium with immediate effect and in the interim period appointed Professor Faizan Mustafa, senior most member of the Consortium and past President, to discharge all the administrative and secretarial functions of the Consortium. The governing body also resolved to shift the Secretariat of the Consortium to the NALSAR University, Hyderabad., We have found that the separate admission notice dated 03 September 2020 issued by respondent No.1 is unsustainable. We are of the view that status quo ante as on 05 September 2020 should be restored as early as possible, i.e., by restoring respondent No.2 as Secretary of the Consortium as well as restoring the Secretariat of the Consortium to NLSIU, Bengaluru. The governing body may take the decision keeping in mind that the CLAT examination scheduled on 28 September 2020 be smoothly held. Respondent Nos.1 and 2 are also to cooperate with the holding of CLAT scheduled to be held on 28 September 2020., In result of the foregoing discussion, we allow the writ petition in the following manner: (i) The notice for admission to the five‑year integrated B.A.LL.B. (Hons.) programme 2020‑21 dated 03 September 2020 (Annexure‑P 14) as well as the press release on NLSIU admission 2020‑21 dated 04 September 2020 (Annexure‑P 15) are quashed. (ii) Respondent No.3 is directed to conduct the CLAT‑2020 examination on 28 September 2020 taking all precautions and care for health of the students after following the Standard Operating Procedures of the Ministry of Health and Family Welfare and the Ministry of Human Resource Development. (iii) Respondent No.3 shall also ensure that the entire process of declaration of the result be completed as early as possible to enable respondent No.1 and other National Law Universities to start their course by mid‑October 2020. (iv) Respondent No.1 shall also complete the admission of the B.A.LL.B. (Hons.) programme 2020‑21 on the basis of the result of CLAT‑2020. (v) Respondent No.3 may take a decision at an early date restoring the status of respondent No.2 as the Secretary‑Treasurer of the Consortium as well as restoring the Secretariat of the Consortium to NLSIU, keeping in mind that the scheduled exam of CLAT‑2020 on 28 September 2020 is not hampered in any manner., In view of our above order passed in Writ Petition (Civil) No. 1030 of 2020, no orders are required in SLP (C) No. 11059 of 2020. The SLP is disposed of.
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W.P.(C) 11855/2022 and C.M. No. 35370/2022 Through: Mr. Rudra Vikram Singh & Mr. Manish Kumar, Advocates versus Through: Mr. Chetan Sharma, Additional Solicitor General with Mr. Kirtiman Singh, Mr. Waize Ali Noor, Mr. Amit Gupta, Mr. Rishav Dubey, Mr. Sahaj Garg, Mr. Kunjala Bhardwaj, Mr. Madhav Bajaj & Mr. Saurabh Tripathi, Advocates for respondent., The petitioner before this Court who is claiming himself to be a social worker has filed the present petition as a Public Interest Litigation under Article 226 of the Constitution of India stating that respondent No.5, Mr. Satyendra Jain is facing criminal prosecution pursuant to registration of First Information Report bearing No. RC-AC1-2017-A0005 registered on 24.08.2017 at Police Station: Central Bureau of Investigation, Anti-Corruption-1, New Delhi for offences under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 and Section 109 of the Indian Penal Code., The petitioner's contention is that respondent No.5 is holding the post of Cabinet Minister in the Government of the National Capital Territory of Delhi and the Enforcement Directorate has also registered one Enforcement Directorate case information report No. ECIR/HQ/14/2017 on 30.08.2017., The petitioner has further stated that respondent No.5 was arrested on 30.05.2022 and he was sent to the custody of the Enforcement Directorate. It has been further stated that respondent No.5 has moved a bail application being Bail Application No. 145/2022 before the Special Judge, Rouse Avenue Court, New Delhi and during the arguments it was placed on record by the Additional Solicitor General that the respondent No.5 has stated before the Enforcement Directorate office that after the severe case of COVID, he does not remember many things like the signatures and he also does not remember the name of the trust or organisation he is a member of. The petitioner has gone to the extent of stating that respondent No.5 has himself declared that he has lost his memory and in those circumstances, the petitioner has prayed for the following reliefs in the PIL., a. A writ in the nature of mandamus thereby declaring the respondent No.5 a person with unsound mind and subsequently disqualifying him from being a member of the Legislative Assembly and apparently the Minister in the Government of the National Capital Territory of Delhi. b. A writ in the nature of mandamus thereby directing respondent No.2 to disqualify respondent No.5 for being the Member of Legislative Assembly. c. A writ in the nature of mandamus thereby directing respondent No.3 to constitute a medical board to analyse the mental condition of respondent No.5. d. A writ in the nature of mandamus thereby directing respondent No.1 to declare all the decisions null and void taken by respondent No.5 after he suffered from COVID and consequently has lost his memory. e. Such order, writ, or direction as is deemed fit and proper in the premises of the case, which is not specifically prayed for hereinabove., The Delhi High Court has carefully gone through the entire material on record and has also heard learned counsel for the petitioner at length. It is true that cases have been registered against respondent No.5 and respondent No.5 is facing prosecution for various offences under the Indian Penal Code, Prevention of Corruption Act as well as Prevention of Money Laundering Act. However, the fact remains that the Code of Criminal Procedure, 1973 is a complete code in itself which provides a mechanism in respect of investigation, inquiry and trial. The Code of Criminal Procedure caters to all contingencies and it is for the prosecution or court to take appropriate steps in accordance with law., The Delhi High Court, based upon the averments made in the writ petition, in exercise of jurisdiction under Article 226 of the Constitution of India cannot declare respondent No.5 as a person with unsound mind and cannot disqualify him from being a member of the Legislative Assembly or the Minister in the Government of the National Capital Territory of Delhi in the facts and circumstances of the case.
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14 January 2022 Writ Petition (Civil) 14 of 2022 Pratik Maitra versus The State of West Bengal and Others (Through Video Conference). Mr. Rajnil Mukherjee, Advocate for the petitioner; Mr. Samrat Sen, Additional Advocate General; Mr. Raja Saha, Mr. Debasish Ghosh, Mr. Nilotpal Chatterjee, Advocates for the State., By this public interest petition, the petitioner, a social worker in the Jhargram District and the District Secretary of the All India Federation at Jhargram, has prayed to stop, ban or postpone the Jangal Mahal Utsav 2022. The petitioner contends that the Jangal Mahal Utsav (Mela) is scheduled to commence on 17 January 2022 and will attract a huge footfall, with participation encouraged by the District Magistrate not only from Jhargram but also from Bankura and Purulia. The petitioner further raises that there is a rapid increase in COVID‑19 cases, leading to the postponement of the Kolkata International Film Festival and the closure of educational institutions, and therefore it is not an appropriate time to hold the Mela., Counsel for the petitioner submitted that on 12 January 2022, the new COVID‑19 cases in the State were 22,155 with an infection rate of 30.86 per cent, and that a lockdown had been imposed in the Jhargram District. Consequently, the Mela should not be held, especially since there is no tradition of holding the Mela on a particular date or in reference to any specific lunar or solar position., Counsel for the State produced a report on behalf of the District Magistrate, Jhargram (respondent No. 6), stating that the Mela has been held for the last eight years and that this year it has been decided to hold the Mela at six separate locations: Jhargram, Paschim Midnapore, Purulia, Bankura, Birbhum and Paschim Bardhaman. The report disclosed certain special COVID‑19 measures that will be adopted at the time of the Mela., Having heard the learned counsel for the parties and after perusing the records, the Calcutta High Court finds that there is no past practice of holding the Mela on a particular date of the month or in reference to any lunar or solar position. The COVID‑19 situation in the State of West Bengal is grave and cases are rapidly increasing. Counsel for the petitioner placed on record the order dated 6 January 2022 passed by the District Magistrate, Jhargram, which, in view of the rising COVID‑19 cases, ordered the closure of all government and private offices in Jhargram District from 6 a.m. to 10 p.m. on 8, 10, 12 and 14 January 2022, with only minimal staff permitted for emergencies. The order also directed the closure of all markets, shops and establishments in Jhargram Municipality from 6 a.m. to 10 p.m. on 10 January 2022 and prohibited movement of public and private vehicles in the municipality during those hours, except for health emergencies. This order clearly reflects the seriousness of the COVID‑19 situation in Jhargram District., In view of the foregoing, the Court is of the opinion that if such a situation exists in the District, it may not be in the public interest to hold the Mela on the scheduled dates from 17 January 2022. Accordingly, the Court directs respondent No. 2, the District Magistrate, Jhargram, to decide on the postponement of the Mela within 24 hours of this order, taking into account the COVID‑19 situation prevailing on 6 January 2022 and any subsequent improvement or deterioration., The petition is hereby disposed of. (Prakash Shrivastava, Chief Justice)
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Through: Mr. Anant Kumar Hajelay, Advocate (Through Vice Chancellor) along with Petitioner No. 1 versus Through: Dr. Amit George with Mr. Rayadurgam Bharat, Mr. Shashwat Kabi, Mr. Adhishwar Suri, Mr. Arkaneil Bhaumik and Mr. Piyo Harold Jaimon, Advocates for Respondent 1, with Ms. Arshya Singh, Mr. Aakash Dahiya and Mr. Siddhant Dutt, Advocates for Respondent 2 along with Mr. 1. In pursuance of the last order, the Executive Engineer (Electrical), Judiciary Electrical Division‑1, Public Works Department has written a letter dated 3 February 2024 to the Joint Registrar (Judicial), Central Project Coordinator, Delhi High Court regarding hybrid hearing/streaming of Delhi District Court., The letter states that a report prepared by the consultant appointed by the Public Works Department, M/s. Grant Thornton Bharat LLP, titled ‘Preliminary Estimate for Court Rooms, Delhi 2022’, was submitted to the Honourable Delhi High Court. Deputy Director General (National Informatics Centre), Shri Yogendra Kumar, Head of the National Informatics Centre cell for Delhi High Court, vide letter dated 19 May 2023, submitted comments on the report and requested that the Public Works Department obtain complete details in the proposal after approval by its Information Technology Department. After receiving the comments, the consultant revised the report as ‘Preliminary Estimate for Court Rooms, Delhi, July 2023’ and the Public Works Department resubmitted it to the National Informatics Centre for expert opinion vide letter dated 3 August 2023. Deputy Director General (National Informatics Centre) Shri Manoj Kumar Mishra returned the report vide letter dated 18 August 2023, requesting that before sending the revised report, it be approved by the Information Technology Department/IT Branch and then forwarded to the Delhi High Court for further directions. Accordingly, the revised report was sent to the Information Technology Department of the Government of National Capital Territory of Delhi for comments/vetting vide Office Order No. 23(70)/EE(E)/JED‑1/86 dated 24 January 2024. The IT Department’s comments were received on 2 February 2024 (copy enclosed). In view of the above, the complete case file along with the consultant’s report and the IT Department’s comments are enclosed for further necessary action and directions., The consultant identified the following basic equipment to be made available in each courtroom and judges’ chamber. Proposed Audio Visual and Information Technology infrastructure for the courtroom includes: a personal computer for the judge, a 42‑inch display unit for viewing the hybrid session by the lawyer and witness in smaller courtrooms and a 55‑inch display for larger courtrooms, a 24‑inch or larger display on the Honourable Judge’s desk for viewing conference participants or content shared by the remote user, five gooseneck microphones for the Honourable Judges’ side and advocate side, ceiling speakers, a six‑channel amplifier, a document visualizer on the readers’ table, an on‑premise meetings platform such as Zoom, BlueJeans, Webex, People Link or Microsoft Teams with built‑in recording capability, the ability to record court proceedings on local storage or server at each court or a central location, four optical zoom cameras to capture live feed of the judge, advocates, witness and convict, a touch panel control on the readers’ desk for controlling camera views, audio visualizer feed and readers’ PC feed as well as for starting, pausing and stopping recordings, cable connectivity points for all equipment, a digital signal processor 12×8 with acoustic echo cancellation, a video codec with inputs for four cameras and the document visualizer capable of sending a combined video feed of the judge’s camera, advocate’s camera, document visualizer and PC, a courtroom access switch with twenty or more Gigabit Ethernet ports for current and future requirements, and a 12‑U rack to house video, audio components and the switch., The proposed IT infrastructure for the judge’s chamber includes a personal computer or laptop with an in‑built camera, speaker and microphone configured with on‑premise meetings platforms, an IP telephone for voice communication, and cable connectivity points for all equipment., Learned counsel for the Delhi High Court stated that the aforesaid equipment constitutes the bare minimum requirement for provision of hybrid hearing and must be provided by the Public Works Department. The Delhi High Court asked the learned Chief Engineer, Public Works Department, who was personally present in court, whether the equipment could be provided forthwith to the district courts. He stated that after preparing an estimate and obtaining financial approval from the Government of National Capital Territory of Delhi, the equipment could be supplied within six months. In view of this statement, the Delhi High Court directed the Public Works Department to prepare an estimate of the hybrid hearing equipment within ten days and submit the same to the Finance Department, Government of National Capital Territory of Delhi, which is directed to take a decision within four weeks. The Delhi High Court further directed that a fresh status report be filed before the next date of hearing, that the personal presence of the Chief Engineer, Public Works Department, be dispensed with until further orders, and that he join the proceedings by way of online audio‑video link on the next date of hearing., The matter is listed for hearing on 2 April 2024 at 02:15 P.M.
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