Split (1)

train · 2.5k rows

ID stringlengths 4 7	para_id int64 0 26	newJudgement stringlengths 0 34.1k
id_363	0	Case No. 2023/DHC/001004. Judgment delivered on: 09.02.2023. Advocates who appeared in this case: For the Petitioner: Mr. Nishit Kush, Mr. Mercy Hussain and Mr. Siddharth Sikri and Ms. Kirti, Advocates. For the Respondent: Ms. Priyanka Gupta, Advocate., Appellant impugns the judgment dated 27.07.2022, whereby the petition filed by the respondent‑husband under Section 13(1)(i‑a) of the Hindu Marriage Act, 1956 seeking dissolution of marriage on the ground of cruelty has been allowed and a decree of divorce has been passed., Learned counsel for the appellant contends that the Family Court of Delhi has been swayed by a mere suggestion given by the counsel towards the end of the cross‑examination of the respondent‑husband that he had filed the petition for divorce for the reason that he was having an extramarital affair with his co‑worker., Learned counsel submits that there was no pleading to the said effect and the suggestion was a mere suggestion given by a counsel, who was overly jealous, in his cross‑examination without any instructions from the appellant. He submits that this alone cannot be a ground for grant of divorce., Learned counsel further submits that the allegations of cruelty are unsubstantiated and that there are no dates mentioned as to when the alleged cruelty has taken place., Learned counsel for the respondent disputes the same. She contends that the allegations of adultery or having an affair with the co‑worker, though not in the pleadings before the Family Court of Delhi in these proceedings, have been levelled against the respondent‑husband in the replication of the petition filed under Section 125 of the Criminal Procedure Code by the appellant., Learned counsel further submits that even if these allegations were to be ignored, the respondent has sufficiently established that he was treated with cruelty., We notice that in the petition filed for divorce, the respondent has specifically averred and stated the taunts and the language used by the appellant and her father against the respondent and his family. In the divorce petition, the instances of cruelty have been spelt out as under: That since the beginning the nature, conduct and behaviour of the respondent and her family members was very cruel towards the petitioner and his family. The father of the respondent always used to taunt the petitioner that \I am a superintendent in the education department, your family is not up to our standard\. It is pertinent to mention that the respondent never performed her matrimonial duties towards the petitioner and his parents. However the petitioner tried his best to please the respondent but all in vain. The respondent, whenever the petitioner tried to make her understand on petty issues, packed her bag and left for her parental home. After the birth of the children, the petitioner thought that everything would be alright, but all in vain. The respondent started leaving for her parental home along with the infants. The respondent always cross‑questioned the petitioner and never replied to him in a proper manner. She always used to argue with the petitioner and his parents in filthy and unparliamentary language saying \2 kodi ka policewala h tera baap, mera kuch nahi bigad sakta, ministry tak pahunch hai mere papa ki\. Being more educated than the petitioner, the respondent always dominated him, insulted him and was stubborn to her demands. If sometimes due to lack of money or some other reason the petitioner did not fulfil any demand of the respondent, she got furious, threw household items, TV remote, shouted in abusive language and threatened to kill the petitioner. The petitioner left his fate to Almighty God hoping that the growing children would bring about good sense and harmony, but all in vain due to unnecessary intervention of the parents and sisters of the respondent, who always instigated the respondent against the middle‑class culture and amenities of the petitioner. Every month the petitioner gave Rs.15,000 to the respondent for household, groceries and upbringing of the children. The respondent incurred huge expenses on mobile use unnecessarily, conversing with different relatives without any reasonable cause. It was difficult to bear expenses of about Rs.100 per day on mobile phone. When the petitioner tried to make her understand that the children were growing up and expenses should be reduced, the respondent got furious and replied \main itna kharch nahi karti jitna teri dawaon pe kharch hota hai\. The respondent took a personal loan of Rs.70,000 from Home Credit India Finance Limited to do some side business to meet the petitioner’s desires, which is still being repaid at EMI Rs.5,000 per month. The petitioner is an asthmatic patient and has been on regular medicines for the last 25‑26 years. He regularly consumes Wisolone 20 mg tablet, Theoesthaline SR tablet and the same inhaler in case of breathing stops and has been taken to the hospital for admission many times while on duty by his colleagues, a fact also known to the defendant. The respondent has failed to discharge her matrimonial obligations towards her husband and family. In the year 2008, the petitioner got selected in DTC as a driver as he had just passed the 10th standard. Since then the greedy in‑laws of the petitioner started forcing him to shift to their place as he was a government employee now, and to succumb to their illegal demand, the parents and sisters of the respondent started harassing and insulting the petitioner as they wanted him to fulfil their expenses, but the petitioner refused. The respondent started abusing the petitioner and declared a strike in the kitchen and brought meals for herself from outside. However the elderly mother of the petitioner managed the situation and started cooking meals for the entire family including the respondent. For the sake of family respect, in 2009 the father of the petitioner constructed the first floor and shifted the petitioner along with the respondent and their children there. After getting separated, the respondent was happy for some time but still had to be involved in household chores. She used to talk with her mother and sisters for several hours over the phone. Whenever the petitioner even asked her to pick his medicines, she replied \dikhayi nahi deta, baat kar rahi hoon, saans ki bimari hai, lakwa nahi hai jo khud nahi le sakte dawai\. In April 2015, the respondent instigated her younger son to beat the petitioner and she herself threw utensils and hurled a slipper at the petitioner. The petitioner narrowly escaped and called police dialing 100. The petitioner also gave written complaints to the concerned SHO and ACP on 27/08/2017 vide D.D. No. 69‑B and 28/02/2015 respectively. Under this backdrop and with deep anguish, pain and untold atrocities, torture and cruelties inflicted on the petitioner by the respondent and her family members, the petitioner enumerates the facts, circumstances and instances of cruelty that led him to leave home in July 2016., In response to the petition, the appellant has denied the allegations made in the petition., It may be noticed that in the affidavit of evidence filed by the respondent, the respondent has deposed and reiterated the allegations made in the petition as extracted hereinabove., To the said allegations, we notice that there is no cross‑examination or even a suggestion on behalf of the appellant that the allegations are incorrect or false., The cross‑examination is a very cryptic cross‑examination and does not even refer to any of the allegations and words referred to by the respondent‑husband in his petition and his testimony., For the purposes of completeness, the entire cross‑examination is extracted herein and reads as under: PW‑1 Statement of Sh. Rajeev Bhardwaj, S/o Sh. Bishan Swaroop, aged about 44 years, R/o Chirag Delhi (Witness does not remember the house number). I tender my evidence by way of affidavit Ex. PW‑1/X which bears my signatures at points A and B. The contents of my affidavit are true and correct. I also rely upon the following documents: 1. Wedding photographs: Ex. PW‑1/1 & 1A 2. Copies of my medical documents: Ex. PW‑1/2 to 2F 3. Copy of my salary slip for July 17: Ex. PW‑1/3 (OSR) 4. Copies of complaints made by me to police: Ex. PW‑1/4 5. Copy of rent agreement: Ex. PW‑1/5 (OSR). Facts mentioned in affidavit are correct., XXX by Sh. Santosh Kumar, learned counsel for the respondent. About Rs.3 lakhs were spent by us on my marriage. I have not placed on record any bills or receipts in that regard. Gifts amounting to around Rs.2‑2.5 lakhs had been received from the girl's side at the time of marriage. The marriage ceremony was performed in Community Centre, DA Flats, Timar Pur, Delhi. The first quarrel between me and Deepti took place about 11 months after our marriage. It was her parents who quarreled with me at my house. Thereafter they took Deepti with them. I did not lodge any police complaint in that regard. I have not placed on record any bill or document in support of my contention that Deepti used to spend talk time of Rs.100 in one day. It is correct that my medical expenses are reimbursed from the office after due deductions. My net salary as of today is around Rs.38,000 per month. I lodged my first police complaint in 2013. I have not brought with me the original complaint. From 1995 till 2013 whenever any quarrel took place between me and Deepti, her parents used to send some mediator to settle the issue but I never made any police complaint. The rent agreement Ex. PW‑1/5 was prepared by me from Chirag Delhi., It is incorrect to suggest that the respondent had never quarreled with me from 1995 till today. It is incorrect to suggest that the parents of the respondent had spent Rs.6‑7 lakhs at the time of her marriage. It is incorrect to suggest that the petition filed by me is on the basis of false facts. It is incorrect to suggest that I am deposing falsely. It is incorrect to suggest that I had levelled false allegations against the respondent in the petition and my affidavit. It is incorrect to suggest that I am having an affair with one of my co‑workers or that this is the reason I have filed the present divorce petition., Family Court in the impugned order has noticed that the respondent‑husband has duly proved the allegations of cruelty and held that the behaviour of the appellant was not cordial towards her in‑laws and the husband. Further, the appellant‑wife used to abuse the respondent and his parents in filthy language., Family Court has held that the appellant has not been able to prove any of the allegations of counter‑cruelty alleged by her. The Family Court has held that the credibility of the evidence of the husband could not be shaken during his cross‑examination and, taking into account the overall factual circumstances, has held that the case of cruelty has been made out and, accordingly, the marriage was liable to be dissolved., We may specifically refer to the language which the respondent‑husband has attributed to the appellant‑wife against him and his family members. The specific words that have been proved to have been used by the appellant against the respondent and his family members are as under: (i) \I am a superintendent in the education department, your family is not up to our standard.\ (ii) \2 kodi ka policewala h tera baap, mera kuch nahi bigad sakta, ministry tak pahunch hai mere papa ki.\ (iii) \main itna kharch nahi karti jitna teri dawaon pe kharch hota hai.\ (iv) \dikhayi nahi deta, baat kar rahi hoon, saans ki bimari hai, lakwa nahi hai jo khud nahi le sakte dawai.\, Every person is entitled to live with dignity and honour. If the words as stated hereinabove are used against an individual, they are very derogatory and humiliating. The respondent‑husband contends that whenever there was a quarrel, the appellant‑wife would use those words and humiliate him and his family. Repeated use of such words is clearly humiliating and would certainly amount to cruelty. No person can be expected to live with constant abuse being hurled upon him., The Supreme Court in Vishwanath Agrawal v. Sarla Vishwanath Aarawal, (2012) 7 SCC 288 has categorically held that cruelty depends upon the social background of parties, the way of life, relations, temperament and emotions., The Supreme Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 has explained the concept of cruelty as under: Mental cruelty in Section 13(1)(i‑a) can broadly be defined as conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. It is not necessary to prove that the mental cruelty causes injury to the health of the petitioner. While arriving at such a conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances., At this stage, we may refer to a few decisions of this Court rendered under Section 13(1)(i‑a). In Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 105 : 1988 SCC (Cri) 60], Justice K. Jagannatha Shetty, speaking for the Division Bench, held: Section 13(1)(i‑a) uses the words \treated the petitioner with cruelty\. The word cruelty has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or behaviour. It is the conduct in relation to matrimonial duties and obligations. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. It will be necessary to bear in mind that there has been marked change in life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner, the court should not search for a standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would also be better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon [(1966) 2 All ER 257, 259 : (1966) 2 WLR 993] the categories of cruelty are not closed. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon human behaviour, capacity or incapability to tolerate the conduct complained of., In the present case, the conduct of the appellant‑wife which has been proved on record is of such quality, magnitude and impact as would have caused mental agony, pain, anger and suffering to the respondent‑husband on a regular and continuous basis and thus clearly amounts to cruelty., The contention of learned counsel for the appellant that specific dates and time are not mentioned, in the facts and circumstances of the case, loses its significance because the respondent‑husband has specifically stated in his evidence that whenever a quarrel would take place the appellant‑wife would use those words against him and his family, implying that the words have been used repeatedly over the period they were together. This, in view of the fact that there is no rebuttal of cross‑examination or any attempt to disprove the imputations, shows that the same have been duly proved and established., This Court in S.A. v. A.A., 2016 SCC OnLine Del 1818 has held: Apart from making the aforesaid specific allegations, the respondent also made general allegations in his petition with regard to the alleged general conduct and behaviour of the appellant. It may not always be possible for a party to make specific allegations with regard to the date, time, place of occurrence in relation to a generalized conduct, act or omission where such conduct is repeated continuously over a period of time. Thus, the allegations that the appellant used to call the respondent \Hathi\ or \Mota Hathi\ cannot be given a particular date, time or place of utterance as, according to the respondent, such an utterance was repeatedly made by the appellant. Similarly, it may not be possible to give specific dates and times in relation to the allegations that the appellant denied sex to the respondent consistently. When two parties are in a marital relationship, neither is expected to maintain a logbook and note down each and every instance of matrimonial offence committed by the other. When the allegation is that a party showed uncooperative attitude towards his/her spouse and family members; did not show respect to the other spouse and his family members; misbehaved and abused the opposite party and his family members – in respect of such allegations, it may not be possible to plead a specific date, time or place of occurrence. However, when intolerable conduct/matrimonial offence manifests itself into an incident of larger proportions, the aggrieved party would be able to pinpoint with particulars and details, recite and establish such matrimonial offence., Accordingly, we are of the view that there is no infirmity in the finding returned by the Family Court of Delhi that the respondent has been treated with cruelty. We are also satisfied that the cruelty proved on record is sufficient and constitutes cruelty as required under Section 13(1)(i‑a) of the Hindu Marriage Act. Consequently, we find no infirmity in the judgment allowing the petition and granting divorce on the ground of cruelty., We, accordingly, find no merit in the appeal. The appeal is consequently dismissed. Parties are left to bear their own costs.
id_364	0	Leave granted. A challenge has been laid in the present appeal to the judgement dated 24th January 2018, passed by the Division Bench of the High Court of Madhya Pradesh at Gwalior, dismissing the appeal filed by the appellant State Government against the order dated 17th November 2017, passed by the learned Single Judge in a writ petition and relegating the matter back to the competent authority for passing a fresh order., We may first allude to the relevant facts of the case. In May 2015, a criminal case was registered against the respondent who was arrayed as an accused in a Special Sessions Case in the Court of the First Additional Sessions Judge, Ashok Nagar (Madhya Pradesh). The case, Crime No. 64/2015, was registered at Police Station Isagarh, District Ashok Nagar, under Sections 341, 354(D), 323, 34 of the Indian Penal Code and under Sections 7, 8 and 11(d)/12 of the Protection of Children from Sexual Offences Act, 2012. Charges were framed against the respondent under Sections 341, 354(D) of the Indian Penal Code and Section 11(D)/12 of the POCSO Act. The prosecution alleged that on 14th February 2015, the respondent, along with other co‑accused, wrongfully restrained the complainant, a minor, and tried to outrage her modesty. Despite the complainant’s repeated attempts to befriend her, the respondent persistently stalked her, threw a letter and flowers at her and insisted that she speak to him., Records reveal that during the trial the complainant turned hostile. The First Additional Sessions Judge recorded that the parties arrived at a settlement, and the complainant and her friends withdrew support for the prosecution. On the basis of the compromise application, the charge under Section 341 of the Indian Penal Code was compounded. The other offences were non‑compoundable, but because the prosecutrix and witnesses turned hostile, the trial court acquitted the respondent of the charges under Section 354(D) of the Indian Penal Code and Section 11 of the POCSO Act., In 2016, the appellant State Government conducted an entrance examination for the post of constable. The respondent participated, qualified under the OBC category, cleared the physical test and was selected and posted at Ujjain. By a letter dated 22nd July 2017, the Superintendent of Police, Ujjain directed the respondent to furnish requisite information in the prescribed form. In the verification form, the respondent disclosed his involvement in the aforesaid criminal case and the order of acquittal passed by the trial court., On scrutiny of his verification form, the Superintendent of Police, Ujjain issued a communication dated 24th August 2017 informing the respondent that he was found to be unfit for recruitment. The letter stated that the respondent had been acquitted in Crime No. 64/2015 under Sections 341, 354(D), 323, 34 of the Indian Penal Code and Sections 7, 8 of the POCSO Act, but the offence was not proved beyond doubt. Consequently, the respondent was deemed unfit for government service because the offences were related to moral degradation., Aggrieved by the decision, the respondent filed a writ petition before the High Court of Madhya Pradesh praying that the order dated 24th August 2017 be quashed and that he be reinstated in service with all consequential benefits. The learned Single Judge dismissed the writ petition, observing that the impugned order was based on the judgment of the Apex Court in Avtar Singh v. Union of India and Others (2016) 4 MP LJ 332, and that the case involved moral turpitude. The judge held that once departmental authorities have arrived at a conclusion, the High Court cannot interfere under Article 226 of the Constitution of India because it is not sitting as an appellate authority. The matter pertained to Section 354(D) of the Indian Penal Code and Sections 7, 8, 11(D) and 12 of the POCSO Act, which amounted to moral turpitude, and therefore no case was made out., The respondent appealed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005. The Division Bench of the High Court of Madhya Pradesh quashed and set aside the order dated 24th August 2017 passed by the Competent Authority and the order dated 17th November 2017 passed by the learned Single Judge, and remanded the matter back to the Competent Authority to pass a fresh order. The High Court considered that the respondent had fairly disclosed his involvement in the criminal case, for which he had been acquitted, and that there was no other criminal case pending against him., Mr. Bharat Singh, learned counsel for the appellants, submitted that the Division Bench erred in interfering with the judgment of the learned Single Judge and overlooked the requirement that a candidate seeking recruitment in police service must possess impeccable character, integrity and clean antecedents. He argued that mere acquittal does not entitle the respondent to appointment, and that the employer is entitled to consider the antecedents of a candidate and decide suitability, unless the decision is arbitrary or mala fide. He further submitted that even though a compromise was entered into between the respondent and the complainant and the respondent was acquitted on the benefit of doubt, the offence involved moral turpitude and the employer may lawfully reject the candidature. He relied on Commissioner of Police, New Delhi and Another v. Mehar Singh; Avtar Singh v. Union of India and Others; Union Territory, Chandigarh Administration and Others v. Pradeep Kumar and Others; and Pawan Kumar v. Union of India and Another., Ms. Savitri Pandey, learned counsel for the respondent, contended that the learned Single Judge erred in dismissing the writ petition because the respondent had fully disclosed the criminal case and its final outcome in the verification form. She argued that the order of acquittal dated 26th October 2015 was a clean acquittal and that the appellant should not have declared the respondent unfit for recruitment as a constable., We have heard the arguments of counsel, perused the records and the relevant judgments. The question is whether the appellants erred in rejecting the candidature of the respondent to the post of constable, despite his truthful disclosure in the affidavit that he had faced trial in a criminal case which resulted in his acquittal., It is not in dispute that the verification form disclosed the case registered against the respondent in 2015 and that he was acquitted by the judgment dated 26th October 2015. Therefore, the respondent did not withhold material information while participating in the selection process. The divergence of opinion between the Division Bench and the learned Single Judge concerns the reliance on Avtar Singh, where the Single Judge held that the department could not be faulted for declaring the respondent unfit on the ground of moral turpitude, whereas the Division Bench, relying on the same decision and on Pradeep Kumar and a Full Bench decision of the High Court of Madhya Pradesh in Ashutosh Pawar v. High Court of Madhya Pradesh and Another, held that where no other criminal case was pending, the matter should be remitted to the appellants for fresh consideration., The standard for assessing the suitability of a candidate is measured by the employer based on various factors including the nature of the post, duties, and effect of suppression on suitability. No hard and fast rule can be laid down. A candidate must furnish true and correct information in the verification form. A false declaration, suppression of material information, or half‑baked information may lead to adverse consequences, including exclusion, even if the candidate qualified in the selection process., In view of the divergent opinions expressed in several decisions of this Court, a Division Bench in Jainendra Singh v. State of Uttar Pradesh referred the issue to a larger Bench for an authoritative pronouncement on suppression of information or false information in the verification form by a job aspirant who has faced criminal prosecution. The conflicting opinions were settled by a three‑Judge Bench of this Court in Avtar Singh, which laid down broad guidelines for verification of disclosures made by a candidate to the employer. The observations include that verification of antecedents is necessary to determine fitness, that suppression of involvement in a trivial offence may not render a person unfit, that moral turpitude offences even if acquitted may be considered, and that the yardstick depends on the nature of the post., The Court summarized that information given to the employer about conviction, acquittal or arrest must be true and not suppressed; that while passing termination or cancellation orders, the employer may consider special circumstances; that government orders, instructions and rules applicable at the time must be taken into account; and that various categories of cases—trivial convictions, serious convictions, acquittals involving moral turpitude, truthful disclosures, pending cases, and multiple pending cases—each have appropriate employer responses ranging from condonation to cancellation of candidature or termination of service., In Daya Shankar Yadav v. Union of India and Others, this Court observed that verification of antecedents is essential to ascertain suitability for the post, and that disclosures in the verification form can lead to refusal of employment, continuation, or dismissal depending on the nature of the offence, the truthfulness of the disclosure, and whether the information was suppressed., In State of Madhya Pradesh and Others v. Abhijit Singh Pawar, the Supreme Court of India noted that even when a truthful disclosure about a concluded case is made, the employer retains the right to consider the antecedents and is not compelled to appoint the candidate., In Rajasthan Rajya Vidhut Prasaran Nigam Limited and Another v. Anil Kanwaria, the Court held that a candidate who concealed a conviction and made a false declaration could not be appointed, and that suppression of material facts justifies cancellation of candidature., In the present case, the Division Bench of the High Court of Madhya Pradesh dismissed the appeal filed by the appellant State Government and set aside the order of the learned Single Judge, which had upheld the decision of the Competent Authority terminating the respondent’s services on the ground that he had been candid in his verification form stating that he had been chargesheeted in a criminal case, later acquitted, and that no other criminal case was pending., We are, however, unable to concur with the aforesaid view.
id_364	1	Even though the respondent had truthfully declared that he was involved in a criminal case which was decided by the trial court vide judgment 26 October 2015, on perusing the facts of the said case as noted hereinabove and the observations made in the judgment, quite clearly, this was not a case of clean acquittal. It is evident from the facts narrated that after the chargesheet was filed, the respondent arrived at a compromise with the complainant and filed an application under Section 320 of the Criminal Procedure Code, based on which the offence under Section 341 of the Indian Penal Code was compounded. As for the remaining offences for which the respondent was charged, namely Section 354(D) of the Indian Penal Code and Section 11(D)/12 of the Protection of Children from Sexual Offences Act, they were non‑compoundable and therefore the matter was taken to trial. The respondent was acquitted by the trial court primarily on account of the fact that the complainant did not support the case set up by the prosecution and the other prosecution witnesses had turned hostile. In such circumstances, the respondent's plea that he had been given a clean acquittal in the criminal case is found to be devoid of merit., This is a classic example of the situation contemplated in paragraph 38.4.3 of Avatar Singh (supra) where the charges framed against the respondent involve moral turpitude and, though he was acquitted because prosecution witnesses turned hostile, the facts and circumstances of the case which led to his acquittal lead us to the view that the appellant State Government was well within its right to exercise its discretion against the respondent and terminate his services on the ground that he was unfit for appointment in the police department. Here was a case where the complainant reneged from the statement made to the police in view of a settlement arrived at with the respondent. It is noteworthy that the incident, the subject matter of the criminal case, occurred on 14 February 2015 and judgment was pronounced by the trial court on 26 October 2015. In the very next year, when the appellant State Government invited applications for appointment to the post of Constable, the respondent submitted his application. Even though this is a case of candid disclosure of the criminal case by the respondent, which culminated in an acquittal, the prosecution could not succeed in proving the case against the respondent for the reasons noted hereinabove and, being mindful that the case involved moral turpitude and the respondent was charged with non‑compoundable offences of a serious nature, we are of the firm view that the judgment of the trial court cannot be treated as a clean acquittal., The aforesaid aspects were rightly factored in by the appellant State Government while issuing the communication dated 24 August 2017 and declaring that the respondent was unfit for appointment to the said post. The yardstick to be applied in cases where the appointment sought relates to a law enforcement agency ought to be much more stringent than those applied to a routine vacancy. One must be mindful of the fact that once appointed to such a post, a responsibility is cast on the respondent to maintain law and order in society, enforce the law, deal with arms and ammunition, apprehend suspected criminals and protect the life and property of the public at large. Therefore, the standard of rectitude to be applied to any person seeking appointment in a law enforcement agency must always be higher and more rigorous for the simple reason that possession of higher moral conduct is one of the basic requirements for appointment to a post as sensitive as that in the police service., We are, therefore, of the opinion that mere acquittal of the respondent in the criminal case would not automatically entitle him to be declared fit for appointment to the subject post. The appellant State Government has judiciously exercised its discretion after taking note of all the relevant factors relating to the antecedents of the respondent. In such a case, even one criminal case faced by the respondent in which he was ultimately acquitted, apparently on the basis of a benefit of doubt, can make him unsuitable for appointment to the post of Constable. The decision taken by the appellant State Government is not tainted by any malafide or arbitrariness for the High Court to have interfered therewith. As a result, the judgment dated 17 November 2017, passed by the learned Single Judge, is upheld while quashing and setting aside the impugned judgment dated 24 January 2018, passed by the Division Bench of the High Court. The appeal is allowed. Parties are left to bear their own costs.
id_365	0	24 January 2023 Item No. 11 WPA 59 of 2023 National Restaurant Association of India and others versus The State of West Bengal and others. For the Petitioners: Jaydip Kar, Jishnu Saha, Krishnendu Sarkar, Meghla Das. For the Respondents: Rajdip Roy, Anindyasundar Chatterjee, Goutam Dinda., The Commissioner of Police, Kolkata filed a report dated 24 January 2023, which is taken on record. The report is otherwise vague. The office of the Commissioner of Police, Kolkata handed over a list of seventeen cases registered against various members of the petitioners for violation of Section 20(2) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003., The Central Government has framed rules under the Act, but the State Government has not framed any rules as of date. In the absence of any rules under the aforesaid statute, neither the Kolkata Municipal Corporation nor the Bidhannagar Municipal Corporation can pass orders against the use of hookahs in bars and restaurants having a valid licence. The said bars and restaurants are, however, required to strictly comply with the provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, other applicable statutes and the rules framed thereunder., The High Court of Calcutta notes that the issue of use of hookahs and the attempt to regulate the same was considered by the Honourable Supreme Court of India in the case of Narinder S. Chadha and others versus Municipal Corporation of Greater Mumbai and others, reported in paragraphs 18 to 22., Jaydip Kar, learned Senior Counsel for the petitioner, submitted that his clients are strictly complying with the rules and regulations of the aforesaid Act and other applicable statutes and rules. They only permit use of tobacco, nicotine and herbal products in the hookahs. Since there is no law banning the use of tobacco, nicotine and herbal products in bars and restaurants, subject to the rules and regulations thereunder, neither the Kolkata Municipal Corporation nor the Bidhannagar Municipal Corporation can restrict the use of hookahs., The High Court of Calcutta cannot ignore the fact that both the State and Central Governments earn huge revenues from the sale of tobacco products that are lawfully sold in this country. The question of a separate trade licence for promoting the use of hookahs for a restaurant or bar does not and cannot arise. Any direction contrary to the above, issued by the Kolkata Municipal Corporation or the Bidhannagar Municipal Corporation, is illegal and bad in law., The aforesaid order shall not prevent either the Bidhannagar Police or the Kolkata Police from ensuring that other laws are not violated by the restaurant and bar owners., With the aforesaid directions, the writ petition is disposed of. There shall be no order as to costs. All parties shall act on the server copy of this order duly downloaded from the official website of the High Court of Calcutta.
id_366	0	Reportable Writ Petition (Civil) No. 1011 of 2022 Supriyo @ Supriya Chakraborty & Anr. Petitioners Versus Union of India Respondent. Writ Petition (Civil) No. 93 of 2023. T. C. (Civil) No. 5 of 2023. T. C. (Civil) No. 8 of 2023. T. C. (Civil) No. 9 of 2023. T. C. (Civil) No. 11 of 2023. T. C. (Civil) No. 12 of 2023. Writ Petition (Civil) No. 1020 of 2022. Writ Petition (Civil) No. 1105 of 2022. Writ Petition (Civil) No. 1141 of 2022. With Writ Petition (Civil) No. 1142 of 2022. Writ Petition (Civil) No. 1150 of 2022. Writ Petition (Civil) No. 159 of 2023. Writ Petition (Civil) No. 129 of 2023. Writ Petition (Civil) No. 260 of 2023. T. C. (Civil) No. 6 of 2023. Writ Petition (Civil) No. 319 of 2023. T. C. (Civil) No. 7 of 2023. T. C. (Civil) No. 10 of 2023. T. C. (Civil) No. 13 of 2023. And with Writ Petition (Civil) No. 478 of 2023. Dr Dhananjaya Y Chandrachud, Chief Justice of India., The Supreme Court of India is vested with the authority to hear this case. Article 32 vests the Supreme Court of India with the power to enforce the rights in Part III of the Constitution. The power of the Supreme Court of India to enforce rights under Article 32 is distinct from other jurisdictions. Judicial review must be construed in terms of the Constitution of India and not by reference to the position of law in other countries., Section 377 of the Indian Penal Code criminalises carnal intercourse \against the order of nature\. Historically the provision reflected Victorian morality and continued after Independence, being weaponised against gender‑non‑conforming persons as well as homosexuals. The State used the provision to strip dignity and autonomy from individuals engaging in same‑sex sexual activity, subjecting them to public ridicule, judicial scrutiny and social ostracism., In Naz Foundation v. Government of NCT of Delhi, a Division Bench of the High Court of Delhi read down Section 377 to exclude consensual homosexual activity between adults. The Supreme Court of India, in Suresh Kumar Koushal v. Naz Foundation, reversed that judgment. Subsequently, a three‑Judge Bench of the Supreme Court of India listed a writ petition seeking declaration that the right to sexuality, sexual autonomy and choice of sexual partner are guaranteed under Article 21 of the Constitution and that Section 377 is unconstitutional. The petitioners argued for referral to a five‑Judge Bench in view of the decisions in National Legal Services Authority v. Union of India and Justice K.S. Puttaswamy (9 J) v. Union of India., In National Legal Services Authority v. Union of India, the Supreme Court of India held that the State must recognise persons who fall outside the male‑female binary as third‑gender persons and that they are entitled to all constitutionally guaranteed rights. The Court directed the Union and State Governments to grant legal recognition to the self‑identified gender of transgender persons, including when they identify as male or female. In Justice K.S. Puttaswamy (9 J) (supra), the Court held that the Constitution protects the right of a person to exercise their sexual orientation., In Navtej Singh Johar v. Union of India, the Supreme Court of India held that Section 377 is unconstitutional to the extent that it criminalises consensual sexual activities by the LGBTQIA+ community. The Court observed that Section 377 violated Article 14 because it discriminated between heterosexual and non‑heterosexual persons, violated Article 15 by discriminating on the basis of sex which includes sexual orientation, and violated Article 19(1)(a) because it infringed sexual privacy. The Court further declared that members of the LGBTQIA+ community are entitled to the full range of constitutional rights, including the right to choose a partner, the right to equality, and the right to be free from discriminatory behaviour., Despite de‑criminalisation, members of the queer community continue to face violence, oppression, contempt and ridicule in everyday life. The State, which has the responsibility to identify and end discrimination, has done little to emancipate the community from oppression. The legacy of Section 377 lives on in social attitudes, shaping beliefs about queer identity and contributing to widespread revulsion against the LGBTQIA+ community even after consensual homosexual acts have been decriminalised., Discrimination against the LGBTQIA+ community is evident in public spaces because state‑provided services are organised on a strict gender binary. Public washrooms, security checkpoints and ticket counters at railway stations and bus depots are segregated for men and women only. Transgender women have reported being forced to join men’s queues at security checkpoints despite identifying as female, leading to misgendering that adversely affects mental health. Educational institutions and workplaces also lack inclusive policies, resulting in denial of equal opportunity, harassment, and exclusion from promotions., The biological family is often the first site of violence and oppression for queer persons. Families may reject the gender identities of transgender children, force gender‑normalising surgeries on intersex children without consent, or compel homosexual individuals to marry opposite‑sex partners. Survivors have recounted experiences of forced conversion therapy, electro‑convulsive shocks, and confinement in rehabilitation centres where privacy is denied. Such familial rejection creates a climate of fear and silencing., The transgender community faces discrimination in healthcare, housing and employment. Health‑care providers often lack gender‑inclusive administrative procedures and knowledge of gender‑related diseases. Housing discrimination makes it difficult for queer persons to rent homes, with many forced to relocate due to neighbours’ assumptions. Employment data show that only a small percentage of transgender persons are employed, many earning less than Rs 5,000 per month, and a large proportion lack formal education., State instruments tasked with protecting human rights sometimes perpetrate violence. Police and prison officials have been identified as the largest perpetrators of violence against transgender persons. Reports include sexual assault of a trans‑woman in a male prison and police handing over lesbian or gay couples to hostile families despite court protection orders. Such actions reinforce the marginalisation of queer persons., In National Legal Services Authority v. Union of India, the Supreme Court of India declared that the transgender community must not be subsumed within the gender binary and must be treated as a third gender under the law. The Court directed the Central and State governments to address stigma, create public awareness and implement the Transgender Persons (Protection of Rights) Act, 2019. Despite these measures, transgender persons continue to face physical and sexual violence, forced sex‑reassignment surgeries, and hate speech., The petitioners, who are members of the LGBTQIA+ community, contend that the State discriminates against them by implicitly excluding them from the institution of marriage. They invoke the equality clause of the Constitution to seek legal recognition of their relationship in the form of marriage, arguing that they are not seeking exclusive benefits but parity with heterosexual couples., Mr Mukul Rohatgi, learned senior counsel, submitted that the Supreme Court of India’s jurisprudence on LGBTQIA+ rights declares that LGBTQIA+ persons are entitled to dignity, equality and privacy, which includes the fundamental right to marry a person of their choice. He argued that Articles 19 and 21 of the Constitution guarantee the right to marry, that the Special Marriage Act violates the right to dignity and decisional autonomy of LGBTQIA+ persons and therefore contravenes Article 21, and that excluding LGBTQIA+ persons from the Special Marriage Act discriminates on the basis of sexual orientation, violating Article 15. He further contended that the Special Marriage Act violates Article 14 because it denies equal protection of the laws, is arbitrary, lacks a rational nexus with its object, and that there is no legitimate state interest in denying the right to marry. He urged that the Act be read in a gender‑neutral manner, with terms such as “husband” and “wife” interpreted as “spouse”, and that the age of marriage be uniformly set at twenty‑one years for all persons., Dr Abhishek Manu Singhvi, learned senior counsel, submitted that the Special Marriage Act is unconstitutional because it discriminates on the grounds of sexual orientation by preventing same‑sex couples from solemnising their marriages. He noted that Article 15(1) prohibits discrimination on the basis of sex, which includes sexual orientation, and that the requirement that a couple consist of a man and a woman is an ascriptive characteristic that excludes persons based on identity. He argued that marriage is a source of social validation, dignity, security and legal benefits, and that exclusion of same‑sex couples from the Act violates Articles 14, 19(1)(a) and 21 of the Constitution. He proposed that the Special Marriage Act be interpreted to authorise solemnisation of same‑sex marriages consistent with constitutional principles.
id_366	1	The word “man” in Section 2(b) includes “any person”, and correspondingly the word “woman” includes “any person”. The words “man” and “woman” include trans‑men, trans‑women, intersex and non‑binary individuals as the case may be. Section 4(c) enacts only an age‑based exclusion for persons otherwise eligible to marry under the provisions of Section 4, and shall not be construed to impose any disabilities based on gender, sexual orientation, or sexual identity of the parties. For same‑sex couples, Section 4(c) can be read as a single age restriction, either eighteen or twenty‑one. Alternatively, Section 4(c) may be read as prescribing the minimum age as eighteen for both parties in a lesbian relationship and twenty‑one for both parties in a gay relationship. For non‑binary and intersex persons, the Special Marriage Act may be read as imposing no restriction beyond that imposed by other laws which stipulate the age at which persons become capable of binding themselves under law, i.e., eighteen years. In the alternative, Supreme Court of India may lay down guidelines as an interim measure while leaving it open to Parliament to fill the vacuum in due course of time., The reference to “widow” and “widower” in Schedules II and III must be read as “widow or widower” and “widower or widow”, as the case may be, and shall not be construed to impose any disabilities based on gender, sexual orientation, or sexual identity of the parties. References to bride and bridegroom in Schedules III and IV must be read as bride or bridegroom, as the case may be, and shall not be construed to impose any disabilities based on gender, sexual orientation, or sexual identity of the parties. The Foreign Marriage Act 1969 can similarly be read down. The relief sought by the petitioners is workable. In reading down the Special Marriage Act and the Foreign Marriage Act to achieve a constitutionally compliant interpretation, neither the text of the statute nor the intention of Parliament act as a limitation. Only the underlying thrust of the legislation and the institutional capacity of Supreme Court of India are relevant., The underlying thrust of the Special Marriage Act is that it was designed to facilitate marriages lying outside the pale of social acceptability. Reliance was placed on Ghaidan v. Godin‑Mendoza [2004]. In the alternative, the principle of updating construction ought to be applied to the Special Marriage Act. Courts may expand the existing words of a statute to further the march of social norms and contemporary realities., Some laws such as the Protection of Women Against Domestic Violence Act 2005, the Dowry Prohibition Act 1961, and provisions pertaining to cruelty in the Indian Penal Code 1860 were enacted to address structural imbalances of power between men and women in a heteronormative setting. These provisions of law do not impact whether same‑sex couples have a right to marry. These provisions are beyond the scope of the petitions and need not be interpreted in favour of either spouse in a non‑heterosexual marriage., There is no timeless and immutable conception of marriage. The Special Marriage Act itself was enacted contrary to the cultural and social understanding of marriage which prevailed at the time. Further, the Special Marriage Act is a secular and areligious law which was meant to serve as an alternative for those who could not or did not want to solemnise their marriages under the applicable personal law, which is rooted in religion. The conditions for the solemnisation of a marriage under the Special Marriage Act need not, therefore, conform to the cultural, social, or religious understandings of marriage. The principles of equality and non‑discrimination cannot be trumped by societal values. These principles, by definition, require a challenge to majoritarian social norms. Supreme Court of India is not being asked to act as a substitute for the legislature or to alter the concept of marriage. Rather, Supreme Court of India is being asked to find that the exclusion of a group of people from the Special Marriage Act solely by virtue of their ascriptive characteristics is unconstitutional. A constitutionally compliant reading of the Special Marriage Act to allow for marriage equality is within the bounds of legitimate statutory interpretation and is not judicial legislation. Civil unions are not an equal alternative to the legal and social institution of marriage. Relegating non‑heterosexual relationships to civil unions would send the queer community a clear message of subordination that their relationships are inferior to relationships that comply with the entrenched heteronormative social order., Mr. Raju Ramachandran, learned senior counsel, made the following submissions: a. The petitioners have a fundamental right to marry a person of one’s own choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any exclusion or discrimination, as incorporated in Section 4(c) and other provisions of the Special Marriage Act, is ultra‑vires the Constitution. The denial of their right to marry violates Articles 14, 15, 19, 21 and 25. Article 21 encompasses the right to happiness, which includes a fulfilling union with a person of one’s choice. b. The exclusion of the petitioners from the institution of civil marriage under the Special Marriage Act, 1954, is inconsistent with the very object of the law, i.e., to facilitate any marriage between two Indians, irrespective of caste, creed or religion. c. The systemic nature of natal family violence against LGBTQIA+ persons, owing to their sexual or gender identity, and the misuse of the criminal law machinery by the families, often in collusion with local police, makes it imperative for Supreme Court of India to frame guidelines concerning police action in dealing with cases of adult and consenting queer and transgender persons. d. The special provisions for a wife in a heterosexual marriage under the Special Marriage Act need not be interpreted by Supreme Court of India while deciding this batch of petitions, because they are protective provisions for women in pursuance of the constitutional mandate in Article 15(3). Similarly, gender‑specific laws including penal laws need not be subject to any interpretative exercise. Religious personal laws are also not required to be interfered with. e. Declarations by the Court as to rights of people are followed by legislation. For instance, the rights declared in National Legal Services Authority were given effect to in the Transgender Persons Act. f. The doctrine of reading‑in is well‑recognised in Indian jurisprudence. g. The Union of India has argued that only Parliament can grant a new socio‑legal status of marriage to LGBTQ persons after extensive consultations and eliciting views from every part of the nation. The rights of the LGBTQIA+ community cannot be made contingent on the opinion of the majority., Mr. K V Vishwanathan, learned senior counsel, submitted that: a. Under Article 21 of the Constitution, all persons have a fundamental right to choose a partner. b. International covenants to which India is a signatory, including the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, impose a duty upon the State not to interfere with the right of a person to marry and have a family of their own choice as well as to protect the familial rights of all persons without discrimination on the basis of, inter alia, sexuality, race, and religion. c. Statutes regulating marriage in India must be read as inclusive of all gender identities and sexualities in view of the pronouncements of Supreme Court of India in National Legal Services Authority and Navtej. Such a reading is necessary to ensure that these statutes pass muster on the touchstone of Part III of the Constitution. d. Courts across the country as well as state policies and welfare schemes have recognised and accorded equal status to unions between LGBTQ persons. A necessary corollary of the right to self‑identify gender is to be able to express personal preference in terms of choice of partner, and therefore a marriage entered into by a transgender person must be fully recognised by the State. e. Supreme Court of India has previously issued guidelines to protect citizens against discrimination in cases where there existed a lacuna in the law. f. The freedom to choose a partner in marriage would be covered under Article 19(1)(a) as an expression, under Article 19(1)(c) as an association or union and under Article 19(1)(e) as an exercise of the right to reside and settle in any part of the territory of India. g. Excluding transgender persons from matrimonial statutes fails the reasonable classification test under Article 14. h. Transgender persons have a right against discrimination under Articles 15 and 16. i. The right of transgender persons to marry is enjoined by the Transgender Persons Act. The classification sought by the Union of India between biological and transgender persons is untenable. j. Procreation is not the sole purpose of marriage. Marriage is not merely the meeting and mating of two individuals but much more – it is the union of two souls. k. If the contention of the Union of India that male and female as provided in statutes are to be construed to refer to cisgender males and females, it would lead to absurd and unjust outcomes in implementation of several laws. For instance, the Hindu Succession Act 1956 defines an heir as any person male or female entitled to succeed to the property of an intestate under said Act. If the Union of India’s argument is taken to be correct, it would lead to a situation where a transgender heir of a person who has died intestate would not be able to inherit the property, even if they happen to be the sole heir. l. The National Commission for Protection of Child Rights has made unscientific claims on the effect of puberty blocker/sex‑transition therapy on children. They are in complete disregard to the internationally accepted guidelines issued by the World Professional Association for Transgender Health, which are also referenced in the Transgender Persons Act. m. The petitioners’ constitutional rights cannot be denied based on an argument that it would offend the “will of the people”. Constitutional morality cannot and ought not to be replaced by social morality., Ms. Geetha Luthra, learned senior counsel, made the following submissions: a. The Foreign Marriage Act is applicable to a couple if at least one of them is an Indian citizen. The Foreign Marriage Act travels with the citizen to a foreign jurisdiction to extend its protection by recognizing the citizen’s marriage contracted under foreign law, or by allowing a citizen to solemnise their marriage under Indian law even when they are abroad. In terms of Section 17 of the Foreign Marriage Act, a marriage must be valid in terms of foreign law and consistent with international law. b. All citizens including LGBTQIA+ citizens are entitled to all rights available to Indian citizens, even if they are abroad. Articles 19 and 21 of the Constitution guarantee all persons the right to marry a person of their choice, including LGBTQIA+ citizens. The Foreign Marriage Act violates the right to dignity and decisional autonomy of LGBTQIA+ persons and is discriminatory. c. The object of the Foreign Marriage Act in adopting the scheme of the Special Marriage Act is to provide a uniform, civil and secular marriage law for a couple, either of whom is an Indian citizen. However, by recognizing marriages only between opposite‑sex couples, the effect of the law is to deny same‑sex and gender‑non‑conforming couples the right to marry a person of their choice, solely on grounds of their sexual orientation and gender identity. This is violative of Article 15 of the Constitution. d. The Special Marriage Act and the Foreign Marriage Act are violative of Article 14 of the Constitution because they deny LGBTQIA+ persons equal protection of the laws, are manifestly arbitrary, and fail the rational nexus test. There is no intelligible differentia between LGBTQIA+ and non‑LGBTQIA+ couples. The object of the Foreign Marriage Act is to extend the protection of the Indian Constitution and its laws to a citizen abroad regardless of whom they choose to marry and under whichever law they choose to do so, to provide for maximum international validity of a marriage, and in adopting the framework of the Special Marriage Act, to provide for a uniform, civil and secular law to govern foreign marriages. The exclusion of same‑sex and gender‑non‑conforming couples from the Foreign Marriage Act has no rational nexus with these objects. e. The Foreign Marriage Act is pari materia to the Special Marriage Act. They must be interpreted similarly with regard to same‑sex and gender‑non‑conforming marriages. f. Recognition of marriage of same‑sex and gender‑non‑conforming couples under the Foreign Marriage Act furthers the comity of nations. g. The grant of reliefs does not render the provisions of the Foreign Marriage Act or other statutes employing gendered terminology unworkable., Mr. Anand Grover, learned senior counsel, made the following submissions: a. Marriage remains fundamental to the functioning of society, and to avail important schemes under the modern nation‑state, such as joint tax benefits and rights of surrogacy. b. The Foreign Marriage Act must be interpreted liberally to advance the cause of society at large. It must not be interpreted to cause hardship. c. The failure of the Special Marriage Act to recognise same‑sex marriages violates Articles 14 and 15 of the Constitution because it fails the reasonable classification test, is manifestly arbitrary, and discriminates based on gender identity and sexual orientation. d. The failure of the Special Marriage Act to recognise same‑sex marriages violates Article 19(1)(a) of the Constitution because sexuality, gender expression, and marriage are forms of expression. e. The right to intimate associations is protected by Article 19(1)(c) of the Constitution. Reliance was placed on Griswold v. Connecticut. f. Same‑sex marriages or gender‑non‑conforming marriages form a part of Indian tradition and culture. Reliance was placed on National Legal Services Authority. g. Queerness or homosexuality is not an urban, elite conception or expression. Numerous queer or homosexual couples from villages and towns in India have expressed their sexuality, chosen their partner, and entered into the institution of marriage. h. There is no traditional bar on marriage between non‑heterosexual persons. Excerpts from various scriptures support this proposition., Ms. Jayna Kothari, learned senior counsel, made the following submissions: a. The Special Marriage Act ought to be read to include the words spouse and person so as to include transgender persons within its ambit. Failure to do so amounts to a violation of the right of transgender persons to equality and to equal protection of the laws under Article 14 of the Constitution. b. The Special Marriage Act discriminates on the basis of sex, gender identity, and sexual orientation, thereby violating Article 15 of the Constitution. c. The denial of the right to marry to persons based on their gender identity is a denial of the right to dignity, personal autonomy, and liberty under Article 21 of the Constitution. d. Intersex persons have the same rights as all other persons in India, including the right to marry. e. The right to a family is available under Article 21, and this right includes the right to marry. The Special Marriage Act is violative of the right of transgender persons to have a family. Reliance was placed on Oliari v. Italy., Dr Menaka Guruswamy, learned senior counsel, made the following submissions: a. The Indian Parliament is a creature of the Constitution and does not enjoy unfettered sovereignty. The supremacy of the Constitution is protected by Supreme Court of India by interpreting laws in consonance with constitutional values. b. Supreme Court of India’s power of judicial review over legislative action is part of the basic structure of the Constitution. c. Constitutional courts are empowered to review statutory law to ensure its conformity with constitutional values. The courts do not need to wait for the legislature to enact or amend law to recognise same‑sex marriage. d. The provisions of the Special Marriage Act, insofar as they do not recognise same‑sex marriages, are unconstitutional as being violative of Articles 14, 15, 19, 21 and 25 of the Constitution. Hence, to save it from the vice of unconstitutionality, the Special Marriage Act must be read up to recognise same‑sex marriages. e. Recognition of same‑sex marriages under the Special Marriage Act is consistent with the evolving conception of the institution of marriage. f. Same‑sex marriage is a time‑honoured tradition in Indian society. g. The gendered references in the Special Marriage Act are capable of being read to recognise same‑sex marriages. h. The State has no legitimate interest in restricting the institution of marriage to heterosexual couples alone. i. The codification of Hindu personal laws commenced in 1941 with the colonial Government appointing the Hindu Law Committee, which prepared the first draft of the Hindu Code Bill. There was vociferous opposition to the Hindu Code Bill, which was later enacted into four distinct legislations – the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, and the Hindu Adoptions and Maintenance Act 1956. Inter‑caste marriages, sagotra marriages, the prescription of monogamy, and the introduction of divorce were met with great opposition. Despite vehement opposition, these reforms have stood the test of time and society has prospered overall as a result. Today, the objections raised on behalf of the Union of India opposing the recognition of same‑sex marriage are akin to the opposition to the Hindu Code Bill., Mr. Saurabh Kirpal, learned senior counsel, submitted that: a. Depriving LGBTQ+ individuals of the right to marry violates Articles 14, 15, 19(1)(a) and 21 of the Constitution. b. The right to marry a person of one’s choice is itself a Fundamental Right under the Constitution. c. The Special Marriage Act is unconstitutional if it is interpreted to exclude access to LGBTQ individuals from its ambit. d. The intent of Parliament when it enacted the Special Marriage Act is not relevant. The doctrine of reading‑in does not aim to discover the intention of Parliament. The jurisprudential basis of the doctrine is that courts read something in to save a statute from the vice of unconstitutionality. e. Having found a right to marry, Supreme Court of India cannot hold that there is no remedy or a real possibility for the exercise of that right. f. By virtue of Article 13, the Constitution trumps a statute which violates the Constitution. Analysis under Article 13 does not extend to whether or not a statute or a system of law is workable after it is read up or after certain words or phrases are read in to save it from being unconstitutional. It cannot be that a complex statute can defeat a fundamental right by virtue of its complexity., Ms. Vrinda Grover, learned senior counsel, made the following submissions: a. Interference, opposition and violence from natal families, irrespective of marital status, violates the fundamental right to life and personal liberty under Article 21 of the Constitution. b. Non‑recognition of atypical families or chosen families beyond constraints of marriage, blood or adoption violates Articles 14, 15, 19 and 21. c. Non‑recognition of marriage between two consenting adults on the basis of gender identity or sexual orientation under the Special Marriage Act violates Articles 14, 15, 19 and 21. d. Constitutional courts sometimes accord undue deference to the natal family. This ignores the coercion and violence that queer and transgender persons face within their homes. Reference was made to Devu G v. State of Kerala, SLP (Criminal) No. 5027/2023, Order dated 6 February 2023. e. Supreme Court of India ought to issue directions to all state governments to instruct police officers to compulsorily follow the mandate of Sections 41 and 41‑A of the Code of Criminal Procedure 1973 when responding to complaints involving queer and transgender adults who voluntarily leave natal homes. f. Issues of workability in statutory provisions do not preclude Supreme Court of India from protecting rights under Part III of the Constitution., Ms. Karuna Nundy, learned counsel, submitted that: a. A spouse of foreign origin of an Indian citizen or Overseas Citizen of India cardholder is entitled to apply for registration as an OCI under Section 7A(1)(d) of the Citizenship Act 1955. Section 7A(1)(d) is gender, sex and sexuality neutral, as distinct from the Foreign Marriage Act and the Special Marriage Act. The absence of any conditions qua gender, sex or sexuality of the parties is a casus omissus in the Citizenship Act. Supreme Court of India cannot supply a casus omissus into a statute by judicial interpretation, except in circumstances of clear necessity. b. The recognition of a foreign marriage between two non‑citizens is a mere ministerial act. Only the substantive law of the foreign jurisdiction is relevant. c. It would be manifestly arbitrary and contrary to Article 14 for the law to accord a larger ambit for registration of marriages to an OCI than to a citizen of the country married in a foreign jurisdiction, and to the extent of the inconsistency a harmonious construction of the Foreign Marriage Act with the Citizenship Act is required. d. A denial of the right to marry for queer persons is violative of Articles 14, 15, 19, and 21 of the Constitution. e. Rule 5 of the Transgender Persons (Protection of Rights) Rules 2020 recognises marriage of transgender persons because Form 2 contains the word spouse., Ms. Anitha Shenoy, learned senior counsel, submitted that: a. The petitioners have a fundamental right to marry a person of one’s own choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any exclusion or discrimination from solemnisation or registration, as incorporated in Section 4(c) and 17(2) and other provisions of the Foreign Marriage Act, is ultra‑vires the Constitution. b. The denial of recognition of the petitioners’ marriage is inconsistent with the very object of the Foreign Marriage Act not to invalidate marriages duly solemnised under foreign law by Indian citizens. c. The requirement of proof of a marital relationship by a married couple for the purpose of joint adoption under Regulations 5(2)(a) and 5(3) is beyond the remit of Section 57 of the Juvenile Justice (Care and Protection of Children) Act 2015, which extends joint adoption to relationships that are marriage‑like including marriages between same‑sex couples solemnised overseas. d. Regulations 5(2)(a) and 5(3) of the Adoption Regulations 2022 are ultra‑vires the Juvenile Justice (Care and Protection of Children) Act 2015. They also violate: i. the principle of equality and non‑discrimination on the basis of sexual orientation under Articles 14 and 15; ii. the right to adoption and motherhood protected under Article 21; and iii. the right of a child to be adopted recognised under the Hague Convention on Protection of Children and Cooperation in respect of Inter‑country Adoption 1980 and the Convention on the Rights of Children 1989., Ms. Arundhati Katju, learned counsel, made the following submissions: a. Article 21 protects the right to found a family and the right to a meaningful family life for all persons including LGBTQ persons. The law defines family and household broadly and is not limited to a biological man and woman and their children. Surrogacy and adoption are available only to married couples, thus denying LGBTQ couples the right to found a family. b. A child’s right to a meaningful family life under Article 21, and its best interest, is protected by recognising its parents’ relationship through marriage. c. Denying LGBTQ couples the right to marry violates Article 14 as to them and their children. d. The Special Marriage Act should be read expansively to save it from the vice of unconstitutionality and, in the alternative, it should be struck down. e. Any interpretative difficulties which arise because of the exercise of reading‑in must be decided on a case‑by‑case basis by the courts before which such issues arise. f. A declaration of the rights of queer people by Supreme Court of India will not preclude any debates or discussions about queerness either in Parliament or in society., Ms. Amritananda Chakravorty, learned counsel, made the following submissions: a. The Office Memorandum issued by the Central Adoption Resource Authority on 16 June 2022 is unconstitutional because it prevents same‑sex couples and gender‑nonconforming couples from availing of joint adoption. b. The requirements prescribed in the CARA Circular travel beyond the remit of the Juvenile Justice (Care and Protection of Children) Act. Section 2(49) of the Juvenile Justice Act defines the term prospective adoptive parents to mean a person or persons eligible to adopt a child as per the provisions of Section 57. Section 2(49) does not require the prospective adoptive parents to be heterosexual. Further, Section 57 does not specify marital status as a relevant factor to be considered while determining the eligibility of prospective adoptive parents., Mr. Raghav Awasthi, learned counsel, sought to make submissions regarding the Hindu Marriage Act. Supreme Court of India declined to hear arguments on this issue in the present proceedings., Mr. Shivam Singh, learned counsel, made the following submissions: a. It is unconstitutional for the State to discriminate against persons because of their innate characteristics. b. Upholding the heterosexual notion of marriage as the only constitutionally and legally sanctioned notion of marriage will serve to perpetuate gender‑based stereotypes proscribed by the Constitution and is therefore violative of Article 15. c. Resorting to the provisions of the General Clauses Act 1897, Section 4(c) of the Special Marriage Act (which otherwise appears to be unconstitutional) can be read down such that the singular male and female includes the plural as well., Manu Srinath, learned counsel, made the following submissions: a. Persons whose fundamental rights are violated are entitled to seek judicial review of the violating act. b. It is permissible for judicial review to result in an increase in the size of the intended pool of beneficiaries of a legislation. Such an exercise will not amount to legislation by courts. c. Judicial review is a tool to achieve social justice. It is also a tool by which constitutional aspirations and ideals are achieved., Jaideep Gupta, learned counsel, made the following submissions: a. If recognition is accorded to marriage by queer persons, they will be protected from so‑called conversion therapies which attempt to convert the sexual orientation of queer people into a heterosexual orientation as well as forced marriages. b. Queer marriages do not fall within the degrees of prohibited relationships. c. The classification on the basis of age in the Special Marriage Act ought to be declared unconstitutional insofar as it mandates a different minimum age requirement for men and women. Supreme Court of India ought to declare twenty‑one years as the ideal age for all marriages. The Prohibition of Child Marriage (Amendment) Bill 2021, which seeks to raise the legally permissible age of girls to marry from eighteen years to twenty‑one years, is currently pending in Parliament., Thulasi Raj, learned counsel, submitted that: a. The exclusion of the LGBT community from the institution of marriage is demeaning as defined by Deborah Hellman. b. Prejudicial notions about sexuality inform the Special Marriage Act although its provisions may not expressly contain words which indicate such prejudices., Tanushree Bhalla, learned counsel, submitted that: a. The word “man” in the Special Marriage Act ought to be read as meaning a cisgender man, a transgender man, and any person who assumes a role in the marriage that the statute or society or the institution of marriage confers on men. The word “woman” must be interpreted in a similar fashion. b. Section 4(c) of the Special Marriage Act excludes intersex persons. c. A minimum age at which persons of the third gender may marry may be read in, in Section 4(c) of the Special Marriage Act., In addition to the above submissions, some senior counsel and counsel sought to address Supreme Court of India on the notice and objections regime in the Special Marriage Act (Sections 5 to 9 of the Special Marriage Act) which stipulate a set of procedural preconditions to the solemnisation of marriages under the Special Marriage Act. Supreme Court of India has not heard arguments on this issue in the present proceedings., Mr. R. Venkataramani, learned Attorney General of India appearing for the Union of India, made the following submissions: a. Supreme Court of India has already issued constitutional declarations on the right to form a family, and the right to marry of non‑heterosexual persons in Navtej.
id_366	2	The issue in this batch of petitions relates to fitting the constitutional declaration into relevant laws. The Special Marriage Act (SMA) is a species of the general marriage laws. Marriage is conceived to be a union between heterosexuals across all laws on marriage and procreation is an essential aspect of marriage. At the time when the SMA was enacted, an alternative conception of a union of persons other than heterosexuals did not exist. The SMA is intended to regulate marriage between heterosexuals irrespective of caste and religion. Thus, the omission of non‑heterosexual unions from the purview of the enactment would not render the enactment unconstitutional because of under‑inclusiveness. The SMA will be underinclusive only when a class of heterosexuals is excluded by the statute. There would be no internal cohesion in the SMA if Section 4 is read in a gender‑neutral manner. Such an interpretation would render the implementation of Sections 19 to 21A, which link the SMA with other personal and non‑personal laws, difficult. Courts can use the interpretative tool of reading‑in only when the stated purpose of the law is not achieved. Since the purpose of the SMA is to regulate heterosexual marriages, the Supreme Court of India cannot read words into the enactment to expand its purview beyond what was originally conceptualized. It is up to Parliament to enact a special code regulating non‑heterosexual unions and the specific issues that such unions would face during and after the partnership, after comprehensively engaging with all stakeholders. The course adopted by the Supreme Court of India in Vishaka cannot be replicated for two reasons: there is no legislative vacuum in the instant case, and the non‑inclusion of all possible kinds of unions cannot be construed as a constitutional omission. Courts cannot issue directions granting legal recognition to non‑heterosexual marriages because it would require the redesigning of several enactments and rules. Marriage rights must be given only through the parliamentary process after wide consultation. A declaration by the Supreme Court of India granting legal recognition to non‑heterosexual marriages accompanied with a scheme of rights would be anathema to the separation of powers. The Supreme Court of India must not venture into the realm of policy making and law making., Mr Tushar Mehta, learned Solicitor General appearing for the Union of India, made the following submissions. The institution of marriage occupies a central role in the sustenance and progression of humankind. The prominent components of a marriage are companionship, sexual intimacy, and most importantly, procreation. Marriage, from an individual perspective, serves the purpose of sustaining an individual's gene pool. From a societal perspective, marriage contributes towards the proliferation of future generations for the sustenance of humankind. The Constitution does not recognize a right to marry. An expression of a person's sexuality is protected under Article 19(1)(a) of the Constitution. However, marriage cannot be traced to the right to freedom of expression or the right to form unions under Article 19(1)(c). The Supreme Court of India has not previously recognized the right to marry under the Constitution. The observations of the Supreme Court of India in Shafin Jahan and Shakti Vahini that the petitioners' right to marry has been violated must be read in the specific context of those judgments. In those cases, the right to marry, which is conferred by the legislature to inter‑caste and inter‑religious couples, was violated by State and non‑State actors. Marriage is a creation of statutes. The State, by virtue of Entry 5 of List III of the Seventh Schedule, has the power to regulate the institution of marriage. In exercise of this power, the legislature has prescribed various conditions which must be fulfilled before legal recognition can be given to a union. These conditions include the minimum age to consent to marriage, the prohibition of bigamy, and the bar against marrying within the degrees of prohibited relationship. The State is not under an obligation to grant legal recognition to every type of relationship. The State only recognizes relationships when there exists a legitimate State interest. The State has a legitimate interest in legally recognizing heterosexual relationships for the sustenance of society. After the decriminalisation of homosexuality in Navtej, members of the LGBTQIA+ community have the freedom and autonomy to choose their partners without restraints on gender and sexuality. However, the decriminalisation of the sexual offence does not cast an obligation on the State to grant legal recognition to such relationships or unions. Marriage is a legal privilege conditional upon statutory or societal conditions. The right to choose a partner does not necessarily imply a right to marry a partner of choice. The Courts do not have the power to decide if legal recognition can be granted to a union of non‑heterosexual individuals; this is an issue that must be decided by the legislature, being the elected representatives of the citizens. It would become impossible to deny legal recognition to practices such as incest or polygamy if non‑heterosexual couples are granted the right to marry. Marriage is a public institution. It falls in the outer‑most zone of privacy and is thus susceptible to the highest degree of State regulation. The Supreme Court of India in Navtej only granted protection to the intimate and intermediate zone of privacy of non‑heterosexual couples. Both the father and the mother have a significant and unique role in the upbringing of children. In non‑heterosexual unions, a child born out of surrogacy, artificial reproductive technology, or adoption would feel the absence of either a father or a mother. The State does not grant legal recognition to homosexual unions in the form of marriage to protect the interest of the children. This is a legitimate State interest. The petitioners have not submitted sufficient data to back their claim that the interest of a child brought up by a non‑heterosexual couple is protected. Granting legal recognition to non‑heterosexual unions would dilute heterosexual marriages. For example, in the Netherlands, more heterosexual couples have opted for domestic partnerships and cohabitation after legal recognition was granted to non‑heterosexual unions. Non‑heterosexual unions are not granted legal recognition to protect the institution of marriage., The impugned provisions of the Special Marriage Act are constitutional because the legislative debates during the introduction of the SMA indicate that Parliament made a conscious decision to exclude non‑heterosexual unions from the ambit of the SMA. The object of the SMA is to grant and regulate legal recognition to inter‑faith and inter‑caste unions of heterosexual couples. The provisions of the SMA have a reasonable nexus to this object. There is an intelligible differentia in classifying unions into heterosexual and non‑heterosexual partnerships because heterosexual couples sustain society through procreation. The Transgender Persons Act also classifies persons into homosexuals and heterosexuals and grants substantive rights to members of the LGBTQIA+ community in furtherance of substantive equality. The Transgender Persons Act recognizes the autonomy of members of the LGBTQIA+ community to choose a partner of their choice. The constitutionality of a statute cannot be challenged on the ground of under‑inclusion. Emerging evidence indicates that homosexuality may be an acquired characteristic and not an innate characteristic. Children exposed to homosexual experiences are more likely to identify as homosexual in adulthood. Thus, the Supreme Court of India must not approach this issue from a linear reductionist perspective. The argument of the petitioners that the SMA is unconstitutional because it excludes a class based on innate characteristics is erroneous. The SMA would become unworkable if read in a gender‑neutral manner. It would also amount to the Supreme Court of India redrafting a large number of provisions: Section 2(b) read with the First Schedule prescribes distinctive degrees of prohibited relationships for the bride and the groom; Section 4(c) requires the male to have completed twenty‑one years of age and the female to have completed eighteen years of age at the time of marriage. Reading the phrase “spouse” in place of male and female would render the distinctive minimum age requirement otiose. The statutory oath for solemnisation expressly uses the phrases “wife” and “husband”. Section 21 provides that the rules of succession in the Indian Succession Act, 1925 govern the succession of property of any person married under the SMA. The ISA prescribes different rules and procedures for succession based on gender. Reading the provisions of the SMA in a gender‑neutral manner would impact the interpretation of the ISA as well. By virtue of Section 21A, the rules of succession under the Hindu Marriage Act shall apply for marriages solemnised between a male and female professing the Hindu, Buddhist, Sikh or Jain religion. The HMA prescribes different rules for succession based on gender. Reading the provisions of the SMA in a gender‑neutral manner would render the HMA unworkable. Other provisions of the SMA such as Sections 27, 31, 36, and 37 cater to the needs and requirements of a woman in a heterosexual marriage. A gender‑neutral reading would impact the interpretation of these provisions. Declaring that non‑heterosexual couples have a right to marry would grant legal recognition to a new social relationship and could pre‑empt debates in the legislature. The term “spouse” in Section 7A of the Citizenship Act, 1955 cannot be read in a gender‑neutral manner. Section 7A of the Citizenship Act applies to the same class of persons to whom the Foreign Marriage Act applies. The Foreign Marriage Act expressly uses the phrases “bride” and “bridegroom”. Section 4 of the Foreign Marriage Act prescribes the same conditions for the registration of a marriage as Section 4 of the SMA., Mr Kapil Sibal, learned senior counsel appearing for an intervenor, made the following submissions. Marriage was defined by the social acceptability of a relationship even before it was codified. The heterosexual nature of a marriage was not introduced by law; law merely regulated unions which were socio‑historically recognised. The law has always differentiated between heterosexual and non‑heterosexual unions. Legal recognition of a union is premised on recognition of a relationship at the individual, family, and societal levels. The right of a person to choose a partner of their choice is protected under Article 21. However, legislative recognition of such a choice is not a fundamental right. The right to marry cannot be traced to the right to privacy. The right to privacy postulates the right to be left alone, imposing a negative obligation on the State and society not to interfere with individual choices. If the exercise of the right to privacy has a public dimension, the State must regulate it in the larger interest of the community. The State has, in the past, regulated parameters of choice within marriage with respect to the number of partners and the age of marriage. Therefore, the right to recognition of non‑heterosexual unions is not traceable to Article 21. The South African Supreme Court in Minister of Home Affairs v. Fourie and the United States Supreme Court in Obergefell v. Hodges, while recognising the right to marry, acknowledged the importance of social debate and public discourse on the issue. The courts observed that the public has become more accepting of non‑heterosexual unions. While it may not be necessary to reach public consensus on social issues, some form of discourse is important, whether through law commissions, referendums, legislative bills, or High Court decisions. Public engagement also goes hand‑in‑hand with an incrementalistic approach by the courts or the legislature. For example, Mexico City recognised cohabitation partnerships of homosexual unions in 2006, and three years later, their right to marry was recognised. In South Africa, before the judgment in Fourie, the Constitutional Court dealt with the criminalisation of sodomy, the rights of same‑sex immigrant partners, the right to adoption of same‑sex partners, and the non‑inclusion of same‑sex partners in a statute providing pension rights. This Court, instead of limiting its judgment to the reliefs sought by the petitioners, must also address the following issues: (i) whether the LGBTQIA+ community, being a sexual minority, is entitled to protection even in the absence of a law; (ii) the recognition of the hindrances faced by LGBTQIA+ unions and the procedure to resolve the difficulties; and (iii) the necessity of administrative procedures and guidelines recognising that sexual orientation is a physiological phenomenon and that same‑sex unions must not be discriminated against. The assumption of the petitioners that both law and society must consider non‑heterosexual unions as belonging to the same class as heterosexual unions without distinction based on sexual orientation is wrong. The exclusion of non‑heterosexual unions from the SMA is not violative of Articles 14 and 15 of the Constitution. Marriage between any two persons as provided in Section 4 of the SMA and the Foreign Marriage Act cannot include non‑heterosexual unions for the following reasons: Section 4(a) states that marriage cannot be solemnised if either party has a spouse living at the time of marriage. The SMA, when enacted, referred to marriages which had taken place before it came into force; in that context, the word “spouse” could only have been used in relation to heterosexual marriages. The mere usage of a gender‑neutral term does not indicate legislative intent to include non‑heterosexual unions within the ambit of the enactment. The statute is not underinclusive for implicitly excluding non‑heterosexual unions because Parliament did not contemplate their inclusion at the time of enactment. A statute will be under‑inclusive only where a statute that must necessarily cover a category excludes them from the benefits it confers. The principle does not apply to persons who are not ex‑facie covered by the statute. The interpretative tool of reading‑in means reading into the text of the statute and not altering it. Reading the word “spouse” into the SMA where the words “husband” and “wife” are used would render provisions enacted based on conventional ideas about a heterosexual relationship redundant. The legislative regime related to marriage and allied issues has been enacted in response to the unique challenges that heterosexual marriages face. Even if the Supreme Court of India finds that the Constitution grants a right to legal recognition of non‑heterosexual unions, a new legislative regime regulating non‑heterosexual marriages must be introduced to respond to the unique challenges they face. The Supreme Court of India can use its power under Article 142 to fill legislative vacuums to the limited extent of laying down procedural guidelines. The Court cannot create substantive rights and obligations to fill a legislative vacuum because that would amount to judicial legislation. The Court can neither direct the legislature to enact a law nor direct the legislature when to enact a law. These are established parameters of the separation of powers and must be respected., Mr Arvind P Datar, learned senior counsel appearing for an intervenor, made the following submissions. The Supreme Court of India has recognised the right to marry in K.S. Puttaswamy (9J), Shafin Jahan, Shakti Vahini and Navtej. However, only Justice Nariman's opinion in Navtej held that non‑heterosexual couples also have a right to marry. A statute can be struck down after a passage of time only if the rationale of the law ceases to exist, as in the case of Section 377 of the Indian Penal Code where medical research indicated that same‑sex relationships are not unnatural or against the order of nature. The Court, while interpreting provisions of a statute, can iron out creases but not alter the fabric. The exercise of reading‑up can only be undertaken when it is consistent with legislative intention, does not alter the nature of the enactment, and the new state of affairs is of the same kind as the earlier state of affairs to which the enactment applies. The judgment of the High Court of Madras in Arunkumar, interpreting the word “bride” in the Hindu Marriage Act to include transgender and intersex persons, is contrary to the Supreme Court of India's judgment in Madhu Kishwar v. State of Bihar, where it was held that male pronouns must not be expansively interpreted to include female pronouns within their ambit. Legal recognition of non‑heterosexual unions is a polycentric issue which cannot be resolved solely by the judiciary. Unenumerated or derivative rights, which are recognised by courts through judicial interpretation, are inchoate rights because they are an exception to the rule of ubi jus ibi remedium. Thus, even if the Supreme Court of India recognises the petitioners' right to marry, it is not enforceable., Ms Aishwarya Bhati, learned Additional Solicitor General appearing for an intervenor, made the following submissions. Article 21 guarantees that every child will have the best upbringing. The petitioners have not submitted any data to prove that the interests of the child would be protected if they are raised by non‑heterosexual parents. A child born to a heterosexual couple is innately adaptable to a similar family environment and naturally seeks a family environment comparable to their birth family. Chapter II of the Juvenile Justice Act, which lays down the General Principles of Care and Protection of Children, stresses the best interest of the child. Principle XIII states that every child in the juvenile justice system has a right to be restored to the same socio‑economic and cultural status as they were earlier. Men and women are differentiated for the purpose of adoption, assisted reproduction, and surrogate reproduction. For example, the law does not permit a man to adopt a girl child. The scheme of the laws relating to adoption and surrogacy must be revamped for the inclusion of any of the excluded categories of intending parents. The law protects a child by assuming that they are incapable of entering into contracts, committing an offence, or consenting to a sexual relationship. Thus, children cannot be imposed upon with emerging and evolving notions of gender fluidity. Children cannot be made guinea pigs of an evolving social experiment. The State is justified in prescribing reasonable restrictions for adoption, assisted reproductive technology, and surrogacy based on the welfare of children., Mr Rakesh Dwivedi, learned senior counsel appearing on behalf of the State of Madhya Pradesh, made the following submissions. Only thirty‑four of the one hundred and ninety‑four countries have recognised marriage between non‑heterosexual individuals. Of those thirty‑four countries, the legislature has recognised it in twenty‑four. At least twenty of the twenty‑four countries enacted a framework for registered partnerships or civil unions for granting legal recognition to non‑heterosexual unions. In ten countries, the courts have directed the State to recognise non‑heterosexual marriages. The approach taken by the courts in these ten countries is not uniform; it is specific to social complexities and legal arrangements in each country. The laws relating to marriage and the benefits which accrue because of marriage are not uniform. The laws take into account religious and regional differences. The principle of non‑discrimination in Articles 14 and 15(1) does not mandate that marriage must be organised and recognised in a uniform manner. The principle of equality does not postulate uniformity. The principle of non‑discrimination in Article 14 is not violated if the law is not all‑embracing. The legislature can choose to remedy certain degrees of harm. It is for the legislature to decide if non‑heterosexual unions must be legally recognised, and what benefits and entitlements must be conferred to the union. Legislations governing unions and the benefits which accrue because of unions do not become unconstitutional after the decriminalisation of homosexuality in Navtej. Decriminalisation of a sexual offence does not automatically confer legal recognition to a union. The majority opinion in Navtej held that homosexuals have a right to form a union under Article 21. The Supreme Court of India specifically observed that a union does not mean marriage. Thus, Navtej ruled out the possibility of non‑heterosexual marriages. The observation in Puttaswamy (9J) that the State has a positive obligation to provide legal protection to enable the exercise of choice was limited to the specific context of data protection. Such an obligation can be imposed on the State only when a right is infringed because of actions of the State., Mr Maninder Singh, learned senior counsel, submitted that Section 112 of the Indian Evidence Act, 1872, which provides that a birth during the sustenance of marriage or two hundred and eighty days after the dissolution of marriage is a conclusive proof of legitimacy, establishes that procreation is a chief component of marriage. He further submitted that an alteration of the chief component of marriage would render other laws premised on the heteronormative nature of marriage unworkable., Mr Atamaram Nadkarni, senior counsel appearing for an intervenor (Akhil Bharatiya Sant Samiti), submitted that the Special Marriage Act is interwoven with personal law. He argued that the recognition of non‑heterosexual marriages under the SMA would impact personal laws on succession and adoption., Ms Manisha Lavkumar, learned senior counsel appearing for the State of Gujarat, made the following submissions. Though the rules of marriage continue to evolve, they are still grounded in heterosexual relationships. There is an overarching State interest in excluding non‑heterosexual unions from the ambit of marriage because it regulates matrimonial conduct, preserves social order, and ensures the progression of society in a legitimate manner. The State can impose reasonable restrictions on individual autonomy and consent by introducing conditions such as the number of marriages, the minimum age for marriage, and the degrees of prohibited relationship. The heterosexual nature of a relationship is one such reasonable restriction. The Foreign Marriage Act is modelled on the Special Marriage Act and also envisages a heterosexual union. Section 23 of the Foreign Marriage Act states that the Central Government may recognise marriages solemnised in a foreign country as valid in India only if the law in the foreign country on marriage is similar to the Foreign Marriage Act. Since the Foreign Marriage Act only includes heterosexual unions, a non‑heterosexual marriage solemnised in a foreign country cannot be recognised in India., Mr J Sai Deepak, learned counsel appearing on behalf of an intervenor, made the following submissions. A judicially sanctioned legal recognition of non‑heterosexual union would be a colonial top‑down imposition of morality, diminishing democratic voices in the process. The issue of lack of legal recognition of non‑heterosexual unions is placed differently from the legislative vacuum on sexual harassment at workplaces. The history and purpose of the Special Marriage Act does not permit the Court to issue guidelines under Article 141 as it did in Vishaka. The power under Article 141 to issue guidelines must be used sparingly and must not be used to take over the functions of other organs of the State. The judgments of the Supreme Court of India in NALSA and the Madras High Court in Arun Kumar suffer from internal and external inconsistencies. The LGBTQIA+ community is not a homogeneous class. The Court cannot cater to the interests of a heterogeneous class which they constitute. The legislature would be better placed to cater to their needs., Mr MR Shamshad, learned counsel appearing for an intervenor, submitted that a declaration that non‑heterosexual couples have a right to marry would conflict with the tenets of religion where marriage is considered a heterosexual union., Ms Priya Aristotle, learned counsel appearing for an intervenor, submitted that granting non‑heterosexual couples parental rights would affect the children of heterosexual couples., Mr Sasmit Patra, learned counsel appearing for the intervenor, submitted that granting legal recognition to non‑heterosexual unions would require wide‑ranging amendments to various laws, and only the legislature has the capacity and functionality to deal with matters of such wide implication. A declaration by the Supreme Court of India that non‑heterosexual unions have a right to marry cannot be implemented without the aid of the legislature and executive. A social change of this magnitude will not be fructified if the role of the polity in the process is negligent., Ms Archana Pathak Dave, learned counsel appearing for an intervenor (Ex Servicemen Advocates Welfare Association), submitted that non‑heterosexual marriages must not be permitted for personnel working in the armed forces because Article 33 permits restrictions on their fundamental rights. Granting legal recognition to non‑heterosexual marriages may dilute the disciplinary code in the army, navy, and air force, create conflicts in the workplace over personal and religious beliefs, and raise concerns about shared facilities such as communal showers and shared rooms., Ms Manisha Narain Agarwal, learned counsel appearing for an intervenor, submitted that the petitioners are seeking social acceptance of their relationships through an order of the Court, and the Court does not have powers of such magnitude., Mr Atulesh Kumar, Ms Sanjeevani Agarwal, and Mr Som Thomas, appearing on behalf of various intervenors, adopted the above arguments., The petitioners seek that the Supreme Court of India declare that LGBTQ persons have a right to marry a person of their choice regardless of religion, gender and sexual orientation. They contend that the Special Marriage Act is violative of Articles 14, 15, 19, 21 and 25 of the Constitution insofar as it does not provide for the solemnisation of marriage between same‑sex, gender non‑conforming or LGBTQ couples. They seek that the SMA apply to any two persons who seek to get married, regardless of gender identity and sexual orientation, and that the words “husband” and “wife” as well as any other gender‑specific term in the SMA be substituted by the word “party” or “spouse”. They request that all rights, entitlements and benefits associated with the solemnisation and registration of marriage under the SMA be applicable to LGBTQ persons. They argue that Sections 5, 6, 7, 8, 9, 10 and 46 of the SMA, which contain requirements regarding the publication of a public notice of a proposed marriage, the domicile of the couple, and empower the Marriage Registrar to receive and decide objections, are violative of Articles 14, 15, 19 and 21. They seek that the validity of marriages already solemnised or registered under the SMA not be jeopardised if one spouse transitions to their self‑determined gender identity. They contend that the word “spouse” in Section 7A(1)(d) of the Citizenship Act is gender‑neutral and applicable to all spouses of foreign origin regardless of sex or sexual orientation. They request that LGBTQ couples have a right to register their marriages under Section 5 of the Hindu Marriage Act and under Section 17 of the Foreign Marriage Act if they are lawfully married in a foreign jurisdiction and at least one of them is an Indian citizen. They assert that the Foreign Marriage Act violates Articles 14, 15, 19 and 21 of the Constitution and is unconstitutional and void insofar as it does not provide for the registration of marriages between same‑sex or gender non‑conforming or LGBTQ couples. They seek that the Foreign Marriage Act apply to any two persons who seek to get married, regardless of gender identity and sexual orientation, and that the words “bride” and “bridegroom” as well as any other gender‑specific term be substituted by the word “party” or “spouse”. They request that all rights, entitlements and benefits associated with the solemnisation and registration of marriage under the Foreign Marriage Act be applicable to LGBTQ persons. They argue that Regulations 5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption Regulations are unconstitutional and ultra vires the Juvenile Justice Act insofar as they exclude LGBTQ couples from joint adoption. They contend that the words “married couple” and “marital relationship” used in those regulations should encompass LGBTQ couples married under foreign laws.
id_366	3	The phrases male applicant and female applicant are substituted by the phrases Prospective Adoptive Parent 1 and Prospective Adoptive Parent 2 (in case of applicant couples) in Schedules II, III, VI and VII of the Adoption Regulations; Section 5 of the Hindu Marriage Act does not distinguish between homosexual and heterosexual couples and the former have a right to marry under the Hindu Marriage Act; LGBTQ persons have a constitutional right to a chosen family in lieu of next of kin under all laws as an intrinsic part of their right to a dignified life under Article 21; An unmarried person can nominate any person(s) to act as their nominee or next of kin, irrespective of whether such person is a guardian, close relative or family member, with respect to healthcare decisions in case of incapacity such as the execution of Advance Directives and assigning any legal right, interest, title, claim or benefit accrued to the person; The State Governments must apply all preventative, remedial, protective, and punitive measures including the establishment of safe houses similar to the Garima Greh welfare scheme, in order to guarantee the safety and security of all individuals irrespective of gender identity and sexual orientation; The provisions of matrimonial statutes including the rules and regulations framed thereunder, to the extent that they are construed as requiring one male or bridegroom and one female or bride for the solemnisation of marriage, be read as neutral as to gender identity and sexual orientation; All marriages between couples in which either one or both partners are transgender or gender non‑conforming or who otherwise do not identify with the sex assigned to them at birth, may be solemnised under matrimonial statutes regardless of their gender identity and sexual orientation., In addition, the petitioners have sought directions to the Union Government, the State Governments, and district and police authorities to adopt and follow a protocol in cases which concern adult, consenting LGBTQ persons who require protection from their families, regardless of whether such persons are married., Supreme Court of India is vested with the authority to hear this case., The respondents argued that Supreme Court of India should not decide the issue of whether legal recognition in the form of marriage can be given to non‑heterosexual relationships. It was argued that this issue must necessarily be decided by the people themselves or through the elected representatives. It was also submitted that Supreme Court of India, by deciding the issue one way or the other, would pre‑empt any debate in the legislature., The respondents' submission is two‑fold: first, the Court does not have the power to decide this issue; and second, such a decision can be arrived at only through a process that reflects the electoral will., Article 32 vests Supreme Court of India with the power to enforce the rights in Part III of the Constitution., Part III of the Constitution of India enshrines the fundamental rights of the people of India. Article 13 of the Constitution stipulates that the State shall not make any law which takes away or abridges the rights conferred in Part III and that any law made in contravention of this condition shall, to the extent of the contravention, be void. Article 32 complements Article 13 and provides the right to a constitutional remedy for the enforcement of rights conferred by Part III: Article 32. Remedies for the enforcement of rights conferred by this Part. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part., The Constitution of India is unique in that its provisions expressly accord the judiciary with the power to review the actions of the legislative and executive branches of government, unlike in many other countries. Article 32 makes fundamental rights justiciable and is worded broadly. The right to approach Supreme Court of India for the enforcement of the fundamental rights embodied in Part III is itself a fundamental right by virtue of Clause (1) of Article 32. It states that Supreme Court of India may be moved by appropriate proceedings. This expression means that the appropriateness of the proceedings depends on the relief sought by the petitioner., Clause (1) of Article 32 does not place any constraints on the power of Supreme Court of India to entertain claims that the rights enumerated in Part III have been violated., Similarly, Clause (2) is worded expansively and enlarges the scope of the powers of Supreme Court of India to enforce fundamental rights. First, Clause (2) provides Supreme Court of India with the power to issue directions, orders, or writs, which indicates that Supreme Court of India may mould the relief according to the requirements of the case before it and that it is not constrained to a particular set of cases in which a particular relief or set of reliefs may be granted. This expression indicates that the power of Supreme Court of India is not limited to striking down an offending statute, rule, or policy. Rather, it extends to issuing directions or orders or writs for the enforcement of fundamental rights. Put differently, this means that the power of Supreme Court of India is not only negative in the sense that it may restrain the State from doing something which infringes upon the fundamental rights of people but is also positive in the sense that it may compel the State to do something or act in a manner which gives effect to such rights; Second, the word 'including' in Clause (2) indicates that the five writs mentioned in that clause are illustrative. The word 'including' is used as a word of enlargement. Supreme Court of India may issue directions, orders, or writs other than the five writs specified. Therefore, the manner in which Article 32 has been drafted does not limit the powers of Supreme Court of India. To the contrary, it clearly and unambiguously vests Supreme Court of India with the power to conduct judicial review and give effect to the fundamental rights enumerated in Part III., The extent of the powers vested in Supreme Court of India by Article 32 as envisaged by the framers of the Constitution can be understood from the Constituent Assembly's discussion of the provision which was eventually adopted as Article 32. Mr. H V Kamath was of the opinion that it was unwise to particularise the writs which Supreme Court of India ought to issue, and that Supreme Court of India should have the power to issue any directions it considered appropriate in a case. In service of this idea, he moved an amendment to substitute clause (2) of the provision which is now Article 32. The substituted clause was to read: 'The Supreme Court shall have power to issue such directions or orders or writs as it may consider necessary or appropriate for the enforcement of any of the rights conferred by this part.', Responding to this proposal, Dr. B R Ambedkar underscored that Supreme Court of India had been endowed with wide powers of a general nature: what has been done in the draft is to give general power as well as to propose particular remedies. The language of the article is very clear. These are quite general and wide terms. These writs ought to be mentioned by their name in the Constitution without prejudice to the right of the Supreme Court of India to do justice in some other way if it felt it was desirable to do so. I, therefore, say that Mr. Kamath need have no ground of complaint on that account., The power of Supreme Court of India to do justice is not, therefore, limited either by the manner in which Article 32 has been constructed or by any part of the Constitution. It is amply clear from both the plain meaning of Article 32 as well as the Constituent Assembly Debates that Supreme Court of India has the power to issue directions, orders, or writs for the enforcement of the rights incorporated in Part III of the Constitution., Judicial review and separation of powers. The doctrine of separation of powers, as it is traditionally understood, means that each of the three organs of the State (the legislature, the executive, and the judiciary) perform distinct functions in distinct spheres. No branch performs the function of any other branch. The traditional understanding of this doctrine (also termed the pure doctrine) does not animate the functioning of most modern democracies. That our Constitution does not reflect a rigid understanding of this doctrine has long been acknowledged by Supreme Court of India. In practice, a functional and nuanced version of this doctrine operates, where the essential functions of one arm of the State are not taken over by another arm and institutional comity guides the actions of each arm. In other words, the functional understanding of the separation of powers demands that no arm of the State reigns supreme over another., The Union of India suggested that Supreme Court of India would be violating the doctrine of separation of powers if it determines the issue in this case. The separation of powers undoubtedly forms a part of the basic structure of the Constitution, but equally, the power of courts to conduct judicial review is also a basic feature of the Constitution. The doctrine of separation of powers certainly does not operate as a bar against judicial review. In fact, judicial review promotes the separation of powers by seeing to it that no organ acts in excess of its constitutional mandate. It ensures that each organ acts within the bounds of its remit. Further, as discussed in the previous segment of this judgment, the Constitution demands that Supreme Court of India conduct judicial review and enforce the fundamental rights of the people. The framers of our Constitution were no doubt conscious of this doctrine when they provided for the power of judicial review. Being aware of its existence and what it postulates, they chose to adopt Article 32 which vests Supreme Court of India with broad powers. The doctrine of separation of powers cannot, therefore, stand in the way of Supreme Court of India issuing directions, orders, or writs for the enforcement of fundamental rights. The directions, orders, or writs issued for this purpose cannot encroach upon the domain of the legislature. Supreme Court of India cannot make law, it can only interpret it and give effect to it., The existence of the power of judicial review cannot be conflated with the manner in which the power is exercised. The exercise of the power of judicial review abides by settled restraints which acknowledge that the power of law making is entrusted to democratically elected legislative bodies and that the formulation and implementation of policy is entrusted to a government which is accountable to the legislature. In the exercise of its legislative function the legislature may incorporate policies which will operate as binding rules of conduct to operate in social, economic and political spaces. Judicial review is all about adjudicating the validity of legislative or executive action (or inaction) on the anvil of the fundamental freedoms incorporated in Part III and on the basis of constitutional provisions which structure and limit the exercise of power by the legislative and executive arms of the State., Judicial review is a constitutionally entrenched principle which emanates from Article 13. It is not a judicial construct. The power of judicial review has been expressly conferred by the Constitution. In the exercise of the power of judicial review, Supreme Court of India is cognizant of the fact that the legislature is a democratically elected body which is mandated to carry out the will of the people. It is in furtherance of this mandate that Parliament and the State legislatures enact laws. Courts are empowered to adjudicate upon the validity of legislation and administrative action on the anvil of the Constitution. In the exercise of the power of judicial review, Supreme Court of India does not design legislative policy or enter upon the legislative domain. Supreme Court of India will hence not enter into the legislative domain by issuing directions which for all intents and purposes would amount to enacting law or framing policy., The power of Supreme Court of India to enforce rights under Article 32 is different from the power of the legislature to enact laws. In Powers, Privileges and Immunities of State Legislatures, In re, a seven‑Judge Bench of Supreme Court of India held: whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country. Hence, it falls squarely within the powers of Supreme Court of India to adjudicate whether the fundamental rights of queer persons have been infringed, as claimed by the petitioners., Supreme Court of India will not issue a mandamus to Parliament but will determine the scope and effect of certain fundamental rights. What do these rights mean and what are their incidents? What do they require of the State? What are their boundaries? In answering these questions, Supreme Court of India is not enacting law or framing policy but is performing its constitutionally mandated function of interpreting the Constitution and enforcing the rights it recognises. Supreme Court of India cannot ignore its duty to fulfil the mandate of Articles 13 and 32. The distinction between law‑making and adjudicating the rights of the people by interpreting the Constitution and enforcing these rights, as required by Article 32, cannot be forgotten., Supreme Court of India has previously utilised its power under Article 32 to issue directions or orders for the enforcement of fundamental rights. This power does not extend only to striking down an offending legislation but also to issuing substantive directions to give effect to fundamental rights, in certain situations. In Common Cause v. Union of India, a Constitution Bench of Supreme Court of India (of which Justice D Y Chandrachud was a part) found that the right to life, dignity, self‑determination, and individual autonomy meant that people had a right to die with dignity. Supreme Court of India delineated guidelines and safeguards in terms of which Advance Directives could be issued to cease medical treatment in certain circumstances. Similarly, in Vishaka the Court issued guidelines for the protection of women from sexual harassment at the workplace. These guidelines were grounded in the fundamental rights to equality under Article 14, to practise any profession or to carry out any occupation, trade or business under Article 19(1)(g), and to life and liberty under Article 21. The decisions in Common Cause and Vishaka are significant because Supreme Court of India issued directions for the enforcement of fundamental rights in the absence of a law which was impugned before it., The power of judicial review must be construed in terms of the Constitution of India and not in terms of the position of law in other jurisdictions. A common mistake in the legal community is to refer to the doctrines and decisions of other jurisdictions regardless of the context in which they arose. The jurisprudence of other countries undoubtedly facilitates an exchange of ideas and acquaints us with the best practices in the field. It illuminates the potential benefits and pitfalls of a particular approach and enables us to dwell on whether to accept and if we do so, whether to improve on that approach. However, a particular doctrine or legal standard ought not to be borrowed blindly. The first and foremost authority is the Constitution or any law in India. An appropriate tool of interpretation must be used to discern the law as laid down by the Constitution or by any statute, rule, or regulation. This precept applies with equal force to the question of judicial review in India. Judicial review has to be conscious of our own social and cultural milieu and its diversity., Parliament being sovereign in England, the courts of England do not have the power to strike down a statute as being contrary to its basic law. This status of affairs cannot, of course, be superimposed on the relationship between our legislative bodies and courts. In Powers, Privileges and Immunities of State Legislatures, In re (supra), Supreme Court of India held that the Constitution is supreme and sovereign in India and that legislative bodies in India are not sovereign in the same way as Parliament is in England. Hence, the limitations which apply to the Supreme Court of the United Kingdom while it conducts judicial review do not apply to Supreme Court of India. Similarly, the restrictions on judicial review in the United States of America cannot be imported without any regard to our Constitution., The Union of India relied on various decisions of the Supreme Court of the United States of America including the decisions in Day‑Brite Lighting Inc. v. Missouri and the dissenting opinion of Oliver Wendell Holmes, J. in Lochner v. New York for the proposition that Supreme Court of India would be in danger of becoming a super legislature if it decided the issues which arise in the present proceedings. This argument misses the crux of the matter. The Supreme Court of the United States of America established its power of judicial review in Marbury v. Madison. The text of the US Constitution does not vest their courts with this power, unlike in India. The Constitution of India expressly authorises judicial review. While doing this the Constitution confers broad powers on Supreme Court of India as discussed in the previous segment of this judgment. This being the case, it is injudicious to borrow from the jurisprudence of the US on judicial review, its boundaries, legitimacy, and the type of cases which warrant deference to legislative bodies. In State of Madras v. V G Row, a Constitution Bench of Supreme Court of India held: we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative Acts. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. Similarly, in Romesh Thappar v. State of Madras this Court held that there was no remedy in the US which was analogous to the one provided by Article 32 of the Constitution of India. Therefore, the contours of the power of Supreme Court of India to conduct judicial review must be construed in terms of the Constitution of India and not in terms of the position of law in other jurisdictions., The role of courts in the democratic process. The argument of the respondents that any decision by Supreme Court of India on this issue would be anti‑democratic is not an argument that is specific to the issues which have been raised before us in this batch of petitions. Rather, it is an argument which strikes at the legitimacy of the judicial branch. The argument that the decision of the elected branch is democratic and that of the judicial branch is not is premised on the principle of electoral representation. The proposition is that the exercise of the power of judicial review would constrain the right of citizens to participate in political processes. This is because courts are vested with the power to overturn the will of the people which is expressed through their elected representatives., This is a narrow definition of democracy, where democracy is viewed through electoral mandates and not in constitutional terms. Additionally, it overlooks the importance of a Constitution which prescribes underlying values and rules of governance for the sustenance of a democratic regime. If all decisions of the elected wing of the State are considered to be democratic decisions purely because of the manner in which it is vested with power, what then is the purpose of the fundamental rights and the purpose of vesting Supreme Court of India with the power of judicial review? Framing the argument on the legitimacy of the decisions of Supreme Court of India purely in terms of electoral democracy ignores the Constitution itself and the values it seeks to engender., Electoral democracy is the process of elections based on the principle of one person one vote where all citizens who have the capacity to make rational decisions (which the law assumes are those who have crossed the age of eighteen) contribute towards collective decision making. Yet the Constitution does not confine the universe of a constitutional democracy to an electoral democracy. Other institutions of governance have critical roles and functions in enhancing the values of constitutional democracy. The Constitution does not envisage a narrow and procedural form of democracy. When the people of India entered into a social contract in the form of a Constitution, they chose the conception of democracy which not only focused on rule by elected bodies but also on certain substantive values and on institutional governance. The Constitution defined democracy in terms of equal rights in political participation and of self‑determination., When democracy is viewed in this substantive and broad manner, the role of courts is not democracy‑disabling but democracy‑enabling. Much like the elected branch, the legitimacy of courts is also rooted in democracy. It is rooted in not operating in a democratic manner because if it was, then courts may be swayed by considerations which govern and guide electoral democracy. By vesting the judicial branch with the power to review the actions of other institutions of governance (including the legislature and the executive) on the touchstone of constitutional values, the Constitution assigns a role to the judiciary. The institutions of governance place a check on the exercise of power of the other institutions to further constitutional values and produce better, more democratic outcomes. Courts contribute to the democratic process while deciding an issue based on competing constitutional values, or when persons who are unable to exercise their constitutional rights through the political process approach the court through its writ jurisdiction to seek the enforcement of their rights., Is queerness un‑Indian? Who is an Indian? What practices are Indian? Queerness is a natural phenomenon which is known to India since ancient times. The question of whether homosexuality or queerness is unnatural is no longer res integra, in view of the decision in Navtej Singh Johar where Supreme Court of India held that it is innate and natural. The contention of the Union of India that heterosexual unions precede law while homosexual unions do not cannot be accepted in view of the decision in Navtej Singh Johar where Supreme Court of India held that queer love has flourished in India since ancient times., The respondents have also averred that homosexuality or gender queerness is not native to India. This contention does not hold any water. In India, persons with a gender queer identity who do not fit into the binary of male and female have long been known by different names including hijras, kothis, aravanis, jogappas, thirunambis, nupi maanbas and nupi maanbis. In fact, the term transgender person as it is understood in English or the third gender does not always fully or accurately describe the gender identity of those who are known by some of these terms. Additionally, the social structure of the communities of transgender persons in India is unique and does not mirror western structures. It is native to our country. The judgment of Supreme Court of India in NALSA also explored the presence of the transgender identity and other forms of gender queerness in Indian lore., In With Respect to Sex: Negotiating Hijra Identity in South India, Gayatri Reddy documents the different manifestations of kinship in hijra communities, including the guru‑chela (or teacher‑disciple) relationship, the mother‑daughter relationship, and the jodi (or bond) with a husband. She describes how many hijras enter into unions with men, who are referred to as their pantis. These unions span over many months or many decades, depending on the couple in question. Many men in such unions have made their natal families aware about their relationship with their partner, and in some cases, the hijras would sometimes meet their partner’s natal family. They sometimes referred to their relationship as one of marriage. Men also assaulted their partners and displayed other violent tendencies. Some hijras maintained contact with their biological family, most notably the mother. Although many hijras were in romantic, long‑lasting partnerships with men or in touch with their natal family, they considered other hijras as constituting their family as opposed to their pantis or their biological families., In many communities, hijras are customarily invited to auspicious events such as the birth of a child to bless the family in question., Like the English language, some English words employed to describe queer identities may have originated in other countries. However, gender queerness, transgenderism, homosexuality, and queer sexual orientations are natural, age‑old phenomena which have historically been present in India. They have not been imported from the West. Moreover, if queerness is natural (which it is), it is by definition impossible for it to be borrowed from another culture or be an imitation of another culture., Queerness is not urban or elite. The respondents, including the Union of India, have contended that homosexuality and queer gender identities or transgenderism are predominantly present in urban areas and amongst the elite sections of society. They assert that variations in gender and sexual identity are largely unknown to rural India and amongst the working classes. Nothing could be further from the truth. While they may not use the words homosexuality, queer, lesbian, gay or any other term which populates the lexicon of English‑speaking persons, they enter into unions with persons of the same sex as them or with gender queer persons; these unions are often long‑lasting, and the couple performs a marriage ceremony. The incidence of queerness amongst the rural and working‑class communities has been documented in academic scholarship as well as newspaper reports. In the absence of evidence aliunde, the details narrated in newspaper reports are not facts which are proved in terms of the Indian Evidence Act 1872. However, in cases such as the present one which require Supreme Court of India to examine social phenomena and their incidence, newspaper reports serve as a useful tool in the exercise of illuminating social realities., Supreme Court of India need look no further than the petitioners in this case to illustrate the point that queerness is neither urban nor elite: One of the petitioners grew up in Durgapur, West Bengal and Delhi and states that she came to terms with her sexuality when she was an adult. Another petitioner in the same case grew up in Varanasi, Uttar Pradesh and states that she knew that she was a lesbian from a young age; One of the petitioners hails from Muktsar, Punjab and happens to be OBC. Another petitioner in the same case happens to be Dalit. They come from working class backgrounds; Another petitioner was born in Mumbai to Catholic parents. She attempted to die by suicide and later had to beg on the streets in order to survive;
id_366	4	Some petitioners before this Court are transgender persons and activists. One of them is a public personality, Akkai Padmashali, who hails from a non-English speaking, working‑class background. At a young age she left home and worked as an assistant in a shop selling ceramics but quit because she was unable to hide her true gender identity. Circumstances forced her to become a sex worker to sustain herself. Later she was awarded the Karnataka Rajyotsava Award, Karnataka's second highest civilian award, for her contribution to social service. Another petitioner who is a transgender person was born in a family of coconut and betel‑leaf farmers and later worked in a factory; circumstances also forced her to become a sex worker. She is now a social activist. One of the petitioners is a lesbian who lives in Vadodara, Gujarat., Ruth Vanita, an academician, studied the history of queer marriage in India in her scholarly works. She narrates that she married a Jewish woman in 2000 with both Hindu and Jewish ceremonies. Her book titled Love's Rite: Same‑Sex Marriage in India and the West records numerous instances of queer unions and partnerships in India: two young women who were classmates fell in love; one underwent sex reassignment surgery in 1989, they married each other, and despite a complaint filed by the father of one of them, the couple lived together. In 1993 two women in Faridabad married each other in a Banke Bihari temple with a priest officiating. In the same year two men, one Indian and the other American, married according to Hindu rites in a ceremony in New Delhi. In 2004 a twenty‑four‑year‑old Dalit woman and a twenty‑two‑year‑old Jat woman travelled to Delhi and performed the rites of marriage in a temple despite family opposition. Two young women from Bhopal, whose parents were construction workers, ran away in 2004 and told the police they would live together regardless of attempts to separate them. Also in 2004 a twenty‑one‑year‑old Christian woman and a twenty‑three‑year‑old Hindu woman from a southern state declared their lifelong commitment after a tabloid alleged they were lesbians. Two young Muslim men, aged twenty‑two and twenty‑eight, married in Ghaziabad, Uttar Pradesh; their friends and family physically assaulted them but they continued to intend to live together. Two nurses in Patel Nagar, Delhi, met as students, fell in love, declared themselves life partners and lived together for fifteen years, with neighbours aware and unfazed., Other sources record varied instances of persons entering into atypical unions or expressing their homosexuality or gender identity: two Adivasi women married according to tribal customs in a small village in Koraput district, Orissa; a woman who was the daughter of a government school teacher and a woman whose father was a labourer garlanded each other in Hamirpur district, Uttar Pradesh and sought to register their marriage at the local sub‑registrar's office after divorcing their husbands; two women from Kanpur travelled to Delhi to marry each other; and young gay men in Barasat, West Bengal expressed their desire to be part of the queer community, one of them working in a clerical job., The AIDS Bhedbhav Virodhi Andolan (the AIDS Anti‑Discrimination Movement) released a citizen's report on the status of homosexuality in India, titled Less Than Gay (1991). The report discusses arguments that were put forth more than three decades ago and asserts that the queer community is not a coherent, easily definable group. It details the lived experiences of gay men and lesbian women collected by interviewing them, and tells the stories of a lesbian hostel warden, a gay teacher at a government polytechnic college in Madhya Pradesh, an auto‑rickshaw driver in Pune, two male municipal sweepers in Mumbai who lived together and loved each other, and a gay man from a slum in Delhi., Ruth Vanita also documents attempted suicides and suicides arising from the difficulties faced by persons in queer relationships: in 1980 Jyotsna and Jayshree died by suicide after jumping in front of a train in Gujarat, leaving a letter explaining they could not endure living apart after their marriages to men; Gita Darji and Kishori Shah, nurses in a village in Gujarat, died by hanging in 1988; and in January 2000 two young women named Bindu and Rajni were stopped from eloping, and a few days later jumped into a granite quarry in Kerala, leaving notes that they wished to die because it was impossible for them to live together., Maya Sharma, in Loving Women: Being Lesbian in Unprivileged India (Yoda Press, 2006), gives an account of various persons—most of whom are women—in same‑sex or queer relationships, based on detailed interviews. The book focuses on working‑class persons and seeks to dispel the myth that lesbians in India are all urban, Westernised and from upper or middle classes. It highlights that public discourse has not created space for the voices and experiences of LGBTQ persons who also belong to marginalized communities; their lives are distant from upper‑class, urban Indian as well as Western representations of homosexuality, and their personal struggles, intertwined with socioeconomic struggles and traditional contexts, remain largely unknown., The discussion in this segment does not scratch the surface of the rich history of LGBTQ persons in India, which continues into the present. Yet even the limited exploration of literature and reportage makes it clear that homosexuality or queerness is not solely an urban concept, nor is it restricted to the upper classes or privileged communities. Queer people may be from villages, small towns, semi‑urban or urban spaces, and may belong to any caste or economic location. It is not only the English‑speaking, white‑collar professional in a metropolitan city who can claim a queer identity, but also the woman who works on a farm in an agricultural community. Persons may or may not identify with labels such as queer, gay, lesbian, trans, etc., either because they speak languages that are not English or for other reasons, but many Indians are gender‑queer or enter into same‑sex relationships., It is not a foreign origin that makes queerness Indian; rather, many shades of prejudice in India are remnants of a colonial past. The native way of life gradually changed with the entry of the British, who brought their own sense of morality and laws. This Court discussed the legal legacy of the colonizers at length in National Legal Services Authority and Navtej Singh Johar. To recapitulate, Section 377 of the Indian Penal Code criminalised queer sexual acts and imposed British morality on the Indian cultural landscape. The British also enacted the Criminal Tribes Act, which provided for the registration, surveillance and control of certain criminal tribes and eunuchs. Part II of the Act regulated transgender persons (referred to as eunuchs) and subjected them to indignities such as mandatory medical examination, penalties for dressing like a woman, and invalidation of their wills. Although the Criminal Tribes Act was repealed after independence, its underlying prejudices continue in various central and state enactments on habitual offenders., The criminalisation of the LGBTQ community and their prosecution under these laws, coupled with the violence enabled by these laws, drove large sections of the community underground. Society stigmatised any sexual orientation that was not heterosexual and any gender identity that was not cisgender. Persons with atypical gender identity or sexual orientation were compelled to conceal their true selves, and their presence in the public sphere shrank even as homophobia and transphobia flourished. Despite alienation, many queer persons continued to live visibly, such as hijras who often had no choice but to be public. Others expressed their orientation only within the comfort of their homes, families or close friends, or led double lives, pretending to be heterosexual in public while revealing their true orientation to a select few. Some entered into lavender marriages or front marriages, which are marriages of convenience meant to conceal the sexual orientation of one or both partners., The Supreme Court of India has recognised that queerness is not of foreign origin and that many prejudices are colonial remnants. Colonial laws and convictions engendered discriminatory attitudes that continue into the present. Those who argue that queerness is borrowed from abroad point to the recent increase in the expression of queer identities as evidence that queerness is new. However, this recent visibility is not an assertion of an entirely novel identity but a re‑assertion of an age‑old one. The establishment of a democratic nation‑state and the nurturing of democratic values over six decades have enabled more queer persons to exercise their inherent rights. Constitutional guarantees of liberty and equality have gradually become available to an increasing number of people, fostering an environment conducive to queer expression without fear of opprobrium., Understanding the institution of marriage, the Supreme Court of India notes that there is no universal definition of marriage. Marriage is understood differently in law, religion and culture. Some religions consider marriage a sacrament while others consider it a contract. The law defines the conditions for a valid marriage, such as the minimum age of the parties, consent, and the absence of prohibited relationships. A marriage is valid in the eyes of the law as long as these pre‑conditions are satisfied. For example, Section 27 of the Special Marriage Act provides that a party may present a petition for divorce on the ground that the other party is undergoing a sentence of imprisonment for seven years or more, but it does not automatically render the marriage void if one party is imprisoned., Marriage is a voluntary union of mind, body and soul, signifying a deep and abiding commitment and devotion to the relationship. When two people marry, they intend to be in a lifelong relationship, providing emotional, financial and spiritual support to each other, and being intellectual partners and friends. Love, respect and companionship are hallmarks of a successful marriage. While marriage can be a gateway to the creation of a family through child‑bearing and child‑rearing, it is not a precondition for the existence of a family. The sole purpose of marriage is not merely sexual relations or procreation, although those may be motivations. Sexual relations and procreation alone are not the exclusive foundation for marriage; emotional and associational components are equally important., A married couple may not have biological children because of age, fertility problems or personal choice. Couples who wish to have children may use assisted reproductive technologies, surrogacy, adoption or other methods. Many married couples may choose not to engage in sexual relations for various reasons, and some may reside in different homes or cities temporarily or permanently. The emotional, financial or spiritual contributions to a marriage may vary with each couple. While the law identifies certain conduct as grounds for divorce, such conduct does not render a marriage void. The marriage continues to exist even if it is atypical or runs contrary to an idealised notion of marriage. Society continues to consider such unions as marriages, even if the couple lives apart or does not have children., Different religions may have different understandings of marriage; for instance, whether marriage is a sacrament or a contract. There may be diverse social constructs of marriage within a religious grouping, and different conceptions within a particular community. Section 5(iv) of the Hindu Marriage Act stipulates that a marriage may be solemnised between two persons if they are not within the degrees of prohibited relationship, unless a custom or usage governing the parties permits their marriage. In many communities an uncle cannot marry his niece because no custom permits it, while in other communities such a marriage is customary and therefore permitted. Tribal customs similarly permit marriages that may not be recognised by the general law. Thus, each community defines the institution of marriage for itself, and the queer community is just as much a community as any other., Procreation and the desire to have a family are significant characteristics of marriage, but even heterosexual couples may be unable or unwilling to procreate due to age, health or personal choice. The inability of queer couples to procreate does not act as a barrier to their entry into the institution of marriage, just as it does not prevent heterosexual couples who are unable or choose not to procreate. Viewing marriage solely through the lens of sexual relations or procreation is a disservice to married couples everywhere, as it renders invisible the myriad other aspects of marriage as an emotional union., The conception of marriage is not static. Historically, practices such as sati, widow remarriage and child marriage have evolved. Although far from a universal practice, sati was once permitted and intertwined with marriage, with widows being tied to the funeral pyre of their deceased husbands. The Commission of Sati (Prevention) Act, 1987 criminalises attempts to commit sati, its abetment and glorification. In accordance with long‑standing custom, women (mostly from dominant castes) were not permitted to remarry after their husbands' death; they were shaved and prohibited from wearing jewellery or colourful clothes, a condition considered a living death. Reformers such as Mahatma Jyotirao Phule, the Brahmo Samaj, Ishwar Chandra Vidyasagar and Tarabai Shinde advocated for widow remarriage, leading to the Hindu Widows Remarriage Act, 1856. Child marriage and the age of consent have also undergone significant legal and social changes over time.
id_366	5	A discussion of the history of marriage in India would be incomplete without reference to child marriage and the legal age of consent. Child marriage was widespread in most religions and communities. The age of consent for girls was fixed at ten years in 1860. In 1890, a thirty‑five‑year‑old man called Hari Mohan Maity caused the death of his ten‑year‑old wife Phulmoni Das (also known as Phulomonee Das) through violent sexual intercourse with her. While this would be considered rape and aggravated penetrative sexual assault of a child by prevailing legal standards, the concerned Supreme Court of India ruled that Hari Mohan Maity had a legal right to engage in sexual relations with Phulmoni Das because she was above the age of consent at the time. The age of consent for girls was then raised to twelve. Decades later, the Child Marriage Restraint Act 1929 raised the minimum age of marriage for girls from twelve to fourteen. In 1949, the criminal law of the country stipulated that the age of consent for girls was fifteen years. The Hindu Marriage Act set the minimum age of marriage at fifteen for girls and eighteen for boys. In 1978, the Hindu Marriage Act was amended to raise the minimum age of marriage to eighteen for girls and twenty‑one for boys. The Prohibition of Child Marriage Act 2006 provided that child marriages would be voidable at the option of the contracting party who was a child at the time of the marriage. Further, this statute criminalises the act of performing, conducting, directing, abetting, promoting or permitting a child marriage., The Protection of Children from Sexual Offences Act 2012 was enacted about a decade ago. It is a child‑specific legislation which inter alia criminalises sexual abuse in its various forms. A child is defined as any person below the age of eighteen years. In Independent Thought v. Union of India, the Supreme Court of India was confronted with the inconsistency between the POCSO Act which criminalised sexual relations with a child and Exception 2 to Section 375 of the Indian Penal Code which provided that sexual intercourse by a man with his wife was not rape if the wife was above fifteen years of age. As a consequence of this inconsistency, a person could have been guilty under the POCSO Act but not under Section 375 of the Indian Penal Code. This Court held that Exception 2 was violative of Articles 14, 15 and 21 of the Constitution and was an affront to constitutional morality. The Court read down Exception 2 as exempting a man from the offence of rape if his wife was above the age of eighteen. Currently, it is a punishable offence for a man to have sexual intercourse with a child, regardless of whether that child is his wife. It is evident that the law governing marriage has come a long way from Phulmoni Das time., Acts which were once considered the norm in a marriage are no longer countenanced by the law. The giving and taking of dowry, which was and continues to be prevalent in most communities, was criminalised by the enactment of the Dowry Prohibition Act 1961. Prior to its enactment, there was no penalty in law for demanding, giving, or accepting dowry. The family of the bride was often expected to pay large sums of money or present gift items of value to the groom or his family, as a condition of the marriage. The maternal families of innumerable women are harassed and violence is inflicted upon them in relation to demands for dowry. Parliament inserted Section 498A of the Indian Penal Code in 1983. Section 498A criminalises the act of a husband or his relative subjecting her to cruelty, as defined in the section. In many cases, the matrimonial families (the husband, the mother‑in‑law, the father‑in‑law, and other relatives) murdered the woman because of what they viewed as insufficient dowry or unmet demands for dowry. This led to Parliament amending the Indian Penal Code in 1986 to include Section 304B which criminalises dowry death. These provisions of law did not, however, adequately account for gender‑based violence in a marriage which are unconnected to dowry. Domestic violence was and continues to be prevalent. About two decades ago, the Protection of Women from Domestic Violence Act 2005 was enacted to protect the rights of women who were survivors or victims of domestic violence, either by their husbands or the relatives of their husbands. Prior to the enactment of the law, intimate partner violence which women are generally subject to was not criminalised., Inter‑caste and interfaith marriages were uncommon in the colonial era and established customs or usages did not govern such marriages. Then, as now, society subjected those who entered into inter‑caste and interfaith marriages to discrimination and violence. There was initially no legal framework in place which governed such marriages. The Special Marriage Act 1872 was enacted to enable the solemnisation of marriages independent of personal law. If two people belonging to different religions wished to marry, they were each required to renounce their respective religion in order to avail of its provisions. The law at the time did not supply a framework in which two persons belonging to different religions could retain their association or spiritual connection to their respective religions and still marry one another. Parliament was conscious of the limiting and restrictive character of the Special Marriage Act 1872 and enacted the Special Marriage Act in 1954, which was a more permissive legislation in that any two persons could marry without having to repudiate their respective religions. By stipulating that a marriage between any two persons may be solemnised under this Act, the Special Marriage Act also set out a mechanism for inter‑caste marriages to be solemnised independent of personal law., The families or relatives of couples who entered into inter‑caste or interfaith marriages would frequently inflict violence upon them, even to the extent of brutally murdering them. Their communities would either ordain or participate in these atrocities. Such murders are colloquially referred to as honour killings and are more accurately termed as caste‑based murders. It is a most unfortunate truth that this culture of violence persists to date. Couples who face this opprobrium have knocked on the doors of the Supreme Court of India inter alia seeking protection from their families and others who oppose their relationship and the Court has seized cases arising from violence in this context. In Shakti Vahini v. Union of India, the Supreme Court of India took note of the violence against couples in inter‑caste and interfaith marriages. It directed the state machinery to take preventive as well as remedial measures to protect such couples who wished to marry or who were recently married. It is beyond dispute that couples in inter‑caste and interfaith relationships have historically been forced to contend with and continue to contend with enormous difficulty while solemnising their unions. Large sections of society were and are fiercely opposed to such marriages. The opposition stems, at least in part, from a belief that a marriage ought to consist of two individuals from the same religion or caste. Parliament chose to enact the Special Marriage Act despite the opposition to atypical marriages and has not chosen to repeal the Act or otherwise exclude the celebration of inter‑caste marriages under personal laws despite continuing hostility from the communities of such couples. Parliament has presumably done so because it is cognizant of the fact that the exercise of fundamental rights is not contingent upon the approval of the community. Similarly, the Supreme Court of India has carried out the constitutional mandate by protecting the rights of individuals and couples in the face of considerable opposition from their families. In a democracy, certain rights inhere in all individuals. If the exercise of rights was contingent upon everyone else or, at least, a substantial portion of the community approving such exercise, we would be doing a disservice to a constitutional democracy. The Constitution does not require individuals to first convince others of the legitimacy of the exercise of constitutional rights before they exercise them., Section 10 of the Indian Divorce Act 1869, which is applicable to Christians, previously permitted the husband to file a petition for divorce on the ground that his wife was guilty of adultery. However, the wife was permitted to file a petition for divorce on the ground that her husband was guilty of adultery only in conjunction with certain other grounds such as conversion to another religion or bigamy. In Mary Sonia Zachariah v. Union of India, the Kerala High Court struck down a part of Section 10 and permitted Christian women to seek divorce on the ground of adultery alone. Parliament amended the Indian Divorce Act 1869 in 2001 by substituting Section 10 with a provision that made various grounds of divorce, including adultery, available to both the husband and the wife equally. It also introduced Section 10A, which permitted Christian marriages to be dissolved by mutual consent for the first time. In terms of Hindu customary law, certain communities permitted divorce whereas others did not. The Hindu Marriage Act extended the right of divorce to all Hindus when it was enacted in 1955. In 1976, Section 13B was introduced in the Hindu Marriage Act, permitting Hindus to dissolve their marriage by mutual consent for the first time. In Shilpa Sailesh v. Varun Srinivasan, the Supreme Court of India held that it has the authority to grant divorce when there is a complete and irretrievable breakdown of marriage notwithstanding the opposition of one of the parties to the marriage to its dissolution. Islamic customary law permitted divorce in certain situations and through certain modes. One of the modes was talaq‑e‑biddat or triple talaq by which the husband could instantly, irrevocably, and unilaterally divorce his wife. In Shayara Bano v. Union of India, the Supreme Court of India held that the practice of severing the marital bond through the mode of talaq‑e‑biddat was unconstitutional., Mahatma Jyotirao Phule, Ishwar Chandra Vidyasagar, Pandita Ramabai, Tarabai Shinde, Raja Ram Mohan Roy and countless others voiced their opposition to one or the other practice discussed in this segment. Their views were met with fierce opposition on the ground that the religious and cultural values of the subcontinent did not permit a departure from tradition. In some cases, the opposing groups relied on scriptures to justify their respective stances. When Dr. B. R. Ambedkar introduced the Hindu Code Bill, many opposed the provision for divorce on the ground that the Hindu religion did not envisage divorce because it was a sacrament. It is seen that there are competing understandings of the institution of marriage at every stage of its evolution. Yet, the understanding which was grounded in justice and the rights of the people has prevailed. Injustice in the law in relation to the institution of marriage, such as demands for dowry, dowry death, or child sexual abuse, or as incidental to the institution as in the case of sati or widow remarriage, is slowly but surely in the process of being eradicated. While these practices were once permitted and encouraged, they are currently not only frowned upon but also criminalised., This walk through history is not an attempt by the Supreme Court of India to take on the mantle of historians. The discussion demonstrates that the institution of marriage has not remained static or stagnant. To the contrary, it is change which characterises the institution. All social institutions transmogrify with time and marriage is no exception. From sati and widow remarriage to child marriage and inter‑caste or interfaith marriages, marriage has metamorphosed. The institution as we know it today would perhaps be unrecognisable to our ancestors from two hundred years ago. Despite vehement opposition to any departure from practice, the institution of marriage has changed. This is an incontrovertible truth. It is also important to note that these changes were brought about largely by acts of Parliament or the legislatures of the states. While the passage of many laws was preceded by significant social activism, it was the legislature which ultimately responded to the call for change. Even as Parliament and, in some cases, the courts expand the liberties of the people to conduct their lives in a manner they see fit in accordance with law, many sections of society remain opposed to these changes. Regardless of such opposition, the institution of marriage has undergone a sea change. It is therefore incorrect to characterise marriage as a static, stagnant or unchanging institution., From the discussion in this segment of the judgment, it is evident that the institution of marriage is built and rebuilt by societies, communities, and individuals. A universal conception of marriage is not present nor is the conception of marriage static over time. The only facet of marriage which is constant across religion, community, caste, and region is that the couple is in a legally binding relationship which recognises an emotional bond of togetherness, loyalty and commitment that is recognised by the law. The law recognises the commitment that the couple has for one another by regulating the institution of marriage and conferring certain rights and privileges on them. In Shafin Jahan, a three‑Judge Bench of the Supreme Court of India held: “Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.” The consequence of the judgment of the Supreme Court of India in National Legal Services Authority and Navtej Singh Johar is that the members of the queer community are no longer second‑class citizens of our country. Their individual and group rights are on par with any other citizen of this country. Their gender identity or sexual orientation cannot be a ground on which they are discriminated against. Mr. Tushar Mehta, the learned Solicitor General, submitted during the course of his arguments that two persons from the LGBTQ community have the right and the liberty to celebrate their union and label the union with any term they see fit, including marriage. The Union of India does not, however, wish to accord legal recognition to such ceremonies and unions. If the marriages of queer people were to be recognised by law enacted by Parliament, it would be the next step in its progression., One of us (Justice D. Y. Chandrachud) in Navtej held that the members of the LGBTQIA+ community have a right to navigate public spaces without the interference of the State. The claim of the petitioners in this case, however, is on a slightly different footing. The petitioners seek the active involvement of the State in their relationships through conferring recognition. Through marriage, the State confers legal recognition to a relationship between two heterosexual persons. By doing so, it recognises that relationships in the form of marriage are not merely a lifestyle but an important constituent unit for the sustenance of social life. The State confers innumerable benefits, both tangible and intangible, to a family unit constituted by marriage. The petitioners seek that the State grant legal recognition to the relationship between non‑heterosexual persons in the form of marriage because they are otherwise excluded from the express and implied benefits of marriage. They claim that non‑heterosexual unions have not been able to attain social sanctity because their relationship is invisible in the eyes of the law., The State firstly prescribes conditions with respect to who can enter into a valid marriage; secondly, regulates the marital relationship during its sustenance; and thirdly, regulates the repercussions of the breakdown of a marriage. The State prescribes various conditions for the solemnisation of a valid marriage which inter alia includes the conditions of consent, a minimum age requirement, and whether the parties are within the degrees of prohibited relationship. The law regulates the conduct of the parties to a marriage in numerous ways. For example, the law penalises the husband and his family members if they treat the wife cruelly, including demands for dowry. Similarly, the Protection of Women from Domestic Violence Act 2005 penalises persons for domestic violence in the course of a domestic relationship which has been defined to include marriage. The grounds for divorce prescribed in various marriage laws also regulate the conduct of parties because their actions during the sustenance of a marriage may be a ground for the legal dissolution of that marriage. The valid grounds for divorce include where one of the parties has a sexual relationship outside of marriage, or has deserted their spouse, or treats the spouse with cruelty. The State regulates the relationship between the parties after the divorce by prescribing the payment of maintenance. Under the Special Marriage Act, the wife can claim alimony or maintenance and under the Hindu Marriage Act, both the husband and the wife can claim maintenance. The above discussion elucidates that the State plays a crucial role in regulating marriage. Marriage has attained both social and legal significance because of the active involvement of the State at every stage of the marital relationship during entry into it, during its subsistence, and in its aftermath., What prompted the State to regulate personal relationships? There are two prominent reasons. The first reason was to regulate the social order. The State regulated social order by firstly regulating the sexual conduct of persons through marriage, and secondly by prescribing a legal mechanism for the devolution of property based on the legitimacy of the heir. With respect to the first reason, the State used marriage as a tool to regulate sexual behaviour. The State prescribed social rules through the vehicle of law by devising marriage as an exclusive relationship. Engaging in sexual conduct outside of marriage is a ground for divorce under personal marriage laws and the civil marriage law. It is also crucial to note that impotency and not sterility is a ground for divorce. Impotency is the inability of a man to engage in sexual intercourse. Sterility is the inability of a man or a woman to procreate. By prescribing impotency as a ground for declaring a marriage void (and not sterility), the State emphasised the centrality of sexual relations in a marriage as opposed to procreation. In this way, the State governs the conduct of society by regulating sexual conduct in a marital relationship. Another manner in which the State intended to regulate social order by regulating marriage is by placing marriage at the centre of property devolutions. Ownership and control over property was viewed as being important for the establishment of a just social order. One of the reasons for the establishment of a social contract for the creation of a State by which individuals gave up their right to live as unregulated free individuals in exchange for protection of their rights and freedom is for safeguarding of property rights. There must be rules for the devolution of property to avoid conflicts. These rules may vary in nature. Societies may establish rules for a common property system, a private property system, or a mixture of both. These legal rules have two primary components which concern how the title over the property is secured and how the title further devolves in case of intestate succession. Legal rules for the devolution of title are premised on marriage in modern societies., Brian H. Bix in the paper State Interest and Marriage argues that there is sufficient material to establish that the State regulates marriage to respond to the special interests of specific social groups. It has been argued that the propertied classes wanted to reduce any uncertainty about succession, which may have arisen because of a lack of clarity regarding the line of succession. It has also been argued that noble families desired to prevent their children's marriages with partners of lower social status. Irrespective of whether the State regulated marriage to further entrench the existing social order or to transform the existing social order based on constitutional values, it is clear that property also plays a prominent role in the regulation of marriage., The second reason for the State to be involved in the regulation of personal relationships was to remodel society, premised on the constitutional value of equality. A constitutional order premised on equality, dignity, and autonomy would be unworkable if personal relationships which are the building blocks of a just society are grounded on values that are antithetical to the Constitution. The Constitution declares that there shall be no discrimination on the grounds of religion, race, caste, and sex. How would it be a just society if, on the one hand, the Constitution declares that there shall be no discrimination, and on the other hand, inter‑faith and inter‑caste relationships bear the brunt of a brutal society through ostracisation and honour killings or caste‑based murders? How just would society be if, in spite of the constitutional guarantees of equality of women in public posts and educational institutions, they suffer patriarchal attitudes in the private sphere? The State regulates marriage to create a space of equal living where neither caste, religion, nor sex prevent any person from forming bonds for eternity nor do they contribute to the creation of an unequal relationship. The State’s regulation of marriage recognised that even though a married couple is a unit for the purposes of laws, they still retain their individual identity and are entitled to constitutional guarantees. For example, one of the parties need not necessarily be at fault for the couple to secure divorce. Our laws recognise divorce by mutual consent. They recognise that the parties to a marriage are in the best position to decide if they should continue with the marital relationship. Divorce by mutual consent is grounded on the principle of autonomy. The involvement of the State in the regulation of marriage opened up the space for inter‑caste marriages and inter‑faith marriages, and secured prominent constitutional rights., The regulation by the State and its attempts to create a more equal personal sphere also contribute towards factual equality where women are empowered to defy patriarchal notions of gender roles in daily life. The impact of the State’s involvement in creating a more just personal space by reforming the institution of marriage on the basis of constitutional ideals can be seen when a wife chooses to retain her surname after her marriage or where the partners equally contribute towards raising their child. The State recognised that a Constitution which upholds the values of freedom, liberty, and equality cannot permit the sustenance of a feudal institution undermining the rights of marginalised communities. Thus, it is important to view the involvement of the State in regulating the institution of marriage in terms of its transformative potential in ensuring equality in the personal sphere and in family life., Having discussed why and how the State regulates the institution of marriage, it is important that the Supreme Court of India recognise the effect of such regulation. Apart from the benefits of the State’s involvement which are recognised above, there are other benefits. These benefits can be segregated into tangible and intangible benefits. The intangible benefits of marriage are guided by hidden law. Hidden law comprises of norms and conventions which organise social expectations and regulate everyday behaviour. The benefits which are conferred by a legal institution must not be measured solely in terms of the benefits which are conferred by the law. It must also include the benefits which are conferred by hidden law. One such benefit of marriage which is traceable to hidden law is the social validity and recognition which marriage as an institution confers upon relationships., It is pertinent to note that the State only regulates heterosexual marriages. The law confers numerous rights and benefits which flow from a marriage but ignores the existence of any other form of relationship. The invisibilisation of relationships which are not in the form of marriage on the one hand bestows sanctity and commitment to marriages and on the other hand strengthens the perception that any other form of relationship is fleeting and non‑committal. The Protection of Women from Domestic Violence Act has come the closest to recognising the existence of relationships in forms other than marriage. The Act defines domestic relationship as a relationship between two persons who live together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage. In Indra Sarma v. V. K. V. Sarma, the Supreme Court of India considered whether live‑in relationships can be considered to be a relationship in the nature of marriage. A two‑Judge Bench observed that a relationship in the nature of marriage is distinct from a marriage. It was further observed that for a relationship to be considered to be in the nature of marriage, factors such as the duration of the relationship, whether the couple live in a shared household, the pooling of resources and financial arrangements, domestic arrangements, the sexual relationship, procreation, socialisation in public, and the intention and conduct of the parties must be considered., The observations of the Supreme Court of India in Indra Sarma elucidate that a relationship is in the nature of marriage only when an inference can be drawn from the surrounding circumstances that it will be a long‑lasting relationship. Thus, while there is a positive presumption that marriages are long‑lasting, there is also a negative inference that all other relationships which are not in the form of marriage are short‑lived. In addition, the observations indicate that marriage has always been understood and continues to be understood in terms of stereotyped traditional gender roles. The wife is entrusted with the responsibility of taking care of household chores and the husband is expected to be the breadwinner of the family. The public‑private divide is stark. Women are relegated to the private sphere where their contribution towards running the household is diminished. An inherent feature of the institution of marriage is the unequal heteronormative setting in which it operates. It is important for us to observe that the State while recognising the relationship between two heterosexual individuals in the form of marriage does not recognise or promote the gendered division of labour in the home. The State by regulating marriage has sought to redefine heterosexual relationships by emphasising the autonomy of both parties. The intangible benefits of marriage extend beyond the conferment of social recognition to the relationship of the couple. It also confers benefits which cannot be measured in tangible form to the children born of the marital relationship.
id_366	6	The law confers on children who are born of wedlock benefits in succession. In addition, the law’s recognition of the concepts of legitimate and illegitimate children has social repercussions in that illegitimate children are shunned by society. These intangible benefits of marriage indicate that society regards marriage as the primary and sole unit through which familial relationships can be forged. As Chief Justice Marshall observed in Goodridge v. Department of Public Health, in a very real sense, there are three partners in a civil marriage: two willing partners and an approving State., There are numerous tangible benefits conferred by the State which flow from marriage and touch upon every aspect of life. Tangible benefits conferred by marriage can be classified into matrimonial and child‑care related benefits; property benefits; monetary benefits; evidentiary privilege; civic benefits; and miscellaneous benefits., Matrimonial and child‑care related benefits include the provisions of permanent alimony and maintenance, maintenance if a person with sufficient means refuses to maintain his wife, the right to adopt a child as a couple, and the right to avail rights related to surrogacy. Property benefits would include securing a share in case of intestate succession. Legislation such as Section 16 of the Hindu Marriage Act 1955 has conferred legitimacy on children born from void or voidable marriages with a consequential right to property of the parents. Monetary or financial benefits which flow from marriage include the provisions to be nominated for the payment of gratuity, to receive funeral expenditure for the deceased spouse, to receive payment of medical benefits to the spouse of the insured person, and to claim provident fund as the dependent of the insured person. Evidentiary privilege includes the privilege accorded to communications during marriage under the Indian Evidence Act 1872. Civic benefits include the provision to apply for citizenship or to be an overseas citizen of India by virtue of the spouse’s citizenship. Miscellaneous benefits include other benefits under law which cannot be grouped under the above categories, such as the recognition of a spouse as a near relative for the purpose of the Transplantation of Human Organs and Tissues Act 1994., At this juncture, it is important to recall the submission made by the learned Solicitor General that even today, as the law exists, there is no prohibition against two queer persons holding a marriage ceremony. However, they would not be recognised as married partners by the State and non‑State entities for the purposes of the law. The non‑recognition of non‑heterosexual marriages denies the petitioners the social and material benefits which flow from marriage, which captures the true essence of marriage. Access to the institution of marriage is crucial to individual self‑definition, autonomy, and the pursuit of happiness because of these expressive and material benefits., Before we embark on an analysis of whether the Constitution recognises the right to marry, it is imperative that we discuss how the courts recognise unenumerated rights or derivative rights. The Ninth Amendment to the United States Constitution states that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Though the Indian Constitution does not contain such a provision, it is implied that the rights enumerated in Part III are not exhaustive. The fundamental rights recognised in Part III are identified in the level of abstraction – that is, equality, liberty, and expression. The Constitution does not provide a detailed enumeration of the facets of each enumerated right; the courts, while determining the scope of an enumerated right, lay down its facets and conceptions. For example, courts have held that the true essence of the right to equality is not encompassed in formal equality where all persons are treated alike irrespective of unequal socioeconomic status, but in substantive equality. Similarly, this Court has in numerous judgments held that the right to life and liberty recognised under Article 21 would be obscure if other crucial facets of liberty are not recognised. In this vein, the Court has recognised, inter alia, the right to livelihood, the right to a speedy trial, and the right to education., Fundamental rights are characterised as positive rights and negative rights. Some draw a distinction between fundamental rights (Part III) and the Directive Principles of State Policy (Part IV) by arguing that the former consists of negative rights and the latter of positive rights. In constitutional theory, negative rights are understood to involve freedom from governmental action whereas positive rights place a duty on the State to provide an individual or a group with benefits which they would not be able to access by themselves., Indian jurisprudence on the scope of fundamental rights can be divided into two thematic facets. In the first facet, the distinction between negative rights and positive rights faded with the harmonious reading of fundamental rights and Directive Principles of State Policy by the courts. The courts used the Directive Principles to inform the scope of fundamental rights. In Unnikrishnan v. State of Andhra Pradesh, the issue before the Supreme Court of India was whether the Constitution guarantees a fundamental right to education to its citizens. The Court held in the affirmative and traced the right to Article 21 and the Preamble of the Constitution. The Court observed that education is of transcendental importance in the life of an individual without which the objectives set forth in the Preamble cannot be achieved. It further emphasised that the Constitution expressly refers to education in Articles 41, 45, and 46. However, the Court limited the scope of the right to education in view of Article 45, which states that the State shall endeavour to provide free and compulsory education for all children until they complete the age of fourteen years. Thus, the Court held that the Constitution guarantees a right to free education for all children until they complete the age of fourteen years., In the second facet, the courts read fundamental rights to include both negative and positive postulates independent of the Directive Principles of State Policy. Chief Justice Y. V. Chandrachud, writing the opinion for the majority in Minerva Mills v. Union of India, observed that fundamental rights deal with both negative and positive postulates. In Indibily Creative Private Limited v. Government of West Bengal, Justice D. Y. Chandrachud observed that Article 19 imposes a negative restraint on the State to not interfere with the freedoms of all citizens and a duty on the State to ensure that conditions for the free and unrestrained exercise of the freedom are created. In Justice K. S. Puttaswamy (9J) (supra), a nine‑Judge Bench of the Supreme Court of India held that the Constitution guarantees the right to privacy. The Court expressly held that the right to privacy includes both negative and positive postulates. The negative postulate consists of the right to be left alone and the positive postulate places a duty on the State to adopt measures for protecting and safeguarding individual privacy., The second facet on the scope of fundamental rights is now cemented in Indian constitutional jurisprudence. Fundamental rights consist of both negative and positive postulates, preventing the State from interfering with the rights of the citizens and creating conditions for the exercise of such rights respectively. This understanding of fundamental rights is unique to Indian constitutional jurisprudence. Fundamental rights have been construed in this wide manner by Indian courts because of the constitutional conception of the role of the State. Viewing fundamental rights purely as negative rights runs the risk of undermining the role of the State., Fundamental rights are not merely a restraint on the power of the State but provisions which promote and safeguard the interests of the citizens. They require the State to restrain its exercise of power and create conducive conditions for the exercise of rights. If such a positive obligation is not read into the State’s power, then the rights which are guaranteed by the Constitution would become a dead letter, because the question of whether the State is curtailing the rights of citizens would only arise if the citizens have the capacity to exercise such rights in the first place., Thus, if the Constitution guarantees a fundamental right to marry then a corresponding positive obligation is placed on the State to establish the institution of marriage if the legal regime does not provide for it. This warrants an inquiry as to whether the institution of marriage is in itself so crucial that it must be elevated to the status of a fundamental right. As elucidated in the previous section of this judgment, marriage as an institution has attained social and legal significance because of its expressive and material benefits. The Supreme Court of India, while determining if the Constitution guarantees the right to marry, must account for these considerations as well., The courts identify unenumerated rights by tracing them either to specific provisions of Part III of the Constitution or to the chief values which the Constitution espouses. The premise of this exercise undertaken by courts is that the rights guaranteed in Part III can only be effectively secured if certain other entitlements are safeguarded. That is, the rights guaranteed expressly by the Constitution would remain parchment rights if conditions for the effective exercise of them are not created. To put it differently, rights will only be secured if citizens possess capabilities to exercise the right. In this method of deriving rights, the court traces unenumerated rights to specific provisions of the Constitution such as liberty (Article 21) or freedom of expression (Article 19) or equality (Article 14)., In the second method used by courts to derive unenumerated rights, rights are not traced to specific fundamental rights but to the values or the identity of the Constitution. This method attained prominence after the judgment of the Supreme Court of India in R. C. Cooper v. Union of India, which held that fundamental rights are not watertight compartments and that the thread of reasonableness contemplated in Article 14 runs through Article 21 as well. The aspirational values of the Indian Constitution reflected in the Preamble are to secure justice, liberty, equality, and fraternity to all its citizens. Constitutional identity is secured by a gradual process characterised by a dialogue between the institutions of governance (legislature, executive, courts, and statutory commissions) and the public over internal and external dissonances. External dissonance arises when there is an apparent conflict between the Constitution’s aspirational ideals and socio‑political reality; internal dissonance arises when there is a conflict between the provisions of the Constitution. The Indian jurisprudence on the equality code is an apt example of how constitutional identity has evolved through dialogue between various stakeholders to advance the conception of factual equality. The Supreme Court of India has used both approaches to identify unenumerated rights. For example, in Justice K. S. Puttaswamy (9J) the Court held that the Constitution guarantees the right to privacy by using both the specific‑rights approach and the identity approach, grounding the right to privacy in the concepts of liberty, freedom, dignity, and individual self‑development., The learned Solicitor General made two arguments: (i) intimate relationships, whether between homosexual or heterosexual couples, cannot be subject to State regulation because they fall in the intimate zone of privacy; (ii) the State regulates heterosexual marriages only because there is public interest in sustaining the human population through procreation., For the Supreme Court of India to determine if the State has a duty to confer recognition upon all relationships, it must first delineate the contours of the State’s regulation of intimate relationships vis‑à‑vis privacy concerns. The plurality opinion authored by Justice D. Y. Chandrachud in Justice K. S. Puttaswamy (9J) (supra), while discussing the scope of the right to privacy, refers to an article titled “A Typology of Privacy” which classifies privacy into nine categories. In addition to listing various forms of privacy, the authors have classified the forms of privacy based on those which are necessary for the fulfilment of the freedom to be let alone and the freedom to self‑development. The intimate zone of privacy subsumes spatial privacy (corresponding to the freedom to be let alone) and decisional privacy (corresponding to the freedom of self‑development). The formation of human relationships falls within the intimate zone because relationships are relegated to the sphere of the home or the private zone and they involve intimate choices., The intimate zone is shielded from State regulation because relationships operate in a private space and decisions taken in a private space in exercise of an individual’s autonomy (such as the choice of partner or procreation) are private activities. The Supreme Court of India, in Justice K. S. Puttaswamy (9J) (supra), held that privacy is intrinsic to the realisation of constitutional values and entrenched fundamental rights. The judgment emphasised the importance of being left alone and the autonomy of individuals to take crucial decisions affecting their personhood, such as procreation and abortion. At this juncture, it must be noted that the Indian Constitution does not recognise family or partnerships as a unit for securing rights. For example, the Irish Constitution recognises the family as a natural unit of society and a moral institution possessing inalienable rights. The Indian Constitution, by not recognising the family as a rights‑bearing unit, rejects the school of thought where rights of individuals in a family or partnership are subsumed within the larger unit of the family. The Constitution does not promote a framework of rights where the rights of a family are given precedence over individual rights of citizens constituting that family., Relegating actions to the private zone has certain shortcomings. One prominent effect of classifying actions as private is that such actions are protected from regulation by the State. Depending on how relationships are organised and managed, they can be a beacon of freedom or a prison. While some relationships are characterised by love, mutual respect, and devotion, others are characterised by hierarchical power structures in which caste, religion, gender and sexuality often contribute to unequal power dynamics in the private sphere. The State’s interest in regulating relationships in the form of marriage is to democratise the private space by ensuring that actions in the intimate space are in consonance with constitutional values. The argument of the learned Solicitor General that the State regulates relationships in the form of marriage solely because they result in procreation is erroneous. The State’s interest in democratising personal relationships is not specific to the institution of marriage; marriage regulation is merely one of the many ways in which the State can fulfil these aims. However, the State may use other forms of regulation to achieve the same objectives. There is public interest in the State’s regulation of all relationships because relationships involving two persons may be unequal by their very nature. Scholars have emphasised that the democratisation of personal relationships serves two purposes: eliminating inequality in the power structure of a relationship, thereby preventing exploitation and subjugation; and creating a more independent and self‑sufficient citizenry capable of considering alternative viewpoints., The withdrawal of the State from the domestic space leaves the disadvantaged party unprotected, since classifying certain actions as private has different connotations for those with and without power. In personal relationships characterised by inequality, the actions of the more powerful person gain immunity from scrutiny and a degree of legitimacy. Thus, all activities in the private space dealing with intimate choices must not be blindly categorised as beyond the scope of the State’s regulation. The State must assess whether its interest in democratising the private space overrides the interests of privacy in a given situation., The State has identified specific areas in the private sphere where the interest in democratising that space overrides the interests of privacy. For example, the State regulates relationships that are in the nature of marriage through the Protection of Women from Domestic Violence Act 2005. The preamble to the Act states that it was enacted to protect the rights of women who are victims of violence of any kind occurring within a family. The Act defines a domestic relationship as a relationship between two persons who live together in a shared household where they are related by marriage, a relationship in the nature of marriage, adoption, or consanguinity. By criminalising acts of domestic violence against women, the State recognises that an unequal power structure operates in heterosexual relationships and that the party with lesser power may be subjected to violence and suppression, thereby seeking to democratise the space through regulation., In certain other circumstances, the State and the courts have recognised that there is no State interest in regulating the personal space. For example, the Supreme Court of India has held that Article 21 protects a woman’s reproductive choices, including the decision to terminate a pregnancy. The Medical Termination of Pregnancy Act 1971 recognises the decisional autonomy of women over procreation, which is an intimate aspect of their lives. In very narrow circumstances, the State regulates intimate choices about childbirth and procreation. The Pre‑Conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 regulates the intimate zone by prohibiting sex‑selection before and after conception, because the State’s interest in preventing female foeticide and infanticide overrides privacy interests and decisional autonomy., The petitioners submit that the Supreme Court of India has held that the Constitution guarantees the right to marry in Shafin Jahan (supra) and Shakti Vahini (supra). In Shafin Jahan, the father of Hadiya moved a habeas corpus petition before the High Court of Kerala fearing that his daughter might be taken abroad. The High Court was informed that she had married the petitioner and, nevertheless, allowed the petition and directed that Hadiya be escorted to her father’s house and that the marriage be declared void. On appeal, the Supreme Court of India set aside the High Court’s judgment. Chief Justice Dipak Misra, writing for the majority, observed that Hadiya was entitled to choose a partner of her choice and that curtailing this choice would amount to clipping a person’s identity. Justice D. Y. Chandrachud, in a concurring judgment, observed that the High Court’s exercise of jurisdiction to declare the marriage void amounted to judicial overreach. The Court held that the choice of a partner, whether within or outside marriage, lies in the exclusive domain of the individual and that the State cannot dictate or limit the freedom to choose a partner. The Court further observed that the right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life, which cannot be taken away except through a law that is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty guaranteed as a fundamental right is the ability of each individual to make decisions on matters central to the pursuit of happiness. Society has no role to play in determining an individual’s choice of partners, and intimacies of marriage, including the decision whether or not to marry and on whom to marry, lie outside the control of the State., In Shakti Vahini, proceedings under Article 32 of the Constitution were instituted seeking directions to State Governments and the Central Government to initiate steps to combat honour crimes or caste‑based or religion‑based murder, to constitute special cells in each district, and to launch prosecutions in each case of honour killing or caste‑based or religion‑based murder. The Supreme Court of India disposed of the writ petition by directing preventive steps, remedial measures, and punitive measures to curb honour killings. Writing for a three‑Judge Bench, Chief Justice Dipak Misra observed that the ability of an individual to make choices is an inseparable part of dignity and that when two adults choose to marry out of their own volition they have a right to do so., In Justice K. S. Puttaswamy (9J) (supra), Justice Nariman, in his concurring opinion, observed that the right to privacy extends beyond the right to be let alone to recognising vital personal choices such as the right to abort a fetus and the right of same‑sex couples to marry. In Navtej Singh Johar (supra), the Supreme Court of India, while decriminalising homosexuality, did not hold that the Constitution recognises a right to marry. Chief Justice Dipak Misra, writing for the majority, held that an individual has a right to a union which encompasses physical, mental, sexual or emotional companionship under Article 21 of the Constitution., In Shafin Jahan (supra) and Shakti Vahini (supra), the issue before the Supreme Court of India was whether State or non‑State actors could interfere with a person’s choice of whom to marry.
id_366	7	The law prescribes certain essential conditions for a valid marriage. In both these cases, the Supreme Court of India dealt with situations where State or non‑State actors prevented a couple which was otherwise entitled to marry, from marrying. In the case of Shafin Jahan (supra), the restriction was sought to be imposed because the partners belonged to different religions and in Shakti Vahini (supra), the Supreme Court of India dealt with the issue of restraints placed by the society on the exercise of a person's right to marry a person of a different caste and religion. In Shafin Jahan (supra) the Supreme Court of India held that religion and caste cannot be impediments in the exercise of a person's right to choose whom to marry. In Shafin Jahan (supra) the Supreme Court of India held that no State or non‑State entity can interfere with their right to marry a person of their choice., Neither the majority in Justice K.S. Puttaswamy (9J) (supra) nor the majority in Navtej (supra) hold that the Constitution guarantees the right to marry. Moreover, the opinion of Justice Nariman in Justice K.S. Puttaswamy (9J) (supra) only made a passing reference to the right to marry. It did not trace the right to marry to any of the entrenched fundamental rights nor did it comment on the scope of such a right. In Justice K.S. Puttaswamy (9J), the issue before the Supreme Court of India was whether the Constitution recognises a right to privacy. Thus, this case did not address the issue of whether the Constitution recognises the right to marry. It now falls upon the Supreme Court of India for the first time to decide if the Constitution recognises such a right., There is no fundamental right to marry. The petitioners relied on the judgment of the United States Supreme Court in Obergefell (supra) in which the right to marry was recognised as a fundamental right. In Obergefell (supra), the Supreme Court of the United States held that the Fourteenth Amendment of the Constitution of the United States imposes a positive obligation on the State to license a marriage between two people of the same sex. In Michigan, Kentucky, Ohio, and Tennessee, marriage was defined as a union between one man and one woman. The petitioners (who were same‑sex couples) claimed that their exclusion from the institution of marriage violated the Fourteenth Amendment of the United States Constitution. The petitioners filed suits in United States district courts in their home States. The district courts ruled in their favour. On appeal, the United States Court of Appeals consolidated the cases and reversed the judgment of the District Court holding that the State has no constitutional obligation to license same‑sex marriages or to recognise same‑sex marriages performed out of State., The issue before the United States Supreme Court was not whether the Constitution recognises the right to marry but whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Various decisions of the United States Supreme Court had already recognised the right to marry. Justice Kennedy (writing for the majority) observed that the right to marry consists of the following four components: (i) the right of choice; (ii) the protection of intimate association by supporting the union of two persons; (iii) safeguards for children and families; and (iv) cornerstone of social order because marriage is the basis for governmental rights, benefits, and responsibilities., The opinion of the majority held that the components of marriage are not exclusive to heterosexual couples. Thus, the State by not recognising a same‑sex union (which is legal) and by not granting benefits which accrue from a marriage was held to be treating same‑sex couples unequally, violating the equal protection clause. Section 1 of the Fourteenth Amendment to the United States Constitution states that no State shall deprive any person of life, liberty, or property without due process of law and equal protection of the laws. In Loving v. Virginia, 388 U.S. 1 (1967), the United States Supreme Court invalidated bans on inter‑racial unions holding that marriage is one of the vital personal rights essential to the orderly pursuit of happiness by free men; in Turner v. Safley, 482 U.S. 78 (1987) the United States Supreme Court held that the right to marry was abridged by regulations limiting the privilege of prison inmates to marry., Earlier judgments of the United States Courts had held that marriage is a civic right because it is fundamental to existence and survival, is part of the fundamental right to privacy, and essential to the orderly pursuit of happiness. It was also held that without the right to marry, one is excluded from the full range of human experience and is denied full protection of the laws for one's avowed commitment to an intimate and lasting relationship. The jurisprudence which has emanated from the United States Courts indicates that the right to marry is recognised as a fundamental right because of the benefits (both expressive and material) attached to it., Entry 5 of the Concurrent List of the Seventh Schedule to the Constitution of India grants both the State legislature and Parliament the power to enact laws with respect to marriage. The provision reads as follows: \Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.\ In pursuance of the power conferred by Articles 245 and 246 read with Entry 5 of the Concurrent List, Parliament has enacted laws creating and regulating the socio‑legal institution of marriage. The State legislatures have made amendments to such laws with the assent of the President, since the subject of marriage is in the Concurrent List. The petitioners seek that the Supreme Court of India recognise the right to marry as a fundamental right. As explained above, this would mean that even if Parliament and the State legislatures have not created an institution of marriage in exercise of their powers under Entry 5 of the Concurrent List, they would be obligated to create an institution because of the positive postulate encompassed in the right to marry. This argument cannot be accepted., As explained in the previous section, the State through the instrument of law characterises marriage with two constituent elements: the expressive component and the material component. Marriage may not have attained the social and legal significance it currently has if the State had not regulated it through law. Thus, while marriage is not fundamental in itself, it may have attained significance because of the benefits which are realised through regulation., The Supreme Court of India in Justice K.S. Puttaswamy (9J) (supra) while holding that privacy is a fundamental right was not guided by the content given to privacy by the State. The Supreme Court of India was of the opinion that if the right to privacy is not secured, the full purport of the rights entrenched in the Constitution could not be secured. Similarly, the Supreme Court of India in Unnikrishnan (supra) held that the right to education is a fundamental right. The right to education was derived from the provisions of the Directive Principles of State Policy and their centrality to development of an individual. Entry 25 of the Concurrent List authorises Parliament and State legislatures to enact laws on education. The State in pursuance of this power has enacted numerous legislations relating to education such as laws establishing and regulating universities and colleges. However, the right to education was held to be a fundamental right, not because of any statute or law but because of its centrality to the values that the Constitution espouses. The arguments of the petitioners that the Constitution recognises a right to marry is hinged on the meaning accorded to marriage by statutes, which cannot be accepted., The Constitution does not expressly recognise a fundamental right to marry. Yet it cannot be gainsaid that many of our constitutional values, including the right to life and personal liberty, may comprehend the values which a marital relationship entails. They may at the very least entail respect for the choice of a person whether and when to enter upon marriage and the right to choose a marital partner., The scheme of the Special Marriage Act (SMA) was enacted to provide a special form of marriage for couples belonging to different religions and castes. Section 4 of the SMA prescribes conditions relating to the solemnisation of special marriages. Notwithstanding anything contained in any other law for the time being in force relating to the solemnisation of marriages, a marriage between any two persons may be solemnised under this Act, if at the time of the marriage the following conditions are fulfilled, namely: (a) neither party has a spouse living; (b) neither party (i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (iii) has been subject to recurrent attacks of insanity; (c) the male has completed the age of twenty‑one years and the female the age of eighteen years; (d) the parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnised, notwithstanding that they are within the degrees of prohibited relationship., Section 4(a) and (b) use the gender‑neutral word \party\. However, Section 4(c) stipulates that the male must have completed twenty‑one years and the female must have completed eighteen years. Section 4(d) stipulates that the parties should not be within the degrees of prohibited relationship. Section 2(b) defines degrees of prohibited relationship as follows: a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship., Part I of the First Schedule consists only of women's relationships with men, such as mother and daughter. Part II of the First Schedule consists only of men's relationships with women, such as father and son. The conditions stipulated in Section 4 when read with the definition of prohibited relationship in Section 2(b) limit the application of the SMA to heterosexual unions., Chapter IV of the enactment lays down the consequences of marriage under the SMA. Section 19 stipulates that the marriage solemnised under the SMA of any member of an undivided family who professes the Hindu, Buddhist, Sikh, or Jain religions shall be deemed to effect their severance from such family. Section 20 provides that subject to the provisions of Section 19, any person whose marriage is solemnised under this Act shall have the same rights and shall be subject to the same disabilities in regard to the right of succession as a person to whom the Caste Disabilities Removal Act 1950 applies. The Caste Disabilities Removal Act 1950 provides that any law or usage which inflicts the forfeiture of rights or property, or which would affect the right of inheritance because of renouncing religion, having been excluded from the communion of religion, or being deprived of caste shall cease to be enforced by law. Thus, subject to Section 19 of the Act, a person's right to inheritance shall not be forfeited because they married a person of another religion or caste., Section 21 states that succession to the property of any person whose marriage is solemnised under this Act shall be regulated by the provisions of the Indian Succession Act 1925. Section 21A provides a special provision in certain cases. The provision states that Sections 19, 20 (to the extent that it creates a disability), and 21 shall not apply when a marriage is solemnised between a person who professes the Hindu, Buddhist, Sikh, or Jain religion with a person who professes the Hindu, Buddhist, Sikh or Jain religion. The rules of succession under the Indian Succession Act shall not apply where two persons who solemnise their marriage under the SMA belong to the Hindu, Buddhist, Sikh, or Jain religion. Section 21 essentially ruptured the cord between a Hindu, Buddhist, Sikh, or Jain and their personal laws if they married under the provisions of the SMA. Section 21A was introduced in 1976 as a progressive provision. Section 21A links the SMA with the Hindu Succession Act if both the parties belong to a religion to which the Hindu Succession Act applies. Section 21A was introduced to remedy the disability brought in by Section 21., Section 27 deals with divorce. Section 27(1A) grants the wife additional grounds of divorce. Section 31 stipulates the court to which a petition for divorce must be made. Sub‑section (2) of the section is a special provision available to the wife for the presentation of a divorce petition. Section 36 stipulates that the husband may be directed to pay expenses of the proceedings and such sum based on the income of the husband when the wife has no independent income, sufficient to support herself and necessary for divorce proceedings. Section 37 stipulates that the court may order the husband to pay the wife permanent alimony and maintenance., The petitioners argue that Section 4 of the SMA is unconstitutional not because it expressly excludes or bars the marriage between two persons of the same sex but because it excludes the solemnisation of marriage between non‑heterosexual persons by implication since it only governs a heterosexual union., The petitioners have relied on Fourie (supra), a case which emanated from South Africa, to argue that provisions of the SMA must be read in a gender‑neutral manner. In Fourie (supra), the common law definition of marriage and Section 30(1) of the South African Marriage Act (Act 25 of 1961) were challenged. The common law definition of marriage in South Africa is that it is a union of one man with one woman, to the exclusion, while it lasts, of all others. The formula for marriage prescribed by Section 30(1) of the Marriage Act is extracted below: \Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?\ and thereupon the parties shall give each other the right hand and the marriage officer concerned shall declare the marriage solemnised in the following words: \I declare that A.B. and C.D. here present have been lawfully married.\, The petitioners in Fourie (supra) argued that the reference of husband or wife in Section 30(1) excluded same‑sex couples. The South African Constitutional Court allowed the petition by holding that Section 30(1) was unconstitutional because it excluded same‑sex couples. The opinion of the majority authored by Justice Albie Sachs suspended the declaration of invalidity for one year to cure defects in view of Section 172(1)(b) of the South African Constitution. If the defect was not cured within the time frame stipulated, the word \spouse\ was to be read in place of \wife (or husband)\. Justice Kate O'Regan who authored the minority opinion disagreed with the majority on the question of the remedy. The learned judge observed that the scales of justice and equity necessitate immediate relief and not a suspended declaration of invalidity., The Court observed that Section 30(1) of the South African Marriage Act was underinclusive because it excluded same‑sex unions by silence and omission. Such omission was as effective in law and practice as if effected by express language. The Court held that it would be discriminatory if same‑sex couples were not given the benefits (both tangible and intangible) which were available to heterosexual couples through marriage. The State justified the exclusion of same‑sex couples from the institution of marriage because of the social nature of marriage and strong religious beliefs. The Court rejected this argument on the ground that the reasons which were used to justify the exclusion were grounded in prejudice and that it was not a valid justification for the violation of fundamental rights., On the question of relief, the Court made the following observations: a. Parliament had expressly and impliedly recognised same‑sex partnerships. The Domestic Violence Act 1998 defined a domestic partnership as a relationship between a complainant and a respondent who are of the same or opposite sex and who live/lived together in a relationship in the nature of marriage. The Estate Duty Act 1955 stipulated that the spouse in relation to a deceased person includes a person who at the time of death of the deceased person was a partner of such person in a same‑sex or heterosexual union; b. Section 172(1)(b) of the Constitution granted the Court the power to issue such order including suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect; c. There was extensive consultation with the public on the issue of same‑sex marriage. The South African Law Reform Commission's memorandum on domestic partnership harmonised family law principles with the Bill of Rights which was preceded by extensive public consultation; and d. The Court instead of reading in must grant the remedy of suspended declaration because reading in would be a temporary remedial measure which would be far less likely to achieve equality. Legislative action was well‑suited for this purpose., Though facially the case mounted by the petitioners before us is similar to the case mounted by the petitioners in Fourie (supra), the legal and constitutional regime in South Africa and India varies. First, it must be noticed that unlike the SMA, there was only one provision in the South African Marriage Act (that is, Section 30(1)) which made a reference to heterosexual relationships. However, as indicated above, various provisions of the SMA (Sections 4, 27(1A), 31, 36, and 37) confine marriage to a union between heterosexual persons. Second, various enactments in South Africa already recognised same‑sex unions unlike the Indian legal landscape where no law even remotely recognises the union between a same‑sex couple. Thus, the canvas of the challenge before the South African Constitutional Court in Fourie (supra) and the legal and constitutional regime in place varies widely from that in India., The petitioners argued that the Supreme Court of India ought to interpret the SMA to make it constitutionally compliant. They relied on the decision of the House of Lords of the United Kingdom in Ghaidan (supra) and urged the Supreme Court of India to adopt the principle of interpretation which had been adopted in that case., In that case, the respondent was in a stable and monogamous homosexual relationship with his partner who was a tenant in the house that the couple shared. The respondent and his partner were living together when the latter died. The appellant (being the landlord) claimed possession of the house. The respondent resisted the claim on the ground that he ought to be considered a statutory tenant in terms of the United Kingdom's Rent Act 1977. This enactment provided that a surviving spouse of the original tenant shall be the statutory tenant if the surviving spouse was residing in the house in question immediately before the death of the original tenant. It also stipulated that a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant. In essence, the Rent Act protected the tenancy rights of a heterosexual couple when the couple was in a relationship that was of a similar character as marriage. The surviving partner in a homosexual relationship could have become entitled to an assured tenancy which was less advantageous than a statutory tenancy., The respondent contended that the difference in the treatment of heterosexual couples and homosexual couples was based on their sexual orientation alone, and lacked justification, infringing Article 14 (prohibition of discrimination) read with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. He further argued that the court had a duty under Section 3 of the United Kingdom's Human Rights Act 1998 to read and give effect to the Rent Act in a way which was compliant with the European Convention on Human Rights. In other words, he urged the court to read the Rent Act such that it granted the surviving partner in a close and stable homosexual relationship the same rights as the surviving partner in a heterosexual relationship of a similar nature the right to succeed the tenancy as a statutory tenant. The court of first instance rejected the respondent's arguments. The first appellate court allowed the appeal, leading to proceedings before the final appellate authority, the House of Lords (now, the Supreme Court of the United Kingdom)., The House of Lords accepted the respondent's arguments. It noted that the rationale of the Rent Act was that the security of tenure in a house which a couple had made their home ought not to depend upon which of them dies first. It held that there was no legitimate state aim which justified the difference in treatment of heterosexual and homosexual couples, and found that the Rent Act therefore violated the rights of the respondent under the European Convention on Human Rights. Having so found, it relied on Section 3 of the Human Rights Act to interpret the Rent Act to mean that the survivor of a homosexual couple would have rights on par with the survivor of a heterosexual relationship for the purposes of succession as a statutory tenant., Section 3 of the Human Rights Act reads as follows: \Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.\ As noticed by the House of Lords in Ghaidan (supra): a. This provision was one of the primary means by which rights under the European Convention on Human Rights were brought into the law of the United Kingdom; b. Section 3 permitted courts in the United Kingdom to depart from the unambiguous meaning of a statute, if required; c. It also authorised courts in the United Kingdom to depart from legislative intent in interpreting the language used in a statute, if required; d. It allowed courts to read in words to a statute which changed the meaning of that statute, to make it compliant with the European Convention on Human Rights as long as the new meaning was compatible with the underlying thrust of that enactment; and e. Section 3 did not authorise courts to make decisions for which they were not equipped, such as when there were many ways of making a particular provision compliant with the European Convention on Human Rights., It is not open to the Supreme Court of India to adopt the interpretative principle laid down in Section 3 of the Human Rights Act for a simple reason: the House of Lords derived the power to depart from legislative intent and read words into a statute such that it was compliant with the European Convention on Human Rights from the Human Rights Act, a statute enacted by the Parliament of the United Kingdom. It did not rely on a common law principle or fashion a principle of interpretation based on common law. The House of Lords itself noted that the interpretative obligation decreed by section 3 is of an unusual and far‑reaching character. In India, there is no legislation which permits the Supreme Court of India to depart from legislative intent and read words into legislation such that it is compliant with the Constitution., As discussed in the previous segment of this judgment on the power of judicial review, courts in India must be circumspect in relying on the law in other jurisdictions, torn from the context in which those decisions have been crafted. It is not permissible for the Supreme Court of India to exercise a power which the Parliament of another country conferred on its courts, absent a similar conferment of power under the Constitution of India. This Court must exercise those powers which it has by virtue of the Constitution of India or any other Indian law. In any event, as the House of Lords held, courts may not exercise this power to make decisions for which they are ill‑equipped. This Court is not equipped to recognise the right of queer persons to marry under the SMA for reasons discussed in subsequent segments., It must be noted that the Supreme Court of India in the beginning of the hearing restricted the breadth of the challenge to non‑personal marriage law. However, on a careful perusal of the provisions of the SMA, it is evident that Section 21A links the SMA to personal and non‑personal laws of succession. In fact, such is the complexity of the SMA that the petitioners themselves had to submit lengthy charts on workability, which in effect reworked the structure of the SMA to include non‑heterosexual unions., Dr. Abhishek Manu Singhvi, appearing for one of the petitioners, submitted that there are three plausible interpretations of Section 21A in its application to marriages between two Hindus under the provisions of the SMA: a. The Court may choose not to decide on the applicability of Section 21A to non‑heterosexual Hindu couples in the present litigation and leave the question of succession open for future litigation; b. The succession of Hindu non‑heterosexual couples will be governed by the Hindu Succession Act and that of other interfaith non‑heterosexual couples will be governed by the Indian Succession Act (similar to interfaith heterosexual couples or heterosexual couples of other religions). This requires a gender‑neutral reading of the Hindu Succession Act and the Indian Succession Act. The words \widow\ and \widower\ in the Indian Succession Act and \male Hindu\, \female Hindu\, \widow\, and \widower\ in the Hindu Succession Act can be interpreted in a gender neutral manner. This interpretation must only be limited to issues related to marriage. To include transgender persons, the Court may hold that the words \male\ and \female\ under Sections 8 and 15 of the Hindu Succession Act may be read as \persons\; c. Since by agreement of parties, religious and personal law related issues are beyond the scope of this litigation, it follows that provisions of secular law that relate back to personal laws (like Section 21A) are excluded from consideration. Since Section 21A was introduced as an exception to the regime under Sections 19 to 21, non‑consideration of the issue would revert the law to the position before the introduction of Section 21A which is that the Indian Succession Act would apply to all marriages under the SMA., In addition to the reading in of the provisions of other statutes such as the Indian Succession Act and the Hindu Succession Act, the petitioners argue that the Court must also read into the following provisions of the SMA: a. The words \widow\ and \widower\ in Schedules II and III of the SMA must be read as \widow or widower\ and \widower or widow\; b. Section 4(c) of the SMA may be interpreted in the following way: i. For same‑sex couples, the provision may be read as prescribing eighteen years as the minimum age for both parties in a lesbian relationship, and twenty‑one years for both parties in a gay relationship; ii. For transgender persons, the minimum age requirement would depend on whichever gender/sex they identify as. So, a trans‑man would be eligible to marry at twenty‑one years of age while a trans‑woman would be eligible to marry at eighteen years; and iii. For those who do not identify either as a man or a woman, the following approach shall be adopted to ensure the inclusion of non‑binary and intersex individuals: A. The silence of the SMA on the minimum age qualification for persons other than men and women may be read as imposing no restriction other than the restriction imposed by other laws that stipulate the age at which persons are capable of making decisions for themselves, which is eighteen years; B. Alternatively, the Court may lay down guidelines as an interim measure until Parliament fills the legislative vacuum.
id_366	8	If the Supreme Court of India finds that a provision is contrary to Part III of the Constitution, it shall declare that it is void or read it down (by deleting phrases) or read words into (by adding or substituting phrases) to save it from being declared void., If, in the present batch of petitions, the Supreme Court of India holds that Section 4 is unconstitutional because it is underinclusive to the extent that it excludes, by implication, the marriage between same-sex couples, the Supreme Court of India could either strike down Section 4 of the Special Marriage Act or follow the workability model submitted by the petitioners., If the Supreme Court of India follows the first approach, the purpose of a progressive legislation such as the Special Marriage Act would be lost., The Special Marriage Act was enacted to enable persons of different religions and castes to marry., If the Special Marriage Act is held void for excluding same-sex couples, it would take India back to the pre-independence era where two persons of different religions and castes were unable to celebrate love in the form of marriage., Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push Article 13 of the Constitution courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another., If the Supreme Court of India takes the second approach and reads words into the provisions of the Special Marriage Act and provisions of other allied laws such as the Indian Statutory Act (ISA) and the Hindu Succession Act (HSA), it would in effect be entering into the realm of the legislature., The submissions of the petitioners indicate that the Supreme Court of India would be required to extensively read words into numerous provisions of the Special Marriage Act and other allied laws., The Supreme Court of India is not equipped to undertake an exercise of such wide amplitude because of its institutional limitations., This Supreme Court of India would in effect be redrafting the law(s) in the garb of reading words into the provisions., It is trite law that judicial legislation is impermissible., We are conscious that the Supreme Court of India usually first determines if the law is unconstitutional, and then proceeds to decide on the relief., However, in this case, an exercise to determine whether the Special Marriage Act is unconstitutional because of under-inclusivity would be futile because of the limitations of the Supreme Court of India's power to grant a remedy., Whether a change should be brought into the legislative regime of the Special Marriage Act is for Parliament to determine., Parliament has access to varied sources of information and represents in itself a diversity of viewpoints in the polity., The Supreme Court of India in the exercise of the power of judicial review must be careful not to tread into the legislative domain., It is clarified that the Supreme Court of India has not adjudicated upon the validity of any laws other than the Special Marriage Act, the Foreign Marriage Act, the Adoption Regulations, and the Central Adoption Resource Authority Circular., Some petitioners have challenged the constitutionality of the Foreign Marriage Act and have sought a declaration that it applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation., The Foreign Marriage Act applies to two categories of persons: parties who seek to solemnize their marriage under the Foreign Marriage Act in a foreign country and to those who seek to register their marriage under the Foreign Marriage Act when their marriage has been solemnized in a foreign country in accordance with the law of that country., In both cases, at least one of the parties to the marriage must be a citizen of India., Section 4 of the Foreign Marriage Act specifies certain conditions which must be fulfilled before the parties can avail of its provisions: Conditions relating to solemnization of foreign marriages., A marriage between parties, one of whom at least is a citizen of India, may be solemnized under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely: (a) neither party has a spouse living, (b) neither party is an idiot or a lunatic, (c) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage, and (d) the parties are not within the degrees of prohibited relationship, provided that where the personal law or a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship., Clauses (c) and (d) contain requirements which prevent the Supreme Court of India from interpreting the Foreign Marriage Act as applying to persons regardless of their sexual orientation., Clause (c) requires the bridegroom to be at least twenty-one years and the bride to be at least eighteen years of age., If the Supreme Court of India were to interpret Section 4 as applying to same-sex relationships, the question of how clause (c) would apply to such relationships would arise., Various approaches were proposed including reading the provision as requiring a minimum age of twenty-one for all men and eighteen for all women, such that two men who sought to marry would both be required to be twenty-one years and two women who sought to marry would both have to be eighteen years., Another approach that was proposed was to interpret the provision as requiring a common minimum age for all same-sex couples., The Supreme Court of India is of the opinion that such an exercise would amount to judicial legislation., When there are various options open for a legislative change and policy considerations abound, it is best left to Parliament to engage in democratic decision-making and settle upon a suitable course of action., Clause (d) requires the parties not to be within the degrees of prohibited relationship., Section 2(a) defines the phrase degrees of prohibited relationship as having the same meaning as in the Special Marriage Act., The reasons why the degrees of prohibited relationship cannot be interpreted by the Supreme Court of India to include same-sex relationships has been discussed in the preceding paragraphs., The same reasons apply to Clause (d) of the Foreign Marriage Act., The Foreign Marriage Act recognizes the right of an Indian citizen to marry outside India or to marry a person from a foreign country., In essence, it recognizes the right of a citizen of India to choose a life partner who is not a citizen of India., It follows that citizens of India may enter into an abiding union with a person of their choice, including a person of the same sex as them, even if that person is not a citizen of India., It is accordingly clarified that the right of a citizen of India to enter into an abiding union with a foreign citizen of the same sex is preserved., The right to enter into a union: The need to love is as important a force in human society as is the will to power., Power wants to destroy or consume or drive away the other, the one who is different, whose will is different., Love wants the other to remain, always nearby, but always itself, always other., The goal of self-development and what it means to be human: Over the years, through dialogue both inside and outside the courts, it has been established that the negative and positive postulates of fundamental freedoms and the Constitution as a whole inter alia secure conditions for self development at both an individual and a group level., This understanding can be traced to numerous provisions of Part III of the Constitution, the preambular values, and the jurisprudence which has emanated from courts., For example, the Supreme Court of India has held that the right to life under Article 21 secures more than the right of physical existence., It includes, inter alia, the right to a quality life which has been interpreted to include the right to live in an environment free from smoke and pollution, the right to access good roads, and a suitable accommodation which would enable them to grow in every aspect mental, physical, and intellectual., References: Margaret Trawick, Notes on Love in a Tamil Family (University of California Press 1992); M.C. Mehta v. Union of India, (2019) 17 SCC 490; State of Himachal Pradesh v. Umed Ram Sharma, (1986) 2 SCC 68; Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520., Similarly, it has been established that a free exchange of ideas recognized under Article 19 is an integral aspect of the right to self-development. The rights against exploitation and against discrimination and untouchability secure the creation of equal spaces in public and private spheres, which is essential for self-growth., The right to quality education without discrimination also ensures that every citizen secures basic education to develop themselves., The freedom to profess and practice religion also enables individuals to evolve spiritually., This understanding of the Constitution is substantiated on a reading of Part IV of the Constitution., To illustrate, Article 38 states that the State shall strive to promote the welfare of the people, Article 42 stipulates that the State shall endeavour to secure just and humane conditions of work, and Article 47 places a duty on the State to raise the level of nutrition and the standard of living., The Constitution, through both positive and negative postulations, inter alia capacitates citizens in their quest to develop themselves., Such capacity-building enables them to achieve their full potential in both the private and the public space, and to be happy., The Indian Constitution (unlike, say, the South African Constitution) does not expressly provide that the Constitution seeks to improve the quality of life and free the potential of each person., However, such an understanding can be gleaned from the provisions of Part III and Part IV of the Constitution., Thus, one of the purposes of the rights framework is to enable the citizenry to attain the goal of self development., Citations: D.C. Saxena v. Hon'ble Chief Justice of India, (1996) 5 SCC 216; Articles 23 and 24 of the Constitution; Articles 15 and 16 of the Constitution; Article 21A of the Constitution; Articles 25 to 28 of the Constitution., Martha C. Nussbaum laid down a list of ten capabilities which are central requirements to live a quality life. Two of the identified capabilities are crucial for our discussion. The first is emotions which is characterized as follows: Emotions: Being able to have attachments to things and people outside ourselves; to love those who love and care for us, to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger. Not having one's emotional development blighted by fear and anxiety. (Supporting this capability means supporting forms of human association that can be shown to be crucial in their development). The second is affiliation which is characterized as follows: Affiliation: Being able to live with and toward others, to recognize and show concern for other human beings, to engage in various forms of social interaction; to be able to imagine the situation of another. (Protecting this capability means protecting institutions that constitute and nourish such forms of affiliations, and also protecting the freedom of assembly and political speech)., The capabilities of emotions and affiliations identified by Nussbaum for self-development and sustaining a quality life are crucial for two important reasons., First, both capabilities focus on the human side of a person, that is, the ability and necessity of a person to emote and form relationships and associations., Second, the distinction between the capabilities of emotions and affiliation is that in the former, the emphasis is upon the agency of the individual and the freedom they have to form bonds with other people, while in the latter, the emphasis is upon granting recognition to such associations., Humans are unique in many respects. We live in complex societies, are able to think, communicate, imagine, strategize, and do more., However, that which sets us apart from other species does not by itself make us human., These qualities are necessary elements of our humanity but taken alone, they paint an incomplete picture., In addition to these qualities, our ability to feel love and affection for one another makes us human., We may not be unique in our ability to feel the emotion of love but it is certainly a fundamental feature of our humanity., We have an innate need to see and to be seen to have our identity, emotions, and needs fully acknowledged, recognized, and accepted., The ability to feel emotions such as grief, happiness, anger, and affection and the need to share them with others makes us who we are., As human beings, we seek companionship and most of us value abiding relationships with other human beings in different forms and capacities., These relationships may take many forms: the natal family, cousins and relatives, friends, romantic partnerships, mentors, or students., Of these, the natal family as well as the family created with one's life partner form the fundamental groups of society., The need and ability to be a part of a family forms a core component of our humanity., These relationships which nourish the emotional and spiritual aspects of our humanity are important in and of themselves., Further, they are as important to self-development as the intellectual and financial nourishment we receive through education., The Preamble of the United Nations Convention on the Rights of the Child recognizes the importance of the family in the following terms: 'Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.', Self-development cannot be measured solely in terms of educational qualifications and financial capabilities., Such a description is to forget what makes us human., It is insufficient if persons have the ability and freedom to form relationships unregulated by the State., For the full enjoyment of such relationships, it is necessary that the State accord recognition to such relationships., Thus, the right to enter into a union includes the right to associate with a partner of one's choice, according recognition to the association, and ensuring that there is no denial of access to basic goods and services is crucial to achieve the goal of self development., The rights under Article 19: The right to freedom of speech and expression and to form intimate associations., Article 19(1)(a) of the Constitution of India recognizes the right to freedom of speech and expression., Freedom postulates within its meaning both an absence of State control as well as actions by the State which create the conditions for the exercise of rights and freedoms., Article 19(1)(c) of the Constitution of India recognizes the freedom to form associations or unions or co-operative societies., The freedom of speech and expression is not limited to expressive words. It also includes other forms of expression such as the manifestation of complex identities of persons through the expression of their sexual identity, choice of partner, and the expression of sexual desire to a consenting party., Earlier judgments of the Supreme Court of India have held that expression of gender identity is a protected freedom under Article 19(1)(a)., In NALSA (supra), the Supreme Court of India held that the expression of gender identity is a form of protected expression under Article 19(1)(a)., In Navtej (supra), the Supreme Court of India held that Section 377 of the Indian Penal Code infringes upon the freedom of expression of queer persons, protected under Article 19(1)(a)., Courts have traditionally interpreted the right to form an association guaranteed under Article 19(1)(c) to mean associations formed by workers or employees for collective bargaining to attain equitable working conditions., However, the entire gamut of the freedom protected under Article 19(1)(c) cannot be restricted to this singular conception., The ambit of the freedom under Article 19(1)(c) is much wider., The provision does not merely protect the freedom to form an association to create spaces for political speech or for espousing the cause of labour rights., While that is a very crucial component of the freedom protected under Article 19(1)(c), the provision also protects the freedom to engage in other forms of association to realize all forms of expression protected under Article 19(1)(a)., In Roberts v. United States Jaycees, the US Supreme Court read freedom of association widely to include the freedom to form intimate associations., The factual matrix before the Court was that regular membership to the respondent-corporation was restricted to men between the ages of fifteen to thirty-five., Associate membership was offered to those to whom regular membership was not available., Complaints were filed alleging that the exclusion of women from full membership violated the Minnesota Human Rights Act which made it discriminatory to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex., The US Supreme Court had to decide if any interference with the organization's membership policy would violate the respondent's freedom of association guaranteed under the First Amendment., Justice Brennan, writing for the majority, observed that the freedom of association constitutes two facets., First, the freedom to enter into intimate human relationships secure from undue state interference (the intrinsic element); and second, the freedom to form associations to engage in activities protected by the First Amendment such as speech, assembly, and the exercise of religion (the instrumental element)., The Court observed that individuals have the freedom to form intimate associations because individual liberty can be secured only when the State does not unjustifiably interfere with the formation and preservation of certain kinds of highly personal relationships., The Constitution protects such relationships because individuals draw emotional enrichment from close ties such as those created by marriage, children, and cohabitation, which contribute towards identity building and self development., Justice Brennan qualified the freedom by observing that only personal relationships (which are characterized by attributes such as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, the seclusion from others in critical aspects of the relationship) are protected., The right to form an intimate association has been expanded upon by the Supreme Court of the United States in Lawrence v. Texas, 539 U.S. 558 (2003), by which the sodomy laws were held unconstitutional., Kenneth L. Karst, who developed the idea of the freedom of intimate association, argues that the courts have traditionally not permitted the State to interfere or regulate certain kinds of personal relationships, thereby elevating it to a distinct freedom., Intimate association is characterized by a sense of collectivity which exists beyond two individuals., One of the prominent ideas embraced by the freedom of intimate association is the opportunity it affords to enjoy the society of the other person who is a part of the relationship and the ability to choose to form and maintain such a relationship., The opportunity to enjoy the society of one's partner may be denied either directly or indirectly., It could be denied directly when the law prohibits such an association., The operation of Section 377 of the Indian Penal Code criminalizing homosexual activity is a form of direct restriction on the freedom of association., On the other hand, the State could indirectly infringe upon the freedom when it does not create sufficient space to exercise that freedom., A formal associational status or recognition of the association is necessary for the free and unrestricted exercise of the freedom to form intimate associations., Needless to say, there may be reasonable restrictions on this right., However, other than legally valid and binding restrictions, the right to intimate associations must be unrestricted., The State by not endorsing a form of relationship encourages certain preferences over others., In a previous segment of this judgment, we have discussed the tangible and intangible benefits of recognizing relationships in the form of marriage., While the tangible benefits of marriage are traceable to the content of law, the intangible benefits are secured merely because the State recognises the relationship through the instrument of law., Intangible benefits in the form of expressive advantages exist irrespective of the content of the law., Even if the law does not grant any special material benefits to a relationship, the relationship would still be considered to be legitimate in the eyes of the society., The freedom to choose a partner and the freedom to enjoy their society which are essential components of the right to enter into a union (and the freedom of intimate association) would be rendered otiose if the relationship were to be discriminated against., For the right to have real meaning, the State must recognise a bouquet of entitlements which flow from an abiding relationship of this kind., A failure to recognise such entitlements would result in systemic discrimination against queer couples., Unlike heterosexual couples who may choose to marry, queer couples are not conferred with the right to marry by statute., To remedy this, during the course of the hearing, the Solicitor General of India made a statement that a Committee chaired by the Cabinet Secretary will be constituted to set out the rights which will be available to queer couples in unions., The Committee shall set out the scope of the benefits which accrue to such couples., Article 19(1)(e) of the Constitution of India stipulates that all citizens shall have the right to reside and settle in any part of the territory of India., In exercise of this right, citizens may reside in any village, town, or city in any state or union territory irrespective of the state in which they were born or are domiciled., Article 19(1)(e) proscribes differentiation on the basis of the native place of a person., As with other fundamental rights, it is subject to reasonable restrictions., In Maneka Gandhi v. Union of India, the Supreme Court of India observed that it was a historical fact that there were rivalries between some states in the country., It was therefore not beyond the realm of possibility that a particular state would restrain individuals domiciled in another state from residing or settling in the first state., In view of this, the Supreme Court of India held that the intention behind Article 19(1)(d) (the right to move freely throughout the territory of India) and Article 19(1)(e) was to prevent the states from imposing such restrictions., In this way, the provision was thought to emphasize the unity and oneness of India., Article 19(1)(e) uses the expressions reside and settle., The term reside can mean either a temporary residence or a permanent residence but there is a certain level of permanency attached to the word settle in India., One can reside in a particular place in the course of their education or employment but to settle down in that place means to build one's life there and reside there permanently., In P. Ramanatha Aiyar's Law Lexicon (1997 edition), it is stated: The word settled has no precise or determinate meaning., In popular language, it intends going into a town or place to live and take up one's abode., A person is said to be settled where he has his domicile or home., Colloquially, people say that
id_366	9	Some have argued that the entire spectrum of queer relationships in India may not always be based on choice, with guru‑chela relationships often assigned rather than chosen. Hence, while some queer relationships may accurately be described as the chosen family, all of them are the atypical family., It is not only formal freedom which is significant but also substantive freedom or the opportunity to achieve what one sets out to achieve and the conditions which enable this. The freedom guaranteed under the Constitution is realised in substance only when the conditions for their effective exercise are created. Formal freedom is translated into substantive freedom through the formulation of schemes and policies. When citizens are prevented from exercising their rights, the Supreme Court of India creates the conditions for their exercise by giving effect to the laws enacted by the legislative wing or the schemes formulated by the executive wing. In the process, courts interpret the Constitution and the rights and freedoms it recognises. This exercise lies at the core of Article 21 of the Constitution, which guarantees the right to life and personal liberty., A few paragraphs ago, the Supreme Court of India discussed what it means to be human. The question of what it means to be free or to have liberty is of equal significance. It is a question which has plagued philosophers, ethicists, and economists alike. The answer may mean different things to different people and may change depending on the circumstances in which the question is asked. Simply put, the ability to do what one wishes to do and be who one wishes to be (in accordance with law) lies at the heart of freedom., Article 21 is available to all persons including queer persons. Article 21 encompasses the rights to dignity, autonomy, and privacy. Each of these facets animates the others. It is not possible to speak of the right to enter into a union without also speaking of the right to intimacy, which emanates from these rights. These rights demand that each individual be free to determine the course of their life, as long as their actions are not barred by law. Choosing a life partner is an integral part of determining the course of one’s life. Most people consider this decision to be one of the most important decisions of their lives, one which defines their very identity. Life partners live together, spend a significant amount of time with one another, merge their respective families, create a family of their own, care for each other in times of sickness, support one another and much more. Hence, the ability to choose one’s partner and to build a life together goes to the root of the right to life and liberty under Article 21. Undoubtedly, many persons choose not to have a life partner but this is by choice and not by a deprivation of their agency. The law constrains the right to choose a partner in certain situations such as when they are within prohibited degrees of relationships or are in a consanguineous relationship., Principle 24 of the Yogyakarta Principles (on the application of international human rights law in relation to sexual orientation and gender identity) states that all people have the right to found a family: Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members. While India is not a signatory to the Yogyakarta Principles, the Supreme Court of India has recognised their relevance to the adjudication of cases concerning sexual minorities. Depriving someone of the freedom to choose their life partner robs them of their autonomy, which in turn is an affront to their dignity. Preventing members of the LGBTQ community from entering into a union also has the result of denying (in effect) the validity of their sexuality because their sexuality is the reason for such denial. This would violate the right to autonomy which extends to choosing a gender identity and sexual orientation. The act of entering into an intimate relationship and the choices made in such relationships are also protected by the right to privacy. As held by the Supreme Court of India in Navtej Singh Johar and Justice K.S. Puttaswamy (9J) (supra), the right to privacy is not merely the right to be left alone but extends to decisional privacy or privacy of choice., The right to health is also a crucial component of the right to life and liberty. The health of a person includes both their physical and their mental wellbeing. Parliament enacted the Mental Healthcare Act 2017 to regulate the provision of mental healthcare services. An assessment of the mental health of a person cannot be limited to considering whether they have a mental illness or disease but must also include an assessment of whether their mental health is thriving. The Constitution of the World Health Organization declares that health is a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity. Mental health is therefore a state of complete mental wellbeing and not merely the absence of mental illnesses. Parliament is also cognizant of this fact as evident from the overall scheme and provisions of the Mental Healthcare Act. Though this statute is primarily concerned with mental illnesses and access to healthcare, Chapter VI recognises the value of complete mental wellbeing by providing for the promotion of and awareness about mental health. A person’s mental wellbeing can only be secured if they are allowed the freedom and liberty to make choices about their lives. If their choices are restrained, their overall mental wellbeing would undoubtedly be degraded. Choices may be restrained by expressly denying them their freedom or by failing to create conditions for the exercise of such freedom., The right of queer persons to access mental healthcare is recognised by Section 18 which stipulates that persons have a right to access mental healthcare without being discriminated against on the basis of their sex, gender, or sexual orientation. This is undoubtedly a progressive step in line with constitutional ideals. The mental health of members of the LGBTQ community may suffer not only because of the discrimination they may face at the hands of their families or society in general but also because they are prevented from choosing their life partner and entering into a meaningful, long‑lasting relationship with them. The effect of the right to life under Article 21 read with Section 18 of the Mental Healthcare Act is that queer people have the right to complete mental health, without being discriminated against because of their sex, gender, or sexual orientation. A natural consequence of this is that they have the right to enter into a lasting relationship with their partner. They also have a right not to be subjected to inhumane and cruel practices or procedures., Article 25(1) of the Constitution is as follows: ‘Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.’ Article 25(1) has four components. The first component makes the right available to all persons. The second component indicates that all persons are equally entitled to the rights it codifies. The third component deals with two distinct concepts: the right to freedom of conscience and the right freely to profess, practice and propagate religion. While the freedom of conscience subsumes within its fold the right to profess, practice and propagate religion, it is not restricted to this right alone. The rights with respect to religion are one aspect of the freedom of conscience. The fourth component makes the rights codified in Article 25 subject to public order, morality, health, and the other provisions of Part III. The right under Article 25 is an individual right because conscience inheres in an individual., The right under Article 25 is also available to members of the LGBTQ community since it is available to all persons. Black’s Law Dictionary defines conscience as ‘the moral sense; the faculty of judging the moral qualities of actions, or of discriminating between right and wrong; particularly applied to one’s perception and judgment of the moral qualities of his own conduct, but in a wider sense, denoting similar application of the standards of morality to the acts of others.’ All persons, including members of the queer community, have the right to judge the moral quality of the actions in their own lives, and having judged their moral quality, have the right to act on their judgment in a manner they see fit. This attribute is of course not absolute and is capable of being regulated by law. In the segment of this judgment on the right to life and liberty, the Supreme Court of India noticed that the meaning of liberty is at its core the ability to do what one wishes to do and be who one wishes to be, in accordance with law. All persons may arrive at a decision regarding what they want to do and who they want to be by exercising their freedom of conscience. They may apply their sense of right and wrong to their lives and live as they desire, in accordance with law. Some of the decisions the moral quality of which they will judge include the decision on who their life partner will be and the manner in which they will build their life together. Each individual is entitled to decide this for themselves, in accordance with their conscience., The right under Article 25 is subject to four exceptions: public order, morality, health, and the other provisions of Part III. The respondents have not demonstrated that public order will be in peril or that the health of the public at large or of individuals will be adversely impacted if queer persons enter into a union with their partners. As for morality, it is settled law that Article 25 speaks of constitutional morality and not societal morality. In Indian Young Lawyers Association v. State of Kerala, a five‑Judge Bench of the Supreme Court of India held: ‘Morality for the purposes of Articles 25 and 26 cannot have an ephemeral existence. Popular notions about what is moral and what is not are transient and fleeting. Popular notions about what is or is not moral may in fact be deeply offensive to individual dignity and human rights. Individual dignity cannot be allowed to be subordinate to the morality of the mob. Nor can the intolerance of society operate as a marauding morality to control individual self‑expression in its manifest form. The expression has been adopted in a constitutional text and it would be inappropriate to give it a content which is momentary or impermanent. Then again, the expression “morality” cannot be equated with prevailing social conceptions or those which may be subsumed within mainstream thinking in society at a given time. The content of morality is founded on the four precepts which emerge from the Preamble. The first among them is the need to ensure justice in its social, economic and political dimensions. The second is the postulate of individual liberty in matters of thought, expression, belief, faith and worship. The third is equality of status and opportunity amongst all citizens. The fourth is the sense of fraternity amongst all citizens which assures the dignity of human life. Hence, the content of morality must be determined on the basis of the preambular precepts of justice, liberty, equality, and fraternity. None of these principles are an impediment to queer persons entering into a union. To the contrary, they bolster the proposition that queer persons have the right to enter into such a relationship.’, A union may emerge from an abiding, cohabitative relationship of two persons in which each chooses the other to impart stability and permanence to their relationship. Such a union encapsulates a sustained companionship. The freedom of all persons (including persons of the queer community) to form a union was recognised by the Supreme Court of India in Navtej Singh Johar: ‘There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others. Such a union has to be shielded against discrimination based on gender or sexual orientation.’, In K.S. Puttaswamy (Privacy‑9J) v. Union of India, Justice D.Y. Chandrachud held that discrimination against an individual on the basis of sexual orientation is offensive to their dignity and self‑worth: ‘Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the mainstream. Yet in a democratic constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self‑worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.’, The Supreme Court of India recognised that equality demands that queer persons are not discriminated against. An abiding cohabitative relationship which includes within its fold a union of two individuals cannot be discriminated against on the basis of sexual orientation. Material and expressive entitlements which flow from a union must be available to couples in queer unions. Any form of discrimination has a disparate impact on queer couples who, unlike heterosexual couples, cannot marry under the current legal regime., As a consequence of the rights codified in Part III of the Constitution, the Supreme Court of India holds that all persons have a right to enter into an abiding union with their life partner. This right, undoubtedly, extends to persons in queer relationships. It is necessary to clarify the difference between relationships and unions of the kind which the Court speaks of, and unions and marriages. Any person may enter into a consensual romantic or sexual relationship with another person. This may last for a few months or for years. Regardless of the period for which the relationship continues, no legal consequences attach to it, except where provided by law (such as in terms of the Domestic Violence Act). However, when two persons enter into a union with a person whom they consider to be their life partner, certain legal consequences will follow. For instance, if one of them happens to die, their partner will have the right to access the body of the deceased., The right to enter into a union cannot be restricted based on sexual orientation. In Navtej Singh Johar, the concurring opinion authored by Justice D.Y. Chandrachud noted that Article 15 prohibits discrimination, direct or indirect, which is founded on a stereotypical understanding of the role of sex. The judgment expanded this understanding by holding that sexual orientation is also covered within the meaning of sex in Article 15(1) because (i) non‑heterosexual relationships question the male‑female binary and gendered roles which are attached to them; and (ii) discrimination based on sexual orientation indirectly discriminates based on gender stereotypes which is prohibited by Article 15. Thus, a law which, directly or indirectly, discriminates based on sexual orientation is constitutionally suspect. Justice Indu Malhotra observed that Article 15(1) prohibits discrimination based on sexual orientation because it is analogous to the other grounds on which discrimination is prohibited. The common thread which runs through the grounds mentioned in Article 15 is that they impact the personal autonomy of an individual., The right to enter into a union, like every other fundamental right, can be restricted by the State. It is now established that the courts must use the four‑prong proportionality test to assess if the infringement or restriction of a right is justified. The courts must use the integrated proportionality standard formulated in Akshay N. Patel v. Reserve Bank of India to test a violation of the right to enter into a union because the right is traceable to more than one provision of Part III. However, if the State restricts the right or has the effect of restricting the right (both directly and indirectly) based on any of the identities mentioned in Article 15, such a restriction would be unconstitutional. The Union of India submitted that if non‑heterosexual couples are permitted to enter into a union, then the State will also have to extend the right to incestuous, polygamous, or polyandrous relationships. The Supreme Court of India does not accept this argument. The restriction on the ground of sexual orientation will violate Article 15 of the Constitution. On the other hand, the restriction on incestuous, polygamous or polyandrous unions would be based on the number of partners and the relationships within the prohibited degree. The Court will determine if the State’s interest in restricting the right based on the number of partners and prohibited relationships is proportionate to the injury caused due to the restriction of choice. In view of the discussion above, a restriction based on a marker of identity protected by Article 15 cannot be equated to a restriction based on the exercise of choice. For this reason, the apprehension of the Union of India is unfounded when tested on constitutional principles., Some petitioners have sought a declaration that the right to marry a person of their choice applies to transgender persons. The Union of India asserts that marriage must only be between biological men and biological women, while the written submissions of the Attorney General state that the issues relating to transgender persons arising out of the Transgender Persons (Protection of Rights) Act, 2019 stand on a different footing and can be addressed without reference to the Special Marriage Act., The term sex refers to the reproductive organs and structures that people are born with. Intersex persons are those whose sex characteristics do not fit the typical notions of male and female. Sex and gender are not the same. The Yogyakarta Principles describe one’s gender identity as each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms. The gender of a person may not correspond to the sex they were assigned at birth. A transgender person is one whose gender identity does not conform with their sex. Transgender people may choose to undergo hormonal therapy or surgery (commonly known as gender‑affirming surgery or sex reassignment surgery) to alter their bodies to make them conform to their gender. People may be transgendered regardless of whether they choose to or are able to undergo surgery. Historically and socio‑culturally, Indian persons with a gender‑queer identity go by different names including hijras, kothis, aravanis, jogappas, thirunambis, nupi maanbas and nupi maanbis. Persons who are known by these names may identify as male, female, or the third gender. Intersex persons are not the same as transgender persons. They have atypical reproductive characteristics. Intersex people may identify as male, female, or transgender., Sexual orientation differs from both sex and gender. The Yogyakarta Principles describe sexual orientation as each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.
id_366	10	The sex of a person is determined by their reproductive organs and structure, their gender identity depends on their internal experience of gender, and their sexual orientation is defined by the gender of the people to whom they are attracted. The present batch of petitions seeks the recognition of the right of persons to marry regardless of their gender identity or sexual orientation. While previous segments of this judgment dealt with the rights of all persons regardless of gender identity or sexual orientation, this segment deals exclusively with the rights of persons who are transgender or intersex., The judgment of the Supreme Court of India in NALSA recognized the right of transgender persons to be identified by the gender identity of their choice, as well as their right to full protection under the Constitution on equal terms with any other citizen of the country. The government was enjoined to recognise what the Court termed the third gender. The Court also noticed the absence of suitable legislation dealing with the rights of the transgender community and issued directions to the Union and State Governments to take steps to ensure that the transgender community could realise its rights to the fullest extent. The judgment in NALSA was affirmed by the Supreme Court of India in Justice K.S. Puttaswamy and again in Navtej. The judgment in NALSA was critiqued for generalising the gender identities of hijras as belonging to the third gender alone. The directions at paragraphs 135.1 and 135.2 of NALSA must be read as recognising the right of all transgender persons (including hijras and those who are socio‑culturally known by other names) to be recognised by a gender of their choice., In 2019 Parliament enacted the Transgender Persons Act to provide for the rights and welfare of transgender persons. This statute proscribes discrimination against transgender persons, provides for a system by which their identity may be recognised, prescribes that the appropriate government shall take welfare measures, recognises the right of residence and provides for the obligations of various parties with respect to education, social security and health. It also creates a National Council for Transgender Persons., A challenge to the constitutional validity of the Transgender Persons Act is pending before a different bench of the Supreme Court of India. The Court will decide that challenge in the appropriate proceeding., During the course of the hearings the Solicitor General advanced the argument that the Transgender Persons Act prohibits discrimination against any member of the queer community and that consequently the queer community in India no longer faces any stigma due to their gender identity or sexual orientation. That argument does not hold water. The legislation applies only to persons with a gender‑queer or transgender identity and not to persons whose sexual orientation is not heterosexual. This is evident from the definition of a transgender person as a person whose gender does not match the gender assigned at birth and includes trans‑man or trans‑woman (whether or not such person has undergone sex reassignment surgery, hormone therapy, laser therapy or any other therapy), a person with intersex variations, gender‑queer and a person having socio‑cultural identities such as kinner, hijra, aravani and jogta., From the definition it is clear that the enactment applies to persons whose gender does not match the gender assigned at birth, which includes transgender men and women, intersex persons, other gender‑queer persons and persons with socio‑cultural identities such as hijras. The word gender‑queer in Section 2(k) of the Transgender Persons Act refers to gender identity, not to sexual orientation. Gender identity is not the same as sexual orientation. The Union of India’s argument that the Transgender Persons Act applies to all queer persons, including homosexuals and bisexuals, cannot be accepted. The legislation is clearly applicable only to those people whose gender identity does not match the one assigned at birth., It is incorrect to state that transgender persons do not face any stigma or discrimination after 2020, when the Transgender Persons Act came into force. Enacting a statute does not have the same effect as waving a magic wand. The prohibition against discrimination has not resulted in society abstaining from discrimination overnight. Society continues to discriminate against transgender persons in various ways. Consistent respect for the rights of transgender persons may someday ensure that they are treated as equals, but that day has not yet arrived. Therefore the contention of the Union of India that transgender people are no longer stigmatised because of the Act cannot be accepted. Since the legislation does not apply to homosexual persons or persons of other sexual orientations, there is no question of such persons being free from discrimination or violence as a result of its enactment., Pursuant to the decision in NALSA Parliament enacted the Transgender Persons Act to give substance to the rights recognised by the Supreme Court of India. However, no statute was forthcoming pursuant to the decision in Navtej, which dealt primarily with the constitutionality of Section 377 of the Indian Penal Code. The ruling of the Supreme Court of India made it clear that sexual orientation cannot be a valid ground for discrimination or hostile treatment. The Court indicated that the LGBTQ community is entitled to equal treatment before law. Parliament has not yet enacted a law that expressly prohibits discrimination on the basis of sexual orientation and gives full effect to the civil and social rights of LGBTQ persons. In the absence of such a law, members of the LGBTQ community will have to approach the courts for enforcement of their rights on a case‑by‑case basis, which is not a desirable outcome., We agree with the submission of the Union of India that the issue of whether transgender persons can marry ought to be decided separately from the issues arising under the Special Marriage Act in relation to homosexual persons or those of a queer sexual orientation. Parliament has recognised the rights of the transgender community by enacting the Transgender Persons Act. The Supreme Court of India is therefore bound to apply this statute while adjudicating the issue of whether transgender persons can marry under existing law., The right of transgender persons to equality under the Constitution and the right against discrimination was recognised by the Supreme Court of India in NALSA. To be equal means to be able to live without discrimination. Section 3 of the Transgender Persons Act codifies the prohibition against discrimination in the following terms: No person or establishment shall discriminate against a transgender person on any of the following grounds, namely: (a) denial, discontinuation or unfair treatment in educational establishments and services; (b) unfair treatment in relation to employment or occupation; (c) denial or termination from employment or occupation; (d) denial or discontinuation of healthcare services; (e) denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public; (f) denial or discontinuation of, or unfair treatment with regard to, the right of movement; (g) denial or discontinuation of, or unfair treatment with regard to, the right to reside, purchase, rent or otherwise occupy any property; (h) denial or discontinuation of, or unfair treatment in, the opportunity to stand for or hold public or private office; and (i) denial of access to, removal from, or unfair treatment in, any government or private establishment in whose care or custody a transgender person may be., Clauses (a) to (i) of Section 3 constitute a catch‑all provision that seeks to eliminate discrimination against the transgender community in both public and private spaces. The prefatory portion of Section 3 states that no person or establishment shall discriminate against a transgender person. ‘Establishment’ is defined as any body or authority established by or under a Central Act or a State Act, or an authority or body owned, controlled or aided by the Government or a local authority or a Government company, and includes a department of the Government, any company, body corporate, association, firm, cooperative, society, trust, agency or institution. Thus establishment includes any public or private entity, authority or body, including any body of individuals., While Section 18 of the Transgender Persons Act stipulates that certain actions amount to offences punishable by six months to two years imprisonment and a fine, violations of Section 3 attract no such penalty. In fact the Act does not expressly provide a remedy for the infringement of Section 3. Section 8 enjoins the appropriate Government to take steps to secure full and effective participation of transgender persons and their inclusion in society. Since clauses (a) to (i) of Section 3 are intended to ensure that participation, Section 8, properly understood, tasks the appropriate Government with ensuring that Section 3 is complied with by all whom it governs. Rule 10(4) of the Transgender Persons (Protection of Rights) Rules 2020 provides that the appropriate Government shall take adequate steps to prohibit discrimination in any government or private organisation, or private and public educational institution under its purview, and ensure equitable access to social and public spaces, including burial grounds. Rule 11 requires the appropriate Government to take adequate steps to prohibit discrimination in any government or private organisation or establishment, including in the areas of education, employment, healthcare, public transportation, participation in public life, sports, leisure and recreation, and the opportunity to hold public or private office., Section 10 of the Transgender Persons Act inter alia requires establishments to comply with the statute, placing a duty on them to observe Section 3 and ensure that they do not discriminate against transgender persons. Section 11 requires establishments to set up a grievance redressal mechanism by designating a complaint officer to deal with complaints relating to violation of the provisions of the Act. This is one of the ways in which a person who alleges a violation can seek a remedy, although the mechanism is limited to the establishment itself., If a public body or actor that falls within the definition of ‘establishment’ in Section 2(b) of the Transgender Persons Act infringes Section 3, the aggrieved person may invoke the extraordinary jurisdiction of the High Courts under Article 226 of the Constitution. The High Courts are empowered to issue directions, orders or writs to any person or authority for the enforcement of the rights codified by Part III of the Constitution. While the jurisdiction of the Supreme Court of India under Article 32 is not as expansive as that of the High Courts under Article 226, the Supreme Court may rely on Section 3 to guide its interpretation of the law and to enforce the rights recognised by Part III., Aggrieved persons may also approach the High Court under Article 226 for the issuance of a direction, order or writ against the appropriate Government directing it to fulfil the mandate of Section 8 of the Transgender Persons Act. As discussed, Section 8 obligates the appropriate Government to prevent and address discrimination, inter alia by private bodies. The High Court may direct the appropriate Government to perform its duties vis‑à‑vis private bodies. This remedy is imperfect and there is a need for the Transgender Persons Act to provide a more effective enforcement mechanism, especially for violations of Section 3., Section 3 of the Transgender Persons Act prohibits the State from discriminating against transgender persons. Section 20 of the Act indicates that the statute is in addition to, and not in derogation from, any other law for the time being in force. Parliament was aware of the statutes governing marriage when it enacted the Transgender Persons Act and Section 3(e) in particular., The laws that govern marriage in the country specify conditions which the bride and the bridegroom must satisfy for their marriage to be recognised. This is true of personal laws as well as the Special Marriage Act. These enactments regulate marriage between a husband and a wife and use the words bride, bridegroom, wife, husband, male, female, man and woman. They regulate heterosexual marriages in India. Laws incidental to marriage such as the Protection of Women from Domestic Violence Act, the Dowry Prohibition Act 1961 and Section 498A of the Indian Penal Code address the hetero‑patriarchal nature of the relationship between a man and a woman., Gender of a person is not the same as sexuality. A person is transgender by virtue of their gender identity and may be heterosexual, homosexual or of any other sexuality. If a transgender person is in a heterosexual relationship and wishes to marry their partner, and each meets the other requirements set out in the applicable law, such a marriage would be recognised by the laws governing marriage. One party would be the bride or wife and the other the bridegroom or husband. The laws governing marriage are framed in the context of a heterosexual relationship. Since a transgender person can be in a heterosexual relationship like a cis‑male or cis‑female, a union between a transwoman and a transman, a transwoman and a cis‑man, or a transman and a cis‑woman can be registered under marriage laws. A transgender man has the right to marry a cisgender woman and a transgender woman has the right to marry a cisgender man. A transgender man and a transgender woman can also marry. Intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage also have that right. Any other interpretation of the marriage statutes would be contrary to Section 3 of the Transgender Persons Act and Article 15 of the Constitution., In Kanailal Sur v. Paramnidhi Sadhu Khan the Supreme Court of India held that the primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. The terms bride, bridegroom, wife and husband, male, female, man and woman in the statutes that regulate marriage cannot be read as governing marriages only between cisgender men and cisgender women. The plain meaning of the gendered terms indicates that transgender persons in heterosexual relationships fall within their fold. The contention of the Union of India that biological men and women alone fall within the ambit of these statutes cannot be accepted., In Arunkumar v. Inspector General of Registration the first petitioner was a man and the second petitioner was a transgender woman. They married at a temple in Tuticorin and sought registration of their marriage, which the state refused. The Madras High Court, exercising its writ jurisdiction, held that the expression ‘bride’ in the Hindu Marriage Act cannot have a static and immutable meaning and that statutes must be interpreted in light of the legal system in its present form. The Court also held that the fundamental right of the petitioners under Article 25 was infringed and directed the respondent to register the marriage., The right of queer persons under the Mental Healthcare Act includes protection from conversion therapies and other pseudo‑medical treatments that aim to alter sexual orientation. Such practices violate the right to health, autonomy and dignity and amount to cruel, inhuman and degrading treatment prohibited by Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights. Section 29 of the Mental Healthcare Act obliges the appropriate Government to plan, design and implement programmes for the promotion of mental health and the prevention of mental illness, including programmes to reduce suicides and attempted suicides. The programmes must address the unique concerns of the queer community. The Union Government and the State Governments are directed to carry out the mandate of Section 29 and to include appropriate modules that address queer identity and oppression., In exercise of the rights to dignity, autonomy, privacy and health an individual, regardless of gender identity, may choose to enter into a union with a person of the same sex. Once they enter into a relationship as life partners, the couple has the right and freedom to determine the significance of that relationship and its consequences. A denial of this freedom would be a denial of the many facets of Article 21 of the Constitution., The right to enter into a union would be an illusion without conditions that permit unrestricted exercise of that right. Various parts of this judgment have detailed the violence and discrimination meted out to members of the LGBTQ community because of their gender identity or sexual orientation. Society often attempts to prevent LGBTQ persons from being with their partner through forced separation, police complaints leading to FIRs, harassment, or forced marriage to third parties. The families of LGBTQ persons and the police are the primary actors in such violence. The fundamental rights and freedoms codified by the Constitution demand that the LGBTQ community be left alone so that its members can live their lives as they see fit, in accordance with law. It is the duty of the state machinery, acting through any authority including the police, to protect these rights instead of participating in their violation. The Court finds the collusion of police with parents of LGBTQ persons unacceptable., In Mansur Rahman v. Superintendent of Police, Coimbatore District the petitioner, a man married to a transgender woman, claimed that his parents and members of a political outfit were harassing and threatening him. The Madras High Court allowed the petition and directed the police to ensure that no harm befalls the petitioner and his wife. In Latha v. Commissioner of Police the Madras High Court dismissed a writ petition for a habeas corpus filed by a petitioner for the production of her sibling, who is a transgender person, finding that the sibling had attained the age of majority and had voluntarily joined the transgender community. In Sushma v. Commissioner of Police the Madras High Court dealt with a lesbian couple whose families filed FIRs alleging they were missing. The Court directed counselling, the closure of the FIR, and protection of the couple, affirming the approach that protects the fundamental rights of LGBTQ persons., The Juvenile Justice Act was enacted to consolidate and amend the law catering to the basic needs of children. Chapter VIII (Sections 56 to 73) deals with the provisions relating to adoption. Section 2(49) of the Juvenile Justice Act defines prospective adoptive parents as a person or persons eligible to adopt a child according to the provisions of Section 57.
id_366	11	Section 57 prescribes the eligibility criteria for prospective adoptive parents. The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child and provide a good upbringing. In the case of a couple, the consent of both spouses is required. A single or divorced person may also adopt, subject to fulfillment of the criteria and in accordance with the adoption regulations framed by the Central Adoption Resource Authority. A single male is not eligible to adopt a girl child. Any other criteria may be specified in the adoption regulations framed by the Authority. Section 57(1) prescribes general conditions relating to the physical, mental and financial well‑being of the prospective parents as well as their motivations. Sub‑section (2) states that the consent of both parties is required if a couple is adopting a child. Sub‑sections (3) and (4) state that single and divorced persons are not precluded from adopting, with the only restriction that a single male cannot adopt a girl child., The Ministry of Women and Child Development notified the regulations framed by the Central Adoption Resource Authority in exercise of the powers conferred under Section 68(c) read with Section 2(3) of the Juvenile Justice (Care and Protection of Children) Act. Regulation 5 of the Adoption Regulations prescribes the eligibility criteria for prospective adoptive parents. The prospective adoptive parents shall be physically, mentally, emotionally and financially capable, shall not have any life‑threatening medical condition and shall not have been convicted of any criminal act or accused in any case of child‑rights violation. Any prospective adoptive parent, irrespective of marital status and whether they have a biological son or daughter, may adopt a child subject to the following: the consent of both spouses is required in case of a married couple; a single female can adopt a child of any gender; a single male shall not be eligible to adopt a girl child. No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship, except in cases of relative or step‑parent adoption., Clause (1) of Regulation 5 states that prospective adoptive parents must be physically, mentally, emotionally and financially stable, must not have any life‑threatening medical condition and must not have been convicted of a criminal act or accused in a case concerning a violation of child rights. These general conditions are aimed at securing the best interest of the child by focusing on physical, emotional and financial stability. Clause (2) stipulates that any person, irrespective of marital status and irrespective of whether they already have a biological child, may adopt. In this clause, (a) in the case of a married couple, the consent of both spouses is required; and (b) although a single female can adopt a child of any gender, a single male shall not be eligible to adopt a girl child. Clause (3) prescribes a further restriction that a child shall be given in adoption to a couple only if they have at least two years of a stable marital relationship, except in cases of relative or step‑parent adoption., Though Regulation 5(2)(a) taken alone does not preclude unmarried couples from being prospective adoptive parents, a combined reading of Regulations 5(2)(a) and 5(3) elucidates that only married couples can be prospective adoptive parents and such couples must be in at least two years of stable marital relationship. The Adoption Regulations indicate that while a person can, in their individual capacity, be a prospective adoptive parent, they cannot adopt a child together with their partner if they are not married., The Adoption Regulations are framed in exercise of the power conferred under the Juvenile Justice (Care and Protection of Children) Act. Section 57(5) of the Act grants the Authority, i.e., the Central Adoption Resource Authority, the power to specify any other criteria. The criteria for prospective adoptive parents under the Act require that they be physically fit, financially sound, mentally alert and highly motivated to provide a good upbringing. The Adoption Regulations add that prospective parents should not have been convicted of a criminal act and should not have a life‑threatening medical condition. The Regulations state that couples can adopt, the consent of both spouses is required, only married couples can adopt, a married couple should have been in two years of stable marital relationship to be eligible, a single male is not eligible to adopt a girl child, while a single female is eligible to adopt a child of any gender., The petitioners submitted that the Adoption Regulations are ultra vires the provisions of the Juvenile Justice Act because they bar unmarried couples from adopting. They also submitted that the distinction between married and unmarried persons for the purpose of adoption violates Article 14 of the Constitution., It is settled law that delegated legislation must be consistent with the parent Act and must not exceed the powers granted under the Juvenile Justice (Care and Protection of Children) Act. The rule‑making authority must exercise the power for the purpose for which it is granted. Delegated legislation will be ultra vires if it is repugnant to the parent Act or exceeds the authority granted by the parent Act. Section 57(5) delegates to the Central Adoption Resource Authority the power to prescribe any other criteria in addition to those prescribed by the provision. However, in view of case law on subordinate law‑making, this power cannot be read expansively. The Authority’s power to prescribe additional criteria is limited by the express provisions and legislative policy of the Juvenile Justice Act., The Adoption Regulations place two restrictions on a couple who wishes to adopt: first, the couple must be married; second, the couple must have been in a stable marital relationship. The question is whether the prescription of these two additional conditions is violative of the provisions of the Juvenile Justice Act and the Constitution. Regulation 5(3) of the Adoption Regulations exceeds the scope of the Juvenile Justice Act., Section 3 of the Juvenile Justice Act prescribes the general principles to be followed in the administration of the Act, including the principle of best interest, which stipulates that all decisions regarding the child shall be based on the best interest of the child to help the child develop their full potential., The provisions of the Juvenile Justice Act promote the best interest of the child and ensure their development. The eligibility criteria prescribed in Section 57 are an extension of that principle. The legislative intent behind prescribing conditions of physical and mental fitness is to ensure that the parents are able to prioritize the well‑being of the child. The condition requiring the consent of both spouses ensures that the child receives the attention and care of both partners. The intent is not to give a child for adoption to a couple where one of them is unwilling to take up the responsibility of being a parent. The criterion prohibiting a single male from adopting a girl child is in the State’s interest of preventing child sexual abuse. Thus, the State has prescribed the criteria in Section 57 keeping in mind the welfare of the child., Section 57(2) does not stipulate that only married couples can adopt. It states that in the case of a couple, the consent of both spouses must be secured. This indicates that adoption by a married couple is not a statutory requirement. The usage of the term spouse in Section 57(2) does not exclude unmarried couples from adopting., Regulation 5(3) of the Adoption Regulations bars unmarried partners from being prospective adoptive parents. These Regulations permit persons to adopt only in an individual capacity and not jointly as an unmarried couple. Regulation 5(2) states that every person, irrespective of whether they are married or unmarried, may be a prospective adoptive parent. The subsequent criterion that the consent of both spouses is required if they are married does not exclude an unmarried couple from adopting; it merely requires consent when the couple is married. However, Regulation 5(3) expressly excludes unmarried couples from adopting by prescribing that the couple must have been in two years of a stable marital relationship. The Juvenile Justice Act does not preclude unmarried couples from adopting. Although Section 57 of the Act grants the Central Adoption Resource Authority the power to prescribe additional criteria, such criteria must not exceed the scope of the legislative policy. Neither the general principles guiding the Act nor Section 57 preclude unmarried couples from adopting a child. All other criteria ensure the child’s best interests. The Union of India has not proved that precluding unmarried couples from adopting a child, even though the same individuals are eligible to adopt in their individual capacity, is in the child’s best interests. Thus, the Authority has exceeded its authority by prescribing the additional condition of Regulation 5(3), which is contrary to the tenor of the Juvenile Justice Act and Section 57., Further, the usage of the term stable in Regulation 5(3) is vague. It is unclear whether the provision creates a legal fiction that all married relationships which have lasted two years automatically qualify as stable, or whether specific characteristics in addition to those prescribed in Regulation 5(1)—physical, mental and emotional wellbeing—are required to characterize a married relationship as stable. Hence, Regulation 5(3) exceeds the scope of the Juvenile Justice Act., Regulation 5(3) of the Adoption Regulations classifies couples into married and unmarried couples for the purpose of adoption. The Authority’s intent to identify a stable household for adoption is discernible from Regulation 5(3). However, the Authority has proceeded under the assumption that only married couples can provide a stable household for the child, an assumption not backed by data. Although married couples may provide a stable environment, it is not true that all married couples automatically provide a stable home. Similarly, unmarried relationships cannot be characterized as inherently unstable. Marriage is not necessarily the bedrock on which families and households are built. This traditional understanding of family cannot be used to deny the right of couples in domestic partnerships or live‑in relationships to found a family., It is a settled position of law that classification per se is not discriminatory and does not violate Article 14. Article 14 only forbids class legislation and not reasonable classification. A classification is reasonable when the following test is satisfied: (a) the classification must be based on an intelligible differentia which distinguishes the persons or things that are grouped from others left out of the group; and (b) the differentia must have a rational nexus to the object sought to be achieved by the statute., The Adoption Regulations use marriage as a yardstick to classify couples. There is an intelligible differentia in using marriage as an indicator to distinguish married couples from unmarried couples. However, the differentia does not have a rational nexus with the object sought to be achieved by the Regulations, which is to ensure that the best interest of the child is protected. Placing a child in a stable family is undoubtedly in pursuit of a child’s interest, but the respondents have not placed any data on record to support the claim that only married relationships can provide stability. While separation from a married partner is a more cumbersome process compared to separating from a partner in a live‑in relationship—because divorce is regulated by law and live‑in relationships are largely unregulated—this does not mean that marriage alone guarantees stability, nor that unmarried couples are not serious about their relationships. The stability of a household depends on factors such as the partners’ effort and involvement in establishing and running a household, creating a safe space, maintaining a healthy work‑life balance, and ensuring that mental, physical and emotional violence is not inflicted. There is no single form of a stable household, and no material on record proves that only a married heterosexual couple can provide stability to the child. The Supreme Court of India has recognized the pluralistic values of the Constitution which guarantee a right to different forms of association., The Union of India is required to submit cogent material to support its claim that only married partners are able to provide a stable household, but it has not done so. The Union submitted four studies: a study on child attention‑deficit hyperactivity disorder (ADHD) in same‑sex parent families in the United States; a study on high school graduation rates among children of same‑sex households; a study on children in planned lesbian families focusing on stigmatization, psychological adjustment and protective factors; and a study on children in three contexts—family, education and social development. The studies submitted by Ms. Aishwarya Bhati, Additional Solicitor General, conclude that non‑heterosexual couples cannot effectively take up the role of parents. However, the studies do not indicate that only married couples can be in a stable relationship nor that only married couples have the ability to effectively parent children. Thus, the Union of India has not submitted any cogent material to substantiate the claim that unmarried couples cannot be in a stable relationship, nor has it demonstrated that a single parent who adopts a child will provide a more stable environment than an unmarried couple. Consequently, Regulations 5(2)(a) and 5(3) of the Adoption Regulations violate Article 14 of the Constitution., Further, under Section 58(2) of the Juvenile Justice Act, the Specialized Adoption Agency is required to prepare a home study report of the prospective adoptive parents. Only when the prospective adoptive parents are found eligible after the home study is a child referred to them for adoption. Section 58(5) provides that the progress and wellbeing of the child shall be ascertained after the adoption. The adoption procedure includes assessment of a couple’s capacity and ability to care for a child. Any areas of concern relating to a couple’s capability as a parent would be discernible in the home study. The home study must consider the couple’s capability without reference to their sexual orientation., Ms. Aishwarya Bhati referred to the judgment of the Supreme Court of India in Shabnam Hashmi v. Union of India to argue that the fundamental right to adopt is not recognised under the Constitution and thus the exclusion of queer persons from the adoption scheme does not violate Part III of the Constitution. In Shabnam Hashmi, a petition was filed under Article 32 seeking a declaration that the Constitution guarantees the right to adopt and, alternatively, requesting guidelines enabling adoption by persons irrespective of religion, caste and creed. The Court observed that the adjudication of whether adoption should be elevated to the status of a fundamental right must await the dissipation of conflicting thought processes. The Court held that while the dimensions and perspectives of fundamental rights evolve in a vibrant democracy, elevation of the right to adopt or to be adopted to the status of a fundamental right will have to await a dissipation of the conflicting thought processes. The legislature, being better equipped to gauge the mental preparedness of the citizenry, has expressed its view through the enactment of the Juvenile Justice Act, 2000, which must receive due respect. Accordingly, the Court held that the present is not an appropriate time to raise the right to adopt and the right to be adopted to the status of a fundamental right or to read it into Article 21 of the Constitution., The observations of the Supreme Court of India in Shabnam Hashmi that it is not the appropriate time to recognise a right to adopt and to be adopted do not affect the petitioners’ case. The petitioners challenge Regulation 5(3) of the Adoption Regulations on the ground that it discriminates against the queer community. The challenge is not based on a violation of the right to adopt, nor do the petitioners claim a fundamental right to adopt. The crux of the petitioners’ case is that Regulation 5(3) discriminates against the queer community because it disproportionately affects them., Regulation 5(3), though facially neutral, indirectly discriminates against atypical unions such as relationships between non‑heterosexual partners, which have not been recognised by the State. Queer marriages have not been recognised, and queer persons in atypical unions cannot yet enter into a marriage recognised by the State. While the additional criteria prescribed by the Adoption Regulations would also affect a heterosexual person’s eligibility to adopt, it would disproportionately affect non‑heterosexual couples because the State has not conferred legal recognition to unions between queer persons in the form of marriage. Consequently, an unmarried heterosexual couple who wishes to adopt can marry to meet the eligibility criteria, an option not available to queer couples. When Regulation 5(3) is understood in this light, a queer person in a relationship can only adopt in an individual capacity. This exclusion reinforces the disadvantage already faced by the queer community., The National Commission for Protection of Child Rights (NCPCR) submitted that excluding queer persons from adopting children is backed by cogent reasons. Ms. Aishwarya Bhati submitted four studies to support the claim that permitting non‑heterosexual couples to adopt is not in the best interest of the child. One study on child attention‑deficit hyperactivity disorder (ADHD) in same‑sex parent families in the United States examined a sample of 195,240 children, including 512 children with same‑sex parents, and concluded that children with same‑sex parents were twice as likely to suffer from ADHD than children with opposite‑sex parents. Another study on high school graduation rates among children of same‑sex households used the 2006 Canada census and concluded that children living with queer parents performed more poorly in school compared to children living with married heterosexual parents. A study on children in planned lesbian families examined stigmatization, psychological adjustment and protective factors, finding higher levels of stigmatization associated with such children, with boys more hyperactive and girls having lower self‑esteem. A study on children in three contexts—family, education and social development—collected a sample of 174 primary school children living with married heterosexual couples, cohabiting heterosexual couples and homosexual couples, and concluded that children of married couples are more likely to do well academically and socially than children of cohabiting heterosexual and homosexual couples, although the author cautioned that teacher bias may influence assessments., Dr. Menaka Guruswamy, appearing for the intervenor Delhi Commission for Protection of Child Rights, argued that there is no evidence or empirical data to show that non‑heterosexual couples are unfit to be parents or that the psychosocial development of children raised by same‑sex couples is compromised. The counsel relied on a paper titled ‘Lesbian and Gay Parenting’ by the American Psychological Association, which concluded that the home environment provided by non‑heterosexual couples is not different from that provided by heterosexual parents. Another study, ‘Same‑sex parenting in Brazil and Portugal: An integrative review’, found that the adoption of children by one individual in a non‑heterosexual partnership, due to delayed recognition of same‑sex marriage, became a weakness for such families in health, education and other responsibilities. A paper titled ‘Academic achievement of children in same and different sex parented families: A population‑level analysis of linked administrative data from the Netherlands’ concluded that children raised by same‑sex couples performed at least as well as children of heterosexual parents in socio‑political environments characterised by high levels of legislative or public support, and that they experience no educational disadvantage. Another study based on data from the Netherlands, where same‑sex marriages were formalised in 2011, found that children raised by non‑heterosexual parents outperformed those raised by heterosexual parents by 0.139 standard deviations and were 4.8 percentage points more likely to graduate. The studies submitted by counsel on both sides support their respective arguments. The studies submitted by Ms. Bhati support the argument that even if Regulation 5(3) discriminates against the queer community, it is justified because the interest of the child would suffer if they are parented by queer partners., The burden required to be discharged by the State for an Article 14 violation and an Article 15 violation differs. Article 14 prohibits unreasonable classification, while Article 15 prohibits discrimination based on identity. The interpretation of Article 15 has evolved to incorporate a more substantial effects‑based approach to the anti‑discrimination principle. The test is whether the law discriminates against persons in effect, based on the identities covered in Article 15. While the Court is determining whether Article 14 is violated, the State must submit cogent evidence to support its claim that the classification has a nexus with the object sought to be achieved. Conversely, there is no justification for discrimination based on identities protected under Article 15. State interests, even if established, cannot be used to justify discrimination once the Court holds that the provision discriminates based on identity. While assessing whether the provision under challenge discriminates in effect based on identity, the Court must also evaluate whether the provision is a protective provision meant to achieve substantive equality., It cannot be argued that the Transgender Persons Act is violative of Article 15 because it provides special provisions to safeguard the interest of the transgender community, excluding cis‑gender persons. A classification based on identities protected by Article 15 does not automatically lead to discrimination. The Supreme Court of India in State of Kerala v. N.M. Thomas held that protective provisions, such as those for reservation, are not an exception to anti‑discrimination law but are in furtherance of the principle of equality, of which anti‑discrimination is a facet.
id_366	12	Supreme Court of India examines if the law is discriminatory not based on whether there is a classification based on the identity but whether there is discrimination based on the identity. While doing so it determines if it is a protective provision. However, once it is established that the law discriminates based on protected identities, it cannot be justified based on state interest. Thus, once it is proved that the law discriminates based on sexual orientation as in this case (because it disproportionately affects queer persons), no amount of evidence or material submitted by the State that such discrimination is based on state’s interest can be used as a justification., We are of the opinion that if the children of persons from the queer community suffer it is because of the lack of recognition (at a legal and social plane) to same‑sex unions. In fact, one of the studies submitted by Ms. Aishwarya Bhati highlights this aspect. The stigmatization (if any) faced by the children parented by persons of the queer community is because of the inherent biases that society holds against the queer community, and in this context, biases about their fitness to be parents. Thus, it is in the interest of children that the State endeavours to take steps to sensitise the society about queer relationships., In fact, the Indian Psychiatric Society which consists of 7,000 mental health professionals in India released a statement stating that children brought up by non‑heterosexual parents may face stigmatization and that it is important that the civic society is adequately sensitized: The Indian Psychiatric Society is very cognizant that a child adopted into a same gendered family may face challenges, stigma and/or discrimination along the way. It is imperative that, once legalized, such parents of the LGBTQA spectrum bring up the children in a gender neutral, unbiased environment. It is also of utmost importance that the family, community, school and society in general are sensitized to protect and promote the development of such a child, and prevent stigma and discrimination at any cost., The law cannot make an assumption about good and bad parenting based on the sexuality of individuals. Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution. This assumption is not different from the assumption that individuals of a certain class or caste or religion are better parents. In view of the above observations, the Adoption Regulation is violative of Article 15 for discriminating against the queer community., In view of the observations above, Regulation 5(3) is ultra vires the parent Act for exceeding the scope of delegation and for violating Articles 14 and 15 of the Constitution. It is settled that courts have the power to read down a provision to save it from being declared ultra vires. Regulation 5(3) is read down to exclude the word marital. It is clarified that the reference to a couple in Regulation 5 includes both married and unmarried couples including queer couples. In bringing the regulations in conformity with this judgment, Central Adoption Resource Authority is at liberty to ensure that the conditions which it prescribes for a valid adoption subserve the best interest and welfare of the child. The welfare of the child is of paramount importance. Hence, the authorities would be at liberty to ensure that the familial circumstances provide a safe, stable, and conducive environment to protect the material well‑being and emotional sustenance of the child. Moreover, Central Adoption Resource Authority may insist on conditions which would ensure that the interest of the child would be protected even if the relationship of the adoptive parents were to come to an end in the future. Those indicators must not discriminate against any couple based on sexual orientation. The criteria prescribed must be in tune with constitutional values. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried or queer couples who seek to jointly adopt a child., The forms in Schedules II (child study report), III (medical examination report and classification of special needs of a child), VI (online registration form) and VII (home study report) use the phrases male applicant and female applicant. We have already concluded above that both married and unmarried couples can adopt under Regulation 5 of the Adoption Regulations. After the judgments of this Court in Gita Hariharan v. Reserve Bank of India, State Bank of Travancore v. Mohammed Khan, Indra Das v. State of Assam, Navtej Singh Johar v. Union of India and National Legal Services Authority v. Union of India recognising non‑binary identity and their freedom to choose a partner irrespective of the sexual identity, reference to a couple cannot be restricted to heterosexual relationships. It will include all forms of queer relationships. The phrases male applicant and female applicant (in case of applicant couples) in Schedules II, III, VI and VII of the Adoption Regulations limit reference to only heterosexual couples and have the effect of precluding persons in queer relationships from adopting, violating the anti‑discrimination principle in Article 15(1). Thus, the phrases male applicant and female applicant (in case of applicant couples) in Schedules II, III, VI and VII of the Adoption Regulations are substituted with the phrases prospective adoptive parent 1 and prospective adoptive parent 2 (in case of applicant couples)., In 2022, Central Adoption Resource Authority issued an Office Memorandum stipulating that a single prospective adoptive parent in a live‑in relationship will be ineligible to adopt a child. The Office Memorandum further provides that this decision is taken in line with Regulation 5(3) of the Adoption Regulations which stipulates that a child can only be placed with a stable family and that a single applicant in a live‑in relationship cannot be considered to be part of a stable family. It has been noticed from Home Study Reports that some single prospective adoptive parents registered with Central Adoption Resource Authority for the adoption process are in relationship with their live‑in partner. The cases of single prospective adoptive parents engaged in live‑in relationships were discussed in the Steering Committee of Central Adoption Resource Authority during its 31st Meeting held on 18 April 2022. It was decided to follow the earlier decision of the 14th Steering Committee Meeting held on 10 May 2018 that the cases of single prospective adoptive parents in a live‑in relationship with a partner will not be considered eligible to adopt a child and their registration from concerned agencies will not be considered for approval. The decision was taken in line with Regulation 5(3) of the Adoption Regulations 2017. The authority would like the children to be placed only with a stable family and a single applicant in a live‑in relationship cannot be considered as a stable family., Central Adoption Resource Authority in its 31st meeting held on 18 April 2022, in terms of the decision taken in the Steering Committee Meeting held on 10 May 2018, resolved that an application received by a prospective adoptive parent who is in a live‑in relationship may not be considered on the basis of Regulation 5(3) of the Adoption Regulations. The resolution states: Reference is drawn to the Steering Committee Meeting held on 10 May 2019 wherein the Steering Committee had not approved adoption to prospective adoptive parents staying in live‑in relationships. However, the NOC section has received three cases of children reserved from the Special Need portal and on examination of the Home Study Report it has been observed that the parents have been in a live‑in relationship. In this regard the NOC committee had not approved inter‑country cases of the children on the basis of Regulation 5(3) which states that no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship. Since the matter involves cases of special needs children, the issue may be discussed in the Steering Committee. It was decided to go with the earlier decision of the Steering Committee and the same rule should be applicable as that of the domestic prospective adoptive parents. Any application received from live‑in prospective adoptive parents may not be considered on the basis of Regulation 5(3) of the Adoption Regulations., The Central Adoption Resource Authority Circular prescribes a condition in addition to the conditions prescribed in the Adoption Regulations. While the Adoption Regulations exclude unmarried couples from jointly adopting a child, the Circular restricts the ability of a person who is in a live‑in relationship to adopt in their individual capacity. The Circular stipulates that the decision is in pursuance of Regulation 5(3) of the Adoption Regulations which requires couples to be in a stable relationship., Regulation 5(1) of the Adoption Regulations prescribes a general criteria (in the form of a guiding principle) for prospective adoptive parents which is that they must be physically, mentally, and emotionally fit, they must not be convicted of a criminal act, and they must not have a life‑threatening disease. These criteria are equally applicable to couples and persons who wish to adopt in their individual capacity. All the other subsequent provisions in Regulation 5 are specific to couples (that is, the requirement of a stable relationship and the consent of both parties) and individuals (that is, that a male cannot adopt a girl child). Hence, the additional criterion prescribed by the Circular for a person to adopt in an individual capacity is not traceable to the principles in Regulations 5(1) and 5(2)(c). The condition imposed by the Circular is neither traceable to the principles in Regulations 5(1) and 5(2)(c) nor is it traceable to any of the provisions of the Juvenile Justice Act. The Circular has exceeded the scope of the Adoption Guidelines and the Juvenile Justice Act., According to the Adoption Regulations, unmarried couples cannot jointly adopt a child. Though the additional criteria prescribed by the Circular would also affect a heterosexual person's eligibility to adopt a child, it would disproportionately affect non‑heterosexual couples since the State has not conferred legal recognition in the form of marriage to the union between non‑heterosexual persons. When the Circular is read in light of this legal position, a person of the queer community would be forced to choose between their wish to be an adoptive parent and their desire to enter into a partnership with a person they love and have affinity with. This exclusion has the effect of reinforcing the disadvantage already faced by the queer community. For these reasons and the reasons recorded in Section D (xiii)(a)(III), the Circular is violative of Article 15 of the Constitution., In the opinion authored by Justice Ravindra Bhat, my learned brother states that unenumerated rights are recognised by courts in response to State action that threaten the freedom or right directly or indirectly. With due respect, such a narrow understanding of fundamental rights turns back the clock on the rich jurisprudence that the Indian courts have developed on Part III of the Constitution. This Court has held in numerous cases that the rights of persons are infringed not merely by overt actions but also by inaction on the part of the State. Some of these precedents are referred to below., In National Legal Services Authority (supra), this Court held that the State by rendering the transgender community invisible and failing to recognize their gender identity deprived them of social and cultural rights. This Court recognised the duty of the State to enable the exercise of rights by the transgender community and issued a slew of directions to enforce this duty. Justice A.K. Sikri in his opinion issued the following declarations and directions: 1. Hijras, eunuchs, apart from binary gender, be treated as third gender for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature. 2. Transgender persons' right to decide their self‑identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender. 3. We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. 4. Centre and State Governments are directed to operate separate HIV sero‑surveillance centres since hijras/transgenders face several sexual health issues. 5. Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc., and any insistence for SRS for declaring one's gender is immoral and illegal. 6. Centre and State Governments should take proper measures to provide medical care to transgender persons in hospitals and also provide them separate public toilets and other facilities. 7. Centre and State Governments should also take steps for framing various social welfare schemes for their betterment. 8. Centre and State Governments should take steps to create public awareness so that transgender persons will feel that they are also part and parcel of social life and not treated as untouchables. 9. Centre and State Governments should also take measures to regain their respect and place in society which once they enjoyed in our cultural and social life., In Union of India v. Association of Democratic Reforms, proceedings under Article 136 were initiated against the judgment of the High Court of Delhi which recognised the rights of citizens to receive information regarding criminal activities of a candidate to the legislative assembly. The High Court directed the Election Commission to inter alia secure information on whether the candidate is accused of any offence and the assets possessed by a candidate. A three‑Judge Bench of this Court dismissed the appeal and held that it is imperative that the electorate possesses sufficient information to enable them to exercise their right to vote. From the aforesaid paragraph, it can be deduced that the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and this would include their decision of casting votes in favour of a particular candidate. If there is a disclosure by a candidate as sought for then it would strengthen the voters in taking appropriate decision of casting their votes. Finally, in our view this Court would have ample power to direct the Commission to fill the void, in the absence of suitable legislation covering the field and the voters are required to be well informed and educated about contesting candidates so that they can elect a proper candidate by their own assessment. It is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that of the legislature, and where there is inaction by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations to provide a solution till such time the legislature acts to perform its role by enacting proper legislation to cover the field. The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. Therefore, if the candidate is directed to declare his or her spouse's and dependants' assets immovable, movable and valuable articles it would have its own effect., While the precedents on the subject are not multiplied in the text of the judgment, some of the judgments on this point are footnoted. In view of the discussion above, the observation of Justice Bhat that an overt action of the State is necessary for the court to direct the State to create enabling conditions has no jurisprudential basis. Neither the provisions of the Constitution nor the earlier decisions of this Court create such a distinction. In fact, as I have discussed in detail, Article 32 of the Constitution states that the Supreme Court shall have the power to issue directions for the enforcement of rights conferred by Part III without making any distinction between action and inaction by the State., I also disagree with the observations of Justice Bhat that in the absence of a legal regime, the power of this Court to issue directions to enable the facilitation of rights is limited. In Sheela Barse v. Union of India, the petitioner, a social activist, brought to the attention of this Court that the State of West Bengal jailed persons with mental disabilities who are not suspected, accused, charged of, or convicted for committing any offence but only for the reason that they are mentally ill. The decision to jail them was made based on an instant assessment of their mental health. This Court held that the admission of such mentally ill persons to jails was illegal and unconstitutional. This Court also directed that hospitals shall be immediately upgraded, psychiatric services shall be set up in all teaching and district hospitals, including filling posts for psychiatrists, and integrating mental health care with the primary health care system., In PUCL v. Union of India, the petitioner submitted that the right to livelihood implies that the State has a duty to provide food to people. In a series of orders, this Court identified government schemes which constituted legal entitlements of the right to food and outlined the manner of implementing these schemes., My learned brother relies on the example of Article 19(1)(d) to buttress his point. He states that in the absence of a law which casts a duty on the State to provide transportation through roads, a citizen cannot approach the court and seek the construction of a road to enforce the right to move freely. The opinion of my learned brother fails to have noted the judgment of a three‑Judge Bench of this Court in State of Himachal Pradesh v. Umed Ram Sharma. In this case, a letter petition was written to the High Court claiming that the construction of a road which would benefit the residents of the village and in particular, the members of the Dalit community was stopped by the State. The High Court directed the Superintending Engineer of the Public Works Department to complete the construction of the road. This Court dismissed the appeal against the judgment of the High Court observing that the Constitution places a duty on the State to provide roads for residents of hilly areas because access to roads is encompassed in their right to secure a quality life. This Court recognised that the right under Article 21 of the Constitution is violated if the State does not build roads for effective communication and transportation. Thus, even in the absence of a law which requires the State to build roads, such a duty was imposed on the State on an interpretation of Part III of the Constitution., Bhat, J. holds that: (i) the legal dimension of marriage in USA is different from the legal dimension of marriage in India; (ii) the legality of a marriage in USA is solely dependent on a validly obtained licence; (iii) in India, the legal status of a marriage stems from personal law and customs; and (iv) the terms of marriage are set, to a large extent, independently of the state. While there is no doubt that marriage predates the state and the existence of what we now consider law, I am unable to agree with the conclusion of my learned brother that the status of a marriage in India stems only from personal law and customs and that the terms of marriage are largely set independently of the state, for two reasons: First, the legal status of a married couple stems from statute. Once the state began regulating marriage, the validity (and consequently, the status) of marriage is traceable to law. While law may provide that a marriage is valid if it was performed in accordance with custom, it is beyond cavil that the only reason that a custom is relevant (for the purposes of law) is because of law itself. Therefore, it is law (through statutes) that accords significance to personal law and customs and it is statutes that may (and often do) deviate from personal law and customs. Second, the number of legislations which govern marriage as well as the detailed framework which they set out makes it immediately evident that the terms of marriage are not set independently of the state, but by the state itself. From divorce to custody to maintenance to domestic violence and offences, almost every aspect of marriage is regulated by the state. I have discussed the manner in which marriage has evolved (through state regulation) in detail in Section D(iii)(b) of my judgment. Thus, marriage as an institution cannot anymore be viewed as solely traceable to customs and traditions after the State's interference to regulate the institution. The State's reformation of the institution has slowly but evidently changed the nature of the institution itself. Under the Constitution, the state is empowered to reform social institutions including marriage in line with constitutional values., Contrary to what is stated in the judgment of Bhat, J., the directions in my judgment do not require the state to create social or legal status, or a social institution. The directions are with a view to recognizing the choice that a person makes for themselves when they choose another to be their partner for life. The directions seek to make that choice a meaningful one. Nowhere do they create an institution of any kind. Rather, they give effect to the fundamental rights in Part III of the Constitution. This is the mandate of this Court under Article 32. The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the rights conferred by this Part. No response is forthcoming to my detailed exposition of the scope of the powers of this Court under Article 32 in Section D(i) of my judgment. In fact, Justice Bhat himself recognizes that courts often enable and oblige the state to take measures. My learned brother also arrives at the conclusion that the state is indirectly discriminating against the queer community but fails to exercise the power vested in this Court by Article 32 to alleviate this discrimination in any way. This Court is not through judicial diktat creating a legal regime exclusively for persons of the queer community but merely recognising the duty of the State to recognise the entitlements flowing from exercising the right to choose a life partner., Bhat, J. states that no one has contended that two queer persons have the right of a sustained partnership which is traceable to Articles 19(1)(a), (c), (d) and the right to conscience under Article 25. This is not true, as demonstrated by the segment of this judgment on the submissions made by the petitioners., Bhat, J. has held that: a. The classification in a legislation is to be discerned by gathering the object sought to be achieved by the enactment. The object of the Special Marriage Act was to enable inter‑faith heterosexual marriage. The classification is therefore between same‑faith heterosexual couples and inter‑faith heterosexual couples. It does not discriminate against queer persons; and b. The test for discrimination is not the object of the statute but its effect and impact. The effect of the state regulating marriage only for heterosexual couples is that it adversely impacts them, results in denial of entitlements/benefits, and that this injustice and inequity results in discrimination. The state must address this deprivation and take remedial action. My learned brother contradicts himself when he holds that the Special Marriage Act is not discriminatory by relying on its object, on the one hand, and that the state has indirectly discriminated against the queer community because it is the effect and not the object which is relevant, on the other. My learned brother discusses in detail the deprivation, exclusion, and discrimination faced by the queer community. In effect, he: (i) recognizes that they have a right not to be discriminated against; and (ii) holds that the actions of the state have the effect of discriminating against them. However, he does not take the step which logically follows from such a ruling which is to pass directions to obviate such discrimination and ensure the realization of the rights of the queer community. I cannot bring myself to agree with this approach. The realization of a right is effectuated when there is a remedy available to enforce it. The principle of ubi jus ibi remedium (that an infringement of a right has a remedy) which has been applied in the context of civil law for centuries cannot be ignored in the constitutional context. Absent the grant of remedies, the formulation of doctrines is no more than judicial platitude., Bhat, J. highlights that the central question which arises for the consideration of this Court is whether the absence of law or a regulatory framework, or the failure of the State to enact law, amounts to discrimination that is protected under Article 15. He states that there is no known jurisprudence or case law yet pointing to the absence of law being considered as discrimination as understood under Article 15. Here, I would like to sound a note of caution (which, though obvious, bears repetition) the manner in which an issue is framed impacts the analysis of the issue. In fact, Justice Bhat's reasoning deviates from the jurisprudence that this Court has developed on the interpretation of Article 15. Justice Bhat's reasoning assesses the objective of a law instead of its effect. This is best understood with the help of an example. Suppose the state were to enact a law which enabled only citizens of a particular caste to avail the services of a particular government hospital but which did not expressly prohibit members of other castes from availing its services. This law contains various conditions which must be satisfied before services of the hospital can be availed (such as a list of diseases which it treats or how advanced a particular disease is). This law can be understood as being an enabling law or a law which regulates or it can be understood (in its true sense) as a law which has the effect of excluding certain groups on the basis of prohibited markers of identity. This remains true not only of a hospital but of any service or scheme or institution that one can imagine. Hence, what is framed as the absence of a law or an enabling law can have the same restrictive effect as a law which expressly bars or prohibits certain actions or excludes certain groups., I disagree with the observations of my learned brother that the State has a positive obligation under Article 21 but such an obligation cannot be read into other fundamental rights other than Article 21. I reiterate the observations made in Section D(ix)(a)., Bhat, J. distinguishes the judgments in Vishaka (supra), Common Cause (supra) and National Legal Services Authority (supra) from the present case by holding that in each of these cases, directions were passed because the inadequacies were acute and intolerable and faced by entire groups. However, he does not explain why the inadequacies faced by the queer community in this case are mild or tolerable.
id_366	13	There is neither a test nor standard known to law by which discrimination, or the violation of a fundamental right, must reach a level of intolerability for the Supreme Court of India to exercise its jurisdiction. Regardless of the severity of the violation, it is the duty of the Supreme Court of India to protect the exercise of the right in question. Further, in this case too, the rights of an entire group (being the queer community) are at issue., The opinion of Justice Bhat highlights that the reading of the Adoption Regulations to permit unmarried couples to adopt would have disastrous outcomes because the law, as it stands today, does not guarantee the protection of the child of unmarried parents adopting jointly. A reading of the numerous laws relating to the rights of children qua parents indicates that the law does not create any distinction between children of married and unmarried couples so long as they are validly adopted. Section 12 of the Hindu Adoptions and Maintenance Act, 1956 states that an adopted child shall be deemed to be the child of their adopted parents for all purposes from the date of adoption. Similarly, Section 63 of the Juvenile Justice (Care and Protection of Children) Act also creates a deeming fiction. The provision states that a child in respect of whom an adoption order is issued shall become the child of the adoptive parents and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents, including for the purposes of intestacy., In view of the deeming fiction created by Section 12 of the Hindu Adoptions and Maintenance Act, 1956 and Section 63 of the Juvenile Justice (Care and Protection of Children) Act, an adopted child is a legitimate child of the adopting couple. The manner of determination of legitimacy prescribed by Section 112 of the Indian Evidence Act, 1872 shall not apply in view of the deeming fiction created by Section 12 of the Hindu Adoptions and Maintenance Act, 1956 and Section 63 of the Juvenile Justice (Care and Protection of Children) Act. Thus, all the benefits which are available under the law to a legitimate child (who has been validly adopted) of a married couple will equally be available to the legitimate child of an unmarried couple. For example, Section 20 of the Hindu Adoptions and Maintenance Act, 1956, which provides that a Hindu is to maintain their children, does not make any distinction between a legitimate child of a married and an unmarried couple. Similarly, succession law in India does not differentiate between the child of a married and an unmarried couple if the child has been adopted by following the due process of law. Further, the breakdown of the relationship of an unmarried couple will not lead to a change in applicable law because the child will continue to be a legitimate child even after the breakdown of the relationship. It is therefore unclear what the disastrous outcomes referred to are. The learned brother has also failed to address whether Regulation 5(3) is discriminatory for distinguishing between married and unmarried couples for the purpose of adoption and for the disproportionate impact that it has on the members of the queer community while simultaneously holding that the State cannot, on any account, make regulations that are facially or indirectly discriminatory on the ground of sexual orientation., The provision confers legitimacy on a child born during the continuance of a valid marriage or within two hundred eighty days since the dissolution of marriage., Counsel for the petitioners and some counsel for the respondents advanced extensive submissions on the various forms of violence and discrimination that society and the state machinery inflict upon the queer community, especially queer couples. This has been discussed in detail in the prefatory part of the judgment. Counsel sought directions to obviate such violence and discrimination., The Union Government, State Governments, and Governments of Union Territories are directed to: ensure that the queer community is not discriminated against because of their gender identity or sexual orientation; ensure that there is no discrimination in access to goods and services to the queer community, which are available to the public; take steps to sensitize the public about queer identity, including that it is natural and not a mental disorder; establish hotline numbers that the queer community can contact when they face harassment and violence in any form; establish and publicise the availability of safe houses or Garima Grehs in all districts to provide shelter to members of the queer community who are facing violence or discrimination; ensure that treatments offered by doctors or other persons, which aim to change gender identity or sexual orientation are ceased with immediate effect; ensure that inter‑sex children are not forced to undergo operations with regard only to their sex, especially at an age at which they are unable to fully comprehend and consent to such operations; recognize the self‑identified gender of all persons including transgender persons, hijras, and others with sociocultural identities in India, as male, female, or third gender, and no person shall be forced to undergo hormonal therapy or sterilisation or any other medical procedure either as a condition or prerequisite to grant legal recognition to their gender identity or otherwise., The appropriate Government under the Mental Healthcare Act must formulate modules covering the mental health of queer persons in their programmes under Section 29(1). Programmes to reduce suicides and attempted suicides, envisaged by Section 29(2), must include provisions which tackle queer identity., The following directions are issued to the police machinery: there shall be no harassment of queer couples by summoning them to the police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation; they shall not force queer persons to return to their natal families if they do not wish to return to them; when a police complaint is filed by queer persons alleging that their family is restraining their freedom of movement, they shall, on verifying the genuineness of the complaint, ensure that their freedom is not curtailed; when a police complaint is filed apprehending violence from the family because the complainant is queer or is in a queer relationship, they shall, on verifying the genuineness of the complaint, ensure due protection; and before registering an FIR against a queer couple or one of the parties in a queer relationship (where the FIR is sought to be registered in relation to their relationship), they shall conduct a preliminary investigation in terms of Lalita Kumari v. Government of Uttar Pradesh to ensure that the complaint discloses a cognizable offence. The police must first determine if the person is an adult. If the person is an adult and is in a consensual relationship with another person of the same or different gender or has left their natal home of their own volition, the police shall close the complaint after recording a statement to that effect., In view of the discussion above, the following are our conclusions: the Supreme Court of India is vested with the authority to hear this case. Under Article 32, the Supreme Court of India has the power to issue directions, orders, or writs for the enforcement of the rights in Part III of the Constitution; queerness is a natural phenomenon known to India since ancient times and is not urban or elite; there is no universal conception of the institution of marriage, nor is it static. Under Articles 245 and 246 of the Constitution, read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage; marriage has attained significance as a legal institution largely because of regulation by the state. By recognizing a relationship in the form of marriage, the state grants material benefits exclusive to marriage; the State has an interest in regulating the intimate zone to democratize personal relationships; the issue of whether the Constitution recognizes the right to marry did not arise before the Supreme Court of India in Justice K.S. Puttaswamy (9J), Shafin Jahan, and Shakti Vahini; the Constitution does not expressly recognize a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty; the Supreme Court of India cannot either strike down the constitutional validity of the Special Marriage Act or read words into the Special Marriage Act because of its institutional limitations. The Supreme Court of India cannot read words into the provisions of the Special Marriage Act and provisions of other allied laws such as the Indian Succession Act and the Hindu Succession Act because that would amount to judicial legislation. The Court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain; the freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution. The failure of the State to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The State has an obligation to recognise such unions and grant them benefit under law; in Article 15(1), the word \sex\ must be read to include sexual orientation, not only because of the causal relationship between homophobia and sexism but also because the word \sex\ is used as a marker of identity which cannot be read independent of the social and historical context; the right to enter into a union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom is available to all persons regardless of gender identity or sexual orientation; the decisions in Navtej Singh Johar v. Union of India and Justice K.S. Puttaswamy (9J) recognize the right of queer couples to exercise the choice to enter into a union. This relationship is protected from external threat. Discrimination on the basis of sexual orientation will violate Article 15; transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage; intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage; the State must enable the LGBTQ community to exercise its rights under the Constitution. Queer persons have the right to freedom from coercion from their natal families, agencies of the State including the police, and other persons; unmarried couples (including queer couples) can jointly adopt a child. Regulation 5(3) of the Adoption Regulations is ultra vires the Juvenile Justice (Care and Protection of Children) Act, Articles 14 and 15. Regulation 5(3) is read down to exclude the word \marital\. The reference to a couple in Regulation 5 includes both married and unmarried couples as well as queer couples. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried couples who seek to jointly adopt a child. However, while framing regulations, the State may impose conditions which will subserve the best interest and welfare of the child; the CARA Circular disproportionately impacts the queer community and is violative of Article 15; the Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law; we record the assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions., The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community. The Committee shall, before finalising its decisions, conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups, and with the governments of the States and Union Territories. In terms of the exposition in this judgment, the Committee shall consider the following: enabling partners in a queer relationship to be treated as part of the same family for the purposes of a ration card and to have the facility of a joint bank account with the option to name the partner as a nominee in case of death; in terms of the decision in Common Cause v. Union of India, as modified by Common Cause v. Union of India, medical practitioners have a duty to consult family or next of kin or next friend in the event patients who are terminally ill have not executed an Advance Directive, and parties in a union may be considered family for this purpose; jail visitation rights and the right to access the body of the deceased partner and arrange the last rites; legal consequences such as succession rights, maintenance, financial benefits under the Income Tax Act, 1961, rights flowing from employment such as gratuity, family pension and insurance. The report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories., The petitions in these proceedings are disposed of in terms of this judgment. Pending applications, if any, are disposed of. [Dr Dhananjaya Y. Chandrachud] New Delhi; October 17, 2023., This case presents a new path and a new journey in providing legal recognition to non‑heterosexual relationships. I have had the benefit of the exhaustive and erudite judgment of the Honorable Chief Justice Dr. D.Y. Chandrachud, which enumerates the prevalence of these relationships in history, the constitutional recognition of the right to form unions (in other words civil unions), and the necessity of laying down guidelines to protect non‑heterosexual unions. In a way, this is a step forward from the decriminalisation of private consensual sexual activities by the LGBTQ+ community in Navtej Singh Johar & Ors. v. Union of India., The judgment penned down by the Honorable Chief Justice considers all aspects of the challenge. However, the subject matter itself persuades me to pen down a few words while broadly agreeing with his judgment. Historical prevalence of non‑heterosexual unions: In their submissions, the respondents raised doubts about the social acceptability of non‑heterosexual relationships. Before we address the same, it is no longer res integra that the duty of a constitutional court is to uphold the rights enshrined in the Constitution and not be swayed by majoritarian tendencies or popular perceptions. The Supreme Court of India has always been guided by constitutional morality and not by social morality., A pluralistic social fabric has been an integral part of Indian culture and the cornerstone of our constitutional democracy. Non‑heterosexual unions are well‑known to ancient Indian civilization as attested by various texts, practices, and depictions of art. These markers of discourse reflect that such unions are an inevitable presence across human experience. Hindu deities were multidimensional and multifaceted and could appear in different forms. One of the earliest illustrations is from the Rig Veda itself. Agni, one of the most important deities, has been repeatedly described as the child of two births (dvijanman), child of two mothers (dvimatri), and occasionally, child of three mothers (the three worlds)., In Somdatta's Kathasaritsagara, same‑sex love is justified in the context of rebirth. Somaprabha falls in love with Princess Kalingasena and claims that she loved her in her previous birth as well. Hindu mythology is replete with several such examples. The significant aspect is that same‑sex unions were recognised in antiquity, not simply as unions that facilitate sexual activity, but as relationships that foster love, emotional support, and mutual care., Even in the Sufi tradition, devotion is often constructed around the idea of love as expressed through music and poetry. In several instances, the human relationship with the divine was expressed by mystics through the metaphor of same‑sex love. Love across genders is also reflected in the Rekhti tradition of Lucknow, which is centred around the practice of male poets writing in a female voice and is characterised by its homoeroticism. Significantly, the depictions of same‑sex relationships are charged with affects such as love, friendship, and companionship., Marriage as an institution developed historically and served various social functions. It was only later in its long history that it came to be legally recognized and codified. However, these laws regulated only one type of socio‑historical union, i.e., the heterosexual union. It would thus be misconceived to claim that non‑heterosexual unions are only a facet of the modern social milieu. The objective of penning down this section is to provide perspective on the existence of non‑heterosexual unions, despite continued efforts towards their erasure by the heteronormative majority., Non‑heterosexual unions are entitled to protection under our constitutional schema. In Maqbool Fida Husain, I observed: Our Constitution, by way of Article 19(1), which provides for freedom of thought and expression, underpins a free and harmonious society. It helps to cultivate the virtue of tolerance. It is said that the freedom of speech is the matrix, the indispensable condition of nearly every other form of freedom. It is the wellspring of civilization and without it liberty of thought would shrivel., The judgment of the Honorable Chief Justice notes that the right to form unions is a feature of Articles 19 and 21 of the Constitution. Therefore, the principle of equality enumerated under Articles 14 and 15 demands that this right be available to all, regardless of sexual orientation and gender. Having recognized this right, the Supreme Court of India has taken on board the statement of the Learned Solicitor General to constitute a Committee to set out the scope of benefits available to such unions. I agree with the Honorable Chief Justice., The petitioners' submissions demand that the Special Marriage Act, 1872 be tested on the touchstone of Part III of the Constitution, i.e., whether it is discriminatory on the basis of sex and thus violative of Articles 14 and 15 of the Constitution. It is now settled law that Article 14 contemplates a two‑prong test: whether the classification made by the Special Marriage Act is based on intelligible differentia; and whether the classification has a reasonable nexus to the objective sought to be achieved by the State., The first prong, intelligible differentia, implies that the differentia should be clear and not vague. Section 4 of the Special Marriage Act is clear in that it contemplates a marriage between a male who has completed the age of twenty‑one years and a female at the age of eighteen years. In defining the degrees of prohibited relationships, Section 2(b) of the Special Marriage Act exclusively applies to a relationship between a man and a woman. Thus, by explicitly referring to marriage in heterosexual relationships, the Special Marriage Act by implication creates two distinct and intelligible classes: heterosexual partners who are eligible to marry and non‑heterosexual partners who are ineligible., Under the second prong, the Court examines whether the classification is in pursuit of a State objective. The Special Marriage Act's Statement of Objects and Reasons assists in determining the objective. It states that the Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any person in India and by all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnisation of their marriage, but certain formalities are prescribed before the marriage can be registered by the Marriage Officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnising and registering marriages between citizens of India in a foreign country., From the above, we see that the Special Marriage Act postulates a special form of marriage available to any person in India irrespective of faith. Therefore, the Special Marriage Act provides a secular framework for solemnisation and registration of marriage. I respectfully disagree with Justice Ravindra Bhat that the sole intention of the Special Marriage Act was to enable marriage of heterosexual couples exclusively. To my mind, the stated objective of the Special Marriage Act was not to regulate marriages on the basis of sexual orientation. This cannot be so as it would amount to conflating the differentia with the object of the statute. Although substantive provisions of the Special Marriage Act confer benefits only on heterosexual relationships, this does not automatically reflect the object of the statute. As we are all aware, we often act in ways that do not necessarily correspond to our intent. Therefore, we cannot look at singular provisions to determine the substantive intent of the statute. Doing so would be missing the wood for the trees., If the intent of the Special Marriage Act is to facilitate inter‑faith marriages, then there would be no rational nexus with the classification it makes, i.e., excluding non‑heterosexual relationships., In any event, regulating only heterosexual marriages would not be a legitimate State objective. It is settled law that the Court can also examine the normative legitimacy and importance of the State objective, more so in a case such as this where sex (and thereby sexual orientation) is an ex‑facie protected category under Article 15(1) of the Constitution. An objective to exclude non‑heterosexual relationships would be unconstitutional, especially after the Supreme Court of India in Navtej has elaborately proscribed discrimination on the basis of sexual orientation. Therefore, the Special Marriage Act is violative of Article 14., However, I recognize that there are multifarious interpretive difficulties in reading down the Special Marriage Act to include marriages between non‑heterosexual relationships. These have been enumerated in significant detail in the opinions of both the Honorable Chief Justice and Honorable Justice Bhat. I also agree that the entitlements devolving from marriage are spread out across a proverbial spider's web of legislations and regulations. As rightly pointed out by the Learned Solicitor General, tinkering with the scope of marriage under the Special Marriage Act can have a cascading effect across these disparate laws., The presence of this web of statutes shows that discrimination under the Special Marriage Act is but one example of a larger, deeper form of social discrimination against non‑heterosexual people that is pervasive and structural in nature. Ordinarily, such an intensive form of discrimination should require keener and more intensive judicial scrutiny. However, due to limited institutional capacity, the Supreme Court of India does not possess an adequate form of remedy to address such a violation. As pointed out in the judgment of the Honorable Chief Justice, substantially reading into the statute is beyond the powers of judicial review and would be under the legislative domain. It would also not be prudent to suspend or strike down the Special Marriage Act, given that it is beneficial legislation and is regularly and routinely used by heterosexual partners desirous of getting married. For this reason, this particular methodology of recognizing the right of non‑heterosexual partners to enter into a civil union, as opposed to striking down provisions of the Special Marriage Act, ought to be considered as necessarily exceptional in nature. It should not restrict the Courts while assessing such deep‑seated forms of discrimination in the future., Non‑heterosexual unions and heterosexual unions or marriages ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefits. The only deficiency at present is the absence of a suitable regulatory framework for such unions. The Supreme Court of India in Navtej noted that history owes an apology to the members of this community and their families for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. I believe that this moment presents an opportunity of reckoning with this historical injustice and casts a collective duty upon all constitutional institutions to take affirmative steps to remedy the discrimination., Thus, the next step in due course would be to create an edifice of governance that would give meaningful realisation to the right to enter into a union, whether termed as marriage or a union. As noted above, the benefits pertaining to marriage are spread out across several incidental legislations and regulations. These statutes presently do not explicitly extend to civil unions. However, now that we have recognised the right to enter into civil unions, such statutes must be read in a manner to give effect to this right, together with the principle of equality and non‑discrimination under Articles 14 and 15. In other words, statutory interpretation must be in consonance with constitutional principles enumerated by the Supreme Court of India. This should not detract from the Committee's task of ironing out the nitty‑gritty of the entitlements of civil unions., This exercise is necessary to foster greater coherence within the legal system as a whole, both inter se statutes and between statutes and the Constitution. Reading statutes in this manner will facilitate interconnectedness by allowing constitutional values to link statutes within the larger legal system. Constitutional values emanate from a living document and thus are constantly evolving. Applying constitutional values to interpret statutes helps update statutes over time to reflect changes since the statutes' enactment. Ordinarily, constitutional principles come in contact with statutes when the validity of such statutes is being tested. However, constitutional values should play a more consistent role, which can be through the everyday task of statutory interpretation. This interpretive technique has gained currency across jurisdictions. In the famous Lth case, the Federal Constitutional Court of Germany recognized that the constitutional right of freedom of expression as enumerated under the German Basic Law also radiates into the statutory law of defamation. The Court noted that: \But far from being a value‑free system the Constitution erects an objective system of values in its section on basic rights, and thus expresses and reinforces the validity of the basic rights. This system of values, centring on the freedom of the human being to develop in society, must apply as a constitutional axiom throughout the whole legal system: it must direct and inform legislation, administration, and judicial decision.\ The Constitution of South Africa has an explicit provision which directs that the interpretation of statutory law shall be in due regard to the spirit, purport and objects of the chapter on fundamental rights. Section 35(3) of the Constitution of the Republic of South Africa provides that the common law is not to be trapped within the limitations of its past. It needs not to be interpreted in conditions of social and constitutional ossification.
id_366	14	It needs to be revisited and revitalized with the spirit of the constitutional values defined in Chapter 3 of the Constitution and with full regard to the purport and objects of that Chapter. Although no such provision exists in the Indian Constitution, our Courts are no stranger to interpreting statutory laws through fundamental rights. In Central Inland Water Transport Corporation v Brojo Nath Ganguly, the Supreme Court of India was concerned with the interpretation of public policy under Section 23 of the Indian Contract Act, 1872. In this context, the Supreme Court of India observed: It is thus clear that the principles governing public policy must be capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution., This technique of reading in Constitutional values should be used harmoniously with other canons of statutory interpretation. In this context, legislations that confer benefits on the basis of marriage should be construed to include civil unions as well, where applicable., I am wholeheartedly in agreement with the opinion of the Honorable Chief Justice that there is a need for a separate anti-discrimination law which inter alia prohibits discrimination on the basis of sexual orientation. Presently, there are several laws that have an anti-discrimination aspect to them. However, they are fragmented and may fail to capture the multitudinous forms of discrimination. Another compelling reason for a law that places a horizontal duty of anti-discrimination is provided by the spirit of Article 15, which prohibits discrimination by both the State and private actors. Presently, although the Supreme Court of India assumes its role as the sentinel on the qui vive, the only method to enforce this constitutional right under Article 15 would be through its writ jurisdiction. There are significant challenges for marginalized communities to access this remedy. Therefore, the proliferation of remedies through an anti-discrimination statute can be a fitting solution. Such legislation would also be in furtherance of the positive duty of the State to secure social order and to promote justice and social welfare under Article 38 of the Constitution., My suggestions for an anti-discrimination law are as follows. First, such a law should recognize discrimination in an intersectional manner. That is to say, in assessing any instance of discrimination, the Supreme Court of India cannot confine itself to a singular form of discrimination. Instead, discrimination must be looked at as a confluence of factors as identities and individual instances of oppression that intersect and create a distinct form of disadvantage. Discrimination laws can only be effective if they address the types of inequality that have developed in the given society. This principle has already been recognized by this Court in Navtej Singh Johar v. Union of India. Second, the duties under an anti-discrimination law can be proportionately distributed between different actors depending on factors such as the nature of functions discharged, their control over access to basic resources, and the impact on their negative liberty. Third, an anti-discrimination statute must also enumerate methods to redress existing discrimination and bridge the advantage gap. This could be through policies that distribute benefits to disadvantaged groups., The principle of equality mandates that non-heterosexual unions are not excluded from the mainstream socio-political framework. However, the next step would be to examine the framework itself, which cannot be said to be neutral. On the contrary, it is inherently value-laden. One particularly pernicious value is patriarchy, which manifests in various oppressive ways. Gendered stereotypes and sex-based violence are lived realities of many. This is something both society and law recognize., I believe that the legal recognition of non-heterosexual unions can challenge culturally ordained gender roles even in heterosexual relationships. For a long period of time, marriage has been viewed in gendered terms. That is to say, one’s status as husband or wife determines their duties and obligations towards each other, their family, and society. Marriage enforces and reinforces the linkage of gender with power by husband/wife categories, which are synonymous with social power imbalances between men and women. This is notwithstanding the progress in awareness of these issues. Non-heterosexual unions can make an important contribution towards dismantling this imbalance while emphasizing alternative norms. As Eskridge puts it: In a man‑man marriage where tasks are divided up along traditional lines, a man will be doing the accustomed female role of keeping house. It is this symbolism that represents the deeper challenge to traditional gender roles. The symbolism can be expressed in the argot of normalization. Once female‑female and male‑male couples can marry, the wife‑housekeeper/husband‑breadwinner model for the family would immediately become less normal, and perhaps even abnormal over time. The wife as someone who derives independent satisfaction from her job outside the home would immediately become a little bit more normal., In a non‑heterosexual union, duties and obligations are not primarily dictated by culturally ordained gender norms. In other words, both partners are not limited by extant gender norms to shape their relationship, including the division of labour. For instance, studies have found that partners in non‑heterosexual relationships share unpaid labour more equally than those in heterosexual relationships. This is not to suggest that other imbalances of power do not exist within non‑heterosexual unions. Nevertheless, non‑heterosexual unions are not limited by the legally and socially sanctioned gendered power dynamic that can be present in heterosexual unions., Legal recognition aids social acceptance, which in turn increases queer participation in public spaces. Through the medium of legal recognition, queer persons will have a greater opportunity to be seen and heard in ways not previously possible. Queer expression will help facilitate an expansive social dialogue, cutting across communities and generations. This dialogue will help us reimagine all our relationships in a manner that emphasizes values such as mutual respect, companionship, and empathy., Conclusion. Is this the end where we have arrived? The answer must be an emphatic no. Legal recognition of non‑heterosexual unions represents a step forward towards marriage equality. At the same time, marriage is not an end in itself. Our Constitution contemplates a holistic understanding of equality, which applies to all spheres of life. The practice of equality necessitates acceptance and protection of individual choices. The capacity of non‑heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy, so long as it does not infringe on the rights of others. After all, it is my life., Sanjay Kishan Kaul, New Delhi, October 17, 2023., At the centre of the dispute lies the definition and the content of two willing individuals’ right to marry. On the one hand the petitioners assert that marriage is an evolving social institution, capable of embracing the union of two willing non‑heterosexual, queer or LGBTQ+ individuals and necessitating state recognition; on the other, the respondents assert that the institution of marriage rests on certain constant and unchanging premises, the most prominent of which is that it is a heterosexual union. The task of the Supreme Court of India lies in determining how the Constitution speaks on the issue., Having had the benefit of reading the draft and revised opinions circulated by the learned Chief Justice, Justice Dhananjaya Y. Chandrachud, we find it necessary to pen our reasoning and conclusions in this separate judgment. The learned Chief Justice has recorded in detail the submissions made by counsel, and claims made; they consequently do not require reiteration. Similarly, the sections addressing the Union Government’s preliminary objections i.e., the discussion on the court’s authority to hear the case, and that queerness is a natural phenomenon that is neither urban nor elite, are parts we have no hesitation in agreeing with. However, we do not agree with the conclusions arrived at by the learned Chief Justice and the directions issued. We do agree with certain premises and conclusions that he has recorded: that there exists no fundamental right to marry under the Constitution; that the Special Marriage Act, 1956 is neither unconstitutional nor can it be interpreted in such a manner so as to enable marriage between queer persons; and that transgender persons in heterosexual relationships have the right to solemnise marriage under existing legal frameworks. We have briefly highlighted our main points of agreement, and reasoned in more detail those aspects with which, respectfully, we cannot persuade ourselves to concur. We had the benefit of perusing the concurring opinion of Justice Narasimha. We endorse those observations and conclusions fully; the reasoning and conclusions shall be read as supplementing that of the present judgment., The common ground on which the batch of petitions claim relief is that LGBTQ+ persons are entitled to solemnise and register their marriage; in other words, they claim a right to legal recognition of their unions within the marriage fold. The petitioners rely on fundamental rights to equality and non‑discrimination, dignity and autonomy, and expression and association, and specifically focus on Section 4(c) of the Special Marriage Act as well as the First and Second Schedules thereof, to state that particular references to husband or wife in its provisions are to be read down, and a neutral expression needs to be substituted instead. A few petitioners also claim that Section 4(c) and Section 17 of the Foreign Marriage Act, 1969 need to be similarly read down. Some of the prayers also relate to the right of such couples to adopt under existing laws in India. Some of the prayers specifically challenged Chapter II of the Special Marriage Act relating to notice and objections procedure prescribed. However, during the course of hearing, the Supreme Court of India indicated that this was not a question of law that necessitated a five‑judge bench ruling, and hence this issue was to be left for consideration by a numerically smaller bench., Marriage, as a social institution, predates all rights, forms of political thought and laws. The institution of family has no known origin in the sense that there has been no stage of human existence in which family was absent leading to another time in which it emerged. Marriage, however, has been regarded for the longest time as a relationship of man to woman which is recognized by custom, and thereafter law; it involves certain rights and duties in the case of both persons entering the union. It is considered to be one of the most important relationships, as it affects not only the individuals’ happiness and well‑being but also that of others. It has long been regarded as the reason for society’s continuance on the one hand, and its building block on the other. What is marriage and the conceptualisation of its role in society has undergone change over time; it has engaged the attention of philosophers, from Plato to Hegel, Kant and John Stuart Mill and of religious leaders, like St. Augustine., Different traditions view marriage as sacraments and indissoluble unions (Hindus and Catholic Christians); Islam regards marriage as both contractual and sacred; Parsis regard it as both a sacrament and contractual. Most, if not all, place importance on procreation, creation of family, co‑habitation, shared values as important markers; at the same time, these traditions also recognise, in varying degrees, importance of companionship, spiritual union, friendship and togetherness of the spouses., The respondents are right, in one sense, in underlining that all conceptions of what constitutes marriage, all traditions and societies, have historically understood marriage as between heterosexual couples. The contexts of culture, social understanding of what constitutes marriage, in every social order are undoubtedly very important. At the same time, for the purpose of determining the claims in these petitions, it is also necessary to mark the progression of what were deemed constitutive and essential constituents, and essential boundaries within which marriages were accepted., Marriages have not always been dictated by voluntary choice. In medieval European societies, when a girl was physically able to consummate marriage, she was eligible for matrimony. Among the nobility and landed gentry, the principal consideration for marriage was exchange of property in the form of dowry. Thus, it was not uncommon that among the upper classes marriages were loveless and unhappy. The sole reason for marriage was touted to be procreation, which the church dictated; thus, consummation of marriage and physical sexual relations were considered the most important features of every marriage, since this meant the establishment of family. Among Hindus, barriers such as ban on sagotra and sapinda marriages, and impermissibility of non‑endogamous marriages, were widely prevalent for a long time. Although among Muslims marriage is both sacramental and contractual, and requires exercise of free will, it is premised on the agreement of mehar, or the amount the groom would offer, for the bride. Muslims are permitted to marry others of the same faith, or from the People of the Book (known as Kitabiyas), such as Jews, Sabians and Christians. No marriage with polytheists is permitted. Similarly, widow remarriage amongst Hindus was prohibited. Likewise, injunctions against inter‑caste marriages were widely prevalent. Child marriages were widely prevalent too. Inter‑religious marriages were impossible. In the United States, various laws had, in the past, prohibited interracial marriages. Arranged marriages were very common throughout the world until the 18th century., It is therefore evident that for long periods, in many societies, the choice of a matrimonial partner was not free; it was bounded by social constraints. Much of the time, marriage was seen as an institution meant for procreation and sexual union of the spouses. In most societies marriage had cast roles for the spouses; they were fairly inflexible, with men controlling most decisions, and women placed in subordinate positions, with little or no voice, and, for the longest time, no legal authority, autonomy or agency. For millennia, custom, tradition and law subordinated wives to husbands. Notions of equality of partners or their roles were uncommon, if not totally unheard of. All these underwent radical change., The greater part of history shows that choice of a spouse, based on love or choice, played almost no role at all. The Enlightenment and Western thinkers of the eighteenth century established that pursuit of happiness was important to life. They advocated marrying for love, instead of status, or wealth or other considerations. The Industrial Revolution gave impetus to this thought. Marriages were solemnised and celebrated with increasing frequency in Western cultures, based on choice, voluntary consent, and without parental approval. This movement increased tremendously as women’s‑rights movement expanded and gained impetus in the nineteenth and twentieth centuries; wives started being regarded as their husbands’ equals, not their property. Couples were also enabled to choose whether to have, and if so, how many children to have. If they were unhappy with each other, they could divorce – a choice exercised by a large number of couples. Marriage became primarily a personal contract between two equals seeking love, stability, and happiness. Therefore, although social mores prevailed in relation to marriage, traditions and legal regimes were not static; the changes that society underwent or the forces that brought change also carried winds that breathed new content, new contexts and new values into the institution of marriage., Laws progress stresses individuals’ rights for equality. The form of marriage, or the legally prescribed procedures assume a secondary role – they are matters of belief and practice. They cannot be regarded as the essential content of marriage. Tying thali is necessary in South India among many Hindu communities; and in some parts the exchange of rings, garlands and some rituals is necessary in North India. Many Hindu marriage customs and traditions insist on the saptapadi; amongst Muslims, the nikah ceremony, witnessed by invitees, and other customary rituals and practices, is generally followed; Christian customs emphasize solemnisation by the couples taking marriage vows. The rich diversity of this country and its pluralism is reflected in customary practices surrounding marriage solemnisation, all if not most of which involve the couple, the members of their family, and the larger community. Ritualistic celebration of marriage is considered by some as essential, while many in other sections may deem that the factum of marriage sufficient. For relationships that did not have customary practice dating back in history, the State enacted law much like the petitioners seek., Therefore, legislations governing inter‑caste and inter‑faith marriages, and adoption, are two important social relations relating to the family, through which secularism finds its base for an egalitarian social order under the Constitution. The enactment of laws to facilitate this aspect is testimony of the right of individuals to personal choice and autonomy. For instance, enactment of the Hindu Marriage (Removal of Disabilities) Act, 1946 enabled persons from the same gotra or pravara to marry. Likewise, the bar to Hindu widows remarriage was removed by enacting the Hindu Widows Remarriage Act, 1856. Inter‑caste and inter‑faith marriages became a possibility under the Special Marriage Act after 1954., The legal dimension of marriage, in the United States the jurisprudence of which the petitioners relied on, is markedly different from the nature of marriage in India, and its evolution. This contextual difference is of great relevance when considering a constitutional question of this kind. Marriage in countries like the United States was earlier a sacramental institution that flowed from the Church and its divine authority. However, in modern times, it flows from the State, which created a licence regime for marriage. The result is that marriages may be performed and celebrated with religious traditions or rituals that have great meaning personally for the individuals but the legality of the marriage is solely dependent on a validly obtained licence. This regime has since been extended to queer couples as well in the United States. The law relating to marriage in India, however, has had a different trajectory. A deeply religious affair, it gained its legitimacy and legal status from personal law and customs that govern this aspect of life for members belonging to all faiths. The matrimonial laws that have been enacted were a result of the codification project in the 19th and 20th centuries, which expressly recognise these social practices, while continuing to offer space to unwritten customary practices as well, barring aspects like marriageable age, etc., which are regulated by law. As mentioned, the Special Marriage Act is the only avenue for a form of secular/non‑religious civil marriage which too still ties into personal law for succession and other aspects. The Indian context is elaborated in the following Part II., State interest in regulating social practices through legislation. Before undertaking a study on whether there is a fundamental right to marry, and an obligation on the State to create such an avenue, it is necessary to traverse the brief history of state intervention in social practices including in relation to marriage. These laws were enacted in relation to different subject areas. However, a pattern certainly emerges on the limited scope of interference., The social practices resulting in stigma and exclusion of large sections of society impelled the Constitution framers to frame specific provisions like Article 15(1) and (2), Articles 17, 23 and 24, which was left to Parliament to flesh out through specific legislation. This resulted in statutes such as the Protection of Civil Rights Act, 1955; Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; Bonded Labour System (Abolition) Act, 1976; Immoral Traffic (Prevention) Act, 1956; the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013; and their respective amendments. The laws removing barriers which prevented large sections of society from entering into temples and places of public worship is another example., In a somewhat similar vein, legislative activity aimed at bringing about gender parity through prohibiting prevailing practices that further inequality and sometimes even criminalising certain customs resulted in legislations such as the Equal Remuneration Act, 1976 (which guaranteed equal pay for equal work regardless of the sex of the worker), the Dowry Prohibition Act, 1961 as amended subsequently, introduction of provisions in criminal law which gave teeth to such provisions – Sections 498A and 304B of the Indian Penal Code, and Sections 113A and 113B of the Evidence Act, 1872 which enabled courts to raise presumptions in the trial of such offences., Other practices aimed at realisation of social goals and furthering the mandate of Article 15(3) in respect of children such as the right to free universal education under Article 21A of the Constitution, and the Right to Free Education Act, 2009; the Child Labour (Prohibition and Regulation) Act, 1986; Protection of Children from Sexual Offences Act, 2012; the Juvenile Justice Act, 2016, etc. In all these, Parliament or the concerned legislatures donned the role of reformers, and furthered the express provisions of the Constitution, enjoining State action, in furtherance of Articles 15(2), 15(3), 17, 23 and 24., Marriage has historically been a union solemnised as per customs, or personal law tracing its origin to religious texts. Legislative activity in the personal law field has been largely, though not wholly, to codify prevailing customs and traditions, and regulate them only where needed. The instances that stand out are the enactment of the Indian Succession Act, 1925; Hindu Women’s Right to Property Act, 1937; Hindu Marriage Act, 1955; the Hindu Adoptions and Maintenance Act, 1956; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; the Indian Divorce Act, 1869 (as amended in 2001); the Muslim Personal Law (Shariat) Application Act, 1937; and the Anand Marriage Act, 1909 (as amended). These laws mostly codified traditions and customs which existed, and to an extent, regulated marriages and succession laws. These laws also sought to introduce reforms: for the first time, monogamy was enacted as a norm applicable to all Hindus; likewise, the option of divorce was enacted, together with grounds on which other remedies such as judicial separation could be sought. Further, the minimum age of marriage was also enacted, through provisions in various personal laws, and enforced through the Prohibition of Child Marriage Act, 2006 (which repealed the pre‑existing Child Marriage Restraint Act, 1929). This law applies to all sections of society., Existing conditions of women, especially in respect of issues such as maintenance, were considered inadequate even before the Constitution was brought into force. The earliest reform introduced was through the Bengal Sati Regulation, 1829 (by the colonial rulers). This was later followed by the Hindu Widow Remarriage Act, 1856 which enabled remarriage of Hindu widows. These enactments pre‑date the Constitution, and can be seen as reforms meant to outlaw abhorrent practices viewed as evil, and needing prohibition, to protect women’s lives; in the case of widow remarriage, it was to enable child and young widows an opportunity to lead lives. Given the diversity of Hindu traditions and the differing approaches in various schools of law, which prevailed in different parts of the country, it was considered necessary to enact the Hindu Women’s Right to Property Act, 1937 (later with the enactment of the Hindu Succession Act, 1956, some rights were expanded through its provisions). For a long time, daughters were treated unequally in regard to succession to the estate of their deceased father; this changed with the enactment of the Hindu Succession Amendment Act, 2005, and the substitution of Section 6, whereby daughters (who were hitherto excluded from succession to any coparcenary properties) became entitled to claim the share that a son was entitled to, in the case of death of a coparcener in relation to ancestral property., The right to maintenance (pendente lite, as well as alimony) was given statutory force under the Hindu Marriage Act, 1955 as well as the Hindu Maintenance and Guardianship Act, 1956, for Hindus. All married women and children of their marriage, regardless of their religious or social backgrounds, were enabled to claim maintenance, by virtue of Section 488 of the Criminal Procedure Code, 1898. This provision was re‑enacted and progressively amended through Section 125 of the Code of Criminal Procedure, 1973. The Supreme Court of India, in its five‑judge decision in Mohd. Ahmad Khan v. Shah Bano Begum upheld the right of Muslim women, including divorced Muslim women, to claim maintenance. However, soon after that decision, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the ruling in Shah Bano and restricted the right of Muslim divorcés to alimony from their former husbands for only 90 days after the divorce (the period of iddat in Islamic law). The restriction imposed was however interpreted narrowly, and this Court, through a Constitution Bench, in Danial Latifi v. Union of India held that nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time., The Age of Consent Act in 1891 raised the age of marriage from 10 to 12 years.
id_366	15	The Child Marriage Restraint Act of 1929 prescribed the minimum age of marriage for females at fourteen years and for males at eighteen years. The Child Marriage Restraint Act of 1929, also known as the Sarda Act, was enacted as a result of prolonged pressure from social reform organisations and concerned people who fought against the negative repercussions of child marriage. The age limitations were later raised to eighteen and twenty‑one years under the Prohibition of Child Marriage Act, 2006. The practice of marrying off children at a young age, which prevailed before these enactments, was interdicted by legislation., Even while exercising personal choice in marriage, such choices are regulated by law, including the prohibition of marriage between persons related by blood (consanguineous marriages). Other restrictions include the requirement to be of sound mind to give valid consent and the prohibition of marriage of persons who are unfit for marriage or for the procreation of children. If a spouse is incurably of unsound mind, the other spouse can secure divorce. Bigamy among Hindus was abolished by the enactment of the Hindu Marriage Act in 1955. Reform has been the underlying theme, impelling the state to intervene. The legislative trajectory and the debates that preceded enactment of measures such as monogamy and divorce showed a division of opinion. The first President, Rajendra Prasad, expressed strong sentiments against adopting foreign concepts that were opposed to Hindu society, while women in public life supported the need to empower women., It can thus be seen that two kinds of legislation have regulated marriage. The first, such as the Special Marriage Act, Hindu Marriage Act, Hindu Disabilities Removal Act, and Hindu Widows Remarriage Act, removed barriers and enabled the exercise of meaningful choice, specifically for women. The second kind of legislation enacted restrictive regulations to further an orderly society and protect women: prohibition of bigamy; definition of minimum age for marriage; prohibition of child marriage; and definition of prohibited degrees of relationship under various statutes, including Section 3(g) of the Hindu Marriage Act, 1955, Section 3(1)(a) of the Parsi Marriage and Divorce Act, 1936, Section 19 of the Indian Divorce Act, 1869, Section 88 of the Indian Christian Marriages Act, 1872, and the provisions relating to consanguinity (qurabat) and affinity (mushaarat) in Muslim personal law., Some restrictions codified existing customs, such as prohibited degrees of relationship, rules against insanity, and provisions enabling declaration of nullity or divorce on the ground of impotence, while others were meant to further the interests of women and children and enable the exercise of choice. However, reform and codification did not cover the entire field. In the area of succession and inheritance, the Hindu Succession Act, 1956 enacts certain broad features but leaves untouched the rights of various communities and sections of Hindus to work out their rights in succession to joint family, Hindu Undivided Family and coparcenary property. This uncodified law, often based on customs and local traditions, is enforced not only in inheritance but also in taxation. The law also accommodates customs, for example Section 2(d) which states that persons other than Hindus—including Jews, Muslims and Christians who may be following Hindu customs—would continue to do so; Section 7 which spells out the ceremonies of Hindu marriage based on customary rites of either party; and Section 29(2) which accords primacy to customary divorce among Hindus. Neither the Hindu Marriage Act nor the Hindu Succession Act apply to members of Scheduled Tribe communities; the Hindu Adoptions and Maintenance Act applies to them in a nuanced manner., In the three‑judge bench decision of the Supreme Court of India in Revanasiddappa v. Mallikarjuna, the Court clarified that with the enactment of Section 16 of the Hindu Marriage Act, the legitimacy conferred upon children born of void or voidable marriages is limited to a share in their parents’ property; they cannot claim a right of their own or seek partition during the lifetime of their parents. The Court also held that they cannot claim any rights other than those expressly provided for, thereby upholding uncodified law and custom., Legislative action initiated at different points in time has been reformist or aimed at effecting certain fundamental rights. Practices and customs that resulted in the degradation or diminution of individuals and were inconsistent with democratic society were sought to be eliminated by these laws. When codification attempts resulted in residual discrimination, the courts stepped in to eliminate and enforce fundamental rights, as seen in Independent Thought v. Union of India and Shayara Bano v. Union of India., The only legislations that created social status or facilitated the status of individuals in private fields are the Special Marriage Act, 1954, the Protection of Women from Domestic Violence Act, 2005, and Section 41 of the Juvenile Justice (Care and Protection of Children) Act, which enables adoption among members of all faiths and any child, legitimate or illegitimate, whose parents are Hindus, Buddhists, Jains or Sikhs, or one parent is of such faith and the child is brought up as a member of that community. The provision enabling adoption was preceded by guidelines that facilitated inter‑country adoptions, initially pioneered in the judgment of the Supreme Court of India in Laxmi Kant Pandey v. Union of India. Executive instructions filled the vacuum to some extent, but the limitation that prevented adoption of children from different faiths persisted until it was overridden by the Juvenile Justice Act, 2016., The Protection of Women from Domestic Violence Act, 2005 was enacted for the purpose of more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family. For the first time, a legal status was given to unmarried couples, which enabled women subjected to domestic violence to claim the right to residence, apart from other remedies. The Constitution has thus impelled the removal of barriers based on social practice and gender stereotypes, and through Articles 14, 15 and 16, legislation and judicial intervention have overcome and, in some cases, eliminated such barriers., The role of the legislature has been to act as codifier, and in many instances, not to enact or codify existing customs or practices, but to intervene where necessary in furtherance of Article 14 and Article 15(3). Parliament has facilitated the creation of social status through the Special Marriage Act and enabled the institution of adoption, which was previously available only among certain communities. These legislative interventions reflect state interest in reforms or furthering the interests of given communities or persons. State interest also impelled regulation of the minimum age for marriage of girls and the definition of prohibited degrees of relationship as disqualifications to marriage. Marital offences such as desertion or cruelty are also grounds for seeking matrimonial remedies., III. Tracing the rights enjoyed by queer persons. A. The trinity – autonomous choice, dignity and non‑discrimination., i. Importance of personal choice under the Constitution. The journey of constitutional progression and the understanding of personal liberties, especially the right to life (Article 21) and equality (Article 14), has revealed multiple layers of prejudice, insensitivity and indifference in the social order regarding a person’s freedom to exercise volition and free will. For instance, a woman’s choice and bodily autonomy in exercising reproductive rights has been acknowledged as a fundamental right integral to the right to life in Suchita Srivastava & Ors. v. Chandigarh Administration, reiterated in Devika Biswas v. Union of India, X v. Principal Secretary, Health and Family Welfare Department, and Independent Thought., ii. A person’s autonomy to choose a spouse or life partner has been declared as integral to the fundamental right to live. In Asha Ranjan v. State of Bihar, the choice of a partner was held to be a legitimate constitutional right founded on individual choice, and the Court decried the concept of “class honour” or “group thinking” as a barrier to free choice. Similarly, In re (Gang‑Rape Ordered by Village Kangaroo Court in West Bengal) echoed that the state is duty‑bound to protect the fundamental right of freedom of choice in marriage. Shafin Jahan v. Asokan K.M. & Ors. brought home that expressing choice is in accord with the law and is an acceptance of individual identity., The nine‑judge decision in K.S. Puttaswamy v. Union of India, through Justice Chandrachud writing for himself and five other judges, explored the nuances of the right to privacy and observed that personal choices governing a way of life are intrinsic to privacy., The choice of a woman to seek employment was upheld in Anuj Garg v. Hotel Association of India, where gender and age barriers were held unconstitutional. The choice of an individual patient to exercise the legal right to euthanasia has been recognized in Common Cause (A Registered Society) v. Union of India. Traditional barriers to temple entry based on gender were challenged in Gian Devi v. Superintendent, Nari Niketan, Soni Gerry v. Gerry Douglas, Nanda Kumar v. State of Kerala, and Indian Young Lawyers Association & Ors. v. State of Kerala., ii. Dignity as a dimension of equality and all our liberties. The promise of the Preamble to the Constitution is of fraternity assuring power, conflicts, and oppression, denial of participation. Our founders realized that millennia‑old practices of marginalisation, oppression and exclusion produced humiliation and dehumanisation. The relation of self to other self, the dominant or powerful self to the oppressed self, ventures on the concept of equality. It thus tries to eliminate untouchability, sex and caste‑based discrimination, and ensure dignity., Dignity is understood to mean the intrinsic worth of a person or the inherent value of a human being which entitles one to respect. The crucial aspect of substantive dignity lies in the State’s role in providing basic conditions of life which enable individuals to fully realise the potential of intrinsic dignity by living a dignified life., In the Indian context, the idea of equality and dignity is to reach the constitutional commitment to be a republic based on democracy. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi, the Court said that the right to life includes the right to live with human dignity. Prem Shankar Shukla v. Delhi Administration voiced the same idea, that the Preamble sets the humane tone of the founding document and highlights justice, equality and the dignity of the individual. The Court held that Article 21 is the sanctuary of human values, prescribes fair procedure and forbids barbarities, punitive or procedural. In Jeeja Ghosh v. Union of India, the Court spoke about human dignity as a core value and that the right to life is given a purposeful meaning to include the right to live with dignity. The Court quoted Aharon Barak that human dignity has a central normative role and that as a constitutional value it unites human rights into one whole. In Kesavananda Bharati v. State of Kerala, the basic dignity of man does not depend upon the codification of fundamental rights nor is such codification a prerequisite for a dignified way of living., The Court in National Legal Services Authority v. Union of India (NALSA) underlined how dignity forms the basis of enjoyment of fundamental freedoms., The constitutional emphasis on dignity is not without a reason. Ambedkar and other framers sought to carve out of a socially repressive, hierarchical and unequal society a modern constitution reflecting the aspirations of a confident people in a vibrant democracy. To Ambedkar, political freedom meant the freedom to make choices with dignity, to break from historical suffering and humiliation. The drafting history of the equality code (Articles 14, 15, 16, 17 and 18) bears testimony to this aspect., Dignity has both an internal and external aspect. Internally, dignity and privacy are intrinsically twined. Externally, dignity is multidimensional: it is the right to be treated as a fellow human with due respect, equal worth, and the expectation to be accorded due respect. Denial of these has a disproportionate impact on the individual, diminishing self‑worth and moral worth. This is the vision of equality, social justice, welfare and dignity articulated by the Constitution., iii. Equality, non‑discrimination and non‑exclusion. The equality code – Articles 14, 15, 16, 17, 23 and 24 – is not a wooden equality before law and equal protection of law. It contains specific injunctions prohibiting the State from discriminating on grounds such as caste, race, sex, place of birth, religion, or any of them. The protected attribute of sex has been held to include sexual orientation and gender expression in NALSA and Navtej Johar v. Union of India., The rationale for enacting proscribed grounds under Article 15 or 16 is the awareness of Constitution makers that courts could use these markers to determine if reasonable classification is permissible. Hence, specific proscribed grounds were enacted as injunctions against State action. The provisions also aim to ensure that access to public resources cannot be barred, thereby righting historical wrongs such as denial of water, food and other basic resources to deprived sections., In the context of the present debate, the Supreme Court of India, in NALSA, took note of the Yogyakarta Principles which state that everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity, and to equality before the law and equal protection of the law. The declaration of law in Navtej Johar provided impetus for LGBTQ+ persons; consensual queer relationships are not criminalised and their right to live and choose sexual partners has been recognised., The principle of non‑discrimination was explained in Rajive Raturi v. Union of India, where it was held that non‑discrimination ensures that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation., The Constitution assures dignity and various fundamental rights guarantee a panoply of rights, including equality, non‑discrimination on enumerated grounds, freedom of speech, expression, association, right to travel, right to reside, right to trade, commerce and business, personal liberty, freedom to profess one’s religion, and other important rights. Various rights not expressly stated have been declared as facets of the right to life, such as livelihood, access to healthcare, right to shelter, and right to a clean environment., Sexual relations between persons of the same sex were outlawed by Section 377 of the Indian Penal Code, which characterised such acts as unnatural sex and prescribed punishment. This provision was read down by a Division Bench of the Delhi High Court in Naz Foundation v. State (NCT of Delhi), which de‑criminalised consensual same‑sex relations. However, the decision was overturned by the Supreme Court of India in Suresh Kumar Kushal v. Naz Foundation, re‑criminalising such conduct until the five‑judge bench decision in Navtej Johar., NALSA was a significant ruling regarding the rights of transgender persons. The Court held that discrimination on the ground of sexual orientation or gender identity impairs equality before law and equal protection of law and violates Article 14. The Court recognised that transgender persons have the same rights as other citizens, including the right to self‑determination of gender, which is intrinsic to Article 21. The decision paved the way for the Transgender Persons (Protection of Rights) Act, 2019, which aims to entrench the principle of non‑discrimination and entitles transgender persons to a range of statutory rights., The Court’s intervention in cases such as Shakti Vahini v. Union of India, Lata Singh v. State of Uttar Pradesh, Shafin Jahan, Laxmibai Chandragi v. State of Karnataka, Joseph Shine v. Union of India, Navtej Johar, Independent Thought, and K.S. Puttaswamy has been to protect citizens against threats of violence or barriers to the exercise of free choice. These decisions were based on the State’s duty to protect citizens and enable the exercise of individual choice in the face of external threats., C. Is there a fundamental right to marry?
id_366	16	Supreme Court of India has recognized that marriage is a social institution. As elaborated in Part I, marriage existed and exists historically and chronologically in all of the senses because people married before the rise of the state as a concept. Therefore, marriage as an institution is prior to the state, i.e., it precedes it. The status is still not one that is conferred by the state (unlike the license regime in the United States). This implies that the marriage structure exists regardless of the state, which the latter can utilise or accommodate, but cannot abolish as a concept. Under this view terms of marriage are set, to a large extent, independently of the state. Its source is external to the state. That source defines the boundaries of marriage. This implies that state power to regulate marriage does not sit easy with the idea of marriage as a fundamental right., In attempting to analyse the claim to a fundamental right to marry, there are primarily two competing claims about the nature of marriage: one being that the state should exercise more control over marriage to support and protect traditional purposes and perceptions, and the other, that each individual should have the right to define marriage for themselves and state involvement in marriage should be minimal. Sivasankaran v. Santhimeenal [2021] 6 SCC 169: The norms of a marriage and the varying degrees of legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms, and religious dictates. Functionally, marriages are seen as a site for the propagation of social and cultural capital as they help in identifying kinship ties, regulating sexual behaviour, and consolidating property and social prestige. Likewise, in Indra Sarma v. V.K.V. Sarma [(2013) 14 SCC 1019] Supreme Court of India said that the institutions of marriage and the family are important social institutions. The same decision also recognized the centrality of tradition and custom, while emphasizing that marriages in India take place either following the personal law of the religion to which a party belongs or following the provisions of the Special Marriage Act., If indeed there is a right to marry unless it is elevated to a right akin to Articles 17, 23, and 24, which apply to both state and non‑state agencies and actors, it cannot be operationalized. These provisions most emphatically create positive obligations; likewise Articles 15(3), 15(4) and 15(6), as well as Articles 16(4) and 16(6) highlight state interest in creating conditions to further the goal of non‑discrimination. Yet, previous decisions of Supreme Court of India have carefully held such provisions to enable the state, and in a sense oblige it to take measures, but ruled out court‑mandated policies and laws. In our considered opinion, this is not however a case where the court can make a departure from such rule and require the state to create social or legal status., What is being asked for by the petitioners is state intervention in enabling marriage between queer or non‑heterosexual couples. Civil marriage or recognition of any such relationship, with such status, cannot exist in the absence of statute. The demand, hence, is that of a right of access to a publicly created and administered institution. There is a paradox that the creation of the institution depends on state action, which is sought to be compelled through the agency of Supreme Court of India., Most of the precedents cited contain discussions on how the institution of marriage involves issues of basic importance. Many decisions, including Obergefell v. Hodges, recall tradition to underline that marriage is of utmost significance and that it underlines the importance of commitment of two individuals towards each other and that it is a foundational relationship of society. Traditions of marriage per se may not support the basis of recognition of marital relationship between non‑heterosexual couples. Many decisions by United States courts have underlined the rationale for declaring the right to marry a fundamental right as being essential to the orderly pursuit of happiness as it appears in their Declaration of Independence by free persons. This strand of reasoning is apparent from Loving v. Virginia to Obergefell., This is not sound, at least as applied to state licensing of marriage in the United States, which is what civil marriage is. The fundamental importance of marriage remains that it is based on personal preference and confers social status. Importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support. Some may consider education fundamentally important, others may consider access to the internet a fundamental right, and yet others may wish that access to essential medication is a fundamental right. All these cannot be enforceable rights which the courts can compel the state or governance institutions to provide. These cannot result in demand for creation of a social institution, and in turn creation of status, through a statute. This result – i.e., recognition – can be achieved only by enacted law., All decisions relied on by the petitioners – K.S. Puttaswamy, Navtej Johar, Shakti Vahini and Deepika Singh v. Central Administrative Tribunal – contain broad observations with respect to individuals’ choice of their partner as also a reference to non‑conventional relationships. Some broad observations are undoubtedly to be found in these judgments; they cannot be referenced to hold that a right to marry automatically flows in the manner from the provisions of Part III which the petitioner asserts. There cannot, for the above reasons, be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom; we agree on this conclusion arrived at by the learned Chief Justice and his analysis of Shakti Vahini, Shafin Jahan, Navtej Johar, K.S. Puttaswamy and NALSA that the constitution does not expressly recognize a right to marry., The conclusion arrived at by the learned Chief Justice is that while there is no express fundamental right to marry, there is a right or freedom to enter into a union, as spelt out in Navtej Johar, K.S. Puttaswamy, NALSA, Shakti Vahini, Shafin Jahan, etc., and that having regard to our constitutional values, which entail respect to the choice of a person whether or when to enter into marriage and the right to choose a marital partner. The learned Chief Justice also traces this right to enter into an abiding co‑habitational relationship to the provisions of Article 19(1)(a), (c), and (e), Article 21, and Article 25., While we agree that there is a right – which we will characterise as a right to relationship to avoid confusion – we squarely recognise it to fall within Article 21, as already recognised in the aforesaid cases. The right to relationship includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity. They are, like all citizens, entitled to live freely and express this choice, undisturbed in society. Whenever their right to enjoyment of such relationship is under threat of violence, the state is bound to extend necessary protection. This is a natural consequence of Supreme Court of India’s judgments in Navtej Johar, K.S. Puttaswamy, Shafin Jahan and Shakti Vahini., The learned Chief Justice, in a detailed discussion of the goal of self‑development, rights under Article 19 (including the right to freedom of speech and expression, and to form intimate associations, to settle in any part of India), Article 21 and Article 25, arrives at the conclusion that the right to union (or right to enter into an abiding co‑habitational relationship) can be traced to these express provisions, which in turn enrich this right. Thereafter, having traced this right to union, it is propounded that the positive postulate of fundamental rights necessitates a positive obligation on the State to accord recognition to such relationships/unions. In our considered opinion, this is not necessary., If it is agreed that marriage is a social institution with which the State is unconcerned except the limited state interest in regulating some aspects of it, does it follow that any section of society (leaving aside the issue of rights of non‑heterosexual couples) which wishes for creation of a like social institution, or even an entry into a zone which is not popular or otherwise does not fall within the institution of marriage, can seek relief of its creation by court intervention?, The conception of fundamental rights in terms of their negative and positive content is a formulation that requires no citation. However, the extent to which this positive obligation may reach is where our reasoning arrives at a metaphorical fork in the road. Every fundamental right is not enjoyed by an individual to the same degree of absoluteness. For instance, Article 19 has a clear stipulation of reasonable restrictions for each freedom; Articles 15 and 16 have a clear negative injunction on the State against discrimination, within which substantive equality is baked in and requiring the State to step in or facilitate; Article 25 is subject to other fundamental rights and freedoms under Part III, etc. There are restrictions to the content of these rights., A discussion of Article 21 elucidates this point. However, even while tracing these numerous unenumerated rights – the right to a clean environment, right to shelter, etc. – the courts have been necessarily circumspect in how these can be enforced. Often, these rights have come to be enumerated in response to State action that threatened the freedom or right directly or indirectly, thus compelling the litigant to invoke the jurisdiction of Supreme Court of India to remind the State of the negative injunction that impedes its interference and must guide its actions. Does this, however, mean that a litigant could knock on the doors of this Court seeking to enforce each of these unenumerated rights? A simple example would offer some clarity: consider a poet who wishes to share their work with the public at large. Provided there is no direct restriction or a chilling effect, the State’s role in enabling or facilitating this freedom enjoyed by the poet is limited. Supreme Court of India cannot direct that the State must create a platform for this purpose; this would be a stretch in the absence of any overt or inert threat., In the draft circulated by the Chief Justice, the reasoning that there is no fundamental right to marry and thereafter, nevertheless, to proceed to delineate the facets or features which unions other than marriage are deprived of, merits a closer look. The summation of various rights which such a couple is said to be deprived of is used to delineate the contours of the right to enter into a union and justify a positive obligation. There cannot be any doubt that individuals have the choice of their life partners and the right to live the lives they wish to, undisturbed. This is the essence of what the jurisprudence of Supreme Court of India has been so far – an explanation of the right to life and the other rights enumerated or discovered by interpretative process: privacy, choice, dignity etc., Repeatedly, decisions of Supreme Court of India have emphasized the non‑discriminatory and positive content of certain fundamental rights (Articles 14, 15, 16, 17, 23 and 24). In fact, the Court has underlined the obligations of the State to create conditions conducive to the exercise of the right to equality (i.e., substantive equality) and to realise fraternity. Refer to decisions in State of Kerala v. N.M. Thomas and Indra Sawhney v. Union of India which expanded the understanding of substantive equality, though without making enabling provisions enforceable by court. This Court has also in some decisions accepted the argument that given the nature of fundamental rights and their evolving content, in many circumstances it might be necessary for the State to intervene and protect the fundamental right concerned, thus creating an atmosphere conducive for the enjoyment of such right. Lata Singh dealt with honour killings of couples involved in inter‑caste, inter‑religious marriages; in Arumugam Servai v. State of Tamil Nadu, where the issue was virulent caste slurs and violence, the Court required administrative and police officials to take strong measures to prevent such atrocious acts. In Shakti Vahini, which dealt with threats by khap panchayats, this Court held that the State is duty‑bound to protect the fundamental rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. The Court issued directions requiring the State to take punitive and remedial measures, and that the State has a positive obligation to protect the life and liberty of persons., In several decisions it has been recognised that the reason for entrenching Part III rights – for instance, in M. Nagaraj – was to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Fundamental right is a limitation on the power of the State. R.C. Cooper v. Union of India is salient for the observations it made about the common thread that runs through Part III rights, which again sets out distinct enforceable rights: it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms. In some cases it is an express declaration of a guaranteed right: Articles 29(1), 30(1), 26, 25 and 32; in others to ensure protection of individual rights they take specific forms of restrictions on State action legislative or executive Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some others, it takes the form of a positive declaration and simultaneously enunciates the restriction thereon: Articles 19(1) and 19(2) to (6); in some cases, it arises as an implication from the delimitation of the authority of the State, e.g., Articles 31(1) and 31(2); in still others, it takes the form of a general prohibition against the State as well as others: Articles 17, 23 and 24. The enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through them: they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits., The right to freedom of speech is distinct because it is preceded by the words freedom of speech and expression whereas the others are rights. While this judgment does not call for elaboration on this distinction, the common element in respect of all the rights spelt out in Article 19 is the assertion of the right, which is a curb or restraint on State action, whose limits can only be through laws made by the State to promote some State concern such as sovereignty and integrity of the State, etc., reasonably restricting speech in the interests of, inter alia, public order, decency or morality. The same pattern is followed in relation to freedom to associate by Article 19(4). In relation to the right under Article 19(1)(g) a broader State interest, inter alia, i.e., in the interests of the general public, is considered. These expressions are common grounds on which reasonable restrictions can be enacted validly by law. Kharak Singh v. State of Uttar Pradesh, Bijoe Emmanuel v. State of Kerala and Union of India v. Naveen Jindal & Ors. are authorities for the proposition that regulating the exercise of rights guaranteed under Article 19(1)(a) to (e) and (g) through reasonable restrictions can be only through a law., The judgment of the learned Chief Justice propounded a theory of a unified thread of rights, entitlements flowing from it, and how lack of recognition results in deprivation of specified rights under Articles 19 and 25 (in addition to Article 21). To the extent that assertion of sexual or gender identity, in exercise of free speech, association, through express manifestations in whatever form (whether through speech, art, participation in processions, etc.), are concerned, one cannot join issue. Equally, if one has by some State process, measure or conduct been barred from expressing one's choice publicly, the reasonableness of that prohibition or order can be tested on grounds enumerated in Article 19(2), if such barriers are through a valid law or orders traceable to law., However, when the law is silent and leaves the parties to express choice, Article 19(1)(a) does not oblige the State to enact a law or frame a regulation which enables the facilitation of that expression. All judgments, from Sakal Papers to Bennett Coleman and Express Newspapers, were based on the effect of laws or policies based on statutory provisions. Equally, in the absence of a legal framework enabling citizens to form a particular kind of association, the Court could not have validly created a regime enabling recognition or regulating such associations. Similarly, in the absence of any enacted law which obliges meaningful facilitation of transport such as roads, it is hard to visualize that a citizen can approach the Court and seek the construction of a road to enforce the right to travel (Article 19(1)(d)), or seek the Court’s intervention to create a network of roads or other modes of transportation. Likewise, in the absence of a basic housing scheme, if the Court is approached for enforcement of Article 19(1)(e), it would not call upon the State to create one either by framing a general legislative policy or through law. Furthermore, this Court has also recognized that there can be reasonable restrictions in the acquisition and enjoyment of certain types of properties in many States. Given the nature of rights under Articles 19 and 21, the enjoyment of which are limited to the extent reasonable laws within the bounds of the specified provisions, it would be difficult to translate the positive obligations (or postulates) as articulated in the learned Chief Justice’s opinion., History or traditions may not be the only methods to trace constitutional values which can arguably be the result of an evolving society. Yet the Court cannot stray too far from the express provisions and the manner in which they are cast. In the case of free speech and expression, right to association and the other rights spelt out in Article 19 and the rights spelt out in Article 25, the core content of these are hard‑fought freedoms and rights primarily directed against State action and its tendency to curb them. To the question whether it is possible to locate an entitlement to lead to positive obligation and to facilitate the exercise of free speech, generally by mandating a horizontally applicable parliamentary law or legal regime, the answer would be a self‑evident negative., There is no difficulty about the right of two consenting persons to decide to live together, to cohabit with each other, and create their unique idea of a home, unconstrained by what others may say. That is the natural sequitur to K.S. Puttaswamy and Navtej Johar. Conduct hitherto criminalised is now permissible. The liberative effect of Section 377 being read down is that two individuals, regardless of their sexual orientation, are enabled to live together with dignity and also protected from any kind of violence for living and existing together. Therefore, the right to be left alone, the right to exercise choice, the right to dignity, and to live one's life with the person of one's choice is an intrinsic and essential feature of Article 21 of the Constitution., The idea that one right can lead to other rights emanating from it has been conclusively rejected by Supreme Court of India by seven judges in All India Bank Employees Association v. National Industrial Tribunal. That decision was quoted with approval in Maneka Gandhi v. Union of India. The theory has been firmly rejected in the All India Bank Employees Association case and we cannot countenance any attempt to revive it, as that would completely upset the scheme of Article 19(1). As Justice Rajagopala Ayyanger said, “by a series of ever expanding concentric circles in the shape of rights concomitant to concomitant rights … lead to an almost grotesque result”. So also, for the same reasons, the right to go abroad cannot be treated as part of the right to carry on trade, business, profession or calling guaranteed under Article 19(1)(g). The right to go abroad is clearly not a guaranteed right under any clause of Article 19(1)., As the two‑judge bench decisions have affirmed, while there is no dispute that there is an interconnectedness of various fundamental rights, their manifestations in different forms especially under Article 19 and the distinct grounds on which they can be circumscribed, sets each freedom and right apart. While the right to free speech and expression may be exercised in conjunction with the right to association and even the right to assemble and move, nevertheless the extent of the assertion of these rights collectively would depend on the circumstances of the case and the nature of the curbs imposed by law. Thus, for instance, the right to protest in the form of a procession is subject to laws reasonably restricting movement in the larger interests of the public. It is questionable whether the imposition of valid restrictions and curbs in such circumstances can be successfully impugned only on the ground that their right to free speech and assembly are violated. If the restriction is valid for one fundamental right, it is equally valid for the others on an application of the test laid down in Maneka Gandhi. Rather it is the test of reasonableness and the proximity to the disturbance of public order, when such restriction is imposed, that becomes the focal point of debate. Therefore, in the abstract every right enumerated in Article 19 and other Article 25 can be exercised freely without hindrance by all. However, it is the assertion of the right, in the face of some threat by State action or despite State protection, which becomes the subject of court scrutiny. The extent of right to free speech is subject to reasonable restrictions, to further inter alia, public order or decency and morality. The right to association is hedged by reasonable restrictions inter alia, in furtherance of public order or morality. The right to travel and settle in any part of the country is subject to reasonable restrictions in the interests of the general public or for the interests of any scheduled tribe. Likewise, the freedom of conscience is both internal and external. As long as an individual exercises it from within and in privacy, there can be ordinarily no inroads into it; its external manifestation may call for scrutiny at given points in time.
id_366	17	That the State should or ought to order such social institutions is different from a direction issued by the Supreme Court of India, which they must carry out; the latter is what we take exception to and place our reservations against., Therefore, even if we were to, for argument's sake, recognise an entitlement under the Constitution to enter into an abiding cohabitation relationship or union, in our opinion it cannot follow to a claim for an institution. There are almost intractable difficulties in creating, through judicial diktat, a civil right to marry or a civil union of the kind that is sought by the petitioners in these proceedings. Ordering a social institution or rearranging existing social structures by creating an entirely new kind of parallel framework for non‑heterosexual couples would require conception of an entirely different code and a new universe of rights and obligations. This would entail fashioning a regime of state registration of marriage between non‑heterosexual couples, spelling out eligibility conditions such as minimum age, prohibited degrees of relationship, grounds for divorce, right to maintenance, alimony, etc., As a result, with due respect, we are unable to agree with the conclusions of the learned Chief Justice with respect to tracing the right to enter into or form unions from the right to freedom of speech and expression (Article 19(1)(a)), the right to form associations (Article 19(1)(c)), along with Article 21 and any corresponding positive obligation. It is reiterated that all queer persons have the right to relationship and choice of partner, co‑habit and live together as an integral part of choice, which is linked to their privacy and dignity. No one has contested that two queer partners have the rights enumerated under Article 19(1)(a), (c) and (d), or even the right to conscience under Article 25. The elaboration of these rights to say that exercise of choice to such relationships renders these rights meaningful and that the State is obliged to recognise a bouquet of entitlements which flow from such an abiding relationship is not called for. We therefore respectfully disagree with that part of the learned Chief Justice's reasoning which forms the basis for some of the final conclusions and directions recorded in his draft judgment., V. Inapplicability of the Special Marriage Act A. Challenge to the Special Marriage Act on the ground of impermissible classification. The petitioners complained that provisions of the Special Marriage Act, inasmuch as they excluded or do not provide for marriage of non‑heterosexual couples, are discriminatory because the classification made in its various provisions is heteronormative, thus discriminating against non‑heterosexual couples. This exclusion is the basis of their challenge., Hostile classification, which results in exclusion from the benefits of a statute or policy, is based on the understanding that where equals are treated differently without any reasonable basis, as held in D.S. Nakara v. Union of India: the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out, and that differentia must have a rational nexus to the object sought to be achieved by the statute. There must be a causal connection between the basis of classification and the object of the statute. An executive action can be sustained only if the twin tests of reasonable classification and rational principle related to the object sought to be achieved are satisfied., What is an intelligible differentia on which the classification is to be drawn distinguishing objects or persons, or conditions, for the purpose of legislative or executive policy? The premise of classification is to discriminate. The theory of permissible classification rests on the basis for differentiation and its relation to the object of the measure or the law. Permissible classification should result in valid differentiation but crosses the line when it has a discriminatory effect of excluding persons, objects or things which otherwise form part of the included group. Kedar Nath Bajoria v. State of West Bengal explained that Article 14 does not mean that all laws must be general in character and universal in application and that the State may distinguish and classify persons or things for the purposes of legislation, provided the classification is not arbitrary but is based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain., After a fairly detailed examination of previous precedents, recently in Chandan Banerjee v. Krishna Prasad Ghosh, the Supreme Court of India explained the principles applicable to determine whether classification by any law or policy can be upheld: (i) classification between persons must not produce artificial inequalities; it must be founded on a reasonable basis and bear nexus to the object and purpose sought to be achieved to satisfy Articles 14 and 16; (ii) judicial review in matters of classification is limited to a determination of whether the classification is reasonable and bears a nexus to the object sought to be achieved; courts cannot indulge in a mathematical evaluation of the basis of classification or replace the wisdom of the legislature with their own. In Transport & Dock Workers Union v. Mumbai Port Trust the Court explained how differential treatment may not always result in discrimination and violates Article 14 only when there is no conceivable reasonable basis for the differentiation., The differentiation or classification has to be based on the object or end sought to be achieved, a facet highlighted in Union of India v. M.V. Valliappan, where the Court held that if there is a differentiation having rational nexus with the object sought to be achieved by a particular provision, then such differentiation is not discriminatory and does not violate the principles of Article 14. Earlier, the Court in State of J&K v. Triloki Nath Khosa ruled that the object to be achieved ought not to be a mere pretense for an indiscriminate imposition of inequalities and the classification should not be characterized as arbitrary or absurd., The discussion on equality and the limits of permissive classification were conveniently summarised by the seven‑judge bench in In Re the Special Courts Bill, 1978. The Court observed that the State, in the exercise of its governmental power, must make laws operating differently on different groups or classes of persons to attain particular ends, and that classification need not be constituted by an exact scientific exclusion or inclusion of persons. Classification is justified if it is not palpably arbitrary; it must be rational, founded on an intelligible differentia that distinguishes those grouped together from others, and that differentia must have a rational relation to the object of the legislation., For a moment, if it is assumed, as the petitioners argue, that the classification is suspect because non‑heterosexual couples are not provided the facility of marriage, yet such under‑classification is not per se discriminatory. This aspect was highlighted by the Supreme Court of India in Ambica Mills: since the classification does not include all who are similarly situated with respect to the purpose of the law, it might appear unreasonable at first blush, but the Court recognised the real difficulties legislatures face and refused to strike down legislation embodying classificatory inequality indiscriminately., In an earlier decision, the Supreme Court of India upheld the tax imposed upon joint families in Kerala based on Marumakkattayam law. The law imposed expenditure tax upon those professing the Marumakkattayam unit and omitted to include Mapillas (non‑Hindus) who also followed that system. The Court held that such under‑inclusion did not attract the vice of discrimination, as observed in N. Venugopala Ravi Varma Rajah v. Union of India, noting that the mere fact that the law could have been extended to another class of persons with similar characteristics is not a ground for striking down the law., The question of some categories being left out when a new legislation is introduced was the subject matter of the decision in Ajoy Kumar Banerjee & Ors. v. Union of India & Ors., where it was held that Article 14 does not prevent the legislature from introducing a reform by applying the legislation to some institutions or objects only according to the exigency of the situation, and that classification can be sustained on historical or administrative reasons. Exclusion or under‑inclusion, per se, cannot be characterised as discriminatory unless the excluded category belongs to the same class as the included class., The Statement of Objects and Reasons of the Special Marriage Act reads as follows: the Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any person in India and all Indian nationals abroad irrespective of the faith either party may profess. The parties may observe any ceremonies for the solemnisation of their marriage, but certain formalities are prescribed before the marriage can be registered by the marriage officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnising and registering marriages between citizens of India in a foreign country. The Bill also permits persons already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of its provisions., The Statement of Objects and Reasons of the Special Marriage Act clearly suggests that the sole reason for the enactment of the Act was to replace the earlier colonial‑era law and provide certain new provisions; it does not refer to any specific object sought to be achieved other than facilitating marriage between persons professing different faiths. If one looks at the enacted provisions, especially Sections 19‑21, 21A, 24, 25, 27, 31, 37 and 38, there can be no doubt that the sole intention was to enable marriage (as understood then, i.e., for heterosexual couples) of persons belonging to different faiths, an option hitherto available subject to various limitations. There was no idea to exclude non‑heterosexual couples, because at that time consensual physical intimacy of such persons was outlawed by Section 377 of the Indian Penal Code. While the Act sought to provide an avenue for marriages that did not enjoy societal support or the benefit of custom, it would be a stretch to say that it included same‑sex marriages. Therefore, the challenge to the constitutionality of the statute must fail., The next question urged is that the passage of time has rendered the exclusion of queer couples from the benefit of the Special Marriage Act discriminatory. This line of argument is based on the Supreme Court of India's reasoning that with the passage of time a classification which was once valid could become irrelevant and thus discriminatory. In Motor and General Traders v. State of Andhra Pradesh, a provision exempting premises constructed after 26‑08‑1957 was held unconstitutional because the continued operation of such exemption had become hostile discrimination after a quarter of a century. Similarly, in Rattan Arya v. State of Tamil Nadu, a provision exempting tenants of residential buildings paying rent above a certain amount was struck down as discriminatory after the passage of time. The Court has consistently held that a classification made at an earlier point in time may lose its relevance and operate in a discriminatory manner., In the present case, the petitioners' arguments with respect to reading down provisions of the Special Marriage Act are insubstantial. The original rationale for the Act was to facilitate inter‑faith marriages. That reason is as valid today as it was at the time of the Act's enactment and cannot be condemned on the ground of irrelevance due to the passage of time. The classification was primarily between heterosexual couples of differing faiths, not between heterosexual and non‑heterosexual couples. All provisions are geared to a framework governing solemnisation and registration of marital relationships, replicating the status conferred by different personal laws. The relevance of the Act has increased with growing awareness and the exercise of choice by intending spouses belonging to different faiths. It cannot be said that the exclusion of non‑heterosexual couples has caused the Act to lose its rationale., We therefore agree with the reasoning elaborated by Chief Justice Dr. Chandrachud, Judge, that the challenge to the Special Marriage Act fails., B. Interpretation of provisions of the Special Marriage Act. The provisions of the Special Marriage Act are incapable of being read down or interpreted by reading up in the manner suggested by the petitioners. The petitioners' efforts were aimed at persuading the Supreme Court of India to interpret the provisions in a manner that accommodates non‑heterosexual couples. Their arguments centred around reading specific provisions—Section 2(b) read with Part I (for a male) and Part II (for a female) (degrees of prohibited relationships), Section 4(c), Section 12, 15, 22, 23, 27(1), 27(1A) (special ground of divorce for wife), 31(1)(iiia) and (2) (special provision for jurisdiction in case of proceeding for the wife), 36 and 37 (alimony for the wife), 44 (bigamy)—which present a dominant underlying heteronormative content. They argued that the Supreme Court of India should adopt a purposive construction of the provisions and interpret them in light of previous decisions in Dharani Sugars and Chemicals Ltd v. Union of India and X v. Principal Secretary., In Dharani Sugars, the challenge was against a new policy introduced by the Reserve Bank of India. The petitioners contended that there was no authorization under the RBI Act to frame the impugned policy. Although the Court acknowledged that new facts can influence the interpretation of existing law, it ultimately upheld the policy based on existing provisions that empowered the RBI to issue such policies. The Court noted that an interpretation should be given to the words used to take in new facts and situations if the words are capable of comprehending them, but that this does not mean that an old statute can be construed to mean something conceptually different from what the contemporary evidence shows Parliament intended., The Supreme Court of India, in X v. Principal Secretary while reading down the exclusion of unmarried women from the benefit of the Medical Termination of Pregnancy Act, 1971, also relied on Dharani Sugars to invoke the principle that a statute always speaks. Noting that the Act, and more so its amendment, was to enable women to terminate unwanted pregnancies, the Court held that such exclusion was arbitrary and discriminatory. The Court further relied on Badshah v. Sou. Urmila Badshah Godse, which held that change in law precedes societal change and is intended to stimulate it, and on All Kerala Online Lottery Dealers Association v. State of Kerala & Ors., which referred to State v. S.J. Choudhary, observing that the language of an Act, though embedded in its own time, must be construed in accordance with the need to treat it as current law., Furthermore, the petitioners relied on the interpretation of the Supreme Court of India in Githa Hariharan v. Union of India, wherein the Court construed the word 'after' in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 as meaning \in the absence of—be it temporary or otherwise—total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise\, thus saving it from the vice of discrimination. Reliance was also placed on Association of Old Settlers of Sikkim & Ors. v. Union of India, where an exemption provision discriminated against Sikkimese women married to non‑Sikkimese persons after 1 April 2008, and the Court held such discrimination violative of equality under Article 14 of the Constitution of India. In Independent Thought, the Court invalidated as discriminatory a provision permitting sexual intercourse between a man and a young woman married to him above the age of 15 years, holding that the classification was violative of Article 14., The principle of purposive interpretation was relied upon by the petitioners to urge that a gender‑neutral interpretation or use of words which include non‑heterosexual couples should be resorted to. The Supreme Court of India, in S.R. Chaudhuri v. State of Punjab & Ors., remarked that the words used may be general in terms but their full import and true meaning must be appreciated considering the true context in which they are used and the purpose they seek to achieve., Ahron Barrack, in his treatise, stated that purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its public or private language.
id_366	18	Supreme Court of India has also held that there can be occasions when words may be read in a particular manner, if it is sure that the draftsman would have wished it to be so, given the nature of the expressions, and, at the same time, indicated the limits for that principle, while quoting from the treatise Principles of Statutory Interpretation by G.P. Singh, in Ebix Singapore Private Limited and Ors. v. Committee of Creditors of Educomp Solutions Ltd & Ors.: A departure from the rule of literal construction may be legitimate so as to avoid any part of the statute becoming meaningless. Words may also be read to give effect to the intention of the Legislature which is apparent from the Act read as a whole. Application of the mischief rule or purposive construction may also enable reading of words by implication when there is no doubt about the purpose which Parliament intended to achieve. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these or similar words would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Other decisions too have endorsed this line of reasoning., The objects of a statute acquire primacy while interpreting its provisions, if the need so arises. Therefore, in interpretation of any statute or provision, Supreme Court of India, long ago, in Workmen of Dimakuchi Estate v. Management of Dimakuchi Tea Estate underlined that where there are doubts about the meaning of a provision, they are to be understood in the sense in which they best harmonise with the subject of the enactment and that popular meanings, or strict grammatical import, may yield to the subject or the occasion on which they are used, and the object to be attained. This object‑based interpretation was adopted in several decisions., Supreme Court of India emphasized in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. that 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. The interpretation that makes the textual interpretation match the contextual is best., In M. Nizamuddin v. Chemplast Sanmar Ltd & Ors. ((2010) 4 Supreme Court Cases 240), it was observed: Purposive construction has often been employed to avoid a lacuna and to suppress the mischief and advance the remedy. It is a settled rule that if the language used is capable of bearing more than one construction and if a construction results in absurdity or anomaly, such construction has to be rejected and preference should be given to a construction that brings it into harmony with its purpose and avoids absurdity or anomaly, as it may always be presumed that while employing a particular language in the provision absurdity or anomaly was never intended. Girodhar G. Yadalam v. Commissioner of Wealth Tax & Ors. [2015] 15 Supreme Court Reports 543; K.H. Nazar v. Mathew K. Jacob, (2020) 14 Supreme Court Cases 126, which states that in interpreting a statute the problem or mischief that the statute was designed to remedy should first be identified and then a construction that suppresses the problem and advances the remedy should be adopted., In New India Assurance Co. Ltd. v. Nusli Neville Wadia [2007] 13 Supreme Court Reports 598, this court explained purposive interpretation to mean one which enables a superior court to interpret a statute in a reasonable manner; the court must place itself in the chair of a reasonable legislator or author. Thus, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled., In Bipinchandra Parshottamdas Patel v. State of Gujarat [2003 (4) Supreme Court Cases 642], a provision enabling the suspension of an elected official of a municipality, under detention during trial, was held to include detention during investigation, having regard to the object or the mischief sought to be addressed by the law., In Bank of India v. Vijay Transport & Ors., the court dealt with the plea that a literal interpretation is not always the only interpretation of a provision in a statute and that the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words used which controls the literal meaning of such words., The five‑judge decision of Supreme Court of India in Central Bank of India v. Ravindra held: Ordinarily, a word or expression used at several places in one enactment should be assigned the same meaning so as to avoid a head‑on clash between two meanings assigned to the same word or expression occurring at two places in the same enactment. It should not be lightly assumed that Parliament had given with one hand what it took away with the other. That construction is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. While embarking upon interpretation of words and expressions used in a statute it is possible to find a situation when the same word or expression may have somewhat different meaning at different places depending on the subject or context. This is however an exception which can be resorted to only in the event of repugnancy in the subject or context being spelled out. It has been the consistent view of the Supreme Court of India that when the legislature used the same word or expression in different parts of the same section or statute, there is a presumption that the word is used in the same sense throughout. The House of Lords in Farrell v. Alexander held that where the draftsman uses the same word or phrase in similar contexts, he must be presumed to intend it in each place to bear the same meaning. The court, having accepted invitation to embark upon interpretative expedition, shall identify on its radar the contextual use of the word or expression and then determine its direction avoiding collision with icebergs of inconsistency and repugnancy., The objects that a statute seeks to achieve are to be gleaned not merely from a few expressions in the statement of objects and reasons for the statute. It may be that in interpreting the words of the provision of a statute, the setting in which such words are placed may be taken into consideration, but that does not mean that even though the words which are to be interpreted convey a clear meaning, still a different interpretation or meaning should be given to them because of the setting. In other words, while the setting of the words may sometimes be necessary for the interpretation of the words of the statute, that has not been ruled by Supreme Court of India to be the only and the surest method of interpretation., The provisions and the objects of the Special Marriage Act (SMA), as discussed in the earlier section on discrimination, clearly point to the circumstance that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage. The petitioners argued that the purpose of the SMA was to provide a framework for civil marriages not based on personal law includes same‑sex marriages. Yet, structurally, Section 4 (conditions relating to solemnisation of special marriages) contemplates marriages between a man and a woman. To read SMA in any other manner would be contrary to established principles of statutory interpretation as discussed in preceding paragraphs. It is also not permissible for the court to 'read up and substitute the words any two persons' to refer to a marriage between non‑heterosexual couples., Gender‑neutral interpretation, much like many seemingly progressive aspirations, may not really be equitable at times and can result in women being exposed to unintended vulnerability, especially when genuine attempts are made to achieve a balance in a social order that traditionally was tipped in favour of cis‑heterosexual men. The purpose of terms like wife, husband, man, and woman in marriage laws (and other laws on sexual violence and harassment as well) is to protect a socially marginalised demographic of individuals. For instance, women facing violence by their partner have a right to seek recourse under the Domestic Violence Act, which assures that they are safeguarded and provided relief against such injustice. In fact, provisions in SMA for alimony and maintenance (Section 36 and 37) confer rights to women; likewise certain grounds of divorce (conviction of husband for bigamy, rape) entitle the wife additional grounds (Section 27) to seek divorce. Other provisions such as Section 2(b) read with Part I (for a male) and Part II (for a female) enact separate degrees of prohibited relationships; Section 4(c) uses the terms husband and wife; Sections 12, 15, 22, 23, 27(1), Section 31(1)(iiia) and (2) (special provision for jurisdiction in case of proceeding for the wife), Sections 36 and 37 provide for maintenance and alimony for the wife; Section 44 (punishment of bigamy). The general pattern of these provisions, including the specific provisions enabling or entitling women to certain benefits, is that even if, for argument’s sake, it were accepted that Section 4 of SMA could be read in gender‑neutral terms, the interplay of other provisions would lead to anomalous results, rendering the SMA unworkable., Furthermore, if provisions of SMA are to be construed as gender‑neutral (such as persons or spouses, in substitution of wife and husband) as the petitioners propose, it would be possible for a cis‑woman’s husband to file a case or create a narrative to manipulate the situation. Gender‑neutral interpretation of existing laws would therefore complicate an already exhausting path to justice for women and leave room for the perpetrator to victimise them. A law is not merely meant to look good on paper; it is an effective tool to remedy a perceived injustice, addressed after due evaluation about its necessity. A law which was consciously created and fought for by women cannot, therefore, by an interpretive sleight be diluted., Supreme Court of India stated in Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress that when a provision is cast in definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature, if it so desires, to amend it. Similarly, in Cellular Operators Association of India v. Telecom Regulatory Authority of India, the court applied the rule of Delhi Transport Corporation and held that the construction suggested would lead the court to add something to the provision which does not exist, which would be nothing short of the court itself legislating and therefore, impermissible., There is no known rule by which a word or group of words in one provision can have two different meanings. The effect of the petitioners’ argument would be to say that generally, provisions of SMA should be read in a gender‑neutral manner (spouse for wife and husband; persons instead of male and female, etc.). Whilst it could in theory be possible to read such provisions in the manner suggested, their impact on specific provisions such as the separate lists for wives and husbands for purposes of age, determining prohibited degrees of relationships, and remedies such as divorce and maintenance, leads to unworkable results. Most importantly, the court, in its anxiety to grant relief, would be ignoring provisions that deal with and refer to personal laws of succession, namely Sections 19, 20, 21 and 21A. The court cannot look at a text containing words with two optional meanings in the same provision., Likewise, with regard to the Foreign Marriage Act (FMA), the petitioners sought that certain conditions and provisions be read in gender‑neutral terms to enable same‑sex marriage. FMA is a secular legislation wherein Section 4 states that a marriage between parties may be solemnised under this Act, provided that at least one of the two parties is a citizen of India. However, bride and bridegroom are used in Section 4 (relating to the age of the parties at time of solemnisation), the Third and Fourth Schedule (which prescribe the declarations by both parties and certification of marriage). The conditions for such marriages, under Section 4(1)(c) of FMA, specifically require the parties to be a bride and a bridegroom, i.e., it is gendered in nature. Furthermore, the terms husband and wife are used in Section 13 and 18 in relation to the solemnisation of marriage and provisions where matrimonial reliefs (as under the SMA) are available under the FMA. The petitioners’ prayer that this Court read the references to husband or wife or spouse in the same manner as discussed in relation to the SMA is unsustainable., As far as the petitioners’ reliance on Ghaidan; Fourie; and precedents from other foreign jurisdictions are concerned, we agree with the reasoning given by the Chief Justice that our courts should exercise caution when relying on the law in other jurisdictions. We should be mindful of the distinct contextual framework within which those decisions have been given., As discussed earlier, the words of the statutes have to be read, taking into account the fabric of concepts, rights, obligations and remedies which it creates. Removing or de‑contextualising provisions from their setting and purposively construing some of them cannot be resorted to, even in the case of the Special Marriage Act., I do not wish to revisit the history of how Supreme Court of India evolved the test of considering the effect or impact of laws on Fundamental Rights; it would be appropriate to say that the object‑based test favored and applied in A.K. Gopalan was discarded decisively by the eleven‑judge Bench in R.C. Cooper. The true test was spelt out in the following manner: it is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's rights. This line of reasoning was applied and commended in Maneka Gandhi; it is now an intrinsic part of the constitutional lore., In recent times, Supreme Court of India has applied, in relation to claims of discrimination, the test of indirect discrimination. This dimension was explained in Lt. Col. Nitisha v. Union of India: First, the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious or implicit biases or an inability to recognize how existing structures, institutions, and ways of doing things have the consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited. In Navtej Johar, the concurring judgment of the present Chief Justice relied on the directive of the European Parliament which defines indirect discriminatory impact as: \where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.\ An earlier decision of Supreme Court of India relied on the concept and application of indirect discrimination test in Om Kumar and Others v. Union of India – in the context of discussing the principle of proportionality: \If indirect discrimination were established, the Government would have to show very weighty reasons by way of objective justification, bearing in mind that derogations from fundamental rights must be construed strictly and in accordance with the principle of proportionality.\ Later judgments (S.K. Nausad Rahaman & Others v. Union of India and Ravinder Kumar Dhariwal v. Union of India) also applied the indirect discrimination test to judge the validity of the measure in question., The common feature of the effect of the law and of the action upon the right in R.C. Cooper and the decisions which applied the indirect discrimination lens is that the objects of the legislation or the policy involved are irrelevant. It is their impact, or the effect, on the individual, which is the focus of the court’s inquiry. In one sense, the development of the indirect discrimination test is a culmination of the methods which Supreme Court of India adopted in judging the discriminatory impact of any law or measure on an individual., Supreme Court of India, in the previous sections of this judgment, has discussed and concluded how the claim for reading a fundamental right to marry into the Constitution cannot be granted. However, the court cannot be oblivious of the various intersections which the existing law and regulations impact to queer couples., The constitution exists, and speaks for all, not the many or some. The felt indignities of persons belonging to the LGBTQIA+ community need no forensic proof; they do have to meet a quantifiable threshold, which Supreme Court of India has outlined in Navtej Johar. The refusal to acknowledge choice, by society, is because it is statedly based on long tradition (dating back to the times when the constitution did not exist). In such cases, the issue is whether the State’s silence comes in the way of this Court recognizing whether the petitioners have been denied the right to choose their partner., It is important to recognize that while the State ipso facto may have no role in the choice of two free‑willed individuals to marry, its characterising marriage for various collateral and intersectional purposes, as a permanent and binding legal relationship, recognized as such between heterosexual couples only, impacts queer couples adversely. The intention of the State, in framing the regulations or laws, is to confer benefits to families or individuals who are married. This has the result of adversely impacting queer couples. By recognizing heterosexual couples’ unions and cohabitation as marriages in various laws and regulations such as employment (nominations in pension, provident fund, gratuity, life and personal accident insurance policies); credit (particularly joint loans to both spouses, based on their total earning capacity); and compensation in the event of fatal accidents, and not providing for non‑heterosexual couples such recognition, results in their exclusion., The individual earned benefits (by each partner or both collectively), which would be available to family members (such as employee state insurance benefits, in the event of injury of the earning partner, provident fund, compensation, medical benefits, insurance benefits, in the event of death of such earning partner) are examples of what the injured or deceased partner, by dint of his or her work, becomes entitled to, or the members of his or her family become entitled to. The denial of these benefits and inability of the earning partner in a queer relationship, therefore, has an adverse discriminatory impact. The State may not intend the discrimination or exclusion in the conferment of such benefits or social welfare measures. Yet, the framework of such policies or regulations, expressed in favour of those in matrimonial relationships, results in denial of entitlements despite the professional abilities and contributions of such individuals., The objective of many of these laws or schemes is to confer or provide entitlements based on individual earning and contribution. For example, provident fund is payable due to the employee’s personal contribution and their status as an employee, directly flowing from the functions discharged. Similarly, the objective of entitlement of benefits under the Employee State Insurance Act, and other such insurance‑related schemes or welfare measures (such as the Workmen’s Compensation Act), flow from the individual status, work, and effort of the concerned employee. Major part of these benefits, or all of them, flow in the event of certain eventualities such as fatal accident or death. The design of these statutes and schemes is to enable both the concerned subscriber or employee (in the event of infirmity or termination of employment) to receive them, or in an unforeseen event such as death, for his dependents to receive them. The restrictive way in which dependent or nominee(s) are defined (spouse, or members of the family in a heteronormative manner) excludes their enjoyment to the intended beneficiary., This deprivation has to be addressed. That these can be magnified can be illustrated by a few examples. For instance, a queer couple might live together as spouses (without legal recognition) for two decades. If one of them passes away in a motor vehicle accident, the surviving partner would not only be unable to get any share of the deceased partner’s estate, but also any portion of the compensation. In case the union was not with approval of their respective families, who might have ostracised or broken relationship with them, the result would be injustice, because the surviving partner, who shared life and cared for the deceased partner, especially during hard times, would be completely excluded from enjoying any benefits – all of which would go to the family members of the deceased (who may have even boycotted them). The same result would occur in the event of death of one partner; family pension and death benefits would be denied to the queer partner. This injustice and inequity results in discrimination, unless remedial action is taken by the State and central governments., It is relevant to record a note of caution at this juncture. While the right to marry or have a legally recognised marriage is only statutory, the right to cohabit and live in a relationship in the privacy of one’s home is fundamental, and enjoyed by all. This is not to say that the latter is unqualified or without restriction. Rather, that the latter is a right afforded to all, irrespective of the State’s recognition of the relationship or status, as in the case of married couples. The discriminatory impact recognised in the above paragraphs, however, is to highlight the effect of a legislative vacuum specifically on long‑term queer couples, who do not have the avenue of marriage, to entitle them to earned benefits. Could this same logic then be extended to heterosexual couples that choose not to get married, despite having the avenue? With respect, this would require further consideration by the State, and was an aspect that was neither argued, nor were we called upon to decide, in the present petitions. Therefore, it is pointed out that the State must remain cognizant of such an unwitting consequence of creating two parallel frameworks for live‑in or domestic partnerships and marriages, and the confusion or anomalies this may cause to gendered legal frameworks as they stand today while trying to remedy or mitigate the discrimination faced by queer couples., Addressing all these aspects and concerns means considering a range of policy choices, involving multiplicity of legislative architecture governing the regulations, guided by diverse interests and concerns – many of them possibly coalescing. On 03.05.2023, during the course of hearing, the learned Solicitor General, upon instructions, expressed the Union’s position that a high‑powered committee headed by the Union Cabinet Secretary would be formed to undertake a comprehensive examination to consider such impacts and make necessary recommendations in that regard., We are in agreement with Part (xi) of the learned Chief Justice’s opinion which contains the discussion on the right of transgender persons to marry. We are also in agreement with the discussion relating to gender identity, i.e., sex and gender are not the same, and that there are different people whose gender does not match with that assigned at birth, including transgender men and women, intersex persons, other queer gendered persons, and persons with socio‑cultural identities such as hijras, as well as the right against discrimination under the Transgender Persons Act, 2019. Similarly, discussion on the provisions of the Transgender Persons Act, 2019 and enumeration of various provisions, remedies it provides, and harmonious construction of its provisions with other enactments, do not need any separate comment. Consequently, we agree with the conclusion that transgender persons in heterosexual relations have the right to marry under existing laws, including personal laws regulating marriage. The court’s affirmation of the High Court judgment in Arun Kumar v. Inspector General of Registration is based upon a correct analysis., Some of the petitioners have challenged Regulation 5(3) of the 2020 Central Adoption Resource Agency (CARA) Regulations. By Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, consent of both spouses for adoption is necessary. By Section 57(5), the authority is enabled to frame any other criteria. CARA notified regulations in furtherance of Section 57(3) which inter alia mandates as a prerequisite that the prospective adopting couple should have been in a stable marital relationship for at least two years. The petitioners argued that these regulations relating to adoption were ultra vires the parent enactment, the Juvenile Justice (Care and Protection of Children) Act, and arbitrary for classifying couples on the basis of marital status for the purpose of joint adoption. We have perused the reasoning and conclusion by the learned Chief Justice on this aspect, and are unable to concur.
id_366	19	No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step‑parent adoption. The interpretation placed on Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act by the learned Chief Justice is that it contemplates joint adoption by both married and unmarried couples, but the condition requiring both spouses to consent applies only to married couples. Therefore, while the Juvenile Justice (Care and Protection of Children) Act is wider in its scope, the Child Adoption Regulation 5(3) (in furtherance of Section 57(5) which delegates power to prescribe any other criteria) stipulating a stable marital relationship exceeds the power granted by the parent Act and is ultra vires the express provisions and legislative policy of the Juvenile Justice (Care and Protection of Children) Act. Our disagreement with this characterization is laid out in Part A below., Thereafter, the learned Chief Justice has read down the offending part of Regulation 5(3) and held that the requirement of consent embodied in Regulation 5(2)(a) would be equally applicable to both married and unmarried couples. We are of the firm opinion that the exercise of reading down itself is unsustainable (see Part B below) and hence, this consequence though favourable cannot apply. Our reasoning in relation to the aspect of adoption by queer couples and the indirect discrimination faced is elaborated in Part C., A. Not a case of delegated legislation being ultra vires the parent Act. With respect, we disagree with the interpretation of Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act itself. A reading of the provision as a whole makes it clear that it intends joint adoption only to married couples. While the word couple is not preceded by married, the use of spouse later in the sentence rules out any other interpretation. The principle of noscitur a sociis (meaning of a word should be known from its accompanying or associating words) is squarely applicable; a provision is to be seen as a whole, wherein words are to be read in the context of accompanying or associating words., In K. Bhagirathi G. Shenoy and Others v. K.P. Ballakuraya & Anr., it was observed: \It is not a sound principle in interpretation of statutes to lay emphasis on one word disjuncted from its preceding and succeeding words. A word in a statutory provision is to be read in collocation with its companion words.\ The pristine principle based on the maxim noscitur a sociis has much relevance in understanding the import of words in a statutory provision. Furthermore, such an interpretation of construing a part of one provision as operating to one set of people and not others is simply not known to law., To read Section 57(2) as enabling both married and unmarried couples to adopt, but that the statutory provision contemplates a restriction or requirement of consent only on the former kind of couple is not based on any known principle of interpretation. There is a strong legislative purpose in the requirement of obtaining consent of the spouse, which is rooted in the best interest of the child for their welfare and security. The parent Act and delegated legislation are clear that a prospective adoptive parent can be a single person (whether unmarried, widower, etc.) and there exists no restriction other than a single male being barred from adopting a girl child. The restriction of consent of partner applies only in the case of a couple because the child will enter into a family unit consisting of two parents as a result of the adoption and will enjoy the home made of both partners. Acceptance of the other partner is imperative; it would not be in the best interest of the child if one of the partners was unwilling to take on the responsibility., The only other legislative model is Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956 which mandates consent of both spouses (which, like other personal laws, uses the gendered language of wife and husband). Therefore, given that we differ on the starting point itself that Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act permits joint adoption by both married and unmarried couples (as held by the learned Chief Justice) we are of the considered opinion that this is not a case of delegated legislation being ultra vires the parent Act., The legislative choice of limiting joint adoption only to married couples needs to be understood in the broader context of the Juvenile Justice (Care and Protection of Children) Act and its purpose, which is the best interest of the child. Legal benefits and entitlements flow either from the individual adopting (when a single person adopts) or the married couple adopting as a unit. In the case of bereavement of a single parent, custody of the child may be taken by a relative, whereas it continues with the surviving spouse in the case of a married couple. But consider that in the case of a married couple there is a breakdown of marriage or abandonment/neglect of one partner and the child by the other. There are protections in law that enable a deserted or neglected spouse to receive maintenance and other protections. The Domestic Violence Act offers this protection even to those in an unmarried live‑in relationship, but consider a situation that does not involve domestic violence and is simply neglect or desertion. It is arguable that both partners are equally responsible for the child after adoption; however it raises the question of how one can enforce the protection due to the child., The Juvenile Justice (Care and Protection of Children) Act merely enables adoption, but for all other consequences relating to the rights of a child qua their parents and the obligations of a parent, reference must be made to prevailing law (law relating to marriage and divorce, maintenance, succession, guardianship, custody, etc.). When a single person adopts as an individual, their capabilities are assessed as per Section 57(1) and Regulation 5(1), and the responsibility of that child falls squarely on this individual. If that person enters into a relationship, whether it later succeeds or fails, the responsibility of the child remains with the individual until they are married and the partner legally adopts the child. When a couple adopts, they are jointly assessed and the responsibility falls on both parents. If one parent abandons the relationship and the other is unable to maintain the child, recourse lies in other statutory provisions. To read the law as adopted by the learned Chief Justice would have disastrous outcomes because the ecosystem of law would be unable to guarantee protection to the child in the case of breakdown of an unmarried couple adopting jointly. This would not be in the best interest of the child., B. Not a case for reading down or other interpretive construction. Counsel relied on the case of X v. Principal Secretary where this Supreme Court of India read down \married woman\ to \just woman\ for the purpose of interpreting the Medical Termination of Pregnancy Act, to argue that a similar interpretation be adopted for the law relating to adoption. In our considered opinion, that case was on a different footing altogether; it related to an individual woman's right to choice and privacy affecting her bodily autonomy. The classification on the basis of marital status was wholly arbitrary. The Juvenile Justice (Care and Protection of Children) Act and its regulations are on a different footing. Here, the object of the Act and guiding principle is the best interest of the child (and not to enable adoption for all)., It is agreeable that all marriages may not provide a stable home and that a couple tied together in marriage are not a morally superior choice or per se make better parents. Undoubtedly, what children require is a safe space, love, care, and commitment which is also possible by an individual, or a couple married or unmarried. There is no formula for a guaranteed stable household. Principally, these are conclusions we do not differ with. As a society and in law we have come a long way from the limited conception of a nuclear family with gendered roles, and privileging this conception of family over other atypical families. However, the fact that Parliament has made the legislative choice of including only married couples for joint adoption (i.e., where two parents are legally responsible) arises from the reality of all other laws wherein protections and entitlements flow from the institution of marriage. To read down marital status as proposed may have deleterious impacts that only the legislature and executive could remedy, making this much like the discussion on interpretation of the Special Marriage Act, an outcome that cannot be achieved by the judicial pen. Nevertheless, there is a discriminatory impact on queer couples, perhaps most visible through adoption regulation, that requires urgent state intervention (elaborated in Part C)., Furthermore, the previous analysis of the Special Marriage Act has led this Supreme Court of India to conclude that its provisions cannot be modified through any process of interpretation and that the expression \spouse\ means husband and wife or a male and female as the case may be, on an overall reading of its various provisions. By Section 2(64) of the Juvenile Justice (Care and Protection of Children) Act, expressions not defined in that Act have the same meanings as defined in other enactments. The Special Marriage Act is one example. Likewise, the Hindu Adoption and Maintenance Act contains the expression wife and husband. In these circumstances, we are of the opinion that the manner in which Section 57(2) is cast, necessitating the existence of both spouse and their consent for adoption of a child, means that Regulation 5(3) cannot be read down in the manner suggested by the learned Chief Justice., Therefore, in our opinion, while the argument of the petitioners is merited on some counts, the reading down of the provision as sought would result in the anomalous outcome that heterosexual couples who live together but choose not to marry may adopt a child together and would become indirect beneficiaries without the legal protection that other statutes offer, making it unworkable (much like the discussion on the Special Marriage Act in Part V)., C. Discriminatory impact of adoption regulations on queer persons. Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act spells out the eligibility conditions of prospective adoptive parents. The petitioners argued that the expression \marital\ results in discrimination insofar as a single parent can adopt, the only prohibition being that a single man cannot adopt a girl child. Further, if a single man or a single woman chooses to adopt separately as an individual and live together, the resultant de facto parents would still have a choice of marrying each other for the child to be legally the child of both parents. Or put differently, if a heterosexual couple wants to adopt a child jointly, they have the option of entering into a marriage, thereby making them eligible for joint adoption. However, in the absence of legal recognition of a queer couple union, they are left to adopt as individuals and the resultant de facto family would have no avenue for legal recognition. This inequitable result needs to be addressed as the impact is not only on the queer couple but also on the children adopted by them., Furthermore, given the social reality that queer couples are having to adopt in law as individuals but are residing together and raising these children together, the State arguably has an even more urgent need to enable the full gamut of rights to such children, as both parents. For instance, in an unforeseen circumstance of death of the partner who adopted the child as an individual, the child may become the ward of the deceased's relatives, who might not be known to the child, whereas the surviving partner who has been a parent to the child is left a stranger in law. Therefore, this is another consequence of the non‑recognition of queer unions that the State has to address and eliminate by appropriate mitigating measures., This is not to say that unmarried couples, whether queer or heterosexual, are not capable or suitable to be adoptive parents. However, once the law permits adoption by single individuals, the likelihood of their joining and co‑habiting cannot be ruled out. In such events, de facto family units can and do arise. The underlying assumption in the law that such unmarried heterosexual or queer couples should not adopt needs to be closely examined. Similarly, the need of such couples to have and raise a family in every sense of the term has to be accommodated within the framework of the law, subject to the best interests of the child. The existing state of affairs, which permits single individuals to adopt and later to live as a couple, in effect deprives the children of such relationships of various legal and social benefits that are otherwise available to children of a married couple. In other words, given the objective of Section 57 and allied provisions of the Juvenile Justice (Care and Protection of Children) Act, which is beneficial for children, the State as parens patriae needs to explore every possibility and not rule out any policy or legislative choice to ensure that maximum welfare and benefits reach the largest number of children in need of safe and secure homes., It goes without saying that the welfare and benefit of the children is paramount in every case, and the State has the duty to act as parens patriae. Our country has countless children who are orphaned or neglected and in need of loving homes. In these circumstances, it would be in the general interest of all children that such discriminatory impact be removed at the earliest instance, after an in‑depth study and analysis of the various permutations that would arise in opening adoption more widely, without hampering the children's rights. In its exercise of reframing the regulations or laws, it is reiterated that the State cannot make regulations that are facially or indirectly discriminatory on the ground of sexual orientation. It would be entirely wrong if the observations herein are construed as saying that the State should hamper or interfere in queer persons who have in the past or are seeking to adopt as individuals. These observations are to enable the State to consider all options and implications with the object of promoting the best welfare of children, especially whether joint adoption can be facilitated to such willing couples while ensuring that the legal web of statutory protections and entitlements guaranteed to children are operationalised for these children as well., These observations are not meant to impede all possibilities and make all necessary policy and legislative changes, enabling children's welfare. In other words, the possibility of queer couples adopting children should be given equal concern and consideration having regard to the larger interest of the largest number of children and their development., Moulding relief. The breadth and amplitude of the Supreme Court of India jurisdiction is incontestable. The Constitution framers created this as a fundamental right in most emphatic terms. This jurisdiction enables the court to create and fashion remedies suited for the occasion, often unconstrained by previous decisions. Yet the breadth of this power is restrained by the awareness that it is essentially judicial. The court may feel the wisdom of a measure or norm that is lacking; nevertheless, its role is not to venture into functions which the Constitution has authorised other departments and organs to discharge., Social acceptance is an important aspect of the matrimonial relationship, but that is not the only reality; even in the exercise of choice by the parties to a marriage, there may be no acceptance at all by members of their respective families; others may shun them. Yet, their relationship has the benefit of the cover of the law, since the law would recognize their relationship and afford protection and extend benefits available to married persons. This, however, eludes those living in non‑heterosexual unions, who have no such recognition in all those intersections with laws and regulations that protect individual and personal entitlements that are earned, welfare based, or compensatory. The impact, therefore, is discriminatory., Does the existence of such discriminatory impacts, in these intersections with the State, and arising out of a variety of regulations and laws, impel the Supreme Court of India to fashion a remedy, such as a declaration, which enjoins legislative activity, or instructs the executive to act in a specified manner, i.e., achieving non‑heterosexual couple marriage? This aspect cannot be viewed in isolation, but in the context of our Constitution's entrenchment of separation of powers, which according to Kesavananda Bharati, Indira Gandhi and other judgments constitutes an essential feature of the Constitution. It is one thing for this Supreme Court of India to commend the State to eliminate the discriminatory impact of the intersections with laws and publicly administered policies and institutions upon non‑heterosexual couples, and entirely another to indirectly hold that through a conflation of positive obligations cast on the State, such individuals' right to cohabit and form abiding relationships extends to the right to a legally recognised union that must be actualised by State policy or legislation., The petitioners relied on three judgments specifically to argue that this Supreme Court of India could issue directions to fill the legal lacunae: Common Cause, Vishaka & Others v. State of Rajasthan, and National Legal Services Authority. We have briefly summarized why these were in a context different from the case before us., In Common Cause, the court elaborated on the theme of liberty under Article 21 of the Constitution and the façade of dignity inherent in it. The Court relied on Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, Maneka Gandhi, and State of A.P. v. Challa Ramkrishna Reddy. The court also relied on K.S. Puttaswamy, National Legal Services Authority and Shabnam v. Union of India to underline the intrinsic value of dignity and further stated that life is not confined to the integrity of the physical body. Having said that, the Court formulated the right under Article 21 to include the right to die with dignity of a dying or terminally ill person and approved the application of only passive euthanasia. The Court further approved the idea of individual autonomy and self‑determination, building upon the directions granted in the earlier judgment in Aruna Ramchandra Shanbaug v. Union of India. The Court was also influenced by the recommendations of the 241st Law Commission Report which suggested incorporation of additional guidelines in addition to an elaboration of what had been spelt out in Aruna Shanbaug. The Court rejected the argument that the previous ruling in Gian Kaur v. State of Punjab did not rule that passive euthanasia can only be given effect to through legislation and further that the Court could only issue guidelines., The approach of Common Cause, as can be seen from the varied opinions of the Judges forming the Bench, was one of seeing the workability and the need to elaborate guidelines formulated in Aruna Shanbaug. The Court had no occasion, really speaking, but to consider whether the directions given could not have been given. Furthermore, there were reports in the form of Law Commission recommendations which formed additional basis for the Court's discretion and the final guidelines. An important aspect is that all judgments in Common Cause located the right to passive euthanasia premising upon the right to human dignity, autonomy and liberty under Article 142., Vishaka was an instance where there was all‑round cooperation as is evident from the position taken by the Union of India which had expressly indicated that guidelines ought to be formulated by the Court. The trigger for these guidelines was the resolve that gender equality (manifested in Articles 14 and 15 of the Constitution as well as the right to pursue one's profession and employment [Article 19(1)(g)]) needed some express recognition to ensure protection from sexual harassment in the workplace and to work with dignity, a basic human right which needed to be addressed in the context of women at workplace. The Court took note of international conventions and instruments and also held that guidelines had to be formulated for enforcement of Fundamental Rights till a suitable law is made. The Court expressly indicated what kind of behaviour was sexual harassment and further that regulations had to be formulated for prohibited sexual harassment and providing for appropriate penalties at workplace. Other directions were that if the conduct amounted to an offence, the employer had to initiate appropriate action according to law and also ensure that the victims had the option of transfer of their perpetrator or their own transfer. Furthermore, disciplinary action in terms of the rules was directed with a further requirement that necessary amendments were to be carried out. The Court then went on to request the State to consider adopting suitable measures indicating legislation to ensure that the guidelines in the order were employed by the Government., Central to the idea of issuing directions or guidelines in Vishaka was the felt need to address a living concern – that of providing redressal against socially repressible conduct suffered by women in the course of employment. The Court stepped in, so to say, to regulate this behaviour in public places, which though not criminalised or outlawed (other than in the limited context of Section 354 IPC) actually tended towards criminal behaviour. The Court articulated the constitutional vision for bringing about gender parity and, to that end, elimination of practices which tended to lower the dignity and worth of women through unacceptable behaviour. Guided by Article 15(3), the court stepped in, while limiting itself to regulate workplaces essential in the public field (State or State agencies). The Union of India was actively involved and had given suggestions at the time of formulation of these guidelines. At the same time, the court realised its limitation and declared that such guidelines shall continue till appropriate laws are made. Existing service rules were in fact amended to accommodate these concerns, to the extent of incorporating the forums through which such grievance could be articulated. This later culminated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which applies not merely to public but all establishments., In National Legal Services Authority, the Court was confronted with an acute concern wherein the personhood of transgender persons itself was not recognised. The court held that the intrinsic worth of every individual and the value of individuals to fully realise their rights was a premise embedded in the Constitution. The Court sought to address hostile discriminatory practices, which included violence that transgender persons were subjected to routinely. Given all these circumstances, the Court located the right of those identifying themselves as transgender persons squarely under Article 21 of the Constitution. Any discriminatory practice against such persons would violate their Article 15 right. The directions given by the Court were that such persons should be treated as third gender where appropriate and granted legal protection to their self‑identified gender identity. Further, the State and Central Government should seriously address problems faced by them by providing measures for medical care and facilities in hospitals, permitting them access to social welfare schemes for their betterment and take other measures. The court also constituted an expert committee to make an in‑depth study of problems faced by transgender persons., In the present case, however, the approach adopted in the above three cases would not be suitable. The court would have to fashion a parallel legal regime, comprising of defined entitlements and obligations. Furthermore, such framework containing obligations would cast responsibilities upon private citizens and not merely the State. The learned Chief Justice's conclusions also do not point towards directions of the kind contemplated in Vishaka. However, the outlining of a bouquet of rights and indication that there is a separate constitutional right to union enjoyed by queer couples, with the concomitant obligation on the State to accord recognition to such union, is what we take exception to., Conclusion and directions. Marriage, in the ultimate context, is not defined merely by the elements which delineate some of its attributes, and the differing importance to them, depending on times, such as permanence of a sexual partner; procreation and raising of children; stability to family; and recognition in the wider society. Some, or most of these elements may be absent in many relationships: there may be no procreative possibility due to choice, or otherwise; some marriages may have no wider context, such as absence of the larger family circle, due to several reasons, including alienation or estrangement; there may be no matrimonial home, in some marriage, because of constraints including spouses being located in different places; some marriages may be (by choice or otherwise) bereft of physical or sexual content. Yet, these marriages might be as successful, as fulfilling and complete as any other. The reason, in this author's opinion, is that at its core, marriage has significant companionship, friendship, care and spiritual understanding, a oneness, which transcends all other contents and contexts. Thus, home is not a physical structure; it is rather the space where the two individuals exist, caring, breathing and thinking, living for each other. This is how traditionally it has been understood., This feeling need not be unique to marriage; and in fact has come to be enjoyed by many without the cover of it (for example, those who are simply in committed cohabitation relationships). While many others may only be able to experience such a feeling and way of life if it were to have legitimacy in society, akin to marriage. That law has the potential to play such a legitimising role cannot be overstated. The feeling of exclusion that comes with this status quo is undoubtedly one which furthers the feeling of exclusion on a daily basis in society for members of the queer community. However, having concluded that there exists no fundamental right to marry, or a right to claim a status for the relationship through the medium of a law and acknowledging the limitations on this Supreme Court of India in moulding relief, this court must exercise restraint; it cannot enjoin a duty or obligation on the State to create a framework for civil union or registered partnership, or marriage, or abiding co‑habitational relationship. Yet, it would be appropriate to note that everyone enjoys the right to choice, dignity, non‑discrimination, and privacy. In a responsive and representative democracy which our country prides itself on being, such right to exercise choices should be given some status and shape. Of course, what that should be cannot be dictated by courts. At the same time, prolonged inactivity by legislatures and governments can result in injustices. Therefore, action in this regard would go a long way in alleviating this feeling of exclusion that undoubtedly persists in the minds and experiences of this community., The resultant adverse impact suffered by the petitioners in relation to earned benefits, solely because of the State's choice to not recognise their social union or relationship, is one which results in their discrimination. This discriminatory impact cannot be ignored by the State; the State has a legitimate interest necessitating action.
id_366	20
id_366	21	I find that a right to a civil union or an abiding cohabitation relationship conferring a legally enforceable status cannot be situated within Part III of the Constitution of India. On this count too, I agree with the conclusions of Justice Bhat and supplement them with my own reasons., I agree with the reasoning and the conclusion of Justice Bhat with respect to the constitutionality of Regulation 5(3) of the Child Adoption and Regulation Act (CARA) Regulations, 2020., Marriage is a social institution, conditioned by culture, religion, customs and usages in our country. It is a sacrament in some communities and a contract in others. State regulation in the form of codification has often reflected the customary and religious moorings of the institution of marriage. An exercise to identify the purpose of marriage or to find its true character is a pursuit as diverse and mystic as the purpose of human existence; therefore it is not suited for judicial navigation. That does not render the institution meaningless or abstract for those who understand and practice it., In India, the multiverse of marriage as a social institution is not legally regulated by a singular gravitational field. Until the colonial exercise of codification of regulations governing marriage and family commenced, the rules governing marriage and family were largely customary, often rooted in religious practice. This codification, not always accurate and many times exclusionary, was the product of the colonial desire to mould and reimagine our social institutions. However, impelled by our own social reformers, the colonial codification produced some reformatory legislative instruments, ushering in much‑needed changes to undo systemic inequalities. The constitutional project that we committed ourselves to in the year 1950 sought to recraft some of our social institutions, and within the first half‑decade of the adoption of the Constitution, our indigenous codification and reformation of personal laws regulating marriage and family was underway., Even when our own constitutional State attempted codification and reform, it left room for customary practices to co‑exist, sometimes providing legislative heft to such customary practices. Sections 5(iv), 5(v), 77 and 29(2) of the Hindu Marriage Act, 1955 illustrate this. Similarly, the Special Marriage Act, 1954, in the provisos to sections 4(d) and 15(e), saves customary practices without which the marriage would otherwise be null and void. The proviso to section 5 of the Hindu Marriage Act states that a marriage may be solemnised between any two Hindus if the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits a marriage between the two, and similarly for sapindas., Ceremonies for a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party. Where such rites include the Saptapadi (the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. Section 29(2) provides that nothing in the Act shall affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of the Act., Conditions relating to the solemnisation of special marriages state that a marriage between any two persons may be solemnised under the Special Marriage Act if, at the time of the marriage, the parties are not within the degrees of prohibited relationship, provided that a custom governing at least one of the parties permits the marriage. Registration of marriages celebrated in other forms may be done by a Marriage Officer in the territories to which the Act extends if the parties are not within the degrees of prohibited relationship, subject to any law, custom or usage having the force of law that permits the marriage., Legislative accommodation of customary practices is also reflected in section 5 of the Anand Marriage Act. The legal regulation of the institution of marriage today involves regulation of the solemnisation or ceremony of marriage, the choice of the partner, the number of partners, the qualifying age of marriage despite having attained majority, conduct within the marriage and conditions for exit from the marriage. As to ceremonies and solemnisation, section 2 of the Anand Marriage Act, 1909, section 3(b) of the Parsi Marriage and Divorce Act, 1936, sections 10, 11 and 25 of the Indian Christian Marriage Act, 1872 and section 7 of the Hindu Marriage Act are relevant., Conditions relating to the solemnisation of foreign marriages provide that a marriage between parties, one of whom is a citizen of India, may be solemnised by a Marriage Officer in a foreign country if the parties are not within the degrees of prohibited relationship, unless a personal law or custom governing at least one of the parties permits the marriage. Section 5 of the Anand Marriage Act, 1909, does not validate any marriage between persons who are related in any degree of consanguinity or affinity that would, according to Sikh customary law, render the marriage illegal., Validity of Anand marriages: all marriages solemnised according to the Sikh ceremony called Anand Karaj shall be deemed good and valid in law from the date of solemnisation. Requisites to the validity of Parsi marriages include that the marriage be solemnised according to the Parsi form of ceremony called Ashirvad by a priest in the presence of two Parsi witnesses other than the priest., Section 10 of the Indian Christian Marriage Act provides that every marriage under the Act shall be solemnised between the hours of six in the morning and seven in the evening. Section 11 provides that no clergyman of the Church of England shall solemnise a marriage in any place other than a church where worship is generally held according to the forms of the Church of England, unless there is no such church within five miles by the shortest road, or unless he has received a special licence authorising him to do so from the Anglican Bishop of the Diocese or his commissary. Section 25 provides that after the issue of the certificate by the Minister, marriage may be solemnised according to the form or ceremony the Minister thinks fit, provided that the marriage be solemnised in the presence of at least two witnesses besides the Minister., The Hindu Marriage Act, 1955 explicitly recognises the central role that religious ceremonies play in the solemnisation of marriages. The Muslim Personal Law (Shariat) Application Act, 1937 clearly saves the application of personal law to marriages, including the nature of the ceremony. Viewed in this perspective, the diverse religious practices involved in solemnising marriages are undeniable., The choice of the partner is not absolute and is subject to two‑dimensional regulations: minimum age of partners and exclusions as to prohibited degrees. There is a differential minimum age prescription for male and female partners in most legislations. Thus males who have attained the age of majority cannot marry under these enactments, even though they exercise many other statutory and constitutional rights when they attain the age of eighteen., The concept of prohibited degrees of relationship is statutorily engraved in section 5 of the Anand Marriage Act, 1909, section 3(a) of the Parsi Marriage and Divorce Act, 1936, sections 5(iv) and (v) of the Hindu Marriage Act, 1955 and sections 4(d) and 15(e) of the Special Marriage Act, 1954. Persons who have attained the requisite age of marriage under these enactments have their choice and consenting capacities restricted to this extent., Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 reads that notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and wakfs (other than charities and charitable institutions and charitable and religious endowments), the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)., In my considered opinion, the institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practices and religious beliefs. The extant legislative accommodation of customary and religious practices is not gratuitous and is to some extent conditioned by the right to religion and the right to culture, constitutionally sanctified in Articles 25 and 29 of the Constitution of India. This synchronously occupied institutional space of marriage is a product of our social and constitutional realities; therefore comparative judicial perspectives offer little assistance. Given this nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognised within the institution of marriage cannot be said to be unrestricted., The learned Chief Justice has opined that marriage may not attain the social and legal significance it currently has if the State had not recognised and regulated it through law. It is further opined that marriage has attained significance because of the benefits which are realised through it. Until the post‑constitutional codification of laws relating to marriage and divorce, there was no significant State intervention on customary laws relating to marriage. Even today, much of the Muslim law of marriage is governed by religious texts and customs with hardly any State intervention. The Sixth Schedule areas under the Constitution are largely governed by customary laws of marriage. The State’s regulation of the institutional space of marriage does not, by itself, imply that marriage attained significance due to State recognition., I must hasten to add that the foregoing legislative illustrations were presented to demonstrate the cultural relativism involved in the idea of marriage. No singular right can inform unimpeded entry to and unregulated exit from the institution of marriage, for that would disassociate the institution from its social context. The claim of the right to marry, de hors the existing statutory framework, is a claim to create a legally and socially enforceable status. It is not a claim against criminalisation of sexual conduct, which was the issue in Navtej. It is a prayer of mandamus to create the necessary legislative and policy space for recognition of relationships as marriages in the eyes of law. The prayer to recognise such a right does not expect the State to desist from acting, but places positive obligations upon the State to enact new laws or amend existing laws. Marriage laws interact with succession, inheritance and adoption laws, among others. The content of the right claimed by the petitioners places positive legislative obligations on the State and therefore cannot be acceded to. There cannot be a mandamus to amend or enact laws; this is a deeply entrenched constitutional principle that need not be burdened by quotational jurisprudence. The creation of social institutions and consequent re‑ordering of societal relationships are polycentric decisions with multiple interlocking factors, each presupposing decisions on the others, which cannot be rendered by a single judicial stroke., Indian Ex‑Service Movement v. Union of India, (2022) 7 SCC 323., Re: the impermissibility of the creation of a right to a union or an abiding cohabitation relationship. Having concluded that there exists no unqualified right to marry, in the ordinary course no occasion would have arisen for further deliberation. However, as the learned Chief Justice has concluded that there exists a constitutional right to a union or an abiding cohabitation relationship, it is necessary for me to express my opinion on this new construction., The learned Chief Justice locates components of this right to union or an abiding cohabitation relationship under Article 19(1)(a), Article 19(1)(c), Article 19(1)(e), Article 21 and Article 25 of the Constitution. In my opinion it would not be constitutionally permissible to identify a right to a union or an abiding cohabitation relationship mirroring the institution of marriage. The Chief Justice identifies tangible and intangible benefits that arise from State recognition and regulation of marriages. He further opines that the right to marriage is not fundamental, but the tangible and intangible benefits, the denial of which must inform the reading of a constitutional right to an abiding cohabitation union. In other words, the benefits of marriage, however fundamental to a fulfilling life, do not make marriage itself a fundamental right, but they render the right to an abiding cohabitation union fundamental. I find it difficult to reconcile these., The learned Chief Justice opines that it is insufficient if persons have the ability and freedom to form relationships unregulated by the State. For the full enjoyment of such relationships, it is necessary that the State accord recognition to such relationships. Thus, the right to enter into a union includes the right to associate with a partner of one’s choice, recognition of the association, and ensuring that there is no denial of access to basic goods and services, which is crucial to achieve the goal of self‑development. The Chief Justice classifies the status of two persons in a relationship as: (a) relationships which do not have legal consequences, (b) unions which have legal consequences, and (c) marriages. In my considered opinion, positively mandating the State to grant recognition or legal status to unions from which benefits will flow violates the doctrine of separation of powers. The framing of a positive right and the positive entitlements that flow therefrom essentially require the State to regulate such unions and benefits. In effect, the direction is to amend existing statutory frameworks, if not to legislate afresh., Additionally, the opinion of the learned Chief Justice situates the right to choice of a partner and the right to legal recognition of an abiding cohabitation relationship within Article 25 of the Constitution of India. Emphasis is placed on the term “freedom of conscience” which is placed alongside the right to freely profess, practice and propagate religion. The opinion situates in this freedom of conscience the right not only to judge the moral quality of one’s own action but also to act upon it. If that were permissible under Article 25, then the textual enumeration of freedoms in Article 19 would become redundant, since these freedoms can be claimed as actions on the basis of one’s own moral judgment. I find it difficult to agree with such a reading of Article 25., I am not oblivious to the concerns of LGBTQ+ partners with respect to denial of access to certain benefits and privileges that are otherwise available only to married couples. The general statutory scheme for the flow of benefits, gratuities or compensation, leave or compassionate appointment, proceeds on a certain definitional understanding of partner, dependent, caregiver and family. In that understanding, certain classes of individuals – same‑sex partners, live‑in relationships and non‑intimate caregivers including siblings – are left out. The impact of some of these definitions is iniquitous and in some cases discriminatory. The policy considerations and legislative frameworks underlying these definitional contexts are too diverse to be captured and evaluated within a singular judicial proceeding. I am of the firm belief that a review of the impact of legislative framework on the flow of such benefits requires a deliberative and consultative exercise, which the legislature and executive are constitutionally suited and tasked to undertake., For the reasons stated above, and in view of the preceding paragraph, the writ petitions are disposed of.
id_367	0	Mohd. Nawaz Iqbal Shaikh, Applicant, versus the State of Maharashtra and Another Respondent; Salman Khan alias Abdul Rashid Salim, Applicant, versus the State of Maharashtra and Another Respondent; Mr. Vikram Sutaria with Mr. Parag Khandhar on behalf of DSK Legal for the Applicant in application APL/450/22; Mr. Abad Ponda, Senior Advocate with Mr. Parag Khandhar on behalf of DSK Legal for the Applicant in application APL/357/22; Ms. P. N. Dabholkar, Additional Public Prosecutor for the State; Mr. Fazil Hussein for Respondent No.2., The two applications before me invoke the power of the Bombay High Court under Section 482 of the Code of Criminal Procedure, seeking a relief of quashing of an order dated 22/03/2022 passed by the Metropolitan Magistrate, 10th Court at Andheri, Mumbai, issuing process against them for committing the offences punishable under Sections 504 and 506 of the Indian Penal Code. Among the two, one of the applicants, Salman, is a well known cinema artist and is part of the Indian film and entertainment industry, who claims to enjoy an excellent reputation, tremendous goodwill and extensive fan following in India and also on the international platform. The other applicant was working as a bodyguard of Salman Khan at the relevant time when the incident is alleged to have taken place., The complainant is Mr. Ashok Shyamlaal Pandey, a journalist, who alleges that he had a tiff with the accused persons on the given date, which surfaced through his complaint filed before the Metropolitan Magistrate against the two named persons and one unknown person. The complainant narrates that, being a journalist, in the routine course of his profession, he was travelling in his car from Juhu to Kandivali along with his cameraman at around 4.40 p.m. on 24/04/2019. On his way, he noticed Accused No.1 riding a bicycle and Accused Nos.2 and 3 escorting him on a bike. Being a journalist, he asked Accused Nos.2 and 3 whether he could videograph Accused No.1, and once consent was accorded, he started the recording. This, however, irked Accused No.1 and, at his indication, Accused Nos.2 and 3 jumped onto the complainant’s car and assaulted him. Accused No.1 also participated in the assault and forcibly removed the mobile phone of the complainant without his consent., The version in the complaint is worded as follows: the accused persons not only abused and misbehaved with the complainant but also assaulted and threatened him to face dire consequences., The complainant further states that when Accused No.1 started snatching the mobile phone of the complainant, the complainant informed Accused No.1 that he is a journalist by profession and was recording his video with the prior consent of his bodyguards. However, Accused No.1 replied, “Doesn’t matter,” and not only abused and assaulted the complainant but also forcibly snatched the mobile phone and left the place. The complainant states that after snatching, Accused No.1 tried to break the mobile phone and also deleted many applications and important data from the mobile phone., It is worth mentioning that immediately after the incident at around 4.40 p.m. on 24/04/2019, the complainant approached D.N. Nagar Police Station at 18:12 hours and reported the alleged incident. The narration states that after permission was granted to videograph, Accused No.1 looked back and signaled to his bodyguards, who were riding on a motorcycle, and they rushed towards the complainant and his cameraman, who was sitting in the car with an open window, and the complainant was pushed. A verbal altercation ensued between the bodyguards and the occupants of the car, and Accused No.1 returned, snatched the mobile phone from the car and moved ahead. While an attempt was being made to contact the police on number 100, the two bodyguards returned and gave back the mobile phone., The complaint lodged with the police station was, in short, about the misbehavior of Accused No.1 and alleged that, despite being a celebrity, he could not behave irresponsibly, as permission of his bodyguards had been sought before videographing him. The complaint was received at D.N. Nagar Police Station on the same day., Another complaint was addressed to D.N. Nagar Police Station on 27/04/2019 alleging that, pursuant to the complaint recorded on 24/04/2019, the complainant had received calls from distinct numbers and was pressurized to withdraw the complaint. He also expressed apprehension of being followed, and a specific allegation was made that on returning home, when he checked the mobile, certain videos were deleted. A clarification is offered that, although the bodyguards alleged that the complainant was following them for 20 minutes, this is a false statement and, with the help of CCTV cameras, its truthfulness can be ascertained. On 13/06/2019, the Police Inspector of D.N. Nagar Police Station intimated the complainant that the complaint filed by him had been classified as Non‑Cognizable (NC)., Subsequent to this, on 25/06/2019, a complaint was filed before the Metropolitan Magistrate, 10th Court at Andheri, Mumbai, seeking a direction under Section 156(3) of the Code of Criminal Procedure to hold a detailed inquiry into the incident and, in the alternative, to issue process against the accused persons under Sections 324, 392, 426, 506(II) read with Section 34 of the Indian Penal Code and to punish them in accordance with law. The genesis of the complaint is reproduced in the preceding paragraph., On 04/09/2019, the Magistrate passed an order (Exhibit 1) and, by relying upon the decision of the Bombay High Court in Yogiraj Vasantrao Surve v. State of Maharashtra, recorded as follows: From combined perusal of the complaint and documents filed on record, it is apparent that no case of robbery can be perceived from the entire complaint, though there appear to be some elements of assault and mischief. In such circumstances, in view of the judicial ratio, exercise of power under Section 156(3) of the Code of Criminal Procedure is not necessary. Conversely, calling the report under Section 202 of the Code of Criminal Procedure will be well justified as the accused persons are residents of an area beyond the jurisdiction of the Bombay High Court. Thus, considering the grievance of the complainant, the nature of the offence and the above discussion, I am satisfied to refer the case for inquiry under Section 202 of the Code of Criminal Procedure at D.N. Nagar Police Station., The operative part of the order passed by the Magistrate reads as follows: (i) The request of the complainant for directions under Section 156(3) of the Code of Criminal Procedure stands rejected. (ii) The complainant shall furnish a verification statement under Section 200 of the Code of Criminal Procedure. (iii) The matter be referred for inquiry under Section 202 of the Code of Criminal Procedure at D.N. Nagar Police Station, and the Senior Police Inspector of D.N. Nagar Police Station is directed to carry out the inquiry and furnish his report on a fixed date without fail. (iv) The matter be listed for 14/10/2019., In compliance with the aforesaid direction, the complainant submitted a verification statement on 06/01/2020, which is placed on record as Exhibit C. It is sufficient to note that the statement is signed by the complainant but is neither an affidavit nor a verification statement before the Magistrate. In the meantime, the Senior Police Inspector, D.N. Nagar Police Station, forwarded his enquiry report to the Magistrate by Outward Number 1925 of 2020 dated 24/12/2020, and the report conclusively recorded that the complainant started videography without permission of Accused No.1, and the allegation of abuse being hurled by Accused No.1 is denied by the non‑accused. Conclusively, it is held that an altercation had taken place between the complainant and Accused No.1 and his bodyguards and, therefore, offences under Sections 504 and 506 of the Indian Penal Code are made out., Upon receipt of the report, the Magistrate recorded as follows: I have perused the complaint, the statement on oath and the investigation report under Section 202 of the Code of Criminal Procedure filed by D.N. Nagar Police Station. I have heard Mr. Fazil Hussain Shaikh, the learned senior advocate for the complainant, at length. Keeping in view the self‑speaking material on record, the positive police report under Section 202 of the Code of Criminal Procedure and other material on record, there are sufficient grounds to proceed against the accused persons for the offences under Sections 504 and 506 of the Indian Penal Code. Hence I am satisfied to issue process against the accused persons through the following order: (i) Issue process against Accused No.1, Mr. Salman Salim Khan, residing at 3, Galaxy Apartment, B.J. Road, Band Stand, Bandra (West), Mumbai, and Accused No.2, Mr. Mohd. Nawaz Iqbal Shaikh, bodyguard, for the offences under Sections 504 and 506 of the Indian Penal Code., It is this order that is assailed in the applications by the two applicants. The learned senior counsel, Mr. Ponda, would rest his case on two questions of law: first, that the impugned order is bad as it does not adhere to the procedure prescribed under Chapter XV of the Code of Criminal Procedure; second, that, by no stretch of imagination, the offences under Sections 504 and 506 are made out. Apart from this, Mr. Ponda also invites attention to the mala fides in lodging the complaint after a gap of time, which is treated differently from the immediate reporting of the incident to D.N. Nagar Police Station., In support of his first contention, the learned senior counsel submits that the procedure contemplated under Section 200 of the Code of Criminal Procedure is mandatory and the Magistrate is duty‑bound to examine the complaint on oath and, only on its perusal, if a prima facie case is revealed, then process can be issued. This power cannot be abdicated by filing an affidavit in cases involving the Indian Penal Code, and by drawing an analogy with Section 145 of the Negotiable Instruments Act, 1881, it is submitted that filing a verification statement cannot be done merely by tendering an affidavit, as is sought to be done by the complainant in the present case. It is submitted that the impugned order is in utter breach of the procedure prescribed, as the Magistrate has not examined the complainant nor recorded the statement of the witness on oath, under his signature, and the verification filed by the complainant does not comply with Sections 200 and 202 of the Code of Criminal Procedure. In support of the above proposition, Mr. Ponda relies upon the decision of the Apex Court in Shivjee Singh v. Nagendra Tiwary & Ors., as well as the decision of the Karnataka High Court in Sri Sathya Sai Central Trust & Ors. v. State of Karnataka. He also places reliance upon a series of judgments by the Bombay High Court regarding the procedure to be adopted under Section 200 of the Code of Criminal Procedure, where it is categorically held that it is not an empty formality and, when verification is contemplated, the Magistrate must record the statement on oath and apply his judicial mind to the facts before taking any further action. Reliance is also placed upon the decisions of the learned single Judge of this Court in Harish Khushalchand Chandak v. State of Maharashtra & Anr., Amarnath Baijnath Gupta & Anr. v. Mohini Organics Pvt. Ltd. & Anr., and M/s. Nova Electricals, Jalgaon v. State of Maharashtra & Anr., While pressing into service his second point, that Section 504 of the Indian Penal Code is not attracted in the given case, he submits that the complainant alleged that words and gestures made by the accused were intended to insult the complainant, and this material can be gathered from the surrounding circumstances. He places reliance upon the decision in Vasant Waman Pradhan v. Dattatraya Vithal Salvi & Anr., Per contra, the learned counsel, Mr. Hussein, representing the complainant, raises a preliminary objection about the maintainability of the applications under Section 482 of the Code of Criminal Procedure, stating that the remedy available would be filing of a revision under Section 397 of the Code of Criminal Procedure. Apart from this, the learned counsel places reliance upon the decision of the Apex Court in Fiona Shrikhande v. State of Maharashtra & Ors. to buttress his submission that, for invoking an offence under Section 504, there should be an act or conduct amounting to an intentional insult, and it is not necessary that the actual words or their nature appear in the complaint; if, on reading the complaint, it depicts an intentional insult intended to provoke any person to break public peace or to commit any other offence, then the alleged act would definitely fall within the ambit of Section 504 of the Indian Penal Code. With regard to Section 202 of the Code of Criminal Procedure, he places reliance upon the decision in Mohd. Raza Hasan v. State of Maharashtra. Another decision on which reliance is placed is Kangana Ranaut v. State of Maharashtra & Anr., I shall first deal with the preliminary objection of Mr. Hussein to the effect that, when the remedy of filing a revision application under Section 397 of the Code of Criminal Procedure is available, the invocation of Section 482 cannot be justified. The objection deserves a rejection in limine, in light of the decision of the Apex Court in Prabhu Chawla v. State of Rajasthan & Anr., where it has been categorically held that nothing in the Code of Criminal Procedure, not even Section 397, can affect the amplitude of the inherent power preserved in Section 482. The prevailing law is that, merely because a revision application is maintainable, it does not constitute a bar for entertaining an application under Section 482 of the Code of Criminal Procedure, as abuse of the process of the Court or any extraordinary situation justifies its invocation, and, in the words of Justice Krishna Iyer, the limitation is self‑restrained, nothing more. The objection therefore deserves no consideration and I must proceed with the merits of the applications., Section 482 of the Code of Criminal Procedure, which saves the inherent power of the Court, contemplates its exercise to advance the cause of justice. The exercise of the power can be justified in the following situations: (a) to give effect to an order under this Code; (b) to prevent the abuse of the process of the Court; and (c) to otherwise secure the ends of justice. It is a well‑settled position of law that the Court should be guarded in the exercise of this extraordinary jurisdiction to quash any criminal proceedings filed through an FIR, as it denies the prosecution an opportunity to establish its case on production of evidence., The position of law regarding the exercise of power has been eloquently set out in State of Haryana v. Bhajan Lal, where the Apex Court permitted exercise of its ordinary jurisdiction and illustrated distinct situations where quashing of criminal proceedings may be a proper exercise of the power. The quashing has been held to be appropriate in the following contingencies: (1) where the allegations made in the first information report or the complaint, even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused; (2) where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2); (3) where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to a private and personal grudge., In exercising the jurisdiction under Section 482, the Court looks into whether, on the face of the FIR, the allegations constitute a cognizable offence and whether there exists sufficient material to proceed. If the allegations do not constitute an offence of which cognizance is to be taken, it is open to the High Court to quash the proceedings in exercise of its inherent power., At the outset, it must be examined whether the narration in the complaint makes out offences under Sections 504 and 506 and whether the facts could have justified cognizance by the Magistrate and issuance of process against the accused persons. Section 504 of the Indian Penal Code prescribes punishment for an act of intentional insult with an intent to provoke breach of the peace and reads as follows: ‘504. Intentional insult with intent to provoke breach of the peace—Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.’ Section 506 prescribes punishment for criminal intimidation, and the definition of criminal intimidation is set out in Section 503: ‘503. Criminal intimidation—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.’, Turning to the offence described in Section 504, its essential ingredients are: (a) intentional insult, and (b) provocation to any person, intending or knowing it to be likely that it will cause him to break the public peace or to commit any other offence. In the absence of the above ingredients, an act committed would not constitute an offence under Section 504., Reading of the complaint filed before the Magistrate, by no stretch of imagination, could be said to attract the above provision. When the complaint filed under Sections 324, 392, 426, 506(II) read with Section 34 of the Indian Penal Code is carefully read, it alleges that Accused No.1 was riding a bicycle, while Accused Nos.2 and 3 were escorting him, and that the complainant, with due permission, was videographing him, which was noticed by Accused No.1. The complaint states that Accused No.3, described as an unknown person, suddenly jumped onto the car in which the complainant was travelling, and the accusation against Accused No.1, Salman Khan, is that he assaulted and snatched the mobile phone of the complainant without his consent. When the complainant attempted to confront him about the alleged unruly act, he is alleged to have uttered “Doesn’t matter.” This narration, which is in stark contrast to the complaint lodged with D.N. Nagar Police Station on the date of the incident, lacks any accusation of an intentional insult and does not lead to any provocation, knowing that as a consequence the complainant might break public peace or commit any other offence., What is thus contemplated is an act by an accused committed with an intention to insult a person and to provoke him to commit a breach of public peace or any other offence. Words uttered in despair or a gesture, however frightful, by themselves would not attract Section 504 unless they exhibit an intentional insult and provide a cause for provocation to any person of such a nature that the other person would revolt in a manner that would break public peace or result in the commission of any offence. The aforesaid elements are conspicuously absent in the complaint; therefore, no offence is said to have been committed by the accused persons under Section 504., Now turning to Section 506, which provides punishment for criminal intimidation, the term ‘criminal intimidation’ is given a specific meaning in Section 503, which contemplates a threat being administered causing injury to a person’s person, reputation or property, or to the person or reputation of any one in whom that person is interested. However, this act must be committed with an intent to cause alarm to that person or to cause that person to commit an act which he is not legally bound to do, or to omit the commission of an act which he is legally entitled to do, as a means of avoiding the execution of such threat. The essential element of the offence of criminal intimidation is the threat given by a person to cause injury to his reputation, property or person with an intention to create such alarm that the person would act to avoid the execution of such a threat., The emphasis of the Section is on the intention to cause an alarm, but in the present case no such intention is explicit. The allegations leveled against the accused persons in the complaint, apart from being an afterthought, do not meet the necessary ingredients of Sections 504 and 506 that would have warranted the Magistrate to take cognizance upon a complaint. Hence, the impugned order, which issues process for offences under Sections 504 and 506 of the Indian Penal Code, deserves reversal., Now turning to the procedural aspect, before the Magistrate could have concluded about the existence of sufficient grounds to proceed against the accused persons, and had he followed the procedure under Section 200 of the Code of Criminal Procedure, he probably would have arrived at the correct conclusion. On a complaint filed by the complainant seeking issuance of an order and direction under Section 156(3) of the Code of Criminal Procedure, directing the Senior Police Inspector of the police station to hold a detailed inquiry and alternatively to issue process against the accused persons under Sections 324, 392, 426, 506(II) read with Section 34 of the Indian Penal Code, the learned Magistrate turned down the request for directions under Section 156(3). Instead, he directed the complainant to furnish a verification statement under Section 200 and further directed an inquiry to be conducted under Section 202 by D.N. Nagar Police Station and to submit the report. It was imperative for the Magistrate to follow the procedure set out in Section 200 of the Code of Criminal Procedure, which necessarily contemplates examination of the complainant and any witnesses on oath, reducing the substance of such examination in writing, to be signed by the complainant or witnesses and also by himself. Only after this stage was it permissible for him to inquire into the case himself or direct an investigation to be made out by a police officer or any other person he thinks fit, for the purpose of deciding whether there is sufficient ground for proceeding against the accused persons., The proviso appended to Section 202 provides that the direction for investigation shall not be made where the complaint has not been made by a Court, unless the complainant and any witnesses present have been examined on oath under Section 200. In any such inquiry, the Magistrate, if he thinks fit, may record evidence of the witnesses on oath. If, after considering the statements on oath of the complainant and witnesses and the result of the inquiry or investigation under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint by briefly recording his reasons. If, however, the Magistrate is of the opinion that sufficient ground exists for proceeding, he shall issue summons for the attendance of the accused if it is a summons case, and in a warrant case, he may issue a warrant., The procedure prescribed under Chapter XV of the Code of Criminal Procedure is clearly set out and there is no possibility of taking any other route than that directed by the Code. Chapter XVI of the Code, which comprises a provision in the form of Section 204 for issuance of process, is found under the heading ‘Commencement of Proceedings before the Bombay High Court’. Chapters XV and XVI and the sections therein are sequentially arranged, prescribing the procedure to be followed when a complaint is made to a Magistrate for taking cognizance of an offence. Careful reading of the provisions leads to a schematic procedure: upon a complaint being lodged, the Magistrate shall first ascertain whether there exists material sufficient to conclude that the offence has taken place, so that the presence of the accused can be secured before him. This conclusion must be derived from perusal of the complaint and examination of the complainant and any witnesses, the exception being carved out by clauses (a) and (b) of the proviso appended to Section 200 of the Code of Criminal Procedure. Upon being satisfied that the offence might have taken place, the Magistrate, if the accused resides in a place beyond the area in which he exercises jurisdiction, shall postpone the issuance of process against the accused; if he concludes that sufficient ground exists for proceeding, he shall issue summons under Section 204., Section 202, contained in Chapter XV, gives two options to the Magistrate: he can either postpone the issuance of process or inquire into the case himself or direct an investigation to be made out by a police officer or any other person he thinks fit, for the purpose of deciding whether sufficient ground exists for proceeding against the accused. Upon culmination of the inquiry or investigation, if it is found that there is no sufficient material to proceed against the accused, he may dismiss the complaint., A conjoint reading of Sections 200 to 204 leads to the conclusion that, on receipt of the complaint, the Magistrate must satisfy himself about the commission of an offence and, for deriving such a conclusion, he is expected to examine the complainant and any witnesses, if necessary, under Section 200 of the Code of Criminal Procedure. If he is satisfied that there are sufficient grounds to proceed further, he shall take cognizance of the offence and issue process. After following the procedure set out in Section 200, if the Magistrate is not convinced about the existence of material sufficient to take cognizance, he may hold an inquiry himself or direct an investigation as contemplated under Section 202, and if he does not find any prima facie material to proceed further, he shall dismiss the complaint in terms of Section 203., The term cognizance, having been interpreted on numerous occasions to mean the application of mind to the facts of the case, i.e., to become aware of, with reference to a Court or Judge, it means to take judicial note. Once cognizance is taken of an offence, the next step is to secure the presence of the offender before the Court, for which the Magistrate would issue process. The issuance of process must necessarily be preceded by the application of mind to the facts placed before the Magistrate taking cognizance., Section 200 of the Code of Criminal Procedure has thus carved out a procedure, mandatory in nature, for the Magistrate taking cognizance of an offence on complaint.
id_367	1	The Magistrate is not bound to take cognizance merely because a complaint has been filed before him when the complaint does not disclose a cause of action. In S.R. Sukumar v. S. Sunaad Raghuram, the Supreme Court of India correctly crystallised the process, stating that Section 200 of the Criminal Procedure Code provides the procedure for a Magistrate taking cognizance of an offence on complaint., Section 200 of the Criminal Procedure Code requires that, before taking cognizance of an offence on complaint, the Magistrate shall examine the complainant and any witnesses present upon oath. The purpose of examining the complainant is to determine whether the complaint is justified or vexatious. Merely examining the complainant does not mean that the Magistrate has taken cognizance; taking cognizance means that the Magistrate has judicially applied his mind to the contents of the complaint and taken judicial notice of the offence., The mere presentation of the complaint and its receipt by the court does not constitute cognizance. After examining the complaint, the Magistrate normally has three options: issue summons to the accused, order an inquiry under Section 202 of the Criminal Procedure Code, or dismiss the complaint under Section 203 of the Criminal Procedure Code., Upon consideration of the complainant’s statement and the material adduced, if the Magistrate is satisfied that there are sufficient grounds to proceed, he may issue process under Section 204 of the Criminal Procedure Code. Section 202 of the Criminal Procedure Code contemplates postponement of the issue of process; the Magistrate may postpone the issue of process to compel the attendance of the person complained against and either inquire himself, have an inquiry made by a subordinate Magistrate, or order an investigation by a police officer or any other person to decide whether sufficient ground exists for proceeding., If the Magistrate finds no sufficient ground for proceeding, he may dismiss the complaint by recording briefly the reasons, as contemplated under Section 203 of the Criminal Procedure Code. A Magistrate takes cognizance of an offence when he decides to proceed against the accused, not merely when he is informed of the offence by the complainant or by a police report., ‘Cognizance’ therefore refers to the application of the judicial mind by the Magistrate in connection with the commission of an offence and not merely to learning that an offence has been committed. Only after examining the complainant does the Magistrate decide whether to take cognizance. When the complainant is examined, the Magistrate cannot be said to have ipso facto taken cognizance; he is merely gathering material on the basis of which he will decide whether a prima facie case exists., Section 200, as it stands, obliges the Magistrate to record the statement of the complainant or his witnesses on oath before taking cognizance. The use of the word ‘shall’ leaves no scope for the Magistrate to dispense with this requirement., In Tula Ram & Ors. v. Kishore Singh, the Supreme Court outlined the necessary procedure before taking cognizance. The Court held that when a Magistrate chooses to take cognizance, he may peruse the complaint and, being satisfied that sufficient grounds exist, may issue process, but only after complying with the requirement of Section 200 to record the evidence of the complainant or his witnesses on oath., In the present case, the Magistrate failed to adhere to the prescribed procedure because there was no verification of the complainant and he was not examined on oath. The complaint, which was filed, listed the witnesses, including the complainant himself, with the permission of the Honourable Court. On 04/09/2019 the Magistrate rejected the request for issuance of direction under Section 156(3) and directed the complainant to furnish a verification statement under Section 200 of the Criminal Procedure Code., In compliance, on 06/01/2020 a verification was submitted by the complainant without any solemn affirmation, and the Magistrate skipped the important stage of recording his statement on oath, although he indicated that the procedure should be followed. The record also contains an affidavit of the complainant dated 25/06/2019, which predates the Magistrate’s direction of 04/09/2019. This affidavit, though presented as compliance with Section 200, is not valid because the complainant was not examined under oath., Unless the examination of the complainant is made under Section 200 of the Criminal Procedure Code, the Magistrate cannot exercise the powers under Sections 202, 203 or 204. By bypassing the required procedure, the Magistrate issued process against the accused persons, an order that cannot be sustained as it does not comply with Section 200 of the Criminal Procedure Code., The impugned order suffers from two glaring discrepancies: firstly, the invocation of Sections 504 and 506 of the Indian Penal Code was made as an after‑thought without satisfying the ingredients of those sections; secondly, the Magistrate failed to follow the procedural mandate before taking cognizance, as contemplated in Chapters XV and XVI of the Criminal Procedure Code. The continuation of the proceedings would amount to abuse of process of the Court and should be quashed in the interest of justice., In State of Karnataka v. M. Devendrappa, the Supreme Court observed that all courts, whether civil or criminal, possess inherent powers necessary to do right and undo wrong in the administration of justice. While exercising such powers, the Court does not act as a court of appeal or revision; inherent jurisdiction must be exercised sparingly, carefully, and only when justified by the specific tests laid down in the provision., The learned counsel’s reliance on the decision of Fiona Shrikhande does not advance the case, as it was considered in Vikram Johar v. State of Uttar Pradesh & Anr., where the question arose whether the appellant was entitled to discharge for offences under Sections 504 and 506 of the Indian Penal Code and whether the lower courts erred in rejecting the discharge application., The allegations state that the appellant, with two or three unknown persons, one holding a revolver, came to the complainant’s house, used filthy language, attempted to assault him, and fled when neighbours arrived. On its face, this allegation does not satisfy the ingredients of Sections 504 and 506 as enumerated by the Court. The intentional insult must be of such a degree that it provokes a person to break public peace or commit another offence; mere abusive language does not meet this standard., Regarding Section 506 of the Indian Penal Code, which deals with criminal intimidation, the prosecution must prove: (i) that the accused threatened a person; (ii) that the threat consisted of injury to the person’s, reputation’s, or property’s interest, or to someone in whom the accused is interested; and (iii) that the accused acted with intent to cause alarm or to compel the person to do an act they are not legally bound to do, or to omit an act they are legally entitled to do. The plain reading of the complaint does not satisfy all these ingredients., Applying the principles in Fiona Shrikhande and the decision in Manik Taneja v. State of Karnataka, the ingredients of Sections 504 and 506 are not made out, and the complaint filed under Section 156(3) of the Criminal Procedure Code, in the absence of those ingredients, does not justify continuation. The judicial process should not become a means for needless harassment of a well‑known celebrity; the Court, exercising power under Section 482 of the Criminal Procedure Code, can prevent abuse of process and secure the ends of justice for both complainant and accused., The continuation of any action against the applicants would result in grave injustice. Accordingly, the impugned order dated 22/03/2022 and the proceedings before the Metropolitan Magistrate Court, 10th Court, Andheri, Mumbai, in C.C. No. 326/SW/2019 are quashed. The application is granted in terms of prayer clauses (a) and (b).
id_369	0	People's Union for Civil Liberty, Ranchi, through its General Secretary Mr. Shashi Sagar Verma, Petitioner, versus the State of Jharkhand, through the Chief Secretary, Ranchi, and the Department of Law, through its Secretary, Ranchi, Respondents. For the Petitioner: Mr. Shailesh Poddar, Advocate. For the State: Mr. Rajiv Ranjan, Advocate General; Mr. Piyush Chitresh, Additional Counsel to Advocate General. Dated 29 September 2023., Upon hearing the learned counsel for the parties, the Jharkhand High Court passed the following order (per Chief Justice Sanjaya Kumar Mishra)., By filing this Writ Petition (Public Interest Litigation), the petitioner has prayed for the issuance of a writ in the nature of mandamus directing the respondents to provide at least two wheel chairs in every court, judicial or quasi‑judicial forum in the State and also for providing appropriate infrastructure therein for differently abled persons, as per the provisions of Section 12 and Section 45 of the Rights of Persons with Disabilities Act, 2016., On the first date of listing, i.e., 23 June 2023, the Court directed the learned counsel for the State to take appropriate instructions and file a counter‑affidavit. No counter‑affidavit was filed. The matter was listed again on 11 August 2023 and the counter‑affidavit was again directed to be filed within six weeks. To date, no counter‑affidavit has been filed. Consequently, the Court concluded that the State Government has no objection to the prayer made by the petitioners. Moreover, the enactment made by Parliament provides for the aforesaid facilities in all public places., Section 12 of the Rights of Persons with Disabilities Act, 2016 reads as follows: Access to justice. (1) The appropriate Government shall ensure that persons with disabilities are able to exercise the right to access any court, tribunal, authority, commission or any other body having judicial or quasi‑judicial or investigative powers without discrimination on the basis of disability. (2) The appropriate Government shall take appropriate steps to put in place suitable support measures for persons with disabilities, especially those living outside family and those disabled requiring high support for exercising legal rights. (3) The National Legal Services Authority and the State Legal Services Authorities constituted under the Legal Services Authorities Act, 1987 shall make provisions including reasonable accommodation to ensure that persons with disabilities have access to any scheme, programme, facility or service offered by them equally with others. (4) The appropriate Government shall take steps to (a) ensure that all public documents are in accessible formats; (b) ensure that filing departments, registries or any other office of records are supplied with necessary equipment to enable filing, storing and referring to documents and evidence in accessible formats; and (c) make available all necessary facilities and equipment to facilitate recording of testimonies, arguments or opinions given by persons with disabilities in their preferred language and means of communication., Section 45 of the Rights of Persons with Disabilities Act, 2016 provides for the time limit for making existing infrastructure and premises accessible and action for that purpose. (1) All existing public buildings shall be made accessible in accordance with the rules formulated by the Central Government within a period not exceeding five years from the date of notification of such rules; provided that the Central Government may grant extension of time to the States on a case‑by‑case basis depending on their state of preparedness and other related parameters. (2) The appropriate Government and the local authorities shall formulate and publish an action plan based on prioritisation for providing accessibility in all their buildings and spaces providing essential services such as primary health centres, civil hospitals, schools, railway stations and bus stops., A plain reading of the aforesaid provisions leads to the conclusion that the State Government should provide, within a period of five years from the notification of the Rules, the facilities mandated by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1996 and the Rights of Persons with Disabilities Rules, 2017. Thus, it is the duty of the State of Jharkhand to provide the facilities to differently abled persons., In view of the foregoing, the Court allows this Writ Petition (Public Interest Litigation) and hereby directs that, since the five‑year period has already elapsed, the said facilities shall be provided in any court, tribunal, authority, commission or any other judicial or quasi‑judicial body within a period of six months, as undertaken by Mr. Rajiv Ranjan, learned Advocate General appearing for the State., The Chief Secretary of the State of Jharkhand shall execute this order by issuing appropriate directions to the department in charge of providing the infrastructure and other facilities to differently abled persons., There shall be no order as to costs. Any pending application, if any, stands disposed of. Grant urgent certified copy of this order as per the Rules.
id_37	0	CS (Commercial) 701/2023 and Interim Applications 19499-19505/2023, 19515/2023 were presented through advocates Mr. Pravin Anand, Ms. Vaishali Mittal, Mr. Siddhant Chamola, Mr. Shivang Sharma and Ms. Gitanjali Sharma for the plaintiff, and Ms. Mamta Rani Jha, Mr. Rohan Ahuja, Ms. Shruttima Ehersa and Ms. Amishi Sodani for the defendants. The hearing was conducted in hybrid mode., Interim Application 19501/2023 sought leave to file additional documents under the Commercial Courts Act, 2015. The plaintiff was directed to file any additional documents strictly in accordance with the provisions of the Commercial Courts Act, 2015 and the Delhi High Court (Original Side) Rules, 2018. The application was disposed of., Interim Application 19505/2023, filed under Section 12A of the Commercial Courts Act, sought exemption for instituting pre-litigation mediation. The application was allowed and disposed of., Interim Application 19515/2023 sought exemption from advance service to the defendants in view of the plaintiff’s request for an ex parte ad-interim injunction. The exemption was granted and the application disposed of., Interim Application 19502/2023 requested permission to file certain documents and videos on a pen-drive. Permission was granted; the plaintiff shall file the identified videos created and uploaded on the internet by Defendant Nos. 1-4 on a pen-drive within four weeks. The application was disposed of., Interim Application 19503/2023 sought an extension of time for filing court fees. The court fees were to be deposited within one week. The application was disposed of., Interim Application 19504/2023 sought exemption from filing executed and notarised affidavits. Exemption was granted; the plaintiff shall file duly executed and notarised copies of the pleadings and supporting affidavits within four weeks. The application was disposed of., CS (Commercial) 701/2023 and Interim Application 19500/2023 concerned the administration of interrogatories on D-2. The plaint was ordered to be registered as a suit. Summons were to be issued to the defendants, and notice issued in the Interim Application. The summons shall require the defendants to file a written statement within thirty days of receipt, together with an affidavit of admission or denial of the plaintiff’s documents. The plaintiff was given liberty to file a replication within fifteen days of receipt of the written statement, accompanied by an affidavit of admission or denial of the defendants’ documents. Parties wishing to inspect any documents must seek and obtain permission within the prescribed timelines. The matter was listed before the Joint Registrar for marking of exhibits on 20 November 2023 and before the court on 26 March 2024., The plaintiff, Dharampal Satyapal Foods Limited, filed the present suit seeking an injunction against alleged defamatory and derogatory videos uploaded by Defendant Nos. 1-4, 6 and 7. The plaintiff is a well-known manufacturer of various food products, including candies under the brand name PULSE, which was adopted in 2013 under the umbrella brand PASS PASS for the confectionery business. The product is certified and licensed by the Food Safety and Standards Authority of India. Pulse Candy is a hard-boiled flavored candy filled with salt and spices and promoted with the tagline “Pran Jaaye par Pulse Na Jaaye”. Candies under the mark PULSE are sold in flavours such as Kachcha Aam, Guava, Orange, Pineapple, Litchi and Lemon, and the mark is also used for a sweetened drink and a no-salt, sugar-free variant. The pulse candies achieved a turnover of Rs 298,24,58,644 in 2021-2023, and more than Rs 5 crore has been spent on advertisement and publicity of the PULSE trademark., According to the plaintiff, Defendant No. 7, Mr. Ashu Ghai, uploaded a video titled “Most Famous Candy of India” containing a thumbnail that suggested pulse candy could cause cancer. The video contained false, defamatory, and objectionable allegations against the plaintiff’s product. Upon learning of the video, the plaintiff sent a cease-and-desist notice to Mr. Ghai requesting deletion or disabling of the video. Mr. Ghai responded that he would delete the video and gave an undertaking to that effect. However, the video was only made private and not deleted, and the same video has been re-uploaded by Defendant Nos. 1-4 and remains available on the internet., Senior Counsel for the plaintiff submitted that the uploaded videos are available at different URLs and fall into two categories. The first is an eleven-minute video in which Defendant No. 7 is portrayed conducting experiments to conclude that pulse candy can cause cancer; this version was uploaded by Defendant Nos. 1 and 2, who appear to be students of Defendant No. 7. Defendant Nos. 3 and 4 have uploaded a one-minute abridged version of the same video. The plaintiff contends that the videos damage its goodwill and reputation, dilute the brand, and contain false allegations. Defendant No. 7 had previously undertaken not to upload any defamatory videos concerning the PULSE candy, a well-known mark., The plaintiff’s senior counsel presented the undertaking given by Defendant No. 7, which states: I acknowledge that the plaintiff’s companies are the manufacturers and sellers of the PULSE candies and proprietors of the well-known PULSE trademark and trade-dress. I apologize for the video I created and uploaded on YouTube titled “Harmful Effects of Pulse Toffee/Most Famous Candy Of India/Ashu Sir”, and I understand that the video has caused harm to the plaintiff’s company. I apologize for the unauthorized use of the plaintiff’s intellectual property, including trademarks and copyright-protected images, in creating my video. I acknowledge that the video made misleading statements regarding the health effects of the plaintiff’s PULSE candies. I acknowledge that the video constitutes a violation of the plaintiff’s trademark PULSE and of copyright-protected artwork used in the plaintiff’s advertisements. I confirm that I have deleted the video from YouTube and that it is no longer accessible to any person, and that it shall not be made accessible in the future. I undertake to immediately cease and desist from making, publishing, promoting, advertising, or endorsing the video or any similar video on any platform, including YouTube, Instagram, Facebook, X, or any other social media platform, the internet, or in the physical world. I further undertake to ensure that any re-uploaded versions of my video are taken down and do not subsist on the internet now or in the future. I affirm that I am authorized to give this undertaking and that it is binding upon me, my companies, successors, assignees, licensees, heirs, legal representatives, servants, agents, and any business in which we may be directly or indirectly involved. If this undertaking is violated, I undertake to pay the plaintiff’s damages and costs, and the plaintiff shall be at liberty to take action as it deems fit., The court noted that the right to freedom of speech must be protected to communicate verifiable facts based on credible test reports, but sensationalisation that creates baseless fear, especially regarding products that are approved, is not permissible. In Mother Dairy v. Zee Telefilms (2005) 117 DLT 272, the court observed that where truth, justification and fair comment are pleaded, there is no prior restraint on publication unless the court finds malafides. The Gulf Oil case held that an interlocutory injunction would not be granted to restrain publication of defamatory material where the defendant intended to plead justification, unless the material was published as part of a conspiracy whose sole or dominant purpose was to injure the plaintiff., In the present case there is no plea of conspiracy or malafides, as the plaintiff has not identified any competitors by name or particulars. References to posters or hand‑bills taken out by employees of Delhi Milk Scheme were made, but the plaintiff has failed to make out even a prima facie case of malafides or any conspiracy to defame. The defendants reproduced the views of the plaintiff’s representative at Parag Dairy and their Deputy General Manager, claiming to follow the fairness doctrine. The managing director of the defendant was also given an opportunity to present the plaintiff’s version. Consequently, it cannot be said prima facie that the defendants acted malafide or telecast the programme with the intention of defaming the plaintiff. The plaintiff’s allegations regarding the authenticity of samples and the condition of test reports are matters to be decided at trial. Since the programme has already been telecast, the prayer for restraint of its re‑telecast is declined., The court observed that defamation can be addressed through legal remedies such as libel actions or criminal complaints, and that the media has a right to comment vigorously on matters of public interest. However, the media must avoid sensationalism and hype, adhering to principles of accuracy, honesty, truth, objectivity, fairness, balanced reporting, and respect for autonomy. Ethical journalism requires verification of facts, thorough investigation, and avoidance of sweeping comments that may cause public panic, especially concerning food safety and public health., The impugned videos shall be taken down. Defendant Nos. 1, 2, 3, 4, 7 and any unknown defendants must remove the videos within forty-eight hours of service of this order; otherwise the plaintiff shall serve URLs to Google LLC, which shall take them down within seventy-two hours. Google LLC shall also disclose the identity, BSI and account registration details of all uploaders of the two videos for which details are not available to the plaintiff. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure shall be within one week. Reply to the application shall be filed within four weeks from the date of service. The matter is listed before the court on 26 March 2024.
id_370	0	Central Information Commission, Baba Gangnath Marg, Munirka, New Delhi 110067. Shri Faisal Bashir, Appellant, son of the Police Headquarters Jammu and Kashmir, Srinagar. Date of Hearing: 05 July 2023. Date of Decision: 12 July 2023. Chief Information Commissioner: Shri Y. K. Sinha., Relevant facts emerging from appeal: Since both the parties are the same, the above mentioned cases are clubbed together for hearing and disposal., The Appellant filed a Right to Information application dated 01 August 2022 seeking certain information. The Chief Public Information Officer, Police Headquarters, Jammu and Kashmir, Srinagar, vide letter dated 13 August 2022, replied as under. Dissatisfied with the response received from the Chief Public Information Officer, the Appellant filed a First Appeal dated 29 August 2022. The First Appeal Authority / Inspector General of Police (Civil), Police Headquarters, vide order dated 21 September 2022, stated as under. Aggrieved and dissatisfied, the Appellant approached the Central Information Commission with the instant Second Appeal. A written submission dated 21 June 2023 has been received from the Public Information Officer, Police Headquarters, reiterating the above facts., The Appellant participated in the hearing before the Central Information Commission in Srinagar. He stated that exemption under section 8(1)(a), (g), (h) and (j) of the Right to Information Act, 2005 was incorrectly claimed by the Respondent without any reason or justification and that the information should have been proactively disclosed on the website as per Section 4(1)(b) of the Act, which has not been done in the instant matter. He also stated that instead of helping and assisting the citizens, the officers in Police Headquarters, Srinagar asked her to purchase her own paper form for registration of his FIR., The Respondent, represented by Dr. G. V. Sundeep Chakravarty, Public Information Officer and Additional Inspector General (Civil), participated in the hearing before the Central Information Commission in Srinagar. He admitted that exemption under section 8(1)(g), (h) and (j) of the Act was perhaps claimed inadvertently and that exemption under section 8(1)(a) was only applicable in the present matter. He further stated that only the overall budget allocation details are released in the media and can be provided to the Appellant if so directed by the Commission. However, specific information regarding the funds allocated to each police station was not disclosed in order to maintain the operational secrecy and security interest of the state., In the light of the facts of the case and the submissions made by both the parties, the Commission directs Dr. G. V. Sundeep Chakravarty, Public Information Officer and Additional Inspector General (Civil), to re‑examine the Right to Information application and provide a revised response with the overall budget allocation details to the Appellant without compromising on the operational and security interest, by 31 July 2023, with intimation to the Commission. With the above direction, the instant Second Appeal stands disposed of accordingly., The Appellant filed a Right to Information application dated 01 August 2022 seeking certain information. The Chief Public Information Officer, Police Headquarters, Jammu and Kashmir, Srinagar, vide letter dated 13 August 2022, replied as under. Dissatisfied with the response received from the Chief Public Information Officer, the Appellant filed a First Appeal dated 29 August 2022. The First Appeal Authority / Inspector General of Police (Civil), Police Headquarters, vide order dated 24 September 2022, stated as under. Aggrieved and dissatisfied, the Appellant approached the Central Information Commission with the instant Second Appeal., A written submission dated 21 June 2023 has been received from the Public Information Officer, Police Headquarters, reiterating the above facts. The Appellant participated in the hearing before the Central Information Commission in Srinagar. He stated that the stationery expenses of all police stations should at least be provided by the Respondent., The Respondent, represented by Dr. G. V. Sundeep Chakravarty, Public Information Officer and Additional Inspector General (Civil), participated in the hearing before the Central Information Commission in Srinagar. He stated that the information regarding the total number of police stations and police posts was shared with the Appellant. However, the remaining information regarding the office expenditure of each police station was not shared, being classified information which was also not available in a compiled form. He also admitted that exemptions under section 8(1)(g), (h) and (j) of the Act were perhaps claimed inadvertently and that exemption under section 8(1)(a) was only applicable in the present matter., Keeping in view the facts of the case and the submissions made by both the parties, the Commission is of the view that an appropriate response as per the provisions of the Right to Information Act, 2005 has been provided by the Respondent. Hence, no further intervention of the Commission is required in the instant matter. For redressal of his grievance, the Appellant is advised to approach an appropriate forum. With the above observation, the instant Second Appeal stands disposed of accordingly.
id_372	0	Item No. 4 Allowed Criminal Revision Matter (Application) 127 of 2024 In Re: An application for anticipatory bail under Section 438 of the Code of Criminal Procedure in connection with Arambagh Police Station Case No. 436 of 2023 dated 15 December 2023 under Sections 384, 385, 506 and 120B of the Indian Penal Code, 1860., In the matter of Ranjit Das alias Mohan Das, petitioner; Niladri Sekhar Ghosh, Sompurna Chatterjee, Sourov Mondal, Labani Sikder for the petitioner; Sanjoy Bardhan, Learned Additional Public Prosecutor; Shashanka Shekhar Saha for the State. The petitioner seeks anticipatory bail., Learned advocate appearing for the petitioner submits that the petitioner is a journalist working with ABP Ananda and relies upon the identity card issued by the network. He states that the petitioner recorded videography of illegal sand mining and thereafter police complaints were filed falsely implicating him., Learned advocate appearing for the State draws the attention of the High Court of India to the materials in the case diary and submits that the petitioner is guilty of extortion of money from different persons in the locality., The Court perused the materials in the case diary. Apparently, the petitioner is working as a journalist with a TV channel and claims that he recorded illegal sand mining activities in pursuit of his journalistic endeavours. There is an issue of false implication arising out of his journalistic work. Freedom of the press is indispensable to democracy and can be maintained by protecting the press from intimidation. A journalist is part of the press and his freedom to execute journalistic endeavours needs to be protected., In such circumstances, the High Court of India grants anticipatory bail to the petitioner. Accordingly, the Court directs that in the event of arrest the petitioner shall be released on bail upon furnishing a bond of Rs 10,000 (Rupees Ten Thousand only) with two sureties of like amount each, to the satisfaction of the arresting officer and subject to the conditions laid down under Section 438(2) of the Code of Criminal Procedure, 1973. Further, the petitioner shall report before the investigating officer once a month till the conclusion of the investigation and shall appear on every date before the jurisdictional court from the date fixed for appearance of the accused. In default, the jurisdictional court will pass an appropriate order to secure the presence of the petitioner, including cancelling the anticipatory bail granted, without further reference to this Court., This application for anticipatory bail is thus allowed. Criminal Revision Matter (Application) 127 of 2024 is disposed of.
id_376	0	The Supreme Court Collegium has recommended the names of Ms Shamima Jahan, Advocate and Ms Yarenjungla Longkumer, Judicial Officer, for appointment as Judges of the Gauhati High Court in the following terms: The recommendation for appointment of the above two candidates as Judges of the Gauhati High Court was made by the Collegium of the Gauhati High Court on 29 May 2023., On 17 October 2023, the Supreme Court Collegium scrutinized and evaluated the material placed on record. Further consideration of the recommendation was deferred with a view to seek a report from the Chief Justice of the Gauhati High Court in consultation with members of the Gauhati High Court Collegium on the suitability of the candidates, in light of the inputs provided by the Government., The Chief Justice of the Gauhati High Court by letters dated 19 October 2023 and 7 November 2023 forwarded the minutes of the Collegium regarding suitability of the above mentioned candidates. In terms of the Memorandum of Procedure, the Judges of the Supreme Court conversant with the affairs of the Gauhati High Court were consulted to ascertain the fitness and suitability of the two candidates., Having regard to the above and the opinion of our consultee colleagues and on an overall consideration of the recommendation made by the Collegium of the Gauhati High Court, the Collegium is of the considered view that Ms Shamima Jahan, Advocate and Ms Yarenjungla Longkumer, Judicial Officer, are suitable for appointment as Judges of the Gauhati High Court. The Collegium therefore resolves to recommend that Ms Shamima Jahan, Advocate and Ms Yarenjungla Longkumer, Judicial Officer, be appointed as Judges of the Gauhati High Court. Their inter se seniority be fixed in terms of the existing practice., Chief Justice of India Dhananjaya Y. Chandrachud.
id_378	0	In the High Court at Calcutta (Constitutional Writ Jurisdiction) W.P.A 10504 of 2021 Shri Firhad Hakim @ Bobby Hakim & Ors. Mr Tushar Mehta, Learned Solicitor General of India, Mr Y.J. Dastoor, Learned Additional Solicitor General of India for the petitioner. Mr Kishore Dutta, Learned Advocate General, Mr Abhratosh Majumdar, Learned Additional Advocate General, Mr Sayan Sinha for the State Respondents. Date: 17 May 2021., The Calcutta High Court has been called upon to deal with an extraordinary situation where the Chief Minister of the State can sit on a dharna outside the office of the Central Bureau of Investigation (CBI) along with her supporters, which had investigated the case and was to present a charge‑sheet in court against the accused who are senior party leaders of the party in power in the State, some of them being Ministers. Not only this, the Law Minister of the State was present in the Calcutta High Court where the accused were to be presented along with a mob of 2000 to 3000 supporters., The case in hand was mentioned today to be taken up urgently by Mr Y.J. Dastoor, Learned Additional Solicitor General of India. He submitted that a letter of request has been sent by the Central Bureau of Investigation on the official email ID of the Chief Justice of the Calcutta High Court and the Registrar General pointing out certain glaring facts regarding the manner in which the Chief Minister, Law Minister and other senior Ministers of the Government in the State of West Bengal along with their supporters in thousands were obstructing the CBI in discharge of its official duties., A case was registered in terms of the order passed by the Calcutta High Court in WP No. 5243(W) of 2016 under Section 120B Indian Penal Code, Section 7, Section 13(2) read with 13(1)(a) & (d) of the Prevention of Corruption Act, 1988 against a number of accused. The allegation against them is that they had accepted a substantial amount of illegal gratification from Mathew Samuel, a sting operator. Sanction for prosecution was granted by the competent authority and a charge‑sheet was prepared to be filed before the jurisdictional court. The accused were arrested today in the morning and were to be produced in the court of CBI Special Judge (I) Kolkata., Immediately after their arrest, as they are political leaders of the party in power in the State, a number of followers gheraoed the CBI office in Nizam Palace area and did not allow the CBI officers to move out of their office to enable them to produce the accused in court. The matter did not end here. The Chief Minister of West Bengal, Shrimati Mamta Banerjee, also arrived at the spot at 10:50 a.m. and sat on dharna along with the mob. Unconditional release of the accused was sought from the CBI office itself., It was under these circumstances that the matter was mentioned before the Calcutta High Court immediately in the afternoon today seeking a direction to the State to allow the CBI to discharge its function and enable them to produce the accused in court., The prayer of Mr Dastoor was accepted. The matter was directed to be taken up for hearing before the Division Bench of the Calcutta High Court today itself by passing the following order:, Mr Y.J. Dastoor, Learned Additional Solicitor General of India mentioned a matter with reference to case no RC 0102017A0010 and stated that he had already sent an email to the Chief Justice of the Calcutta High Court and also the Registrar General bringing to their notice the dharna outside the office of the Central Bureau of Investigation at Kolkata and the unruly behaviour of certain political persons, as a result of which the CBI officials are not being allowed to discharge their official function. The case pertains to arrest of certain political persons. He also mentioned that similar protests have been made outside the court where the accused are to be presented after arrest. He further mentioned that the Chief Minister of West Bengal also arrived outside the office of the CBI at around 11 a.m. and sat in a dharna along with other political supporters demanding unconditional release of the accused by the CBI itself. The life of the CBI officials is said to be in danger as they are confined in their office. He also mentioned that Mr Kalyan Bandopadhyay, Member of Parliament, had forcibly entered the CBI office and started heckling the officers and the staff., Considering the request made by Mr Y.J. Dastoor, the registry is directed to list the aforesaid petition, which may be treated as filed on the judicial side, before this Bench today itself. The Additional Solicitor General of India and the Advocate General are to be informed about the listing of the matter. A copy of the communication sent by the CBI to the Calcutta High Court is also to be sent by the Additional Solicitor General of India to the office of the Government Pleader on the designated email ID immediately., In view of the urgency pleaded by the Learned Additional Solicitor General, we take cognizance of the matter on the basis of the communication sent to the Chief Justice in the form of a letter. However, we record the undertaking of the Additional Solicitor General that proper pleadings shall be brought on record by 19 May 2021. This is how the matter is before the Calcutta High Court., Mr Tushar Mehta, Learned Solicitor General of India submitted that the CBI registered the case on the direction issued by the Calcutta High Court and arrested the accused, some of whom are members of the State Cabinet. These were to be produced in court, however, the CBI office from where the accused were to be taken to the court was gheraoed by the political supporters of the persons in custody. The crowd was 2000 to 3000. Stone‑pelting was resorted to. Some of the supporters even entered the office of the CBI and manhandled the staff present there. Not only this, the Chief Minister of the State, Shrimati Mamta Banerjee, also came at the spot at 10:30 a.m. and sat on dharna there. The matter did not end here. The Law Minister of the State went to the court where the accused were to be presented along with a crowd of 2000 to 3000 supporters and remained in court throughout the day., This was the ground reality under which the CBI was to function and the Court below was to hear the arguments and pass the order. It is a case in which there is total failure of rule of law. Justice is not only to be done but seen to have been done. It is a case in which pressure was sought to be put on the officer concerned with mob and the Chief Minister and the Law Minister and other Ministers directly present there along with mob., Referring to the provisions of Section 407 Criminal Procedure Code, he submitted that the provision clearly provides for different situations under which trial of the case can be transferred by this Court. In case there is apprehension that a fair and impartial trial is not possible or it is expedient in the ends of justice, this power can be exercised even suo motu by this Court seeing the entire factual situation., He further submitted that arguments in the learned Court below where the accused could be produced only through virtual court are over and the order is to be passed. The entire exercise was to put pressure. The accused persons are still in the custody of the CBI. As the issue of law and order in the State had arisen, the Learned Advocate General was requested to assist the Court. He submitted that Nizam Palace where the CBI office is situated, the major part of it is protected by paramilitary forces. Whenever any senior leader of the party is arrested, supporters always collect there. Senior police officers along with 100 police officials were on duty and no untoward incident was allowed to happen. CBI officers were provided full protection by the local police for discharge of their duty. There is no official complaint filed by the CBI with the police about any incident. However he did not deny the fact that the Chief Minister, Shrimati Mamta Banerjee, was there in the CBI office from 11 a.m. to 5 p.m., He further submitted that if the letter written by the CBI is considered, there is no prayer for transfer of enquiry or trial of the case. With reference to the arguments in terms of provisions of Section 407 Criminal Procedure Code raised by the Learned Solicitor General of India, it was submitted that the matter has to be listed before a Single Bench. There are certain pre‑conditions which are required to be complied with for filing an application. It has to be accompanied by an affidavit. The material before the Court is not sufficient to exercise that power., He further submitted that he did not have any instruction with regard to the presence of the Law Minister in the Court. It was further argued that in case any application is filed under Section 407 Criminal Procedure Code, all the affected parties are to be heard which include the victim, the accused and the witnesses of the case as well., In response, the Learned Solicitor General of India submitted that powers under Section 407 Criminal Procedure Code can be exercised by the Court if it is expedient in the ends of justice. The letter sent by the CBI to the Calcutta High Court mentions the presence of the Chief Minister in the CBI office. That itself is a sufficient ground for transfer of the case. The matter may be taken up immediately otherwise the people will get a message that with mobocracy any order can be secured by putting pressure. In any case he undertakes to file a formal petition as well placing on the record the entire material. In case any of his arguments raised or the facts stated by him are found to be incorrect, Section 407(7) Criminal Procedure Code provides for dismissal of such petition with costs., The Learned Advocate General submitted that he does not have any direct information about any order passed by the Court below where the accused were produced. However, media reports indicate that bail has been granted. He further referred to the provisions of Section 167 Criminal Procedure Code which provide that for grant or extension of police remand, the accused have to be present in person in the Court, whereas for judicial remand it can be virtual., Heard Learned counsel for the parties., The facts which are not in dispute are that a case under the Prevention of Corruption Act was registered against many accused including some of the Ministers in the present Government in the State of West Bengal, on the directions issued by the Calcutta High Court. In view of various orders passed by the Supreme Court, the investigation and prosecution of cases against Members of Parliament and Members of Legislative Assembly were to be monitored by the Court. It was only thereafter that the matter was expedited. Sanction of prosecution was granted by the Competent Authority and four accused were arrested in the morning today. They were to be produced in the Court. Immediately after their arrest, the mob started collecting outside the CBI office. Not only this, at 10:50 a.m., even the Chief Minister of the State, Shrimati Mamta Banerjee, sat on dharna in the office of the CBI. It is claimed by Mr Tushar Mehta, Learned Solicitor General of India, that she was demanding their unconditional release but the fact that she was present there and some supporters were also there was not denied by the Learned Advocate General. In addition, the stand of the Learned counsel for the CBI is that the Law Minister of the State, along with supporters, mobbed the Court where the accused were to be presented along with the charge‑sheet. The Law Minister remained in the Court complex throughout the day till the arguments were heard., In these facts and circumstances, if any order is passed by the Court the same will not have the faith and confidence of the people in the system of administration of justice. Confidence of the people in the justice system will be eroded in case such incidents are allowed to happen in matters where political leaders are arrested and are to be produced in the Court. Public trust and confidence in the judicial system is more important, it being the last resort. They may feel that it is not rule of law which prevails but a mob which has an upper hand, especially in a case led by the Chief Minister of the State in the office of the CBI and by the Law Minister of the State in the Court complex. If the parties to a litigation believe in rule of law, such a system is not being followed., In our opinion, the aforesaid facts are sufficient to take cognizance of the present matter with reference to the request of the Learned Solicitor General of India for examination of the issue regarding transfer of the trial. We are not touching the merits of the controversy but the manner in which pressure was sought to be put will not inspire confidence of the people in the rule of law. As during the period when the arguments were heard, the order was passed by the Court below, we deem it appropriate to stay that order and direct that the accused persons shall be treated as being in judicial custody till further orders. The authority in whose custody they are kept shall ensure that they have all medical facilities available as are required and they are treated in terms of the provisions of the Jail Manual.
id_379	0	Review Petition No. 936 of 2021 Dated this the 28th day of October, 2022 A. Muhamed Mustaque, Judge. This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. The review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra‑judicial divorce of khula, unilaterally. The appeal from which this review arises was filed challenging a divorce decree in Madras Appeal No. 89 of 2020 granted to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939. The appeal was filed by the husband. In the appeal, we noticed the existence of the right of Muslim women to resort to the extrajudicial divorce of khula, allowing her to terminate her marriage. Thereafter, the appeal was disposed of, recording khula and also delineating the different methods of extra‑judicial divorce applicable to Muslim spouses. We declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, conferred on her by the Holy Quran and is not subject to the acceptance or the will of her husband., In the review petition filed by the husband, he does not dispute the authority given to the Muslim wife to invoke khula, but rather raises, as a ground of review, the procedure acknowledged by this Supreme Court of India to invoke the remedy of khula by the Muslim wife. We declared that khula would be valid if the following conditions are satisfied: a) a declaration of repudiation or termination of marriage by the wife; b) an offer to return dower or any other material gain received by her during marital tie; c) an effective attempt for reconciliation was preceded before the declaration of khula., The review petition, though filed by the husband, the courtroom was filled with persons who have shown an interest in the outcome and we allowed all those interested to make submissions. Accordingly, we had the advantage of hearing a Muslim scholar turned lawyer, Advocate Hussain C. S., According to the learned counsel for the review petitioner and Advocate Hussain C. S., the Supreme Court erred in recognising the procedure in effecting khula. According to them, if a Muslim wife wishes to terminate her marriage with her husband, she has to demand talaq from her husband and on his refusal, she has to move the qazi or the court. According to them, though a Muslim woman has a right to demand divorce of her own will, she has no absolute right to pronounce khula like the right of her counterpart to pronounce talaq. It was submitted that, as a consequence of the declaration of law by this Supreme Court of India, a large section of Muslim women are resorting to khula in derogation of the Sunnah. It was also argued that the Supreme Court of India is not competent to decide on religious beliefs and practices and the Court ought to have followed the opinion of Islamic scholars. It was submitted that almost all across the globe, it is recognised that on demand of the wife to terminate the marriage, the husband has to pronounce talaq, obliging her demand. In countries where qazis are recognised, on refusal of the husband, the qazis would terminate the marriage. It was argued that nowhere in the world, a Muslim wife is allowed to unilaterally terminate the marriage. It was further submitted that in the absence of qazis, the competent civil court in India has to terminate the marriage., In the Holy Quran, Chapter II, verse 229, the right of the Muslim wife has been explicitly referred to, which reads thus: \The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. And it is not lawful for you (men) to take back any of your mahr which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah. Then if you fear that they would not be able to keep the limits ordained by Allah, there is no sin on either of them if she gives back the mahr or a part of it for her al‑khul (divorce). These are the limits ordained by Allah, so do not transgress them. And whoever transgresses the limits ordained by Allah, then such are the zalimun (wrong‑doers).\, The limit of moral authority postulated in the above verse alongside the legal right providing a remedy for a Muslim woman may require delineation to decide on the question involved. The moral injunction that one has to be contended with is perhaps reiterated with a warning of the life hereafter, pointing out that they shall not transgress the limits set by the Almighty. The intersection of the moral injunction and the legal right shows the accountability to the Almighty in the life hereafter as per the faith, but it cannot be a determination of the validity of the legal right in a court of law in a secular country. The moral injunction so stipulated in the above verse has to be read in the context of the Prophet’s warning to the believers that divorce is the most hated of the permissible things to Allah (see Sunan Ibn Majah, Book on Hadith, 2018, Vol. 3, Chapter 1, Book 10)., The legal conundrum in this case is not an isolated one. It has evolved over the years as scholars of Islamic studies, who have no training in legal sciences, started to elucidate on the point of law in Islam, on a mixture of belief and practice. Islam has a code of law, apart from laying down rules relating to beliefs and practices. Legal norms are the cornerstones of creating a social and cultural order within the Muslim community. The dilemma that persisted in this case is perhaps more related to the practice that has been followed for years, overlooking the mandate of the legal norm conferring on Muslim women the right to terminate the marriage without the conjunction of the husband. The Supreme Court of India in such circumstances is expected to look at the legal norm, if the same relies upon Quranic legislations and the sayings and practices of the Prophet (Sunnah). The underlying distinction between fiqh and shariah needs to be stressed here. Fiqh has been loosely translated to English as Islamic law and literally means the understanding of what is intended. Shariah means a straight path. Fiqh refers to the science of deducing Islamic laws from the evidence found in the sources of Islamic law. Ordinary scholars and the Islamic clergy, who have no formal legal training, find it difficult to deduce Islamic law from its sources. Fiqh denotes the true intentions and objects of Islamic law. It requires a legal mind to deduce Islamic law from the sources., The dilemma faced by the Islamic clergy in understanding triple talaq was based on the practice followed in society for centuries, on the footing that a single pronouncement of triple talaq would constitute a valid talaq. This was related to the decree of Caliph Umar, who was one of the successors to the caliphate after the demise of the Prophet Muhammad. Noting the misuse of the authority given to the husband, who invariably invoked talaq and revoked talaq thereafter, causing miseries and hardships to the women; on a complaint made by the women and acting on their behalf, the Caliph decreed that such pronouncement of talaq would be a valid divorce. This decree, though, does not look in tune with the Quranic legislation that refers to cyclic pronouncement of talaq at different intervals, and was devised to meet a particular situation in the society at that point in time. Caliph Umar resolved to exercise his executive power to meet a particular exigency, to redress the grievances of women. This power of the ruler is akin to the power exercised by the executive in the modern state. That executive power was so exercised to tide over a particular situation. This practice, allowed at a particular time, was relied upon by the Islamic clergy to justify instantaneous triple talaq, overlooking Quranic injunctions. The Islamic clergy failed to distinguish between the legislative authority of the Quran and the executive power of the Islamic ruler to meet particular contingencies. We have narrated the above aspect only to bring home the point that the Islamic clergy who have no legal training or knowledge in legal sciences cannot be relied upon by the Supreme Court of India to decide on a point of law involved, relating to the personal law applicable to the Muslim community. The Courts are manned by trained legal minds. The Supreme Court of India shall not surrender to the opinions of the Islamic clergy, who have no legal training on the point of law. No doubt, in matters related to beliefs and practices, their opinion matters to the Supreme Court of India and the Court should have deference for their views., The Quranic verse relating to khula found in Chapter 2, verse 229, in unequivocal terms, declares that a Muslim wife has the right to terminate her marriage. The problem presented before us today is based on a reported hadith illustrating an instance of termination of marriage at the instance of a wife during the lifetime of the Prophet Muhammad. In almost all the authorities related to Islamic law, this instance of divorce by a Muslim wife has been reported. We have also referred to the above reported hadith in our judgment under review. One Thabit had two wives. One of them was Jamilah. Jamilah did not like the looks of Thabit. She approached the Holy Prophet and said, \Messenger of Allah! Nothing can keep the two of us together. I do not dislike him for any blemish in his faith or his morals. It is his appearance that I dislike. I want to separate from him.\ The Prophet replied, \Will you give him back the garden he gave you?\ She replied, \I am prepared to give him the garden he gave and even prepared to give more.\ The Prophet said, \You only need to give him the garden.\ Then the Prophet summoned Thabit and told him to accept the garden and divorce Jamilah. Relying on this, the counsel for the petitioner and Advocate Hussain C. S. argued that the Prophet has prescribed a procedure for divorce in the above manner at the instance of a Muslim woman and therefore, it is not open for the Supreme Court of India to prescribe the procedure in a different manner. According to them, on the demand of the wife, the husband has to pronounce talaq. We are called upon to decide as to the true procedure to be followed for divorce at the instance of the wife (khula)., Relying upon Article 25 of the Constitution of India read with the Muslim Personal Law (Shariat) Application Act, 1937, Advocate Hussain C. S. argued that the Muslim Personal Law is the rule of decision in questions relating to marriage, dissolution of marriage, maintenance, etc., of the Muslim community. Citing numerous judgments, the counsel vehemently submitted that the verses of the Quran cannot be the subject matter of interpretation of secular courts., He submitted that the Shariah is based on four sources, namely, the Quran, Sunnah, qiyas (analogy) and ijma (consensus). When the Quran is silent on any aspect, attention must be turned to the Sunnah of the Prophet, thereby using it to supplement the verses of the Quran. He quoted the verses of the Quran and the hadith to buttress this point. Surah Al‑Har, verse 7 reads: \Whatever the Messenger gives you, accept it; and whatever he forbids you, abstain from it.\ The Prophet once said to his followers: \So long as you hold fast to two things which I have left among you, you will not go astray; God’s Book, and His Messenger’s Sunnah.\, According to him, although the Quran grants women the right to obtain khula (verse 2:229), it does not prescribe a procedure for the same. In such an instance, the learned counsel submitted that the correct procedure for khula can be evidenced from the hadith of Thabit. Relying upon the verses of the Quran and the hadith, he contended that the following mandate flows in respect of khula: i) although undesirable, where there is a fear of violation of the limits set by Allah, khula can be obtained; ii) a woman must part with money if she wishes to obtain khula; iii) khula is legally effective only when the husband accepts the wife’s offer of payment and divorces her., The counsel submitted that all Muslim scholars, irrespective of their schools of thought, are unanimous in their opinion that khula is a divorce by mutual consent or agreement, with the acceptance of the husband being an essential element for a valid khula. Submitting that although khula is an extrajudicial form of divorce, when the husband refuses to give consent, it takes the form of faskh (a judicial divorce), thereby forcing the woman to seek the intervention of a qazi (judge). The learned counsel then, however, went on to submit that the judge has no discretion in the matter and has to give effect to the khula, if the wife insists., The learned counsel cited numerous judgments to fortify his submissions on the nature of khula. We are not referring to any of the judgments for the reason that none of the judgments have decided upon the question involved in this review. All the decisions of foreign courts and domestic courts refer to the practice and form of khula exercised. In the judgment cited of the Supreme Court of India in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and another [(2014) 10 SCC 736], the Court had adverted to the form of khula followed, to decide upon a question arising under the Protection of Women from Domestic Violence Act, 2005., In order to understand the true meaning of khula and the procedure to be followed, we need to trace back the evolution of the right of women to obtain a divorce, from the pre‑Islamic period onwards. This period was referred to in the Holy Quran as the period of ignorance. Many of the laws that were in existence in the pre‑Islamic period were modified, adapted or abrogated during the Islamic period. Marriage in pre‑Islamic Arabia was a recognised institution for creating a family which was the primary unit of society. Without marriage, there would be no family and no ties to unite different members of a community. Marriage in pre‑Islamic society was one way to increase the strength of the tribe, by begetting more children who would be the next generation of the tribe. The author refers to the existence of payment of dower by the bridegroom to the bride in pre‑Islamic Arabia. The author also refers to the existence of the right to divorce in pre‑Islamic Arabia, for both men and women. The man had the right to divorce whenever he liked without restrictions and conditions. The right of the wife to dismiss the marriage also has been referred to by the author. The author says that women used to dismiss their marriage at their will. He narrates the procedure as follows: If they lived in a tent, they would turn round, so that if the door had faced east, it now faces west, and when the man saw this, he knew that he was dismissed and he did not enter. A similar kind of divorce has also been referred to in the book titled 'Women and Gender in Islam' written by Leila Ahmed (page 44). Divorce and remarriage appear to have been common for both men and women, either of whom could initiate the dissolution. Kitab al‑Aghani reports: \The women in the Jahiliyyah, or some of them, divorced men, and their manner of divorce was that if they lived in a tent they turned it round, so that if the door had faced east it now faced west and when the man saw this he knew she had divorced him and did not go to her.\ Divorce was not generally followed by the idda, or waiting period, for women before remarriage—an observance Islam was to insist on—and although a wife used to go into retirement for a period following her husband's death, the custom, if such it was, seems to have been laxly observed. Abdur Rahim in his book, The Principles of Islamic Jurisprudence (page 10), refers to another form of termination of the marriage at the instance of wife. The wife among the Arabs had no corresponding right to release herself from the bond of marriage. But her parents by a friendly arrangement with the husband could obtain a separation by returning the dower if it had been paid or by agreeing to forgo it if not paid. Such an arrangement was called khula, literally stripping, and by it the marriage tie would be absolutely dissolved. Thus, it is clear that the woman exercised the authority to divorce unilaterally even during the pre‑Islamic period., In the post‑Islamic period, Islam emphasized conciliation as the preferred mode of resolution of all disputes between the believers. The believers, at the first instance, will have to resort to conciliation before resorting to the authority given to them to terminate any sort of legal relationship. In Surah Al‑Hujurat, Chapter 49, verses 9 and 10 read thus: \And if two parties or groups among the believers fall to fighting, then make peace between them both, but if one of them rebels against the other, then fight all against the one that rebels till it complies with the command of Allah; then if it complies, make reconciliation between them justly, and be equitable. Verily! Allah loves those who are equitable.\ \The believers are nothing else than brothers in Islamic religion. So make reconciliation between your brothers, and fear Allah, that you may receive mercy.\, In Chapter 4, verses 35 and 128, the Quran particularly refers to marital disputes and commands the believers to follow proper conciliation to resolve disputes. Verse 35: \If you fear a breach between them twain (the man and his wife), appoint two arbitrators, one from his family and the other from hers; if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever All‑Knower, Well‑Acquainted with all things.\ Verse 128: \And if a woman fears cruelty or desertion on her husband’s part, there is no sin on them both if they make terms of peace between themselves; and making peace is better. And human inner‑selves are swayed by greed. But if you do good and keep away from evil, verily, Allah is Ever Well‑Acquainted with what you do.\ The authority given to the women in Chapter 2, verse 229, must be read in the above background., Now we return to the procedure illustrated in the reported hadith of Jamilah demanding divorce from Thabit. The Prophet had different roles during his lifetime. He was the messenger of God, he was a mediator and conciliator, and he was also an arbitrator/judge. According to al‑Qarafi, the Prophet functioned in four distinct capacities: messenger, mufti, judge, and imam or head of state. His actions thus constituted either verbatim communications from God, fatwas, judicial rulings (ahkam), or discretionary injunctions (tasarruf) enjoined by the head of state. M. H. Kamali, in his book, The Principles of Islamic Jurisprudence (page 54), discusses the different capacities in which the Prophet acted. The legal Sunnah (Sunnah tashriyyah) consists of the exemplary conduct of the Prophet, be it an act, saying, or a tacit approval, which incorporates the rules and principles of shari’ah. This variety of Sunnah may be divided into three types, namely the Sunnah which the Prophet laid down in his capacities as messenger of God, as the head of state or imam, or in his capacity as a judge. These roles cannot be overlooked while adverting to the true meaning of the procedure followed by the Prophet for terminating the marriage between Jamilah and Thabit at the instance of Jamilah. The direction given by the Prophet to Jamilah to return the garden is on an equitable consideration. In a unilateral divorce invoked by her, she has to return what she had received from her husband. This part constitutes the substantial law as far as khula is concerned. Talaq is considered as a unilateral termination by the husband. The Quran therefore casts an obligation upon the husband to provide fair provisions for the wife’s future, subject to his means (see verses 236 and 241 of Chapter 2, Quran). Verse 236: \There is no sin on you if you divorce women while yet you have not touched them, nor appointed unto them their mahr. But bestow on them a suitable gift, the rich according to his means, and the poor according to his means; a gift of reasonable amount is a duty on the doers of good.\ Verse 241: \And divorced women shall be provided for equitably, a duty upon the righteous.\ These verses establish that the husband is legally bound to ensure fair provisions for the protection of the wife who would be separated on pronouncement of talaq by the husband. It is particularly required to advert to here that the right to invoke talaq or its validity is not dependent on the acceptance or acknowledgment of the provisions for her future., The Prophet was approached by Jamilah as she had no knowledge of the procedure of divorce at her instance. The Prophet responded to her request, asking her to return what she had obtained from Thabit. She agreed and thereafter, Thabit was asked to pronounce talaq. In another instance of khula, referred to in the book 'The Rights and Duties of Spouses', 7th edition, by Maulana Sayyid Abul A’la Maududi, relating to the second wife of Thabit, Habeeba, she was also granted divorce in a similar manner. In another case, during the period of Caliph Umar, a woman pleaded for khula. Umar counseled her to patch up the differences. She was adamant. Then Umar ordered that she be kept alone in a cell for three days, after which she was produced before him. She did not budge from her demand. On production, she said that those were the three nights of peace she had in years. Umar summoned her husband and delivered the judgment and granted her separation. The same author, Maududi, refers to another instance of separation of Rubaiyah, daughter of Muawwiz. She sought separation from her husband, in return for all her property. The husband did not accept the deal. The case was brought before Caliph Osman who accepted the woman's plea and ordered the separation. In all these cases, there was a third‑party intervention, of the Prophet or Caliph (ruler of Arabia). In these cases, on the intervention of the Caliph, the husband pronounced talaq, accepting the return of the property given to the wife. This procedure is being cited as the procedure to be followed for extrajudicial divorce by khula at the instance of the wife., We have to differ on the point of procedure cited by the counsel for the review petitioners and the others. We cannot ignore the situations in these illustrated cases. The obligation of the wife to return the property she obtained from the husband forms part of the substantial law. The mandate of conciliation and the involvement of a third‑party, as referred to in the various instances noted above, cannot be overlooked. It was more of a conciliatory situation where the prophet or ruler, as the case may be, decided the termination of marriage at the instance of the wife, as it also involved the return of property to the husband. In those circumstances, the intervenor could demand that the husband pronounce talaq and terminate the marriage. The pronouncement of talaq by the husband partakes the acknowledgment of the materials he is entitled to receive in return, bringing an end to the marital tie. No doubt, this procedure is most desirable for believers to follow for termination of marriages at the instance of the wife. However, the point is whether this procedure is itself the law for effecting khula. To understand this, one needs to distinguish between hadith and sunnah. Hadith refers to the narration of the conduct of the prophet in a situation, whereas sunnah refers to the law deduced from it. Hadith in this sense is the vehicle or the carrier of sunnah, although sunnah is a wider concept and used to be so especially before its literal meaning gave way to its juristic usage. Sunnah thus preferred not only to the hadith of the Prophet but also to the established practice of the community. But once the literal meanings of hadith and sunnah gave way to their technical usages and were both exclusively used in reference to the conduct of the Prophet, the two became synonymous. This was largely a result of al‑Shafi’i’s efforts, who insisted that the sunnah must always be derived from a genuine hadith and that there was no sunnah outside the hadith. In the pre‑Shafi’i period, 'hadith' was also applied to the statements of the Companions and their Successors, the tabi‘un. It thus appears that 'hadith' began to be used exclusively for the acts and sayings of the Prophet only after the distinction between the sunnah and hadith was set aside. Further, the distinction between legal and non‑legal sunnah is equally relevant. Shah Abdul Hannan in the book Usul al‑Fiqh writes: \A very important classification is legal and non‑legal sunnah. Legal sunnah (sunnah tashriyyah) consists of the prophetic activities and instructions of the Prophet as the Head of the State and as Judge. Non‑legal sunnah (sunnah ghayr tashriyyah) mainly consists of the natural activities of the Prophet, such as the manner in which he ate, slept, dressed and such other activities which do not form a part of shari’ah. This is called adat (habit) of the Prophet in the Nurul Anwar, a textbook of Usul. Certain activities may fall in between the two. Only competent scholars can distinguish the two in such areas. Sunnah which partake of technical knowledge such as medicine, agriculture is not part of shariah according to most scholars.\, The procedure delineated and relied upon only refers to the settlement of a demand and the husband obliging thereon, by accepting return of the materials by pronouncing talaq, at the intervention of a third‑party. That procedure adopted in a particular situation cannot itself be made a general law relating to khula while analyzing the right of the wife to obtain divorce. The general law has to be understood from the purport of the authority given and not with reference to the situation or circumstances under which it was exercised.
id_379	1	In Islamic law, it is desirable that all kinds of disputes are resolved amicably between believers, either by themselves or with the assistance of the Ruler. If the matter is resolved by the Ruler or with the intervention of a third party, that procedure itself cannot be cited as the procedure for the determination and validity of the right conferred under the Quranic legislation. The right itself has to be understood from the scheme of the law. We are not invalidating the procedure of arriving at a settlement between spouses on demand of the wife, as above. We reiterate that that procedure is most desirable for parties and we also clarify our judgment to that extent. However, we cannot hold that a procedure followed situationally be treated as a law when parties are not able to arrive at such a settlement. If the procedure itself is understood as the law, that would derogate from the right conferred on a Muslim wife, under Quranic legislation, to terminate the marriage at her will. The Quranic verses are in unqualified terms recognizing that right., Deduction of law from a particular conduct of the Prophet is not easy as the Prophet acted in different and varied capacities either in isolation or in combination of those capacities. This has resulted in different understandings of the Sunnah among Islamic scholars, extending to beliefs and practices. The existence of different schools of thought among the Muslim community vouches for this. In our judgment under review we also adverted to the different ways of effecting khula across the globe., Many Islamic scholars, while distinguishing the features of legal and non-legal Sunnah, have adverted to the following aspects: to distinguish the legal from non-legal Sunnah, it is necessary for the mujtahid to ascertain the original purpose and context in which a particular ruling of the Sunnah has been issued and whether it was designed to establish a general rule of law. The Hadith literature does not always provide clear information as to the different capacities in which the Prophet might have acted in particular situations, although the mujtahid may find indications that assist him to some extent. The absence of adequate information and criteria on which to determine the circumstantial and non-legal Sunnah from that which constitutes general law dates back to the time of the Companions and has persisted ever since, leading to disagreement among the ulema over the understanding and interpretation of the Sunnah., According to the learned Advocate Hussain C.S., if the husband refuses to pronounce talaq on the request of the wife, a qadi has the power to pronounce talaq, and in the absence of a qadi, the modern Supreme Court of India can exercise the power of qadi. A qadi can act as a conciliator, mediator and also as guardian. A qadi, in Islamic law, has the following powers and functions: mediation figured prominently in resolving disputes arising in pre‑industrial Islamic societies, including quasi‑legal matters and those between siblings or spouses. In addition to resolving disputes, the judge’s typical activities included supervising charitable trusts; acting as a guardian over orphans; attending to public works; and leading Friday prayers and funeral prayers (an exclusively male province), among other responsibilities. The courts also functioned as judicial registries. The Quran and Hadith literature do not provide explicit provisions setting forth necessary qualifications or credentials concerning service in the judiciary, although Islamic scholars later draw upon these textual sources to support opinions on the subject. A qadi cannot be equated with a court in the modern State; the reference to the qadi in this context is to exercise his authority as a guardian rather than as an adjudicator., It is acknowledged by Islamic law that the Muslim wife has the right to demand termination of marriage. The argument that if the husband refuses, she has to move the Supreme Court of India stares at us. For what purpose she has to move the Supreme Court of India, begs the question. The Supreme Court of India is neither called upon to adjudicate nor to declare the status, but simply has to pronounce termination of marriage on behalf of the wife. The Supreme Court of India in our country is not a guardian of an adult and able woman. If there is nothing for the Supreme Court of India to adjudicate, the Supreme Court of India cannot assume the role of a guardian and pronounce termination of marriage at the instance of a woman. Conferring authority upon the Supreme Court of India is an exercise in futility, as the Supreme Court of India cannot entertain the request where there is no dispute to be resolved between the parties. The relief of declaration of status based on divorce can be given only when divorce is effected through an extra‑judicial method. If the Supreme Court of India treats such a request for termination in the same manner as faskh, there would be no obligation on the part of the wife to return the materials she obtained from her husband. In judicial divorce in the nature of faskh, the courts decide the cause on the premise of fault. If the arguments of the review petitioner are accepted that the Supreme Court of India will have to pronounce termination of marriage, then the claim for khula would turn on fault. The very nature of khula has always been recognised as a mode of divorce on a no‑fault basis. This is exactly the reason, in the judgment under review, we interpreted that the residuary ground referred to under Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 cannot be equated with khula. The Dissolution of Muslim Marriages Act only contemplates dissolution of marriage at the instance of Muslim women on fault grounds. If the Qur’an, in unequivocal terms, permits spouses to terminate their marriage on their own will, it cannot be said that the Sunnah further qualifies it, subjecting it to the will of the husband, in the case of khula., Sunnah cannot override or abrogate the primary legislation. As Sunnah is the second source of the Shari‘ah next to the Qur’an, the mujtahid is bound to observe an order of priority between the Qur’an and Sunnah. Hence, in his search for a solution to a particular problem, the jurist must resort to the Sunnah only when he fails to find any guidance in the Qur’an. Should there be a clear text in the Qur’an, it must be followed and given priority over any ruling of the Sunnah which may be in conflict with the Qur’an. The priority of the Qur’an over the Sunnah is partly a result of the fact that the Qur’an consists wholly of manifest revelation (wahy zahir) whereas the Sunnah mainly consists of internal revelation (wahy batin) and is largely transmitted in the words of the narrators themselves. The authenticity of the Qur’an is not open to doubt; it is decisive in respect of authenticity and must therefore take priority over the Sunnah, or at least over that part of the Sunnah which is speculative (zanni). The Sunnah is explanatory to the Qur’an and should occupy a secondary place in relationship to the source. The order of priority between the Qur’an and Sunnah is clearly established in the Hadith of Mu‘adh b. Jabal, which was also communicated in writing by ‘Umar b. al‑Kattab to two judges, Shurayh b. Harith and Abu Musa al‑Ash‘ari, who were ordered to resort to the Qur’an first and to the Sunnah only when they could find no guidance in the Qur’an. Two other prominent Companions, ‘Abd Allah b. Mas‘ud and ‘Abd Allah b. ‘Abbas, are on record as having confirmed the priority of the Qur’an over the Sunnah. There should in principle be no conflict between the Qur’an and the authentic Sunnah. If a conflict is seen to exist, the sources must be reconciled as far as possible and both should be retained. If reconciliation is not possible, the Sunnah in question is likely to be of doubtful authenticity and must therefore give way to the Qur’an. No genuine conflict is known to exist between the Mutawatir Hadith and the Qur’an; all instances of conflict between the Sunnah and the Qur’an originate in solitary (ahad) Hadith, which are of doubtful authenticity and subordinate to the overriding authority of the Qur’an., The nature of law given in the Qur’an is classified as defining law and declaratory law. There are varieties of sub‑classes of law under these headings. M.H. Kamali, in his book The Principles of Islamic Jurisprudence (pages 279‑280), refers to defining law as follows: Hukm shar‘i is divided into the two main varieties of al‑hukm al‑taklifi (defining law) and al‑hukm al‑wad‘i (declaratory law). The former consists of a demand or an option, whereas the latter consists of an enactment only. ‘Defining law’ is a fitting description of al‑hukm al‑taklifi, as it mainly defines the extent of man’s liberty of action. Al‑hukm al‑wad‘i is rendered ‘declaratory law’, as this type of hukm mainly declares the legal relationship between the cause (sabab) and its effect (musabbab) or between the condition (shart) and its object (mashrut). Defining law may thus be described as a communication from the Lawgiver which demands the mukallaf to do something or forbids him from doing something, or gives him an option between the two. This type of hukm occurs in the well‑known five categories of wajib (obligatory), mandub (recommended), haram (forbidden), makruh (abominable) and mubah (permissible). Declaratory law is also subdivided into the five categories of sabab (cause), shart (condition), mani‘ (hindrance), ‘azimah (strict law) as opposed to rukhsah (concessionary law), and sahih (valid) as opposed to batil (null and void)., Human actions are categorised according to a scale of five values, namely those that are obligatory (wajib), recommended (mandub, also mustahab), permissible (mubah, also ja‘iz), reprehensible (makruh) and forbidden (haram). The first and last of these, namely the wajib and the haram, are legal categories that are binding and may be justiciable. These two categories mainly originate in the decisive rulings of the Qur’an and Hadith and are fairly limited in scope, whereas the remaining three categories occupy a much wider space, as they are also largely developed through juristic interpretation and ijtihad. The ijtihadi conclusions and rules concerning the evaluative labeling of human conduct into these categories are, on the whole, instructive and often rationally undisputable yet not binding unless they are also upheld and endorsed by general consensus (ijma‘), in which case they become part of the actionable ruling (hukm) of the Shari‘ah and acquire a binding force. These five values, known as al‑ahkām al‑khamsah, constitute the main bulk of the practical or positive law (ahkām ‘amaliyyah) and the main subject matter of fiqh. The wajib and haram pertaining especially to human relations and muamalat are enforceable in the courts of Shari‘ah, but those which pertain to the purely religious and devotional aspects of Islam, such as performing the prayer or hajj, normally do not give rise to legal action. The other three categories are not enforceable and basically fall outside the ambit of law enforcement; they are matters mainly of personal choice and may consist of advice, encouragement or discouragement, etc., In Imam Al‑Shatibi’s theory of the higher objectives and intents of Islamic law, the sub‑category of mubah (permissible) is explained as follows: ‘That which is permissible, insofar as it is permissible, is something which one is neither required to do nor required to refrain from.’ The Lawgiver’s intention makes no difference whether one performs such an action or refrains from it. Scholars have described actions which fall into this category as neutral in the sense that there is an equal preference for performing them or refraining from them, and that one is free to choose between these two options. Thus the term ‘permissible’ means that the Lawgiver intends neither that we perform such an action nor that we refrain from it; consequently, neither choice is required of us, for if we were required either to perform it or to refrain from it, it would fall into one of the other four categories of actions and could no longer be classified as ‘permissible’., The nature of khula is that it is a permissible action for the Muslim wife who seeks to exercise the option of terminating her marriage. This reflects the autonomy of choice exercised by the wife. The will of the wife so expressed cannot be related to the will of the husband who has not expressed his choice to terminate the marriage. Categorising khula as permissible is intended to retain that action within the domain of the person who exercises the option, relating it to her autonomy. Extending such actions to the will of another would keep the action out of the category of permissible. The law, therefore, cannot be constrained by the will of the husband, upon whom no authority is conferred to enforce such permission. There is no qualifying obligation on the husband in the form of the five categories of defining law, either in the Qur’an or the Sunnah, to accept or repudiate the wife’s will and make the permissible activity contingent upon any qualifying factors., The review petitioner would admit that neither the Qur’an nor the Sunnah provides any guidance in the event the husband refuses to pronounce talaq. As already noted, the invocation of khula in the cases referred to by different authorities all refers to the intervention of a third party, such as the ruler. Islam itself has provided guidance to overcome situations where a legal vacuum is created., Muslim women in India are confronted with a situation where no solution would be available to them to effectuate the right conferred on them by Quranic legislation if the arguments of the review petitioner are accepted. These arguments have been raised on the footing that the traditions and practices that have been followed have become part of faith. In light of the above argument, we also consider a different dimension of the question from the perspective of those who conform to the faith., Istihsan is an Arabic term for juristic discretion. In Principles of Islamic Jurisprudence, M.S. Kamali (pages 218‑220) defines istihsan as follows: the jurist who resorts to istihsan may find the law to be either too general, or too specific and inflexible. In both cases, istihsan may offer a means of avoiding hardship and generating a solution which is harmonious with the higher objectives of the Shari‘ah. It has been suggested that the ruling of the second caliph ‘Umar b. al‑Khattab, not to enforce the hadd penalty of amputation of the hand for theft during a widespread famine, and the ban he imposed on the sale of slave‑mothers (umm al‑walad), and marriage with kitabiyahs in certain cases were all instances of istihsan. For ‘Umar, public interest, equity and justice justified setting aside the established law. The Hanbali definition of istihsan seeks to relate istihsan closely to the Qur’an and the Sunnah; according to Ibn Taymiyyah, istihsan is the abandonment of one legal norm (hukm) for another which is considered better on the basis of the Qur’an, Sunnah, or consensus. The Maliki view treats istihsan as a broad doctrine, somewhat similar to istislah, which is less stringently confined to the Qur’an and Sunnah than the Hanafi and Hanbali schools., In Istihsan: The Doctrine of Juristic Preference in Islamic Law by Saim Kayadibi, the author notes that during the early Islamic period the term istihsan was neither known nor directly defined, and when it was applied in judgment it was done without a specific definition. Support of istihsan considered the fundamental principle of ease and avoidance of hardship as its sole basis. The rights and obligations conferred upon believers in Islam cannot be denied for want of a system as envisaged in Shari‘ah., In Shari‘ah Law: An Introduction, M.H. Kamali (pages 274‑275) discusses various instances when the principle of istihsan was put into practice by the Caliphs to remedy injustice caused by strict application of Shari‘ah. For example, in the case of inheritance where strict application of Qur’anic rules would give two maternal brothers one‑third of the estate and exclude two full brothers, Caliph ‘Umar b. al‑Khalid intervened after consultation with leading Companions and ordered an equal share for all brothers. Similar inequities can arise due to technical reasons and may be addressed by recourse to istislah. Judges should not hesitate to invoke istislah when it can serve the ideals of equitable distribution. However, to date Muslim countries have not introduced enabling legislation that would authorize judges to apply istislah to remedy such situations. Istislah does not seek to introduce new law; it is designed to address case‑by‑case situations where strict implementation of existing law may lead to unfair results, offering potential to vindicate equity and fairness. Realising this potential requires lawmakers, judges and jurists of great professional fortitude to make laws and adjudicate cases that break away from the prevailing mindset of taqlid., It is also important to give due consideration to the maqāṣid (goals and purposes) of Shari‘ah. M.H. Kamali, in Shari‘ah Law: Questions and Answers (pages 204‑205), explains that the maqāṣid of Shari‘ah refer to the higher purposes of Islamic law, the meaning, purpose and wisdom that the Lawgiver contemplated in enacting Shari‘ah laws. These goals give the law a sense of direction and purpose and indicate that the rules of Shari‘ah, especially in the spheres of human relations and muamalat, are not meant for their own sake but to secure certain objectives. When the dry letter of the law is applied in a way that does not secure its intended purpose, or when it leads to harm and prejudice, the law becomes a purposeless exercise that must be avoided. The laws of Shari‘ah are generally meant to secure justice and the interests and prosperity of the people both in this world and the hereafter., The maqāṣid of Shari‘ah can be arrived at by the process of ta‘līl (ratiocination). Ta‘līl is not valid with regard to ‘ibādah (acts of worship), but outside this area the Shari‘ah encourages investigation and enquiry into its rules. Ratiocination in the Qur’an means that the laws of Shari‘ah are not imposed for their own sake nor for mere conformity, but aim at the realization of certain benefits and objectives. When a particular law no longer secures its underlying purpose and rationale, it must be substituted with a suitable alternative; otherwise the objective of the Lawgiver is neglected. According to al‑Shāfi‘ī, the rules of Shari‘ah concerning civil transactions and customary matters follow the benefits (ma‘lī) they contemplate. For instance, a deferred sale of dirham for dinar is forbidden because of the fear of usury, whereas a period loan is permitted because it secures a benefit. Similarly, fresh dates may not be sold for dry dates for fear of uncertainty and usury, but the Prophet permitted this transaction (‘arī) because of the people’s need. Instances of abrogation in the rulings of the Qur’an and Sunnah during the Prophet’s lifetime can be understood in these terms. The Caliph ‘Umar b. al‑Khalid suspended the hadd punishment of theft during a famine, stopped distribution of agricultural land to Muslim warriors in Iraq despite a Qur’anic ruling, and suspended the share of pagan friends of Islam in zakah revenues, reasoning that ‘Allah has exalted Islam and it no longer needs their support’. These actions departed from the literal letter of the Qur’an on rational grounds, aligning with its general purpose.
id_379	2	In the absence of any other method in the manner suggested by the counsel for the review petitioner and others, to effectuate the right conferred on Muslim women being prevalent in this country, the Supreme Court of India's authority in conferring upon Muslim women the right to invoke khula at her own will will have to be respected., The Qur'an lays emphasis on the power of the authority and directs the faithful to follow the authority in Chapter 4:59 of the Qur'an by commanding believers as follows: 59. O you who believe! Obey Allah and obey the Messenger (Muhammad), and those of you (Muslims) who are in authority. And if you differ in anything amongst yourselves, refer it to Allah and His Messenger, if you believe in Allah and in the Last., R.P. No. 936 of 2021 in MAT Appeal No. 89 of 2020 Day is better and more suitable for final determination., Al Haj A. D. Ajijola in the book What is Shariah? (page 161) has discussed the power vested in the authority to enact laws: Strictly in theory in Islam, the authority to enact laws primarily belongs to God, and He alone has the supreme legislative power in the Islamic system. The Caliph, or the Executive Head of the Muslim Commonwealth, has no sovereign power nor any royal prerogative; he is theoretically simply the principal magistrate to carry out the injunction of the Qur'an and the ordinances of the Prophet. He has no legislative functions as God alone is the Legislator in Islam. Thus, according to the Muslim concept of law and the popular belief, there is technically no legislative power in the state. In reality, these refer only to the basic law expressed or implied in the Qur'an or accepted Hadith. In any case, this actually means that any law made by the Muslim community must not be repugnant or be in conflict with the provision of the Qur'an and the accepted Prophet's tradition. Otherwise, a Muslim state, like a non‑Muslim state, has unlimited power to make law for the protection and the good of the community., Istihsan is a doctrine for the courts to adopt and apply if there are no other methods to streamline the rights conferred on believers to act upon., Assuming that the argument of the review petitioner holds good, in the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the Supreme Court of India can simply hold that khula can be invoked without the conjunction of the husband., We, therefore, find no reason to review the judgment. We record our deepest appreciation to Advocate Hussain C. S., who is not a practitioner before the Supreme Court of India, having argued the case with meticulous preparation, despite the fact that we cannot accept his views and opinions.
id_380	0	These appeals have been preferred by the appellants, Khoiram Ranjit Singh (referred to as Appellant 1) and Pukhrihongam Prem Kumar Meiti (referred to as Appellant 2), under Section 21 of the National Investigation Agency Act, 2008 seeking reduction of fine and/or reduction of the default sentence imposed on the convicted appellants in National Investigation Agency case No. RC‑05/2017/NIA/DLI (order dated 29 April 2022 by the Additional Sessions Judge, Patiala House Courts, Delhi). The allegations were that they were active cadres of the Kangleipak Communist Party, a banned terrorist organisation, and were involved in anti‑national and terrorist activities in Manipur and other parts of India, including procurement of arms and ammunition for terrorist activities in Delhi and the National Capital Region., The proceedings originated from First Information Report No. 02/2017 lodged by the Special Cell, Delhi Police on 12 January 2017. In compliance with order No. F‑No.11011/15/2017‑IS.IV dated 15 March 2017 issued by the Ministry of Home Affairs, Government of India, the National Investigation Agency registered the case as RC‑05/2017/NIA/DLI on 16 March 2017. Investigation revealed that the appellants were ground workers of the Kangleipak Communist Party and had committed various crimes. Appellant 1 was involved in raising funds for the party. Two hand grenades were recovered from the residence of Appellant 1 on 17 January 2017. On 12 January 2017, a disclosure statement of Appellant 2 indicated that, on the instructions of Appellant 1, Appellant 2 collected four hand grenades, one 9 mm English pistol, and six 9 mm live cartridges from co‑accused Sanabam Inobi., The National Investigation Agency filed the Final Report/Charge Sheet No. 06/2017 on 10 July 2017 against three accused persons, including the appellants, inter alia under various provisions of the Indian Penal Code, 1860, the Unlawful Activities (Prevention) Act, 1967, and the Explosive Substances Act, 1908., On 18 August 2020, charges against Appellant 1 were framed under Section 120B of the Indian Penal Code, Sections 17, 18B, 20, 38, 40 and 23 of the Unlawful Activities (Prevention) Act read with Section 120B of the Indian Penal Code, and Sections 5 and 6 of the Explosive Substances Act. Charges against Appellant 2 were framed under Section 120B of the Indian Penal Code, Sections 17, 18B, 20, 38, 40 of the Unlawful Activities (Prevention) Act read with Section 120B of the Indian Penal Code, Sections 18, 23 of the Unlawful Activities (Prevention) Act, Section 5 of the Explosive Substances Act, and Sections 25 and 7 of the Arms Act, 1959., The appellants pleaded not guilty to the charges and claimed trial. During trial, by separate applications under Section 299 of the Code of Criminal Procedure, 1973 on 1 April 2022, the appellants accepted the charges and pleaded guilty. The Additional Sessions Judge noted that the voluntary plea of guilt indicated remorse and was a mitigating factor., The Additional Sessions Judge ordered a Socio Economic Inquiry Report. The report revealed that Appellant 1’s family consists of his aged mother, three children, and his wife, a cancer patient who is the sole earner and weaves for a living. The annual income of the family is Rs 60,000 and they live in a simple mud structure. Appellant 2’s family consists of four children and his wife, also a weaver and the sole earner. Their annual income is Rs 90,000 and they also live in a simple mud structure., Considering the appellants’ extremely poor financial condition and satisfactory jail conduct, the Additional Sessions Judge, in the order dated 29 April 2022, sentenced the appellants as follows:\n\nAppellant 1 – for each of nine offences: Rigorous Imprisonment of 5 years, Fine of Rs 3,000 with Simple Imprisonment of 3 months in lieu of fine for offences under Section 120B IPC, Section 17 UAPA, Section 18B UAPA, Section 20 and 38 UAPA, Section 18 UAPA, Section 40 UAPA, Section 23 UAPA; and Rigorous Imprisonment of 5 years, Fine of Rs 3,000 with Simple Imprisonment of 3 months in lieu of fine for offences under Sections 5 and 6 of the Explosive Substances Act. Total fine: Rs 39,000; total default imprisonment: 2 years 6 months.\n\nAppellant 2 – for each of nine offences: Rigorous Imprisonment of 5 years, Fine of Rs 3,000 with Simple Imprisonment of 3 months in lieu of fine for offences under Section 120B IPC, Section 17 UAPA, Section 18B UAPA, Section 20 and 38 UAPA, Section 18 UAPA, Section 40 UAPA, Section 23 UAPA; Rigorous Imprisonment of 5 years, Fine of Rs 3,000 with Simple Imprisonment of 3 months in lieu of fine for offences under Section 5 of the Explosive Substances Act and Sections 25 and 7 of the Arms Act. Total fine: Rs 39,000; total default imprisonment: 2 years 6 months., The counsel for the appellants submitted that the appellants have already served the seven‑year substantive sentence and would remain incarcerated due to non‑payment of the fine of Rs 39,000 each, which is disproportionate given their socio‑economic condition. In default of payment, the appellants would serve an additional 30 months of sentence, which exceeds one‑fourth of the substantive sentence., The Special Public Prosecutor for the National Investigation Agency argued that the appeal is barred by limitation as it is filed beyond 30 days, and even the extended period of 90 days under Section 21(5) of the National Investigation Agency Act. He emphasized that the offences are serious, involving possession of explosives, extortion and terror financing, and cited Sections 63 to 67 of the Indian Penal Code, which govern the levy of fines and imprisonment in default of fine., The respondents relied on several Supreme Court judgments, including Adamji Umar Dalal v. State of Bombay (1951) SCC 1106, Shantilal v. State of Madhya Pradesh (2007) 11 SCC 243, Shahejadkhan Mahebubkhan Pathan v. State of Gujarat (2013) 1 SCC 570, Mohd. Issa v. State (2013) SCC OnLine Del 1377, Sharad Hiru Kolambe v. State of Maharashtra (2018) 18 SCC 718, Deepak Kumar Ganesh Rai Manto v. State of Goa & Anr. (order dated 28 February 2023 in SLP (Cr.) No. 1212/2023), Government of NCT of Delhi v. Sonu (Cr. A. No. 1256/2019), and State of Madhya Pradesh v. Udham (2019) 10 SCC 300., Sections 63 to 70 of the Indian Penal Code are relevant to the power of courts to impose fines. Section 63 provides that where no maximum fine is prescribed, the fine shall be unlimited but not excessive. Section 65 limits imprisonment in default of fine to one‑fourth of the maximum term of imprisonment for the offence. Section 66 allows the description of imprisonment for default of fine to be any description applicable to the offence. Section 68 states that such imprisonment shall terminate when the fine is paid or levied by law., The appellants seek reduction of the fine amount, which for each offence is Rs 3,000 or Rs 5,000, resulting in a cumulative fine of Rs 39,000 and a default imprisonment of 30 months. Since the substantive sentences run concurrently, the total effective substantive sentence is seven years each, and the default imprisonment exceeds one‑fourth of that term, contrary to the spirit of Section 65 of the Indian Penal Code., The Socio Economic Inquiry Report confirms that the appellants and their families lack the financial means to pay the fines in full. In Adamji Umar Dalal, the Supreme Court held that the amount of fine should consider the pecuniary circumstances of the accused and should not be excessive when a substantial term of imprisonment is imposed., In Shantilal, the Court held that imprisonment in default of fine is a penalty, not a sentence, and therefore should not unduly prejudice the accused. Shahejadkhan reiterated that imposing a lengthy default imprisonment on a poor accused would cause serious prejudice to the convict’s innocent family members., The Court in Mohd. Salauddin considered the appellant’s extreme poverty, ill health of his mother, and satisfactory jail conduct, and reduced the fine to a nominal amount of Rs 500, emphasizing that the fine should not cause further hardship., The appellants’ admission of guilt demonstrates possibility of reform and warrants proportionality. The Court in Sonu observed that a voluntary plea of guilt merits consideration, especially given the limited judicial resources, and the Law Commission’s 142nd Report recommends concessional treatment for offenders who plead guilty without bargaining., In view of the foregoing, this Court directs that the fine for each of the nine offences be reduced to Rs 1,000 per offence (total Rs 9,000 for each appellant) and that, in default of payment, Simple Imprisonment of one month per offence (total nine months) be imposed. The judgment/order shall be uploaded on the website of this Court.
id_381	0	The Issue in Controversy. This judgment addresses the issue of whether writ petitions, challenging orders passed by the Intellectual Property Appellate Board (IPAB), filed before the abolition of the IPAB on 4 April 2021, would have to be heard by a Single Bench or by a Division Bench of the Delhi High Court., By order dated 28 June 2013, the learned Intellectual Property Appellate Board (the IPAB) allowed rectification petitions filed by the second respondent, challenging the registration of the mark AYUR in favour of the petitioner. Aggrieved thereby, the petitioner preferred the present writ petitions under Articles 226 and 227 of the Constitution of India., A serious preliminary objection has been advanced by the respondents, to the effect that these petitions necessarily have to be listed before a Division Bench of the Delhi High Court and cannot be heard by a Single Judge., The petitioners submit, per contra, that these writ petitions necessarily have to be heard by a Single Judge and cannot, per statute, be initially listed before a Division Bench., Mr. Akhil Sibal and Mr. Sushant Singh proposed certain alternative options which will be dealt with at the appropriate stage., I have heard Mr. Arvind Varma, learned Senior Advocate appearing for Respondent 2 in W.P.(C)‑IPD 75/2021, W.P.(C)‑IPD 95/2021, and Mr. J. Sai Deepak, learned Advocate also appearing for Respondent 2 in W.P.(C)‑IPD 75/2021, W.P.(C)‑IPD 78/2021, 95/2021, Mr. Chander M. Lall and Mr. Akhil Sibal, learned Senior Counsel who appear as amicus curiae, as well as Mr. N. Mahabir for the petitioner in W.P.(C)‑IPD 61/2021, W.P.(C)‑IPD 63/2021, and W.P.(C)‑IPD 98/2021, and Mr. Sushant Singh, learned Counsel appearing for the petitioner in W.P.(C)‑IPD 65/2021., Mr. Varma, Mr. Sibal, Mr. Sai Deepak and Mr. Sushant Singh contend that these matters should be listed before the Division Bench. Of the learned counsel, Mr. Varma, Mr. Sibal and Mr. Sushant Singh adopt a tempered line of argument. They do not contend that a learned Single Judge would lack jurisdiction to deal with these petitions, but submit that it would be more appropriate for them to be listed before a Division Bench. Mr. Sai Deepak adopts a more rigid stance and submits that these matters, per statute, necessarily have to be listed before a Division Bench and that a learned Single Judge would not possess jurisdiction to decide these writ petitions. I am, therefore, according to Mr. J. Sai Deepak, coram non judice., Submissions of Mr. J. Sai Deepak. Mr. Sai Deepak invited my attention to Rules 41, 2(l) and 8(iii) of the Intellectual Property Division (IPD) Rules, 2021 and to Rule 1(xviii)(a) and (b) and Rule 45 in Part B of the Delhi High Court Rules. Jurisdiction: Every IPR subject matter or case or proceeding or dispute filed before, or transferred to, the IPD, as defined in Rules 2(i), 2(j) and 2(l), shall be heard and adjudicated by a Single Judge of the IPD except those that are to be decided by a Division Bench as per Section 13 of the Commercial Courts Act, 2015. IPR subject matters include all original proceedings, appellate and other proceedings related to IPR subject matters as defined in Rule 2(i) above, filed before the IPD, and also include IPR suits, revocation applications, cancellation applications, other original proceedings, appeals and petitions from the various IPOs and all other proceedings which were hitherto maintainable before the IPAB, all suits in which IPR subject matter is involved, either under the respective statutes or under common law, including suits relating to breach of privacy and rights of publicity, writ petitions (Civil) arising out of IPR subject matters and disputes dealt with by the Commercial Courts in Delhi, except matters that are to be dealt with by a Division Bench, and all pending proceedings before the IPAB relating to Delhi jurisdiction transferred to the Delhi High Court., Procedure for Writ Petitions (Civil). (i) Writ petitions filed in the IPD, challenging any orders passed by the IPO or authority, shall consist of a synopsis and list of dates and events, memo of parties, memorandum of the writ petition including grounds of challenge, prayer or relief sought, and affidavit in support. The petitioner shall also state both in the application and in the affidavit whether any other remedy was availed of in respect of the same impugned order and, if so, provide details thereof including any order passed therein. (ii) The impugned order shall be annexed with the writ petition. (iii) The Delhi High Court Rules and orders as well as the practice directions issued from time to time, to the extent there is no inconsistency with these Rules, shall be applicable to writ petitions filed in the IPD., Cases ordinarily to be heard by a Single Judge. Subject to the provisos set forth, the following classes of cases shall ordinarily be heard and disposed of by a Single Judge: Application or petition under Article 226 of the Constitution of India for the issue of any directions, orders or writs in the nature of mandamus, prohibition, quo‑warranto or certiorari for the enforcement of fundamental rights conferred by Part III of the Constitution of India or for any other relief, as provided in Chapter 3 of Volume V of the Delhi High Court Rules, 2018. The contention is that a conjoint reading of these provisions discloses that a case such as the present writ petition would have to be heard by a Division Bench of the Delhi High Court., Undisputed position with respect to the IPD Rules. Both sides agree that Rule 4 of the IPD Rules states that every IPR subject matter or case or proceeding or dispute filed before the IPD, as defined in Rules 2(i), 2(j) and 2(l), shall be heard by a Single Judge, except: (i) petitions where the vires of Acts or statutory rules, regulations, or bye‑laws are challenged; (ii) petitions where personal liberty is involved; (iii) petitions pertaining to all revenue or tax matters including entertainment taxes, except municipal tax; (iv) petitions arising from the orders of the Board for Industrial and Financial Reconstruction/Appellate Authority for Industrial and Financial Reconstruction or seeking directions to them; (v) petitions pertaining to public interest litigation; (vi) petitions pertaining to the award of tenders; (vii) petitions relating to cooperative societies. Provided that, as regards pending cases, the learned Single Judge may hear the part‑heard matters. The preliminary hearing for admission and final disposal of applications and petitions pertaining to matters mentioned in clause (i) to (x) of sub‑rule (xviii)(a) shall, however, be before a Bench of two Judges and before a Single Bench when there is no sitting of Division Bench., Submissions of Mr. Arvind Varma. Mr. Varma did not contend that this Bench would lack jurisdiction to hear these writ petitions, but argued that the interests of propriety would require that these matters be heard by the Division Bench. He joined Mr. Sai Deepak in contending that Single Judges, consequent to the abolition of the IPAB, are exercising the same rectification jurisdiction that the IPAB exercised, and that allowing Single Judges to hear both rectification matters and appeals against IPAB orders would create an obvious and avoidable anomaly., Submissions of Mr. Akhil Sibal. Acting as amicus curiae, Mr. Sibal submits that the Rules do not compel adjudication of writ petitions challenging orders passed by the IPAB either by Single Judges or by Division Benches of the Delhi High Court. In such circumstances, he submits that the Court should adopt the most appropriate course, which would be to have such writ petitions heard and decided by Division Benches. He echoes Mr. Sai Deepak's concern about the anomalous situation that would arise if a Single Judge, hearing a writ petition against an IPAB order, were to remand the matter to himself or herself, which would be destructive of the principle of judicial hierarchy. He offers three alternative suggestions: (i) direct the Registry to list all writ petitions assailing IPAB orders before the Division Bench, following the approach adopted by the Division Bench of the Madras High Court in B. Mohamed Yousuff v. M/s Prabha Singh Jaswant Singh; (ii) frame a question of law and invoke proviso (b) of Rule 1 of the Delhi High Court Rules, seeking the Chief Justice's assistance for a Division Bench hearing; and (iii) refer the matter to the Chief Justice for possible amendment of the Delhi High Court Rules, citing the judgment of the Punjab and Haryana High Court in Baljit Kaur Vohra v. Dr. Vikramjit Singh Vohra., Submissions of Mr. Sushant Singh. Mr. Singh submits that Rule 4 of the IPD Rules must be given a purposive interpretation, noting that the purpose of the IPD Rules is to bring into existence the Intellectual Property Division and delineate its powers, functions and authority. He argues that a literal interpretation of Rule 4 would result in the same Single Judge exercising original rectification jurisdiction as well as appellate jurisdiction over IPAB orders, which is incongruous and anomalous. To resolve the anomaly, he urges the Court to invoke proviso (b) to Rule 1 of the Delhi High Court Rules and refer the matter to a Division Bench. He also stresses that allowing a Single Judge to remand a writ petition against an IPAB order to himself or herself would create a grave anomaly, and that the principles of morality and independence of the judiciary support hearing the petitions before a Division Bench., Submissions of Mr. N. Mahabir. Mr. Mahabir argues that the issue is concluded by Rule 4 of the IPD Rules, which clearly requires all IPR subject matters or cases or proceedings or disputes to be heard by Single Judges of the Delhi High Court, except cases that are required to be heard by Division Benches as per Section 13 of the Commercial Courts Act, 2015. He contends that the expression ‘except matters that are to be dealt with by a Division Bench’ in Rule 2(l)(iii) does not create two categories of writ petitions, but merely carves out an exception for matters such as Regular First Appeals and First Appeals from Orders that may be heard by Division Benches. He further submits that, even if the Delhi High Court Rules were applicable, writ petitions fall under Rule 1(xviii)(a), which specifically covers writ petitions and requires them to be heard by a Single Judge. Consequently, even with a harmonious construction of the IPD Rules and the Delhi High Court Rules, writ petitions challenging IPAB orders must be heard by Single Judges of the Delhi High Court. He also points out that the contention that the IPAB stepped into the shoes of the Single Judge and that, after its abolition, the Single Judge stepped into the shoes of the IPAB is fundamentally flawed.
id_381	1	He submits that each exercises its own clearly statutory delineated jurisdiction. The mere fact that, consequent on abolition of the Intellectual Property Appellate Board, matters which were earlier being filed before the Intellectual Property Appellate Board would have to be filed before the Delhi High Court, he submits, does not imply that the Delhi High Court has stepped into the shoes of the Intellectual Property Appellate Board., Mr. Mahabir has placed reliance on paragraph 37 of the judgment of the Division Bench of the Delhi High Court in V.R. Holdings, paragraph 9 of the judgment in National Sewing Thread Co. Ltd. v. James Chadwick and Brothers Ltd., and paragraph 27 of the judgment in Satyanarain Khandelwal v. Prem Arora., Assisting the Delhi High Court as amicus curiae, Mr. Chander Lall, learned Senior Counsel, submits that the Commercial Courts Act has set up three types of courts to deal with commercial disputes, namely, the Commercial Courts, the Commercial Division and the Commercial Appellate Division, of which the Commercial Division and the Commercial Appellate Division are located in the Delhi High Court., He submits that, while the Commercial Division of the Delhi High Court consists of single benches, the Commercial Appellate Division consists of division benches. The very fact that division benches are designated as a Commercial Appellate Division, itself, militates against the contention that the division benches can exercise original commercial jurisdiction. Writ petitions, he submits, moreover, are extraordinary original petitions, which cannot be entertained by an Appellate Division of the Delhi High Court, as they are not a continuation of the proceedings before the Intellectual Property Appellate Board. For this purpose, he relies on State of Uttar Pradesh v. Dr. Vijay Anand Maharaj., The submissions of learned counsel who contest the jurisdiction of this bench to hear these petitions, he submits, amount to requiring the Commercial Appellate Division to hear original writ proceedings, which is ex facie anomalous., Adverting to the Intellectual Property Division Rules, Mr. Lall points out that the Intellectual Property Division Rules have been promulgated after the implementation of the Tribunals Reforms Act, 2021 and the consequent abolition of the Intellectual Property Appellate Board. Rule 4 of the Intellectual Property Division Rules, he submits, clearly stipulates that the matters filed before the Intellectual Property Appellate Board shall, save and except in cases which fall under Section 13 of the Commercial Courts Act, be heard and adjudicated by single judges of the Intellectual Property Division. Mr. Lall relies on the definition of Intellectual Property Rights Division, as contained in Section 2(j) of the Intellectual Property Division Rules, as the division in the Delhi High Court presided over by single judges to deal with disputes and cases containing Intellectual Property Rights subject matter. As such, he submits that the disputes and cases containing Intellectual Property Rights subject matter have necessarily to be heard by single judges, who alone constitute the Intellectual Property Division., Mr. Lall seriously contests the contention that the Intellectual Property Appellate Board had stepped into the shoes of the Delhi High Court, or that the Delhi High Court has stepped into the shoes of the Intellectual Property Appellate Board. No shoe of one, he submits, has ever been worn by the other. He submits that there is a fundamental difference between the single judge of the Delhi High Court and the Intellectual Property Appellate Board. The Intellectual Property Appellate Board, he submits, merely has the trappings of a court but cannot be regarded as a civil court, for which purpose, he relies on the judgment of a Division Bench of the Delhi High Court in Promoshirt SM SA v. Armasuisse. Mr. Lall has also drawn my attention to Section 92(2) of the Trade Marks Act, 1999, prior to its abolition by the Tribunals Reforms Act, 2021, which conferred limited power of civil courts to the Intellectual Property Appellate Board. The Intellectual Property Appellate Board, therefore, cannot, by any stretch of imagination, be said to have stepped into the shoes of the Delhi High Court; nor can it be said that the Delhi High Court stepped into the shoes of the Intellectual Property Appellate Board. In fact, he submits, the Delhi High Court exercises writ jurisdiction, which the Intellectual Property Appellate Board does not even possess., As his last submission, Mr. Lall contends that accepting the stand canvassed by Mr. Varma, Mr. Sai Deepak, Mr. Sibal and Mr. Singh would result in denying, to the petitioners in these writ petitions, a valuable option of appeal to the division bench by way of Letters Patent Appeal. An interpretation which eviscerates an appellate remedy, he submits, has necessarily to be eschewed., To my mind, the statutory position is clear as crystal, and it is not open to the Delhi High Court, by resort to interpretative calisthenics, to deviate from it. The Delhi High Court can only abide by the statutory dictate. It cannot legislate., The principle of purposive interpretation of statutory instruments has no application to provisions which fix jurisdiction in an authority. If the statute says that a particular category of matters are to be heard by single judges, then single judges, and single judges alone, can hear those matters. The statute has to be obeyed. Where the statute is unambiguous and fixes jurisdiction, no occasion arises to resort to any interpretative principles. The court has merely to comply with the statutory edict. This requirement has its genesis in a principle of far greater vintage and sanctity than the principle of purposive interpretation, dating back to Taylor v. Taylor, Nazir Ahmed v. King Emperor and State of Uttar Pradesh v. Singhara Singh and followed to this day, that, where the statute requires a particular act to be done in a particular way, that act has to be done in that way or not done at all, all other ways of doing the act being necessarily proscribed. This principle would apply as much to plenary as to subordinate legislation, with the caveat that if subordinate legislation is contrary to plenary legislation, the latter would prevail. No such conflict, however, arises in the present case., The corollary is, therefore, that, if the statute requires a particular act to be done by a particular authority, that authority, and that authority alone, can do that act. If, therefore, to reiterate, the statute requires that a particular category of cases have to be heard and decided by single judges, they have to be decided by single judges, and by no one else. Two sequiturs follow. The first, already noted, is that no authority, other than a single judge, can exercise such jurisdiction. The second is that a single judge, before whom such a case comes up for adjudication, cannot refuse to exercise jurisdiction. Of course, if for any reason it is personally not possible for the judge to hear the matter, such as a case where conflict of personal interest may be involved, the judge can recuse. That, however, would be attributed to personal disability of the concerned judge to hear the matter, and has nothing to do with the question of jurisdiction., As I see it, Rule 4 of the Intellectual Property Division Rules, read in conjunction with the various clauses in Rule 1, concludes the matter, and unambiguously requires that writ petitions such as those before me have necessarily to be heard by single judges, and even if, arguendo, the Delhi High Court Rules were to apply, they too would require these writ petitions to be heard by a single judge. The statutory mandate being thus clear and free from ambiguity, I do not see any occasion to resort to the principle of purposive interpretation. If the statute requires these writ petitions to be heard by a single judge, I cannot, by resorting to intricate principles of interpretation, refuse to exercise jurisdiction, or hold that these matters should be listed before the division bench., Rule 4 of the Intellectual Property Division Rules effectively states that every Intellectual Property Rights subject matter or case or proceeding or dispute filed before the Intellectual Property Division, as defined in Rules 2(i), 2(j) and 2(l) of the Intellectual Property Division Rules, shall be decided by a single judge of the Intellectual Property Division. The exception is with respect to cases which have to be decided by a division bench as per Section 13 of the Commercial Courts Act, 2015. It is not in dispute that Section 13 of the Commercial Courts Act would not apply to the present writ petition. Rule 2(l) of the Intellectual Property Division Rules defines Intellectual Property Rights subject matters or cases or proceedings or disputes. The expression is defined as including, inter alia, writ petitions arising out of Intellectual Property Rights subject matters, except matters to be dealt with by a division bench. Intellectual Property Rights subject matter is defined in Rule 2(i) of the Intellectual Property Division Rules as including matters pertaining to patents, copyrights and trademarks. The word matter is extremely wide and there is no reason why an Intellectual Property Appellate Board order dealing with patents, copyrights, trademarks etc. should not be treated as an Intellectual Property Rights subject matter. In the context of Article 142 of the Constitution of India, the Supreme Court, in Monica Kumar v. State of Uttar Pradesh, defines matter as covering every kind of proceeding pending in court including civil or criminal. No learned counsel has, in fact, sought to argue that orders passed by the Intellectual Property Appellate Board would not fall within the definition of Intellectual Property Rights subject matter., A writ petition arising out of such an Intellectual Property Appellate Board order would, therefore, be a writ petition arising out of Intellectual Property Rights subject matter within the meaning of Rule 2(l)(iii) of the Intellectual Property Division Rules. All original proceedings, appellate and other proceedings related to Intellectual Property Rights subject matters as defined in Rule 2(i) of the Intellectual Property Division Rules filed before the Intellectual Property Division are, per definition, Intellectual Property Rights subject matters or cases or proceedings or disputes. It is important, in this context, to carefully read the opening main part of Rule 2(l) of the Intellectual Property Division Rules to which, in my opinion, none of the learned counsel have accorded the necessary importance. Rule 2(l) commences thus: Intellectual Property Rights subject matters or cases or proceedings or disputes shall include all original proceedings, appellate and other proceedings related to Intellectual Property Rights subject matter(s) as defined in Rule 2(i) above filed before the Intellectual Property Division and shall also include clauses (i) to (iv) which follow. They do not, therefore, qualify in any manner, the preceding opening words of Rule 2(l), vide which all original proceedings, appellate and other proceedings related to Intellectual Property Rights subject matter(s) as defined in Rule 2(i) filed before the Intellectual Property Division are, ipso facto, Intellectual Property Rights subject matters or cases or proceedings or disputes., The resultant position which emerges is that, insofar as (i) orders passed by the Intellectual Property Appellate Board are Intellectual Property Rights subject matters as defined in Rule 2(i), (ii) writ petitions directed against orders passed by the Intellectual Property Appellate Board therefore fall within the ambit of the expression original proceedings, appellate and other proceedings related to Intellectual Property Rights subject matter(s) as defined in Rule 2(i), and (iii) the present writ petitions have indisputably been filed before the Intellectual Property Division, the present writ petitions qualify as Intellectual Property Rights subject matters or cases or proceedings or disputes even by virtue of the opening words of Rule 2(l). There is no need, therefore, to proceed to the also include part of the definition or to any of the clauses (i) to (iv) which follow, including clause (iii)., The inexorable sequitur is that, by virtue of Rule 4 of the Intellectual Property Division Rules, these writ petitions would necessarily have to be heard by a learned single judge. Assuming clause (iii) in Rule 2(l) of the Intellectual Property Division Rules applies: Even if, for the sake of argument, clause (iii) in Rule 2(l) of the Intellectual Property Division Rules were to apply, the consequence would remain the same. Clause (iii) in Rule 2(l) covers writ petitions (civil), civil miscellaneous (mains) petitions, RFAs, FAOs and civil revision petitions arising out of Intellectual Property Rights subject matters. All such proceedings are, per definition, Intellectual Property Rights subject matters or cases or proceedings or disputes within the meaning of Rule 2(l), subject, however, to the proceedings not falling within the exception carved into Rule 2(l), which applies to matters that are to be dealt with by a division bench., Mr. Sai Deepak sought to contend that this concluding caveat, matters that are to be dealt with by a division bench figuring in Rule 2(l), indicated that writ petitions fell into two categories; those which were to be dealt with by single judges and those which were to be dealt with by division benches. Mr. Mahabir disputed the correctness of this contention, pointing out that this concluding caveat applies to all the categories of matters envisaged in the earlier part of the clause, among which are RFAs and FAOs. RFAs and FAOs, he points out, may either be amenable to single bench or division bench jurisdiction. The concluding exception, in Rule 2(l), to matters that are to be dealt with by a division bench, he submits, is intended to cater to RFAs and FAOs., The issue is of no particular moment and, therefore, does not deserve much discussion. Suffice it, therefore, to state that, as Rule 2(l)(iii) does, as Mr. Mahabir correctly points out, cover not just civil writ petitions, but also FAOs and RFAs, the concluding exception in the clause cannot be read as indicating, for certain, that Intellectual Property Division writ petitions may either be amenable to single bench or division bench jurisdiction. To that extent, Mr. Mahabir's interpretation of the concluding exception in Rule 2(l)(iii) is preferable to that advanced by Mr. Sai Deepak., I will, however, proceed on the premise that Intellectual Property Division writ petitions may also, in certain cases, be heard by division benches. Do the present writ petitions fall into that category? Ordinarily, Rule 2(l)(iii) being a part of the Intellectual Property Division Rules, the exception in Rule 2(l)(iii) must also relate to some provision of the Intellectual Property Division Rules. In other words, matters which are to be dealt with by the division bench as per the Intellectual Property Division Rules alone would fall within the scope of the said exception. Of course, if the Intellectual Property Division Rules incorporate, either expressly or by reference, the provisions of any other rules, including the Delhi High Court Rules, apropos writ petition jurisdiction, then recourse to such other rules may be justified., Mr. Sai Deepak then relied on Rule 8(iii) of the Intellectual Property Division Rules. According to him, Rule 8(iii) incorporates, by reference, into the provisions relating to writ petitions under the Intellectual Property Division Rules, the Delhi High Court Rules. On this, too, I am not able to entirely concur with Mr. Sai Deepak. Rule 8 is a provision which deals with procedure, and not with substantive conferment of jurisdiction. It is titled Procedure for Writ Petitions (Civil). Sub‑rule (i) deals with the requirements of a writ petition, challenging orders passed by the IPO/authority, such as a synopsis, the list of dates, memo of parties, memorandum of the writ petition, and the like, and the constituents thereof. Sub‑rule (ii) requires the impugned order to be annexed to the writ petition. Sub‑rule (iii) has to be understood in this light, as akin to sub‑rules (i) and (ii). It stipulates that the Delhi High Court Rules and orders and practice directions issued from time to time, insofar as they do not conflict with the Intellectual Property Division Rules, would apply to writ petitions filed in the Intellectual Property Division. It is clear that the provision is intended to cater to procedural aspects of civil writ petitions filed in the Intellectual Property Division, not addressed by sub‑rules (i) and (ii). It cannot be read as a provision incorporating, by reference, provisions of the Delhi High Court Rules which deal with substantive conferment of authority and power to hear and adjudicate writ petitions., The reliance, by Mr. Sai Deepak, on Rule 8(iii) of the Intellectual Property Division Rules as justifying recourse to the Delhi High Court Rules for determining whether the present writ petitions would have to be heard by a single judge or by the division bench does not, therefore, appear to me to be appropriate., Again arguendo, even if it were to be assumed that Rule 8(iii) of the Intellectual Property Division Rules justifies recourse to the Delhi High Court Rules, to decide the categories of Intellectual Property Division writ petitions which would lie before a learned single judge, and those which would lie before the division bench, I am of the opinion that I would still be competent to adjudicate these writ petitions. I proceed to elucidate the reason why., Assuming the Delhi High Court Rules apply: Mr. Sai Deepak places reliance on Rule 4 of the Delhi High Court Rules. Rule 4, however, starts with the words save as provided by law or by these rules or by special order of the Chief Justice. The stipulation in Rule 4 that all cases shall be heard and disposed of by a division bench is, therefore, subject to any provision to the contrary contained in the Delhi High Court Rules themselves. Rule 1(xviii)(a) is, in my opinion, such a provision, which indicates to the contrary. Rule 1 of the Delhi High Court Rules specifically requires the classes of cases enumerated in the various clauses thereof, to ordinarily be heard and disposed of by a single judge. In view of the opening words of Rule 4, Rule 4 would necessarily be subject to Rule 1. In other words, if the case falls within one of the clauses of Rule 1, it would have to be heard by a single judge, and Rule 4 would not apply., I am not inclined to attribute much significance to the word ordinarily in the opening part of Rule 1. Even Mr. Sibal, who canvassed this contention, could not, in my view, cite any such extraordinary circumstance which would justify my departing from what Rule 1 prescribes., Clause (xviii)(a) of Rule 1 expressly and specifically covers petitions under article 226 of the Constitution for the issue of any directions, orders or writs in the nature of mandamus, prohibition, quo warranto or certiorari for the enforcement of the fundamental rights or for any other purpose, except the categories of petitions in the said sub‑clauses (i) to (x). These enlisted sub‑clauses of clause (xviii)(a) cover petitions where the vires of any act, statutory regulation, rule or bye‑laws is under challenge, petitions where personal liberty is involved, tax matters, petitions arising from the BIFR or AAIFR, public interest litigations, petitions relating to tenders, petitions relating to cooperative societies, petitions relating to the Armed Forces, land acquisition matters and petitions arising out of orders passed by the Delhi High Court on the administrative side. The present writ petitions do not fall within any of these enlisted categories. They, therefore, fall within the main part of clause (xviii)(a), as they are writ petitions seeking writs of certiorari and mandamus. By virtue of the opening words of Rule 1 of the Delhi High Court Rules, therefore, the present writ petitions have necessarily to be heard by a single judge., Applicability of proviso (b) to Rule 1: Proviso (b) to Rule 1 has been pressed into service both by Mr. Sibal and Mr. Sushant Singh. To my mind, the provision has no application to the present case at all. Having said that, proviso (b) is a truly strange provision, and I have no hesitation in acknowledging that I was not even aware of its existence; to my knowledge, I do not know of any instance, in all my years of practice and thereafter, in which this proviso has been invoked. It is, quite clearly, not a provision which envisages reference of a matter by a learned single judge to the division bench, which is a matter of fairly common occurrence. Mr. Sushant Singh appears, with respect, to have misconstrued proviso (b) as envisaging reference of a writ petition by a single judge to a division bench. It does no such thing. Rather, proviso (b) envisages a single judge, before whom a writ petition is pending, seeking the sanction of the Chief Justice to co‑opt another learned judge, or other learned judges, to assist her or him in hearing and deciding the writ petition. The word assist is extremely problematic and, frankly speaking, very unhappy, given the context in which it is used. In a division bench, both the judges cooperate and, by joint and harmonious application of mind, decide the matter. It cannot be said that either judge is merely assisting the other. That, however, is what proviso (b) envisages. Several questions arise. What is the status of the assisting judge? Does he become, ipso facto, a part of the bench which is deciding the matter? If the role of the newly co‑opted judge is merely to assist, will the final judgment, then, be rendered by the learned single judge who was in seisin of the proceedings, or by a division bench which would include the assisting judge? Most importantly, in what circumstances would the learned single judge, before whom the writ petition is pending, seek assistance? The matter becomes even more complex when one notices that the proviso envisages seeking of assistance not merely by another judge, but even by more than one judges. In other words, in exercise of the power conferred by proviso (b), a single judge, who is hearing the writ petition, may seek the sanction of the Chief Justice to depute, not just one, but even more than one judges to assist him in hearing and deciding the matter., As I said, proviso (b) is inherently problematic. Perhaps, for this reason, I do not know of any instance in which a single judge of the Delhi High Court, hearing a writ petition, has requested the Chief Justice to depute another judge, on more than one judge, to assist him in hearing and deciding the matter. As worded, therefore, proviso (b) has, to my knowledge, never been invoked. Nor do I envisage its invocation in the foreseeable future; which is why I forbear from referring this provision to the Rules Committee of the Delhi High Court perhaps for reconsideration at least regarding the manner in which it is worded., In any event, as I have already said, proviso (b) calls for application, if at all, while deciding the controversy in dispute in the writ petition. The proviso is obviously intended to apply during the hearing of the substantive writ petition. This is clear from the words before whom any proceeding mentioned in clause (xviii) is pending. The proviso is, therefore, envisaged as being invoked by the single judge who is hearing the writ petition. If, during the hearing of the writ petition, the single judge feels it necessary to adopt the somewhat peculiar procedure that proviso (b) contemplates, he would be free to do so. The proviso cannot, however, have any application in deciding whether the present writ petitions would lie before a learned single judge, or be before the division bench., That apart, even if proviso (b) were invocable at this stage itself, its invocation is a matter of discretion, to be exercised by the judge hearing the writ petition. I do not see any reason to invoke the proviso. With great respect to all my learned sisters and brothers on the bench, and their unquestionable judicial acumen, I think I am capable of deciding the dispute at hand without their assistance, valuable though it would have been., The request, by Mr. Sibal and Mr. Singh, to me, to invoke proviso (b) is, therefore, declined., Nor do I see any justification for referring the present issue, of whether these writ petitions can be heard and decided by me, or would have to be placed before a division bench, to any larger bench for decision. The issue, in my opinion, is squarely covered by the existing rules, and there is no such intricate legal question as would justify the taxing of two brains instead of one., Assuming, therefore, that the Delhi High Court Rules apply, these writ petitions would still be capable of being heard and decided by a single judge, in view of Rule 1(xviii)(a) of the Delhi High Court Rules., Whether, therefore, one views the issue through the prism of the Intellectual Property Division Rules, or the prisms of the Intellectual Property Division Rules and the Delhi High Court Rules together, these writ petitions can be heard and decided by a single judge., In view of my finding that the Intellectual Property Division Rules, whether seen by themselves or in conjunction with the Delhi High Court Rules, require these writ petitions to be necessarily decided by a single judge, I do not intend to burden this judgment with any discussion regarding the history of the creation, and later abolition, of the Intellectual Property Appellate Board. Such considerations pale into insignificance where the mandate of the rule is clear, categorical and unequivocal. Where the Intellectual Property Division Rules require, mandatorily, these writ petitions to be heard and decided by a single judge, I am obligated, by my oath of office, to do so. It is well settled that a court which is statutorily obligated to decide a matter cannot refuse to do so, unless, for reasons personal to the concerned judge, she or he deems it appropriate to recuse., Has the status quo ante been restored? That said, I must observe that there is a fundamental fallacy in the attempt of learned counsel to seek to contend that, with the abolition of the Intellectual Property Appellate Board and listing, before single judges of the Delhi High Court, of rectification petitions which were pending before the Intellectual Property Appellate Board, the status quo ante, as it existed prior to creation of the Intellectual Property Appellate Board, has been restored. It is not so. The submission notes a fundamental development that has taken place, in the form of the promulgation of the Intellectual Property Division Rules. The Intellectual Property Division Rules make all the difference. It cannot, therefore, be said that we are back to the state in which things were before the Intellectual Property Appellate Board came into being., The judgment of the High Court of Madras in B. Mohammad Yousuff, on which learned counsel for the respondents, as well as Mr. Sibal, placed extensive reliance, cannot, in my opinion, constitute a useful guide to deciding the issue in controversy, which pertains to the position as it obtains in the Delhi High Court. There is nothing to indicate that any provision, similar to the Intellectual Property Division Rules, or even Rule 1(xviii)(a) of the Delhi High Court Rules, applies to the High Court of Madras. At any rate, the judgment in B. Mohammad Yousuff does not refer to any such rule., In fact, in paragraph 28 of the report of the said decision, the High Court has specifically held that the power of scrutiny of the orders passed by the Intellectual Property Appellate Board, as exercised by the High Court, is the power to issue a writ of certiorari and/or mandamus as well as the power of judicial superintendence. Rule 1(xviii)(a) of the Delhi High Court Rules clearly requires writ petitions, which seek issuance of a writ of certiorari or mandamus, and which do not fall within any of the excepted categories envisaged in the various sub‑clauses of the said clause, to be heard and decided by single judges. If anything, therefore, the judgment of the High Court of Madras in B. Mohammad Yousuff, when seen in the light of the provisions of the Intellectual Property Division Rules or even of the Delhi High Court Rules, would support the jurisdiction of single judges of the Delhi High Court to hear the present writ petitions., The entire edifice of the submission that the vesting of jurisdiction, with single judges of the Delhi High Court, of the power to decide rectification petitions, which, prior to the abolition of the Intellectual Property Appellate Board, were filed with the Intellectual Property Appellate Board and, consequent to the abolition of the Intellectual Property Appellate Board, are now listed before the Delhi High Court, as well as challenges to orders passed by the Intellectual Property Appellate Board, would result in an incongruous and anomalous situation, is predicated on the erroneous premise that the single judge of the Delhi High Court has stepped into the shoes of the Intellectual Property Appellate Board. Consequent on the abolition of the Intellectual Property Appellate Board, the shoes that it wore stand discarded. The single judges of the Delhi High Court continue to wear the shoes which they always wore. It is not as though, consequent on the abolition of the Intellectual Property Appellate Board, when certain matters which were listed before the Intellectual Property Appellate Board are now listed before single judges of the Delhi High Court, the single judges now wear two shoes or two hats; one when they discharge jurisdiction as single judges and the other when they hear and decide cases which had earlier been filed before the Intellectual Property Appellate Board. The only change is that matters which were pending before the Intellectual Property Appellate Board are now to be heard by single judges of the Delhi High Court. When a single judge of the Delhi High Court hears a rectification, or an appeal against the order of the Registrar of Trademarks which was filed before the Intellectual Property Appellate Board prior to its abolition, he does not do so as a pseudo‑Intellectual Property Appellate Board, or as an Intellectual Property Appellate Board in disguise. He does so as a single judge of the Delhi High Court.
id_381	2	The decision rendered by him in such a case cannot be treated as equal to the decision which the Intellectual Property Appellate Board might have rendered, had it continued to exist and retain dominion over the matter. The decision is pre-eminently the decision of the Single Judge of the Delhi High Court., Once the myth of switching of shoes is thus dispelled, nothing substantial survives in the argument of anomaly or incongruity resulting, were the present petitions to be decided by a Single Judge. The Legislature is well within its authority in modifying the statute to direct that matters which were hitherto pending before the Intellectual Property Appellate Board would, consequent on the abolition of the Intellectual Property Appellate Board, be decided by the Delhi High Court. If that decision is taken by a Single Judge of the Delhi High Court, he does not, in doing so, act as a successor to the Intellectual Property Appellate Board, or step into its shoes. He acts as a Single Judge of the Delhi High Court who, by statutory fiat, is now required to decide the matter which was filed before another authority that stands abolished. He decides the case as a Single Judge of the Delhi High Court, and as no one else. He wears the same shoes which he wears while deciding any other case as a Single Judge of the Delhi High Court., At the same time, while deciding appeals against orders passed by the Intellectual Property Appellate Board before its abolition, the Single Judge acts as a hierarchically, or at least judicially, superior authority to the Intellectual Property Appellate Board. The order which he is examining is the order passed by the Intellectual Property Appellate Board, which is judicially regarded as subject to his supervisory jurisdiction, or judicial review jurisdiction by way of writ. Viewed thus, it becomes evident that the entire plea of incongruity and abnormality resulting, if Single Judges of the Delhi High Court were to decide appeals against orders passed by the Intellectual Property Appellate Board prior to its abolition, is fundamentally misconceived. There is neither incongruity nor anomaly involved. While hearing and deciding a challenge to an order passed by the Intellectual Property Appellate Board, the Delhi High Court acts as a court having supervisory jurisdiction, as well as jurisdiction of judicial review, over the decision of the Intellectual Property Appellate Board. While hearing and deciding an original rectification petition, the Delhi High Court is exercising an original jurisdiction vested in it by statute. There is, therefore, no incongruity at all, if the Single Judge exercises both powers, for the simple reason that the Single Judge of the Delhi High Court is regarded, conceptually, as judicially superior to the Intellectual Property Appellate Board. In fact, this submission of learned counsel, in order for it to survive, has to depend on the illusion that the Single Judge has stepped into the shoes of the Intellectual Property Appellate Board. Once this is revealed as an illusion, the proverbial wind stands, as it were, knocked out of the sails of the submission., In that view of the matter, the judgment of the Supreme Court of India in Nahar Industrial Enterprises Ltd v. HSBC24 does not call for discussion., The judgment in DTTDC12, rendered by a coordinate Single Bench of the Delhi High Court, contains some useful pointers. The issue before the Delhi High Court in that case was whether appeals arising out of judgments or orders passed by Commercial Courts at the level of the District Judge exercising original civil jurisdiction should be listed before Single Judges or Division Benches of the Delhi High Court. The Delhi High Court observed that Section 13(1A) of the Commercial Courts Act, as amended by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018, specifically provided that any person aggrieved by the judgment or order of a Commercial Court at the level of the District Judge exercising original civil jurisdiction may appeal to the Commercial Appellate Division of the Delhi High Court. The Commercial Appellate Division, as per Section 5(1) of the Commercial Courts Act, necessarily consists of Division Benches of the Delhi High Court. Thus, the Delhi High Court held that Section 13(1A), read with Section 5(1) of the Commercial Courts Act, necessarily required appeals against judgments and orders passed by Commercial Courts at the level of District Judge to be heard and decided by Division Benches of the Delhi High Court., This decision supports the stand being espoused by Mr. Mahavir and Mr. Lall rather than that being espoused by learned counsel who argue to the contrary. The Delhi High Court has, in DTTDC12, recognised the pre-eminence of the statute in identifying the authority, or the strength of the Bench, which has to deal with a particular category of cases. Section 13(1A), read with Section 5 of the Commercial Courts Act, requires appeals against judgments and orders of Commercial Courts at the level of District Judge to be heard by Division Benches; therefore, the Delhi High Court held that the appeals have to be heard and decided by a Division Bench. If this reasoning is extrapolated to the statutory position applicable to the case at hand, as Rule 4, read with Rule 2(l) and Rule 2(i) of the Intellectual Property Division Rules requires writ petitions arising out of Intellectual Property Division matters to be heard by Single Judges, and the same position emerges even if one were to take the Delhi High Court Rules into consideration by virtue of Rule 1(xviii)(a), these writ petitions have necessarily to be heard and decided by a Single Judge, applying the DTTDC12 principle., The decisions in Resilient Innovations9 and V.R. Holdings10 involved issues which have nothing in common with the controversy at hand. In each case, the Division Bench was seized with Letters Patent Appeals (LPAs), challenging decisions passed by Single Judges of the Delhi High Court in rectification petitions preferred under Section 57 of the Trade Marks Act. In Resilient Innovations9, the respondent contended that no LPA was maintainable against the decision of a Single Judge in a rectification petition. The Division Bench in Resilient Innovations9 held that, as Clause 10 of the Letters Patent which governed LPA jurisdiction vested in the Delhi High Court did not exclude judgments rendered by Single Judges in rectification petitions, and the Trade Marks Act did not, either expressly or by necessary implication, exclude the availability of the remedy of an intra‑Court appeal against such judgments, an intra‑Court appeal would lie., The same controversy arose in V.R. Holdings10, where it was contended that the decision in Resilient Innovations9 should be referred to a Larger Bench because it did not consider the impact of Section 13 of the Commercial Courts Act. The Division Bench that decided V.R. Holdings10 agreed with this contention regarding the failure of the earlier Division Bench to consider the impact of Section 13 of the Commercial Courts Act, but declined the request for referring the dispute to a larger bench, holding that even if Section 13 of the Commercial Courts Act were taken into account, the conclusion would remain the same: the remedy of an LPA was available against a judgment passed by a Single Judge in a rectification petition., The dispute at hand is not concerned, in any manner, with the appellate jurisdiction of the Division Bench of the Delhi High Court. The decisions in Resilient Innovations9 and V.R. Holdings10 therefore do not illuminate our path in any way., One of the submissions advanced by Mr. Sibal and Mr. Singh was that an anomalous situation could arise if a Single Judge, hearing a challenge by way of writ petition to the decision of the Intellectual Property Appellate Board, deemed it appropriate to remand the matter for reconsideration. However, the Intellectual Property Appellate Board no longer exists. The remand would therefore effectively be by the Single Judge to himself or herself. This, submitted by learned counsel, is obviously anomalous. The only way of avoiding the anomaly would be if the appeal itself were heard by a Division Bench instead of a Single Judge., The submission misconstrues the precise nature of a remand. Setting aside the order under challenge is a prerequisite before the dispute can be remanded for reconsideration. Consideration of the dispute is therefore done de novo, i.e., anew. If, in the interregnum, by legislative fiat or otherwise, the authority capable of considering the dispute as originally raised has changed, it is obviously the changed authority that would reconsider the matter. Remand therefore does not necessarily require the matter to be sent back to the very authority that had earlier considered it. It is the dispute that is remanded for fresh consideration, not the authority that passed the earlier order. If, therefore, between the time when the order under challenge was passed by the Intellectual Property Appellate Board and the final decision to remand is taken by the Delhi High Court on the appeal preferred against that order, the Intellectual Property Appellate Board, whether by abolition or otherwise, is no longer competent to adjudicate the dispute, which now falls within the competence of the Single Judge of the Delhi High Court, the dispute would be considered de novo by the Single Judge. There is no incongruity or anomaly in this. It is not as though the Single Judge is remanding the matter to himself. The matter is remanded for reconsideration to the authority who, at that point in time, is competent to adjudicate it. That the authority happens to be the Single Judge does not convert the order into a remand by Caesar to Caesar., This submission therefore fails., The issue, in my opinion, is squarely covered by the provisions of the Intellectual Property Division Rules, and I see no reason to accede to Mr. Sibal's request for framing any question of law or invoking proviso (b) to Rule 1 of the Delhi High Court Rules., I am of the opinion that writs against orders passed by the Intellectual Property Appellate Board prior to its abolition can be heard and decided by a Single Judge of the Delhi High Court for the following reasons: (i) Rule 4 of the Intellectual Property Division Rules clearly requires every Intellectual Property Rights subject matter, case, proceeding or dispute to be decided by a Single Judge. (ii) The decision of the Intellectual Property Appellate Board constitutes Intellectual Property Rights subject matter within the meaning of Rule 2(i) of the Intellectual Property Division Rules. (iii) A writ petition which challenges the decision of the Intellectual Property Appellate Board is therefore within the ambit of the expression “original proceedings, appellate or other proceedings relating to Intellectual Property Rights subject matter” and is an Intellectual Property Rights subject matter, case, proceeding or dispute as defined in Rule 2(l) of the Intellectual Property Division Rules. (iv) This concludes the controversy. Rule 4, read with Rule 2(i) and Rule 2(l) of the Intellectual Property Division Rules, requires writ petitions challenging orders passed by the Intellectual Property Appellate Board to be decided by Single Judges. (v) Even if clause (iii) were to apply, writ petitions arising out of Intellectual Property Rights subject matters are specifically included by that clause in the category of Intellectual Property Rights subject matters, cases, proceedings or disputes; clause (iii) of Rule 2(l), read with Rule 4, therefore reinforces the position that such writ petitions must be decided by Single Judges. (vi) There is no provision in the Intellectual Property Division Rules that requires such writ petitions to be dealt with by Division Benches, so the exception in Rule 2(l)(iii) does not alter this position. (vii) Even if one were to consider this exception and, based on Rule 8(iii), also take the Delhi High Court Rules into account, writ petitions against orders passed by the Intellectual Property Appellate Board would still have to be heard by Single Judges, as they fall within Rule 1(xviii)(a) in Part B of Chapter 3 of the Delhi High Court Rules. (viii) Rule 4 of Chapter 3 of the Delhi High Court Rules would therefore not apply. (ix) With the position thus clear from the Rules, any hesitation or refusal by a Single Judge to hear these petitions, short of recusal, would amount to abdication of the judicial function vested in him. Recourse to the history of the Intellectual Property Division Rules, or the evolution of the statute, or the creation and abolition of the Intellectual Property Appellate Board, as grounds not to exercise the jurisdiction vested by the Intellectual Property Division Rules and even by the Delhi High Court Rules in the Single Judge would be completely unjustified. The objection that these writ petitions cannot or ought not to be heard by a Single Judge is therefore rejected.
id_382	0	Reportable Criminal Appeal Number 1279 of 2021 Bhoopendra Singh Appellant versus State of Rajasthan and Another Respondents. Justice Dhananjaya Y. Chandrachud., This appeal arises from a judgment dated 11 August 2021 of a Single Judge at the Jaipur Bench of the High Court of Judicature for Rajasthan. By the judgment impugned in the appeal, the High Court has allowed the fifth bail application of the second respondent., FIR Number 732 of 2017 was registered at Police Station Mathuraghat for offences punishable under Sections 147, 148, 149, 323, 341, 307, 302 and 336 of the Indian Penal Code 1860. While allowing the application for bail, the Single Judge observed: Taking note of the fact that the petitioner has remained in custody for a period of three years and ten months, she is a female, no overt act is assigned to her in the present case, co‑accused Vijay Pal, against whom there was allegation, has been given benefit of bail, after rejection of fourth bail application by this Court, there is variance in prosecution story, earlier the presence of accused was shown at the tea shop and later on presence of accused according to witness is shown at the place of occurrence and conclusion of trial will take time, hence, I deem it proper to allow the fifth bail application., The appellant is the son of the deceased Daansingh, who was the Sarpanch of the village. It has been alleged that there was a prior enmity between the accused and the deceased, as a consequence of which the husband of the second respondent together with certain other members of his family and sharpshooters shot at Daansingh in September 2015. Daansingh survived the incident. FIR Number 466 of 2015 under Section 307 of the Indian Penal Code was registered at Police Station Kumher. The second respondent was arrested and charge‑sheeted. The evidence of Daansingh was to be recorded at the criminal trial. A fortnight prior to the recording of his evidence, Daansingh was murdered on 11 September 2017., On 12 September 2017, FIR Number 732 of 2017 was registered at Police Station Mathuraghat by the brother of the appellant for offences punishable under Sections 147, 148, 149, 323, 341, 307, 302 and 336 of the Indian Penal Code and Sections 3/25 and 4/25 of the Arms Act 1959. The second respondent was arrested on 3 October 2017. After investigation, the final report under Section 173 of the Code of Criminal Procedure was submitted on 28 December 2017 in which the second respondent has been named as an accused., The second respondent was denied bail by the High Court of Rajasthan on 6 April 2018, 5 September 2019 and 8 September 2020. In its order dated 5 September 2019, the High Court noted: I.O. is present in person in the Court, who has produced the call details. It is informed by Investigating Officer that two mobiles were recovered from the petitioner and from I.M.E.I. number, it is revealed that different SIMs were used in these mobiles and two SIMs that were used, petitioner was in contact with Prahlad and her son Anek Singh, who is also accused in this case. It is also informed that a day prior to the incident, petitioner and one Bhuria came to the office of A.S.I and threatened to murder Daansingh. It is also informed that petitioner informed the shooter about movement of the deceased and she was constantly in touch with Prahlad and her son Anek Singh., By its order dated 8 September 2020, the High Court of Rajasthan, while dismissing the fourth bail application, also observed that the second respondent was not cooperating in the investigation., The High Court of Rajasthan has allowed the fifth application for bail of the second respondent observing that (i) the second respondent is a woman; (ii) she has been in custody for three years and ten months; (iii) no overt act was assigned to her in the present case; (iv) co‑accused Vijaypal has been granted bail; (v) there is a variance in the story of the prosecution in respect of the location of the second respondent; and (vi) the conclusion of the trial is likely to take time., Mr Namit Saxena, counsel appearing on behalf of the appellant, submitted that: (i) the High Court is in error in proceeding on the basis that no overt act is attributed to the second respondent since the charge‑sheet, which has been submitted after investigation, indicates that the second respondent was using as many as four SIM cards and was in constant contact with Prahlad, the co‑accused who was hired as a sharpshooter, and her son Anek, who is also a co‑accused; and (ii) the second respondent was the custodian of the weapons used in the crime; (iii) the High Court had in its order dated 8 September 2020 specifically noted that the second respondent was not cooperating in the investigation of the case; (iv) four earlier bail applications have been rejected and there was no change in the circumstances to warrant the grant of bail; (v) no parity could be claimed with the co‑accused Vijaypal since he has not been charge‑sheeted; (vi) the investigation has revealed that the deceased was murdered with the aid of a hired sharpshooter shortly before he was to depose at the criminal trial in the case arising out of FIR Number 466 of 2015 under Section 307 of the Indian Penal Code; (vii) the second respondent, as the prosecution alleges, was following the car of the deceased and was providing instructions about his location to the sharpshooter; and (viii) even the brother of the appellant, Gopal Singh, was assaulted shortly before his testimony was to be recorded., Mr Vivek Sood, senior counsel appearing on behalf of the second respondent, submitted that: (i) the incident took place outside the house of the deceased, in which event the role attributed to the second respondent is rendered meaningless; (ii) there has been a clear over‑implication of members of the family in the FIR since as many as six persons are alleged to have shot at the deceased whereas only two bullets were recovered; (iii) two of the persons named in the FIR have not been charge‑sheeted; (iv) the second respondent is sixty years old and was released on bail after being in custody for three years and ten months; (v) twenty‑eight out of fifty‑eight witnesses have been examined and the trial is likely to take some time; and (vi) Anek Singh, with whom the second respondent is alleged to have been in contact, is her son, while Prahlad, the alleged sharpshooter, is a relative and hence there would be nothing untoward in the mobile contact., Ms Ritika Jhurani, counsel appearing on behalf of the State of Rajasthan, submitted that: (i) the High Court of Rajasthan has not considered the gravity of the crime while granting bail to the second respondent; (ii) no parity could have been claimed with co‑accused Vijaypal who was granted bail since he was not found to be involved in the incident and was not charge‑sheeted; and (iii) the second respondent was found to be directly involved in the conspiracy of a pre‑meditated murder., In Anil Kumar Yadav versus State (National Capital Territory of Delhi), the Supreme Court of India has spelt out some of the significant considerations which must be placed in the balance in deciding whether to grant bail: While granting bail, the relevant considerations are: (i) nature and seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on society; and (v) likelihood of tampering. No doubt, this list is not exhaustive. There are no hard‑and‑fast rules regarding grant or refusal of bail; each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court., While granting bail in the present case, the High Court of Rajasthan observed that no overt act is assigned to her (the second respondent) in the present case. These observations are erroneous. The final report under Section 173 of the Code of Criminal Procedure indicates that the investigation has revealed that (i) the second respondent was using as many as four SIM cards and was in touch with one of the sharpshooters who was hired to commit the crime; and (ii) she was the custodian of the weapons which were stored at the rental premises where she resided., The charge‑sheet contains the following details in regard to the use of the mobile numbers of the second respondent: From analysis of these call details, the following facts have come to light. Mobile Number [xxxxxxxx00] (Omvati): The call details of this mobile number were procured from 01 August 2017 onwards until the date of occurrence of the case incident and found that the number was active until 09 September 2017. Its corresponding IMEI number was [xxxxxxxxxxxx810]. After 09 September 2017, in the same mobile phone, some other SIM was found to be active. Call details corresponding to IMEI number [xxxxxxxxxxxx810] were obtained for mobile number [xxxxxxxx36] in the course of which it came to be known that this mobile number was active until the date of incident 11 September 2017. Mobile Number [xxxxxxxx36] (Omvati): The SIM card was issued in the name of Guddi, wife of Shri Lalsingh, resident of Sabaura, District Bharatpur. Omvati has used the mobile phone of IMEI number [xxxxxxxxxxxx810] in the past for making and receiving calls to and from mobile number [xxxxxxxx00] and later also operated mobile number [xxxxxxxx36], which clearly indicates that the mobile has been used by Omvati only and not Guddi. When the call details of mobile number [xxxxxxxx36] were analysed, it was found that on 11 September 2017 the location was Kumher, Nagla Baghera Post Bauraayi, Anand Nagar, Bharatpur, Ranjit Nagar, Bharatpur, near Bharatpur Railway Station and that from this number she made several calls and conversed with mobile number [xxxxxxxx31]., The mobile number with which the cell phone of the second respondent was in contact is that of the co‑accused Prahlad, who is alleged to be a hired sharpshooter. Apart from the above two mobile numbers, there were two other mobile numbers used by the second respondent, as indicated in the following extracts from the charge‑sheet: Mobile Number [xxxxxxxx57] (Omvati): Investigation revealed that this mobile number has been used in the name of Pradeep, son of Udaysingh, resident of Badeeka, Tehsil Kathoomar, District Alwar and its IMEI [xxxxxxxxxxxx960] was under consistent usage. On the date of occurrence of the case incident, that is, 11 September 2017, the location of this number was traced as Ashok Nagar, near Subhash Nagar, Bharatpur, Nagal Ganga, Tehsil Kumher, Kumher, Rarah. The IMEI‑based call data record showed that [xxxxxxxx89] was an active number and was used by Omvati. Mobile Number [xxxxxxxx89] (Omvati): This mobile number was issued in the name of Omvati, wife of Ratansingh, resident of Sabaura, Police Station Kumher, Bharatpur and analysis of the call data record showed that it was used in instruments of IMEI numbers [xxxxxxxxxxxx970] and [xxxxxxxxxxxx960]. When the call data record of IMEI number [xxxxxxxxxxxx960] was procured, it was found that mobile number [xxxxxxxx57] related SIM card has been used in it. Thus, it is apparent that mobile number [xxxxxxxx57] was used by Omvati, wife of Ratansingh, resident of Sabaura, Kumher, Bharatpur and the aforesaid IMEIs [xxxxxxxxxxxx970] and [xxxxxxxxxxxx960] were used from a single mobile handset by her. On 11 September 2017, the date of occurrence of this case incident, its location was traced as Ashok Vihar, Subhash Nagar, Bharatpur, Kumher, Ranjeet Nagar, Bharatpur, near Bharatpur Railway Station., The charge‑sheet contains an analysis of the call data records. Apart from the material drawn from the call data records, it has been found during the course of the investigation that in order to purchase the firearms for the crime, Ratan Singh, the husband of the second respondent, had paid an advance of Rs. 40,000 to Prahlad. Prahlad had brought three katas and ten cartridges. The weapons were kept in a room by Anek Singh at Bharatpur in which the second respondent was residing on a rental basis. Moreover, there is a specific allegation that the second respondent actively aided the commission of the crime by furnishing information about the movements of the deceased (Daansingh) to the killers. There has been an evident error on the part of the High Court of Rajasthan in surmising that no specific or overt act is attributed to the second respondent. As regards the co‑accused Vijaypal, it has been submitted that during the course of the investigation he was not found to be present at the scene of the offence and was not charge‑sheeted., In deciding whether the fifth bail application of the second respondent should be allowed, the High Court of Rajasthan has failed to consider the seriousness and gravity of the crime and the specific role attributed to the second respondent. The deceased was due to testify in the trial in the prior case under Section 307 of the Indian Penal Code and the murder was committed barely a fortnight prior to the date on which he was to depose. The High Court had rejected four previous bail applications. There was no change in circumstances. In this backdrop, the High Court, having failed to notice material circumstances bearing upon the grant of bail to the second respondent and, as noted above, having proceeded on a palpable erroneous basis, a case for the setting aside of the order of the High Court has been duly established., In Mahipal versus Rajesh Kumar, one of us (Justice D. Y. Chandrachud), speaking for a two‑judge Bench of the Supreme Court of India, after adverting to the precedents on the subject, enunciated the considerations which must weigh in the determination of whether bail should be granted: The principles that guide this Court in assessing the correctness of an order passed by the High Court granting bail were succinctly laid down by this Court in Prasanta Kumar Sarkar versus Ashis Chatterjee. In that case, the accused was facing trial for an offence punishable under Section 302 of the Indian Penal Code. Several bail applications filed by the accused were dismissed by the Additional Chief Judicial Magistrate. The High Court in turn allowed the bail application filed by the accused. Setting aside the order of the High Court, Justice D. K. Jain, speaking for a two‑judge Bench of this Court, held: It is trite that this Court does not normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had 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 course, of justice being thwarted by grant of bail., It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non‑application of mind, rendering it illegal., The decision of this Court in Prasanta Kumar Sarkar versus Ashis Chatterjee has been consistently followed by this Court in Ash Mohammad versus Shiv Raj Singh, Ranjit Singh versus State of Madhya Pradesh, Neeru Yadav versus State of Uttar Pradesh, Virupakshappa Gouda versus State of Karnataka and State of Orissa versus Mahimananda Mishra. The Court noted that the considerations which must weigh in the exercise of the power of an appellate court to determine whether bail has been granted for valid reasons stand on a distinct footing from an application for cancellation of bail. The Court observed: The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on whether there was an improper or arbitrary exercise of discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted., On the touchstone of the above decisions and for the reasons indicated above, the impugned order granting bail is unsustainable. The High Court of Rajasthan has failed to notice relevant circumstances bearing on the seriousness and gravity of the crime and the role attributed to the second respondent. The High Court proceeded on the erroneous basis that no overt act has been assigned to the second respondent. There was no change in circumstances warranting the grant of bail., For the above reasons we allow the appeal and set aside the impugned judgment and order of the Single Judge at the Jaipur Bench of the High Court of Judicature for Rajasthan dated 11 August 2021 in SB Criminal Miscellaneous Fifth Bail Application Number 11627 of 2021. The application for bail filed by the second respondent shall consequently stand rejected. The second respondent shall surrender on or before 7 November 2021., The observations made in this judgment are only for the purpose of considering the application for bail and shall have no bearing on the merits of the case or the pending trial., Pending applications, if any, stand disposed of. Justice Dhananjaya Y. Chandrachud. Justice B. V. Nagarathna.
id_383	0	(Criminal Revision No. 588 of 2021 of Vile Parle Police Station) Applicant Vs State of Maharashtra (through Vile Parle Police Station) Respondents. Learned Advocate Rupesh Maurya, for the applicant. Learned Assistant Public Prosecutor Sachin Jadhav, for the State/respondent. Learned Advocate Suraj Chauhan, for the intervener. Date: 25th August 2021. This is an application for releasing the applicant on bail, in respect of Criminal Revision No. 588 of 2021, registered with Vile Parle Police Station, for the offences punishable under sections 376 and 313 of the Indian Penal Code., Perused the application, the statement filed thereon and the documents relied upon in support thereof. Heard the learned counsel for the applicant, the intervener and the learned Assistant Public Prosecutor for the State., It is submitted by the learned counsel for the applicant that the informant gave no objection for bail by filing an affidavit. She refused her medical examination also. The applicant as well as the informant were married persons prior to their sexual relationship. Per contra, it is submitted by the learned Assistant Public Prosecutor that the applicant and the informant resided together after the promise of marriage. Abortion was also done. The informant is being pressurized. Investigation is in progress and the statement of the informant under section 164 of the Code of Criminal Procedure is yet to be recorded. The investigating officer further added that the release of the applicant on bail before the completion of investigation is likely to affect the case., As per the FIR, the applicant promised to marry the informant. Thereafter, they started residing together in a rented room from November 2018 to May 2020 and had sexual relationship. The informant was required to get her fetus aborted twice. The applicant is said to have ended the relationship and disclosed that he got married to some other girl., Irrespective of the no objection given by the informant in her own affidavit, the factual matrix unveiled in the FIR ipso facto reveals that the relationship was consensual, for the simple reason that the informant started residing with the applicant continuously, even without getting married to him. The said live‑in relationship, by itself is sufficient to show that the sexual relationship was consensual, due to which, the applicant is entitled to be released on bail, de hors the no objection given by the informant, notwithstanding whether it is voluntarily or otherwise., The application for releasing the applicant on bail is hereby allowed, and it is hereby directed that the applicant be released on bail, in connection with Criminal Revision No. 588 of 2021, registered with Vile Parle Police Station, for the offences punishable under sections 376 and 313 of the Indian Penal Code, on his executing personal recognizance bond of Rupees Fifteen Thousand Only, with one or more sureties in the like amount, on the condition that the applicant shall not tamper with the prosecution witnesses in any manner. The bail is before the learned Judicial Magistrate. It is hereby directed that the applicant be released on cash bail to the tune of the amount of surety for a period of two months. Criminal Bail Application No. 1118 of 2021 is hereby disposed of accordingly., Additional Sessions Judge, City Civil & Sessions Court, Borivali Division, Dindoshi, Mumbai. HHJ Shri S. U. Baghele.
id_384	0	Nandu Dada Survase, age 45 years, Occupation - Agriculturist, Resident of Ranjani, Taluka Pandharpur, District Solapur. At present in Sub‑Jail, Pandharpur. Appellant (Original Accused No.1). The State of Maharashtra. Respondent Miss Shraddha Sawant, appointed advocate for the appellant. Miss Veera Shinde, appellant for the respondent - State., The appellant herein is convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/- (Five Thousand only); in default to suffer further rigorous imprisonment for three months vide judgment and order passed by the Additional Sessions Court, Pandharpur in Sessions Case No.83 of 2009 in Crime No.232 of 2009. Hence, this appeal., On 28th August 2009, at about 1.00 pm, Narayan Salunkhe lodged a report at Pandharpur Police Station alleging that his daughter Shakuntala (deceased) was married to the present appellant. The couple was blessed with two sons and a daughter who were studying in Ashram School. Due to famine four to five years prior to 28th August 2009, Shakuntala and Nandu had started residing at Anavali, Taluka Pandharpur along with their cattle. A discordant note had struck between the couple and thereafter, Shakuntala had started residing with her parents. She was working as a housemaid., On 27th August 2009, on occasion of Gauri Ganpati Festival, Shakuntala had gone to village Ranjani to meet her sister Rajabai., On 28th August 2009 at about 9.30 am, Rajabai, sister of the deceased, rushed home and informed Witness 5 that on that day at about 8.00 am when Shakuntala was at the bus stop the husband of Shakuntala, i.e. the present appellant, approached her, abused her and assaulted her. They rushed to the bus stop and noticed that Shakuntala had sustained an incised wound on her neck and she had succumbed to the said injuries., On the basis of the said report, Crime No.232 of 2009 was registered at Pandharpur Taluka Police Station for the offence punishable under section 302 of the Indian Penal Code., At the trial, the prosecution examined as many as eleven witnesses to bring home the guilt of the accused. The case of the prosecution rests on the evidence of Witness 5 Narayan Salunkhe, the complainant; Witness 6 Mahadeo Salunkhe, brother of the deceased; Witness 7 Anand More, eyewitness to the incident; and Witness 8 Rajabai, eyewitness to the incident – sister of the deceased., Witness 5 Narayan Salunkhe, the complainant, proved the contents of the FIR. He stated before the Court that his daughter Shakuntala was being harassed and ill‑treated at the hands of the accused since he suspected her chastity. He alleged that the accused used to abuse and assault her under the influence of alcohol. Consequently, she withdrew from the society of her husband and started working as an agricultural labourer. During that work her left hand was fractured, rendering her unable to work, so she took up employment as a maid. She was residing at Karad Naka and her children were studying in Ashram School. Her children visited her during vacation. On the eve of Gauri Ganpati, Shakuntala went to the house of Rajabai with idols of Laxmi. When she was at the bus stop near Gandage Vasti, her husband gave her a blow with a sickle on her neck; despite her cries for help nobody rescued her., It is admitted by Witness 5 that by the time he reached the spot of the incident the police had arrived and people had gathered around., Witness 6 Mahadeo Salunkhe, brother of the deceased, corroborates the evidence of Witness 5. He denied that he had disclosed to the police that Dnyanoba Ligade and Anand More had witnessed the prelude to the incident and assault. He also denied that the deceased had obstructed the accused by pulling his shirt and shouting that he had stolen money from her house and that he was impotent. He further denied that independent witnesses had informed him that the accused was trying to leave the scene but was obstructed and abused by the deceased, who called him impotent, thief and used all sorts of abuses. He stated that she was trying to snatch bags from the bicycle and repeatedly told him not to bother even if she maintained illicit relations with others, as that was none of his business., Witness 7 Anand More, an independent eyewitness declared hostile by the prosecution, testified that four to five years prior to the incident Solapur District was stricken by famine, prompting the Government to open cattle camps at village Anavali. His statement, recorded in Exhibit A, reads: At about 8.30 am the deceased Shakuntala was at the bus stop. Her husband was proceeding for work. The deceased obstructed his way by catching hold of his shirt and questioning why he had stolen money from her house. She referred to him as impotent and started abusing him. The accused attempted to leave, but she continued to obstruct him by pulling the bag hanging from the handle of his bicycle. Thereafter, the accused removed the sickle from his bag and assaulted his wife with the sickle. The witness tried to intervene, rushed to the village and informed the police patil as well as Sarpanch Bhivaji Dandge, then left for work., Witness 8 Rajabai Ligade, an eyewitness to the incident, reiterated that the deceased was harassed by the accused since he suspected her character. Consequently, she left her matrimonial abode and resided with her father, initially working as an agricultural labourer and later as a maid in Manisha Nagar, Pandharpur, also selling vegetables. The deceased visited her house; she then wanted to go to Pandharpur and waited at the bus‑stop near the Vasti of Anand More (Witness 7). She had forgotten her purse, so Witness 8 rushed to the bus‑stop to hand over the purse and, while near Anand More’s Vasti, saw her sister being assaulted by the accused. She observed injuries on her sister’s neck, face and hands and informed her father that her sister was lying dead at the spot., Witness 9 Shankar Jirage, the investigating officer, deposed before the Court the steps taken during the investigation and highlighted omissions and contradictions in the evidence of Witnesses 6, 7 and 8. The learned counsel for the appellant submitted that there is no denial of the fact that the incident occurred and urged the Court to consider the circumstances. According to the counsel, the accused was passing by the road on his own, working as an agricultural labourer engaged in cutting sugarcane. He was obstructed by the deceased, who levelled scathing remarks against his honour. He tried to proceed quietly, but she continued to abuse him publicly, creating grave and sudden provocation; therefore, the offence does not fall under section 302 of the Indian Penal Code., Per contra, the learned appellant submitted that, although there was grave and sudden provocation, the accused should have exercised self‑restraint. He drew attention to column no.17 of the post‑mortem notes, which show that the deceased sustained ten chop‑type injuries, with the oesophagus and trachea also cut. It is therefore prayed that the judgment of the trial Court not be interfered with., With the assistance of the learned counsel for the accused and the learned appellant, we have reviewed the records and proceedings. We agree that the circumstances of the incident must be considered. The couple had been married for more than fifteen years, and the appellant was the father of three grown‑up children studying in the Ashram School. Approximately four years before the incident, they had separated and lived independently without interfering in each other's lives. On the fateful day, upon seeing the accused by chance, the deceased not only obstructed his way by holding his neck and pulling his shirt but also hurled abuses and scathing remarks that damaged the accused’s self‑esteem publicly. The incident occurred on a busy road near the residential house of Anand More, and the loud allegations were heard by all, making it natural for the man to feel ashamed when called impotent., The appellant was the father of three children. Despite this, the deceased not only called him impotent but used it as an excuse for having illicit relations, stating that it was none of his concern how she lived her life. There is no material to show that after parting ways the accused ever interfered with the deceased’s lifestyle., It is true that the assault resulted from grave and sudden provocation. The accused was deprived of self‑control and could not restrain himself while mounting the assault. It was not a pre‑meditated act. He was on his way to work and was carrying a sickle in his bag. The offence falls under Exception 4 to Section 300, which reads: Exception 4 – Culpable homicide is not murder if it is committed without premeditation 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., The accused has been in custody since 2009 and has undergone almost twelve years of imprisonment. In view of this and the observations made above, the appellant should be convicted for the offence punishable under section 304(II) of the Indian Penal Code to serve the ends of justice. Hence, we pass the following order: (i) The appeal is partly allowed; (ii) The conviction of the appellant for the offence punishable under section 302 of the Indian Penal Code vide judgment and order dated 28th June 2012 passed by the Additional Sessions Judge, Pandharpur is hereby quashed and set aside; (iii) The appellant is convicted for the offence punishable under section 304(II) of the Indian Penal Code and is sentenced to the period already undergone; (iv) The appellant be released forthwith, if not required in any other offence; (v) The learned counsel Miss Shraddha Sawant has assisted the Court to the best of her capacity and is entitled to professional fees; (vi) Appeal is disposed of.
id_385	0	Reserved on Pronounced on. This petition having been heard and reserved for orders, coming on for pronouncement this day, the High Court of Madhya Pradesh passed the following:, These suo motu proceedings for contempt were initiated in pursuance to a reference sent by Shri S.P.S. Bendela, Additional District Judge, Bareli under Section 15(2) of the Contempt of Courts Act, 1971, for registration of a civil as well as criminal contempt against the accused Krishna Kumar Raghuvanshi, son of late Shri Shankar Singh Raghuvanshi, and Shri Sumer Singh, son of Shri Dhannu Lal, for flouting the order dated 11 July 2019 passed in Regular Civil Appeal No. 27 A/2018 directing them to deposit the amount received as donation from the devotees in the bank in the name of the trust., The Additional District and Sessions Judge, Bareli, District Raisen, further submitted that the contemnor Shri Krishna Kumar Raghuvanshi committed criminal contempt as, after the order dated 11 July 2019 passed in Regular Civil Appeal No. 27, he circulated a letter on social media (WhatsApp) maligning the image, reputation and prestige of the court, causing adverse impact on the due process of the judicial proceedings, in view of the judgment passed by the Honorable Supreme Court in the case of Het Ram Beniwal and others v. Raghuveer Singh, reported in 2017 Cri. LJ 175., The Additional District and Sessions Judge sent a reference praying to punish contemnors Shri Krishna Kumar Raghuvanshi and Shri Sumer Singh Raghuvanshi under the Contempt of Courts Act., The facts in a nutshell are that the accused Krishna Kumar Raghuvanshi filed Regular Civil Appeal No. 27 A/2018 in the Court of the Additional District Judge, Bareli against the judgment and decree passed by the Second Civil Judge, Class I, Bareli in Regular Civil Suit No. 25 A/2016 dated 04 December 2018. During the pendency of the appeal, the respondents filed a compromise application and the Additional District Judge decreed the appeal in terms of the settlement arrived at between the parties., On 29 July 2019, Shri Yashpal Singh Raghuvanshi made an application before the Additional District Judge under Section 15 of the Act, 1971 alleging that the respondents had violated the decree of the court, on the basis of which a Memo No. 12/2019 was registered. Statements of the witnesses were recorded and documentary evidence was produced before the court. The respondents denied the allegations., Vide order dated 09 May 2020, it was observed that the respondents had violated conditions Nos. 5 and 6 of the decree, which amounts to civil contempt under the Act, 1971. It was also pointed out that respondent Krishna Kumar sent a complaint against the Additional District Judge, Bareli alleging misuse of his office and adopting corrupt practice., During the enquiry in the application filed by applicant Yashpal Raghuvanshi, the respondent Krishna Kumar admitted that he had sent a complaint to the High Court. When asked to file a reply with regard to Article A05, he refused to do so., It has also been mentioned in the reference that respondent Krishna Kumar circulated on WhatsApp a letter (Article A04) written to the Ministry of Law and Legislative Affairs, Government of Madhya Pradesh, stating that he had complained regarding corruption and misuse of powers by Shri S.P.S. Bundela, Additional District Judge, Bareli., The Bar Association of Bareli also resolved that a criminal contempt be instituted against the non‑applicants. The High Court of Madhya Pradesh took cognizance of the reference and documents annexed therewith and found that both respondents had violated the decree of the court and that respondent Krishna Kumar Raghuvanshi leveled baseless allegations against Shri S.P.S. Bundela, Additional District Judge, with a view to scandalise and lower the dignity and authority of the court., Hence, the present criminal contempt was registered suo motu against Shri Krishna Kumar Raghuvanshi. Notice was issued and the accused/contemnor filed a return tendering an unconditional apology for inadvertent violation of the order, if any., It is pointed out that the father of the respondent preferred a civil suit against the State Government and others with respect to the private temple located at Khasra No. 157 measuring 0.70 acres at Village Chind, Tehsil Bareli, District Raisen, which was decreed. It was held that the temple in question is a private trust of the plaintiffs and the order dated 31 March 1997 passed by the Registrar, Public Trust, Bareli was set aside., Owing to difference of opinion between the family members, another Civil Suit bearing No. 25 of 2016 was filed and vide judgment and decree dated 04 December 2018, the same was decreed holding the plaintiff and defendant No. 1 and their family members as owners of the private trust, however permitting intervention of the Sub‑Divisional Office (Revenue) owing to mandatory involvement. Being aggrieved, an appeal was preferred being Regular Civil Appeal No. 27 A of 2018 before the Additional District Judge, Bareli, District Raisen. The same was accompanied by an application under Order XLI Rule 5 of the Code of Civil Procedure. The case was not taken up by the concerned court and was adjourned, and even the application for grant of interim relief was not considered., Thereafter, an application for compromise was filed on 08 March 2019. One Vijay Singh filed an application under Order Rule 10 of the Code of Civil Procedure. On 11 May 2019, the learned first appellate court passed an order directing the Sub‑Divisional Officer (Revenue) to submit a report with respect to the compliance of the direction contained in paragraph 39 of the judgment and decree passed by the trial court dated 17 May 2019. Thereafter, a writ petition being W.P. No. 9949 of 2019 was filed by the respondent praying for a direction to the appellate court for deciding the compromise application of 08 March 2019., It is further stated that on 21 May 2019, the respondent made a complaint against Shri S. Bundela, Additional District Judge, Bareli, Raisen to the Principal Registrar, which is filed as annexure R/15. The aforesaid letter is the basic letter on the basis of which reference for initiation of criminal contempt was made., Learned counsel appearing for the respondent/contemnor attempted to justify his action of making a complaint against the residing officer of the first appellate court and simultaneously tendered an unconditional apology. He argued that as the temple in question is a private trust, a direction for involvement of the revenue authorities and putting a lock on the donation box was not called for. Therefore, the direction issued by the first appellate court to the Sub‑Divisional Officer (Revenue) was per se illegal, but the reckless allegation is leveled against the integrity and working of the residing officer of the First Appellate Court., Prior to initiation of the contempt proceedings against the respondent, an enquiry was conducted by the District Judge (Vigilance) and the complaint made by the respondent against the judicial officer was found to be incorrect. The opinion was placed before the Portfolio Judge and thereafter before the Honorable Chief Justice, who directed that the matter be closed. However, a decision was taken to initiate contempt proceedings against the respondent keeping in view the letter/complaint made by him., The provision of criminal contempt as defined under Section 2(c) of the Contempt of Courts Act, 1971 is as follows: Criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner., From the aforesaid, it is clear that if a complaint alleging reckless allegation of misuse of powers and corruption against a residing officer is made, the same falls under the definition of criminal contempt. By the words as pointed out hereinabove, an attempt is made by the respondent to scandalise and lower the majesty of the court and also the judicial officer., The complaint was investigated and the allegations were found to be reckless; therefore, on the approval of the Honorable Chief Justice on 08 August 2020, a decision was taken to initiate criminal contempt proceedings against the respondent. He was served with a notice of the allegation along with relevant material and was granted an opportunity to have his statement recorded before the authorities., Article 5 marked in the enquiry is a copy of the complaint dated 21 May 2019. It is not in dispute that proper opportunity of hearing was granted to the respondent to submit his explanation in the enquiry. Thus, the procedure required to be followed in the enquiry was adhered to by the authorities, and there is no illegality as far as the procedure adopted is concerned., The sole question for consideration before this Court is whether the words spelled out in the complaint made by the respondent fall within the definition of criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971., Recently, the Honorable Supreme Court in the case of Prashant Bhushan and another, Reference Suo Motu Contempt Petition (Cri.) 1 of 2020 decided on 14 August 2020, reported in (citation), considered the definition of Section 2 of the Act, 1971 and held that hostile criticism of judges as judges or judiciary would amount to scandalising the court. It observed that any personal attack upon a judge in connection with the office he holds is dealt with under the law of libel or slander, yet defamatory publication concerning the judge as a judge brings the court or judges into contempt, a serious impediment to justice and an inroad on the majesty of justice. The Court further observed that any caricature of a judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or the majesty of justice. It held that imputing partiality, corruption, improper motives to a judge is scandalisation of the court and would be contempt of the court., A Constitutional Bench of the Honorable Supreme Court in the case of Baradakanta Mishra v. High Court of Orissa, reported in (citation), held that scandalisation of the court is a species of contempt and may take several forms. A common form is the vilification of the judge. When proceedings in contempt are taken for such vilification, the question is whether the vilification is of the judge as a judge or as an individual. If the latter, the judge is left to his private remedies and the court has no power to commit contempt. If the former, the court will proceed to exercise jurisdiction with scrupulous care, and in cases which are clear and beyond reasonable doubt. The Court will also consider the degree of harm caused to the administration of justice; if it is slight and beneath notice, courts will not punish for contempt. This practice is adopted by Section 13 of the Contempt of Courts Act, 1971. The jurisdiction is not intended to uphold the personal dignity of the judges; that must rest on surer foundations. Judges rely on their conduct itself to be its own vindication. However, if the attack on the judge functioning as a judge substantially affects administration of justice, it becomes a public mischief punishable for contempt, irrespective of whether such an attack is based on alleged administrative responsibilities., From the aforesaid judgments of the Honorable Supreme Court and the definition provided under Section 2(c) of the Act, 1971, it is clearly apparent that even an attempt to scandalise or lower the authority of the court falls within the definition of criminal contempt. The words mentioned in annexure R/15 dated 21 May 2019, on the basis of which the criminal contempt proceedings have been initiated, question the working of the judicial officer and levy allegations of corruption and misuse of his position. This clearly falls under the definition of criminal contempt under Section 2(c) of the Act, 1971., The reply/explanation given by the respondent and the arguments advanced by learned counsel to justify the action are of no help, as there is no explanation for making such reckless allegation against the judicial officer, who, in the interest of the public at large, directed the Sub‑Divisional Officer to put a lock on the donation box. There is no material placed on record by the respondent to show that the allegations were correct., For the aforesaid reasons, the respondent is held guilty of committing criminal contempt as defined under Section 2(c) of the Contempt of Courts Act, 1971 and, therefore, is liable to be punished under Section 12 of the Act. We have heard Ms. Kratika Indurkhya and Shri Guransh Bhurrak, learned counsel on sentence. They pleaded that a sentence of fine alone be awarded. However, on considering the same we do not find that only imposing a fine would be adequate. The accused has made reckless allegations against the presiding judge. At this stage, counsel appearing for the respondents/contemnors prays that the respondents be convicted with a minimum sentence along with fine. Considering the overall situation and the prayer made by learned counsel, we deem it just and appropriate to sentence him to simple imprisonment for a period of ten days along with a fine of Rs 2000 to be paid by the respondent/contemnor before the Registry of this Court within seven days from the date of receipt of a copy of the judgment, failing which he is directed to undergo simple imprisonment for a further period of ten days. Accordingly, the criminal contempt proceedings are disposed of.
id_387	0	Date of decision: 07 August 2023. W.P.(C) 3693/2019 and C.M. No. 34242/2020. The petitioner appeared in person. The respondents were represented by Mr. Ramesh Babu M. R., Ms. Manisha Singh and Ms. Nisha Sharma, Advocates for Respondent; Mr. Arun Kathpalia, Senior Advocate with Mr. Saurabh Kumar, Mr. Abhishek Kumar Singh and Ms. Diksha, Advocates for Respondent No.2; and Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor and Ms. Shreya Vedantika Mehra, Advocates for Respondent/ Union of India., The present petitions have been filed in the nature of Public Interest Litigations for the issuance of appropriate writs, orders or directions directing the respondent authorities to direct Google Pay India Services Private Limited to cease its operations in India for violation of regulatory and privacy norms., In W.P.(C) 3693/2019 the petitioner has prayed for the following reliefs: (a) a writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction to the respondents, particularly the Reserve Bank of India, to immediately order Google India Digital Services Private Limited doing business as Google Pay to stop its unauthorised operation in India as a payment and settlement system for its failure to comply with and obtain authorisation of the Reserve Bank of India before commencement of the operations as prescribed under section 4 and sub‑section 1 of the Payments and Settlement Systems Act, 2007; (b) to conduct a compliance audit of Google India Digital Services Private Limited doing business as Google Pay under the provisions of sections 13, 14, 16 and 17 of the Payments and Settlement Systems Act, 2007; (c) to impose penalties on Google India Digital Services Private Limited doing business as Google Pay under the provisions of sections 26, 27, 28, 29 and 30 of the Payments and Settlement Systems Act, 2007 for contravention of the laws, regulations and procedure; (d) any other order or directions as the Supreme Court of India may deem fit and proper in the facts and circumstances of the case; and (e) costs of the present petition to be allowed in favour of the petitioner and against the respondent., In W.P.(C) 11262/2020 the petitioner has prayed for the following reliefs: (a) issuance of a writ of mandamus or any other writ that the Supreme Court of India deems justified upon Respondent No.1, the Unique Identification Authority of India, to initiate actions against Respondent No.3, i.e., Google Pay, under sections 29, 38 and 43 of the Aadhaar Act, 2016 for collecting, storing and using Aadhaar information of citizens in violation of the objects of the Aadhaar Act, 2016; (b) issuance of a writ of mandamus or any other writ that the Supreme Court of India deems justified upon Respondent No.1, the Unique Identification Authority of India, to issue appropriate directions under sections 23A, 28 and 29 of the Aadhaar Act, 2016 for the protection of unauthorised access to Aadhaar information of the citizens of India; (c) issuance of a writ of mandamus or any other writ that the Supreme Court of India deems justified upon Respondent No.1, the Unique Identification Authority of India, and Respondent No.2, the Reserve Bank of India, to prevent unauthorised access of Aadhaar and banking information of the citizens of India in the banking and financial system; and (d) any other order or directions as the Supreme Court of India may deem fit and proper in the facts and circumstances of the case., It is stated that the information brought on record in the present petition has been obtained by the petitioner through Right to Information applications and representations filed before government authorities such as the Reserve Bank of India, the Unique Identification Authority of India, which are entrusted with the responsibility of implementing, administrating and managing provisions of the Aadhaar Act, 2016; the Payments and Settlement Systems Act, 2007; and the Banking Regulation Act, 1949, respectively., The petitioner contends that Google Pay has violated privacy norms by gaining access to and using consumers' personal data such as Aadhaar details, which is in contravention of sections 29, 38(g) and 38(i) of the Aadhaar Act, 2016 and the Payments and Settlement Systems Act, 2007 and the Banking Regulation Act, 1949. Further, it is stated that storage and use of sensitive and personal banking information would tantamount to an offence by a company as per section 43 of the Aadhaar Act, 2016., The main grievance of the petitioner is that the operations of Google Pay in India as a payment system provider are unauthorised for want of obtaining necessary permissions and hence Google Pay storing sensitive information of Indian citizens would amount to violations under the Aadhaar Act, 2016; the Payments and Settlement Systems Act, 2007 (hereinafter referred to as the PSS Act) and the Banking Regulation Act, 1949., It is further submitted that upon a perusal of the terms and conditions of Google Pay, it emerges that the Google Pay application, which operates on the Unified Payments Interface platform, has been performing the role of facilitator of transactions. Therefore, Google Pay has been performing the role of a Payments System Provider (hereinafter PSP) without obtaining valid authorisation from the Reserve Bank of India as per sections 4 and 7 of the Payments and Settlement Systems Act, 2007, and therefore this constitutes an offence by a company under section 26 of the PSS Act., To buttress this submission, the petitioner places reliance on replies to Right to Information applications filed by the petitioner before the Reserve Bank of India and the Unique Identification Authority of India, seeking information as to whether Google Pay was authorised to operate as a payment system provider and whether the Unique Identification Authority of India had granted permission to access and store customer data while processing payments. The replies to Right to Information applications dated 09 September 2019 and 04 March 2020, before the Reserve Bank of India and the Unique Identification Authority of India respectively, are summarised as follows: (1) whether Google Pay had made an application under section 5 of the Payments and Settlement Systems Act as on 10 August 2019; (2) whether the Reserve Bank of India issued a show‑cause notice to Google Pay for operating without registration under section 5; (3) whether the Reserve Bank of India initiated proceedings against illegal and unauthorised operations of Google Pay under sections 26, 27 and 30; (4) whether the Reserve Bank of India allowed Google Pay to store banking transaction data of citizens on its server; (5) whether the Reserve Bank of India allowed Google Pay to collect personal identity information such as Aadhaar, PAN, Voter ID; (6) whether the Reserve Bank of India issued a show‑cause notice to the National Payments Corporation of India for allowing unauthorised access to UPI and BHIM platform to Google Pay; (7) whether the Reserve Bank of India conducted an audit of the payment system and servers of Google Pay under section 16; (8) whether the Reserve Bank of India received any communication from Google Pay that all citizen banking transaction data and personal information are maintained in servers located only in India; and (9) whether the Reserve Bank of India issued directions to Google Pay under section 17. The Unique Identification Authority of India was also asked whether it had permitted Google Pay to access and use the Aadhaar database for processing and authentication of payments, and whether it had received information from the Reserve Bank of India or the National Payments Corporation of India regarding such permission., It is further submitted that Google Pay does not find a mention under the list of entities authorised under the Payments and Settlement Systems Act, 2007 read with the Board for Regulation and Supervision of Payment and Settlement Systems Regulations, 2008, for setting up and operating a payment system in India. By virtue of this omission, Google Pay is an unauthorised payment system service and, as an unauthorised payments systems operator, has obtained unfettered access to its customers' personal information such as Aadhaar, PAN and other transaction details. It is also alleged that Google Pay violates the privacy of its users by requiring phone numbers, sharing contacts and other personal details. Further, it is alleged that Google Pay has not adhered to the directive dated 06 April 2018 issued under section 10(2) and section 18 of the PSS Act, 2007, which mandates all payment system providers such as the National Payments Corporation of India to ensure that all data pertaining to payment systems operated by them is stored in a system only in India., Learned counsel for the Reserve Bank of India submitted that the objective of the Payments and Settlement Systems Act, 2007 is to regulate and supervise payment systems in India, and the Reserve Bank of India is the designated authority for such purposes. Entities are required to obtain Reserve Bank of India permissions under the PSS Act, 2007 only for commencement or operation as payment systems. The Reserve Bank of India, under section 7 of the PSS Act, 2007, has granted a certificate of authorisation to the National Payments Corporation of India, an undertaking of the Reserve Bank of India, and has entrusted the responsibility of operating retail payments and settlement systems in India. The National Payments Corporation of India is duly registered as an authorised payment system provider under the PSS Act and is the network operator, service provider and coordinator of the Unified Payments Interface (hereinafter UPI), which is a system for real‑time instant payment facilitating inter‑bank transactions. Reference is made to National Payments Corporation of India procedural guidelines to submit that the National Payments Corporation of India is empowered to oversee customer grievances and also performs the role of a regulator of domestic payment systems. Since UPI is a platform operated and controlled by the National Payments Corporation of India, Google Pay functions merely to provide its services on the UPI platform and cannot be said to be a Payment Systems Provider in itself. Payment Service Providers are entities that provide front‑end applications to be used by customers. PSPs provide end‑to‑end services to customers. Banks may participate in the UPI framework as system participants, and under the multi‑bank model launched by the National Payments Corporation of India, a Third‑Party App Provider (TPAP) may participate in the UPI system through PSP banks. Under this arrangement, Google Pay is a TPAP., Learned counsel further submitted that at present the National Payments Corporation of India has allowed four banks to partner with the UPI system under the multi‑bank model. Every PSP bank in the UPI system allocates Virtual Payment Addresses (VPAs) to individual users to facilitate either Peer‑to‑Peer (P2P) or Peer‑to‑Merchant (P2M) transactions. This arrangement ensures that no other information such as bank details or private data is leaked, as all transactions are routed through customers' VPAs. In this framework, Google Pay merely acts as a TPAP, by connecting participating banks/system participants to a large customer base., Learned counsel for the Reserve Bank of India highlighted the difference between BHIM Aadhaar Pay and UPI in response to the petitioner's concerns regarding storage of sensitive banking information of customers such as Aadhaar details. While both services are products offered and operated by the National Payments Corporation of India, Google Pay is only a third‑party UPI‑enabled app which is not connected to BHIM‑Aadhaar in any way. Referring to a reply to the petitioner's Right to Information application dated 28 March 2019 filed before the Reserve Bank of India, it is submitted that onboarding of entities on the UPI platform is a decision taken by the National Payments Corporation of India. Accordingly, a list of third‑party applications on the UPI system includes Google Pay., Learned counsel further submitted that the appropriate mechanism to address complaints regarding digital transactions undertaken by customers of system participants is covered by the Reserve Bank of India Ombudsman Scheme for Digital Transactions, 2019. Chapter IV of the Scheme provides the procedure for redressal of grievances faced by individuals through filing a complaint before the Reserve Bank of India. Under section 3(11) of the Scheme, the 'System Participant' means any person other than a bank participating in a payment system as defined under section 2 of the Payments and Settlement Systems Act, 2007, excluding a 'System Provider', and a 'System Provider' means a person who operates an authorised payment system as defined under section 2(1)(q) of the Payments and Settlement Systems Act, 2007., The learned counsel for Google Pay submitted that Google Pay would not fall within the definition of a payment system as defined under section 2(1)(i) of the Payments and Settlement Systems Act, 2007. Google Pay is neither a system provider nor a payment system operator as far as its activities as a TPAP under the UPI, which is a payment system operated by the National Payments Corporation of India. Therefore, only system providers are required to obtain authorisation in consonance with sections 4 and 7 of the Payments and Settlement Systems Act, 2007. The National Payments Corporation of India is registered as an authorised system provider and controls UPI infrastructure and its antecedent payment systems. UPI works in real time by instantly transferring funds between two bank accounts and enables UPI account holders to send and receive money using an assigned user ID, which circumvents the need to enter bank information such as account details, PAN number or net‑banking PIN., Learned counsel further submitted that the National Payments Corporation of India has already received authorisation from the Reserve Bank of India under the Payments and Settlement Systems Act, 2007 to operate UPI, which in turn authorises participant banks and third‑party applications to offer their respective payment services. The National Payments Corporation of India introduced guidelines which dictate how PSP banks engage with TPAPs in the UPI system. The counsel for Google Pay submitted that these guidelines have a binding effect and are enforced contractually between the parties in the UPI system. Section 20 of the Payments and Settlement Systems Act reads: \20. System provider to act in accordance with the Act, regulations, etc. Every system provider shall operate the payment system in accordance with the provisions of this Act, the regulations, the contract governing the relationship among the system participants, the rules and regulations which deal with the operation of the payment system and the conditions subject to which the authorisation is issued, and the directions given by the Reserve Bank from time to time.\, Learned counsel placed reliance upon the National Payments Corporation of India circular dated 15 September 2017 which enables the operation of a multi‑PSP bank model in UPI to submit all data exchanged between the UPI‑enabled app, the app provider's system and PSP bank through a secure channel. Google Pay works on this multi‑PSP model and connects to UPI systems, which are operated by the National Payments Corporation of India (system provider) through multiple PSP banks. Thus, it is averred that Google Pay is merely an application that provides the technological platform and the interface through which users undertake UPI transactions., Heard learned counsel for the parties and perused the material on record. The matter is being disposed of with the consent of the parties at the admission stage itself., The relevant statutory provisions governing the field as contained under sections 2(1)(i), 2(1)(p) and 2(1)(q) of the Payments and Settlement Systems Act, which define 'payment system', 'system participant' and 'system provider' respectively, read as follows: \2(1)(i) payment system means a system that enables payment to be effected between a payer and a beneficiary, involving clearing, payment or settlement service or all of them, but does not include a stock exchange. 2(1)(p) system participant means a bank or any other person participating in a payment system and includes the system provider; 2(1)(q) system provider means a person who operates an authorised payment system.\, Section 7 of the Payments and Settlement Systems Act, which gives power to the Reserve Bank of India to grant authorisation for payment systems, reads: \7. Issue or refusal of authorisation. (1) The Reserve Bank may, if satisfied, after any inquiry under section 6 or otherwise, that the application is complete in all respects and that it conforms to the provisions of this Act and the regulations, issue an authorisation for operating the payment system under this Act having regard to the following considerations, namely: (i) the need for the proposed payment system or the services proposed to be undertaken by it; (ii) the technical standards or the design of the proposed payment system; (iii) the terms and conditions of operation of the proposed payment system including any security procedure; (iv) the manner in which transfer of funds may be effected within the payment system; (v) the procedure for netting of payment instructions effecting the payment obligations under the payment system; (vi) the financial status, experience of management and integrity of the applicant; (vii) interests of consumers, including the terms and conditions governing their relationship with payment system providers; (viii) monetary and credit policies; and (ix) such other factors as may be considered relevant by the Reserve Bank. (2) An authorisation issued under sub‑section (1) shall be in such form as may be prescribed and shall (a) state the date on which it takes effect; (b) state the conditions subject to which the authorisation shall be in force; (c) indicate the payment of fees, if any, to be paid for the authorisation to be in force; (d) if it considers necessary, require the applicant to furnish such security for the proper conduct of the payment system under the provisions of this Act; (e) continue to be in force till the authorisation is revoked. (3) Where the Reserve Bank considers that the application for authorisation should be refused, it shall give the applicant a written notice to that effect stating the reasons for the refusal: Provided that no such application shall be refused unless the applicant is given a reasonable opportunity of being heard. (4) Every application for authorisation shall be processed by the Reserve Bank as soon as possible and an endeavour shall be made to dispose of such application within six months from the date of filing of such application.\, Keeping in view the aforesaid statutory provisions of law and the counter‑affidavit of the Reserve Bank of India, it can be safely gathered that the National Payments Corporation of India is the operator of the UPI system for transactions in India and is a system provider authorised by the Reserve Bank of India under the Payments and Settlement Systems Act to extend its services for facilitating transactions. The transactions carried out via UPI through Google Pay are only peer‑to‑peer or peer‑to‑merchant transactions and Google Pay is not a system provider under the Payments and Settlement Systems Act, 2007., The UPI Guidelines, 2019 also make it clear that data may be stored under two types, namely, 'customer data' and 'customer payments sensitive data'. While the former may be stored with the app provider in an encrypted format, the latter can only be stored with the payment services provider's bank systems, and not with the third‑party app under the multi‑model API approach that Google Pay has opted for. Accordingly, no merit is found in the petitioner's contention that Google Pay is actively accessing and collecting sensitive and private user data., Within the framework of UPI, banks perform two roles. The first role is that of a PSP which provides payment services to customers, the other is to facilitate and settle all debit and credit transactions. PSPs are entities that provide front‑end application services to the customer. A PSP may also provide a user with an application which may be used by the same bank's customers or even by other banks' customers., In this context, third‑party apps such as Google Pay are designed to provide a large customer base to participating banks. A third‑party app such as Google Pay obtains approval from the National Payments Corporation of India for operating on the UPI platform. In the multi‑bank application system which Google Pay has adopted, the National Payments Corporation of India provides a common library for integration to TPAPs on behalf of PSP banks. An extract from the Unified Payment Interface Procedural Guidelines, 2019 reads: \Multiple bank model (API approach) This approach enables multi‑bank PSPs to partner with a single third‑party app provider, in which a large merchant/tech player (referred to as 'third‑party app provider') having access to a large customer base can connect to the UPI system through multiple PSP banks. In the multi‑bank API arrangement, the National Payments Corporation of India shall provide the National Payments Corporation of India Common Library directly for integration to the third‑party app provider on behalf of PSP banks. The app connects to PSP bank systems through the third‑party app provider's system using API on a secure channel. For initiation, the third‑party app provider needs to write to the National Payments Corporation of India with the names of participating banks (up to a maximum of five banks). The letter should also include the details of existing user base and volume commitment.\, The Procedural Guidelines, 2019 also shed light on the models used in UPI. Under the model dependent on bank architecture, which Google Pay has opted for, all transactions are routed through participating banks which are connected to the NPCI‑NET., A perusal of the counter‑affidavit filed by the Reserve Bank of India shows that the Reserve Bank has issued the Certificate of Authorisation to the National Payments Corporation of India to operate various retail payment systems in India including UPI. As pointed out by learned counsel for the Reserve Bank of India, UPI is an instant real‑time payment system developed by the National Payments Corporation of India for facilitating inter‑bank transactions and works by instantly transferring funds between two bank accounts on a mobile platform. It has been further pointed out that UPI powers multiple bank accounts into a single mobile application, merging several banking features, seamless fund routing and providing merchant payments in one hood. Relevant portions of the counter‑affidavit read: \7. That before adverting to the facts of the present case, it will be pertinent to mention here that UPI is an instant real‑time payment system developed by the National Payments Corporation of India for facilitating inter‑bank transactions and works by instantly transferring funds between two bank accounts on a mobile platform. Thus, precisely UPI is a system that powers multiple bank accounts into a single mobile application (of any participating bank), merging several banking features, seamless fund routing and providing merchant payments into one hood. It is further submitted that both person‑to‑person (i.e., P2P) and person‑to‑merchant (i.e., P2M) payment transactions can be done using a UPI application. Furthermore, UPI also permits real‑time push transactions, i.e., the customer initiates the transaction to pay the beneficiary; and pull transactions, i.e., the beneficiary initiates the request to make payment. It is further submitted that UPI has many unique features including immediate money transfer through mobile device round the clock 24×7 and 365 days with single‑click two‑factor authentication. Different bank accounts can be accessed using a single UPI application and payment can be made using a Virtual Payment Address (i.e., VPA), wherein the customer need not part with any other information such as card number, account number, IFSC code, etc.\, It is submitted that there are various players in the UPI system such as (i) the National Payments Corporation of India, (ii) payer Payment Service Provider, (iii) payee Payment Service Provider, (iv) remitter bank, (v) beneficiary bank, (vi) bank account holders (payer/payee) and (vii) merchant. As per the Payments and Settlement Systems Act, the National Payments Corporation of India is the system provider of UPI and its owner as well as operator. Payment Service Providers are the entities that provide the front‑end/application for the customer. They acquire customers and provide payment (credit/debit) services to them. Only banks are allowed to act as PSPs and therefore the services under UPI are presently offered by banks in their capacity as PSP banks, i.e., PSP banks are the system participants of UPI., It is submitted that the National Payments Corporation of India initially launched the single‑PSP model under UPI and, under this model, a third party could also connect to the UPI platform through a single sponsor PSP bank. Subsequently, the National Payments Corporation of India approached the respondent with a proposal of a multi‑bank model in UPI, which was noted by the Reserve Bank of India in a letter dated 22 August 2017. Accordingly, the National Payments Corporation of India introduced the multi‑bank model under UPI on 15 September 2017 wherein a large merchant/tech player, referred to as Third‑Party App Provider (TPAP), having access to a large customer base, can connect to the UPI system operated by the National Payments Corporation of India through multiple PSP banks., It is submitted that the National Payments Corporation of India has allowed four banks—Axis Bank, ICICI Bank, HDFC Bank and State Bank of India (sponsor banks)—to partner with Google (one of the TPAPs) under the multi‑bank model of UPI. Therefore, Google provides the necessary customer interface through its application, i.e., Google Pay, while the transactions are processed through these sponsor PSP banks.
id_387	1	A copy of the Reserve Bank of India letter dated August 22, 2017 is hereby annexed as Annexure B to the present Affidavit., It is submitted that Google is a Third Party Application Provider and does not operate any payment system for which authorization is required and mandatory under the provisions of the Payment and Settlement Systems Act, 2007. It is further submitted that the answering Respondent does not give any approvals or authorisations to entities like Google which are acting as Third Party Application Providers. They are not considered as system providers i.e., authorized payment system operators under the provisions of the Payment and Settlement Systems Act, 2007. Hence, they do not find place in the list of authorized payment system operators published on the website of the answering Respondent., In view of the aforesaid submissions and explanations, it is submitted that the present petition filed by the petitioner is wholly misconceived. The petitioner has totally misconstrued and utterly misunderstood the provisions of the Payment and Settlement Systems Act, 2007 as well as the services provided by Google being a mere Third Party Application Provider for which no authorization is required under the provisions of the Payment and Settlement Systems Act, 2007. Therefore, the present petition is devoid of any merits and is liable to be dismissed., In view of the counter affidavit filed by the Reserve Bank of India it is clear that Respondent No.2 is a mere third party application provider for which no authorisation from the Reserve Bank of India is required under the provisions of the Payment and Settlement Systems Act, 2007., In light of the foregoing, the Supreme Court of India does not find any merit in the present writ petitions. The same are dismissed, along with pending applications, if any.
id_388	0	nd 397 of 2022 This petition coming on for admission this day, Honourable Shri Justice Ravi Malimath, Chief Justice passed the following: The facts and circumstances involved in all these writ petitions being one and the same, at the request of learned counsel for the parties the matters are heard together Interim Applications Nos. 12363 and 12385 of 2022 are applications filed seeking to vacate an interim order granted by the Supreme Court of India on 26.8.2022. In terms whereof the petitioners were permitted to participate in the counseling process as in‑service candidates on the 30 % reservations for in‑service doctors. Various grounds have been urged in support of the application seeking vacating stay. On considering the same, we are of the view that hearing the applications is as good as hearing the main writ petitions. Therefore, at request of learned counsels, the matters are taken up for final disposal. The facts as narrated in Writ Petition No. 16249 of 2022 are stated herein for the sake of convenience., The case of the petitioners is that they are all in‑service doctors, who have been serving the State of Madhya Pradesh for many years. They appeared in the National Eligibility cum Entrance Test examination which was held on 22.05.2022 and have qualified for the same. The State had to prepare a list of Medical Officers who are eligible to get the advantage of 30 % reservation for in‑service candidates in terms of the Gazette notification dated 9 March 2018 as amended by the Gazette notification dated 5.10.2021. In terms whereof, Rule 14 of the Madhya Pradesh Chikitsa Shiksha Pravesh Niyam, 2018 (for short Rules of 2018) clarifies to the effect that in‑service candidates which include demonstrators, tutors, medical officers are eligible for the reservation of 30 % as in‑service doctors. Since the petitioners were service doctors they were eligible for the same. However, the State brought about a provisional list vide Annexure P/13 which contained the list of various doctors who are eligible as well as ineligible to obtain the 30 % reservation. The petitioners’ names were found at serial No. 95, 2 and 33 respectively. They were not a part of the successful list of candidates who were eligible to get 30 % reservation for in‑service candidates. Hence, the instant writ petition was filed seeking to quash the same so far as it relates to the petitioners and for a direction to the respondents to include their names in the list of medical officers eligible for 30 % reservation., It is further contended that similar facts arose for consideration on an earlier occasion where the doctors were denied the benefit of 30 % reservation. The same was challenged in Writ Petition No. 25819 of 2021 (Dr. Vijendra Dhanware and another Vs. The State of Madhya Pradesh and others) Division Bench of the Supreme Court of India by the order dated 14.01.2022 considered the said contentions which are similar to the ones raised herein and held that the State have erred in not treating the petitioners therein as in‑service candidates and therefore directed that the petitioners be treated as in‑service candidates for the Post Graduate Degree Course and to consider their claim for the same in accordance with law., The State has filed its reply. It has stated therein that none of the contentions of the petitioners are required to be accepted. That Rule 14 of the Rules of 2018 has been amended and the amendment has come into force from the date of publication of the Gazette on 26.7.2022 wherein Rule 14 dealing with the in‑service candidates has been amended to the extent of granting benefit of 30 % quota on the degree seats in all Government and Private Medical/Dental Colleges to only those in‑service candidates who have served in rural, remote or difficult areas for a minimum period of three years. That as far as the petitioners are concerned, they have not rendered their services in the rural, remote or difficult areas and therefore, they are not entitled to 30 % quota. That the said rules were amended in view of the judgment of the Honourable Supreme Court of India in the case of Tamil Nadu Medical Officers Association and others Vs. Union of India and others reported herein; in consonance with the orders passed by the Honourable Supreme Court the amendment has taken place. That the amendment having come into force with effect from 26.7.2022 is applicable to the petitioners as the amendment has come into force much prior to the counseling process. Therefore, if at all the petitioners are aggrieved, they are required to challenge the amendment. That admittedly there is no challenge to the amendment even as of date., Application No. 12363 of 2022 is an application filed by the newly added respondents seeking to vacate the stay. They have contended that they have supported the plea of the State and have stated that the amendment has been brought about much prior to the counseling process and therefore the petitioners are bound by the same and cannot take the benefit outside the amendment. An additional submission is also filed by the State on 15.09.2022. It has placed reliance on the judgment of the Honourable Supreme Court of India referred to hereinabove in order to justify its action in bringing about the amendment to the Rules. Earlier, Rule 14 of the Rules of 2018 provided for 30 % quota reservation for all registered Demonstrators, Tutors, Medical Officers. By virtue of the instant amendment, the same has been restricted only to those in‑service candidates who have put service in rural, remote and difficult areas. The same is in tune with the order of the Honourable Supreme Court as referred to hereinabove. That the Medical Officers working in the rural, remote and difficult areas should necessarily get an advantage over those doctors who have not rendered their services in these areas. Reference is also made to Section 2 (Dha) of the Rules of 2018. The list filed by the petitioners vide Annexure P‑11 is only a tentative list prepared by the State after calling for the application in the requisite form from the concerned Medical Officers. It is only after inviting objections that a final list would be prepared and forwarded to the Department of Medical Education for consideration at the time of counseling and admission process. The Director of Health Services while preparing the final list grants the incentive marks depending on the number of years of service rendered by the Medical Officers. The incentive marks coupled with the National Eligibility cum Entrance Test Post Graduate score form the total score of the candidate. Thereafter the final list is sent to the Director, Medical Education. It is only after the final list is received by the Director, Medical Education that the admission process begins by registration of candidates on the online portal. It is only after the name of the candidate is sent to the Director, Medical Education in the final list and the candidate registers himself on the online portal for counseling that he becomes an in‑service candidate. The contention of the petitioners that the amendment cannot be applied retrospectively to them is misconceived since the admission process begins only after the counseling schedule is declared and the candidates register themselves on the portal. Hence, it is submitted that there is no illegality or infirmity in the action taken by the respondents., Certain additional documents are sought to be filed by the newly added respondents in terms of Interim Application No. 12499 of 2022 which is allowed and the same are taken on record. The State has filed an application seeking to take additional documents on record in the Supreme Court of India today. The same is accepted. The additional documents are taken on record. Based on the pleadings as well as the contentions advanced, learned counsel for the petitioners, by placing reliance on Rule 14 of the Rules of 2018, pleads that the petitioners belong to the category of Medical Officers and as such they are entitled to 30 % reservation. That the list prepared by the State in terms of Annexure P‑13 is erroneous. That they have been wrongly denied the opportunity. That the so‑called amendment of the circular issued by the State Government dated 04.07.2022 would have no bearing as far as the petitioners are concerned. That the entire process started with the National Eligibility cum Entrance Test examination which was held in May 2022. Therefore, if at all, the State would have to bring about any amendment the same would have to be done much prior to that. In terms of the circular as well as the amendment the petitioners have been denied an opportunity to participate as in‑service candidates. Such an action of the State is arbitrary. The very question came up for consideration before the Supreme Court of India in Vijendra Dhanware (supra) wherein the contentions of the petitioners were upheld and it was directed that the petitioners be granted an opportunity to participate in the 30 % quota., It is further contended that in similar circumstances the High Court of Odisha in Writ Petition No. 12740 of 2013 (Himansu Sekhar Sahoo and others Vs. State of Odisha and others) decided on 24.07.2013 while considering the very question that arises for consideration herein as to whether the rules of the game could change midway, held in paragraph 18 as follows: Taking into consideration the judgments of the Honourable Supreme Court of India in the case of Secretary, A.P. Public Service Commission (supra), K. Manjusree (supra) and Mohd. Raisul Islam and others (supra), it is a well‑settled principle of law that once the process of selection has started, the prescribed selection criteria cannot be changed and further that introducing any change into eligibility criteria after the selection process has commenced would amount to changing the game after the game has been played. It is also further well settled that in the present case, the selection process commenced from 12th November 2012 (i.e. the last date of making online application) and therefore, any requirement/selection has to be made on the basis of the process, policy or law existing on the said date. We are of the further considered view that while the State is at liberty to change its policy we are not required to comment upon the justifiability and reasonability of such a change of policy. We are of the view that the impugned guidelines or policy would operate only prospectively i.e. from 27.5.2013 for future examinations that may be conducted but insofar as admission of Post Graduate (Medical) Course for “in‑service candidates” concerned for the year 2013, Clause 2 of the impugned guidelines cannot be made to apply to such admissions into the seats reserved for “in‑service candidates” for the year. The said judgment was challenged in Special Leave Petition No. 24238 of 2013 (State of Odisha and others Vs. Dr. Himansu Sekhar Sahoo and others) before the Honourable Supreme Court of India wherein, by order dated 07.2013, the Special Leave Petition was dismissed., So also the Honourable High Court of Rajasthan in the case of Abhishek Vyas (Dr.) Vs. State of Rajasthan and others in Civil Writ No. 5995 of 2019 decided on 2 April 2019 held in paragraphs 11 to 14 as follows: The question as to what reservation is to be applied in the State of Rajasthan for admission to Post Graduate Courses is the only aspect which needs to be addressed. Admittedly the last date of application was 22.11.2018 and on that date the reservation policy as existing in the State of Rajasthan did not provide for an additional 5 % reservation for More Backward Classes. The seats which were determined for admission in the colleges for the State of Rajasthan had to be bifurcated according to the reservation policy as existing on the last date of application. In my considered view, the new reservation policy as substituted vide notification dated 2019 providing for 5 % More Backward Classes could not be applied retrospectively on the selection process which had already commenced in November 2018 in terms of the National Eligibility cum Entrance Test notification issued by the National Board of Examination. The reservation policy as existing on the last date of application in the State of Rajasthan would therefore remain in force for the selection and the State Government and its authorities are bound to make admissions accordingly. The aspect relating to Manish Kumar Nagda as pointed out by the learned Advocate General was distinguishable in the said case. The Tribal Sub‑Plan area notification issued under the constitutional scheme provided the candidates of the said area to be given additional benefit and for the said purpose a corrigendum was issued by the Rajasthan Public Service Commission on 04.06.2018 extending the last date of application. In the case of Lalit Kumar the University Grants Commission Regulations already provided relaxation of 5 % marks under the Regulations of 2010 at Undergraduate level; by clarification the same was also made applicable at Post Graduate level but the advertisement dated 12.01.2015 did not provide regulations of 5 % in good academic record at the graduate level taking into consideration the provisions of the 2010 regulations to be mandatory. The Coordinate Bench directed that the same would be applicable to the State of Rajasthan and on the advertisement itself in both the cases whether the amendment has been introduced during the selection process and hence both the judgments are not applicable in the present case. My view is further fortified in view of the law as laid down in the judgments cited above by counsel for the petitioner. Therefore the respondents are restrained from providing reservation in terms of notification dated 13.02.2019 on the ongoing counseling admission process National Eligibility cum Entrance Test Post Graduate Examination 2019 and the reservation policy as existing on the last date of application shall be followed for admission. Therefore, the learned counsel pleads that such an action of the State requires to be set aside and the petitioners be granted an opportunity to participate and obtain relief under the 30 % quota., So far as the question of changing the rule of the game is concerned, it is undisputed that the National Eligibility cum Entrance Test examination was held in the month of May 2022. The results were declared on 08.06.2022. Thereafter the counseling was scheduled to be held in September. The circular (Annexure P‑1) was issued by the State on 04.07.2022. The State circular states that it is issued by the State Government in pursuance to the recommendation made by a committee constituted on 06.05.2022 for the purpose of implementing the judgment of the High Court in Dr. Vijendra Dhanware (supra); consequently the circular dated 04.07.2022 was issued. Admittedly, the same was issued much after the declaration of the results of the National Eligibility cum Entrance Test examination. The communication dated 04.07.2022 was addressed by the Additional Director, Directorate of Health Services to the Chief Medical and Health Officers and the Civil Surgeons intimating them of the list of doctors who were called for by 24.06.2022 and, therefore, objections were sought as far as the said list is concerned. The said list is a provisional list produced in terms of Annexure P‑13. Apparently, the names of the petitioners did not find place therein. On the same day, the Government issued yet another circular restricting the 30 % reservation only to those doctors who are rendering services in rural, remote and difficult areas. The communication addressed in terms of Annexure P‑1 does not indicate that the Government has taken a decision under the circular to that extent. Apparently, that was the view of the Government on 04.07.2022 that the relief should be restricted only to those doctors who are rendering services in rural, remote and difficult areas; this view is not found before this Court except in this petition, not even by the State but by the interveners. As far as the list is concerned with regard to the petitioners, their names have been shown as not eligible for getting the benefit of the 30 % quota. Regarding the circular and the subsequent amendment, we are of the considered view that the same was issued much after the selection process had commenced. Therefore, it would not be appropriate to apply the amendment to the writ petitioners., The judgment of the Honourable Supreme Court of India was rendered on 1 st August 2020; subsequently various orders have been passed by the Government including the Gazette notification dated 05.10.2021 wherein they state that in terms of Rule 14 of the Rules of 2018, the doctors shall include Demonstrator, Tutor or Medical Officer. If the intention of the State were to comply with the order of the Honourable Supreme Court in carrying out the amendment, the said circular has no nexus with the same. Even after the order of the Honourable Supreme Court such an order has been passed by the State., As far as the writ petitioners are concerned, we are of the considered view that the denial of the petitioners’ right to apply as in‑service candidates has been grossly affected. They are entitled to be considered as in‑service candidates in terms of Rule 14 of the Rules of 2018. In our considered view, it is inappropriate to deny such relief. Furthermore, in almost identical circumstances, the issue came up for consideration before this Court in the case of Vijendra Dhanware (supra) where the question was whether the writ petitioners who were presently posted at the District Hospitals at Harda and Indore, which are not rural, remote or difficult areas, are entitled to 30 % incentive marks. The Court held that they are entitled to such relief and they cannot be denied the same only because they were not working in any rural, remote or difficult areas. This was primarily because the definition of rural/remote/difficult was not found in the rules that were prevailing at that time or in the rules applicable to the present writ petitioners. The same has been brought about only by the amendment with effect from 26.07.2022. Therefore, the petitioners would be entitled to the said relief., A similar question came up for consideration before the Honourable Supreme Court of India in the judgment reported in 177 in the case of Parmender Kumar and others vs. State of Haryana and others. The question that arose for consideration before the Supreme Court as stated therein in paragraph 26 reads as follows: From the facts as disclosed, the only question which emerges for decision in these appeals is whether the State Government had any jurisdiction and/or authority to alter the conditions relating to admission in the Post Graduate or Diploma Courses in the different disciplines in medicine which had earlier been indicated in the prospectus, once the examination for such admission had been conducted and the results had been declared and a select list had also been prepared on the basis thereof. In other words, once the process of selection had started on the basis of the terms and conditions included in the prospectus, was it within the competence of the State Government to effect changes in the criterion relating to eligibility for admission, when not only had the process in terms of the prospectus been started, but also when counselling was to be held on the very next day, which had the effect of eliminating many of the candidates from getting an opportunity of pursuing the Post Graduate or Diploma Courses in the reserved HCMS category., In answering the said question, the Honourable Supreme Court of India has held in paragraph 29 as follows: As has also been pointed out hereinbefore, this Court in Rajiv Kapoor case took notice of the fact that the Full Bench, on whose decision the High Court had relied, ultimately directed that the selections for admission should be finalised in the light of the criteria specified in the Government Orders already in force and the prospectus, “after ignoring the offending notification introducing a change at a later stage.” (emphasis supplied) In fact, this is what has been contended on behalf of the appellants that once the process of selection of candidates for admission to the Post Graduate and Diploma Courses had been commenced on the basis of the prospectus, no change could thereafter be effected by Government Orders to alter the provisions contained in the prospectus. If such Government Orders were already in force when the prospectus was published, they would certainly have a bearing on the admission process, but once the results had been declared and a select list had been prepared, it was not open to the State Government to alter the terms and conditions just a day before counselling was to begin, so as to deny the candidates who had already been selected an opportunity of admission in the aforesaid courses. The Honourable Supreme Court came to the view that it was not open to the State to alter the terms and conditions just a day before the counselling was to begin so as to deny the candidates who had already been selected an opportunity of admission in the aforesaid courses. However, in the present case the National Eligibility cum Entrance Test results were announced on 08.06.2022. The amendment was brought about with effect from 26.07.2022. As far as the amendment is concerned, the petitioners would not be affected by such an amendment. The amendment will act prospectively for the next batch of students and not the petitioners., Having considered the contention and the judgments of the Honourable Supreme Court of India and other courts, we are of the view that the petitioners are entitled to appropriate relief. Firstly, the fact that the National Eligibility cum Entrance Test was held in the month of May 2022, the results were declared on 08.06.2022, and the amendment was brought about with effect from 26.07.2022. Therefore, the amendment would not have bearing as far as this batch of doctors is concerned, as stated by the Honourable Supreme Court in the aforesaid judgment that the rules of the game cannot change once the game starts. The State, if interested to bring about the amendment, should have done so at an appropriate time. The judgment relied upon by the State was delivered by the Honourable Supreme Court on 31 st August 2020. The Gazette notification was issued on 05.10.2021 to the effect that in terms of Rule 14 of the Rules of 2018, the doctors shall include Demonstrator, Tutor or Medical Officer. Therefore, the intended applicability of the judgment of the Honourable Supreme Court is contradicted by the notification dated 05.10.2021. Almost two years after the judgment of the Honourable Supreme Court was rendered, the instant amendment has taken place. Even though the State is at liberty to bring about the amendment on such a day if it chooses, its applicability is a question of law. The applicability of the amendment is necessarily from the date of amendment for all those candidates for whom the selection process has not commenced. It cannot be made applicable to an ongoing selection process. The selection process commenced with the examination in May 2022. Therefore, any change of law or rules should have been brought into effect prior to that date and not subsequently. The same view is expressed by the Honourable Supreme Court in the aforesaid judgment; the amendment would not apply to the present batch of students. A new list of doctors would have to be prepared without reference to the Amendment Act dated 26.07.2022. At this stage, the learned Deputy Advocate General submits that this order may be restricted only as far as the writ petitioners are concerned. However, we do not think that complete justice would be done if such a contention is accepted. We have concluded that the impugned amendment is prospective and cannot affect the present batch of doctors. Therefore, it would apply to every candidate in the present batch of doctors. In our considered view it cannot be restricted only to the petitioners before us. Since the amendment is held to be prospective it would not affect the present batch of doctors. Hence all the existing doctors would be entitled to similar relief as the writ petitioners. Consequently, the writ petitions are partly allowed. The list vide Annexure P‑13 in Writ Petition No. 16249 of 2022, and the lists in the other writ petitions are set aside. The respondents are directed to redo the list in accordance with the Rules of 2 October 2021 Amendment. The Amendment Act No. F. dated 26.07.2022 will have no bearing on the preparation of the new list.
id_389	0	The State Law Commission, Uttar Pradesh is working on control, stabilization and welfare of the population of the State and has prepared a draft bill. I shall be personally thankful to you if you may kindly go through it and suggest some modifications, suggestions and other ideas to improve the draft bill. The suggestions may be sent through email statelawcommission2018@gmail.com or post., The bill aims to revitalize efforts and provide for measures to control, stabilize and provide welfare to the population of the State by implementation and promotion of the two‑child norm and for matters connected therewith and incidental thereto., WHEREAS in Uttar Pradesh there are limited ecological and economic resources at hand, it is necessary and urgent that the provision of the basic necessities of human life including affordable food, safe drinking water, decent housing, access to quality education, economic livelihood opportunities, power/electricity for domestic consumption, and a secure living is accessible to all citizens., WHEREAS it is necessary to control and stabilize the population of the State for promotion of sustainable development with more equitable distribution., WHEREAS it is necessary to ensure healthy birth spacing through measures related to augmenting the availability, accessibility and affordability of quality reproductive health services to achieve the goal of population control, stabilization and its welfare in the State., WHEREAS it is necessary to provide for measures to control, stabilize and provide welfare to the population of the State by implementation and promotion of the two‑child norm per eligible couple in the State by means of incentives and disincentives., Be it enacted in the Seventy‑Second Year of the Republic of India as follows., Short title, Extent and Commencement. This Act shall be called the Uttar Pradesh Population (Control, Stabilization and Welfare) Act, 2021. It shall extend to the whole of Uttar Pradesh. It shall come into force after one year from the date of publication in the Gazette, provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision., Application. The provision of this Act shall apply to a married couple where the boy is not less than twenty‑one years of age and the girl is not less than eighteen years of age., Definition. In this Act, unless the context otherwise requires, (1) Act means the Uttar Pradesh Population (Control, Stabilization and Welfare) Act, 2021. (2) Disability shall have the same meaning as the term person with disability defined under Section 2(t) of the Rights of Persons with Disabilities Act, 2016. (3) Fund means the State Population Fund constituted under Section 22 of this Act. (4) Local authority means (i) a Gram Panchayat constituted under the Uttar Pradesh Panchayat Raj Act, 1947; (ii) a Kshettra Panchayat or Zila Panchayat constituted under the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961; (iii) a Municipality constituted under the Uttar Pradesh Municipalities Act, 1916; or (iv) a Municipal Corporation constituted under the Uttar Pradesh Municipal Corporation Act, 1959. (5) Married couple means a married couple whose marriage has been solemnized legally and where the boy is not less than twenty‑one years of age and the girl is not less than eighteen years of age. Explanation – In cases where the religious or personal law governing an individual allows for polygamous or polyandrous marriage, there may be a set of married couples, each of which shall consist of one man and one woman only, though the husband or wife may be common in each set., Illustration (a). The personal law governing A allows polygamy. A has three wives B, C and D. A and B, A and C, and A and D shall be counted as three distinct married couples as far as the status of B, C and D is concerned, but as far as the status of A is concerned, it shall be counted as one married couple for the purpose of calculation of cumulative number of children. For example, A has one child from B, two children from C and one child from D; the total number of children of A shall be four., Illustration (b). The personal law governing B allows polyandry. B has two husbands A and C. B and A shall be counted as one married couple. B and C shall be counted as another married couple., (6) Multiple birth means birth of two or more children out of the same pregnancy. (7) Public corporation means any corporation (including a university), or any society registered under the Societies Registration Act, 1860, or any co‑operative society registered under the Uttar Pradesh Co‑operative Societies Act, 1965, where such corporation, society or co‑operative society is owned or controlled by the State Government. (8) Public servant means a person holding any post or a member of a service (i) in connection with the affairs of the State; or (ii) under a public corporation or a local authority; and the expression public service shall be construed accordingly. (9) Polygamy means the practice wherein a man can marry more than one woman at the same time. (10) Polyandry means the practice wherein a woman can marry more than one man at the same time. (11) Two‑child norm means an ideal size of a family consisting of a married couple with two children., Benefits and Incentives., Incentives to public servants. Notwithstanding anything contained in any other law for the time being in force, public servants under the control of the State Government who adopt the two‑child norm by undergoing a voluntary sterilization operation upon themselves or their spouse shall be given the following incentives: (a) two additional increments during the entire service; (b) subsidy towards purchase of plot or house site or built house from the Housing Board or Development Authority, as may be prescribed; (c) soft loan for construction or purchase of a house at nominal rates of interest, as may be prescribed; (d) rebate on charges for utilities such as water, electricity, house tax, as may be prescribed; (e) maternity or, as the case may be, paternity leave of twelve months with full salary and allowances; (f) three percent increase in the employer’s contribution to the fund under the National Pension Scheme; (g) free health‑care facility and insurance coverage to the spouse; and (h) such other benefits and incentives as may be prescribed., Additional incentives to public servants. Notwithstanding anything contained in any other law for the time being in force, a public servant who has only one child and undergoes a voluntary sterilization operation upon themselves or their spouse, in addition to the incentives provided under Section 4, shall be given the following incentives: (a) two additional increments during the entire service, provided that the additional increments shall be in addition to the increments provided under clause (a) of Section 4; (b) free health‑care facility and insurance coverage to the single child until he attains the age of twenty years; (c) preference to the single child in admission to all educational institutions, including but not limited to Indian Institute of Management, All India Institute of Medical Sciences, etc.; (d) free education up to graduation level; (e) scholarship for higher studies in case of a girl child; (f) preference to the single child in government jobs; and (g) such other benefits and incentives as may be prescribed., Extension of incentive to the general public. (1) Notwithstanding anything contained in any other law for the time being in force, any individual other than a public servant who adopts the two‑child norm by undergoing a voluntary sterilization operation upon themselves or their spouse shall be given the incentives and benefits provided under clauses (c), (d), (e) and (h) of Section 4, and such other benefits and incentives as may be prescribed. (2) Notwithstanding anything contained in any other law for the time being in force, any individual other than a public servant who has only one child and undergoes a voluntary sterilization operation upon themselves or their spouse, in addition to the incentives provided under sub‑section (1) of this section, shall be given the incentives and benefits provided under clauses (b), (c), (d), (e) and (f) of Section 5, and such other benefits and incentives as may be prescribed., Special benefit to a couple living below the poverty line. Notwithstanding anything contained in this Act or any other law for the time being in force, a couple living below the poverty line, having only one child and undergoing a voluntary sterilization operation upon themselves or their spouse shall be eligible for a one‑time lump‑sum payment of rupees eighty thousand if the single child is a boy, and rupees one lakh if the single child is a girl., Revocation of benefits and disincentives. Whosoever, after the commencement of this Act, in contravention of the two‑child norm, procreates more than two children shall be ineligible to avail any incentives and benefits provided under Sections 4 to 7, and, in addition, shall be subject to additional disincentives such as: (i) debarring from the benefit of government‑sponsored welfare schemes; (j) limitation of ration‑card units up to four; (k) other disincentives as may be prescribed., Bar on contesting election to local bodies. (1) Notwithstanding anything contained in any election law for the time being in force, whosoever, after the commencement of this Act, in contravention of the two‑child norm, procreates more than two children shall be ineligible to contest elections to a local authority or any body of the local self‑government, provided that sub‑section (1) shall not apply in cases of an individual who is already a member of a local body or any body of the local self‑government and has more than two children at the time of commencement of this Act. (2) Every member of a local body or any body of the local self‑government having more than two children at the time of commencement of this Act shall give an undertaking that they shall not act in contravention of the two‑child norm. (3) Such an undertaking shall be made within one year from the date of commencement of this Act in the manner as may be prescribed. (4) If any action of a member of a local body or any body of the local self‑government is found to be in violation of the undertaking, the member shall be dismissed from his post with immediate effect and shall be debarred from contesting any further election to a local body or any body of the local self‑government., Bar on applying to government jobs. (1) Notwithstanding anything contained in any law dealing with the employment of government employees for the time being in force, whosoever, after the commencement of this Act, in contravention of the two‑child norm, procreates more than two children shall be ineligible to apply for government jobs under the State Government, provided that this sub‑section shall not apply to an individual who is already a government employee under the State Government. (2) Every government employee under the State Government having more than two children at the time of commencement of this Act shall furnish an undertaking that they shall not act in contravention of the two‑child norm, in the manner as may be prescribed. (3) Such an undertaking shall be made within one year from the date of commencement of this Act. (4) If any action of a government employee is found to be in violation of the undertaking, the employee shall be dismissed from employment with immediate effect and shall be debarred from applying in the future for any government job under the State Government., Bar on promotion in government services. Notwithstanding anything contained in any law dealing with the employment of government employees for the time being in force, any employee of the State Government, after the commencement of this Act, in contravention of the two‑child norm, who procreates more than two children shall be ineligible to receive promotion in government services, provided that this sub‑section shall not apply to an individual who is already a government employee under the State Government and has more than two children at the time of commencement of this Act., Bar on receiving any government subsidy. Notwithstanding anything contained in any law dealing with subsidies provided by the government, any individual who, after the commencement of this Act, in contravention of the two‑child norm, procreates more than two children shall be eligible to receive any kind of government subsidy, provided that this sub‑section shall not apply to an individual who has more than two children at the time of commencement of this Act., Multiple birth out of second pregnancy. Notwithstanding anything contained in this Act or any other law for the time being in force, an action of an individual shall not be deemed to be in contravention of the two‑child norm if, having a child born out of the first pregnancy, the individual subsequently has more than two children as a result of multiple birth out of the second pregnancy. Illustration (a). A and his wife B had a child born out of the first pregnancy on 01‑01‑2021. On 01‑01‑2023 they subsequently have two children born out of the second pregnancy. Their actions are not in contravention of the two‑child norm. Illustration (b). A and his wife B had a child born out of the first pregnancy on 01‑01‑2021. On 01‑01‑2023 they subsequently have three children born out of the second pregnancy. Their actions are not in contravention of the two‑child norm. Illustration (c). A and his wife B had two children born out of the first pregnancy on 01‑01‑2021. On 01‑01‑2023 they subsequently have two children born out of the second pregnancy. Their actions are in contravention of the two‑child norm., Adoption. Notwithstanding anything contained in this Act or any other law for the time being in force, an action of an individual shall not be deemed to be in contravention of the two‑child norm if, having two children conceived from his marriage, the individual adopts a third child under the Hindu Adoption and Maintenance Act, 1956 or the Juvenile Justice Act, 2015, the Guardians and Ward Act, 1890 or any other law dealing with adoption in India. Explanation I: This provision applies only to individuals who have two children born out of their marriage and have opted for the adoption of a third child. Explanation II: This provision does not apply to individuals having no child or one child born out of their marriage who subsequently have more than two children as a result of adoption. Illustration (a). A and his wife B have no child born out of their marriage. They have adopted two children subsequently; their actions are not in contravention of the two‑child norm. Illustration (b). A and his wife B have no child born out of their marriage. They have adopted more than two children subsequently; their actions are in contravention of the two‑child norm. Illustration (c). A and his wife B have one child born out of their marriage. They have adopted two children subsequently; their actions are in contravention of the two‑child norm. Illustration (d). A and his wife B have two children born out of their marriage. They have adopted one child subsequently; their actions are not in contravention of the two‑child norm. Illustration (e). A and his wife B have two children born out of their marriage. They have adopted two or more children subsequently; their actions are in contravention of the two‑child norm., Disability of the first or second child. Notwithstanding anything contained in this Act or any other law for the time being in force, an action of an individual shall not be deemed to be in contravention of the two‑child norm if either or both of his children born out of the earlier pregnancy suffer from disability and the couple conceives a third child subsequently. The term disability shall have the same meaning as the term person with disability defined under Section 2(t) of the Rights of Persons with Disabilities Act, 2016. Provided that in no case shall the total number of children under this provision exceed three, except in cases of multiple birth. Illustration (a). A and his wife B had two children; the first child suffers from disability. They subsequently have a third child; their actions are not in contravention of the two‑child norm. Illustration (b). A and his wife B had two children; the first child suffers from disability. They subsequently have a third and fourth child born out of the same pregnancy as a result of multiple birth; their actions are not in contravention of the two‑child norm. Illustration (c). A and his wife B had two children; both children suffer from disability. They subsequently have a third and fourth child born out of different pregnancies; their actions are in contravention of the two‑child norm. Illustration (d). A and his wife B had one child; the child suffers from disability. They subsequently have a second and third child born out of the same pregnancy as a result of multiple birth; their actions are not in contravention of the two‑child norm. Illustration (e). A and his wife B had one child; the first child suffers from disability. They subsequently have a second and third child born out of different pregnancies; their actions are in contravention of the two‑child norm., Death of the child. Notwithstanding anything contained in this Act or any other law for the time being in force, an action of an individual shall not be deemed to be in contravention of the two‑child norm if either or both of his children born out of the earlier pregnancy die and the couple conceives a third child subsequently. Provided that in no case shall the total number of children of the couple under this provision exceed three, except in cases of multiple birth. Illustration (a). A and his wife B had two children; the first child died. They subsequently have a third child; their actions are not in contravention of the two‑child norm. Illustration (b). A and his wife B had two children; the first child died. They subsequently have a third and fourth child born out of the same pregnancy as a result of multiple birth; their actions are in contravention of the two‑child norm. Illustration (c). A and his wife B had two children; both children died. They subsequently have a third and fourth child born out of different pregnancies; their actions are in contravention of the two‑child norm. Illustration (d). A and his wife B had one child; the child died. They subsequently have a second and third child born out of the same pregnancy as a result of multiple birth; their actions are not in contravention of the two‑child norm. Illustration (e). A and his wife B had one child; the first child died. They subsequently have a second and third child born out of subsequent pregnancies; their actions are in contravention of the two‑child norm., Married couple expecting a child at the time of commencement of this Act. Notwithstanding anything contained in this Act or any other law for the time being in force, an individual who already has two children conceived from his marriage and conceives a third child within one year from the date of commencement of this Act shall not be deemed to be in contravention of the two‑child norm, provided that in no case shall the total number of children of the couple under this provision exceed three, except in cases of multiple birth., Effect of contravention of the two‑child norm in cases of polygamous marriages. (1) Notwithstanding anything contained in this Act or any other law for the time being in force, if the actions of a husband in a polygamous marriage are in contravention of the two‑child norm, he shall be precluded from receiving any benefits and incentives provided under this Act and shall be liable to face the disincentives provided under this Act. (2) The mere fact that the actions of a husband in a polygamous marriage are in contravention of the two‑child norm shall not preclude his wives and their children who are eligible for claiming incentives and benefits provided under this Act. However, if the actions of any of the wives are in contravention of the two‑child norm, she shall not be eligible for benefits and incentives and shall be liable to face the disincentives provided under this Act., Actions when in contravention of the two‑child norm in cases of polygamous marriages. (1) It shall be deemed that the action of the husband is in contravention of the two‑child norm if he has more than two children from all his marital relationships, provided that in cases of multiple birth, where more than one child is born out of the same pregnancy, all children in excess of one shall be counted as one for the computation of the total number of children. The first proviso shall not apply in case of multiple children born out of the first pregnancy of the first marriage of the husband with his first wife, and in such cases the number of children shall be counted as two. Illustrations: (a) A has two wives B and C. A with his first wife B conceives a child. A subsequently marries C and conceives another child. He has a total of two children and has not acted in contravention of the two‑child norm. (b) A has two wives B and C. A with his first wife B conceives two children. A subsequently marries C and conceives another child. He has a total of three children and has acted in contravention of the two‑child norm. (c) A has two wives B and C. A with his first wife B conceives two children born out of the same pregnancy. A subsequently marries C and conceives another child. He has a total of three children and has acted in contravention of the two‑child norm. (d) A has two wives B and C. A with his first wife B conceives a child. A subsequently marries C and conceives three children, all born out of the same pregnancy as a result of multiple birth. He has a total of two children and has not acted in contravention of the two‑child norm. (e) A has two wives B and C. A with his first wife B conceives a child. A subsequently marries C and conceives two children, both born in the same pregnancy. He has a total of two children and has not acted in contravention of the two‑child norm. (f) A with his first wife B conceives a child. A subsequently marries C and, after a few years, marries D. He conceives another child with D. He has a total of two children and has not acted in contravention of the two‑child norm. (g) A with his first wife B conceives a child. A subsequently marries C and, after a few years, marries D. He conceives two children with D, both born in the same pregnancy. He has a total of two children and has not acted in contravention of the two‑child norm., (2) It shall be deemed that the action of the wife in a polygamous marriage is in contravention of the two‑child norm only if she has more than two children from her marital relationship with the husband, irrespective of the total number of children the husband may have from all his marital relationships. In cases of multiple birth, where more than one child is born out of the same pregnancy, all children in excess of one shall be counted as one for the computation of the total number of children. For the computation of the number of children of the wife, the first proviso shall not apply in case of multiple children born out of the first pregnancy of the marriage, and in such cases the number of children shall be counted as two. Illustrations: (a) A has two wives B and C. A with his first wife B conceives two children. A subsequently marries C and conceives two more children. Though A may have acted in contravention of the two‑child norm, B and C have not acted in contravention of the two‑child norm. (b) A has two wives B and C. A with his first wife B conceives a child and, after a few years, conceives two more children born out of the same pregnancy as a result of multiple birth. A subsequently marries C and conceives two more children. Though A may have acted in contravention of the two‑child norm, B and C have not acted in contravention of the two‑child norm. (c) A has two wives B and C. A with his first wife B conceives a child. A subsequently marries C and conceives two more children born out of the same pregnancy. A and C further conceive another child. A has acted in contravention of the two‑child norm and similarly C has also acted in contravention of the two‑child norm, whereas B has not acted in contravention of the two‑child norm. (d) A has two wives B and C. A with his first wife B conceives a child and, after a few years, conceives two more children born out of the same pregnancy as a result of multiple birth. A marries C after a few years and further conceives two children with C. Though A may have acted in contravention of the two‑child norm, B and C have not acted in contravention of the two‑child norm. (e) A has three wives B, C and D. A with his first wife B conceives a child and, after a few years, conceives another child with her. A marries C after a few years and further conceives two children with C. After a few years A marries D and conceives two more children. Though A may have acted in contravention of the two‑child norm, B, C and D have not acted in contravention of the two‑child norm. (f) A has three wives B, C and D. A with his first wife B conceives a child and, after a few years, conceives another child with her.
id_389	1	A marries C after few years and further conceive two children with C. After a few years A marries D and conceives three more children. Here, besides A, D has acted in contravention of the two‑child norm, however, B and C have not acted in contravention of the two‑child norm., Effect of contravention of two‑child norm in cases of polyandrous marriages. In cases of a polyandrous marriage, where the wife has more than one husband, the provisions of Section 18 shall apply mutatis mutandis., Actions when in contravention to two‑child norm in cases of polyandrous marriages. In cases of a polyandrous marriage, where the wife has more than one husband, in order to determine whether the actions of husband or wife are in contravention of the two‑child norm, provisions of Section 19 shall apply mutatis mutandis., Constitution of State Population Fund. There shall be constituted a State Population Fund on such date as may be notified by the Government, which shall be utilized for the purposes of implementation of this Act., Duties of Government. The Government shall implement the Revised State Population Policy to achieve the goals mentioned therein; establish maternity centres at all the primary health centres; distribute contraceptive pills, condoms, et cetera through Healthcare Centres and Non‑Governmental Organizations; encourage use of contraceptive pills, condoms, et cetera through Healthcare Centres and Non‑Governmental Organizations; spread awareness about family planning methods through community health workers such as auxiliary nurse midwife or accredited social health activist; ensure mandatory registration of pregnancy, deliveries, birth and death across the State; distribute iron and vitamin capsules and tablets amongst the expecting mothers; conduct regular vaccination and immunisation drives to protect the children from various health risks; undertake efforts to encourage husband‑wife communication and male participation in family planning matters; organise massive information and education campaigns to generate public awareness related to the benefits of having small families and healthy birth spacing; form village level societies to encourage and, as the case may be, disseminate benefits of small family norm, value of girl child and efforts to promote gender equality in all walks of life; and undertake such other measures as it may deem fit and expedient for the purposes of this Act; provide facilities at Government expense for reversing sterilisation operations in case of death or permanent disability of a child of the couple after the sterilisation., Introduction of Population Control in School Curriculum. In addition to the duties mentioned in Section 23 of this Act, it shall be the duty of the Government to introduce a compulsory subject relating to population control in all secondary schools., Availability of Contraceptives. In addition to the duties mentioned in Section 23 of this Act, it shall be the duty of the Government to ensure that contraceptives are available at reasonable rates at all sub‑health centres in the State., Compulsory insurance to cover cases of failure of tubectomy or vasectomy. (1) The State Government shall as soon as possible after the commencement of this Act take steps for group insurance, at Government expense, of all qualified allopathic surgeons carrying on sterilisation operations on men or women and of other staff and of hospital authorities concerned to cover claims for compensation to be paid to a couple where the woman operated on or the wife of the man operated on becomes pregnant even after such operation: Provided that a fixed sum of fifty thousand rupees shall be payable as compensation even where the claimant fails to plead or establish that the operation was unsuccessful due to the negligence of the surgeon or the hospital staff or authorities. (2) The State Government may in exceptional cases of clearly culpable negligence recover the compensation paid to the claimant or any part thereof from the surgeon or other person found negligent. (3) A child born in the circumstances mentioned in sub‑section (1) shall not count for the purposes of breach of the two‑child norm within the meaning of this Act., Overriding effect. Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act and any rules, notification or circular made thereto under this Act shall have an overriding effect., Savings. Save as otherwise expressly provided in this Act, the provision of this Act shall be in addition to and not in derogation of any other law for the time being in force in any part of the State., Power to make rules. The Government may, by notification in the Official Gazette, make rules for the purpose of carrying out this Act. Every rule made under sub‑section (1) shall be laid, as soon as may be after it is made, before each House of the Legislature, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule., Power to remove difficulties. If any difficulty arises in giving effect to the provisions of this Act, the Government may make such order or give such direction, not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for the removal of the difficulty: Provided that no order shall be made under this section after the expiry of three years from the commencement of this Act. Provided further that every order made under this section shall be laid, as soon as may be after it is made before each house of the State Legislature.
id_391	0	Constitutional Writ Jurisdiction Appellate Side Present: The Honourable Justice Shekhar B. Saraf. Writ Petition No. 5611 of 2020, Interlocutory Application No. 1 of 2020 (Case Application Number 3378 of 2020). Sandipta Gangopadhyay versus Indian Bank and others. For the petitioner. For the State respondents: Mr. Shuvro Prokash Lahiri, Advocate; Mr. Om Narayan Rai, Advocate; Mr. Saikat Roy Chowdhury, Advocate. Heard on 29 June 2020, 28 July 2020, 7 August 2020, 9 September 2020 and 18 September 2020. Judgment on 4 December 2020. Justice Shekhar B. Saraf delivered the judgment., The writ petitioner has invoked the writ jurisdiction of the Kolkata High Court to demand payment of back wages. The petitioner alleges that the payment is due as a result of the unjustified prolongation of suspension imposed by his employer, the Respondent Bank., The petitioner is currently employed by Indian Bank as Senior Manager in the Stressed Asset Management Branch in Kolkata. This employment is a result of the amalgamation of Indian Bank with his erstwhile employer, Allahabad Bank, effected under the Amalgamation of Allahabad Bank into Indian Bank Scheme, 2020, vide notification No. GSR 156(E) dated 4 March 2020. With effect from 1 April 2020, Allahabad Bank stood amalgamated into Indian Bank., The facts present a checkered history. The petitioner joined Allahabad Bank in 2008 as Manager (Credit) at its Zonal Office at Behala and was later transferred to the Adisaptagram Branch. While posted there, he alleges that he became a victim of a criminal conspiracy hatched by a loan applicant, Shri Moni Majumdar, who exercised political clout. On 20 August 2014, the petitioner was arrested by police at Mogra Police Station based on a First Information Report instituted by the alleged vindictive loan applicant/complainant in case No. 316 of 2014. The case was initiated under Section 7 of the Prevention of Corruption Act, 1988, alleging that the petitioner demanded and accepted illegal gratification of INR 25,000 to process and sanction a loan. Because the period of police detention exceeded forty‑eight hours, the petitioner was placed under deemed suspension under Regulation 12(2)(a) of the Allahabad Bank Officer Employees (Discipline & Appeal) Regulations, 1976. The order of deemed suspension was communicated on 23 August 2014., The petitioner appealed the deemed suspension before the General Manager by filing a written representation on 23 September 2014, seeking revocation. The competent authority declined the request by a communication dated 19 January 2015. The petitioner challenged this order by filing Writ Petition No. 5762 of 2015. The Single Judge of the Kolkata High Court allowed the writ petition on 3 March 2015, setting aside the order of 19 January 2015 and directing the Chief Manager of Allahabad Bank to reconsider the plea and revoke the deemed suspension, with a reasoned order within four weeks. The Appellate Authority of the Bank, acting on the Single Judge’s directions, rejected the petitioner's request by an order dated 18 March 2015. The petitioner then filed another writ petition, Writ Petition No. 7288(W) of 2015, challenging the March 18 order. By an order dated 21 April 2015, the Single Judge set aside the Appellate Authority’s order, directed reinstatement of the petitioner by the beginning of May 2015, and ordered that he be entitled to regular salary and emoluments from the date he resumed duties, subject to possible transfer to another branch to avoid interference with the ongoing investigation., The Respondent Bank immediately sought a stay of the 21 April 2015 order. A Division Bench of the Kolkata High Court, while considering MAT 699 of 2015 and Case Application Number 4436 of 2015, granted a stay of the operation of the impugned order for three months on 8 June 2015, noting that the Supreme Court dictum relied upon by the Single Judge did little to aid the petitioner. The intra‑court appeal (FMA No. 3451) was heard in August 2017. The Division Bench delivered a divergent judgment on 16 August 2017: Honourable Justice Patherya held in favour of the Bank and set aside the April 2015 order, while Honourable Justice Subrata Talukdar upheld the order. The matter was referred to the Chief Justice, who assigned it to a Referral Bench comprising Honourable Justice Sahidullah Munshi by an order dated 10 December 2018., The Referral Bench disposed of the reference on 30 August 2019, holding that the Respondent Bank’s decision to prolong suspension without initiating departmental proceedings violated due process of law under Article 21 of the Constitution, and that the petitioner was entitled to all benefits pursuant to the impugned order. Consequently, the Respondent Bank revoked the deemed suspension dated 23 August 2014 by an order dated 23 October 2019, effective from the date the petitioner assumed duties at his new posting, and treated the period of suspension as non‑duty, meaning he would not draw regular salary and ancillary emoluments, only the subsistence allowance already paid., The petitioner joined his new posting based on the 23 October 2019 order but filed a written representation on 7 February 2020 requesting release of regular salary, increments, and allowances in compliance with the orders of the Kolkata High Court dated 30 August 2019 and 21 April 2015. By an order dated 20 May 2020, the Assistant General Manager of the Respondent Bank informed the petitioner that his request for back wages had been rejected. Aggrieved, the petitioner filed the present writ petition seeking back wages for the period served under deemed suspension., The issues for determination are: (i) whether the petitioner is entitled to back wages for the period of deemed suspension dated 23 August 2014; and (ii) if so, the amount of back wages payable by the Respondent Bank., Counsel for the petitioner, Mr. Shuvro P. Lahiri, relied on the orders of the Single Judge dated 21 April 2015 and the Referral Bench dated 30 August 2019, submitting that there should be no hesitation in granting back wages for the period of deemed suspension. Initially, the petitioner claimed the period from 23 August 2014 to 23 October 2019; subsequently, the plea was amended to commence from 21 April 2015, the date of the Single Judge’s order directing reinstatement and regular salary., Counsel for the Respondent Bank, Mr. Rai, argued that neither the Single Judge’s order nor the Referral Bench’s order expressly granted back wages, relying on Supreme Court decisions in Rajasthan State Road Transport Corporation v. Ladulal Mali (1996) 8 SCC 37 and Rajasthan State Road Transport Corporation v. Shyam Bihari Lal Gupta (2005) 7 SCC 11. He further contended that the petitioner’s alleged involvement in a crime barred him from claiming back wages, citing Supreme Court judgments such as Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board (1996) 11 SCC 603; Krishnakant Raghunath Bibhavnekar v. State of Maharashtra (1997) 3 SCC 636; Union of India v. Jaipal Singh (2004) 1 SCC 121; and UPSRTC Ltd. v. Sarada Prasad Misra (2006) 4 SCC 733. He also relied on Gurpal Singh v. High Court of Judicature of Rajasthan (2012) 13 SCC 94, arguing that the grant of back wages must be considered stage‑wise and that Regulation 15 of the 1976 Regulations is inapplicable because the suspension was justified., The Court examined the relevant provisions of the Allahabad Bank Officer Employees (Discipline & Appeal) Regulations, 1976, particularly Regulation 15(1) and 15(3)(a), which provide that an officer who is fully exonerated or whose suspension is unjustifiable shall be entitled to full pay and that the period of absence shall be treated as time spent on duty. The Indian Bank Officer Employees (Discipline & Appeal) Regulations, 1976 contain a similar provision. The Court noted that initiation of departmental proceedings is a sine qua non for determining whether a suspension is justified or unjustified., The Referral Bench had observed that the Respondent Bank’s failure to initiate departmental proceedings was not due to lack of documents, as the Appellate Authority’s order of 18 March 2015 confirmed that all records were available. Supreme Court precedents, including State Bank of India v. R.B. Sharma (2004) 7 SCC 27, Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., Haldia, and Avinash Sadashiv Bhosale v. Union of India (2012) 13 SCC 142, establish that criminal and departmental proceedings may run simultaneously and that the employer is not barred from initiating disciplinary action even when a criminal case is pending., The Court therefore concluded that the Respondent Bank was not impeded from initiating departmental proceedings and that the prolonged deemed suspension without such proceedings amounted to an unjustifiable suspension under Regulation 15(1). Consequently, the petitioner is entitled to back wages for the period from the date of the Single Judge’s order on 21 April 2015 until the effective date of reinstatement, as determined by the Referral Bench., Accordingly, the Court directs the Respondent Bank to pay the petitioner back wages, including all salary, allowances, and benefits, for the period specified, together with interest as per applicable law.
id_391	1	Since the reference made to the order impugned in the order dated August 30, 2019 was the order of the learned Single Judge dated April 21, 2015, I also reproduce the operative portion of such order below: The indefinite period of suspension in case of the petitioner must end with immediate effect. Accordingly, the appellant order impugned dated March 18, 2015 and the decision of the bank to continue the suspension of the petitioner are set aside and the petitioner is permitted to join such duties as the bank may assign to the petitioner by the beginning of May. It will be open to the bank to transfer the petitioner to some other branch or assign such duties that may not involve any contentious matter. The petitioner should be communicated his next place of posting within a period of a week from the date. The petitioner will be entitled to the regular salary and emoluments from the day the petitioner resumes his duties. Writ Petition 7288 (W) of 2015 is allowed as above, but without any order as to costs. Emphasis supplied., 30. Mr. Rai has argued, in view of paragraph 44 of the Supreme Court decision in Kunhayammed v. State of Kerala reported in (2000) 6 Supreme Court Cases 359, which serves as a leading authority on the doctrine of merger, that the only order that now stands is the appellate order dated August 30, 2019 of the Referral Bench and the order dated April 21, 2015 had merged with such order, and accordingly, the petitioner should be eligible for the payment of wages from the date that he resumed his services, that is, October 29, 2019., 31. In my opinion, the enunciation of the law and the arguments of Mr. Rai are correct, albeit only to an extent. The Supreme Court in Kunhayammed (supra) had ruled that where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before a superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision of the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law. However, for the order of the superior forum, in this case the order of the Referral Bench to be enforced in the eyes of the law, reference compulsorily has to be made to the entirety of the order of the Single Judge dated April 21, 2015, notwithstanding that it stands merged with the order dated August 30, 2019. The Respondent cannot resort to a convenient case of salami‑slicing of the order dated April 21, 2015 and lose sight of the fact that the learned Single Judge had ordered that the petitioner be allowed to join such duties as assigned by the Respondent bank by the beginning of May 2015., 32. On a related point, Mr. Rai has also argued that back‑wages cannot be granted unless expressly directed by the Court. He placed his reliance on decisions of the Supreme Court in Rajasthan State Road Transport Corporation (supra) and Shyam Bihari Lal Gupta (supra) to further this argument. However, with effect from the date of the order dated August 30, 2019, the order of the learned Single Judge, which until previously was subject to judicial scrutiny, stood affirmed and merged with the order of the Referral Bench. The clock, therefore, now starts ticking from April 21, 2015 and colours the order dated April 21, 2015 as an implicit order for the grant of back wages to the petitioner., 33. It is true that back‑wages are not necessarily granted by the Court in each and every case. Mr. Rai also relied on Ranchhodji Chaturji Thakore (supra) to contend that where the petitioner by his own rendition of facts had stated that he was suspended because of his own alleged involvement in the commission of a crime, back‑wages cannot be paid in such cases. However, the petitioner has not admitted to the commission of the alleged offence; rather it was an averment stating the entanglement of the petitioner in a purportedly false case of bribery. That is for the criminal court, which is seized of the matter, to determine based on cogent evidence. But this precedent is very much distinguishable on the facts. In Ranchhodji Chaturji Thakore (supra), the Court had declined to pay back‑wages to the appellant as the appellant was convicted by the Session Judge under Section 302 of the Indian Penal Code and sentenced to life. Based on such ruling, the respondents dismissed him from service. While the Division Bench of the High Court subsequently acquitted him, the appellant was obviously not around to render services to his employer, which unlike in this case, was not so. In this case, the respondents have showcased enough indolence even when it comes to the prosecution of the case before the appropriate criminal court, as recorded by the Referral Bench. And therefore, this case does not help the respondent., 34. As for the case of Krishnakant Raghunath Bibhavnekar (supra), the appellant was acquitted by the criminal court and subsequently was reinstated in his employment post suspension, based on which the Court declined to grant back‑wages. In this case, the petitioner has neither been subjected to regular disciplinary proceedings nor has the criminal court come to a decision. Either way, I have previously exhibited that nothing prevented the Respondents from initiating regular disciplinary proceedings rather than mechanically wait for the verdict of the criminal court, and unlawfully prolonging its order of deemed suspension. Jaipal Singh (supra) placed its reliance on Ranchhodji Chaturji Thakore (supra) and thereby perpetuates a line of reasoning, I am not inclined to agree with. These judgments are all prior to the Supreme Court's directives under Ajay Kumar Choudhary (supra) and Prem Nath Bali (supra) in 2015 and given such change in the position of law post 2015, I reiterate the emphasis on time‑bound completions of departmental enquiries pursuant to both these precedents., 35. It has been more than five years and no departmental proceedings have been initiated against the petitioner. As this High Court had directed that the petitioner was entitled to get all benefits pursuant to the impugned order dated April 21, 2015, the petitioner's plea for the grant of back‑wages is prima facie meritorious., 36. When it comes to the consideration of the grant of back‑wages, the High Court needs to be mindful of certain conditions and factors that need to be fulfilled. These have been elaborately laid down by the Supreme Court in a catena of cases; the prominent ones being Hindustan Tin Works v. Employees reported in (1979) 2 Supreme Court Cases 80, J.K. Synthetics Ltd. v. K.P. Agarwal reported in (2007) 2 Supreme Court Cases 433 and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 Supreme Court Cases 324 and the last judgment on the subject in recent times, Jayantibhai Raojibhai Patel v. Municipal Council, Narkhed reported in 2019 Supreme Court Online SC 1071. However, the Supreme Court laid down certain comprehensive principles in Deepali Gundu Surwase (supra) which have since guided many decisions of constitutional courts in the country when it comes to the adjudication of the grant of back‑wages, including Jayantibhai Raojibhai Patel (supra) and The Naba Ballygunge Mahavidyalaya (supra), which is relied on by Mr. Lahiri., 37. Upon an examination of many of its past precedents, the High Court laid down the following principles in Deepali Gundu Surwase (supra):, 38. The propositions which can be culled out from the aforementioned judgments are: 38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11‑A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis‑vis the employee or workman. He can avail the services of the best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three‑Judge Benches referred to hereinafter and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman. Emphasis supplied., Now, Mr. Rai, learned counsel for the Respondent Bank, has relied upon the principle of No Work, No Pay. At the very onset, I must state that I am not convinced with such line of argumentation. This principle is applicable in those cases, strictly speaking where the employee willingly chooses not to work and discharge the public duty cast upon him; not in cases where the employee is willing to work but is prevented from discharging his duties by his employer where no fault can be attributed to such employee., 39. The Division Bench of this High Court in The Naba Ballygunge Mahavidyalaya (supra), a case where the respondent employee was permitted the grant of full back‑wages upon being fully exonerated in departmental proceedings, had ruled: 47. The approach adopted by the Supreme Court in the aforesaid decisions that it is for the workman to plead that he is not gainfully employed and it is not the initial burden of the employer to prove that the workman was/is in gainful employment appears to us to be a clear departure from the earlier position of law laid down by judicial precedents requiring the employer to raise the plea of the workman being in gainful employment, to deprive him of full back wages. The earlier position, we are inclined to believe, stands restored in view of the decision in Deepali Gundu Surwase (supra). 48. That apart, the majority of the aforesaid decisions rendered on consideration of the question of entitlement to full back wages arose out of proceedings between employers and workmen under the Industrial Disputes Act. The difference between employment on the basis of a private contract and employment governed by statutory provisions is one of great significance, sight of which cannot be lost by us. Not doubting the discretionary element that is present in ordering back wages to be paid, the situation would take a different turn if the terms and conditions of service of a staff are regulated by statutory provisions, which provide for full back wages in certain conditions; and if at all enforcement of such provisions is sought for, before the writ court, on the ground that the prior conditions for enforcement are satisfied, we are of the considered opinion that the Court would be failing in its duty if it were to still exercise its discretion within narrow confines and limit the back wages to a certain percentage. In a given case where the employer is found to have taken recourse to disciplinary proceedings against a particular inconvenient employee (whose terms and conditions of service are governed by statutory provisions) to ensure that he is thrown out of employment and, thus, he loses his job, the Court would be justified upon reaching the conclusion that the action was not taken bona fide and without sufficient justification to enforce the right conferred on such employee by the statute; or else, to deprive him of even a part of the pay and allowances which he would have otherwise been entitled to upon performing his duty, would amount to a punishment without just cause and could encourage scheming employers to secure such punishment in a roundabout way against other inconvenient employees and exploit them to the hilt. Emphasis supplied., 40. Mr. Rai, in my opinion, should have rather focused his energy on showcasing that the petitioner was gainfully employed during the period served under deemed suspension rather than mechanically pleading that back‑wages could not be paid simply because of the principle of No Work, No Pay. The petitioner has already made the case that he has particularly only drawn the subsistence allowance paid during the period served under deemed suspension, as mandated by the disciplinary regulations, and the onus had shifted to the Respondent Bank to illustrate a case of gainful employment. This is the condition precedent that needs to be satisfied based on the principles culled out in Deepali Gundu Surwase (supra) and reiterated by this High Court in Naba Ballygunge Mahavidyalaya (supra). Unfortunately, this condition precedent stands unfulfilled., 41. I shift my focus to the decision of this High Court rendered in Purnendu Kumar Bagchi (supra), relied on by Mr. Lahiri. The case involved an interpretation of Regulation 15 of the Indian Overseas Bank's Disciplinary Regulations, which are in pari materia to Regulation 15 of the 1976 Regulations that I am concerned with. The similarity of facts showcases that just as the petitioner in this case was served with a departmental order upon reinstatement which stated that the period served under deemed suspension was to be considered as not spent on duty, so was the case with the petitioner in Purnendu Kumar Bagchi (supra). However, since the petitioner was completely exonerated of the charges, the learned Single Judge ruled that Regulation 15(3)(a) of the pari materia Regulations was squarely attracted and permitted the grant of full back‑wages at the rate of eight percent interest to the petitioner., 42. I have, for reasons laid bare in detail above, ruled that this illegal prolongation of deemed suspension of the petitioner over the course of more than five years is a sufficient ground to be held as a case of an unjustifiable suspension under Regulation 15(1) of the 1976 Regulations. Accordingly, the stipulation of payment of full wages under Regulation 15(1) of the 1976 Regulations stands attracted in this matter and therefore, the period commencing from May 2015 until the date of his reinstatement shall be considered as period spent on duty, in accordance with Regulation 15(3)(a) of the 1976 Regulations. Consequently, the first question is answered in the affirmative., 43. Since Regulation 15(1) of the 1976 Regulations itself envisages payment of full pay upon fulfilment of either of its in‑built criteria, the petitioner is entitled to the payment of full back‑wages for the period aforementioned, subject to the adjustment of the amount already paid as subsistence allowance., 44. My observations are also explicitly reinforced by the decision of the Supreme Court in Deepali Gundu Surwase (supra). Time‑bound completions of disciplinary proceedings have strongly been urged by the Supreme Court. The Respondent has come up short through its varied acts, omissions and contravened its very own departmental regulations while an employee has been subjected to much stigma and harassment with no end in sight. Much water has flown under the bridge, the Respondent Bank has changed its own manifestation and governance structure, and much diverse litigation has been pursued by the petitioner in the pursuit of justice. In my opinion, the curtains now need to draw to an honourable close., 45. Accordingly, the office order bearing no. SAMB/Admn/19 dated May 20, 2020, issued by the Assistant General Manager of the Respondent Bank which had declined the petitioner's request for grant of full‑pay is set aside., 46. The Respondent Bank and its authorities are also hereby directed to pay the differential salary to the petitioner within four weeks for the period commencing from May 2015 till the date of his joining, along with interest payable at the rate of eight percent per annum. In the event the Respondent Bank does not make payment within four weeks, a further penal interest at the rate of four percent per annum shall be payable on the differential salary till the date of payment. The second question is answered accordingly., 47. It has generally been the system of this High Court not to impose costs upon any of the parties unless there is material suppression of facts and/or when the petition is extremely frivolous and vexatious. However, on due consideration and discussion with wiser minds, I am now of the view that it is necessary to impose costs to reduce the plethora of litigations in this country. Such costs are required to be imposed under two circumstances. Firstly, when the petition filed is extremely vexatious and without any merit whatsoever. Secondly, costs are required to be imposed when the State authorities, including their representatives and officers, act in a blatantly illegal manner or refuse to comply with the letter and the spirit of the law, forcing a petitioner to knock on the doors of the Courts for justice to be subserved. The present case falls in the latter category wherein the petitioner has been made to wait for over five years for his just dues. One need not repeat the circumstances as the same have been incorporated in the judgment above. Suffice it to say that the Respondent Bank has continued to use its dominant position to harass the petitioner of his original dues. This attitude of the bank officials in pushing the monkey of their shoulders and only acting once the matter is settled by a Constitutional Court is leading to umpteen litigations and unless such actions are punished with costs, the plague that is embedded in the psychology of such officials cannot be obliterated., 48. In conclusion thereof, this writ petition is allowed., 49. This High Court would like to thank the counsels for their prodigious assistance in this matter., 50. Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities. (Shekhar B. Saraf, J.)
id_392	0	Reportable Civil Appeal No 2357 of 2017: Government of National Capital Territory of Delhi (Appellant) versus Union of India (Respondent). Dr. Dhananjaya Y. Chandrachud, Chief Justice of India., This case before the Supreme Court of India deals with the asymmetric federal model of governance in India, involving the contest of power between a Union Territory and the Union Government. The issue is who would have control over the services in the National Capital Territory of Delhi: the Government of National Capital Territory of Delhi or the Lieutenant Governor acting on behalf of the Union Government. The question arose subsequent to a notification dated 21 May 2015 issued by the Union Ministry of Home Affairs, which stated that in accordance with the provisions contained in Article 239 and sub‑clause (a) of clause (3) of Article 239AA, the President directs that, subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi shall, in respect of matters connected with public order, police, land and services, exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President. The Lieutenant Governor may, at his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi regarding services wherever he deems it appropriate. Services are covered under Entry 41 of the State List of the Seventh Schedule to the Constitution. The 2015 notification excludes Entry 41, which concerns State Public Services and State Public Service Commissions, from the scope of powers of the Government of National Capital Territory of Delhi, on the ground that the National Capital Territory of Delhi does not have its own State public services. The Union Territories Cadre consisting of Indian Administrative Service and Indian Police Service personnel is common to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and the States of Arunachal Pradesh, Goa and Mizoram, and is administered by the Central Government through the Ministry of Home Affairs; similarly the Delhi, Andaman and Nicobar Islands Civil Service (DANICS) and Delhi, Andaman and Nicobar Islands Police Service (DANIPS) are common services catering to the Union Territories, including the National Capital Territory of Delhi, and are also administered by the Central Government through the Ministry of Home Affairs. Consequently, the National Capital Territory of Delhi does not have its own State Public Services, and services therefore fall within this category. Where there is no legislative power, there is no executive power, since executive power is co‑extensive with legislative power. Matters relating to Entries 1, 2 and 18 of the State List (public order, police and land) and Entries 64, 65 and 66 of that list, insofar as they relate to those entries, as well as services, fall outside the purview of the Legislative Assembly of the National Capital Territory of Delhi, and consequently the Government of the National Capital Territory of Delhi will have no executive power in relation to those subjects; such power vests exclusively in the President or his delegate, i.e., the Lieutenant Governor of Delhi., The above notification was challenged through a batch of petitions before the Delhi High Court. The Delhi High Court upheld the validity of the notification, declaring that matters connected with services fall outside the purview of the Legislative Assembly of the National Capital Territory of Delhi. On appeal, a two‑Judge Bench of the Supreme Court of India held that the matter involved a substantial question of law concerning the interpretation of Article 239AA, which deals with special provisions with respect to Delhi, and therefore referred the issue to a Constitution Bench on 15 February 2017., Article 239AA provides as follows: (1) As from the date of commencement of the Constitution (Sixty‑ninth Amendment) Act, 1991, the Union Territory of Delhi shall be called the National Capital Territory of Delhi and the Administrator appointed under Article 239 shall be designated as the Lieutenant Governor. (2)(a) There shall be a Legislative Assembly for the National Capital Territory and the seats shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory. (b) The total number of seats, the number reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament. (c) The provisions of Articles 324 to 327 and 329 shall apply to the National Capital Territory, its Legislative Assembly and its members as they apply to a State. (3)(a) Subject to the provisions of the Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any matters enumerated in the State List or the Concurrent List insofar as any such matter is applicable to Union Territories, except matters relating to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List insofar as they relate to those entries. (b) Nothing in sub‑clause (a) shall derogate from the powers of Parliament to make laws with respect to any matter for a Union Territory. (c) If any provision of a law made by the Legislative Assembly is repugnant to any provision of a law made by Parliament, the law made by Parliament shall prevail, and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void, unless the law has been reserved for the President’s consideration and received his assent, in which case it shall prevail in the National Capital Territory. (4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head, to aid and advise the Lieutenant Governor in the exercise of his functions, except insofar as he is required to act in his discretion. In case of a difference of opinion between the Lieutenant Governor and his Ministers, the Lieutenant Governor shall refer the matter to the President for decision. (5) The Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister; the Ministers shall hold office during the pleasure of the President. (6) The Council of Ministers shall be collectively responsible to the Legislative Assembly. (7)(a) Parliament may, by law, make provisions for giving effect to or supplementing the provisions contained in the foregoing clauses. (b) Any such law shall not be deemed an amendment of the Constitution for the purposes of Article 368. (8) The provisions of Article 239B shall, so far as may be, apply to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly as they apply to the Union Territory of Puducherry., The Constitution Bench pronounced its judgment on 4 July 2018. The judgment contained three judicial opinions. The majority opinion was authored by Chief Justice Dipak Misra, joined by Justices A. K. Sikri and A. M. Khanwilkar. Justice D. Y. Chandrachud and Justice Ashok Bhushan delivered separate concurring opinions. The Constitution Bench dealt with the constitutional status of the National Capital Territory of Delhi and the modalities of its administration based on the division of powers, functions and responsibilities of the elected government of the National Capital Territory of Delhi and the Lieutenant Governor, who as the nominee of the President of India serves as the representative of the Union Government. Upon deciding the interpretation of Article 239AA, the appeals were directed to be listed before a regular Bench to decide the specific issues., On 14 February 2019, a two‑Judge Bench comprising Justice A. K. Sikri and Justice Ashok Bhushan delivered separate judgments. The judges differed on whether services are excluded in view of Article 239AA(3)(a) from the legislative and executive domain. The matter later fell for consideration before a Bench of three Judges. The Union argued that the 2018 Constitution Bench did not analyse two crucial phrases in Article 239AA(3)(a): (i) ‘in so far as any such matter is applicable to Union Territories’ and (ii) ‘subject to the provisions of this Constitution’. By an order dated 6 May 2022, the three‑Judge Bench observed that the main contention relates to the interpretation of those phrases. It held that all issues except the one pending before this Bench have been dealt with by the previous Constitution Bench, and therefore it was not necessary to revisit settled issues. The limited issue referred to this Bench concerned the scope of legislative and executive powers of the Centre and the National Capital Territory of Delhi with respect to the term ‘services’. The Constitution Bench of the Supreme Court, while interpreting Article 239AA(3)(a), did not specifically interpret the impact of the wording with respect to Entry 41 in the State List. The Bench deemed it appropriate to refer the limited question for an authoritative pronouncement by a Constitution Bench under Article 145(3) of the Constitution. The question is whether the National Capital Territory of Delhi or the Union Government has legislative and executive control over services., Dr. A. M. Singhvi, learned Senior Counsel appearing for the appellant, made the following submissions: (a) The Legislative Assembly of the National Capital Territory of Delhi has the power to enact laws under Entry 41 of List II of the Seventh Schedule; the power cannot be excluded merely because the entry uses the term ‘state public services’ rather than ‘Union Territory public services’. The Delhi Legislative Assembly has enacted laws that fall within Entry 41. (b) Even if the legislature of the National Capital Territory of Delhi has not exercised legislative power related to Entry 41, that does not imply that the power ceases to exist. (c) The National Capital Territory of Delhi has legislative and executive power over all entries in List II other than entries 1, 2 and 18, which have been expressly excluded by Article 239AA. (d) The phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA is inclusionary, not exclusionary. Multiple entries in List II and List III use the term ‘State’; the phrase permits such entries to be made available to the National Capital Territory of Delhi without amending the Lists. Without the facilitative phrase, the National Capital Territory of Delhi would not have legislative competence over those entries. (e) The National Capital Territory of Delhi is sui generis and cannot be brought within the common class of Union Territories. (f) This Court, in Union of India v. Prem Kumar Jain, has recognised that the provisions of Part XIV of the Constitution extend to Union territories. (g) The report of the Balakrishnan Committee, which opined against the inclusion of services within the legislative and executive ambit of the National Capital Territory of Delhi, is not relevant because it preceded the inclusion of Article 239AA, the conclusion that only States can have services is conceptually wrong, the judgment in Prem Kumar Jain was not considered, and the majority opinion in the 2018 Constitution Bench expressly noted that the Balakrishnan Committee report will not be used as an aid to interpret Article 239AA. (h) Personnel belonging to All‑India Services and Central Government Services are governed by the Indian Administrative Service (Cadre) Rules 1954 and the All‑India Services (Joint Cadre) Rules 1972 respectively. While the Joint Cadre Authority may make an officer available to the Government of National Capital Territory of Delhi, the actual posting within the departments of the National Capital Territory is the prerogative of the latter. Similarly, under the DANICS and DANIPS Rules 2003, once an officer is allotted to the National Capital Territory of Delhi, the Administrator appoints that officer to a post within the Territory., Mr. Shadan Farasat, learned counsel for the appellant, provided an overview of the control of services in national capital territories across the world, arguing that regardless of the level of devolution of power in other countries, even in centralized governments the power to control services has been devolved to the local government of the national capital territory. Mr. Tushar Mehta, learned Solicitor General appearing for the Union of India, made the following submissions: (a) Entry 41 of List II is not available to Union Territories because they cannot have a State Public Service or a State Public Service Commission. (b) The 2018 Constitution Bench judgment did not decide whether the National Capital Territory of Delhi has legislative competence over Entry 41 of List II. (c) Delhi, being the national capital, enjoys a special status that requires the Union to have control over services, without which it would be impossible for the Union to discharge its national and international responsibilities. (d) The expression ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA means that the entries contained in List II are available to the National Capital Territory of Delhi only to the limited extent to which they are applicable to Union Territories; the legislative powers of the National Capital Territory of Delhi shall extend only to those matters that are clearly and unequivocally applicable to Union Territories as a class. Consequently, List II must be read contextually and certain entries can be excluded from the domain of the Government of National Capital Territory of Delhi. (e) The control of the Union of India over services has not led to any issue pertaining to the governance of the National Capital Territory of Delhi. (f) The Transaction of Business Rules 1993 provide sufficient powers to Ministers of the Government of National Capital Territory of Delhi to ensure supervisory and functional control over civil services; the rules applicable to the civil services indicate that administrative control vests with the Union., The arguments advanced indicate that this Constitution Bench is called upon to decide the limited question of whether the National Capital Territory of Delhi has the power to legislate under Entry 41 of the State List, and the meaning of the phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA(3)(a). The reference is limited to the scope of executive and legislative power of the National Capital Territory of Delhi over services, and does not require interpretation of each subordinate rule concerning postings of officers., The 2018 Constitution Bench decision held that the National Capital Territory of Delhi is not similar to other Union Territories. The insertion of Article 239AA accorded a sui generis status to the National Capital Territory of Delhi, establishing a Legislative Assembly, a Council of Ministers and a Westminster‑style cabinet system, thereby providing residents of Delhi, through their elected representatives, a voice in governance while balancing the national interests of the Union of India. The majority decision, speaking through Chief Justice Dipak Misra, observed that all Union Territories are not on the same pedestal and that the constitutional amendment confers a special status on Delhi. The judgment noted that the insertion of Articles 239AA and 239AB, specific to the National Capital Territory of Delhi, reflects Parliament’s intention to treat Delhi as a distinct class., Justice D. Y. Chandrachud, in his concurring opinion, emphasized the importance of legislative and constitutional history in interpreting Article 239AA. He observed that it would be fundamentally inappropriate to assign to the National Capital Territory of Delhi a status similar to other Union Territories. Article 239AA(4) is a special provision adopted to establish a special constitutional arrangement for the governance of the National Capital Territory of Delhi, albeit within the rubric of Union Territories. While adopting some provisions of the Acts of 1963 and 1966, Parliament omitted other provisions, thereby creating a distinct framework. The judgment underscored that the governance structure adopted for the National Capital Territory of Delhi is unique and different from that of other Union Territories. Article 239A allows Parliament to create a Council of Ministers for the Union Territory of Puducherry, which may be wholly or partly elected, whereas Article 239AA mandates a Legislative Assembly for Delhi with members chosen by direct election, and no provision for nominated members. This deliberate design reflects Parliament’s intention to treat the Legislative Assembly of the National Capital Territory of Delhi as a body of elected representatives accountable to the voters of Delhi, and to treat the Government of the National Capital Territory of Delhi as a representative form of government., The analysis indicates that while Part VIII of the Constitution groups all Union territories together, the Constitution did not intend to use the same brush to paint the details of their position, institutions of governance, democratic participation or accountability. The majority judgment emphasized that interpreting the Constitution should be done in light of its spirit, preserving the democratic nature and representative participation of the citizens. Accordingly, in adjudicating the present dispute, it is imperative to adopt an interpretation that upholds the spirit of the unique constitutional democratic mandate provided to the Government of the National Capital Territory of Delhi by the inclusion of Article 239AA.
id_392	1	This is where there is a departure from the legislative powers of Parliament with respect to States. While Parliament does not have legislative competence over entries in the State List for States, it has the power to make laws on entries in the State List for the National Capital Territory of Delhi. This was the view taken in the 2018 Constitution Bench judgment. As the concurring opinion of Justice D.Y. Chandrachud held:, Unlike State Legislative Assemblies which wield legislative power exclusively over the State List, under the provisions of Article 246(3) the Legislative Assembly for the National Capital Territory does not possess exclusive legislative competence over State List subjects. By a constitutional fiction, Parliament has legislative power over Concurrent List as well as State List subjects in the Seventh Schedule., Sub‑clause (c) of Clause 3 of Article 239AA contains a provision for repugnancy, similar to Article 254. A law enacted by the Legislative Assembly would be void to the extent of a repugnancy with a law enacted by Parliament unless it has received the assent of the President. Moreover, the assent of the President would not preclude Parliament from enacting legislation in the future to override or modify the law enacted by the Legislative Assembly., The 2018 Constitution Bench judgment held that the executive power of the National Capital Territory of Delhi is co‑extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate. Article 239AA(4) provides that the Council of Ministers shall aid and advise the Lieutenant Governor in the exercise of the functions of the latter in relation to matters with respect to which the Legislative Assembly has the power to make laws. Thus, the executive power of the National Capital Territory of Delhi shall extend over entries in the State List, except the excluded entries., After analysing the provision of Article 239AA(4), the majority in the 2018 Constitution Bench judgment held that the Union has executive power only over the three entries in the State List over which the National Capital Territory of Delhi does not have legislative competence, namely entries 1, 2 and 18 in the State List. A conjoint reading of Article 239AA(3)(a) and Article 239AA(4) reveals that the executive power of the Government of the National Capital Territory of Delhi is co‑extensive with the legislative power of the Delhi Legislative Assembly, which extends over all but three subjects in the State List and all subjects in the Concurrent List., Article 239AA(3)(a) reserves Parliament’s legislative power on all matters in the State List and Concurrent List, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact, whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have co‑extensive executive powers., Article 239AA(4) confers executive powers on the Government of the National Capital Territory of Delhi whereas the executive power of the Union stems from Article 73 and is co‑extensive with Parliament’s legislative power. The ideas of pragmatic federalism and collaborative federalism would fall to the ground if we were to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers. Thus, the executive power of the Union in respect of the National Capital Territory of Delhi is confined to the three matters in the State List for which the legislative power of the Delhi Legislative Assembly has been excluded under Article 239AA(3)(a)., As a natural corollary, the Union of India has exclusive executive power with respect to the National Capital Territory of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of the National Capital Territory of Delhi, subject to the proviso to Article 239AA(4) of the Constitution. This interpretation is in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of the National Capital Territory of Delhi a required degree of independence subject to the limitations imposed by the Constitution., The majority clarified that if Parliament makes a law in relation to any subject in the State List or the Concurrent List, the executive power of the Government of the National Capital Territory of Delhi shall then be limited by the law enacted by Parliament. A conjoint reading of clauses (3)(a) and (4) of Article 239AA divulges that the executive power of the Government of the National Capital Territory of Delhi is co‑extensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List. However, if Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by Parliament., Justice D.Y. Chandrachud, in his concurring opinion, observed that the provisions of Clause 2 and Clause 3 of Article 239AA indicate that while conferring a constitutional status upon the Legislative Assembly of the National Capital Territory, the Constitution has circumscribed the ambit of its legislative powers firstly by carving out certain subjects from its competence (vesting them in Parliament) and secondly by enabling Parliament to enact law on matters falling both in the State List and Concurrent List. Moreover, in the subjects which have been assigned to it, the legislative authority of the Assembly is not exclusive and is subject to laws which are enacted by Parliament., The 2018 Constitution Bench judgment authoritatively held that the legislative and executive power of the National Capital Territory of Delhi extends to all subjects in the State List and Concurrent List, except those explicitly excluded. However, in view of Article 239AA(3)(b), Parliament has the power to make laws with respect to all subjects in the State List and Concurrent List insofar as any such matter is applicable to Union Territories., It has been argued by the Union of India that the phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA has not been construed by the Constitution Bench, and that the phrase limits the legislative power of the National Capital Territory of Delhi. The concurring opinion of Justice D.Y. Chandrachud dealt with the above phrase and held that the expression ‘insofar as any such matter is applicable to Union Territories’ is an inclusive term, not an exclusionary one. The expression ‘State’ in entries of the Seventh Schedule is not conclusive of whether a particular provision of the Constitution would apply to Union Territories., Section 7(5) of the Government of National Capital Territory of Delhi Act provides that salaries of the Speaker and Deputy Speaker of the Legislative Assembly may be fixed by the Legislative Assembly by law. Section 19 provides that the Members of the Legislative Assembly shall receive salaries and allowances as determined by the Legislative Assembly by law. Section 43(3) similarly provides that the salaries and allowances of Ministers shall be determined by the Legislative Assembly. However, Section 24 provides that a Bill for the purpose has to be reserved for the consideration of the President. The subjects pertaining to the salaries and allowances of Members of the Legislature of the State (including the Speaker and Deputy Speaker) and of the Ministers for the State are governed by Entry 38 and Entry 40 of the State List. The Government of National Capital Territory of Delhi Act recognises the legislative competence of the Legislative Assembly of the National Capital Territory to enact legislation on these subjects., The purpose of the above narration is to indicate that the expression ‘State’ is by itself not conclusive of whether a particular provision of the Constitution would apply to Union Territories. Similarly, the definition of the expression ‘State’ in Section 3(58) of the General Clauses Act (which includes a Union Territory) will not necessarily govern all references to ‘State’ in the Constitution. If there is something repugnant in the subject or context, the inclusive definition in Section 3(58) will not apply. Hence, the expression ‘insofar as any such matter is applicable to Union Territories’ is not one of exclusion nor can it be considered to be so irrespective of subject or context., Justice B.R. Bhushan, in his concurring opinion in the 2018 Constitution Bench judgment, interpreted the said phrase as follows: The provision is very clear which empowers the Legislative Assembly to make laws with respect to any of the matters enumerated in the State List or in the Concurrent List except the excluded entries. One of the issues is that power to make laws in the State List or in the Concurrent List is hedged by the phrase ‘insofar as any such matter is applicable to Union Territories’. A look at the entries in List II and List III indicates that there is no mention of Union Territory. The phrase ‘insofar as any such matter is applicable to Union Territory’ is inconsequential because at the commencement of the Constitution there was no concept of Union Territories; the phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatable to the State List and Concurrent List except where an entry indicates that its applicability to the Union Territory is excluded by implication or any express constitutional provision., Justice B.R. Bhushan also agreed that the phrase ‘insofar as any such matter is applicable to Union Territories’ cannot be used to restrict the legislative power of the Legislative Assembly of Delhi. He held that the phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatable to the State List and Concurrent List except for excluded entries., The judgment of the majority did not make a direct observation on the interpretation of the said phrase. However, the reasoning indicates that the phrase was to be considered in a broader sense. The majority held that the executive power of the National Capital Territory of Delhi is co‑extensive with its legislative power on subjects except the excluded subjects under Article 239AA(3)(a). This means that the executive power flows from the legislative power; if the National Capital Territory of Delhi has executive power on a subject in the State List, it is because it has legislative power under the entries of that List. The majority held that the Union shall have exclusive executive power with respect to the National Capital Territory of Delhi only for the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of all other matters, executive power is to be exercised by the Government of the National Capital Territory of Delhi., All five Judges in the 2018 Constitution Bench judgment did not construe the phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA to be exclusionary., In his opinion in the 2019 split verdict, Justice B.R. Bhushan was of the contrary view. He held that the majority opinion in the 2018 Constitution Bench judgment did not interpret the phrase ‘insofar as any such matter is applicable to Union Territories’. He noted that the majority opinion delivered by Chief Justice Dipak Misra had not dealt with the expression, and therefore no opinion on the phrase was expressed in the majority judgment., We are unable to agree with the view of Justice B.R. Bhushan in the 2019 split verdict. As indicated previously, the majority decision in the 2018 Constitution Bench judgment rendered a broad interpretation of Article 239AA(3)(a) to provide the National Capital Territory of Delhi with vast executive and co‑extensive legislative powers except in the excluded subjects. A combined reading of the majority opinion and the concurring opinions of Justices D.Y. Chandrachud and B.R. Bhushan indicates that the phrase ‘insofar as any such matter is applicable to Union Territories’ does not restrict the legislative powers of the National Capital Territory of Delhi., When the Indian Constitution was adopted, the States of the Indian Union were classified into Part A, Part B and Part C States. Delhi was a Part C State and was governed by the Government of Part C States Act, 1951. The Act provided for a Council of Ministers and a legislature of elected representatives for Delhi with the power of making laws with respect to any of the matters enumerated in the State List or the Concurrent List except for the subjects which were expressly excluded. The excluded subjects corresponded to those in Article 239AA along with the subject of Municipal Corporations. These powers were limited in nature and subject to the legislative power of Parliament., The Constitution (Seventh Amendment) Act, 1956, based broadly on the recommendations of the Fazl Ali Commission and designed to implement the provisions of the States Reorganisation Act, 1956, did away with the erstwhile classification of States into Part A, Part B and Part C States, and Part D territories. Instead, it introduced States and Union Territories. The newly created Union Territories were to be administered by the President acting through an Administrator in terms of Article 239 of the Constitution., The Fazl Ali Commission was aware of the special needs of Delhi and the importance of accounting for local needs and wishes of the residents of the National Capital Territory of Delhi. It noted that municipal autonomy in the form of a corporation would provide greater local autonomy than is the case in some of the important federal capitals and is the only solution of the problem of Delhi State., Soon thereafter, in 1962, Article 239A was inserted in the Constitution by the Constitution (Fourteenth Amendment) Act, 1956. This envisaged the creation of local legislatures or a Council of Ministers or both for certain Union Territories. Thus, a significant change was introduced in the governance structure for Union Territories. Article 239A created a separate category of Union Territories since all Union Territories were no longer envisaged to be administered only by the President. The introduction of Article 239A was followed by the Government of Union Territories Act, 1963. Currently, the Union Territory of Puducherry is administered in terms of the governance structure envisaged by this enactment., By the Constitution (Sixty‑ninth Amendment) Act, 1991, Article 239AA was inserted in the Constitution. It introduced a unique structure of governance for the National Capital Territory of Delhi vis‑vis the Union Territories. The Statement of Objects and Reasons of the amendment recommended that Delhi should continue to be a Union Territory and be provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man, and that the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories., The 1991 Constitution Amendment brought a fresh dimension to the governance of Union Territories. By virtue of the provisions of Article 239AA, the National Capital Territory of Delhi became the only Union Territory with a special status of having a constitutionally mandated legislature and Council of Ministers. This was a departure from the earlier model of governance for Union territories. Article 239AA, in contrast, constitutionally mandates a legislature and prescribes the scope of legislative and executive power for the National Capital Territory of Delhi., Article 239AA creates a wide variation in structures of governance of the National Capital Territory of Delhi as compared to other Union Territories, with differences even as regards the manner in which legislative powers have been bestowed upon them. For instance, Article 239A provides that Parliament may create a legislature for Puducherry, whereas for the National Capital Territory of Delhi the Constitution itself (in terms of Article 239AA) has created a Legislative Assembly and a Council of Ministers. The constitutionally coded status of the National Capital Territory of Delhi results in a significant degree of variance in the governance structure when compared to other States and Union territories., The concurring opinion of Justice D.Y. Chandrachud in the 2018 Constitution Bench judgment expressly discussed this aspect and held that no single homogeneous class of Union Territories exists. Instead, Union Territories fall in various categories: the first category consists of Union Territories which have no legislature at all; the second category has legislatures created by a law enacted by Parliament under the Government of Union Territories Act, 1963; the third category is Delhi which has special features under Article 239AA. Though the National Capital Territory of Delhi is in a class by itself, it is certainly not a State within the meaning of Article 246 or Part VI of the Constitution., This variance in the constitutional treatment of Union Territories as well as the absence of a homogeneous class is not unique only to Union Territories. The Constitution is replete with instances of special arrangements being made to accommodate the specific regional needs of States in specific areas. For example, Article 371 of the Constitution contains special provisions for certain areas in various States as well as for the entirety of some States, reflecting the practice of asymmetric federalism to accommodate regional differences., The design of our Constitution is such that it accommodates the interests of different regions. While providing a larger constitutional umbrella to different States and Union territories, it preserves the local aspirations of different regions. Unity in diversity is not only used in common parlance, but is also embedded in our constitutional structure. Our interpretation of the Constitution must give substantive weight to the underlying principles., We are unable to agree with the argument of the Solicitor General that the legislative power of the National Capital Territory of Delhi does not extend to those subjects which are not available to Union Territories as a class because Article 239AA employs the term ‘insofar as any such matter is applicable to Union Territories’. The analysis in this section clarifies that there is no homogeneous class of Union territories with similar governance structures., Article 239AA(3)(a) confers legislative power to the National Capital Territory of Delhi. However, it does not confer legislative power over all entries in the State List. Article 239AA(3) provides multiple safeguards to ensure that the interest of the Union is preserved. First, sub‑clause (a) of clause (3) removes three entries in the State List from the legislative domain of the National Capital Territory of Delhi, namely entries 1, 2 and 18, and entries 64, 65 and 66 insofar as they relate to those three entries. Second, sub‑clause (b) of clause (3) clarifies that Parliament has the power to legislate on any matter for a Union Territory, including subjects with respect to which the National Capital Territory of Delhi has legislative power under Article 239AA(3)(a). In other words, Parliament has plenary power to legislate on a subject in any of the three Lists of the Seventh Schedule for the National Capital Territory of Delhi. Third, Article 239AA(3)(c) provides that where there is a repugnancy between a law enacted by the Legislative Assembly of the National Capital Territory of Delhi and a law enacted by Parliament, the latter will prevail, and the law enacted by the Legislative Assembly shall, to the extent of the repugnancy, be void. Unlike Article 254, which provides for the overriding power of Parliament only on subjects in the Concurrent List, Parliament has overriding power in relation to the National Capital Territory of Delhi over subjects in both the State List and the Concurrent List. Fourth, the second proviso to Article 239AA(3)(c) provides that Parliament may enact at any time any law with respect to the same matter, including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly of the National Capital Territory of Delhi.
id_392	2	Fifth, under Article 239AA(7)(a), Parliament may by law make provisions for giving effect to, or supplementing the provisions in the foregoing clauses of Article 239AA and for all matters incidental or consequential thereto. Article 239AA(7)(b) stipulates that such law shall not be deemed to be an amendment of the Constitution for the purposes of Article 368, which deals with the power and procedure to amend the Constitution. Thus, Article 239AA(3) balances between the interest of the National Capital Territory of Delhi and the Union of India., This constitutional balance has been analyzed in the concurring opinion of Justice Chandrachud in the 2018 Constitution Bench judgment in the following terms: While bearing fundamental constitutional principles of a democracy in mind, a balance has to be struck with the second of the above elements which recognises the special status of the National Capital Territory. The National Capital Territory represents the aspirations of the residents of its territory. But it embodies, in its character as a capital city, the political symbolism underlying national governance. The circumstances pertaining to the governance of the National Capital Territory may have a direct and immediate impact upon the collective welfare of the nation. This is the rationale for the exclusion of the subjects of public order, police and land from the legislative power and necessarily from the executive power of the National Capital Territory. These considerations would necessarily require a careful balance between the two principles., Thus, it is evident that the Legislative Assembly of the National Capital Territory of Delhi does not exercise exclusive legislative powers over all the entries in the State List. It is only in a demarcated constitutional sphere that it is able to exercise its legislative power. Parliament, by virtue of the 1991 Constitution Amendment, has already reserved certain subjects of national importance to itself. Furthermore, Parliament has overriding legislative powers in relation to the National Capital Territory of Delhi in terms of sub-clauses (b) and (c) of Article 239AA(3) and Article 239AA(7). The intent and purpose of Article 239AA(3)(b) and Article 239AA(7) is to confer an expanded legislative competence upon Parliament, when it comes to the Government of National Capital Territory of Delhi clearly since it is the capital of the country and therefore must be dealt with different considerations. In this manner, Parliament acting in its constituent power while introducing Article 239AA has provided sufficient safeguards and was cognizant of the necessity to protect concerns related to national interests. The Constitution confers powers to Parliament to such an extent that it would have the effect of amending the Constitution. As discussed, the legislative powers of the National Capital Territory of Delhi are limited. If we interpret the phrase 'insofar as any such matter is applicable to Union territories' in a manner to exclude a greater number of entries than what is already excluded by Article 239AA(3), it will defeat the very purpose of granting a special status to the National Capital Territory of Delhi., The Union of India submitted that the phrase 'insofar as any such matter is applicable to Union territories' is specifically a term of exclusion and not a term of inclusion. It argued that the phrase was introduced to limit the legislative and executive power over entries in List II beyond the entries which have been expressly excluded by Article 239AA. We shall now refer to other provisions of the Constitution to analyse the above arguments., The power of Parliament and legislatures of States to legislate upon entries in the Union List, State List and Concurrent List flows from Article 246 of the Constitution. Article 246(3) confers exclusive power to the legislatures of States to make laws for that State with respect to the matters enumerated in the State List. Article 246(4) provides that Parliament has the power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is enumerated in the State List., Article 366 provides meanings of various expressions used in the Constitution, unless the context otherwise requires. The provision stipulates that unless the context otherwise requires, the expressions defined in an Article shall have the meanings respectively assigned to them in the provision. Article 366(26B) provides that 'State' with reference to Articles 246A, 268, 269, 269A and 279A includes a Union Territory with a legislature. Articles 366(26B), incorporated in the Constitution by the Constitution (One Hundred and First Amendment) Act 2016, provides the meaning of State only with reference to five other Articles in the Constitution, to enable the proper functioning of the goods and services tax regime. However, a universal definition of State has not been provided under Article 366., Article 367(1) provides that unless the context otherwise requires, the General Clauses Act, 1897, subject to any adaptations and modifications that may be made therein by any Presidential order made under Article 372 to bring it in conformity with the provisions of the Constitution, shall apply for the interpretation of the Constitution: 'Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.', Article 372(2) stipulates that the President may by order make modifications and adaptations to the provisions of any law in force in the territory of India to bring it in accordance with the provisions of the Constitution. This power under Article 372(3) was only granted to the President for three years and thus expired on 25 January 1953., The 1956 Constitution Amendment was introduced to make necessary amendments to the provisions of the Constitution to give effect to the reorganisation of States. Article 372A, which was introduced pursuant to the 1956 Constitution Amendment, confers on the President the power to make modifications and adaptations in provisions of law, in force in India immediately before the amendment, to bring it in consonance with the provisions of the Constitution., The President amended Section 3(58) of the General Clauses Act by the Adaptation of Laws (No. 1) Order, 1956. Subsequent to the amendment in 1956, Section 3(58) stipulates that the phrase 'State' with respect to any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State, or a Part C State, and with respect to the period after such commencement shall include a State specified in the First Schedule to the Constitution and shall include a Union territory., In Advance Insurance Corporation Limited v. Gurudasmal, the question before a Constitution Bench of the Supreme Court of India was whether the word 'State' in Entry 80 of List I could be read to include Union territories. Entry 80 reads as follows: 'Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.', Justice Hidayatullah, writing for the Constitution Bench, rejected the argument that the amended definition of State under the General Clauses Act would not apply to the interpretation of provisions of the Constitution. He observed that Article 372A provides the President with a fresh power of adaptation and this power is equal and analogous to the power that the President held under Article 372(2). The Supreme Court of India held that unless the context otherwise requires, the definition provided under the General Clauses Act and as modified by the order under Article 372A shall be applied., However, a separate Constitution Bench of the Supreme Court of India in Shiv Kirpal Singh v. V.V. Giri held that definitions under the General Clauses Act as modified by the President under the adaptation order by virtue of the power conferred under Article 372A do not apply to the interpretation of the Constitution. In that case, the issue was whether the phrase 'elected members of the Legislative Assemblies of the States' in Article 54, which constitutes the electoral college for the election of the President, would include the elected members of the Legislative Assemblies of Union territories. The Supreme Court answered in the negative. It held that the modifications under Article 372A were limited only to the interpretation of laws of Parliament and would not apply to the interpretation of the Constitution because Article 367 stipulates that the General Clauses Act shall apply to the interpretation of the Constitution, subject to such adaptations made under Article 372. The provision does not provide that the interpretation must also be subject to the adaptation made under Article 372A. Parliament responded to the anomaly created by the judgment in Shiv Kirpal Singh, and inserted an Explanation to Article 54 by the Constitution (Seventeenth Amendment) Act 1992. The Explanation clarifies that the reference to State in Articles 54 and 55 would include the National Capital Territory of Delhi and the Union Territory of Pondicherry for constituting the electoral college for the election of the President. In Shiv Kirpal Singh, the Supreme Court did not refer to the decision in Advance Insurance. Thus, the decision in Shiv Kirpal Singh is per incuriam to the extent of interpretation of Article 372A., The provisions of the General Clauses Act as modified by the President in exercise of the power under Article 372A shall apply to the interpretation of the Constitution. It cannot be held otherwise merely because Article 367 does not refer to Article 372A. To interpret Article 367 in such a manner would render Article 372A and the amendments in the Constitution by the 1956 Constitution Amendment otiose. The power to make adaptations and modifications was granted to the President by Article 372A to bring the provisions of law in accordance with the Constitution, as amended by the 1956 Constitution Amendment. If Article 367 is interpreted as excluding modifications under Article 372A, there would be an apparent inconsistency between the interpretation of the Constitution and the interpretation of statutes. While in the case of the former, the definition of State prior to the 1956 amendment would apply, in the case of the latter, the definition as amended by the 1956 amendment would apply. Thus, a literal interpretation of Article 367 would render the Constitution unworkable and would not give effect to the 1956 Constitution Amendment. The Supreme Court must render a purposive interpretation of Article 367. Article 367 must be read to mean that the General Clauses Act, as amended by adaptation and modification orders under Article 372 and Article 372A, shall apply to the interpretation of the Constitution, unless the context requires. Thus, unless the context otherwise requires, the term 'State' in the Constitution must be read to include Union territories. Accordingly, we agree with the interpretation of Article 367 rendered by the Supreme Court in Advance Insurance., The findings in Advance Insurance were later reiterated by the Supreme Court in Prem Kumar Jain. In Prem Kumar Jain, a four‑Judge Bench of the Supreme Court held that Article 372A is a special provision introduced to make the 1956 Constitution Amendment workable: The definition of the expression 'State' as it stood before 1 November 1956 became unsuitable and misleading on the coming into force of the Constitution (Seventh Amendment) Act, 1956, and it would be futile to contend that it should have continued to be applicable for all time merely because the three‑year period provided by clause (3)(a) of Article 372 of the Constitution expired and was not extended, or because Article 367(1) was not amended by the Seventh Amendment Act to say that adaptations made in the General Clauses Act otherwise than those made under Article 372(2) would be applicable to the interpretation of the Constitution. It was a special provision, and it was meant to serve the purpose of making the Seventh Amendment Act workable. As has been held by the Supreme Court in Management of Advance Insurance Co. Ltd. v. Shri Gurudasmal, Article 372A gave a fresh power to the President which was equal and analogous to the power under Article 372(2)., We shall now deal with the decisions of the Supreme Court which have held that the expression 'State' in Article 246 does not include a Union Territory. In T.M. Kanniyan v. CIT, a Constitution Bench of the Supreme Court discussed the applicability of Section 3(58) of the General Clauses Act 1897 to Article 246, and held that the inclusive definition of State under the General Clauses Act would not apply to Article 246. Such an interpretation would be repugnant to the subject and context of Article 246: Parliament has plenary power to legislate for the Union territories with regard to any subject. With regard to Union territories there is no distribution of legislative power. Article 246(4) enacts that Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. R.K. Sen v. Union it was pointed out that having regard to Article 367, the definition of State in Section 3(58) of the General Clauses Act, 1897 applies for the interpretation of the Constitution unless there is anything repugnant in the subject or context. Under that definition, the expression 'State' as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956 shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory. But this inclusive definition is repugnant to the subject and context of Article 246. There, the expression 'States' means the State specified in the First Schedule. There is a distribution of legislative power between Parliament and the legislatures of the States. Exclusive power to legislate with respect to the matters enumerated in the State List is assigned to the legislatures of the States established by Part VI. There is no distribution of legislative power with respect to Union territories. That is why Parliament is given power by Article 246(4) to legislate even with respect to matters enumerated in the State List and until a legislature empowered to legislate on those matters is created under Article 239A for the Union territories, there would be no legislature competent to legislate on those matters; moreover, for certain territories such as the Andaman and Nicobar Islands no legislature can be created under Article 239A, and for such territories there can be no authority competent to legislate with respect to matters enumerated in the State List. Such a construction is repugnant to the subject and context of Article 246., The position that Section 3(58) of the General Clauses Act is inapplicable to Article 246 was reiterated by a nine‑Judge Bench of the Supreme Court in NDMC v. State of Punjab. The Seventh Schedule was inserted under Article 246. In view of the position laid down in Kanniyan and NDMC, the word 'State' used in entries in the Seventh Schedule would also not include Union Territories. Thus, the legislative competence of the National Capital Territory of Delhi would not extend to entries which mention 'State'. The usage of the phrase 'insofar as such matter is applicable to Union territories' was included to avert such a consequence. The phrase has extended the legislative power of the National Capital Territory of Delhi to all the entries in List II which use the word 'State'., Any amendment to the State List as well as the Concurrent List, being an amendment to the Seventh Schedule, must be in accordance with Article 368 of the Constitution. The proviso to Article 368(2) stipulates that an amendment to the Seventh Schedule would need a special majority of two‑thirds of the members of each House of Parliament present and voting, and would also need to be ratified by the legislatures of not less than one‑half of the States. If the phrase 'insofar as such matter is applicable to Union territories' was not included in Article 239AA, Parliament and the legislatures of the States would have been required to amend all entries in the Seventh Schedule where the term 'State' is used to 'State and Union territories'. This would have required a special majority. It was to avoid this time‑consuming process that the expansive phrase was used in Article 239AA., Article 239AA expressly excludes entries 1, 2, and 18 of List II from the ambit of the legislative competence of the Legislative Assembly of the National Capital Territory of Delhi. Article 239AA also stipulates that the legislative power of the National Capital Territory of Delhi is excluded with respect to entries 64, 65, and 66 of List II insofar as they relate to entries 1, 2, and 18. Entry 1 deals with public order, Entry 2 with police, and Entry 18 with land. Entry 64 deals with offences against laws with respect to any of the matters in this List, Entry 65 states jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List, and Entry 66 states fees in respect of any of the matters in this List, but not including fees taken in any court. The exclusion of entries 64, 65, and 66 to the extent that they relate to entries 1, 2, and 18 indicates that the governance structure envisaged in Article 239AA for the National Capital Territory of Delhi was only to exclude the specific entries 1, 2, and 18 from its legislative competence. To read the phrase 'insofar as such matter is applicable to the Union Territories' as introducing an implied exclusion of the legislative powers of the National Capital Territory of Delhi with respect to certain other entries would be contrary to the plain meaning of the provision., Article 239AA establishes a Legislative Assembly for the National Capital Territory of Delhi. The seats in the Assembly are filled by direct election from the constituencies of the National Capital Territory of Delhi. The Legislative Assembly embodies the constitutional principle of representative democracy similar to the Legislative Assembly of a State. The members are selected by the electorate of Delhi to represent their interests. Article 239AA must be interpreted to further the principle of representative democracy. To interpret the phrase 'insofar as any such matter is applicable to Union territories' in a restrictive manner would limit the legislative power of the elected members of the Assembly. The members have been chosen by the electorate to act in their stead. Thus, the legislative competence of the National Capital Territory of Delhi must be interpreted to give full impetus to the will of the electorate., We find that the phrase 'insofar as any such matter is applicable to Union territories' in Article 239AA(3) cannot be read to further exclude the legislative power of the National Capital Territory of Delhi over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded by the provision., It has been emphasized by the Union of India that Article 239AA not only restricts the powers of the Legislative Assembly of the National Capital Territory of Delhi through the phrase 'insofar as any such matter is applicable to Union territories' but also through the restrictive phrase 'Subject to the provisions of this Constitution'., The phrase 'Subject to the provisions of this Constitution' is not unique to Article 239AA. It has been used in twenty‑two provisions of the Constitution, notably in the provisions dealing with the legislative power of Parliament (Article 245) as well as in the provisions dealing with the executive power of the Union (Article 73(2)) and of the States (Article 162(3)). The phrase is used to indicate that the legislative power and competence exercised by a legislature must be within the limits circumscribed by the Constitution. Those boundaries may differ on a case‑to‑case basis. For instance, a law made by a legislature cannot violate the fundamental rights of citizens. Another instance is that Parliament can only enact laws on subjects within its legislative competence. Furthermore, any law made by Parliament or a State Legislature shall be subject to the power of judicial review under Article 32 or Article 226. A Constitution Bench of the Supreme Court in Rajendra Diwan v. Pradeep Kumar Ranibala held: Parliament and the State Legislatures derive their power to make laws from Article 245(1) of the Constitution of India and such power is subject to and/or limited by the provisions of the Constitution. While Parliament can make law for the whole or any part of the territory of India, the State Legislature can only make laws for the State or any part thereof, subject to the restrictions in the Constitution of India. While Parliament has exclusive power under Article 246(1) of the Constitution to make laws with respect to the matters enumerated in the Union List, the State Legislature has exclusive power to make laws with respect to matters enumerated in the State List, subject to clauses (1) and (2) of Article 246. Along with the Union Legislature, the State Legislature is also competent to enact laws in respect of the matters enumerated in the Concurrent List, subject to the provisions of Article 246(1)., DD Basu, in the Commentary on the Constitution of India, discusses the constitutional limitations upon legislative power: As the opening words of Article 245(1) say, the legislative powers of both the Union and State Legislatures are subject to the other provisions of the Constitution, even though their powers are plenary within the spheres assigned to them respectively by the Constitution. Whether a law has transgressed any of these limitations is to be ascertained by the Court and, if found so, the Court will declare the law void. These limitations fall under various categories: (i) the question of vires or legislative competence; (ii) contravention of some positive limitation imposed by the Constitution, such as the Fundamental Rights contained in Part III, whose effects have been discussed under Article 13; and (iii) any other provision of the Constitution that is justiciable and mandatory, for example Articles 255, 286, 301, 303‑304. In the case of State legislation, there are further limitations, viz., that its operation cannot extend beyond the boundaries of the State in the absence of a territorial nexus, and that the Legislature must not abdicate its essential legislative function or make an excessive delegation of that power to another body. The same meaning applies to the usage of the phrase 'Subject to the provisions of this Constitution' in Article 239AA., We therefore hold that the legislative power of the National Capital Territory of Delhi under Article 239AA(3) is to be guided by the broader principles and provisions of the Constitution. The phrase in Article 239AA(3) must be interpreted to give effect to the underlying principles in the Constitution. It is in this backdrop that we shall consider the next submission made by the Union., The Union of India has argued that the Indian Constitution is often referred to as a federal Constitution with a strong unitary bias, and as far as Union Territories are concerned, the Constitution is unitary in form and in spirit. It is submitted that the generic concept of federalism, as applicable to States, cannot apply to Union Territories. Thus, the phrases 'Subject to the provisions of this Constitution' and 'insofar as any such matter is applicable to Union territories' are to be interpreted accordingly., To analyse the above argument, it is imperative to understand the concept of federalism as the members of the Constituent Assembly envisioned. Dr. B.R. Ambedkar, in one of his seminal speeches before the Constituent Assembly, explained the dual polity federal model established under the Constitution: Dual Polity under the proposed Constitution will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution. The Indian Constitution proposed in the Draft Constitution is not a league of States nor are the States administrative units or agencies of the Union Government., Further, when Dr. Ambedkar was questioned in the Constituent Assembly on the centralising tendency of the Constitution, he responded: The States, under our Constitution, are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co‑equal in this matter. It may be that the Constitution assigns to the Centre a larger field for the operation of its legislative and executive authority than is found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chief mark of federalism, as I said, lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution., It emerges from the speeches of Dr. Ambedkar that India adopted a federal model in which the Union and the States were meant to operate within their assigned legislative domains. The States are not subservient to the Union. The legislative domain of the States was exclusive and cannot be interfered with by the Union. This principle has been reiterated in judgments of the Supreme Court.
id_392	3	Justice B.P. Jeevan Reddy, in his separate opinion, in S. R. Bommai v. Union of India 24, where federalism was held to be part of the basic structure, held that the States were independent and supreme in the sphere allotted to them, even if the Constitution has a centralising drift: 276. The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis‑à‑vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the Supreme Court of India should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States., In terms of the above discussion in the Constituent Assembly and the judgment of the Supreme Court of India, it is clear that the Constitution provides States with power to function independently within the area transcribed by the Constitution. The States are a regional entity within the federal model. The States, in exercise of their legislative power, satisfy the demands of their constituents and the regional aspirations of the people residing in that particular State. In that sense, the principles of federalism and democracy are interlinked and work together in synergy to secure to all citizens justice, liberty, equality and dignity and to promote fraternity among them. The people’s choice of government is linked with the capability of that government to make decisions for their welfare., The principles of democracy and federalism are essential features of our Constitution and form a part of the basic structure. Federalism in a multi‑cultural, multi‑religious, multi‑ethnic and multi‑linguistic country like India ensures the representation of diverse interests. It is a means to reconcile the desire of commonality along with the desire for autonomy and accommodate diverse needs in a pluralistic society. Recognising regional aspirations strengthens the unity of the country and embodies the spirit of democracy. Thus, in any federal Constitution, at a minimum, there is a dual polity, that is, two sets of government operate: one at the level of the national government and the second at the level of the regional federal units. These dual sets of government, elected by We the People in two separate electoral processes, is a dual manifestation of the public will. The priorities of these two sets of governments which manifest in a federal system are not just bound to be different, but are intended to be different., While the National Capital Territory of Delhi is not a full‑fledged state, its Legislative Assembly is constitutionally entrusted with the power to legislate upon the subjects in the State List and Concurrent List. It is not a State under the First Schedule to the Constitution, yet it is conferred with power to legislate upon subjects in Lists II and III to give effect to the aspirations of the people of the National Capital Territory of Delhi. It has a democratically elected government which is accountable to the people of the National Capital Territory of Delhi. Under the constitutional scheme envisaged in Article 239AA(3), the National Capital Territory of Delhi was given legislative power which though limited, in many aspects is similar to States. In that sense, with addition of Article 239AA, the Constitution created a federal model with the Union of India at the centre, and the National Capital Territory of Delhi at the regional level. This is the asymmetric federal model adopted for the National Capital Territory of Delhi. While the National Capital Territory of Delhi remains a Union Territory, the unique constitutional status conferred upon it makes it a federal entity for the purpose of understanding the relationship between the Union of India and the National Capital Territory of Delhi. The majority in the 2018 Constitution Bench judgment held that while the National Capital Territory of Delhi could not be accorded the status of a State, the concept of federalism would still be applicable to the National Capital Territory of Delhi: 122. We have dealt with the conceptual essentiality of federal cooperation as that has an affirmative role on the sustenance of constitutional philosophy. We may further add that though the authorities referred to hereinabove pertain to the Union of India and the State Governments in the constitutional sense of the term State, yet the concept has applicability to the National Capital Territory of Delhi regard being had to its special status and language employed in Article 239AA and other articles., Our model of federalism expects a sense of cooperation between the Union at the centre, and the regional constitutionally recognised democratic units. The spirit of cooperative federalism requires the two sets of democratic governments to iron out their differences that arise in the practice of governance and collaborate with each other. The Union and the National Capital Territory of Delhi need to cooperate in a similar manner to the Union and the States. Our interpretation of the Constitution must enhance the spirit of federalism and democracy together. This approach of interpretation is located in the 2018 Constitution Bench judgment, wherein the opinion of the majority held as follows: 284.7. Our Constitution contemplates a meaningful orchestration of federalism and democracy to put in place an egalitarian social order, a classical unity in a contemporaneous diversity and a pluralistic milieu in eventual cohesiveness without losing identity. Sincere attempts should be made to give full‑fledged effect to both these concepts., In the spirit of cooperative federalism, the Union of India must exercise its powers within the boundaries created by the Constitution. The National Capital Territory of Delhi, having a sui generis federal model, must be allowed to function in the domain charted for it by the Constitution. The Union and the National Capital Territory of Delhi share a unique federal relationship. It does not mean that the National Capital Territory of Delhi is subsumed in the unit of the Union merely because it is not a State. As the opinion of the majority in the 2018 Constitution Bench judgement held: Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of the National Capital Territory of Delhi some required degree of independence subject to the limitations imposed by the Constitution. The interpretation of Article 239AA(3)(a) in an expansive manner would further the basic structure of federalism., Article 239AA(3)(a) indicates that the Legislative Assembly of Delhi shall have the power to make laws for the whole or any part of the National Capital Territory of Delhi with respect to matters in the State List and the Concurrent List, except for entries 1, 2, and 18 of the State List, and entries 64, 65 and 66 insofar as they relate to the entries 1, 2, and 18. Therefore, the legislative power of the National Capital Territory of Delhi is limited to entries it is competent to legislate on., Article 239AA(3)(b) provides that Parliament can make laws with respect to any matter for a Union Territory or any part of it. Therefore, the legislative power of Parliament shall extend to all subjects in the State List and the Concurrent List in relation to the National Capital Territory of Delhi, besides, of course, the Union List. In case of a repugnancy between a law enacted by Parliament and a law made by the Legislative Assembly of the National Capital Territory of Delhi, the former shall prevail in terms of Article 239AA(3)(d)., The position that emerges from Article 239AA(3) is that the National Capital Territory of Delhi has legislative power over entries in List II with limits (as excluded by the provision) but Parliament’s legislative power extends to subjects in all three lists in relation to the National Capital Territory of Delhi. As noted previously, the scope of division of legislative and executive powers between the Union and the National Capital Territory of Delhi fell for consideration in the 2018 Constitution Bench judgment. Interpreting Article 239AA(4), the 2018 Constitution Bench judgment held that the executive power of the Government of the National Capital Territory of Delhi was co‑extensive with the legislative power of the National Capital Territory of Delhi., Article 73(1) of the Constitution stipulates that the executive power of the Union shall extend to matters with respect to which Parliament has the power to make laws. The proviso to Article 73(1) provides that the executive power of the Union shall not extend in any State to matters with respect to which the Legislature of the State also has power to make laws unless expressly provided in the Constitution or by a law made by Parliament: Article 73. Extent of executive power of the Union—(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws; Provided that the executive power referred in sub‑clause (a) shall not, save as expressly provided in this Constitution, or in any law made by Parliament, extend to any State to matters with respect to which the Legislature of the State has also power to make laws., Article 162 provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has the power to make laws. The proviso stipulates that with respect to matters which both the Legislature of a State and Parliament have legislative competence, the executive power of the State shall be limited by the Constitution or by any law made by Parliament: Article 162. Extent of executive power of State. Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof., A combined reading of Articles 73 and 162 indicates that the Union has exclusive executive power over entries in List I. The States have exclusive executive power over entries in List II. With respect to List III, that is, the Concurrent List, the Union shall have executive power only if provided by the Constitution or by a law of Parliament. The States shall have executive power over the entries in List III. However, if a Central legislation or a provision of the Constitution confers executive power to the Union with respect to a List III subject, then the executive power of the State shall be subject to such law or provision. The executive power of the Union in a State over matters on which both States and the Union of India can legislate (that is, the concurrent list) is limited to ensure that the governance of States is not taken over by the Union. This would completely abrogate the federal system of governance and the principle of representative democracy. It is with this objective in mind that the members of the Constituent Assembly thought it fit to limit the executive power of the Union in a State over matters on which the State also has legislative competence., The principle in Articles 73 and 162 would equally apply to the scope of executive power over matters which are within the legislative competence of both the Union and the Government of the National Capital Territory of Delhi. This is because the objective of the provisions is to limit the executive power of the Union in the territorial limits where there is an elected government of a federal unit., Both Parliament and the Legislature of the National Capital Territory of Delhi have legislative competence over List II and List III. For the purposes of the National Capital Territory of Delhi, both List II and List III are concurrent lists. Thus, the delimitation of executive power between Parliament and the Government of the National Capital Territory of Delhi with respect to entries in List II and List III are guided by these principles. Both Parliament and the legislature of the National Capital Territory of Delhi have the power to enact laws with respect to List II (subject to the caveat that entries 1, 2, and 18; and entries 64, 65, and 66 in as much as they relate to entries 1, 2, and 18 are carved out of the domain of the Legislative Assembly of the Government of the National Capital Territory of Delhi) and List III. The executive power of the National Capital Territory of Delhi shall extend to all entries in List II and List III, other than the entries expressly excluded in Article 239AA(3). Such power shall be subject to the executive power of the Union (through the Lieutenant Governor) only when the Union has been granted such power by the Constitution or a law of Parliament. Therefore, the executive power of the National Capital Territory of Delhi, in the absence of a law by Parliament, shall extend to all subjects on which it has power to legislate., It was held in the 2018 Constitution Bench judgment that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers under Article 239AA(4) while exercising executive powers in relation to matters falling within the legislative domain of the Legislative Assembly of the National Capital Territory of Delhi except where he exercises the limited route provided under the proviso to Article 239AA(4). This limited discretionary power under the proviso, as the Constitution Bench held, ought to be exercised in a careful manner in rare circumstances such as on matters of national interest and finance. The Lieutenant Governor could not refer every matter to the President. After analysing the provisions of Article 239AA(4), the Government of the National Capital Territory of Delhi Act 1991, and the applicable Transaction of Business Rules 1993, it was held by the majority that: 284.16. As a natural corollary, the Union of India has exclusive executive power with respect to the National Capital Territory of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of the National Capital Territory of Delhi. This, however, is subject to the proviso to Article 239AA(4) of the Constitution. 284.17. The meaning of aid and advice employed in Article 239AA(4) has to be construed to mean that the Lieutenant Governor of the National Capital Territory of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239AA. The Lieutenant Governor has not been entrusted with any independent decision‑making power. He has to either act on the aid and advice of the Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. 284.18. The words any matter employed in the proviso to clause (4) of Article 239AA cannot be inferred to mean every matter., In matters which fall outside the legislative powers of the National Capital Territory of Delhi, the doctrine of aid and advice does not apply. In those matters, the Government of the National Capital Territory of Delhi Act and the Transaction of Business Rules of the Government of the National Capital Territory of Delhi 1993 shall act as a guide for the exercise of power. Under Section 41 of the Government of the National Capital Territory of Delhi Act, the Lieutenant Governor may be required to act in his discretion in respect of which powers or functions have been delegated to him by the President under Article 239, or where he is required to act in his discretion under a specific provision of law or where he exercises judicial or quasi‑judicial functions. Section 41, dealing with the discretion of the Lieutenant Governor, provides that: 41. Matters in which Lieutenant Governor to act in his discretion. (1) The Lieutenant Governor shall act in his discretion in a matter (i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or (ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi‑judicial functions. (2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. (3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi‑judicial functions, the decision of the Lieutenant Governor thereon shall be final., Accordingly, the Lieutenant Governor may act in his discretion only in two classes of matters: firstly, where the matter deals with issues which are beyond the powers of the Legislative Assembly and where the President has delegated the powers and functions to the Lieutenant Governor in relation to such matter; and secondly, matters which by law require him to act in his discretion or where he is exercising judicial or quasi‑judicial functions., Section 44 of the Government of the National Capital Territory of Delhi Act confers the President the power to make rules regarding the allocation of business to Ministers wherein the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers. It also provides for rules to ensure convenient transaction of business with the Ministers, including the procedure to be adopted in case of a difference of opinion between the Lieutenant Governor and the Council of Ministers or a Minister. In exercise of the power under Section 44, the President framed the Transaction of Business Rules of the Government of the National Capital Territory of Delhi 1993. In his concurring opinion in the 2018 Constitution Bench judgment, Justice Chandrachud held that these Rules provide a mechanism to be followed in matters relating to the executive functions of the Government of the National Capital Territory of Delhi. It was held: 428. A significant aspect of the Rules is that on matters which fall within the ambit of the executive functions of the Government of the National Capital Territory of Delhi, decision‑making is by the Government comprised of the Council of Ministers with the Chief Minister at its head. Rule 24 deals with an eventuality when the Lieutenant Governor may be of the opinion that any further action should be taken or that action should be taken otherwise than in accordance with an order which has been passed by a Minister. In such a case, the Lieutenant Governor does not take his own decision. He has to refer the proposal or matter to the Council of Ministers for consideration. The Lieutenant Governor has not been conferred with the authority to take a decision independent of and at variance with the aid and advice which is tendered to him by the Council of Ministers. If he differs with the aid and advice, the Lieutenant Governor must refer the matter to the Union Government (after attempts at resolution with the Minister or Council of Ministers have not yielded a solution). After a decision of the President on a matter in difference is communicated, the Lieutenant Governor must abide by that decision. This principle governs those areas which properly lie within the ambit and purview of the executive functions assigned to the Government of the National Capital Territory of Delhi., The above interpretation indicates that in matters in the executive domain of the National Capital Territory of Delhi, it is the elected government of the National Capital Territory of Delhi which is empowered to take decisions. The Lieutenant Governor may request the Minister or the Council of Ministers to reconsider its decision. It is only if difference persists even after attempts at resolution that he may refer the matter to the President, and await the decision., Rule 45 of the Transaction of Business Rules also indicates that the Lieutenant Governor must act within the confines of clauses (3) and (4) of Article 239AA in exercising his executive functions, that is, he shall abide by the aid and advice of the Council of Ministers on matters in respect of which the National Capital Territory of Delhi has legislative power. Rule 45 provides: The Lieutenant Governor may by standing orders in writing, regulate the transaction and disposal of the business relating to his executive functions: Provided that the standing orders shall be consistent with the provisions of this Chapter, Chapter V and the instructions issued by the Central Government from time to time. Provided further that the Lieutenant Governor shall, in respect of matters connected with public order, police and land, exercise his executive functions to the extent delegated to him by the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under article 239 of the Constitution. Provided further that standing orders shall not be inconsistent with the rules concerning transaction of business., The Rule provides that the Lieutenant Governor may issue standing orders relating to his executive functions, which must be consistent with the Rules of Business as a whole. As an exception to the Rule, only in respect of matters connected with public order, police and land, which are matters outside the legislative domain of the National Capital Territory of Delhi under Article 239AA(3)(a), he may exercise his executive functions to the extent delegated to him by the President. The second part of this proviso further indicates that in matters outside the legislative domain of the National Capital Territory of Delhi, the Lieutenant Governor may be required to consult with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution. This Rule thus clarifies that the Lieutenant Governor may exercise his executive function in relation to matters outside the legislative purview of the National Capital Territory of Delhi only to the extent delegated to him by the President. As a matter of principle, in the discharge of executive functions within the domain of the National Capital Territory of Delhi, the Lieutenant Governor must abide by the aid and advice of the Council of Ministers in the manner indicated in the Rules. Rule 46 thus needs to be construed accordingly., Rule 46 deals with the power of the Lieutenant Governor with respect to persons serving in connection with the administration of the National Capital Territory of Delhi. Rule 46 provides that: 46. (1) With respect to persons serving in connection with the administration of the National Capital Territory, the Lieutenant Governor shall, exercise such powers and perform such functions as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such persons or by any other order of the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under Article 239 of the Constitution. (2) Notwithstanding anything contained in sub‑rule (1) the Lieutenant Governor shall consult the Union Public Service Commission on all matters on which the Commission is required to be consulted under clause (3) of Article 320 of the Constitution; and in every such case he shall not make any order otherwise than in accordance with the advice of the Union Public Services Commission unless authorised to do so by the Central Government. (3) All correspondence with the Union Public Service Commission and the Central Government regarding recruitment and conditions of service of persons serving in connection with the administration of the National Capital Territory shall be conducted by the Chief Secretary or Secretary of the Department concerned under the direction of the Lieutenant Governor., The Rule provides that the Lieutenant Governor shall exercise such powers and functions with respect to persons serving in the administration of the National Capital Territory of Delhi, as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such persons or by any other order of the President. The term administration in this Rule must be considered in the context of Article 239AA(3) and Section 41 of the Government of the National Capital Territory of Delhi Act. The executive administration by the Lieutenant Governor, in his discretion, can only extend to matters which fall outside the purview of the powers conferred on the Legislative Assembly but it extends to powers or functions entrusted or delegated to him by the President or in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi‑judicial functions. The term administration cannot be understood as the entire administration of the Government of the National Capital Territory of Delhi. Otherwise, the purpose of giving powers to a constitutionally recognised and democratically elected government would be diluted., Therefore, the phrase persons serving in connection with the administration of the National Capital Territory of Delhi in Rule 46 shall refer only to those persons, whose administration is linked with public order, police, and land which are subjects outside the domain of the National Capital Territory of Delhi., However, as noted in the concurring opinion of Justice Chandrachud in the 2018 Constitution Bench judgment, Section 49 of the Government of the National Capital Territory of Delhi Act confers an overriding power of general control to the President. According to Section 49, the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time to time be given by the President. The directions of the President are in accordance with the aid and advice of the Council of Ministers of the Union of India., Thus, the scope of the legislative and executive powers of the Union and the National Capital Territory of Delhi that has been discussed under this section is multi‑fold. Under Article 239AA(3)(a), the legislative power of the National Capital Territory of Delhi extends to all subjects under the State List and the Concurrent List, except the excluded entries. As the 2018 Constitution Bench judgment held, the executive power of the Government of the National Capital Territory of Delhi is co‑extensive with its legislative power. In other words, the executive power of the Government of the National Capital Territory of Delhi extends to all subjects on which its Legislative Assembly has power to legislate. The legislative power of the Union extends to all entries under the State List and Concurrent List, in addition to the Union List. The executive power of the Union, in the absence of a law upon it, executive power relating to any subject in the State List, shall cover only matters relating to the three entries which are excluded from the legislative domain of the National Capital Territory of Delhi. As a corollary, in the absence of a law or provision of the Constitution, the executive power of the Lieutenant Governor acting on behalf of the Union Government shall extend only to matters related to the three entries mentioned in Article 239AA(3)(a), subject to the limitations in Article 73. Furthermore, if the Lieutenant Governor differs with the Council of Ministers of the Government of the National Capital Territory of Delhi, he shall act in accordance with the procedure laid down in the Transaction of Business Rules. However, if Parliament enacts a law granting executive power on any subject which is within the domain of the National Capital Territory of Delhi, the executive power of the Lieutenant Governor shall be modified to the extent, as provided in that law. Furthermore, under Section 49 of the Government of the National Capital Territory of Delhi Act, the Lieutenant Governor and the Council of Ministers must comply with the particular directions issued by the President on specific occasions., Now, we turn to the present reference before us regarding the scope of the legislative and executive powers of the National Capital Territory of Delhi and the Union over services under Entry 41 of the State List. Based on the discussion in this section, the National Capital Territory of Delhi shall have legislative power to make laws on services. This is because services (that is, Entry 41) is not expressly excluded in Article 239AA(3)(a). As it has legislative power, it shall have executive power to control services within the National Capital Territory of Delhi. However, we will need to address the argument of the Union of India that the provisions of the Constitution exclude services from the legislative and executive control of the National Capital Territory of Delhi to form a conclusive opinion on the issue. The subsequent sections of this judgment deal with the above questions., Triple chain of accountability: Civil Servants in a Cabinet Form of Government. Before discussing the question regarding the applicability of Part XIV to the National Capital Territory of Delhi, it would be appropriate to discuss the principles which will guide our analysis on Part XIV. A discussion on the role of civil services in a Westminster style Cabinet Form of Government is necessary to understand the issues at stake., Civil services form an integral part of modern government. Professor Herman Finer, in his classic work titled The Theory and Practice of Modern Governance, states that the function of civil service in the modern state is not merely an improvement of government; for without it, indeed, government itself would be necessarily impossible. The efficacy of the State and the system of responsible government to a large part depend upon professionals, who embody the institution of a competent and independent civil service., The policies of the government are implemented not by the people, Parliament, the Cabinet, or even individual ministers, but by civil service officers. Elaborating on the indispensable position of civil services in a parliamentary system of government, D. D. Basu in his commentary on the Constitution of India states: A notable feature of the Parliamentary system of government is that while the policy of the administration is determined and laid down by ministers responsible to the Legislature, the policy is carried out and the administration of the country is actually run by a large body of officials who have no concern with politics., A Constitution Bench of the Supreme Court of India in Union of India v. Tulsiram Patel dwelt on the ubiquitous nature of the civil service and observed:
id_392	4	The concept of civil service is not new or of recent origin. Governments, whether monarchial, dictatorial or republican, have to function, and for carrying on the administration and the varied functions of the government a number of persons are required and have always been required, whether they are constituted in the form of a civil service or not. In the Indian Constitution, an entire Part, Part XIV, is dedicated to services, indicating the great significance which the members of the Constituent Assembly reposed in the civil service officers. During the Constituent Assembly Debates, the civil services were referred to as the soul of administration and it was said that the importance of the civil services cannot be gainsaid. Part XIV deals with services under the Union and the States. Chapter I comprising Articles 308 to 313 deals with services, and Chapter II comprising Articles 315 to 323 deals with Public Service Commissions for the Union and the States. The effectiveness of the elaborate provisions of Part XIV is to a large extent dependent upon the relationship between the ministers and civil service officers., In a democracy, accountability lies with the people who are the ultimate sovereign. The parliamentary form of government adopted in India requires that Parliament and the government, consisting of elected representatives, be accountable to the people. The Cabinet, consisting of elected representatives, is collectively responsible for the proper administration of the country and is answerable to the legislature for its actions. The Constitution confers the legislature the power to enact laws and the government to implement laws. The conduct of the government is periodically assessed by the electorate in elections conducted every five years. The government is formed with the support of a majority of elected members in the legislature. The government responsible to the legislature is assessed daily in the legislature through debates on Bills, questions raised during Question Hour, resolutions, debates and no‑confidence motions. The government is responsible for the decisions and policies of each of the ministers and of their departments. This creates a multi‑linked chain of accountability, where the legislature is accountable to the people who elected them, and the government is collectively responsible to the legislature. The Council of Ministers is accountable to both the legislature and to the electorate. Collective responsibility is an important component of parliamentary democracies., Civil servants are required to be politically neutral. The day‑to‑day decisions of the Council of Ministers are to be implemented by a neutral civil service, under the administrative control of the ministers. In order to ensure that the functioning of the government reflects the preferences of the elected ministers and, through them, the will of the people, it is essential to scrutinise the link of accountability between the civil service professionals and the elected ministers who oversee them. Since civil service officers constituting the permanent executive exercise considerable influence in modern welfare‑state democracies, effective accountability requires two transactions: one set of officials, such as the bureaucracy, who give an account of their activity to another set, such as legislators, who take due account and feed their own considered account back into the political system and, through that mechanism, to the people., In Secretary, Jaipur Development Authority v. Daulat Mal Jain, the Supreme Court of India held that an individual minister is answerable and accountable to the people for the acts done by the officials working under him. The Court observed that the government acts through its bureaucrats, who shape its social, economic and administrative policies to further social stability and progress. The Minister is responsible not only for his actions but also for the work of the bureaucrats who work or have worked under him. He owes responsibility to the electors for all actions taken in the name of the Governor in relation to the department of which he is the head, bearing both moral and actual responsibility for the actions of the bureaucrats who work under him., In the concurring opinion in the 2018 Constitution Bench decision, Justice D. Y. Chandrachud highlighted the intrinsic link between government accountability and the principle of collective responsibility. The judgment underscored the responsibility of an individual minister to the legislature for any and every action undertaken by public officials in the department which the minister oversees. Collective responsibility also exists in practice in situations where ministers have no knowledge of the actions taken by subordinate officers of their respective departments., Civil service officers are thus accountable to the ministers of the elected government under whom they function. Ministers are in turn accountable to Parliament or, as the case may be, the state legislatures. Under the Westminster parliamentary democracy, civil services constitute an important component of a triple chain of command that ensures democratic accountability. The triple chain of command is as follows: (a) civil service officers are accountable to Ministers; (b) Ministers are accountable to Parliament/Legislature; and (c) Parliament/Legislature is accountable to the electorate., An unaccountable and non‑responsive civil service may pose a serious problem of governance in a democracy. It creates the possibility that the permanent executive, consisting of unelected civil service officers who play a decisive role in the implementation of government policy, may act in ways that disregard the will of the electorate., Our Constitution is federal in character. In a federal polity, a fundamental question which arises is which authority the civil service officers should be accountable to., As discussed before, a paramount feature of a federal Constitution is the distribution of legislative and executive powers between the Union and the regional units. The essential character of Indian federalism is to place the nation as a whole under the control of a Union Government, while the regional or federal units are allowed to exercise their exclusive power within their legislative and extensive executive and administrative spheres., In a democratic form of government, the real power of administration must reside in the elected arm of the State, subject to the confines of the Constitution. A constitutionally entrenched and democratically elected government needs to have control over its administration. The administration comprises several public officers who are posted in the services of a particular government, irrespective of whether that government was involved in their recruitment. For instance, an officer recruited by a particular government may serve on deputation with another government. If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple‑chain of collective responsibility would become redundant. That is to say, if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is compromised. The principle of collective responsibility extends to the responsibility of officers, who in turn report to the ministers. If the officers stop reporting to the ministers or do not abide by their directions, the entire principle of collective responsibility is affected. A democratically elected government can perform only when there is an awareness on the part of officers of the consequences which may ensue if they do not perform. If the officers feel that they are insulated from the control of the elected government which they are serving, then they become unaccountable or may not show commitment towards their performance., We have already held that the relationship between the Union and the National Capital Territory of Delhi (NCTD) resembles an asymmetric federal model, where the latter exercises its legislative and executive control in specified areas of the State List and the Concurrent List. Article 239AA, which conferred a special status to the NCTD and constitutionally entrenched a representative form of government, was incorporated in the Constitution in the spirit of federalism, with the aim that the residents of the capital city must have a voice in how they are to be governed. It is the responsibility of the Government of NCTD to give expression to the will of the people of Delhi who elected it. Therefore, the ideal conclusion would be that the Government of NCTD ought to have control over services, subject to exclusion of subjects which are out of its legislative domain. If services are excluded from its legislative and executive domain, the ministers and the executive who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers who implement such executive decisions., In the backdrop of the above discussion on the necessity to provide control of services to the Government of NCTD, we consider the argument of the Union of India that Part XIV does not envisage services for Union Territories. The Union of India relied on the report of the Balakrishnan Committee, which led to the 1991 Constitution Amendment and the insertion of Article 239AA, to argue that services are not available to Union territories. The Statement of Objects and Reasons of the Amending Act referred to the Committee’s Report, noting that the question of reorganisation of the administrative set‑up in the Union Territory of Delhi had been under consideration of the Government for some time. The Committee, appointed on 24‑12‑1987, examined issues connected with the administration of Delhi, held discussions with various individuals, associations, political parties and experts, and considered arrangements in national capitals of other countries with a federal set‑up as well as the debates in the Constituent Assembly and earlier committee reports. After detailed inquiry, it recommended that Delhi should continue to be a Union Territory provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that, with a view to ensure stability and permanence, the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories., The Balakrishnan Committee specifically dealt with Entry 41 (relating to services) of the State List. Its report notes that Entry 41 is not available to Union Territories because (i) the entry only mentions State and not Union Territory; (ii) Part XIV of the Constitution only refers to services in connection with the affairs of the State and services in connection with the affairs of the Union; and (iii) administration of Union Territories is the responsibility of the Union and thus falls within the purview of affairs of the Union. The report states that there is no third category of services covering the services of Union territories; consequently, public services for the administration of any Union territory should form part of the public services in connection with the affairs of the Union., The Balakrishnan Committee opined that the setting up of a Legislative Assembly with a Council of Ministers will not disturb the position discussed above. By virtue of the provisions in the Constitution, services in connection with the administration of the Union Territory of Delhi will be part of the services of the Union even after the setting up of a Legislative Assembly with a Council of Ministers. The constitutional position is unexceptionable and should not be disturbed. However, there should be adequate delegation of powers to the Lieutenant Governor in respect of specified categories of services or posts. In performing his functions under such delegated powers the Lieutenant Governor will have to act in his discretion but there should be a convention of consultation, whenever possible, with the Chief Minister., The extracts from the Balakrishnan Committee Report were relied upon by Justice Bhushan in his 2019 split judgment to hold that the Legislative Assembly of the National Capital Territory of Delhi does not have the power to make laws under Entry 41 of List II., We do not agree with the reliance on the Balakrishnan Committee Report to rule out the scope of legislative power of the National Capital Territory of Delhi over Entry 41 (services). We reiterate the view expressed in the majority opinion of the 2018 Constitution Bench that there is no necessity to refer to the Report to interpret Article 239AA because the judgment authoritatively dealt with the scope of the said Article., Contrary to the suggestion in the report, the 2018 Constitution Bench judgment provided that the National Capital Territory of Delhi shall have legislative power over all subjects in List II, except the excluded subjects provided in Article 239AA(3)(c)., The Statement of Objects and Reasons can be referred to only for understanding the background, antecedent state of affairs, surrounding circumstances in relation to the amendment, and the purpose of the amendment. In RS Nayak v. A. R. Antulay, a Constitution Bench of the Supreme Court of India held that reports of a committee which preceded the enactment of legislation, reports of joint parliamentary committees, and reports of commissions set up for collecting information leading to the enactment are permissible external aids to construction. Thus, the report of the Balakrishnan Committee can be relied on by this Court to understand the intent behind the introduction of Article 239AA. However, this Court is not bound by the report of a committee to construe specific phrases. It is for this reason that the 2018 Constitution Bench construed the text of Article 239AA contextually with reference to the constitutional structure envisaged for the National Capital Territory of Delhi without relying on the Report of the Balakrishnan Committee., Moreover, the arguments made in the Balakrishnan Committee Report against the inclusion of services for the National Capital Territory of Delhi have been rejected by this Court. The argument that the use of the word 'State' in an entry leads by itself to that entry not being available to the legislature of a Union Territory was specifically rejected in the concurring opinion of Justice Chandrachud in the 2018 Constitution Bench. He observed that the expression 'as far as any such matter is applicable to Union Territories' cannot be construed to mean that the Legislative Assembly of the National Capital Territory would have no power to legislate on any subject in the State or Concurrent Lists merely by the use of the expression 'State' in that particular entry. The concurring opinion referred to Entries 38 and 40 of List II, which deal with salaries and allowances of members of the legislature and of ministers, respectively, and noted that Parliament did not construe the use of the word 'State' in an entry to exclude Union Territories., The conclusion of the Balakrishnan Report that Entry 41 of the State List of the Seventh Schedule is not available to Union Territories because the Constitution does not envisage a third category of services covering the services of Union territories is contrary to the judgment of this Court in Prem Kumar Jain, which had upheld services for the National Capital Territory of Delhi. The judgment in Prem Kumar Jain was rendered prior to the Balakrishnan Committee Report of December 1989 and the Committee did not refer to the said judgment. Thus, the report of the Balakrishnan Committee cannot be relied upon to determine whether services are available to the National Capital Territory of Delhi., The Union of India has submitted that the National Capital Territory of Delhi does not have legislative competence over Entry 41 of List II because Part XIV of the Constitution does not contemplate any services for Union Territories. It has been argued that the legislative power of the National Capital Territory of Delhi can be restricted if Part XIV does not contemplate services to Union Territories since Article 239AA begins with the phrase 'Subject to the provisions of the Constitution'., It needs to be seen if the phrase 'State' in Part XIV of the Constitution includes Union Territory. Article 308 provides the definition of State for Part XIV. Article 308, as it stood prior to the Constitution (Seventh Amendment) Act 1956, provided: 'In this part, unless the context otherwise requires, the expression State means a State specified in Part A or Part B of the First Schedule.', The States Reorganisation Act 1956 and the consequential 1956 amendment altered the provisions of the First Schedule. Prior to the amendment, States were divided into three categories as specified in Parts A, B and C of the First Schedule. By the Seventh Amendment, Article 308 was amended and State for the purposes of Part XIV was defined as follows: 'In this Part, unless the context otherwise requires, the expression \State\ does not include the State of Jammu and Kashmir.', In terms of unamended Article 308, the definition of State included Part A and Part B states of the First Schedule and did not include Part C states, since they were administered by the Union. After the 1956 Constitutional Amendment, Article 308 provides an exclusionary definition of State by only excluding the State of Jammu and Kashmir. Article 308 does not provide any clarity on whether State includes Union Territories for the purposes of Part XIV. Article 366 defines State with reference to Articles 246‑A, 268‑A and Article 279‑A to include a Union Territory with Legislature, but Article 366 does not apply for the interpretation of any provisions in Part XIV. Thus, we must fall back on Article 367. Article 367 stipulates that unless the context otherwise requires, the General Clauses Act shall apply for the interpretation of the Constitution. Section 3(58) of the General Clauses Act defines State to mean a State specified in the First Schedule and includes a Union Territory., The Government of NCTD contends that this Court in Prem Kumar Jain expressly sanctified the existence of services of a Union Territory by holding that the definition of State would include Union territories for the purpose of Article 312 of the Constitution. The Union has argued that the decision in Prem Kumar Jain was limited to the purpose of the Indian Administrative Service (Cadre) Rules 1954 read with the All‑India Services Act 1951. Furthermore, it was argued that the reference to Article 312 made therein was without any reference to the import of Article 308. It is the contention of the Union that interpreting the ratio of Prem Kumar Jain in a broad sense would cause violence to the machinery envisaged in Part XIV of the Constitution., In Prem Kumar Jain, the judgment of the High Court of Delhi setting aside the establishment of a joint cadre exclusively for the Union Territories in the Indian Administrative Service was challenged. Article 312 stipulates that Parliament may by law create All‑India Services common to the Union and the States. A joint cadre of all the Union Territories was created under Rule 3(1) of the Indian Administrative Service (Cadre) Rules 1954. The creation of the new joint cadre was challenged on the ground that it was contrary to Article 312 of the Constitution and the All‑India Services Act 1951. It was argued that Article 312 does not contemplate an All‑India service common to Union territories because the term 'State' in the 1954 Cadre Rules does not include Union territories. The definition of State under Rule 2(c) of the 1954 Cadre Rules, which provides that a State means a State specified in the First Schedule to the Constitution and includes a Union Territory, was also challenged., The High Court held that Union territories could not be said to be States, and held the definition of State under Rule 2(c) of the Cadre Rules to be ultra vires the Constitution and the All‑India Services Act 1951. The High Court held that Union territories were not States for the purpose of Part XIV of the Constitution, in view of the definition of State in Article 308, which did not include Part C states before its amendment. The High Court reasoned that Union territories are successors of Part C States, and accordingly Union territories were excluded from the definition of State in Part XIV. The High Court declined to place any reliance on the definition of the word State in Section 3(58)(b) of the General Clauses Act, as amended in 1956. The High Court reasoned that only the adaptations made in the General Clauses Act under Article 372(2) applied to the interpretation of the Constitution in view of Article 367(1), and accordingly the adaptations made later, by Article 372A, were inapplicable., The Supreme Court of India set aside the judgment of the High Court of Delhi. Firstly, this Court held that in view of the amended definition of the expression State under Section 3(58) of the General Clauses Act, as adapted by the Adaptation of Laws Order 1956, there was nothing repugnant to the subject or context to make that definition inapplicable to Part XIV of the Constitution. This Court reasoned that Article 372A was incorporated in the Constitution since Parliament felt the necessity of giving a power akin to Article 372 to the President for the purpose of bringing the provisions of any law in force immediately before the commencement of the 1956 Constitution Amendment in accordance with the provisions of the Constitution, as amended by the 1956 Constitution Amendment. This Court relied on Advance Insurance (supra) to hold that Article 372A gave a fresh power to the President which was equal and analogous to the power under Article 372(2). The Court held that, as from 1 November 1956, when the Constitution (Seventh Amendment) Act, 1956, came into force, the President had the power to adapt the laws for the purpose of bringing the provisions of any law in force in India into accord with the provisions of the Constitution. It was under that power that the President issued the Adaptation of Laws (No. 1) Order, 1956, which substituted a new clause (58) in Section 3 of the General Clauses Act providing, inter alia, that the expression State shall, as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956, mean a State specified in the First Schedule to the Constitution and shall include a Union Territory. It cannot be said with any justification that there was anything repugnant in the subject or context to make that definition inapplicable., In Prem Kumar Jain, this Court did not find anything repugnant to the subject or context of Part XIV of the Constitution or to Article 312 specifically to make the definition of State in terms of amended Section 3(58)(b) of the General Clauses Act inapplicable. Hence, the expression State as occurring in Part XIV was held to include Union Territories.
id_392	5	In the preceding section of this judgment, we have approved the decision in Advance Insurance (supra) and held that the definition of State in Section 3(58) of the General Clauses Act as amended by Adaptation of Laws (No. 1) Order, 1956 must be applied for the interpretation of the Constitution unless the context otherwise requires. The definition provided in the definition clause article should be applied and given effect for the purposes of the relevant Part of the Constitution. However, when the definition clause is preceded by the phrase unless the context otherwise requires, there may be a need to depart from the normal rule if there is something in the context in which such expression occurs to show that the definition should not be applied. Section 3(58) of the General Clauses Act, by virtue of Article 367(1) of the Constitution, applies to the construction of the expression State in the Constitution, unless there is something repugnant in the subject or context of a particular provision of the Constitution. The burden is on the party opposing the application of the definition under the General Clauses Act to the interpretation of a constitutional provision to prove that the context requires otherwise., The Union of India has been unable to suggest that the context of Part XIV suggests otherwise. There is nothing in the subject or context of Part XIV of the Constitution, such as SK Gupta v. KP Jain (1979) 3 SCC 54; Ichchapur Industrial Coop. Society Ltd. v. Competent Authority, Oil & Natural Gas Commission (1997) 2 SCC 42; Ratnaprova Devi v. State of Orissa (1964) 6 SCR 301, which would exclude its application to Union territories. Rather, the application of the inclusive definition of State as provided under Clause 3(58) would render the constitutional scheme envisaged for Union Territories workable., The Union of India has argued that services for a Union Territory are not contemplated in Part XIV of the Constitution because of the conscious omissions by the 1956 Constitution Amendment in Part XI V. There are two prongs to this argument: the words Part A States and Part B States in Article 308 were substituted by the word State, simpliciter, instead of States and Union territories; and while the term Raj Pramukh was omitted in different Articles in Part XIV, the term Administrator was not added. Under erstwhile Article 239, the President occupied in regard to Part C States a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States. Unamended Article 239 envisaged the administration of Part C States by the President through a Chief Commissioner or a Lieutenant Governor to be appointed by them or through the Government of a neighbouring State. The 1956 Constitution amendment was adopted to implement the provisions of the States Re‑organization Act 1956. The Seventh Amendment abrogated the constitutional distinction between Part A, B and C States, and abolished the institution of the Rajpramukh on the abrogation of Part B States. In terms of Section 29 of the 1956 Constitution amendment, Parliament provided for consequential and minor amendments and repeals in the Constitution as directed in the Schedule. One of the amendments made in terms of the Schedule was to omit the phrase Part A or Part B of the First Schedule, and Rajpramukh, as occurring in the Constitution. It is necessary to note that the expressions Part A, Part B and Rajpramukh were not necessarily substituted by another expression by Parliament. Article 239 as it was amended by the 1956 Constitution Amendment states that subject to any law enacted by Parliament every Union Territory shall be administered by the President acting through an Administrator appointed by them with such designation as they may specify. It is relevant to note that the term administrator, at the time of the amendment, was not added to any provision of the Constitution other than Article 239. Even within Article 239, the provision did not use the term administrator as a designation. Instead, Article 239 provides that: (239) Administration of Union Territories (1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers., It is further important to note that Articles 239A and 239AA were inserted much later after the 1956 Constitution Amendment. In 1962, Article 239A was inserted through the Constitution (Fourteenth Amendment) Act 1962, which gives discretion to Parliament to create by law local legislatures or a Council of Ministers or both for certain Union Territories. In 1991, Article 239AA was inserted through the 1991 Constitution Amendment to accord the National Capital Territory of Delhi a sui generis status from the other Union Territories, including the Union Territories to which Article 239A applies. Parliament could not have envisaged when the 1956 Constitution Amendment was adopted that Union Territories would have been accorded diverse governance models. Therefore, the argument of the Union on legislative intent by drawing upon the omissions in the Seventh Amendment is not persuasive., It is not in contention that presently a Public Service Commission for the National Capital Territory of Delhi does not exist. However, the existence of power and the exercise of the power are two different conceptions, and should not be conflated. It is settled law that whether a power exists cannot be derived from whether and how often it has been exercised., In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh, the Supreme Court of India rejected the argument that the power to enact a law under Entry 42 of the Concurrent List was a power coupled with a duty. It was held that the Legislature does not have an obligation to enact a law in exercise of its power under the Seventh Schedule: It was further contended that the power to make a law under entry 42 of List III was a power coupled with a duty, because such law was obviously intended for the benefit of the expropriated owners, and where the Legislature has authorised such expropriation, it was also bound to exercise the power of making a law laying down the principles on which such owners should be compensated for their loss. While certain powers may be granted in order to be exercised in favour of certain persons who are intended to be benefited by their exercise, and on that account may well be regarded as coupled with a duty to exercise them when an appropriate occasion for their exercise arises, the power granted to a legislature to make a law with respect to any matter cannot be brought under that category. It cannot possibly have been intended that the legislature should be under an obligation to make a law in exercise of that power, for no obligation of that kind can be enforced by the court against a legislative body., Similarly, in State of Haryana v. Chanan Mal, while upholding the constitutional validity of the Haryana Minerals (Vesting of Rights) Act, 1973, after noticing the declaration made in Section 2 of the Mines and Minerals (Regulation and Development) Act, 1957, as envisaged by Entry 54 of the Union List, it was held that exercise and existence of power cannot be conflated: In the two cases discussed above no provision of the Central Act 67 of 1957 was under consideration by this Court. Moreover, power to acquire for purposes of development and regulation has not been exercised by Act 67 of 1957. The existence of power of Parliament to legislate on this topic as an incident of exercise of legislative power on another subject is one thing. Its actual exercise is another. It is difficult to see how the field of acquisition could become occupied by a Central Act in the same way as it had been in the West Bengal case even before Parliament legislates to acquire land in a State. At least until Parliament has so legislated as it was shown to have done by the statute considered by this Court in the case from West Bengal, the field is free for State legislation falling under the express provisions of entry 42 of List III., Article 309 of the Constitution provides for recruitment and conditions of service of persons serving the Union or a State. In terms of Article 309, subject to the provisions of the Constitution, an appropriate legislature may enact legislation to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with affairs of the Union or any State. The legislative field indicated in this provision is the same as indicated in Entry 71 of the Union List or Entry 41 of the State List of the Seventh Schedule. In terms of the proviso to Article 309, the President for the Union of India or the Governor of the State respectively, or such person as they may direct, have the power to make similar rules as a stopgap arrangement until provisions in that behalf are made by the appropriate legislature. The proviso to Article 309 is only a transitional provision, as the power under the proviso can be exercised only so long as the appropriate legislature does not enact legislation for recruitment to public posts and other conditions of service relating to that post. If an appropriate legislature has enacted a law under Article 309, the rules framed under the proviso would be subject to that Act. Article 309 provides that: Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act., The rule‑making function under the proviso to Article 309 is transitional. The President with respect to the posts in connection with the affairs of the Union, and the Governor in connection with the affairs of a State shall have the power to make rules under the proviso only until a statute is enacted in this connection. Any rule that is made by the President or the Governor shall be subject to the provisions of any such Act made by the appropriate legislature. The exercise of power by the President and the Governor under Article 309 does not in any way restrict the power that is otherwise available under Article 309. The exercise of rule‑making power by the President under Article 309 does not substitute the legislative power granted., In Tulsiram Patel (supra), a Constitution Bench of the Supreme Court of India held that the appropriate legislature to enact laws under Article 309 would depend upon the provisions of the Constitution with respect to legislative competence and the division of powers. This Court further held that the rules framed by the President or the Governor under Article 309 must conform with a statute enacted in exercise of power under Entry 70 of List I and Entry 41 of List II: Which would be the appropriate Legislature to enact laws or the appropriate authority to frame rules would depend upon the provisions of the Constitution with respect to legislative competence and the division of legislative powers. Thus, for instance, under Entry 70 in List I of the Seventh Schedule to the Constitution, Union Public Services, all‑India Services and Union Public Service Commission are subjects which fall within the exclusive legislative field of Parliament, while under Entry 41 in List II of the Seventh Schedule to the Constitution, State public services and State Public Service Commission fall within the exclusive legislative field of the State Legislatures. The rules framed by the President or the Governor of a State must also, therefore, conform to these legislative powers., The above discussion demonstrates that even if the President has made relevant rules in exercise of his power under the proviso to Article 309, the power of the National Capital Territory of Delhi to legislate on services is not excluded. In view of the above reasons, we hold that Part XIV is applicable to Union territories as well., It has been argued on behalf of the National Capital Territory of Delhi that numerous laws have been enacted by the Legislative Assembly of Delhi relating to creation of posts and terms and conditions of service. Reliance was placed upon different state services, such as the Delhi Fire Services under the Delhi Fire Service Act 2007, Delhi Commission for Safai Karamcharis Act 2006, Delhi Minorities Commission Act 1999, Delhi Finance Commission Act 1994, Delhi Lokayukta and UpaLokayukta Act 1995, Delhi Commission for Women Act 1994, and Delhi Electricity Reform Act 2001. It was argued that these statutes, which inter alia create posts and details of salary, were enacted in exercise of the subject referable to Entry 41 of the State List., However, Justice Ashok Bhushan in the 2019 split verdict rejected this argument related to the Delhi Fire Service Act 2007, as he held that the statute falls under Entry 5 of the State List and not under Entry 41 of the State List. Justice Bhushan held: We may first notice that the word services used in the Act has been used in a manner of providing services for fire prevention and fire safety measures. The word services has not been used in a sense of constitution of a service. It is to be noted that fire service is a municipal function performed by local authority. Delhi Municipal Council Act 1957 contains various provisions dealing with prevention of fire etc. Further fire services is a municipal function falling within the domain of municipalities, which has been recognised in the Constitution of India. Article 243(W) of the Constitution deals with functions of the municipalities in relation to matters listed in the 12th Schedule. Entry 7 of the 12th Schedule provides for Fire Services as one of the functions of the municipalities. The nature of the enactment and the provisions clearly indicate that the Delhi Fire Services Act falls under Entry 5 of List II and not under Entry 41 of List II., Article 243W of the Constitution read with Entry 7 of the Twelfth Schedule provides that the legislature of a state may, by law, endow on the municipalities responsibilities with respect to fire services. Under Entry 5 of List II, an appropriate legislature may enact a law related to local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self‑government or village administration., The test to determine whether a legislation creates a service under Entry 41 has been laid down by this Court. In the Constitution Bench judgment in State of Gujarat v. Raman Law Keshav Lal, while holding that Panchayat Service contemplated under Section 203(1) of the Gujarat Panchayats Act 1961 was a State civil service, it was held that the administration of a service under a State broadly involves the following functions: the organisation of the Civil Service and the determination of the remuneration, conditions of service, expenses and allowances of persons serving in it; the manner of admitting persons to the civil service; exercise of disciplinary control over members of the service and power to transfer, suspend, remove or dismiss them in public interest as and when occasion to do so arises., Thus, to determine whether the power to enact legislation is traceable to Entry 41 of the State List, it is necessary to examine whether that legislation contains provisions regulating the recruitment, conditions of service, and exercise of control including power to transfer and suspend. It is with this approach in mind that we need to examine the Delhi Fire Service Act 2007., The Delhi Fire Service Act 2007 was enacted by the Legislative Assembly of the National Capital Territory of Delhi to provide for maintenance of a fire service and to make more effective provisions for fire safety prevention and fire safety measures in certain buildings and premises in the National Capital Territory of Delhi and the matters connected therewith. The Act is a comprehensive Act which replaced three legislations or, as the case may be, rules which operated in the United Provinces: the United Provinces Fire Safety Act 1944, as extended to Delhi; the Delhi Fire Service (Subordinate Services) Rules 1945 framed under Section 241(1)(b) and Section 241(2)(b) of the Government of India Act; and the Delhi Fire Prevention and Fire Safety Act 1986. The Act, which was enacted by Parliament, focused on making effective provisions for fire prevention and fire safety measures in the Union Territory of Delhi. It did not contain any provision related to maintenance of a fire service., The purpose of the Delhi Fire Service Act 2007 is to provide for maintenance of a fire service. Section 2(l) defines Fire Service to mean the Delhi Fire Service constituted under Section 5 of the Act. Section 5 stipulates the constitution of a fire service. In terms of Section 5(a), the Fire Service shall consist of such numbers in several ranks and have such organization and such powers, functions and duties as the Government may determine. In terms of Section 5(b), the recruitment to, and the pay, allowances and all other conditions of service of the members of the Fire Service shall be such as may be prescribed. Section 3 stipulates that there would be one fire service for the whole of Delhi and all officers and subordinate ranks of the fire service shall be liable for posting to any branch of the Fire Service. Chapter II of the Act provides for the organization, superintendence, control and maintenance of the fire service. Chapter III provides for the control and discipline of the fire service., The Delhi Fire Service is constituted under the Delhi Fire Service Act 2007, enacted by the Legislative Assembly of the National Capital Territory of Delhi. Provisions relating to administration, recruitment and conditions of service have been provided in the framework of the Act. In terms of Section 4, the superintendence of, and control over, the Fire Service vests in the Government, as defined in the Act. Section 6 provides for the classification of posts of the Fire Service into Group A, B, C and D posts. Section 7 stipulates that the Government shall make appointments to any Group A or Group B posts after consultation with the Union Public Service Commission. Section 8 stipulates the appointment of a Director of the Delhi Fire Service for the direction and supervision of the Fire Service in Delhi. Section 14 stipulates that the Central Civil Services (Conduct) Rules 1964 and the Central Civil Services (Classification, Control and Appeals) Rules 1965 and the Central Civil Services (Pension) Rules 1972, as amended, shall be extended mutatis mutandis to all employees of the Delhi Fire Service., Furthermore, under the powers conferred by Section 63 of the Act, the Lieutenant Governor has notified the Delhi Fire Service Rules 2019, regulating the establishment, organization, and management of the Services. Rule 9 provides that the recruitment to various ranks in the Fire Service shall be made in accordance with the recruitment rules notified by the Government. Rule 10 provides that the pay and allowances for various ranks in the Fire Service shall be in accordance with the recommendations of the Pay Commission or any other authority as may be appointed by the Government., On an analysis of the provisions of the Delhi Fire Service Act 2007 and the Rules of 2019, it is clear that the statute includes posts, their recruitment process, salary and allowance, disciplinary power and control, all of which are constituents of a service under Entry 41 of the State List, as held in Raman Law Keshav Lal. Thus, the Delhi Fire Service Act 2007 was enacted by the Legislative Assembly of the National Capital Territory of Delhi in exercise of its power under Entry 41 of the State List., The National Capital Territory of Delhi has already exercised its legislative power relating to Entry 41 of the State List. However, the contours of services are very broad, and may be related to public order, police, and land which are outside the legislative domain and executive domain of the National Capital Territory of Delhi. The question that then emerges is what services are within the domain of the National Capital Territory of Delhi., Now that we have held that the National Capital Territory of Delhi has legislative and executive power with respect to services under Entry 41, a natural question that arises is as to the extent of control of the National Capital Territory of Delhi over services. The distinction must be drawn keeping in mind the ambit of legislative and executive power conferred upon the National Capital Territory of Delhi by the Constitution, and the principles of constitutional governance for the National Capital Territory of Delhi laid down in the 2018 Constitution Bench judgment., This Court has laid down that the scope of an Entry in the Seventh Schedule needs to be read widely. In I.K. Saksena v. State of Madhya Pradesh, a four‑judge Bench of the Supreme Court of India held that the entries in Schedule VII have to be read in their widest possible amplitude. The Bench held that the area of legislative competence defined by Entry 41 is far more comprehensive than that covered by Article 309: It is well settled that the entries in these legislative lists in Schedule VII are to be construed in their widest possible amplitude, and each general word used in such entries must be held to comprehend ancillary or subsidiary matters. Thus considered, it is clear that the scope of Entry 41 is wider than the matter of regulating the recruitment and conditions of service of public servants under Article 309. The area of legislative competence defined by Entry 41 is far more comprehensive than that covered by the proviso to Article 309., But, in our context, we may not be able to read Entry 41 in relation to the National Capital Territory of Delhi in the widest possible sense because all entries in List II (including Entry 41) need to be harmonized with the limitation laid down in Article 239AA(3)(a) on the National Capital Territory of Delhi’s legislative and executive power by excluding matters related to public order, police, and land., The legislative and executive power of the National Capital Territory of Delhi over Entry 41 shall not extend to services related to public order, police, and land. However, legislative and executive power over services such as the Indian Administrative Service, or Joint Cadre services, which are relevant for the implementation of policies and vision of the National Capital Territory of Delhi in terms of day‑to‑day administration of the region shall lie with the National Capital Territory of Delhi. Officers thereunder may be serving in the National Capital Territory of Delhi, even if they were not recruited by the National Capital Territory of Delhi. In such a scenario, it would be relevant to refer, as an example, to some of the Rules, which clearly demarcate the control of All India or Joint‑Cadre services between the Union and the States. The National Capital Territory of Delhi, similar to other States, also represents the representative form of government. The involvement of the Union of India in the administration of the National Capital Territory of Delhi is limited by constitutional provisions, and any further expansion would be contrary to the constitutional scheme of governance. We shall take the example of the Indian Administrative Service (Cadre) Rules 1954, which deal with the posting of IAS Officers. Rule 2(a) defines cadre officer to mean a member of the IAS. Rule 2(b) defines Cadre post as any post specified under item I of each cadre in the schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955. Rule 2(c) defines State to mean a State specified in the First Schedule of the Constitution and includes a Union Territory. Rule 2(d) defines State Government concerned, in relation to a Joint cadre, to mean the Joint Cadre Authority. The constitution and composition of a Joint Cadre Authority is understood with reference to the All India Services (Joint Cadre) Rules 1972. The 1972 Rules apply to a Joint Cadre constituted for any group of States other than the Joint Cadre of Union Territories. Rule 3 of the IAS (Cadre) Rules 1954 provides for the constitution of cadres for each State or group of States as a State Cadre or, as the case may be, a Joint Cadre. Rule 5 empowers the Central Government to allocate cadre officers to various cadres. In terms of Rule 5(1), the allocation of cadre officers to the various cadres shall be made by the Central Government in consultation with the State Government or the State Government concerned. Rule 7 stipulates that all appointments to cadre posts shall be made on the recommendation of the Civil Services Board by the State Government in the case of a state cadre, and by the State Government concerned, as defined in Rule 2(d), in the case of a joint cadre. Under Rule 11A, the Government of that State is provided with powers to take decisions under Rule 7 in relation to the members of the Joint Cadre Service serving in connection with the affairs of any of the Constituent States. A combined reading of Rules 2, 7, and 11A indicates that the postings within the State Cadre as well as Joint Cadre of a Constituent State shall be made by the Government of that State, that is, by the duly elected government. In our case, it shall be the Government of the National Capital Territory of Delhi.
id_392	6	We accordingly hold that references to State Government in relevant Rules of All India Services or Joint Cadre Services, of which the National Capital Territory of Delhi is a part or which are in relation to the National Capital Territory of Delhi, shall mean the Government of the National Capital Territory of Delhi. We reiterate that in light of Article 239AA and the 2018 Constitution Bench judgment, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of the National Capital Territory of Delhi in relation to matters within the legislative scope of the National Capital Territory of Delhi. As we have held that the National Capital Territory of Delhi has legislative power over services (excluding public order, police, and land) under Entry 41 in List II, the Lieutenant Governor shall be bound by the decisions of the Government of the National Capital Territory of Delhi on services, as explained above. To clarify, any reference to Lieutenant Governor over services (excluding services related to public order, police and land) in relevant Rules shall mean Lieutenant Governor acting on behalf of the Government of the National Capital Territory of Delhi., The division of administrative powers between the Union and the National Capital Territory of Delhi as explained in this section must be respected. Conclusion. In view of the discussion above, the following are our conclusions: a. There does not exist a homogeneous class of Union Territories with similar governance structures; b. The National Capital Territory of Delhi is not similar to other Union Territories. By virtue of Article 239AA, the National Capital Territory of Delhi is accorded a sui generis status, setting it apart from other Union Territories; c. The Legislative Assembly of the National Capital Territory of Delhi has competence over entries in List II and List III except for the expressly excluded entries of List II. In addition to the entries in List I, Parliament has legislative competence over all matters in List II and List III in relation to the National Capital Territory of Delhi, including the entries which have been kept out of the legislative domain of the National Capital Territory of Delhi by virtue of Article 239AA(3)(a); d. The executive power of the National Capital Territory of Delhi is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate; e. The Union of India has executive power only over the three entries in List II over which the National Capital Territory of Delhi does not have legislative competence; f. The executive power of the National Capital Territory of Delhi with respect to entries in List II and List III shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament; g. The phrase insofar as any such matter is applicable to Union Territories in Article 239AA(3) cannot be read to further exclude the legislative power of the National Capital Territory of Delhi over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded; h. With reference to the phrase “Subject to the provisions of this Constitution” in Article 239AA(3), the legislative power of the National Capital Territory of Delhi is to be guided, and not just limited, by the broader principles and provisions of the Constitution; and i. The National Capital Territory of Delhi has legislative and executive power over services, that is, Entry 41 of List II of the Seventh Schedule because: (I) The definition of State under Section 3(58) of the General Clauses Act 1897 applies to the term State in Part XIV of the Constitution. Thus, Part XIV is applicable to Union territories; and (II) The exercise of rule‑making power under the proviso to Article 309 does not oust the legislative power of the appropriate authority to make laws over Entry 41 of the State List., We have answered the issue referred to this Constitution Bench by the order dated 6 May 2022. The Registry shall place the papers of this appeal before the Regular Bench for disposal after obtaining the directions of the Chief Justice of India on the administrative side.
id_393	0	Santosh Anil Vasantrao Deshmukh, aged 70 years, Occupation: Agricultural & Social Service, having his address at Dnyaneshwar Bungalow, Malabar Hill, Mumbai 400006, is the petitioner. The respondents are: 1. The State of Maharashtra (through the Secretary, Home Department, Madam Cama Road, Mumbai 400032). 2. Central Bureau of Investigation, through Anti Corruption V, Plot No.5B, First Floor, CGO Complex, Lodhi Road, New Delhi 110003. 3. Dr. Jayshree Patil, adult, Occupation: Advocate, residing at 1601, Crystal Tower, Parel, T. T. Parel (East), Mumbai 400012. Mr. Amit Desai, Senior Advocate, as well as Mr. Kamlesh Ghumre, Mr. Prashant Pawar, Mr. Gopal Shenoy, Mr. Bhadresh Raju, Mr. Abhieet Sawant, Mr. Unmesh Breed, Mr. Anand Dagai, in behalf of Ms. Sonali Jadhav as well as Ms. Dipti Bhat, for the petitioner. Mr. Rafi Dada, Senior Counsel, as well as Mr. Darius Khambata, Senior Counsel, Mr. Deepak Thakre, Public Prosecutor, Mr. Akshay Shinde, Mr. Phiroz Mehta and Mr. Tushar Hathiramani, for the State (Respondent No.1). Aditya Thakkar and Mr. D. P. Singh, for the CBI (Respondent No.2). Dr. Jayshree Patil, Respondent No.3, present in person., The matter was made returnable forthwith and, with the consent of the counsels for the parties, was heard finally., The petitioner, who is the former Home Minister of the State of Maharashtra, has preferred this petition under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973, for a writ, direction or order to quash and/or set aside the First Information Report (FIR) bearing RC No. 2232021A0003, dated 21st April 2021, registered by the Central Bureau of Investigation (CBI) – Respondent No.2, and all the consequent proceedings initiated pursuant to the said FIR. The aforesaid FIR was registered consequent to a preliminary inquiry ordered by a Division Bench of the Bombay High Court by order dated 5th April 2021, in Writ Petition No. 1541 of 2021, filed by Dr. Jayshree Patil, Respondent No.3, in person., To begin with, it may be appropriate to briefly note the circumstances in which the order dated 5th April 2021, directing a preliminary inquiry, was passed. (a) The genesis is an FIR bearing CR No. 35 of 2021, registered with Gamdevi Police Station, in connection with an occurrence wherein a gelatin‑laden SUV was found near the residence of an industrialist. Eventually, the National Investigation Agency (NIA) took over the investigation. The investigation allegedly revealed the complicity of Mr. Sachin Vaze, the then Assistant Police Inspector attached to the Crime Investigation Unit of the Crime Branch, Mumbai, and he was arrested. In the wake of the controversy, Mr. Param Bir Singh, the then Commissioner of Police, was transferred as Commandant General, Home Guards, Maharashtra, by an order dated 17th March 2021. (b) The petitioner, who was then holding the office of Home Minister, alleges that, in retaliation to the transfer, Mr. Param Bir Singh addressed a letter dated 20th March 2021 to the Hon’ble Chief Minister, making wild, malafide and unjustified allegations. As the letter entered the public domain, Respondent No.3 lodged a complaint with Malabar Hill Police Station annexing a copy of the letter addressed by Mr. Param Bir Singh., Mr. Param Bir Singh filed a Writ Petition (Civil) No. 385 of 2021 before the Supreme Court seeking, inter alia, a direction to the Central Bureau of Investigation to conduct an impartial, unbiased and fair investigation into the various corrupt malpractices of the petitioner. The petition was withdrawn with liberty to approach the High Court. Public Interest Litigation (PIL) Petition No. 6 of 2021 (Param Bir Singh son of Hoshiyar Singh vs. The State of Maharashtra & others) was filed by Mr. Param Bir Singh for the aforesaid relief. In addition, a direction was sought against the State of Maharashtra to ensure that transfer and posting of police officials are neither done on any consideration of pecuniary benefits to any politician nor in contravention of the direction of the High Court in Prakash Singh & others vs. Union of India & others. Dr. Jayshree Patil, Respondent No.3, preferred Writ Petition No. 1541 of 2021, again seeking an unbiased, uninfluenced, impartial and fair investigation into various corrupt malpractices of the petitioner and others named in her complaint. Mr. Ghanshyam Upadhyaya preferred a PIL, Criminal Public Interest Litigation (ST) No. 6072 of 2021, for a thorough investigation. All these petitions, along with Criminal Public Interest Litigation (ST) No. 6166 of 2021, filed by Mr. Mohan Prabhakar Bhide seeking appointment of a Committee headed by a retired Judge of the Supreme Court or the Bombay High Court to investigate the allegations made by Mr. Param Bir Singh, were heard and disposed of by the Division Bench (Coram: Hon’ble Chief Justice and G. S. Kulkarni, J) by order dated 5th April 2021., The Bombay High Court recorded that the allegations in the letter of Mr. Param Bir Singh were serious in nature and were against the highest functionary of the Government of Maharashtra with respect to the functioning of the police department. The issues raised were such that the very faith of citizens in the functioning of the police department was at stake. Such allegations could not remain unattended and were required to be looked into in the manner known to law when, prima facie, they indicated commission of a cognizable offence. Thus, directions were required for facilitating an unbiased, impartial, fair but effective probe so that the truth is unearthed. Since the petitioner was the Home Minister, there could have been no fair, impartial, unbiased and untainted probe if the same were to be entrusted to the State Police Force. Therefore, the probe was required to be entrusted to an independent agency like the Central Bureau of Investigation., The Division Bench concluded that the interest of justice would be sufficiently served if the Director of the Central Bureau of Investigation was directed to initiate a preliminary inquiry into the complaint of Dr. Patil, which included the letter of Mr. Param Bir Singh addressed to the Hon’ble Chief Minister as an annexure. The Director (CBI) was ordered to conduct the preliminary inquiry, preferably within 15 days. After completion of the inquiry, the Director (CBI) was given liberty to decide on the future course of action in accordance with law., To complete the narration, it is necessary to note that the petitioner as well as the State of Maharashtra (Respondent No.1) challenged the order dated 5th April 2021 by filing Special Leave Petition (Criminal) Diary No. 9414/2021 (Anil Deshmukh vs. The State of Maharashtra & others) and Special Leave Petition (Criminal) Diary No. 2999/3002/2021, respectively. The Special Leave Petitions were dismissed by the Supreme Court by order dated 8th April 2021, observing that the nature of the allegations, the persons involved and the seriousness of the allegations required an independent agency to inquire into the matter., In adherence to the order of the Division Bench, Respondent No.2 registered a preliminary inquiry against the petitioner and unknown others vide PE2232021A0001, dated 6th April 2021. After completion of the preliminary inquiry, a complaint against the petitioner and unknown others was filed, purportedly on the basis of the findings of the preliminary inquiry. On that basis, RC No. 2232021/A0003 was registered on 21st April 2021 alleging, inter alia, that the preliminary inquiry prima facie revealed that a cognizable offence was made out wherein the petitioner and unknown others attempted to obtain undue advantage for improper and dishonest performance of their duty. Consequently, the FIR was registered for offences punishable under Section 7 of the Prevention of Corruption Act, 1988 (PC Act) and Section 120‑B of the Indian Penal Code, 1860 (IPC) against the petitioner and unknown others., The petitioner has invoked the writ jurisdiction of the Bombay High Court with the assertion that the FIR has been registered in gross violation of the fundamental rights of the petitioner and for extraneous considerations. The preliminary inquiry did not reveal any material which would justify the registration of the first information report. The FIR thus, prima facie, does not disclose any offence. Moreover, there is a legal bar to the registration of the FIR, incorporated in Section 6 of the Delhi Special Police Establishment Act, 1946 (the DSPE Act) and Section 17A of the PC Act; therefore, the action of Respondent No.2 in registering the FIR is not in accordance with law, contrary to the only course which the Division Bench had directed Respondent No.2 to pursue after the preliminary inquiry. The petitioner further asserts that Respondent No.2, by registering the FIR, has endeavoured to enter into matters expressly excluded by the order of the Division Bench from the purview of the preliminary inquiry. The aspect of transfer and posting of police officials was specifically kept out of the ambit of the preliminary inquiry. The insistence of Respondent No.2 to delve into the transfer and posting of police officials is again in breach of the provisions of Section 6 of the DSPE Act, as, in the absence of the consent of the State Government, Respondent No.2 is not authorized to investigate a matter that surely falls within the province of the State. Even otherwise, according to the petitioner, the FIR, as it stands, does not make out the essential ingredients of Section 7 of the PC Act, nor a prima facie case for the offence punishable under Section 120B of the IPC. Hence, the FIR and the consequent investigation, which is tainted with malice and ulterior motive, deserves to be quashed and set aside., An affidavit in reply was filed on behalf of Respondent No.2 (CBI). In the backdrop of the Division Bench order directing the preliminary inquiry, the tenability of the petition is assailed. The instant petition is stated to be an instance of abuse of the process of the Bombay High Court as the Division Bench has elaborately considered the necessity of investigation in light of the grave nature of the allegations against the petitioner. The legal bar sought to be raised to the registration of the FIR, both under Section 6 of the DSPE Act and Section 17A of the PC Act, is stated to be misconceived. Since the investigation by the CBI is ordered by the constitutional court, Respondent No.2 contends that the interdict contained in Section 6 of the DSPE Act does not apply. Nor is prior approval of the competent authority, as envisaged by Section 17A of the PC Act, warranted, as the offence of attempt to obtain undue advantage for improper and dishonest performance of public duty does not form part of any recommendation or decision taken by the public servant in discharge of his official functions or duties. Moreover, where the investigation is ordered by the constitutional courts, no question of prior approval for investigation arises. Respondent No.2 thus contends that the FIR has been registered in conformity with the order of the Bombay High Court and the governing provisions. On merits, it is categorically denied that the FIR does not, prima facie, disclose commission of the offences. Both the offences punishable under Section 7 of the PC Act and Section 120B of the IPC are made out by the assertions in the FIR and the documents annexed thereto., At this juncture, it may be appropriate to note the gravest part of the allegations against the petitioner contained in the letter of Mr. Param Bir Singh. The following allegations bear upon the determination of the instant petition. During one of the briefing sessions in the wake of the Antilia incident held in mid‑March 2021, when I was called late in the evening at Varsha to brief, I pointed out several misdeeds and malpractices being indulged in by the Hon’ble Home Minister. In that context, Shri Sachin Vaze, who was heading the crime intelligence unit of the Crime Branch of the Mumbai Police, was called by Shri Anil Deshmukh, Hon’ble Home Minister, Maharashtra, to his official residence Dnyaneshwar several times in the last few months and repeatedly instructed to assist in the collection of funds for the Hon’ble Home Minister. In and around mid‑February and thereafter, the Hon’ble Home Minister called Shri Vaze to his official residence. At that time, one or two staff members of the Hon’ble Home Minister, including his personal secretary, Mr. Palande, were also present. The Hon’ble Home Minister expressed to Shri Vaze that he had a target to accumulate Rs 100 crores a month and that, given about 1,750 bars, restaurants and other establishments in Mumbai, a sum of Rs 2‑3 lakhs each could yield a monthly collection of Rs 40‑50 crores. The Hon’ble Home Minister added that the rest of the collection could be made from other sources. Shri Vaze came to my office the same day and informed me of the above., While ACP Patil and DCP Bhujbal were made to wait outside the Hon’ble Home Minister’s cabin, Mr. Palande, Personal Secretary to the Hon’ble Home Minister, entered the chamber and, after emerging, took ACP Patil and DCP Bhujbal aside. Mr. Palande informed ACP Patil that the Hon’ble Home Minister was targeting a collection of Rs 40‑50 crores, which was possible through approximately 1,750 bars, restaurants and establishments operating in Mumbai. I was informed by ACP Patil about the demand to make collections for the Hon’ble Home Minister. After the meeting of Shri Vaze with the Hon’ble Home Minister, he discussed the Home Minister’s instructions with Shri Patil and both approached me with their predicaments. The Hon’ble Home Minister, as a regular practice, has repeatedly called my officers and given them instructions regarding the course to be followed by them in performance of their official duties. The Home Minister has been calling my officers at his official residence, bypassing me and other senior officers of the Police Department to whom those officers report. He has been instructing them to carry out official assignments and collection schemes, including financial transactions, as per his expectations and target to collect money. These corrupt malpractices have been brought to my notice by my officers. In my experience during more than one year as Commissioner of Police, Mumbai, the Hon’ble Home Minister has on numerous occasions called several officers from the Mumbai Police to his official residence at Dnyaneshwar to give instructions to adopt a specific course of action in police investigations. The call records and phone data of Shri Sachin Vaze should be examined to ascertain the truth of the allegations against him and for the truth to emerge insofar as his association with political functionaries is concerned., Taking the Bombay High Court through the observations of the Division Bench in the order dated 5th April 2021, Mr. Lekhi submitted that the Division Bench recorded at more than one place that the allegations against the petitioner, prima facie, made out a cognizable offence. In the face of such observations, the endeavour of the petitioner to urge that no offence is, prima facie, made out is unworthy of countenance., Mr. Lekhi further urged that the submission on behalf of the petitioner that the interdict contained in Section 6 of the DSPE Act comes into play is wholly misconceived., How the Division Bench viewed the aforesaid allegations and proceeded to deal with the method of inquiry into the same, in a manner known to law, becomes evident from the observations of the Division Bench in paragraphs 75, 80, 82 and 83 of the order dated 5th April 2021. They deserve extraction in extenso: 75. We have perused the complaint of Dr. Patil to consider as to whether it makes out a prima facie case of a cognizable offence. Examination of the veracity and/or credibility of the allegations contained therein is not our task, at this stage. Dr. Patil annexed to her complaint a copy of Shri Param Bir’s letter to the Hon’ble Chief Minister. Relevant portions thereof have been extracted supra. The information furnished discloses commission of cognizable offences by Shri Deshmukh and, in our prima facie view, should have been acted upon in the manner required by the CrPC, and as judicially interpreted by the Supreme Court in Lalita Kumari. Whether an FIR ought to be straightaway registered on the basis thereof or a preliminary inquiry ought to precede registration of an FIR is a matter we propose to consider after applying our mind as to whether the present case deserves to be referred to the CBI. 80. In the present case, Dr. Patil submitted her complaint to the Senior Police Inspector of the Malabar Hill Police Station on March 21, 2021; however, except for making an entry in the Inward Register, no action whatsoever, as the law would mandate, was initiated. The allegations made by Shri Param Bir in the letter dated March 20, 2021, which triggered Dr. Patil’s complaint, are of a serious nature and against the highest functionary of the Government of Maharashtra when it comes to the functioning of the police department. Prima facie, the issues are such that the very faith of citizens in the police department is at stake. If any truth exists in such allegations, it directly affects public confidence in the State’s police machinery. Such allegations therefore cannot remain unattended and are required to be looked into in the manner known to law when, prima facie, they indicate commission of a cognizable offence. This is an issue of credibility of the State machinery, which would be scrutinised when confronted with the expectations of the law and when complaints are received against high‑ranking public officials. The Court cannot be a mere spectator. There is a legitimate public expectation of a free, fair, honest and impartial inquiry and investigation into such allegations that have surfaced in the public domain. The necessity to have a probe by an independent agency is also a requirement of the rule of law. To instil public confidence and safeguard the Fundamental Rights of citizens, it is necessary that an inquiry and investigation be conducted by an independent agency; for such reasons, we consider it to be in the paramount public interest that an independent probe in the present circumstances would meet the ends of justice. 82. We quite agree with Shri Nankani and Shri Jha that an unprecedented case is before the Court. We also agree with Dr. Patil that directions are required for facilitating an unbiased, impartial, fair but effective probe so that the truth is unearthed and the guilty, if any, are shamed in accordance with procedure established by law. Here, Shri Deshmukh is the Home Minister. The police department is under his control and direction. There can be no fair, impartial, unbiased and untainted probe if the same were entrusted to the State Police Force. Consequently, the probe must be entrusted to an independent agency like the CBI. While doing so, the note of caution in P. Sirajuddin [(1970) 1 SCC 595] must be borne in mind. Although we do not see an immediate reason to direct registration of an FIR by the CBI based on Dr. Patil’s complaint, the interest of justice, in our opinion, would be sufficiently served if the Director, CBI is directed to initiate a preliminary inquiry into the complaint of Dr. Patil, which includes the letter of Shri Param Bir addressed to the Hon’ble Chief Minister, as an annexure. This would be in perfect accord with paragraph 120.6 of Lalita Kumari [2014(2) SCC 1]. Also, the press release of Shri Deshmukh suggests that he is not averse to facing any inquiry. It is therefore ordered accordingly. 83. Such preliminary inquiry shall be conducted in accordance with law and concluded as early as possible but preferably within fifteen days from receipt of a copy of this order. The officer(s) appointed for the purpose of conducting the preliminary inquiry shall receive due cooperation from individuals/agencies approached therefor. Once the preliminary inquiry is complete, the Director, CBI shall be at liberty to decide on the future course of action, also in accordance with law. Should the Director, CBI see no reason to proceed further, Dr. Patil shall be duly informed., The preliminary inquiry, as directed by the Division Bench, according to Respondent No.2 (CBI), culminated in the registration of the RC. Since the questions which arise for consideration turn upon the averments in the FIR as well, for appreciation in the correct perspective, we deem it appropriate to extract the relevant portion of the FIR: The preliminary inquiry prima facie revealed that a cognizable offence is made out in the matter wherein the then Home Minister of Maharashtra, Shri Anil Deshmukh, and unknown others have attempted to obtain undue advantage for improper and dishonest performance of their public duty. The inquiry also revealed that Shri Sachin Vaze, Assistant Police Inspector, Mumbai Police, had been reinstated into the police force after being out of the police service for more than 15 years. The inquiry further revealed that Shri Sachin Vaze was entrusted with most of the sensational and important cases of Mumbai City Police and that the then Home Minister was aware of the fact. Further, the petition of Shri Param Bir Singh (Annexure‑C, 104 pages) also finds attention to the fact that the then Home Minister of Maharashtra and others exercised undue influence over the transfer and posting of officials and thereby exercised undue influence over the performance of official duties by the officials., In the light of the aforesaid background facts and pleadings, we have heard Mr. Amit Desai, the learned Senior Counsel for the petitioner, and Mr. Lekhi, the learned Additional Solicitor General for Respondent No.2 (CBI), at length. With the assistance of the learned counsels, we have also perused the material on record. A report regarding the status of investigation was tendered for our perusal in a sealed envelope., Mr. Desai, the learned Senior Counsel for the petitioner, took a slew of exceptions to the registration of the FIR and consequent investigation. He urged that the instant prosecution is a classic example of enmity, animosity and politics joining hands to play the game of perception and thereby jeopardise the life, liberty and reputation of the petitioner. In such a situation, protection by a constitutional court is imperative lest the rule of law, which is the bedrock of constitutional democracy, become a casualty. According to Mr. Desai, the registration of the FIR is in flagrant violation of the principles of constitutionality, federal polity and the constitutional and statutory rights of the petitioner., Amplifying the aforesaid submissions, Mr. Desai emphasized that the Division Bench had directed only a preliminary inquiry and that too in accordance with the law. After completion of the preliminary inquiry, Respondent No.2 was duty bound to seek the consent of the State Government as envisaged by Section 6 of the DSPE Act. Since the Division Bench did not direct the registration of the FIR, it was not open to the CBI to straightaway register the FIR and commence investigation in breach of the provisions of Section 6 of the DSPE Act, urged Mr. Desai. The endeavour of Respondent No.2 to enter into investigation without the consent of the State Government, according to Mr. Desai, is in gross violation of the principle of federalism, which is the basic structure of the Constitution. To support this submission, Mr. Desai relied heavily on the judgment of the Supreme Court in State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal, and others (CPDR)., As a second limb of the submission based on the bar under Section 6 of the DSPE Act, Mr. Desai urged that Respondent No.2 (CBI), in any event, was authorized to conduct inquiry only into the allegations in the complaint of Dr. Patil, to which the letter of Mr. Param Bir Singh was annexed. Respondent No.2 could not have transgressed beyond the ambit of the order of the Division Bench. The matters of reinstatement of Mr. Sachin Vaze, the alleged entrustment of sensational and important cases to Mr. Vaze, and the alleged exercise of undue influence over transfer and posting of officials, referred to in the FIR, were clearly beyond the scope of the inquiry ordered by the Division Bench. Such endeavour of Respondent No.2 to usurp the jurisdiction to investigate stands in violation of the interdict contained in Section 6 of the DSPE Act. Mr. Desai sought support from the judgment of the Supreme Court in Ms. Mayawati vs. Union of India and others., Mr. Desai further urged, with vehemence, that there can be no claim over the proposition that a crime should not go uninvestigated. However, it is equally imperative that the investigation must be in accordance with the procedure established by law. In the instant case, the action of Respondent No.2 in embarking upon investigation against the petitioner, with the allegation that the petitioner attempted to obtain undue advantage for improper and dishonest performance of his public duty, is in complete negation of the constitutional guarantee of the right to life and personal liberty under Article 21 of the Constitution of India. In view of the provisions of Section 17A of the PC Act, introduced by the Amendment Act, 2018, the investigation into the offences alleged to have been committed by the petitioner in discharge of public duty, without the approval of the competent authority, is in clear violation of the procedure established by law. In the absence of such approval, the continuation of further proceedings constitutes an abuse of the process of the court and deserves to be quashed, urged Mr. Desai., Apart from the challenges based on the statutory bar for investigation, it was canvassed on behalf of the petitioner that the FIR is based on legally inadmissible material. The letter of Mr. Param Bir Singh, which constitutes the fulcrum of the prosecution, being a product of hearsay, hardly furnishes a sustainable ground for registration of the FIR. Even otherwise, the allegations made in the FIR, taken at their face value and accepted in their entirety, do not make out a prima facie offence. The FIR is bereft of facts; no attempt is evident, nor is the element of conspiracy discernible. Mr. Desai urged that mere reiteration of the ingredients which constitute an offence punishable under Section 7 of the PC Act in the FIR is of no legal consequence. By applying the settled principles which govern the exercise of jurisdiction to quash the FIR/prosecution, the FIR in the instant case is required to be quashed, submitted Mr. Desai., In opposition, Mr. Lekhi, the learned Additional Solicitor General for Respondent No.2 (CBI), stoutly submitted that the instant petition is an undisguised attempt to revisit the order passed by the Division Bench on 5th April 2021. He urged that the principles upheld by the order of the Division Bench and its spirit cannot be lost sight of. The avowed object of the order of the Division Bench was to instill public confidence in the State machinery, as the allegations were of such a nature that the governance was shown to be an exercise in organized crime. The action of Respondent No.2 in conducting the preliminary inquiry and registering the FIR is in due compliance with the order passed by the Division Bench, and therefore the instant petition does not deserve to be entertained., Taking the Bombay High Court through the observations of the Division Bench in the order dated 5th April 2021, Mr. Lekhi submitted that the Division Bench recorded at more than one place that the allegations against the petitioner, prima facie, made out a cognizable offence. In the face of such observations, the endeavour of the petitioner to urge that no offence is, prima facie, made out is unworthy of countenance., Mr. Lekhi further urged that the submission on behalf of the petitioner that the interdict contained in Section 6 of the DSPE Act comes into play is wholly misconceived.
id_393	1	By making reference to the observations of the Constitution Bench in the case of CPDR (supra), Mr. Lekhi strenuously urged that a direction for registration of FIR and consequent investigation is implicit in the order of the Division Bench dated 5th April, 2021. Once the Supreme Court is persuaded to exercise the extraordinary jurisdiction to authorise CBI to inquire into a matter, sans the consent of the State under Section 6 of the Delhi Special Police Establishment Act, the objection to further action, in conformity with the directions of the Supreme Court, is thoroughly unsustainable. The submission is in utter ignorance of the wide amplitude of the power of the High Court under Article 226 of the Constitution of India, urged Mr. Lekhi., The challenge to the registration of FIR, based on the provisions contained in Section 17A of the Prevention of Corruption Act is equally misconceived, submitted Mr. Lekhi. Adverting to the object of Section 17A of the Prevention of Corruption Act, namely, to insulate the public servants from frivolous inquiry and investigation, Mr. Lekhi canvassed a submission that where the Supreme Court, after recording a prima facie satisfaction that inquiry / investigation is warranted, orders such inquiry or investigation, the bar under Section 17A does not at all come into play as the protection, which the approval by the competent authority affords, is substituted by a more efficacious and judicious scrutiny by the Supreme Court. Where a Supreme Court is called upon to exercise the extraordinary powers in a situation where there is crisis of credibility of the State apparatus, the statutory provisions, be it Section 6 of the Delhi Special Police Establishment Act or Section 17A of the Prevention of Corruption Act, do not impinge upon the Court's power, submitted Mr. Lekhi. It was further urged that in the facts of the instant case, in the face of the manifest disinclination on the part of the State of Maharashtra to even look into the allegations, as noted by the Division Bench, it would be absurd to urge that the CBI ought to have sought approval of the State Government., Mr. Lekhi would urge that the submission on behalf of the petitioner that the allegations in the FIR are bereft of facts and do not make out an offence is unworthy of acceptance. The FIR in question explicitly refers to the complaint of Dr. Patil as well as the letter of Mr. Param Bir Singh, as annexures thereto. Since the Division Bench in its order dated 5th April, 2021 has recorded in clear and explicit terms that the letter of Mr. Param Bir Singh, prima facie, discloses cognizable offences, it is now not open for the petitioner to agitate the said issue, especially when the order of the Division Bench was affirmed by the Supreme Court in the Special Leave Petition preferred by the petitioner., We have given careful consideration to the aforesaid rival submissions. In the context of the controversy and the submissions canvassed across the bar, the following questions fall for consideration: (i) Is the registration of FIR and consequent investigation barred by the provisions of Section 6 of the Delhi Special Police Establishment Act? (ii) Is the investigation barred by the provisions of Section 17A of the Prevention of Corruption Act? (iii) Whether the registration of the FIR and consequent investigation are in conformity with the order of the Division Bench? (iv) Whether the FIR and consequent proceedings are liable to be quashed in exercise of extraordinary and inherent jurisdiction?, Bar under Section 6 of the Delhi Special Police Establishment Act: The thrust of the submission on behalf of the petitioner was that the Division Bench consciously and cautiously chose to order a preliminary enquiry and not registration of the FIR. The Division Bench was further circumspect in expressly directing that after the completion of the enquiry, the Director, CBI, shall be at liberty to decide on the future course of action, also in accordance with law. Mr. Desai would urge that the mandate of the order dated 5th April, 2021, stops at that. After completion of the preliminary enquiry, before the respondent No.2 proceeded to register the FIR and enter into investigation, it was enjoined to seek the consent of the State Government under Section 6 of the Delhi Special Police Establishment Act. Any deviation therefrom would infringe the federal structure of the Constitution, urged Mr. Desai., Elaborating the aforesaid submission, Mr. Desai urged that there is a well recognised distinction between an enquiry and investigation, especially where the CBI exercised the power and jurisdiction under the Delhi Special Police Establishment Act (Shashikant vs. Central Bureau of Investigation). Such distinction cannot be obliterated to the prejudice of the State concerned. What exacerbates the situation, according to Mr. Desai, is the fact that respondent No.2 is fully conscious of its limitations in registration of the FIR, despite the order of the Supreme Court to conduct a preliminary enquiry, and has chosen to follow the said course in somewhat similar circumstances before the Gauhati High Court in the case of Taba Tedir and another vs. Central Bureau of Investigation., In the case of CPDR (supra) the Constitution Bench concurred with the observations of the Supreme Court in the case of Minor Irrigation and Rural Engineering Services vs. Shankoo Ram Arya to the effect that an order directing the enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to the conclusion that such material discloses a prima facie case calling for an investigation by CBI or any other similar agency. In the case at hand, the Division Bench referred to the aforesaid position in law and recorded that the allegations against the petitioner prima facie disclose cognizable offence. Ultimate direction for institution of a preliminary enquiry is required to be viewed through the aforesaid prism of prima facie satisfaction recorded by the Division Bench about its necessity., In our understanding, what weighed with the Division Bench in ordering a preliminary enquiry instead of a direction for registration of FIR was the caution administered by the Supreme Court in the case of P. Sirajuddin vs. State of Madras that before a public servant whatever be his status, is publicly charged with acts of dishonesty which amounts to serious misdemeanour or misconduct and a first information report is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The Division Bench also found the said course to be in perfect accord with paragraph 120.6 of the Constitution Bench judgment in the case of Lalita Kumari vs. Government of Uttar Pradesh., In the backdrop of the nature of the allegations and the observations of the Division Bench, we find it rather difficult to accede to the submission on behalf of the petitioner that the direction for the institution of the preliminary enquiry was for the reason that the Division Bench did not find the allegations worthy of directing registration of the FIR. The ultimate direction for preliminary enquiry cannot thus be construed in isolation and torn off the observations which precede the said direction., The submission on behalf of the petitioner that even when a Supreme Court orders a preliminary enquiry by CBI into a matter which falls within the province of the State, without the consent of the State, at a later stage the interdict contained in Section 6 of the Delhi Special Police Establishment Act again operates with full force, in our view, loses sight of the amplitude of the power of the Supreme Court, which is exercised in exceptional and extraordinary circumstances., Section 5 of the Delhi Special Police Establishment Act enables the Central Government to extend the powers and jurisdiction of the members of the Delhi Police Establishment for investigation into offences or class of offences specified in a notification under Section 3, to any area in a State. The said power is however controlled by Section 6. It precludes a member of the Special Police Establishment to exercise powers and jurisdiction in any area in a State, without the consent of the Government of that State., In the aforesaid context, the question which arose for consideration in the CPDR (supra) was whether the High Court can direct CBI, an agency established by the Union to do something in respect of the State subject, without the consent of the State Government concerned. The Constitution Bench, after considering the challenge principally based on the federal structure and doctrine of separation of powers, held that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed, within the territory of a State without the consent of that State will neither impinge upon the federal structure of the constitution nor violate the doctrine of separation of power and shall be valid in law. While arriving at the aforesaid conclusion, the Supreme Court culled out the principles in paragraph 68. The following principles bear upon the controversy at hand: (v) Restriction on Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and Article 226 of the Constitution. (vi) If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty. (vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure., The Supreme Court has, in terms, observed that the constitutional court, in a deserving case, is not precluded from exercising the same power (to direct the CBI to investigate) which the Union could exercise in terms of the provisions of the statute. When CBI can take up investigation, albeit with the consent of the State, in relation to the crime which was otherwise within the jurisdiction of the State Police, the Court can also, in exercise of its power of judicial review, direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Delhi Special Police Establishment Act., The aforesaid exposition of law, in emphatic terms, rules out the application of Section 6 of the Delhi Special Police Establishment Act at a subsequent stage where the High Court, upon being satisfied about its justifiability, directs an enquiry by CBI. In such a situation, the authority to exercise the powers and jurisdiction over a matter which would otherwise fall within the province of the State police, stems from the order of the High Court. In our view, the true import of such order is to invest the CBI with the power and jurisdiction which it did not statutorily possess. Such an order cannot be so constricted as to rob it of meaning and content, unless the order itself limits the contours of the authority. To urge that the authority gets exhausted the moment the preliminary enquiry is completed is in negation of the very power of the constitutional court to order such enquiry in exercise of judicial review. Once a constitutional court passes an order authorising CBI to inquire into a matter, the latter is invested with the requisite power and jurisdiction to pursue the proceeding to a logical culmination. If the State Government were to interdict the investigation, at an intermediate stage, by withholding or denying the consent, the order of the constitutional court directing enquiry would be denuded of mandate and efficacy., Reliance on the order of the Gauhati High Court in the case of Taba Tedir (supra) is of no assistance to the petitioner. In the said case, a Division Bench of Gauhati High Court had directed the CBI to have preliminary enquiry into the allegations that contracts were allotted to the kith and kin of respondent No.7 therein, a Minister in the State of Arunachal Pradesh. It was further directed that in case the allegations were found to have substance warranting further proceedings with criminal prosecution, the CBI may proceed in accordance with law. Preliminary enquiry was conducted. An application was preferred by CBI seeking a direction from the Court to the competent authority to grant approval under Section 17A of the Prevention of Corruption Act. Subsequently, the application came to be withdrawn. The petitioner therein, against whom FIR was registered, assailed the prosecution, inter alia, on the ground that it was incumbent upon CBI to obtain approval under Section 17A of the Prevention of Corruption Act before registering the FIR. When the matter came up before the Court, a statement was made on behalf of the CBI that CBI was open to obtain necessary approval from the competent authority. In the backdrop of the said statement the Court did not find it necessary to enter into the merits of the contentious issue, and the petition came to be disposed of by granting leave to CBI to take steps for obtaining approval under Section 17A., Evidently, the Court had not delved into the merits of the matter. Nor the issue of requirement of consent of the State under Section 6 of the Delhi Special Police Establishment Act and approval of the competent authority under Section 17A of the Prevention of Corruption Act was examined. In fact, a submission was also made on behalf of the respondent therein that in view of the direction of the High Court to hold preliminary enquiry, approval was not required. In this setting of the matter, the disposal of the writ petition on the basis of a statement that CBI was open to obtain the approval can hardly lay down a legal proposition. Nor would it advance the cause of the submission on behalf of the petitioner that respondent No.2 CBI was conscious of the peremptory nature of the said requirement., In our view, the proposition sought to be canvassed on behalf of the petitioner that the mandate of the order for enquiry by CBI, passed by the High Court, would stand exhausted the moment preliminary enquiry is completed, is impregnated with an insurmountable incongruity. If the submission is taken to its logical end, it would imply that the situation would be brought to status quo ante the date of the passing of the order by the High Court for enquiry. Conceivably, a State Government can frustrate the purpose of independent investigation by CBI by withholding or denying the consent. Such an anomalous situation cannot be countenanced especially when the Division Bench has adverted to the necessity of entrusting the enquiry to an independent agency as it found that cognizable offences were prima facie made out. We are, thus, not inclined to accede to the submission of Mr. Desai, that the investigation by CBI is barred by the provisions contained in Section 6 of the Delhi Special Police Establishment Act., Bar under Section 17A of the Prevention of Corruption Act: A more vigorous attack against the continuation of the investigation was mounted on the premise that the investigation is wholly without jurisdiction in view of the bar created by Section 17A of the Prevention of Corruption Act, inserted by the Amendment Act 16 of 2018. Mr. Desai submitted that the history of prevention of corruption laws would indicate that there has been a constant tension between the two objectives: eradication of corruption and protection of innocent public servants. Corrupt must be punished. At the same time, the procedure established by law to protect the innocent public servants from motivated, vexatious and frivolous proceedings, also serves a definite public interest. The anxiety to protect the public servants manifested in repeated attempts to introduce a mechanism which envisages such protection, despite such measures having been struck down, underscores the legislative intent as well as the necessity to protect the public servants. Alluding to single directive No.4.7(3), which warranted prior sanction before enquiry was initiated by CBI against a decision making level officer, which was struck down in Vineet Narain and others vs. Union of India and another, Section 6A of the Delhi Special Police Establishment Act, which came to be enacted after the decision of the Supreme Court in the case of Vineet Narain (supra) and was, in turn, struck down by the Supreme Court in the case of Subramanian Swamy vs. Director, Central Bureau of Investigation and another as being violative of Article 14 of the Constitution of India, Mr. Desai urged that with a view to provide the protection to all the public servants, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, the Parliament has now barred enquiry or investigation without the approval of the competent authority, by inserting Section 17A in the Prevention of Corruption Act. This protection is a part of the procedure established by law, under Article 21 of the Constitution. It was urged that in the instant case, since the investigation is commenced sans the approval of the competent authority, the entire exercise is vitiated. Therefore, this Court is called upon to exercise the extraordinary jurisdiction of balancing the rights, submitted Mr. Desai., Section 17A of the Prevention of Corruption Act reads as under: 17-A. Enquiry or Investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties: (1) No police officer shall conduct any enquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval (a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government; (b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed: Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month., On a plain reading, Section 17A precludes a police officer from conducting any enquiry, investigation into any offence allegedly committed by a public servant where the offence is relatable to any recommendation made or decision taken by the public servant in discharge of his official functions or duties, without the previous approval of the specified competent authority. What is proscribed without approval is both enquiry and investigation. Evidently, the bar under Section 17A operates where the offence is alleged to have been committed in discharge of official functions or duties. Once the act complained of is shown to have nexus with the recommendation made or decision taken by a public servant in discharge of such functions or duties, the interdict operates., Mr. Desai strenuously submitted that the substratum of the FIR is that the petitioner attempted to obtain undue advantage for improper and dishonest performance of public duty. The petitioner is alleged to have exercised undue influence over the transfer and posting of officers and thereby further exercised undue influence over the performance of the official duty by the officers. Thus acts attributed to the petitioner surely fall within the protective umbrella of Section 17A of the Prevention of Corruption Act. All the acts have the direct nexus to the recommendations made or decisions taken by the petitioner. An inference is, according to Mr. Desai, inescapable that the alleged acts were in discharge of the official functions or duties. The necessary corollary is that the interdict contained in Section 17A operates with full force and vigour and renders the registration of the FIR and the consequent investigation legally unsustainable., Mr. Desai would further urge that in the backdrop of the legislative history of providing a protective mechanism to the public servants, the provisions of Section 17A should receive a meaningful construct. Such a provision, as is judicially recognized, cannot be construed too narrowly so as to render the protection illusory. The statutory safeguard must be strictly complied with as it is conceived in public interest. If the offence alleged to have been committed by a public servant has something to do or related in some manner with the discharge of an official duty, the protection must be extended., To lend support to aforesaid submissions, our attention was invited to a large number of authorities, including the pronouncements of the Supreme Court in the cases of Shreekantiah Ramayya Munipalli vs. State of Bombay, State of Madhya Pradesh vs. Mubarak Ali, B. Saha vs. M. S. Kochar, and Abdul Wahab Ansari vs. State of Bihar., The legal position is fairly crystallized. To fall within the protective umbrella, the act constituting the offence ought to have been committed in the performance of the official duty or purported performance thereof. There must be a reasonable connection between the act and the discharge of the official duty. It is the equality of the act rather than the nature of the duty which is determinative., It would be advantageous to make a profitable reference to the judgment of the Constitution Bench in the case of Matajog Dobey vs. H. C. Bhari wherein the legal position was illuminatingly postulated as under: In the matter of grant of sanction under Section 197 of the Code of Criminal Procedure, the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. There must be a reasonable connection between the act and the discharge of the official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duties., Mr. Lekhi, the learned Additional Solicitor General, on the contrary, urged that in the facts of the case, the claim of the petitioner that the alleged offences were committed in discharge of official functions and duties is neither well grounded in facts nor in law. The offences alleged against the petitioner cannot conceivably be described as having been committed in the performance or purported performance of official functions and duties. The authority which the petitioner drew from the position he held, only authorised the performance of what may be reasonably necessary for execution of the public duty. At best, the petitioner is laying a pretended and fanciful claim of performance of public duty as the official status only furnished the opportunity for the commission of the offences, urged Mr. Lekhi. Reliance was placed on the judgment of the Supreme Court in the case of Prakashsingh Badal vs. State of Punjab, wherein it was held that the offence of cheating and cognate offences can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such a case, official status only provides an opportunity for commission of the offence., On the aforesaid touchstone, reverting to the facts of the case, the allegations against the petitioner can be classified in three broad categories. First, the petitioner attempted to obtain undue advantage of his official position by directing the police officers to collect funds from certain sources. Second, the petitioner allegedly interfered with the course of investigation into certain cases and influenced the investigation. Third, the petitioner allegedly exercised undue influence over the transfer and posting of police officers with a view to further exercise undue influence over the performance of public duties by those police officers., By their very nature, the first two sets of acts, attributed to the petitioner, can by no stretch of imagination be said to be in the performance or purported performance of the official duties. It was no part of the duty of the petitioner to direct the collection of the funds, as alleged. Nor the petitioner had any authority in law to interfere with the course of investigation and give directions as to the manner in which the investigation is to be conducted by the police officers. It is trite that even the Courts cannot tread that path. Mere statement in the FIR that the petitioner attempted to obtain undue advantage for improper and dishonest performance of his public duty, in the context of the aforesaid allegations, does not establish the nexus between the alleged acts and the discharge of official duty., The submission on behalf of the petitioner as regards the third set of allegations, of exercising undue influence in the matter of transfer and posting of police officers, however, appears to carry some substance. In pursuance of the judgment of the Supreme Court in the case of Prakash Singh & others vs. Union of India & others under Chapter IIA of the Maharashtra Police Act, 1951, Police Establishment Boards have been constituted, inter alia, to make recommendations to the State Government regarding the transfer and posting of police officers and also decide transfer and posting of police officers, based on their rank. Under Section 22N, the competent authority for general transfer and the mid-term transfer of the Maharashtra police service officers of and above the rank of Deputy Superintendent of Police is the Home Minister, the position which the petitioner occupied., An official act can be performed in the discharge of the official duty as well as in dereliction thereof. In the case at hand, the act complained of, exercise of undue influence over the transfer and posting of police officers, could have been given effect to by the petitioner only in the performance of the official duty. Dishonest performance thereof falls in the dragnet of the offences punishable under the Prevention of Corruption Act and Penal Code. However, the reasonable nexus between the act complained of and the discharge of official duty can hardly be disputed., Mr. Desai would urge that in a series of judgments rendered post insertion of Section 17A of the Prevention of Corruption Act, the Supreme Court and various High Courts have held that the provisions of Section 17A are mandatory in nature. Investigations commenced, without the approval of the competent authority, and the consequent prosecutions also have been quashed and set aside.
id_393	2	Attention of the Supreme Court of India was invited to the decisions of the Karnataka High Court in the case of Hemant Nimbalkar vs. State of Karnataka and others, the Gujarat High Court in the case of Bhayabhai Gigabhai Sutreja vs. State of Gujarat, the Kerala High Court in the case of Ramesh Chennithala vs. State of Kerala and the Rajasthan High Court in the case of Kailash Chandra Agarwal and another vs. State of Rajasthan and another. A very strong reliance was placed on the judgment of the Supreme Court of India in the case of Yashwant Sinha and others vs. Central Bureau of Investigation and another wherein, in a separate and concurrent opinion, Honourable Justice K. M. Joseph adverted to the import of the provisions contained in Section 17A of the Prevention of Corruption Act., As regards the various pronouncements of the High Courts adverted to above, which emphasize the mandatory nature of the prior approval envisaged by Section 17A of the Prevention of Corruption Act, there can be no doubt over the propositions enunciated therein as the phraseology of Section 17A is explicitly clear and unambiguous. In our view, the moot question that wrenches to the fore, in the instant case, is whether Section 17A of the Prevention of Corruption Act operates as a fetter on the power of the High Court to direct inquiry and/or investigation in exercise of extraordinary jurisdiction under Article 226 of the Constitution. In our endeavour to find an answer to this question, we will advert to the pronouncement of the Supreme Court of India in the case of Yashwant Sinha (supra)., Under general criminal law, the police have a statutory duty to register an FIR if a cognizable offence is made out, and a statutory right to investigate if there is reason to suspect commission of a cognizable offence. The Prevention of Corruption Act provides a special procedure for inquiry, investigation and trial of offences punishable thereunder, within the meaning of Section 4(2) and 5 of the Code of Criminal Procedure. Section 17A of the Prevention of Corruption Act is a significant departure from the general law in as much as it mandates prior approval for inquiry or investigation. Does this statutory restriction on the power of the police operate as an injunction against the constitutional court directing inquiry or investigation?, The pronouncement of the Constitution Bench in the case of CPDR (supra) illuminates the path. We have extracted the observations which bear upon the controversy at hand. The enunciation of law that restriction on the executive by the Parliament under an enactment does not amount to restriction on the power of the judiciary under Articles 32 and 226 of the Constitution makes the position abundantly clear. In the context of the interdict contained in Section 6 of the Delhi Special Police Establishment Act, the Constitution Bench ruled in unequivocal terms that, irrespective of there being any statutory provision acting as a restriction on the powers of the Court, the restrictions imposed by Section 6 of the Delhi Special Police Establishment Act on the powers of the Union cannot be read as restrictions on the powers of the constitutional court., It is a different matter that the constitutional court may not ordinarily pass orders in derogation of the statutory provisions. However, where in an exceptional and extraordinary situation the High Court exercises the plenary power of judicial review under Article 226 and orders inquiry or investigation, the statutory provisions must yield to the jurisdiction under Article 226, which is exercised to uphold the Constitution and maintain the rule of law., As indicated above, the measure to insulate public servants from motivated and frivolous inquiry and investigation has been on the legal horizon in the form of either executive instructions or legislative prescription. The latter was manifested in the form of Section 6A of the Delhi Special Police Establishment Act, which introduced the mechanism of prior approval of the Central Government for an inquiry or investigation in respect of the employees of the Central Government of the level of Joint Secretary and above and equivalent. Section 6A of the Delhi Special Police Establishment Act reads as follows: (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegation relates to (a) the employees of the Central Government of the level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government. (2) Notwithstanding anything contained in sub‑section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988., In the case of Manohar Lal Sharma vs. Principal Secretary and others, a three‑judge bench of the Supreme Court of India was confronted with the question whether the approval of the Central Government is necessary under Section 6A of the Delhi Special Police Establishment Act in a matter where the inquiry or investigation into the crime under the Prevention of Corruption Act is being monitored by the Court. In two separate opinions the question was answered in the negative. The observations of the Supreme Court in paragraphs 49 and 50 note the submissions premised on the protection of the right of the public servant and the reasons for repelling the same. They read as follows:, Paragraph 49: The argument of the learned Attorney General that Section 6A is in the nature of a procedure established by law for the purpose of Article 21 and that consequences follow in criminal law for an accused, the Court is not at liberty to negate the same even in exercise of powers under Articles 32, 142 overlooks the vital aspect that Court monitoring of the inquiry or investigation conducted by the Central Bureau of Investigation is itself a very strong check on the CBI from misusing or abusing its power of inquiry or investigation. The filtration mechanism which Section 6A provides to ensure that senior officers at the decision‑making level are not subjected to frivolous inquiry is achieved as the constitutional court that monitors the inquiry or investigation by the CBI acts as guardian and protector of the rights of the individual and, if necessary, can always prevent any improper act by the CBI against senior officers in the Central Government when brought before it., Paragraph 50: When the Court monitors the investigation, there is already departure inasmuch as the investigating agency informs the Court about the progress of the investigation. Once the constitutional court monitors the inquiry or investigation which is only done in extraordinary circumstances and in exceptional situations having regard to the larger public interest, the inquiry or investigation into the crime under the Prevention of Corruption Act against public servants by the CBI must be allowed to have its course unhindered and uninfluenced and the procedure contemplated by Section 6A cannot be put at the level which impedes exercise of constitutional power by the Supreme Court of India under Articles 32, 136 and 142 of the Constitution. Any other view in this regard will be directly inconsistent with the power conferred on the highest constitutional court., Mr. Desai, the learned Senior Counsel, canvassed a forceful submission that the aforesaid determination of law is restricted to cases where the Court monitors investigation. Secondly, the deviation from the statutory requirement is permissible only when the Supreme Court of India exercises its plenary jurisdiction under Articles 32 and 142 of the Constitution. A High Court exercising jurisdiction under Article 226 of the Constitution, where it does not monitor the investigation, is not within its rights in overriding the statutory provision. Since in the instant case the Division Bench simply ordered preliminary inquiry and the petitions were disposed of, the aforesaid pronouncement is of no assistance to the respondent CBI, urged Mr. Desai., In order to properly appreciate the aforesaid submission, it is imperative to consider the backdrop of the decision in the case of M. L. Sharma (supra). The question came up for consideration before the Supreme Court of India, in the backdrop of the fact that the inquiry and investigation into the allocation of the coal blocks were being monitored by the Supreme Court and the CBI had submitted a report about the status of the progress made in that regard. In that case, the Supreme Court put two queries to the learned Attorney General. The second was, why the approval of the Government under Section 6A was necessary in respect of Court‑monitored or Court‑directed investigation. The submissions of the learned Attorney General in response to the second query were noted in paragraph 19 as follows:, Paragraph 19: In response to the second query, the learned Attorney General submits that Section 6A is in the nature of a procedure established by law for the purposes of Article 21 and that consequences follow in criminal law for an accused, the Court is not at liberty to negate the same even in exercise of powers under Articles 32 and 142. According to him, the requirement of sanction under Section 6A is to be interpreted strictly and cannot be waived under any circumstances. That the Court monitors or directs an investigation does not affect the basis of protection available under law and the CBI cannot be asked to proceed with inquiry or investigation dehors the statutory mandate of Section 6A. The learned Attorney General, thus, submits that Section 6A, which was a definite objective, must be allowed to operate even in the cases where the investigation into the crimes under the Prevention of Corruption Act is being monitored by the Court., It would be contextually relevant to note that the submissions advanced by Mr. Desai substantially resonate with the submissions of the learned Attorney General, as noted by the Supreme Court of India above. In answering the aforesaid question, the Supreme Court of India adverted to the pronouncement of the Constitution Bench in the case of CPDR (supra). As the learned Attorney General sought to draw a distinction between the sphere of operation of the provisions contained in Section 6 and Section 6A, the Supreme Court observed as follows:, Paragraph 53: The learned Attorney General is right that the two provisions, namely Section 6 and Section 6A, are different provisions and they operate in different fields, but the principle of law laid down in respect of Section 6, in our view, can be extended while considering applicability of Section 6A to the Court‑monitored investigations. If Section 6 necessitates the prior sanction of the State Government before investigation is carried out by the CBI in terms of that provision and the principle of law laid down by the Constitution bench of this Court is that the constitutional courts are empowered to direct the investigation of a case by the CBI and in such cases no prior sanction of the State Government is necessary under Section 6 of the Delhi Special Police Establishment Act, there is no reason why such principle is not extended in holding that the approval of the Central Government is not necessary under Section 6A of the Delhi Special Police Establishment Act in a matter where the inquiry or investigation into the crime under the Prevention of Corruption Act is being monitored by the Court. It is the duty of this Court that anti‑corruption laws are interpreted and worked out in such a fashion that helps in minimising abuse of public office for private gain., The aforesaid observation that there is no reason why the principle expounded in CPDR (supra) cannot be extended to hold that the approval of the Central Government is not necessary under Section 6A of the Delhi Special Police Establishment Act in a matter where the inquiry or investigation into the crime under the Prevention of Corruption Act is monitored by the Court constitutes a complete answer to the submissions sought to be canvassed on behalf of the petitioner., The observations of Honourable Mr Justice M. B. Lokur in the concurrent yet separate opinion, in paragraphs 95 and 98, put the matter beyond the pale of controversy. Paragraph 95: The question therefore is, can a statutory fetter such as Section 6A of the Act bind the exercise of plenary power by this Court of issuing orders in the nature of a continuing mandamus under Article 32 of the Constitution? The answer is obviously in the negative. Any statutory emasculation, intended or unintended, of the powers exercisable under Article 32 of the Constitution is impermissible. Paragraph 98: The law laid down by the Constitution Bench vis‑à‑vis a High Court exercising judicial review under Article 226 of the Constitution and a statutory restriction under Section 6 of the Act would apply (perhaps with greater vigour) mutatis mutandis to the exercise of judicial review by this Court under Article 32 of the Constitution with reference to a statutory restriction imposed by Section 6A of the Act. That being so, Section 6A of the Act must be meaningfully and realistically read only as an injunction to the executive and not as an injunction to a constitutional court monitoring an investigation under Article 32 of the Constitution in an exercise of judicial review and of issuing a continuing mandamus., It is imperative to note that in both opinions support and sustenance was drawn from the pronouncement of the Constitution Bench in the case of CPDR (supra). Indubitably, in CPDR (supra) the Supreme Court of India examined the contours of the authority of the High Court under Article 226 of the Constitution., In our view, from a fair reading of the pronouncement of the Supreme Court of India in the case of M. L. Sharma (supra), it becomes evident that the issue of necessity of prior sanction in a Court‑directed investigation was also under consideration. Undoubtedly, the Supreme Court answered the question which arose for consideration with reference to Court‑monitored investigation. Pertinently, the Supreme Court did not observe that such approval is required when it is a case of Court‑directed investigation in contradistinction to Court‑monitored investigation., The matter can be looked at from a slightly different perspective. The protection envisaged by Section 17A of the Prevention of Corruption Act is stage‑controlled. Such approval is warranted at the stage of inquiry, investigation and trial. It would imply that the justifiability of the inquiry or investigation is to be evaluated by the competent authority in time context. Viewed through this prism, the Court‑monitored investigation, which is in the nature of a continuing mandamus, cannot be said to be the only situation under which investigation sans such approval can be sustained. We do not find any qualitative difference in a Court‑monitored and Court‑ordered investigation, in the matter of ordering an inquiry or investigation sans approval, in exercise of power of judicial review. The distinction sought to be made between a Court‑monitored and Court‑directed investigation thus seems artificial. Once a constitutional court examines and satisfies itself about the necessity and desirability of the inquiry or investigation into the alleged crime, the requirement of approval by the competent authority is substituted by a more judicious determination. In the instant case, the observations of the Division Bench in the order dated 5 April 2021 explicitly make out such satisfaction., Mr. Desai attempted to open a new front by canvassing a submission that the plenary power which is vested in the Supreme Court of India under Articles 32 and 142 of the Constitution, being not available to a High Court, the statutory prescriptions cannot be lightly brushed aside entailing serious prejudice to the fundamental rights of an accused. In order to buttress the aforesaid submission, reliance was placed on the judgment of the Supreme Court of India in the case of Paramjit Kaur vs. State of Punjab. In that case, in the context of the bar envisaged by Section 36(2) of the Protection of Human Rights Act, 1993, which precluded the commission from inquiring into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed, the Supreme Court of India held that the power and jurisdiction of the Supreme Court of India under Article 32 of the Constitution cannot be curtailed by any statutory limitation including those contained in Section 36(2) of the Human Rights Act., The aforesaid pronouncement reiterates the principle that statutory provisions do not impinge upon the plenary powers of the constitutional court under Article 32 of the Constitution. This pronouncement is of little assistance to advance the cause of the petitioner's submission that the width of power under Article 226 of the Constitution is not of the same amplitude as that of the Supreme Court of India under Article 32 of the Constitution of India. In contrast, it is well settled that under the constitutional scheme, the jurisdiction conferred on the High Court is in the same wide terms as the jurisdiction under Article 32 of the Constitution. In fact, the jurisdiction of the High Court under Article 226 is much wider as the High Courts are required to exercise the jurisdiction not only for enforcement of fundamental rights but also for enforcement of any legal right., It was next urged that it is the duty of the Courts to protect the rights which emanate from the due observance of the procedure established by law. Rigorous observance of the procedure is a constitutional imperative, however inconvenient it may be in a given situation. Attention of the Supreme Court of India was invited to the decision of the Supreme Court of India in the case of Prabhu Dayal Deorah vs. The District Magistrate, Kamrup and others, wherein the following observations were made: 'The history of personal liberty is largely the history of insistence on observance of procedure...'., Mr. Desai would further urge that no Court, including the Supreme Court of India, can give directions contrary to statutory provisions. To this end, reliance was placed on the judgment of the Supreme Court of India in the case of Central Bureau of Investigation and others vs. Keshub Mahindra and others, wherein, in the context of an apprehension that the 1996 judgment of the Supreme Court in Bhopal Gas Leak Case, whereby the Supreme Court had directed the trial Court to frame charges under Section 304A instead of Section 304 (Part II) of the IPC, the Sessions Court would feel helpless in framing charges for more serious offences, the Supreme Court held that the apprehension was wrong and without any basis and went on to postulate that no decision by any Court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code and the 1996 judgment never intended to do so., Reliance was also placed on another judgment of the Supreme Court of India in the case of M. S. Ahlawat vs. State of Haryana and another, wherein the Supreme Court set aside the conviction of the petitioner for the offence punishable under Section 193 of the IPC, observing that the procedure prescribed under Section 340 of the Code was not followed before the petitioner was so convicted. The Court observed: 'To perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience.', Reliance was also placed on the judgment of the Supreme Court of India in the case of Union of India and another vs. Kirloskar Company Ltd., wherein the High Court had directed the authorities under the Customs Act to decide the claim for refund, with a further rider that the claim shall not be rejected on the ground that it was time‑barred. Setting aside the said direction, the Supreme Court held that the power conferred by Articles 226/227 of the Constitution is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing authorities to act contrary to law., An earnest endeavour was made to draw support from the seven‑judge bench judgment of the Supreme Court of India in the case of A. R. Antulay vs. R. S. Naik and another, wherein the Supreme Court recalled the direction transferring the trial under the Criminal Law Amendment Act, 1952, from the Court of Special Judge, Bombay to the High Court of Bombay. It was observed that in giving the directions the Supreme Court infringed the constitutional safeguards granted to a citizen or to an accused and injustice resulted therefrom. It was just and proper for the Court to rectify and recall that injustice, in the peculiar facts and circumstances of the said case., A judgment of a Division Bench of this Court in the case of IDBI Bank Ltd. vs. Aditya Logistics (I) Pvt. Ltd. and others was also pressed into service to bolster the submission that in exercise of jurisdiction under Article 226 of the Constitution the High Court cannot direct any authority including a statutory tribunal to act contrary to the statutory provisions., Mr. Lekhi, joined the issue by canvassing a submission that the analogy sought to be drawn from the aforesaid pronouncements is misplaced. We are persuaded to agree with the submissions of Mr. Lekhi. A case where the constitutional court passes an order which turns out to be in derogation of the statutory provision or prescribed procedure in exercise of ordinary jurisdiction or writ jurisdiction stands on a different footing than a case where the constitutional court invokes the plenary jurisdiction vested under Article 32 or 226 of the Constitution for enforcement of fundamental rights and upholding the rule of law. In the latter cases the statutory restrictions do not impede the exercise of the jurisdiction under Article 32 or 226 of the Constitution which is of wide plenitude. It bears repetition to record that the pronouncement of the Supreme Court of India in the case of CPDR (supra) sets the issue at rest., This takes us to the judgment of the Supreme Court of India in the case of Yashwant Sinha (supra) on which heavy reliance was placed by Mr. Desai. The review petitions in the said reported judgment arose out of the judgments whereby the writ petitions which sought investigation in the matter of purchase of Rafale Fighter Jets were dismissed. The review petitions were disposed of by two separate yet concurring opinions. In the judgment delivered by Honourable Justice K. M. Joseph, the applicability of the bar contained in Section 17A of the Prevention of Corruption Act, where a prayer is made for directing registration of the FIR against a public servant, was adverted to. His Lordship observed as follows:, Paragraph 114: The Constitution Bench in Lalita Kumari (supra) had before it the CBI Crime Manual. It also considered the decision of this Court in P. Sirajuddin (supra) which declared the necessity for preliminary inquiry in offences relating to corruption. Therefore, the petitioners may not be justified in approaching this Court seeking the relief of registration of an FIR and investigation on the same as such. This is for the reason that one of the exceptions where immediate registration of FIR may not be resorted to would be a case pointing fingers at a public figure and raising the allegation of corruption. This Court also has permitted preliminary inquiry when there is delay, laches in initiating criminal prosecution, for example, over three months. A preliminary inquiry, it is to be noticed in paragraph 120.7, is to be completed within seven days., Paragraph 115: The petitioners have not sought the relief of a preliminary inquiry being conducted. Even assuming that a smaller relief than one sought could be granted, there is yet another seemingly insuperable obstacle., Paragraph 117: In terms of Section 17A, no Police Officer is permitted to conduct any inquiry or investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his Office at the time when the offence was alleged to have been committed. In respect of the public servant who is involved in this case, clause (c) is applicable. Unless, therefore, there is previous approval, there could be neither inquiry nor investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent CBI, is done after Section 17A was inserted. The complaint is dated 04‑10‑2018. Paragraph 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paragraphs 6 and 7 of the complaint are relevant in the context of Section 17A, which reads as follows:, Paragraph 6: We are also aware that recently, Section 17(A) of the Act has been brought in by way of an amendment to introduce the requirement of prior permission of the government for investigation or inquiry under the Prevention of Corruption Act., Paragraph 7: We are also aware that this will place you in the peculiar situation of having to ask the accused himself for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step of seeking permission of the government under Section 17(A) of the Prevention of Corruption Act for investigating this offence and under which the concerned authority shall convey its decision within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month., Paragraph 118: Therefore, petitioners have filed the complaint fully knowing that Section 17A constituted a bar to any inquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission under Section 17A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24‑10‑2018 and the complaint is based on non‑registration of the FIR. There is no challenge to Section 17A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17A continues to be on the statute book and it constitutes a bar to any inquiry or investigation. The petitioners themselves, in the complaint, request to seek approval in terms of Section 17A but when it comes to the relief sought in the Writ Petition, there was no relief claimed in this behalf.
id_393	3	Even proceeding on the basis that on petitioners’ complaint, an FIR must be registered as it purports to disclose cognizable offences and the Supreme Court of India must so direct, will it not be a futile exercise having regard to Section 17A. I am, therefore, of the view that, though otherwise the petitioners in Writ Petition (Criminal) No. 298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari (supra), and more importantly, Section 17A of the Prevention of Corruption Act, in a Review Petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed would not stand in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Exhibit P1‑complaint in accordance with law and subject to the first respondent obtaining previous approval under Section 17A of the Prevention of Corruption Act., Banking upon the aforesaid observations, especially the observations in paragraph 115 that Section 17A of the Prevention of Corruption Act seemed to be an insuperable obstacle in granting the relief of preliminary inquiry, Mr. Desai urged, with a degree of vehemence, that the order of the Division Bench directing preliminary inquiry cannot be so construed as to perpetuate the mistake. Since the Supreme Court of India has emphasized the peremptory nature of the approval envisaged by Section 17A of the Prevention of Corruption Act, the investigation must be interdicted at this stage., Mr. Lekhi, the learned Additional Solicitor General, submitted that the aforesaid observations, which form part of the order of Hon’ble Mr. Justice Joseph, cannot be construed as an order of the Supreme Court of India. Since the majority has not adverted to the provisions contained in Section 17A of the Prevention of Corruption Act, the aforesaid observations do not command any precedential value. In any event, according to Mr. Lekhi, the aforesaid observations are contrary to the judgments of the Supreme Court of India in the cases of CPDR and M.L. Sharma (supra)., In order to lend support to the submission that the aforesaid observations in respect of applicability of Section 17A do not command precedential value, Mr. Lekhi placed reliance on the judgment of the Supreme Court of India in the cases of Kaikhosrou (Chick) Kavasji Framji vs. Union of India and Rameshbhai Dabhai Naika vs. State of Gujarat, wherein the legal position as to when the observations in the concurring judgment constitute binding precedent was exposited., We are not persuaded to adopt a doctrinaire approach and delve into the aspect of binding efficacy of the afore‑extracted observations in the case of Yashwant Sinha (supra). In our considered opinion, from the perusal of the aforesaid observations, it becomes abundantly clear that two factors weighed with the Supreme Court of India. First, in the context of the nature of allegations of corruption against a public figure, the writ petitioners could not have sought the relief of registration of FIR directly. Second, though the petitioners were aware of the impediment for the investigating agency in entering upon the investigation, in view of the bar under Section 17A, yet no relief was sought in that behalf. In this backdrop, the observations were made that even if it is assumed that the allegations in the petitioner’s complaint disclosed cognizable offences and the Supreme Court of India must direct the registration of the FIR, would it not be a futile exercise having regard to Section 17A., In our understanding, the afore‑extracted observations in the case of Yashwant Sinha (supra) cannot be read de hors the context in which those observations were made. The aforesaid observations, with respect, do not lay down a proposition that even when a constitutional court is convinced about the justifiability of the cause and necessity of a fair and impartial investigation by an independent agency, Section 17A operates as a fetter on its power to order such investigation. On a proper construction, in our view, the aforesaid observations underscore the restrictions to inquire and investigate by the investigating agency and not against the court which finds it expedient to exercise the jurisdiction under Article 226 of the Constitution., Whether FIR is beyond the ambit of the order of the Division Bench of the Supreme Court of India was contested. A two‑pronged submission was advanced in support of the challenge that the registration of the FIR and the consequent investigation transgresses the ambit of the order of the Division Bench. First, the issues of transfer and posting of the police officials and the reinstatement in service of Mr. Sachin Vaze and entrustment of important and sensitive cases were not at all referred to in the complaint of Dr. Jayshree Patil nor in the letter of Mr. Param Bir Singh. Thus, the Supreme Court of India had no occasion to consider those issues and order an inquiry therein. Second, the Division Bench order manifests a clear contra‑indication that the said aspect was beyond the province of the preliminary inquiry entrusted to respondent no.2., We have been taken through the letter of Mr. Param Bir Singh to bolster the submission that there is nothing which can be even remotely related to the alleged exercise of undue influence in the matter of transfer and posting of the police officials by the petitioner. Attention of the Supreme Court of India was also invited to the observations in paragraph 87 of the order of the Division Bench, which reads as under:, We also make it clear that Shri Param Bir Singh shall be at liberty to raise grievances, if any, in regard to transfers and postings of police officials and for enforcement of the directions in Prakash Singh (supra) before the appropriate forum in accordance with law, if so advised., As the Division Bench of the Supreme Court of India had reserved the liberty to Shri Param Bir Singh to raise grievances, if any, in regard to the transfer and postings of police officials before the appropriate forum, it implied that the Division Bench did not consider the said aspect, much less satisfied about the necessity of ordering inquiry into that matter, submitted Mr. Desai. Resultantly, the registration of the FIR and investigation in respect of the matters, which were not at all adverted to by the Division Bench, amounts to venturing into investigation in matters which otherwise fall within the domain of the State Government and thus wholly impermissible under Section 6 of the Delhi Special Police Establishment Act. A strong reliance was placed on the judgment of the Supreme Court of India in the case of Mayawati (supra)., In the context of the aforesaid challenge we deem it appropriate to record that in Criminal Writ Petition No. 1903 of 2021, preferred by the State of Maharashtra, assailing the legality of registration of the FIR incorporating the allegations in respect of exercise of undue influence over the transfer and posting of the police officials and the reinstatement of Mr. Sachin Vaze and entrustment of important and sensitive cases to him, we have elaborately dealt with the challenge based on the provisions of Section 6 of the Delhi Special Police Establishment Act and the judgment of the Supreme Court of India in the case of Mayawati (supra). The said Writ Petition No. 1903 of 2021 is also disposed of simultaneously by a separate judgment. We are of the view that it may not be necessary to burden this judgment by incorporating all those reasons once more., It would be sufficient to note that the ratio in the case of Mayawati (supra) is that in a case where there is no consent of the State under Section 6 of the Delhi Special Police Establishment Act and the authority to investigate springs from the order of the constitutional court, in the absence of direction in the order of the Supreme Court of India, the investigating officer is not free to resort to the provisions contained in Section 157 of the Code of Criminal Procedure to investigate into a matter which is not covered by the order of the Supreme Court of India. The aforesaid ratio of the judgment of the Supreme Court of India in the case of Mayawati (supra) is required to be appreciated in the context of its factual backdrop. In the said case, the Supreme Court of India was dealing with the illegality/irregularity committed by the officers and the persons who carried out the Taj Heritage Corridor Project and the disbursement of the amount of Rs 17 crores, which was allegedly released without sanction, in September 2002. In contrast, purportedly on the basis of the order of the Supreme Court of India, another FIR was registered against the petitioner therein with the allegations of amassing assets disproportionate to the known sources of income from the year 1995 to 2003. In such fact situation, the Supreme Court of India held that there was no occasion for the Supreme Court of India to consider the said allegations of amassing disproportionate assets and, resultantly, the registration of the FIR was without jurisdiction. The aforesaid pronouncement, in our view, does not apply with equal force to the facts of the case at hand., We have extracted above the allegations in the letter of Shri Param Bir Singh. It was alleged that the petitioner was indulging in misdeeds and malpractices. Mr. Sachin Vaze was called at the residence of the petitioner several times. He was given a target to accumulate Rs 100 crores a month. The personal secretary of the petitioner allegedly conveyed the direction to collect the funds to Shri Sanjay Patil, ACP. Both the officers related the direction to collect funds to the then Commissioner of Police. Apart from the allegations that the petitioner directed the police officers to collect funds, there are allegations as regards the interference in the matters which were being investigated by the police officers. The petitioner was repeatedly calling the officers and giving them instructions in respect of the course to be adopted by them in the performance of their official duty. They were instructed to carry out official assignments and collection schemes including financial transactions., If these allegations are considered in juxtaposition with the stated claim that it was part of the duty of the petitioner to take a call on the recommendations made by the Police Establishment Board and/or take decision in the matter of the transfer and posting of the police officers, in view of the provisions contained in the Maharashtra Police Act, 1951, the aspect of transfer and posting of the police officers cannot be said to be wholly unconnected with the subject matter of the inquiry ordered by the Division Bench of the Supreme Court of India. Whether the officers were transferred and posted to achieve the alleged desired objective of collection of funds, whether the officers who were amenable to the influence of the petitioner were brought in so as to allegedly interfere with the course of investigation, whether the officers who were allegedly instructed to carry out official assignments and discharge the public duty in a particular manner were posted at particular positions are all matters which are inextricably intermingled with the allegations against the petitioner., Whether a case for quashing exists: A strenuous effort was made to demonstrate that the allegations in the FIR, even if they are taken at their face value and accepted in their entirety, do not, prima facie, constitute any offence. Multi‑fold grounds were urged. First, the FIR is bereft of facts to make out the case against the petitioner. Second, it is based on vague and hearsay material. Third, there is no material to indicate the commission of the offence punishable under Section 7 of the Prevention of Corruption Act and Section 120B of the Indian Penal Code. Fourth, even if taken at face value, the acts attributed to the petitioner do not traverse beyond the stage of preparation. Lastly, the fact that the FIR alleges that the petitioner and unknown others have attempted to obtain undue advantage for improper and dishonest performance of their public duty and that the petitioner conspired with the unknown others, despite holding a preliminary inquiry, justifies an inference that nothing of substance was found in the preliminary inquiry., The audacity of the submission that the FIR does not disclose a prima facie offence is belied by the hard facts of the case. At the cost of repetition, we are constrained to record that in the backdrop of the allegations in the letter of Mr. Param Bir Singh, the Division Bench, while directing an independent probe by the CBI, recorded in no uncertain terms that while considering the Criminal Writ Petition on merits, we find that one other aspect cannot be overlooked. Shri Kumbhkoni has not urged that the complaint of Dr. Patil does not disclose any cognizable offence. The information furnished therein discloses commission of cognizable offences by Shri Deshmukh and in our prima facie view should have been acted upon in the manner required by the Criminal Procedure Code, and as judicially interpreted by the Supreme Court of India in Lalita Kumari (supra). Such allegations, therefore, cannot remain unattended and are required to be looked into in the manner known to law when, prima facie, they indicate commission of a cognizable offence., In the light of the aforesaid observations, the submission on behalf of the petitioner that the allegations in the FIR do not make out a prima facie case does not deserve to be countenanced, at least at this stage and before this forum., Undaunted and at his combative best, Mr. Desai would urge that despite the aforesaid observations, since the Division Bench in paragraph 84 of the order made it clear that the observations made in the said order were without prejudice to the rights and contentions of the parties who might figure in the position of the accused in future, the petitioner cannot be deprived of the opportunity to agitate the ground that the FIR and the consequent investigation deserve to be quashed as they constitute an abuse of the process of the Supreme Court of India., In view of the aforesaid submission, we deem it expedient to consider the challenge and record brief reasons. To begin with, the claim that the FIR, as it stands, is bereft of facts and material loses sight of the fact that the FIR makes reference to the annexures which include the complaint of Dr. Jayshree Patil and the letter of Mr. Param Bir Singh. To urge that only the allegations in the FIR are determinative and not the documents annexed thereto and attendant circumstances is again not in consonance with law. To ascertain whether there is a reason to suspect commission of a cognizable offence, the investigating officer can, in law, look into the allegations in the FIR, documents annexed to the FIR, the evidence collected and the attendant circumstances as well. A profitable reference, in this context, can be made to the observations of the Supreme Court of India in the case of State of Haryana and others vs. Bhajanlal and others, wherein the import of the expression ‘reason to suspect’ the commission of an offence and the material which can be taken into account to arrive at such inference were expounded as under: One should not lose sight of the fact that Section 157(1) requires the police officer to have reason to suspect only with regard to the commission of an offence which he is empowered under Section 156 to investigate, but not with regard to the involvement of an accused in the crime. Therefore, the expression ‘reason to suspect’ would mean the sagacity of rationally inferring the commission of a cognizable offence based on the specific articulate facts mentioned in the first information report as well as the annexures, if any, enclosed and any attending circumstances which may not amount to proof. In other words, the meaning of the expression ‘reason to suspect’ has to be governed and dictated by the facts and circumstances of each case and at that stage the question of adequate proof of facts alleged in the first information report does not arise., The submission that despite preliminary inquiry respondent no.2 could not unearth any material except the complaint of Dr. Jayashree Patil and the letter of Mr. Param Bir Singh, the very material which was before the Division Bench while ordering preliminary inquiry, though alluring at the first blush, is not well grounded in law. It misconstrues the scope of preliminary inquiry completely. The purpose of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information discloses a cognizable offence., It was next urged on behalf of the petitioner that the allegations in the letter of Mr. Param Bir Singh are not based on his personal knowledge and do not deserve consideration being hearsay. The FIR is thus based on legally inadmissible material. To buttress the aforesaid submission, Mr. Desai, based upon the pronouncement of the Supreme Court of India in the case of Kalyan Kumar Gogoi vs. Ashutosh Agnihotri, wherein the juristic connotation of the term hearsay was explained, relied., We find it rather difficult to accede to the submission that the allegations in the letter of Mr. Param Bir Singh deserve to be discarded at this stage on the ground of being hearsay. At the stage of consideration of the prayer for quashing the FIR, the Supreme Court of India is expected to look into only the allegations so as to find out whether an offence is prima facie disclosed or not. If the answer is in the affirmative, the truthfulness or otherwise of the allegations is a matter for investigation and trial., A faint attempt was made to draw home the point that, even if the allegations in the FIR are taken at their face value, they would, at best, indicate preparation to extort money and nothing beyond that. There is no allegation that the petitioner, in fact, accepted or attempted to accept money. Reliance was sought to be placed on the judgments of the Supreme Court of India in the case of Koppula Venkat Rao vs. State of Andhra Pradesh and the Lahore High Court in the case of High Court Bar Association vs. Crown, wherein the distinction between an attempt to commit a crime and intention and preparation for its commission was expounded., The distinction between attempt and preparation is well recognized. However, the dividing line between a mere preparation and attempt is often thin. Its determination is rooted in facts. In the case at hand, the submission on behalf of the petitioner that, at best, the direction to the police officers to collect funds was a preparatory act, with no consummated offence, proceeds on the premise as if that is the only act attributed to the petitioner. A bare perusal of the complaint of Dr. Jayshree Patil and the letter of Mr. Param Bir Singh annexed thereto would prima facie indicate that the petitioner allegedly identified the source from which the funds were to be collected, the probable number of such units, and the amount to be collected from each of them. We therefore do not deem it appropriate to delve deep into the question as to whether those acts fall in the realm of preparation only., In the backdrop of the aforesaid nature and the gravity of the allegations made in the complaint of Dr. Jayshree Patil, annexure thereto and the observations made by the Division Bench, we are afraid that we would be justified in delving deep into the thickets of facts at this stage of the proceedings. It is trite that the inherent powers to quash the FIR/prosecution are required to be exercised sparingly and in exceptional cases. Ordinarily, the inherent powers ought not be exercised to stifle a legitimate prosecution. At the stage of investigation, when the truth is yet to be unearthed, the Supreme Court of India cannot embark upon the inquiry into the correctness or otherwise of the allegations. We agree with the submissions of Mr. Lekhi that at this stage when investigation is underway any attempt to sieve through the material with a fine gauge to ascertain the existence or otherwise of the ingredients of the offences is uncalled for. It is trite that an FIR is not an encyclopedia and the purpose of investigation is to unearth the truth., The last submission on behalf of the petitioner that respondent no.2 has shied away from naming the alleged co‑conspirators of the petitioner and continues to proceed with the investigation with the specious and convenient refrain of unknown others gave us a cause for anxious consideration. During the course of the hearing, in the backdrop of the nature of the allegations, we called upon Mr. Lekhi to clarify the stand of respondent no.2 as regards the possibility of the complicity of other persons apart from the petitioner. Mr. Lekhi, the learned Additional Solicitor General, assured the Supreme Court of India that the investigation would be conducted in scrupulous adherence to the mandate of the order of the Division Bench. Nobody would be spared. Respondent no.2 will not play favorites. It would be an unsparing investigation irrespective of the rank., Before parting, by way of abundant caution we clarify that the observations hereinabove have been made for the purpose of determining the justifiability of the prayer to quash the FIR and the investigation and these observations shall not be construed to have any bearing on the writ petitions and other proceedings filed by Mr. Param Bir Singh and Mrs. Rashmi Shukla, which shall be determined on their own merits., For the foregoing reasons, the petition deserves to be dismissed. Hence, the following order: (i) The petition stands dismissed. (ii) The Registrar (Judicial) is directed to return the sealed envelope containing the report to the concerned investigating officer. (iii) The rule stands discharged. At this stage, Mr. Desai, the learned Senior Counsel for the petitioner, submitted that having regard to the substantial question of law of general importance, which according to him has arisen for consideration in this petition, the effect and operation of this judgment be stayed to facilitate the petitioner to raise the issue before the Supreme Court of India. Mr. Tushar Mehta, the learned Solicitor General, opposes the prayer. It was submitted that no interim relief was in operation during the pendency of this petition nor any substantial question of law arises for consideration. We have considered the submissions. We are of the view that in view of the consideration which we have bestowed to the submissions canvassed across the bar, there is no justifiable reason to stay the effect and operation of this judgment. Hence, the oral application for stay stands rejected.
id_394	0	Dated this the 23rd day of December, 2022. This is a strange case in which serious allegation of forgery is alleged against the Chief Judicial Magistrate, Amini Island. It is alleged that some of the accused in a criminal case pending in that court filed a complaint before the administrative side of the High Court of Kerala against the conduct of the Chief Judicial Magistrate, Amini, who is also acting as the Sub Judge, in the trial of their civil case. Aggrieved by the same, the Chief Judicial Magistrate forged the evidence of an Investigating officer and convicted the accused in the absence of the accused and issued warrant to them is the allegation. The learned Magistrate sentenced the accused person to undergo a sentence of four years under different sections of the Indian Penal Code and directed them to serve the sentence separately with a malafide intention to put the accused behind bars is the further allegation., If the allegation against the Chief Judicial Magistrate is true, it is unfortunate and unheard of. The immense faith of the citizens of this country in the Indian Judiciary itself is the backbone of our judicial system. So, the judicial officers should be above board. But of course, there may be criticism against judicial officers and that is only because of the immense faith of the people in this system. Fair criticisms will undoubtedly improve the system. The judicial officers however need not respond to those criticisms, but they should concentrate on their commitment to the system and prove their integrity and fair play while decision making. The pen of a judicial officer is powerful, but it should be used with great caution, of course without fear and favour. The famous Roman statesman, lawyer, scholar, and philosopher, Marcus Tullius observed that \The magistrates are the ministers for the laws, the judges their interpreters, the rest of us are servants of the law\. If the allegation raised by the petitioners/accused against the Chief Judicial Magistrate, Amini is true, the said Magistrate is not fit to continue in any position, for a second., The short facts of the case are like this: Petitioners in Original Petition (Criminal) No. 608/2022 are the accused Nos. 1 to 15 in Criminal Case No. 24/2016 on the file of the Chief Judicial Magistrate Court, Amini. The above case is charge‑sheeted against the petitioners alleging offences punishable under Sections 143, 147, 188, 186 and 353 read with Section 149 of the Indian Penal Code., The prosecution allegation is that a contractor by the name V. K. Dawood who was engaged in plucking coconut from the Government land requested the Deputy Collector/Sub Divisional Magistrate, Agatti for seeking police assistance for plucking coconut on the southern side of Panchayath stage in Ward No. 7 Agatti Island. The Deputy Collector/Sub Divisional Magistrate, Agatti issued an order directing the Amin, Agatti and Deputy Surveyor, Agatti to supervise the aforesaid work of plucking the coconut with police assistance. It is further alleged that when the Amin, Deputy Surveyor and the contractor were supervising the plucking of coconut, a mob of around 40 persons led by the first and second accused formed an unlawful assembly with an intention of rioting, obstructed the Amin, Surveyor, contractor and the coconut climbers. It is also alleged that they forcefully took the coconuts plucked and obstructed their duty. Hence Crime No. 6/2015 of Agatti Police Station was registered which was investigated and final report was submitted before the Chief Judicial Magistrate Court, Amini. The learned Magistrate took cognizance of the offence and numbered the case as Criminal Case No. 24/2016. The accused appeared before the learned Magistrate on summons and they were enlarged on bail., The trial in this case started and Party Witness 1 to Party Witness 5 were examined on 07‑03‑2019. Party Witness 6 was examined on 08‑03‑2019. On 28‑02‑2020, Court Witness 19, the Investigating Officer, was called as Party Witness 7 but he was not ready to depose because the Assistant Public Prosecutor was not present, thus the learned Magistrate adjourned the matter. The case of the petitioners is that on 19‑10‑2022, even though the witnesses were not present, the learned Chief Judicial Magistrate issued warrant to the petitioners. The accused persons subsequently advanced the case and appeared on 03‑11‑2022 to recall the warrant. It is stated in the Original Petition that on that day, the learned Chief Judicial Magistrate, on seeing the petitioners on the veranda of the Court, before calling the case instructed the Mukthiar that the warrant is already recalled and they can go home. The petitioners state that on 10‑11‑2022, summons was issued to Court Witness 18 for giving evidence. On 10‑11‑2022, Court Witness 18 was examined as Party Witness 8. The counsel for the accused submitted to the learned Magistrate to issue summons to Party Witness 7 who is the Investigating Officer for cross‑examining him. The petitioners state that to their utter surprise and dismay, the learned Chief Judicial Magistrate informed that Court Witness 19/Party Witness 7 was already examined on 24‑03‑2021 at Kadamath Island Camp Sitting. A perusal of the ‘Diary’ showed no such proceedings regarding the examination of Party Witness 7 on 24‑03‑2021. The petitioners obtained the alleged deposition of Party Witness 7 recorded by the learned Magistrate on 24‑03‑2021, produced as Exhibit P2. A perusal of Exhibit P2 shows that it is not signed by Court Witness 19/Party Witness 7. Therefore, it is stated that Exhibit P2 is a forged evidence by the learned Magistrate to convict the petitioners., It is specifically stated in the Original Petition that the Chief Judicial Magistrate has personal enmity towards the accused because some of the accused are the plaintiffs in a civil suit and they have filed a complaint against the prejudiced view of the Chief Judicial Magistrate before the Registrar (Subordinate Judiciary) of the High Court of Kerala. The same is pending enquiry. Hence it is contended that the action of conducting trial on the part of the learned Chief Judicial Magistrate is tainted and therefore it is not a fair trial. It is also stated that the Chief Judicial Magistrate is taking a vindictive action against the petitioners. Petitioners submitted Exhibit P3, a written statement before the learned Magistrate narrating the grievance. Thereafter the petitioners also submitted an application under Section 311 of the Code of Criminal Procedure, 1973 to re‑examine Party Witness 7. Exhibit P4 is the application. The petitioners also submitted a list of seven defence witnesses to be examined on their side and filed a petition to issue summons. Exhibit P5 is the application. It is the specific case of the petitioners that without considering Exhibits P4 and P5, the case was posted for judgment on 15‑11‑2022. On 15‑11‑2022 the learned Magistrate convicted the accused and imposed a sentence of imprisonment for a period of four years under different sections of the Indian Penal Code, and directed the accused persons to undergo the sentence separately. Thereafter, the learned Magistrate issued warrants to the petitioners. At this stage these Original Petitions are filed., Original Petition No. 609/2022 is filed with the following prayers: (i) to pass an order transferring the case Criminal Case No. 24/2016 pending before the Chief Judicial Magistrate Court, Amini to any other Court for proceeding with the trial of the case; (ii) to call for the entire records in Criminal Case No. 24/2016 pending before the Chief Judicial Magistrate Court, Amini leading to Exhibit P2 and direct the Chief Judicial Magistrate Court to re‑examine Party Witness 7 afresh; (iii) to pass an order directing the Chief Judicial Magistrate Court, Amini to grant the certified copy of the order dated 14‑11‑2022 in Exhibit P4 and Exhibit P5 within a specific time frame; (iv) to pass an order dispensing with the filing of the translation of vernacular documents marked as Exhibits P1 and P2., The above Original Petition came up for consideration before the High Court of Kerala on 17‑11‑2022. Since there are serious allegations against the Chief Judicial Magistrate, this Court passed the following order on 17‑11‑2022: The Registrar (District Judiciary) will obtain a report from the Chief Judicial Magistrate Court, Amini, about the allegations raised in this Original Petition, especially the allegations in paragraphs 6 to 10. The allegations are very serious and therefore, after receiving the report, the Registrar will give a remark about the same and append the report to this Original Petition. The Registrar will get the report forthwith, post on 28‑11‑2022. Till then, no coercive steps shall be taken against the petitioners., Thereafter, Original Petition No. 608/2022 came up for consideration on 17‑11‑2022 and this Court directed the Registry to post Original Petition No. 608/2022 along with Original Petition No. 609/2022. The prayers in Original Petition No. 608/2022 are: (i) to pass an order directing the Chief Judicial Magistrate Court, Amini to grant the certified copy/free copy of the judgment dated 15‑11‑2022 in Criminal Case No. 24/2016 to the counsel for the petitioners within a specific time frame; (ii) to call for the entire records in Criminal Case No. 24/2016 pending before the Chief Judicial Magistrate Court, Amini leading to Exhibit P2 and enquire into the same; (iii) to direct the Chief Judicial Magistrate Court to keep all coercive proceedings for such period this honourable Court deems fit in the interest of justice; (iv) to pass an order dispensing with the filing of the translation of vernacular documents marked as Exhibits P1 to P3., Thereafter, Original Petitions No. 608/2022 and 609/2022 came up for consideration before the High Court of Kerala on 28‑11‑2022 with the report of the Chief Judicial Magistrate, Amini along with the remarks of the Registrar (District Judiciary). This Court perused the report and the remarks and passed the following order: The Registrar (District Judiciary) will obtain a report from the Chief Judicial Magistrate Court, Amini, about the allegations raised in the Original Petition, especially the allegations in paragraphs 6 to 10. The allegations are very serious and therefore, after receiving the report, the Registrar will give a remark about the same and append the report to the Original Petition. The Registrar will get the report forthwith, post on 28‑11‑2022. Till then, no coercive steps shall be taken against the petitioners., The Court is of the prima facie opinion that the explanation given by the Chief Judicial Magistrate is not acceptable. The main allegation against him is that he manipulated the evidence of a witness. It is fundamental in criminal law that if a witness is examined before the Court, the deposition should be read over to the witness and he should sign the deposition then and there. The explanation of the Magistrate shows that Party Witness 7, the Investigating Officer, after giving evidence, left the court premises without signing the deposition. Even if this is accepted, the Court is of the prima facie opinion that this is a clear case of dereliction of duty. If Party Witness 7 has committed that mistake, he is also responsible., K. Cheriyakoya, Former Sub Judge/Chief Judicial Magistrate, Amini, Lakshadweep, who is now working as Secretary of the District Legal Service Authority, is suo motu impleaded as additional third respondent in these Original Petitions., This Court is of the opinion that a show‑cause notice is to be issued to the Chief Judicial Magistrate, who is now working as Secretary of the District Legal Service Authority, for not recommending disciplinary proceedings against him. Meanwhile, the petitioners in these cases can appear through their lawyer before the lower court and the present Presiding Officer will issue a copy of the judgment to the petitioners so that they can file appeal before the appropriate court in accordance with law. Therefore, the following directions are issued: (1) Issue show‑cause notice to the additional third respondent for explaining why disciplinary proceedings shall not be recommended against him. The additional third respondent shall file his explanation to the show‑cause notice before the next posting date. The Registry will communicate this order to the additional third respondent through e‑mail forthwith. (2) The petitioners are free to approach the Chief Judicial Magistrate Court, Union Territory of Lakshadweep, Amini Island, through the Mukthiar and the Magistrate will issue a copy of the judgment to the Mukthiar on behalf of the petitioners. The petitioners are free to file an appeal before the appropriate court in accordance with law. (3) No coercive steps shall be taken against the petitioners for a period of one month from today. (4) Court Witness 19, who was examined as Party Witness 7 in Criminal Case No. 24/2016 on the file of the Chief Judicial Magistrate Court, Amini will appear before this Court on the next posting date. Post on 12‑12‑2022., Subsequently on 12‑12‑2022, Court Witness 19, who was examined as Party Witness 7 in Criminal Case No. 24/2016 on the file of the Chief Judicial Magistrate, Amini, appeared in person before the High Court of Kerala as directed. The Court asked him about the recording of his evidence on 24‑03‑2021 and he categorically said that he has not given any evidence before the Court on that date. Accordingly, the Court instructed the officer to file an affidavit to that effect on that day itself. The order passed by the Court on 12‑12‑2022 is extracted hereunder: Party Witness 7 appeared before the Court in person and submitted that he has not given any evidence before the Court on 24‑03‑2021. The same is recorded. Party Witness 7 will file an affidavit before the Court to that effect today itself. Post on 14‑12‑2022., The affidavit filed by Party Witness 7 states: I, Mohammed Sameer, son of M. C. Kidave (Late), aged 45 years, presently Circle Inspector, Police Headquarters, Kavaratti, Union Territory of Lakshadweep, Pin‑682555, do hereby solemnly affirm and state as follows: 1. I am the Investigating Officer in Crime No. 6/2015 of the Agatti Police Station which was numbered as Criminal Case No. 24/2016 by the Honourable Chief Judicial Magistrate Court, Amini. This affidavit is being filed as directed by the Honourable Court in Original Petition 608/2022 and Original Petition 609/2022 by order dated 12‑12‑2022. 2. Crime No. 6/2015 of the Agatti Police Station was registered by the Station House Officer, Mr. Ali Akbar and on his transfer the investigation was specifically entrusted to me, then SHO of Kavaratti. The matter was investigated and on filing final report, the case was numbered as Criminal Case No. 24/2016 by the Honourable Chief Judicial Magistrate Court, Amini. 3. I, being the Investigating Officer, was listed as Court Witness 19 (Party Witness 7). On receipt of summons I appeared before the Honourable Chief Judicial Magistrate on 28‑02‑2020. Since the Assistant Public Prosecutor was not available at the station, a request was made in open court that the case be adjourned to a date convenient for the Assistant Public Prosecutor. The request was recorded and my signature was also affixed. 4. On the next posting date, 24‑03‑2021, I appeared before the Honourable Chief Judicial Magistrate. The Assistant Public Prosecutor took the stand that Party Witness 7 could be examined only after examining Mr. Ali Akbar (Court Witness 18), the SHO who registered the FIR. Mr. Ali Akbar was not present on that date. Therefore the case was adjourned without proceeding further. I have not given any evidence on 24‑03‑2021. 5. It is submitted that the petitioner had signed the proceeding/deposition dated 28‑02‑2020 (Exhibit P1) but had not given any deposition as reflected in Exhibit P2. 6. All that is stated above is true to the best of my personal knowledge and belief and I have not suppressed any material facts. Dated this the 12th day of December 2022. Deponent solemnly affirmed and signed before me by the deponent whom I know personally on this the 12th day of December 2022 in my office at Emakulam. Advocate., Thereafter, these Original Petitions were listed on 14‑12‑2022. On that day, the additional third respondent, the then Chief Judicial Magistrate, who was impleaded in these cases in his personal capacity, filed a counter affidavit. The Court heard Advocate Lal K. Joseph, who appeared for the petitioners, Advocate Sajith Kumar V, the Standing Counsel appearing for the Union Territory of Lakshadweep, and Advocate P. Sanjay, who appeared for the third respondent. The Court already directed the Chief Judicial Magistrate, Amini to issue a copy of the judgment delivered in Criminal Case No. 24/2016 and coercive steps are deferred for a period of one month to facilitate the petitioners to approach the appellate court with an appeal against the conviction and sentence. Therefore no further orders are necessary as far as the same is concerned and the petitioners are free to agitate all their contentions raised in these Original Petitions before the appellate court in accordance with law., However, this Court cannot end the matter there. Serious allegations are raised against a Chief Judicial Magistrate. The settled legal position is that statements of Judges are binding as far as court proceedings are concerned and need not be contradicted by affidavit or other evidence. But if there is a personal allegation of prejudice or malafides against a judicial officer and if it is found that there is some substance in such allegation, the general presumption may not be applicable. The allegation from the petitioners, who are the accused in Criminal Case No. 24/2016, is that the Chief Judicial Magistrate, Amini, who is the third respondent, has personal enmity towards the petitioners. The learned Chief Judicial Magistrate who is holding the post of Subordinate Judge is also hearing several civil suits in respect of the same subject matter where the actual dispute is between the Union Territory of Lakshadweep Administration and the land owners. Several land owners have already filed complaint against the prejudiced view of the learned Chief Judicial Magistrate before the Registrar (Subordinate Judiciary) of this Honourable Court and the same is pending enquiry. The illegal action of conducting the trial on the part of the learned Chief Judicial Magistrate is tainted and hence for carrying out a fair trial, it is highly necessary to transfer the trial to any other Chief Judicial Magistrate within the jurisdiction of this Honourable Court. The complaint filed by the accused against the third respondent is admitted by the Registrar (District Judiciary) in his remarks dated 25‑11‑2022 submitted in Original Petition No. 609/2022. Therefore, it is an admitted fact that some of the accused filed a complaint against the Chief Judicial Magistrate/Subordinate Judge, Amini, in connection with the conduct of their case. In this background, the averments in these Original Petitions are to be considered., It is fundamental in criminal law that if the evidence of a witness is taken in open court and is completed it shall be read over to the witness in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. Section 278 of the Code of Criminal Procedure, 1973 provides that as the evidence of each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused or his pleader, and if the witness denies the correctness of any part, the Magistrate or presiding Judge may make a memorandum of the objection. Section 275 prescribes the record in warrant cases, requiring that the evidence of each witness be taken down in writing either by the Magistrate or by his dictation in open court, and that the evidence be signed by the Magistrate. Section 276 deals with the record in trial before the Court of Sessions. Rule 57 of the Criminal Rules of Practice in Kerala provides that after a deposition has been read over to the witness, the last page shall be signed in full by him, and the Judge shall initial every page if the deposition is not recorded in his hand, with a certificate appended stating that it was taken down in open court, interpreted/read over to the witness and admitted by him to be correct., In this case, the allegation against the Chief Judicial Magistrate, who is the third respondent, is that he has not recorded the evidence of Court Witness 18, who is examined as Party Witness 7. Exhibit P2, produced in these cases, is the evidence alleged to be given by Party Witness 7. Admittedly there is no signature of the witness in Exhibit P2. When this Court directed Party Witness 7 to appear before this Court, he appeared on 12‑12‑2022 and submitted that he has not given any evidence before the Court on 24‑03‑2021. This Court directed the officer to file an affidavit to that effect and accordingly an affidavit was filed by Party Witness 7 stating that on 24‑03‑2021 he appeared before the Chief Judicial Magistrate but did not give any evidence. The question is how Exhibit P2 deposition came into existence? This creates serious doubts about the recording of evidence by the additional third respondent, the Chief Judicial Magistrate, on 24‑03‑2021., This Court suspects that Exhibit P2 evidence, which according to the additional third respondent is the evidence given by Party Witness 7, is created by the additional third respondent. That is why this Court impleaded the Chief Judicial Magistrate, Amini as a party in these Original Petitions in his personal capacity. A counter affidavit is filed by the additional third respondent in which the averments in the Original Petitions are denied. The stand of the additional third respondent regarding the alleged recording of the evidence of Party Witness 7 is mentioned in paragraph 6 of his counter affidavit: Summons was ordered to Court Witness 19 and remaining witness and the case was posted on 23‑03‑2021. On 23‑03‑2021 the accused were again not present.
id_394	1	They filed applications through counsel and the same were allowed. Court Witness 19 was present. Counsel for the accused and the applicant sought a posting the next day, i.e., on 24 March 2021. On 24 March 2021 Court Witness 18 was not present but Court Witness 19 was present. The applicant and counsel for the accused suggested that Court Witness 18 be examined first. But since Court Witness 19 was continuously appearing and was earlier not examined because the applicant was absent, it was agreed by both sides that he could be examined. Accordingly Court Witness 19 mounted the box and the name of Court Witness 19 was written by the Bench Clerk Sri P.P. Muthukoya on the deposition sheet handed over to the Chief Judicial Magistrate Court, Amini, Lakshadweep. Court Witness 19 was partly examined as Prosecution Witness 7 and the deposition sheet Original Petition (Criminal) Nos. 608 and 609 of 2022 was handed over to the court staff for getting the signature of the witness. The case was then posted to 09 April 2021., As far as the absence of the signature of Prosecution Witness 7 in Exhibit P2 is concerned, an explanation is given in the counter affidavit in paragraph 17 and the same is also extracted hereunder: 17. The grounds raised in A to D are mere repetition of the averments made earlier in the statement of facts. In reply to ground E, it is submitted that Prosecution Witness 7 was examined but it is much later that this respondent discovered that the signature of the said witness was not affixed by the court staff after the examination got over on 24 March 2021. This respondent has therefore called for explanation from the staff, who have replied stating that the said witness left the court premises even before his signature could be obtained purportedly to catch the boat to reach the island where he works. True copy of the reply dated 21 November 2022 given by the Bench Clerk Sri P.P. Muthukoya is produced herewith and may be marked as Exhibit R4 (d). True copy of the reply dated 22 November 2022 given by the LD Clerk (Bench Assistant) Smt A.C. Puthunni is produced herewith and may be marked as Exhibit R4 (e). Ground F is also not true. Certified copy was issued on application after producing enough court fee stamp on 17 November 2022. At any rate the accused and counsel have abstained from appearing in court though they were very much available on the island itself., According to the learned Magistrate, he discovered that the signature of the witness was not obtained by the court staff after Original Petition (Criminal) Nos. 608 and 609 of 2022 the examination got over on 24 March 2021. There is no such case for the third respondent in the explanation given by him as per the order dated 17 November 2022. In the remarks, what is stated by the third respondent is that Prosecution Witness 7 after examination in the Chief Judicial Magistrate Court proceeded to the station without signing the deposition. First of all, if Prosecution Witness 7's evidence was recorded, in normal parlance, it is to be presumed that the signature of the witness is recorded then and there. But the learned Magistrate blamed the court staff for not getting the signature of the witness in the deposition. If Prosecution Witness 7 was examined on that day, it is the bounden duty of the Chief Judicial Magistrate to read over the evidence recorded to Prosecution Witness 7 and to get his signature then and there. Moreover, a certificate as contemplated in Rule 57 of the Criminal Rules of Practice is seen with the signature of the magistrate in Exhibit P2. Even after putting the signature in Exhibit P2, the third respondent did not check for the signature of the witness. This is surprising and cannot be accepted. Even if the case of the additional third respondent is accepted, there is serious dereliction of duty on the part of the additional third respondent., I cannot accept the explanation of the third respondent at this stage for the simple reason that the averments in the affidavit filed by Prosecution Witness 7 before this Court nullify the above stand of the learned Magistrate. It is true that the version of a Magistrate is to be accepted in normal parlance. But in this case there is allegation from the petitioners/accused to the effect that there is personal enmity from the learned Magistrate towards the accused and hence, without examining Prosecution Witness 7, the learned Magistrate created Exhibit P2 evidence. Prosecution Witness 7 who filed affidavit before this Court categorically stated that he has not given any evidence before the Chief Judicial Magistrate Court, Amini on 24 March 2021. If that is the case, this Court has to presume prima facie that the additional third respondent created or forged the evidence of Prosecution Witness 7., The learned Magistrate is relying on Exhibits R4 (d) and R4 (e), reply given by the Bench Clerk and the LD Clerk (Bench Assistant) to support his case. First of all, the duty is on the part of the additional third respondent to see that the evidence of a witness is recorded in his presence and the same is read over to the witness and signature of the witness is obtained in the deposition in his presence. Therefore I cannot accept the explanation given by the Bench Clerk and the LD Clerk (Bench Assistant). Moreover, in Exhibits R4 (d) and R4 (e), it is stated that the witness (Prosecution Witness 7) left the court premises without waiting to complete the court proceedings to catch a boat to another island, where he is working. These types of explanations cannot be accepted. This Court has to prima facie presume that the Bench Clerk and the LD Clerk (Bench Assistant) are also colluding with the additional third respondent to justify the actions of their superior officer. If the averments in Annexure R4 (d) and R4 (e) are accepted, there is serious dereliction of duty on the part of the Bench Clerk and the LD Clerk (Bench Assistant). Genuineness of Annexure R4 (d) and R4 (e) statements can be verified only after hearing the authors of that statement. In the facts and circumstances of this case, this Court has to conclude prima facie that the additional third respondent – the Chief Judicial Magistrate – committed forgery by creating the evidence of Prosecution Witness 7, which is produced as Exhibit P2 in these original petitions. The explanation alleged to be given by the Bench Clerk and the LD Clerk (Bench Assistant) as evident by Exhibits R4 (d) and R4 (e) is also not prima facie acceptable. If Annexure R4 (d) and R4 (e) are genuine statements, this Court is of the considered opinion that the Bench Clerk and the LD Clerk (Bench Assistant) are colluding with their superior officer the additional third respondent to justify the acts of their superior., From the above discussions, I am of the prima facie opinion that the additional third respondent forged the evidence of Prosecution Witness 7 and he is liable to be proceeded against under Section 340 of the Criminal Procedure Code. I am of the opinion that it is expedient in the interest of justice that an enquiry should be made into the offence referred to in clause (b) of sub‑section (1) of Section 195 of the Criminal Procedure Code because the additional third respondent appears to have committed the offence. Prima facie, I am of the opinion that a preliminary enquiry is to be conducted. Whether the Bench Clerk and the LD Clerk (Bench Assistant) are involved in aiding the additional third respondent is to be decided based on their statement before this Court in the preliminary enquiry. If Exhibits R4 (d) and R4 (e) are correct, they are also liable to be proceeded against in accordance with law. Therefore, notice is to be issued to the Bench Clerk and LD Clerk (Bench Assistant) also under Section 340 of the Criminal Procedure Code for conducting preliminary enquiry. Moreover, I am of the considered opinion that disciplinary proceedings are to be initiated against the additional third respondent. Prima facie, I am of the opinion that the additional third respondent committed serious misconduct and dereliction of duty. The disciplinary authority of the additional third respondent is the Administrator, Union Territory of Lakshadweep. In the peculiar facts and circumstances of this case, I am of the opinion that the disciplinary authority should place the additional third respondent under suspension pending enquiry. It is true that whether a person is to be placed under suspension pending enquiry is to be decided by the Disciplinary Authority. But in extraordinary situations, extraordinary orders are necessary to protect the interest of justice. I am of the opinion that this is a fit case in which this Court has to direct the Administrator, Union Territory of Lakshadweep, to place the third respondent under suspension pending enquiry. It is true that now the additional third respondent is working as Secretary, District Legal Service Authority. But even then, since he is in the service, there are chances to influence the witness and even intrude into the documents by the additional third respondent. Therefore, I am directing the Administrator to place the third respondent under suspension pending enquiry. Such a direction is necessary to protect the faith of the public in the system. Even if a person is occupying the post of Magistrate or Judge, the law of the land is applicable to all. If there is any dereliction of duty, the constitutional courts should step in to strengthen the trust of the people in the judiciary. The Magistrate, Judges and other presiding officers are not above the law and if they commit any dereliction of duty, they have to face the consequences. This should be a lesson to all., Therefore, these original petitions are disposed of with the following directions: The Administrator, Union Territory of Lakshadweep is directed to place the additional third respondent under suspension forthwith and conduct a detailed enquiry about his actions mentioned in this order forthwith and take appropriate steps in accordance with law, untrammeled by any observation in this judgement. The petitioners in these cases are allowed to raise all their contentions raised in these original petitions before the appellate court by filing appeal against the conviction and sentence imposed in Criminal Case No. 24 of 2016 on the file of the Chief Judicial Magistrate Court, Amini, Lakshadweep. If no appeal is filed so far, no coercive steps shall be taken against the petitioners for a further period of one month from today. Issue notice under Section 340 of the Criminal Procedure Code to the additional third respondent, Sri K. Cheriyakoya, Former Sub Judge/Chief Judicial Magistrate, Amini, Lakshadweep, now working as the Secretary, District Legal Service Authority, Lakshadweep, Sri P.P. Muthukoya, Bench Clerk, Chief Judicial Magistrate Court, Amini and Smt A.C. Puthunni, LD Clerk (Bench Assistant), Chief Judicial Magistrate Court, Amini for conducting a preliminary enquiry because this Court is of the opinion that it is expedient in the interest of justice that such an enquiry should be made into the offences referred to in clause (b) of sub‑section (1) of Section 195 of the Criminal Procedure Code. The Registry will enclose a copy of this order also along with the notice issued under Section 340 of the Criminal Procedure Code to the persons mentioned above. The Registry will give a separate number to the Section 340 of the Criminal Procedure Code proceedings in accordance with law and post the case on 23 January 2023 for the appearance of the additional third respondent and other persons mentioned above. Advocate Dheerendrakrishnan K.K. is appointed as Amicus curiae to assist the court during the preliminary enquiry under Section 340 of the Criminal Procedure Code. The Registry is directed to forward a copy of this judgement to the Administrator, Union Territory of Lakshadweep forthwith., Exhibit R4 (a) True copy of the communication dated 15 November 2022. Exhibit R4 (b) True copy of the deposition of Prosecution Witness 7 on 24 March. Exhibit R4 (c) True copy of the order dated 14 November 2022. Exhibit R4 (d) True copy of the reply dated 21 November 2022 given by the Bench Clerk Sri P.P. Muthukoya. Exhibit R4 (e) True copy of the reply dated 22 November 2022 given by the LD Clerk (Bench Assistant) Smt.
id_395	0	Date of Decision: 22nd August 2023. Commercial Suit (Commercial) 583 of 2023 and Interim Applications 15884 to 15889 of 2023 were heard through counsel Mister Pravin Anand, Mister Dhruv Anand, Miss Udita Patro and Miss Nimrat Singh versus counsel Mister Amit Verma, Mister Siddhartha Luthra and Mister Kunal Makkar. The hearing was conducted in hybrid mode. Interim Application 15887 of 2023 sought exemption from filing originals, cleared or translated copies of documents, left side margins, etc. Original documents shall be produced at the time of admission or denial, if sought, strictly as per the provisions of the Commercial Courts Act and the Delhi High Court Original Side Rules, 2018. Exemption is allowed, subject to all just exceptions. Interim Application 15886 of 2023 sought 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 plaintiffs, if they wish to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act and the Delhi High Court Original Side Rules, 2018. The application is disposed of. Interim Application 15889 of 2023 (under Section 12A of the Commercial Courts Act) sought exemption from instituting pre‑litigation mediation. In view of the fact that ex‑parte urgent orders are sought and in terms of orders passed in Chandra Kishore Chaurasia v. R A Perfumery Works Private Ltd, 2022/DHC/004454, the application is allowed and disposed of. Interim Application 15888 of 2023 (under Section 149 read with Section 151 of the Code of Civil Procedure) is an application under Section 149 filed by the plaintiffs seeking further time to pay the entire court fees. The court fees shall be filed within one week. The application is disposed of., Commercial Suit (Commercial) 583 of 2023 and Interim Applications 15884 of 2023 (for stay) and 15885 of 2023 (for discovery) were ordered as follows: The plaint is to be registered as a suit. Issue summons and notice to the defendant. Lead counsel for the defendant accepts summons and notice., The present suit has been filed by Plaintiff No.1 – Christian Louboutin SAS and Plaintiff No.2 – Clermon ET Associates, France against the defendant M/s Shoe Boutique (Shutiq), a partnership firm engaged in the manufacture and sale of shoes. The plaintiffs are entities existing in France. The first shop of the plaintiffs opened in 1991 in Paris. The plaintiffs are known for the well‑known RED SOLE shoes which are manufactured and sold by them. The manner in which the intellectual property rights of Christian Louboutin, the founder, were transferred to Plaintiff No.2 – Clermon ET Associates, a trust holding all the IPR, is explained in paragraphs 4 and 5 of the plaint. Plaintiff No.2 – Christian Louboutin SAS is the exclusive licensee of all the IP from Plaintiff No.1. The RED SOLE heeled shoes are a signature design of the plaintiffs and are also registered as a trademark. Several well‑known celebrities have endorsed the plaintiffs’ products as detailed in the plaint. The shoes of the plaintiffs have been depicted in well‑known television series and films including Sex and the City Part I & II, Devil Wears Prada and The Proposal., The plaintiffs assert that their shoes have acquired enormous reputation and goodwill not only globally but also in India. Various Indian and international magazines have featured the plaintiffs’ shoes and advertisements, showing that the mark has been extensively used worldwide. In India, the plaintiffs’ products with the unique designs have been sold since February 2012. In view of the extensive reputation enjoyed by the plaintiffs’ designs, they have also started a Stopfake programme by which consumers or any interested person can provide details of counterfeit or look‑alike products, which would then be investigated by the plaintiffs., Apart from the RED SOLE shoe, the plaintiffs have also adopted and created a new unique SPIKED SHOE STYLE with spike patterns. The spike patterns are created on both men’s and women’s shoes. The plaintiffs adopted the SPIKED SHOE STYLE around 2010. The plaintiffs claim that the SPIKED SHOE STYLE is inherently distinctive and can be instantly recognized as emanating from the plaintiffs alone., The sales figure of the plaintiffs for 2022 in India is approximately Rs 22 crores. The plaintiffs have filed the present suit being aggrieved by the defendant’s manufacture and sale of identical spike‑design shoes and footwear. The defendants operate in various malls including Select Citywalk Mall, Saket, from where the spike footwear has been identified by the plaintiffs’ investigators., The plaintiffs allege that the defendant firm is a partnership firm of the Makkar family and that the defendant is manufacturing identically designed shoes with the same get‑up. Purchases were made by the plaintiffs in Delhi, Hyderabad and other cities where the defendant is located. A comparison of the shoes shows that the defendant has identically copied the shoe designs. Some of the shoes have also been produced before the Delhi High Court today, which shows that the shape and size of the spikes are also identical. By virtue of the unique and distinctive style and combination of factors such as extensive advertising, long and continuous use, the plaintiffs have established goodwill in the said designs., The RED SOLE mark of the plaintiffs has already been declared to be a well‑known mark under Section 11(6) of the Trade Marks Act, 1999 by this Delhi High Court in Christian Louboutin SAS v. Mr. Pawan Kumar, Commercial Suit (Commercial) 714 of 2016, order dated 12th December 2017., Lead counsel Mister Pravin Anand submits that the reputation that the plaintiffs have garnered can also be evaluated on the basis of a ChatGPT query put on behalf of the plaintiffs, which is extracted herein. Lead counsel further submits that the RED SOLE SHOE is a registered trademark in India. The lead counsel also refers to the date of first use of each of the designs/get‑up and the first sale made in India, as set out in the table above. Lead counsel for the plaintiffs further brings to the attention of the Delhi High Court that the defendant is using photographs of various Bollywood celebrities on its social media handles and pages., On the strength of the above facts, it is submitted that the defendant should be injuncted., An advance copy of the suit was served upon the defendant and Mister Amit Verma, lead counsel, has entered appearance. In addition, Mister Kunal Makkar, one of the partners of the defendant, is also present in the Delhi High Court. Statement of Mister Kunal Makkar has been recorded to the effect that the shoe designs were used on a made‑to‑order basis when the customer requested them. He further gave an undertaking on behalf of his firm and his family members that the defendant would not in future imitate, copy, manufacture or sell any shoes which are imitative of the plaintiffs’ designs that are the subject matter of the present suit. The statement recorded today shows that the defendant has clearly given an undertaking that it does not intend to use the plaintiffs’ designs., This is not to say that the Delhi High Court recognises a monopoly in favour of the plaintiff for all spiked shoes or coloured soles. The impugned products ought to be a colourable or slavish imitation of the plaintiffs’ get‑up and designs for an injunction to be granted. In fact, when two different questions were put on ChatGPT, the following answers emerged: The above responses from ChatGPT, as also the one relied upon by the plaintiffs, show that the tool cannot be the basis of adjudication of legal or factual issues in a court of law. The response of a large language model based chatbot such as ChatGPT, which is sought to be relied upon by lead counsel for the plaintiff, depends upon a host of factors including the nature and structure of the query put by the user, the training data, etc. Further, there are possibilities of incorrect responses, fictional case laws, imaginative data etc. generated by AI chatbots. Accuracy and reliability of AI‑generated data is still in the grey area. There is no doubt in the mind of the Delhi High Court that, at the present stage of technological development, AI cannot substitute either human intelligence or the humane element in the adjudicatory process. At best the tool could be utilised for preliminary understanding or for preliminary research and nothing more., Upon perusing the shoes of the parties and the comparative chart of a large variety of product designs which have been imitated by the defendant, this Delhi High Court concludes that there has been a clear intention to imitate and gain monetarily on the strength of the reputation and goodwill of the plaintiffs. The court has no doubt that the products of the defendant are knock‑offs or look‑alikes of the plaintiffs’ distinctive shoes and footwear. The defendant has copied all the essential features of the plaintiffs’ footwear such as RED SOLE, SPIKED SHOE STYLE, as also the prints. The imitation is not of one or two designs but of a large number of designs as the chart indicates. The acts of the defendant are nothing more than an attempt to pass off its own goods as the goods of the plaintiffs., Under such circumstances, the suit itself deserves to be decreed in terms of paragraph 65(a) and (b) of the plaint. As regards the prayer for damages, since the defendant has agreed to give an undertaking on the very first day when the suit was listed before this Delhi High Court, it is directed that the defendant shall abide by the undertaking that it shall not copy or imitate any of the designs of the plaintiffs’ shoes. If any breach of this undertaking is found, the defendant shall be liable to pay a lump‑sum amount of Rs 25 lakhs as damages to the plaintiffs immediately upon such evidence coming to the notice of the plaintiffs. In addition, considering the fact that the defendant is also using pictures of well‑known Bollywood celebrities on its Instagram account and has displayed/sold the shoes in high‑end malls, it is directed that the defendant shall pay a sum of Rs 2 lakhs as costs to the plaintiffs within four weeks. The suit is decreed in the above terms. A decree sheet shall be drawn up after payment of the court fees. No further orders as to costs. The plaintiffs are also given a refund of 50 % of court fees. All pending applications are also disposed of.
id_396	0	WP(MD)Nos.18130 & 18131 of 2021. K. Krishna, Party-in-person, petitioner in W.P.(MD)Nos.18130/2021. M. C. Uma Maheswari, petitioner in W.P.(MD)Nos.18131/2021. The respondents are: The Managing Director, Star Health and Allied Insurance Company Ltd., New Tank Street, Valluvarkottam High Road, Nungambakkam, Chennai 600034. The Grievance Redressal Officer, Star Health and Allied Insurance Co Ltd, Corporate Grievance Department, MKM Chambers, 5th Floor, No.42, Kodambakkam High Road, Nungambakkam, Chennai 600034. The Director, Insurance Regulatory and Development Authority of India, Sy No.115/1, Financial District, Nanakramguda, Gachibowli, Hyderabad 500032. The Secretary, Ministry of Ayush, Ayush Bhawan, B Block, New Delhi 110023. The Branch Manager, Zonal Office, Star Health and Allied Insurance Co. Ltd., No.10, Deputy Collectors Colony, K. K. Nagar, Madurai 625020., Both petitions are filed under Article 226 of the Constitution of India, seeking a writ of mandamus directing the third and fourth respondents to consider the petitioners' representation dated 12 August 2021 and to award full reimbursement of the claimed amount under the insurance policies. Appearance for petitioners: K. Krishna (Party-in-person). Appearance for respondents: Mr. K. Ravi (respondents 1, 2 and 5), Mr. S. Anwarsameem (respondent 3), Mr. S. Jeyasingh (respondent 4), Special Panel Counsel for Government of India., When the matters came up for hearing on 16 November 2023, the Madras High Court passed the following order: These writ petitions have been filed for the issue of a writ of mandamus directing Star Health and Allied Insurance Company to award full reimbursement of the amount claimed by the petitioners under the insurance policies., The petitioners have policies with Star Health and Allied Insurance Company. The petitioner in W.P.(MD)No.18130 of 2021, an advocate practising before this Court, took a policy in 2009 for a sum of Rs 5 lakhs. The petitioner in W.P.(MD)No.18131 of 2021, an advocate clerk, took a policy in the same company for a sum of Rs 4 lakhs. During the Covid‑19 pandemic, both petitioners were infected and underwent treatment in a Siddha hospital., The petitioner in W.P.(MD)No.18130 of 2021 sought reimbursement of Rs 52,250 incurred towards treatment; only Rs 15,000 was reimbursed. The petitioner in W.P.(MD)No.18131 of 2021 also sought reimbursement of Rs 52,250; only Rs 10,000 was reimbursed., The petitioners submitted that when the policies were taken in 2009, they did not provide any separate cap for reimbursement of treatment taken in AYUSH hospitals and such treatment was to be treated on par with allopathic treatment. Therefore, they contend that the amount spent on treatment in the Siddha hospital must be reimbursed by the insurance company., The learned counsel for the insurance company submitted that the policies are governed by regulations issued by the Insurance Regulatory and Development Authority of India from time to time. For the policy of Rs 5 lakhs, the maximum cap is fixed at Rs 15,000 for AYUSH treatment, and for the policy of Rs 4 lakhs, the maximum cap is fixed at Rs 10,000, which has already been reimbursed to the petitioners., The Madras High Court directed that the terms of the policies be placed before the Court. The petitioners sought time to place the relevant documents, and the counsel for the insurance company was also directed to place the relevant materials to substantiate the claim that a maximum cap is fixed for treatment undertaken at AYUSH hospitals., When the matter was taken up for hearing on 21 November 2023, the counsel for the insurance company produced the relevant insurance policies. It was admitted that the 2009 policy excluded expenses incurred for treatment under systems of medicine other than allopathy, and the insurer was not liable to make any payment for those expenses. The current policy shows that for AYUSH treatment the maximum cap is Rs 10,000 for sum insured up to Rs 4,00,000, Rs 15,500 for sum insured from Rs 5,00,000 to Rs 15,00,000, and Rs 20,000 for sum insured from Rs 20,00,000 to Rs 25,00,000. The policies are issued with the permission and licence of the Insurance Regulatory and Development Authority of India., In view of the policies produced, the Madras High Court finds that the maximum caps fixed under the policies have already been paid to the petitioners. Consequently, no further direction can be issued to the insurance company to pay the entire amount claimed by the petitioners., The Court notes a larger issue: during the Covid‑19 pandemic, traditional medicines were recommended for infected persons and hospitals attended only to emergency cases because allopathic medicine did not have a definitive cure. The eventuality of effective AYUSH treatment was not anticipated when the policies were finalized, which is why a maximum cap was fixed. However, it has come to light that AYUSH treatment provided substantial relief, and it would not be reasonable to restrict the cap thereby depriving policyholders of reimbursement for expenses incurred in AYUSH hospitals., The Insurance Regulatory and Development Authority of India must consider that patients can choose either allopathic or traditional AYUSH treatment, and expenses incurred for either should be placed on an equal scale. Giving preference to allopathy would be discriminatory, and the third respondent should keep this principle in mind when drafting and approving policies., The third respondent must bear in mind that traditional AYUSH treatment should be encouraged and given the same weightage as allopathic treatment, and a person who chooses AYUSH treatment should be entitled to receive the insurance amount for expenses incurred, as is done for a patient undergoing allopathic treatment. This must be implemented in all future policies., It is brought to the notice of the Madras High Court that Star Health and Allied Insurance Company Limited has introduced a new policy called the AYUSH Plan Policy, wherein AYUSH treatment is covered and expenses incurred are reimbursed, placing AYUSH treatment on par with allopathic treatment., The Court directs the third respondent to act upon the suggestion made by this Court to place AYUSH treatment on par with allopathic treatment and to direct insurance companies to reimburse insurance amounts on equal scales. Both writ petitions are disposed of in the above terms. No costs.
id_397	0	Arising out of Police Station Case No. 137 Year 2021, Thana Mahila Police Station, District Araria, the State of Bihar (Petitioner) versus Md. Major, son of Late Shamser, resident of Birnagar Paschim, Police Station Bhargama, District Araria, Bihar (Respondent). The same case is also recorded as Md. Major alias Mejar, son of Late Shamser, resident of village Birnagar Paschim, Police Station Bhargama, District Araria (Appellant) versus the State of Bihar (Respondent)., For the Petitioner: Mr. Prince Kumar Mishra, Amicus Curiae; Mr. Satya Narayan Prasad, Additional Public Prosecutor; Mr. Vijay Kumar, Advocate. For the Respondent: Mr. Sanjay Singh, Senior Advocate; Mr. Raj Kumar, Advocate; Mr. Vijay Kumar, Advocate; Mr. Sudhanshu Shekhar, Advocate; Mr. Rajnish Kumar, Advocate; Mr. Sarvottam Kumar, Advocate. For the Appellant: Mr. Sanjay Singh, Senior Advocate; Mr. Raj Kumar, Advocate; Mr. Vijay Kumar, Advocate; Mr. Sudhanshu Shekhar, Advocate; Mr. Rajnish Kumar, Advocate; Mr. Sarvottam Kumar, Advocate. For the Respondent: Mr. Satya Narayan Prasad, Additional Public Prosecutor; Mr. Prince Kumar Mishra, Amicus Curiae. For the Informant: Mr. Ranjit Kumar Thakur, Advocate, Patna High Court. Dated 16-08-2022, Mr. Munish Om Prakash Singh, Advocate., This death reference under Section 366 of the Criminal Procedure Code and the connected appeal of the convict reminds the Patna High Court of the oft‑quoted observation of Lord Hewart made while quashing a conviction nearly one hundred years ago: 'It is not merely of some importance but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.' Lord Hewart further observed that what is important is not merely what was actually done but what might appear to have been done, stating: 'Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.' This dictum that justice should manifestly and undoubtedly be seen to be done can be satisfied by observance of the rule of audi alteram partem and the opportunity of being heard contemplated in the principle of natural justice. The Patna High Court has held that such opportunity must be real, reasonable and effective, not a mere paper exercise, especially when the life and liberty of an accused are at stake. This principle is a sine qua non of every civilized society., The corollary deduced from this rule is: 'qui aliquid statuerit, parte inaudita altera aequum licet dixerit, haud aequum facerit' (he who decides anything without the other side having been heard, although he may have said what is right, will not have done what is right). The primary aim of the principles of natural justice is to ensure equity in the economic undertakings of society and to defend individual liberty against arbitrary action. Although the idea of natural justice may not be expressly stated in the Indian Constitution, authorities consider it a mandatory element for the administration of justice. It originates from the concept of jus naturalis, the law of nature, and in simple terms establishes the difference between right and wrong. Even in ancient times, during the reign of Adam and Kautilya’s Arthashastra, the rule of law bore the stamp of natural justice, then called social justice. It was said that the king should dispense justice as water flows from fountains, without bias and to the hands of all., Undoubtedly, an accused in a criminal trial is required to be given an impartial hearing by an unbiased judge, with an opportunity to set up his defence and to controvert the evidence adduced by the prosecution, including leading defence evidence if he so desires. Every judge must keep this basic concept of fair play in mind while conducting a criminal trial., The present death reference and the connected criminal appeal arise out of the judgment of conviction and order of sentence dated 25‑01‑2022 and 27‑01‑2022 respectively, passed by the learned Special Judge (POCSO), Araria, in Special Protection of Children from Sexual Offences (POCSO) Case No. 1 of 2022, arising out of Araria Mahila Police Station Case No. 137 of 2021. By the impugned judgment and order, the learned trial court convicted the appellant of offences punishable under Section 376AB of the Indian Penal Code, Section 4 of the Protection of Children from Sexual Offences Act, 2012, and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant was sentenced to death for the offence under Section 376AB of the Indian Penal Code, with a direction that he be hanged by the neck till dead. For the offence under Section 3(2)(v) of the Prevention of Atrocities Act, the accused was directed to suffer imprisonment for life and to pay a fine of ten thousand rupees. No separate sentence was awarded for the offence under Section 4 of the POCSO Act; the learned trial court directed that the substantive sentences shall run concurrently. For convenience, the appellant shall be referred to in his original capacity as the accused., The incident of penetrative sexual assault on the victim, a female child identified as PW‑2 (identity concealed), allegedly took place after 6:00 p.m. on 01‑12‑2021. The child, aged about seven years, resided with her parents and grandfather at village Majrahi Chakra, Ward No. 4, under the jurisdiction of Police Station Bhargama, District Araria. On the date of the incident, the child was playing in front of her house while her mother, PW‑1 (identity concealed), was cooking inside. The accused, Major, a neighbour who visited the family, came to the door and asked the child to give him water in a pot so that he could relieve himself. After receiving the water, the accused threw the pot, pressed the child’s mouth with his hand, and took her to a nearby field where he committed penetrative sexual assault, causing the child to bleed. The accused threatened the child, then left her near her house. Upon returning home, the child disclosed the assault to her mother. The child’s grandfather, PW‑4, also returned to the house at that time., The child’s parental relatives disclosed the incident to villagers, who suggested settlement by compromise. The mother, PW‑1, telephonically informed her husband, and the police were informed the next day. PW‑1 then went to Araria Mahila Police Station and lodged a report under Section 154 of the Criminal Procedure Code against the accused., On the basis of the FIR lodged by PW‑1, Crime No. 137 of 2021 was registered against the accused at Mahila Police Station, Araria, for offences under Section 376AB of the Indian Penal Code, Section 4 of the Protection of Children from Sexual Offences Act, and Section 3(2)(v) of the Prevention of Atrocities Act on 02‑12‑2021. Routine investigation followed. The victim was sent for medical examination. The investigating officer recorded statements of witnesses under Section 161 of the Criminal Procedure Code, and statements under Section 164 were recorded by the concerned magistrate. The spot of the incident was inspected, and the victim’s paijama was seized as Exhibit‑5. The accused’s blood sample was seized as Exhibit‑6. Seized articles were sent to the Forensic Science Laboratory at Bhagalpur. The accused was charge‑sheeted on 20‑01‑2022., The learned trial court took cognizance of the offence on 20‑01‑2022. The accused was produced through video conferencing and the trial was fixed for supplying the police papers to the accused and for framing of charge on 22‑01‑2022. On that date, the court supplied the police report under Section 173 of the Criminal Procedure Code (the charge sheet) with annexures to the accused’s advocate, and the charges were framed. The accused pleaded not guilty and claimed trial. The court allowed the application filed by PW‑5 Anima Kumari, the investigating officer, to record evidence of four prosecution witnesses: PW‑1 (mother), PW‑2 (victim), PW‑3 Dr. Shaila Kunwar (Medical Officer, Forbisganj Sub‑Divisional Hospital), and PW‑4 (grandfather). On 24‑01‑2022, evidence of the investigating officers PW‑5 (Anima Kumari, Police Sub‑Inspector) and PW‑6 (Rita Kumari, Station House Officer, Mahila Police Station, Araria) was recorded. The investigating officer then submitted an application for deciding the case on the same day. By allowing that application partly on 22‑01‑2022, the statement of the accused was recorded under Section 313 of the Criminal Procedure Code; the accused pleaded an alibi, alleged false implication, and prayed for the opportunity to adduce defence evidence. The trial court fixed the date for defence evidence on 25‑01‑2022. The application for a one‑week adjournment to adduce defence evidence was rejected, and defence evidence was closed on 25‑01‑2022. Arguments of both sides were heard, and the accused was convicted on 25‑01‑2022. The case was adjourned for sentencing, and on 27‑01‑2022 the accused was sentenced to death., We heard Mr. Sanjay Singh, Senior Advocate, appearing for the appellant/accused. He submitted that the learned trial court failed to accord a fair trial. The accused was supplied with police papers and on the same day the charges were framed; immediately thereafter evidence of four prosecution witnesses was recorded. This haste denied the accused an effective opportunity of hearing. Despite two oral and one written request, the accused was prevented from adducing defence evidence, and the trial court unfairly closed the defence side. The trial proceeded without complying with Section 309 of the Criminal Procedure Code and the provisions of the Protection of Children from Sexual Offences Act, thereby flouting the principles of natural justice., The senior advocate relied on paragraph 10 of the judgment in Hussainara Khatoon and Others v. Home Secretary, State of Bihar (1980) 1 SCC 98, arguing that the concept of fair trial includes granting sufficient time to the accused to prepare his case. He also relied on the judgment in Anokhilal v. State of Madhya Pradesh (2019) 20 SCC 196, contending that where death is a possible punishment, the trial court must ensure full opportunity of hearing for the accused. Further reliance was placed on State of Bihar v. Balram Singh (2022) 2 PLJR 625, Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54, David v. State of Kerala (2020) SCC Online Kerala 3368, and Manoj Pradeep Singh v. State of Rajasthan (2022) Live Law (SC) 557, to argue that the accused need not produce defence evidence, has a right to remain silent, and that the death penalty should be awarded only in the rarest of rare cases, which this case does not satisfy., The learned Additional Public Prosecutor, appearing for the State of Bihar, argued that the accused is a dacoit from the village who abducted the minor girl for rape and has a criminal history. No argument was advanced to rebut the contention that a fair trial was not accorded to the accused., When the hearing of the appeal and death reference began, the Additional Public Prosecutor was absent for a few dates. By order dated 04‑07‑2022, the court appointed Mr. Prince Kumar Mishra as Amicus Curiae to protect the interests of all stakeholders. The Amicus Curiae observed that after the police papers were supplied on 22‑01‑2022, the accused or his advocate did not seek any adjournment nor object to the recording of prosecution witness evidence. The accused participated in the trial without protest. On 24‑01‑2022, after the prosecution evidence closed, the statement of the accused under Section 313 of the Criminal Procedure Code was recorded, and there was no question of granting adjournment at that stage. The trial court had granted an opportunity to produce defence evidence on 25‑01‑2022, which the accused failed to avail. Accordingly, the trial court rightly pronounced judgment on that day, keeping in mind the mandate of Section 309 of the Criminal Procedure Code and Section 35 of the Protection of Children from Sexual Offences Act. The Amicus Curiae further argued that the accused, having participated in the conviction, cannot now claim that proper opportunity to defend was denied., The Amicus Curiae submitted that, being a case of rape of a minor, the court must shoulder a heavy responsibility by appreciating the prosecution evidence on broader probabilities. Minor discrepancies should be ignored. He relied on State of Punjab v. Gurmit Singh (1996) 2 SCC 384, stating that the victim’s testimony, if found truthful, can be accepted without corroboration. He held that the evidence of PW‑2, the victim, is clear, cogent and trustworthy, and therefore there is no need to interfere with the conviction. However, he also submitted that the case does not fall within the 'rarest of rare' category and therefore does not warrant the death penalty; the accused could be sentenced alternatively as per law., We have considered the submissions and perused the record. While dealing with a case involving the extreme penalty of death, repetition of facts is inevitable. The Legislature has made trials of certain offences time‑bound, yet every accused has a fundamental right to a speedy trial. Under Section 309 of the Criminal Procedure Code, the trial of an offence under Section 376AB of the Indian Penal Code must be completed within two months from the filing of the charge sheet. Section 35 of the Protection of Children from Sexual Offences Act mandates that the trial of an offence punishable under Section 4 be completed, as far as possible, within one year from the taking of cognizance. Despite these provisions, each stakeholder, including the accused, has a constitutional right under Article 21 of the Constitution of India to be dealt with fairly, through a procedure that is reasonable, just and fair. Non‑compliance with statutory procedure can lead to setting aside the conviction and sentence., The criminal trial is a quest for truth in which an unbiased judge must give a fair trial to both the prosecution and the accused. Section 207 of the Criminal Procedure Code requires that the accused be provided without delay with documents including the complete police report under Section 173, the FIR under Section 154, statements of witnesses under Section 161, and confessions and statements under Section 164, free of cost, before commitment of the case to the Court of Sessions. This ensures the accused knows the case and evidence against him and can prepare his defence before the charge is framed under Section 227. The Patna High Court has framed Criminal Court Rules, Rule 50‑A, which mandates supply of statements of witnesses recorded under Sections 161 and 164 and a list of seized documents and exhibits to every accused. Compliance with Section 207 must be ensured prior to hearing on the point of framing of charge, i.e., before the stage envisaged by Sections 227 and 228 of the Criminal Procedure Code., As one of the offences alleged is punishable under Section 4 of the Protection of Children from Sexual Offences Act, the Special Court must follow Section 33 of that Act, which mandates that the trial be conducted in accordance with the procedure specified in the Criminal Procedure Code for a trial before a Court of Session. Under Section 226, the prosecutor must describe the charge and disclose the evidence. After this, the Sessions Judge hears submissions of both parties, and the accused may seek discharge at this stage. The charge, once framed under Section 228, must be read and explained to the accused. If the accused pleads not guilty, the judge fixes a date for examination of prosecution witnesses under Section 230. For grave or complex charges, the accused must be given sufficient time to prepare his defence after receipt of the charge sheet and investigation papers, reflecting the entitlement to a fair hearing embodied in Sections 207, 226, 227 and 230.
id_397	1	The Trial Court, considering the extreme penalty to which the accused becomes liable in a case involving a grave charge, is duty bound to fix the case for recording the prosecution evidence a few days after framing the charge. This interval enables the accused to think carefully about the case, consult his Advocate, instruct his Advocate and prepare his defence after effective consultation. Interaction by conference with his Advocate is essential for a fair trial. Accordingly, the Code of Criminal Procedure does not contemplate recording prosecution evidence on the same day as charge framing; it provides for posting the case on a later date. The trial Judge must ensure that the accused, especially an under‑trial accused, gets a proper, full, meaningful and sufficient opportunity to defend himself by consulting his Advocate and giving appropriate instructions. For adherence to the principles of natural justice, the Trial Court is therefore supposed to adjourn the case for recording prosecution evidence after a gap of a few days following charge framing. Recording evidence immediately on the same day, particularly when the accused is an under‑trial prisoner, would defeat the ends of justice and can cause prejudice to both parties., After recording the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure is taken. If, after hearing the parties, the Sessions Judge is of the opinion that there is no evidence that the accused committed the offence, the accused becomes entitled to acquittal under Section 232 of the Code of Criminal Procedure. When acquittal is not secured, the Judge is duty bound to call the accused to enter his defence in accordance with the principle of natural justice embodied in Section 233 of the Code of Criminal Procedure. Apart from filing a written statement of defence, the accused is entitled to examine defence witnesses and may apply for the issuance of process to compel the attendance of any witnesses or the production of any document or thing. Section 233 provides that, except when such a request is made for the purpose of vexation, delay or to defeat the ends of justice, the Judge must issue the process. Refusal by the Sessions Judge must be supported by recorded reasons to prevent unfairness, arbitrariness or bias. Failure to comply with Section 233 amounts to a failure of justice., The provision in Section 233 is intended to uphold the principle that nobody can be condemned unheard. In a serious case, the Court cannot bypass this provision, which enables the accused to put forth his case by examining defence witnesses or by entering his defence after complying with Section 315 of the Code of Criminal Procedure. The accused in the present case has raised a plea of alibi and false implication due to political enmity., The law recognises the obligation to hear both sides; no person should be condemned unheard (audi alteram partem). The rules of natural justice are flexible and their application depends on the facts of each case and the applicable statutory provisions, i.e., the Code of Criminal Procedure. The judiciary, as an organ of the State, is controlled by the rule of law, and every trial Judge must act justly, fairly and not arbitrarily. When Section 233 mandates that the accused is entitled to examine witnesses to establish, on a pre‑ponderance of probability, that he has not committed the crime, the Court cannot shut its doors to deprive the accused of this statutory opportunity. The burden of proving an alibi rests on the accused, and he must be allowed to adduce defence evidence. The Trial Court must grant sufficient time to the accused to apply for issuance of process and to secure attendance of his witnesses, especially when the accused is incarcerated and unable to contact his Advocate or relatives. The situation is aggravated when the under‑trial prisoner cannot appear physically before the Trial Court because of restrictions imposed due to the COVID‑19 pandemic. In such circumstances, it becomes virtually impossible for the accused to defend himself effectively unless the Trial Court follows Section 233 in its true spirit. Omission to comply with this provision, which embodies the principles of natural justice, amounts to a flagrant breach of those principles and can cause severe prejudice to the accused., Article 21 of the Constitution guarantees life and personal liberty to all persons: ‘No person shall be deprived of his life or liberty except according to procedure established by law.’ In the matter of Anokhilal, the Supreme Court considered how far the procedure established by law must be followed while trying an accused in a criminal case. The Court observed that the Amicus Curiae was appointed on 19‑02‑2013 and was called upon to defend the accused at the stage of charge framing on the same day, without sufficient time to review documents or interact with the accused. Consequently, the right under Sections 227 and 228 of the Code of Criminal Procedure to a meaningful hearing was denied., The Supreme Court held that the Trial Court should have adjourned the matter to give the Amicus Curiae sufficient time to prepare. Although the approach expedited the trial, it did not further the cause of justice. The charges were framed the same day and the trial concluded within a fortnight, depriving the appellant of real and meaningful legal aid., In V. K. Sasikala v. State, the Supreme Court cautioned that while expeditious disposal of criminal matters is desirable, it must not be achieved at the expense of the well‑entrenched principles of law that safeguard fairness. The cause of justice must never be sacrificed for speed., The Supreme Court also referred to Bashira v. State of U.P., holding that when death sentence is a possible punishment, the courts must be completely vigilant and ensure full opportunity at every stage to the accused. This underscores that the trial Judge must follow procedural law meticulously and scrupulously at each stage to grant a fair trial., The Supreme Court, in the Best Bakery case (Zahira Habibulla H. Sheikh), observed that a criminal trial is a judicial examination aimed at discovering truth, not a bout over technicalities. The proof of charge must be beyond reasonable doubt and based on a totality of evidence. Failure to accord a fair hearing to either side violates the minimum standards of due process of law. A fair trial requires both technical compliance with the law and just application of its principles to prevent miscarriage of justice., In the matter of Balram Singh, the Division Bench set aside the conviction, holding that the accused was not provided with basic documents or sufficient time for discussion or interaction with counsel., The learned Senior Advocate also relied on paragraph 10 of the judgment in Hussainara Khatoon (IV), which states that the State cannot avoid its constitutional obligation to provide a speedy trial by pleading financial or administrative inability. Poverty cannot be a barrier to speedy justice. In the present case, the trial concluded within a few days of filing the charge sheet, contrary to the principle of speedy trial., The procedural history of the present case is as follows. On 20 January 2022, the charge sheet was filed and a Special Protection of Children from Sexual Offences (POCSO) case was registered against the accused. The accused was produced through video conferencing and directed to engage an Advocate, but he expressed inability to do so because of incarceration. The Trial Court took cognisance of offences punishable under Section 376AB of the Indian Penal Code, Section 4 of the Protection of Children from Sexual Offences Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The case was adjourned to 22 January 2022 for supplying police papers to the accused and for framing the charge. The Court informed the accused that free legal aid would be provided if required., On 22 January 2022, police papers were supplied to the accused through his Advocate. The Prosecutor and the accused’s Advocate were heard on the point of framing the charge, and charges under the aforementioned statutes were framed and read to the accused, who pleaded not guilty. The Court directed the Office to issue summons to the prosecution witnesses named in the charge sheet. The Investigating Officer (PW 5 Anima Kumari) applied to record the testimony of prosecution witnesses, including the victim child, on the same day, alleging pressure on the prosecution by the accused’s family. The Trial Court allowed the application, and the depositions of four prosecution witnesses were recorded via video conferencing on that day., On 24 January 2022, evidence of PW 5 Anima Kumari and PW 6 Rita Kumari was recorded, and the prosecution evidence was closed. PW 5 filed an application alleging that the accused was threatening the victim and her family and prayed that the case be decided on that day. The accused’s Advocate sought a one‑week adjournment to prepare his defence, but the Trial Court observed that no concrete reason was shown and that the accused was protracting the trial. The Court partially permitted PW 5’s application and, on the same day, produced the accused through video conferencing to record his statement under Section 313 of the Code of Criminal Procedure. The accused expressed willingness to adduce defence evidence. The Court directed the accused to produce documents and have defence witnesses ready by 10:30 am on 25 January 2022, noting that ‘justice delayed is justice denied.’, On 25 January 2022, the Advocate for the accused and defence witnesses were absent at 11 am. An application for adjournment was filed, stating that the accused had not received copies of the prosecution depositions and therefore could not inform defence witnesses. The Court supplied copies of the depositions, but the defence witnesses were still not produced, and the Advocate claimed inability to produce them due to pressure from 40‑50 relatives of the accused. The Court warned that failure to produce defence evidence would result in its closure and set the hearing for 2 pm. At 2 pm, no defence witnesses were produced, and the Court recorded that the Advocate did not want to examine defence witnesses. The application for adjournment was disposed of as a pressurising tactic. The Court heard arguments until 6:30 pm and pronounced judgment at 7:10 pm, convicting the accused of offences under Section 376AB of the Indian Penal Code, Section 4 of the Protection of Children from Sexual Offences Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The case was adjourned to 27 January 2022 for sentencing., On 27 January 2022, after hearing both parties on the quantum of sentence, the Trial Court sentenced the accused to death for the offence under Section 376AB of the Indian Penal Code, directing that he be hanged by the neck till dead, and imposed other sentences, including a direction to refer the death sentence for confirmation., Life and personal liberty of any person cannot be taken away except in accordance with procedure established by law. The basic procedure for trial of a criminal case as prescribed by the Code of Criminal Procedure has been elaborately dealt with in the foregoing paragraphs.
id_397	2	After putting on record how the trial progressed, we now examine whether the Trial Court was aware of the fundamental rules for conducting a criminal trial as envisaged in the procedural code that is the Code of Criminal Procedure, as well as the Criminal Court Rules framed by the Court, apart from the principles enshrined in Article 21 of the Constitution, and whether these were strictly followed while conducting the trial which ended by imposing the death penalty on the accused., In the instant case, the charge‑sheet, that is the Police Report under Section 173 of the Code of Criminal Procedure, was filed on 20 January 2022 and the presence of the accused was secured by the Trial Judge through video conferencing. Despite taking cognizance of the offence, the accused was not provided with the police report and its annexures, ignoring the mandate of Section 207 of the Code of Criminal Procedure, which directs the supply of the entire set of investigation papers without delay to the accused. The Trial Court, instead of complying with Section 207, adjourned the case to 22 January 2022 for supply of police papers and for framing of charge. Thus, the principle enshrined in Section 207 of the Code of Criminal Procedure and Rule 50A of the Criminal Court Rules was violated, depriving the accused of becoming aware of the case against him and of having sufficient time to instruct his advocate for the hearing on the framing of charge and for claiming discharge. The accused was not given sufficient time to review the investigation papers, contemplate them, and consult his advocate to oppose the prosecution’s request for framing charges or to claim discharge., The accused, Md. Major, an under‑trial prisoner, did not have the advantage of physical production before the Court due to COVID‑19 pandemic restrictions. He had no opportunity to contact his advocate, who was engaged only on 21 January 2022. In compliance with the procedure prescribed by Section 207 of the Code of Criminal Procedure, the Trial Court ought to have supplied the police papers to the accused through the prison authorities at least on 21 January 2022, the day the defence advocate was engaged., What happened on 22 January 2022 before the Trial Court is a glaring example of violation of procedural law and shows bias towards the accused. On that day, police papers of the investigation were supplied to the accused’s advocate because the accused was not physically produced before the Court. The record shows that, due to COVID‑19 restrictions, the accused was never produced physically before the Court at any time; he was produced only through video conferencing when directed. The record does not reflect that from the date of taking cognizance of the offence until the conclusion of the trial, the defence counsel had a single opportunity to meet, consult, or discuss the case with the accused, even by video conferencing. In fact, the accused had no opportunity to read the charge sheet and investigation papers, which were supplied to his advocate a few minutes before the hearing on the charge on 22 January 2022, and the accused was not directed to be produced via video conferencing by the Trial Court. Without giving the defence counsel any opportunity to interact with the accused after explaining the contents of the investigation papers, the counsel was required to argue on the point of framing of charge as contemplated by Section 227 of the Code of Criminal Procedure. All this appears to have taken place within a short span of time before 11:30 a.m. on 22 January 2022., The accused, by that time, was not even aware of the contents of the police investigation papers that incriminated him. Consequently, he was unable to brief the defence counsel for presenting his stand before the Court at the hearing contemplated by Section 227 of the Code of Criminal Procedure. On 22 January 2022, neither the accused nor the defence counsel had any means to communicate for imparting or seeking instructions to put forth the accused’s stand before the Court. The order sheet does not show that the accused was produced before the Court at the time of the charge hearing through video conferencing, nor that the defence counsel was in a position to communicate with him for instructions. It is clear that the defence counsel was made to argue on the point of framing of charge without a real opportunity to obtain instructions from the accused after furnishing the police report to him. This indicates that the procedure prescribed by Sections 207 and 227 of the Code of Criminal Procedure was not followed, despite the seriousness of the offence carrying the death penalty. The order sheet dated 22 January 2022 leaves no doubt that the defence counsel was not granted sufficient time to examine the charge sheet supplied to him only minutes earlier. He was compelled to make submissions on the framing of charge under compelling circumstances. The events that followed on 22 January 2022, including the rapid progression of the trial, demonstrate that the Trial Court treated the hearing on the framing of charge as a formality, failing to adjourn the case after supplying the charge sheet to the defence advocate. The Court also failed to permit the defence counsel to seek instructions from the accused through video conferencing. This breach of procedural law deprived the accused of his right to a fair trial. The charge was framed, and the accused was then produced through video conferencing and the charge explained to him., Immediately after the framing of the charge, Police Sub‑Inspector Anima Kumari filed an application before the Trial Court requesting that the evidence of prosecution witnesses be recorded on the same day, 22 January 2022, on the ground that secret information had been received indicating that the brother and family members of the accused were unnecessarily pressurising the prosecution. It is clear that, without passing any order on that application, the Trial Court began recording the depositions of four witnesses, PW 1 to PW 4, and the defence advocate was made to cross‑examine those witnesses instantly on the same day. The Court’s day starts at 10:30 a.m.; in the opening hour from 10:30 a.m. to 11:30 a.m., the Court supplied the police papers to the defence advocate, heard the parties on the framing of charge, framed the charges for the grave offences, read and explained the charges to the accused by producing him through video conferencing, and recorded his plea. It is difficult to understand how such judicial work, which requires consideration of the entire investigation papers, hearing of submissions, and application of mind, could be completed within a single hour, in addition to entertaining the application of the investigating officer for recording evidence of prosecution witnesses on that day. The exercise of framing charge is a time‑consuming process, and it is practically impossible to complete it in such a short span, indicating that the Trial Court treated it as a mere formality, bypassing the spirit of the law. The order sheet shows that, after recording the evidence of the four prosecution witnesses, the Court passed an order on the investigating officer’s application, stating that all witnesses present had been produced and their depositions taken in the interest of justice. This suggests that the recording of the four witnesses commenced at 11:30 a.m. on 22 January 2022 and the order was written thereafter, which does not accurately depict the sequence of events. Moreover, the procedure adopted by the Trial Court for expediting the trial did not secure the ends of justice; rather, justice suffered due to the manner in which the trial was conducted., The rapid speed with which the Trial Court proceeded on 22 January 2022, bypassing the stages prescribed by the procedural code, made it impossible for the defence advocate to review the police papers, including statements of prosecution witnesses recorded under Sections 161 and 164 of the Code of Criminal Procedure, and other investigation documents, for conducting effective cross‑examination of the four prosecution witnesses examined that day. Furthermore, the defence advocate could not communicate with the accused, who was not physically present before the Court. The record shows that the accused remained in an incommunicado state throughout the trial, being produced only through video conferencing when the Court required his presence for warning, for explaining the charge, or for recording his plea., The order sheet does not show that, at the time of recording the evidence of the four prosecution witnesses on 22 January 2022, the accused was present before the Court, even through video conferencing, to hear the evidence being presented against him. Recording evidence of prosecution witnesses in the presence of the accused is a minimum requirement of a fair trial. The order sheet indicates that the accused was not made to remain present, even through video conferencing, while evidence of six prosecution witnesses was recorded on 22 January 2022 and 24 January 2022. All evidence was recorded by video conferencing in which only the advocate of the accused participated remotely. Section 273 of the Code of Criminal Procedure provides that, except as expressly provided, all evidence taken in the course of a trial shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. This mandatory provision was flouted by the Trial Court, as the record does not depict the presence of the accused, either physically or through video conferencing, while recording evidence of prosecution witnesses on any date., The Trial Court committed an error of procedure and breached Section 230 of the Code of Criminal Procedure by acceding to the investigator’s request to record evidence of prosecution witnesses immediately after framing the charge, which was done after supplying the police papers to the defence advocate on the same day. This approach violated the accused’s right to a fair trial. The charges were grave, severe, and complex. The accused was in an incommunicado state with no access to his advocate. His advocate received the charge sheet only minutes before the recording of witness evidence began, leaving no scope to prepare a defence after effective consultation with the accused. The undue haste shown by the Trial Court in accepting the investigator’s request, contrary to the mandate of Section 230 of the Code of Criminal Procedure, defeated the ends of justice and prejudiced the accused’s defence. The breach of natural justice principles is evident from the record, rendering the impugned judgment and order void. The investigator’s application was uncalled for; the reason given—that a secret information indicated pressure from the accused’s family—was absurd. No family member of the victim had raised any grievance. The investigator was empowered under the Witness Protection Scheme 2018, but ignored these schemes and pressed for procedural error, which the Trial Court accepted, leading to the recording of evidence of four prosecution witnesses on the same day the defence advocate received the police papers and the charge was framed, while the accused remained incommunicado. This shows scant regard for following the law‑established procedure in a trial where the accused faced the death penalty., We have perused the evidence of all four prosecution witnesses examined immediately after the police papers were supplied to the defence advocate. The evidence of PW 3, Dr. Shaila Kunwar, Medical Officer of Forbesganj Sub‑Divisional Hospital, who medically examined the victim, is full of medical terminology. She produced the medical examination papers of the victim. The defence advocate, having received the police papers only minutes before the examination, could not effectively cross‑examine this medical officer. Similarly, the defence advocate could not effectively cross‑examine PW 1, Mrs. M, the mother of the victim. It appears that, due to lack of instructions, incriminating material surfaced during cross‑examination of the mother. The defence advocate had no time to read the charge sheet and previous statements of the mother. The same situation applied to the other witnesses, who had to be cross‑examined within at most one hour of receiving the police papers, without briefing from the accused, who was an under‑trial prisoner with no access to his advocate. The Trial Court was oblivious to the plight of the accused and to the mandatory procedural provisions required to ensure a fair trial., On the next day, 24 January 2022, the Trial Court recorded evidence of PW 5 Anima Kumari and PW 6 Rita Kumari, the investigating officers. The order sheet does not mention that the accused was produced through video conferencing during the recording of evidence of these two witnesses. Thus, procedural lapses continued on that day as well. The prosecution completed its examination of both investigating officers on 24 January 2022., On 24 January 2022, the over‑enthusiastic investigator PW 5 Anima Kumari moved another application requesting that the trial be decided on that day by pronouncing the judgment and order. She claimed that the accused was giving allurement and threatening the victim’s family. When the prosecution evidence was completed, it is unclear why relatives of the accused would attempt to pressure the prosecuting party in a non‑compoundable offence. Instead of rejecting the application outright, the Trial Court partly allowed it, reasoning that the offence was serious and the victim and her relatives enjoyed a special status. Consequently, the Court recorded the statement of the accused under Section 313 of the Code of Criminal Procedure on 24 January 2022, rejecting the defence advocate’s oral request for a one‑week adjournment, observing that the accused was protracting the trial without reason. The Court directed its bench clerk to secure the presence of the accused through video conferencing for recording his statement under Section 313. At 4:15 p.m. on 24 January 2022, the accused’s statement was recorded. During his examination, the accused categorically stated that he wanted to adduce defence evidence. The defence advocate again requested one week to adduce defence evidence, but the request was rejected, and the Court insisted that defence evidence be adduced on the same day. The reasons for such haste in a capital case are incomprehensible. Ultimately, the trial was adjourned to 25 January 2022., On 25 January 2022, the defence advocate filed a written application seeking a one‑week adjournment, stating that he had not received copies of the prosecution witnesses’ depositions and, due to lack of time, defence witnesses could not be informed to appear in Court. The proceedings on that day show that the Trial Court was determined to deliver judgment and provided only a few hours to examine defence evidence. The defence advocate’s request for a one‑week adjournment was met with insistence from the Court that, since copies of the prosecution depositions were supplied on 25 January 2022, defence witnesses should be examined on the same day. Despite the written application explaining the inability to secure defence witnesses, the Court questioned the propriety of filing such an application and continued to press the defence advocate to present defence evidence. The Court adopted a shocking procedure, repeatedly adjourning the case throughout the day while insisting on immediate examination of defence evidence. When the defence advocate pointed out that defence witnesses could not be secured due to lack of time, the Court recorded an office report stating that the defence advocate was not desirous of examining defence witnesses, although no such report exists in the record. Even at 2:45 p.m. on 25 January 2022, without passing a separate order on the adjournment application, the Court disposed of the application as an outcome of pressurising tactics and an excuse by the accused. The Court’s hour‑by‑hour conduct, despite the written request for a one‑week adjournment, reflects a flagrant disregard for the principles of natural justice. Every trial court is duty‑bound to hear the defence fairly. In this case, in utter haste to decide, the Court ignored procedural fairness and treated the process as a mere formality. There was no indication that the request for adjournment was intended to cause vexation or delay. The accused, in his statement under Section 313 of the Code of Criminal Procedure, denied the charges and pleaded an alibi, stating that on the day of the incident he was at the house of Arjun Ram on the western side of the canal and could not have committed the crime. He further alleged that his brothers’ political activities had led certain individuals to falsely implicate him. He specifically pleaded to adduce defence evidence. Despite this, the Court did not permit him to examine defence witnesses after granting a reasonable one‑week period., After closing the evidence of the accused by refusing to adjourn the case on 25 January 2022, the Trial Court proceeded to hear arguments, which continued until 6:30 p.m. The Court then directed that the case be kept at 7:00 p.m. for pronouncement of the judgment. Ultimately, the judgment was pronounced at 7:10 p.m. on 25 January 2022, convicting the accused of all offences. Thus, after approximately 40 minutes of completing arguments, the Court dictated and pronounced the judgment of conviction in a capital case. The judgment runs into 59 paragraphs spanning 27 pages in font size 12, which is practically impossible to prepare in such a short time.
id_397	3	It is mysterious how such a voluminous judgment, which requires application of mind to the record, could have been dictated and pronounced by the learned Trial Court in just 40 minutes after hearing the arguments of both parties. A doubt arises as to whether the judgment was kept ready and a farcical hearing was granted to the parties. The learned Trial Court repeatedly recorded that the case needed to be decided expeditiously to do justice to the victim female child. For example, on 21 January 2022 the case was adjourned to 24 January 2022 with the reason that, for delivering justice to the victim female child, the case was required to be heard on a day‑to‑day basis. On that day, the application of the Investigator to record evidence immediately after framing charges was allowed mainly because the interest of the victim and her family needed protection. On 24 January 2022, a similar application of the Investigator to decide the case immediately after recording prosecution evidence was partly allowed with the same reason that the status of the victim and her kith and kin required the Court to act. On that day oral requests for adjournment made by the defence were rejected, and the defence advocate was instructed to adduce defence evidence on that day only. On 25 January 2022, the learned Trial Court impressed upon the defence advocate the need to decide the case immediately and rejected his written application for a one‑week adjournment, holding it to be a pressurising tactic and excuse. It was the first date fixed for recording defence evidence. It is the duty of the court to do justice to both parties rather than leaning in favour of one side. This conduct indicates a biased attitude of the Court towards the accused., Every trial begins with a presumption of innocence in favour of the accused, and the provisions of the Criminal Procedure Code are framed so that the criminal trial should commence and be governed throughout by this essential presumption. A fair trial obviously means a trial before an impartial judge, which precisely means that the Court should be bias‑free while judging the matter. In the present case, in view of the foregoing facts depicting the conduct of the trial, it is reasonable for the accused to infer bias. The learned Trial Court on two occasions, by giving a complete go‑by to the mandatory procedural law, acceded to the request of the Investigator, Petitioner Witness Anima Kumari, and ventured to record evidence of prosecution witnesses on the day on which police papers were supplied to the learned advocate for the accused, when the accused had no opportunity to go through those police papers or to give instructions to his advocate. At each stage of the trial the Court gave a complete go‑by to the mandatory procedure prescribed by the Criminal Procedure Code, making it part of the record that, for giving justice to the victim, this conduct was necessary. A total disregard was shown to procedural law as well as the concept of a fair trial, despite the order reiterating maxims such as “Justice hurried – Justice buried” and “Justice delayed is justice denied”., In the matter of M.V. Ganesh Prasad v. M.L. Vasudevamurthy & Ors., reported in AIR 2003 SC 39, the Supreme Court observed that the apprehension of bias on the part of a litigant must be a bona fide, reasonable apprehension and not a mere apprehension of the litigant. What amounts to bias is explained in Ranjit Thakur v. Union of India, reported in (1987) 4 SCC 611. Paragraphs 16 to 21 of that judgment read as follows: “It is the essence of a judgment that it is made after due observance of the judicial process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice, is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial ‘coram non judice’. As to the tests of the likelihood of bias, what is relevant is the reasonableness of the apprehension in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however honestly, ‘Am I biased?’ but to look at the mind of the party before him. Lord Esher in Allinson v. General Council of Medical Education and Registration, reported in [1894] 1 Q.B. 750, stated that the question is not whether in fact he was or was not biased. The Court cannot inquire into that. In the administration of justice, any person who is to take part in it should not be in such a position that he might be suspected of being biased. In Metropolitan Properties Co. v. Lord Denning, it was observed that in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself… It looks at the impression which would be given to reasonable persons. Frankfurter, J., in Public Utilities Commission of the District of Columbia v. Pollack, explained that the judicial process demands that a judge move within the framework of relevant legal rules, think dispassionately and submerge private feeling. When there is ground for believing that unconscious feelings may operate in the ultimate judgment, judges recuse themselves. Ackner LJ in Regina v. Liverpool City Justices, Ex‑parte Topping, [1983] I WLR 119, warned that applying the test ‘Do I feel prejudiced?’ would be the wrong test, and the correct result would be the quashing of the conviction.”, From a bare perusal of the law laid down by the Supreme Court, it is clear that the Court is expected to adopt the perspective of the litigant in order to determine the apprehension and likelihood of bias. Natural justice is a sense of what is right and wrong. The relevant inquiry is not into the judge’s own mind but into whether the litigant feels that the judge is biased against him and that he may not obtain justice. If the answer is affirmative, a genuine case of bias can be established, having regard to other attendant circumstances. In the present case, the accused was not given any opportunity to go through the police papers; he was kept in an incommunicado state with no means to contact his advocate for briefing. He had no opportunity even to read the charge sheet until the end of the trial. His two oral and one written applications for adjournment were refused, and he was not allowed to adduce defence evidence despite raising a plea of alibi. Evidence was recorded in his absence. Relevant provisions of the Criminal Procedure Code were flouted with impunity while conducting the trial. In such a situation, it is not possible to infer that the accused was fairly dealt with by an unbiased judge in an atmosphere of judicial calm., There is no doubt that courts must not take any decisions without affording all parties a meaningful opportunity of hearing, and every decision by a judge must rest on sound legal reasoning. The due process of law must not be compromised in any attempt at providing speedy justice. The procedure provided by law must advance the cause of substantial and complete justice, and it must be duly followed by the courts in administering justice. While a judge may dispense with a technicality that obstructs substantial justice, the entire procedure governing a civil or criminal proceeding should not be treated as a mere formality. Undermining the significance of procedure erodes respect for the judicial process and can lead to a disastrous situation., The manner in which the trial was commenced, conducted and concluded clearly displays a glaring abuse and misuse of judicial power by the learned Trial Court. Consequently, we are unable to concur with the impugned judgment and order of the learned Trial Court; it deserves to be quashed and set aside. There is no alternative but to direct a de‑novo trial of the accused from the stage before framing of charge, as the earlier proceedings caused a miscarriage of justice., We do not wish to burden this judgment with other authorities cited by the learned Senior Advocate for the appellant, as they do not further the appellant’s cause. The main contention on behalf of the accused is that no opportunity to adduce defence evidence was given to him. The ratio of judgment in the case of David (supra) that the accused is not obliged to produce defence evidence cannot assist the appellant in the instant case. Similarly, the case of Shambhunath (supra) on breach of natural justice principles has no application here., In view of the foregoing, it is not necessary to go into the merits of the case to determine whether the prosecution proved the guilt of the accused. Accordingly, we refuse to dwell upon the merits of the matter., The learned Trial Court, by the impugned judgment, convicted the accused of an offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, imposing death penalty, life imprisonment and a fine of ten thousand rupees. Section 3 of the Act provides that whoever, not being a member of a Scheduled Caste or Scheduled Tribe, commits an offence under the Indian Penal Code punishable with imprisonment for ten years or more against a person or property, knowing that such person is a member of a Scheduled Caste or Scheduled Tribe, shall be punishable with imprisonment for life and a fine., The Supreme Court, in Khunam Singh v. State of Madhya Pradesh, reported in 2019 (4) PLJR 130, observed that the sine qua non for the application of Section 3(2)(v) is that the offence must have been committed against a person on the ground that the person is a member of a Scheduled Caste or Scheduled Tribe. In Dinesh alias Buddha v. State of Rajasthan, (2006) 3 SCC 771, the Court held that in the present case no evidence was led to establish this requirement; the prosecution did not prove that the rape was committed because the victim belonged to a Scheduled Caste. In the absence of such evidence, Section 3(2)(v) could not be applied, and the appropriate sentence would have been life imprisonment and a fine. The fact that the deceased belonged to the Khangar Scheduled Caste is not disputed, but there is no evidence that the offence was committed solely on that ground. Consequently, the conviction under Section 3(2)(v) is not sustainable. The learned Trial Court did not question the accused on this aspect while recording his statement under Section 313 of the Criminal Procedure Code, and the impugned judgment’s finding that the accused was aware that the victim belonged to a Scheduled Caste is wholly perverse in view of the lack of any evidence., The manner in which the trial was fast‑tracked resulted in a perversion of justice. Accordingly, we direct that the case be remanded for a fresh trial from the stage before framing of charge., We record our deep appreciation for the valuable assistance rendered by Mr. Prince Kumar Mishra, the learned Amicus Curiae. The Patna High Court Legal Services Committee is directed to pay an amount of Rs 10,000 (Ten Thousand rupees) to Mr. Prince Kumar Mishra as consolidated fee for his assistance in the present appeal., The present death reference is answered in the negative and the death sentence passed by the learned Trial Court is not confirmed. The impugned judgment and order passed by the Special Judge (Protection of Children from Sexual Offences), Araria, in Special POCSO Case No.1 of 2022, arising out of Araria Mahila Police Station Case No.137 of 2021, are quashed and set aside. Criminal Appeal (DB) No.203 of 2022 filed by the accused‑appellant is partly allowed to the extent indicated herein. No opinion is expressed regarding the merits of the case; observations are limited to the finding that the accused was not awarded a fair trial. Since the trial is vitiated, the matter is remanded to the learned Trial Court for a fresh trial from the stage of framing charge.
id_398	0	Monday, the 10th day of October 2022 / 18th Aswina, 1944 SSCR No.20 of 2021 Dated this the 10th day of October, 2022 Anil K. Narendran, Justice. This report filed by the Special Commissioner, Sabarimala, regarding the functioning of Safe Zone Project, Sabarimala, by the Motor Vehicles Department was disposed of by the order dated 10.01.2022 [2022 SCC OnLine Ker 1105 : CDJ 2022 Ker HC 203] with the directions contained in paragraph 120 of the said order. The second respondent Transport Commissioner and the third respondent State Police Chief were directed to file action taken reports before the Kerala High Court on or before 01.07.2022, which was directed to be placed before the Bench on 11.07.2022. Registrar General was directed to forward a copy of the order dated 10.01.2022 to the Secretary, Supreme Court Committee on Road Safety, for information., In the order dated 26.05.2022 [2022 SCC OnLine Ker 2906 : 2022 (4) KLT 934] the Kerala High Court noticed that, despite the directions contained in the order dated 10.01.2022, the Enforcement Officers under the second respondent Transport Commissioner and the Police Officers under the third respondent State Police Chief are not taking earnest efforts to ensure strict enforcement of the provisions under the Motor Vehicles Act, 1988, the Central Motor Vehicles Rules, 1989, the Kerala Motor Vehicles Rules, 1989 and the Motor Vehicles (Driving) Regulations, 2017, taking note of the law laid down in the decisions referred to in the said order dated 10.01.2022. After the order of this Court dated 10.01.2022, in motor accidents involving contract carriages, the passengers in those vehicles and other road users sustained serious or fatal injuries. Since the use of contract carriages on public places, flouting the safety standards prescribed in AIS‑008 and AIS‑052 (Rev.1) 2008, etc., is posing a potential threat to the safety of the passengers and other road users, the learned Assistant Solicitor General of India was requested on 26.05.2022 to address arguments on behalf of the Ministry of Road Transport and Highways., Though, by the order dated 30.08.2022, this report was ordered to be listed on 07.10.2022 at 4:00 p.m. for further consideration, the Registry was directed to list this matter before the Bench on 06.10.2022 at 11:00 a.m., in view of a motor accident which occurred on 05.10.2022 at 23:30 hrs at Anchumoorthy Mangalam in Palakkad District, involving a contract carriage bearing registration No. KL‑05/AU‑8890 carrying students from Mar Baselios School, Mulanthuruthy, who were on a study tour to Ooty. At the place of the accident, the said contract carriage hit the rear of a KSRTC bus bearing registration No. KL‑15/A‑1313. In that accident, nine persons (five students and one teacher in the contract carriage and three passengers in the KSRTC bus) sustained fatal injuries. The video taken at the time of the commencement of the journey at Mar Baselios School, Mulanthuruthy, is shown in the news item that appeared in Mathrubhumi news (online). Two screenshots taken from that video clipping of the contract carriage bearing registration No. KL‑05/AU‑8890 are reproduced hereunder., By the order dated 06.10.2022 the second respondent Transport Commissioner, through the Enforcement Officers in the Motor Vehicles Department, was directed to take colour photographs and video clippings of the exterior body, driver cabin and passenger cabin of the contract carriage and also the KSRTC bus involved in the accident, which shall be made available for the perusal of the Kerala High Court on 10.10.2022, along with the accident report of both the vehicles. Registrar General was directed to obtain a copy of the video clipping that appeared in Mathrubhumi news (online), taken at the time of the commencement of the journey by the students of Mar Baselios School, Mulanthuruthy, in the contract carriage in question. By the said order, the second respondent Transport Commissioner, through the Enforcement Officers in the Motor Vehicles Department and the third respondent State Police Chief, through the District Police Chief of the concerned districts, were directed to prohibit the use of contract carriages and other transport vehicles on public places, flouting the safety standards, in strict compliance with the directions contained in paragraph 46 of the order dated 26.05.2022 [2022 (4) KLT 934]. The second respondent Transport Commissioner, through the concerned Enforcement Officers in the Motor Vehicles Department, was directed to initiate proceedings against the contract carriages in the screenshots of the promotional videos/posts reproduced at paragraphs 7 and 8 of the order dated 06.10.2022. The second respondent was also directed to obtain the details of the vloggers who posted such promotional videos/posts of contract carriages on YouTube and other online platforms., Today, when this matter is taken up for consideration, in terms of the direction contained in the order of this Court dated 06.10.2022, the learned Special Government Pleader has made available for the perusal of the Kerala High Court the Accident Inspection Report dated 08.10.2022 of the Regional Transport Officer (Enforcement), Palakkad, in respect of the accident which occurred on 05.10.2022, involving the contract carriage bearing registration No. KL‑05/AU‑8890 and the KSRTC bus bearing registration No. KL‑15/A‑1313. The learned Senior Government Pleader has made available for the perusal of the Kerala High Court the report dated 09.10.2022 of the Deputy Superintendent of Police, Alathur, submitted before the District Police Chief, Palakkad, in respect of the said accident. The Deputy Superintendent of Police, Alathur and the Deputy Transport Commissioner, Central Zone‑I, Thrissur, who are personally present in Court, have explained the facts disclosed in the investigation conducted by the Police and the Motor Vehicles Department. We do not propose to deal with those aspects in this order, since the investigation by the Police and the Motor Vehicle Department is ongoing., The Accident Investigation Report dated 08.10.2022 of the Motor Vehicles Department and the photographs of the contract carriage bearing registration No. KL‑05/AU‑8890, which form part of that report, make it explicitly clear that the said vehicle used for carrying students from Mar Baselios School, Vettikkal, Mulanthuruthy, was fitted with unauthorised multi‑coloured LED lights, rotating flash lights, DJ lights, laser lights, fog machine, high‑wattage speakers and woofers, spot lights and window curtain, etc. Retro‑reflective tapes were not affixed properly on the exterior body of the vehicle. The driver cabin was fitted with continuously blinking DJ rotating LED lights, multi‑coloured LED/laser/neon lights in the passenger compartment, converting the passenger compartment into a dancing floor, causing distraction to the driver of that vehicle and also to other road users. Various objects were placed or hung in front of the windscreen and the name of the bus was written in the middle of the windscreen, above the level of the dashboard, causing obstruction to the clear vision of the driver, which is evident from the screenshot of the CCTV footage at the toll booth. The said screenshot and also a photograph of the contract carriage taken after the accident are reproduced hereunder., In view of the directions contained in the order dated 10.01.2022 [2022 SCC OnLine Ker 1105], which is reiterated in the order dated 26.05.2022 [2022 SCC OnLine Ker 2906], the second respondent Transport Commissioner, through the Enforcement Officers in the Motor Vehicles Department and the third respondent State Police Chief, through the District Police Chief of the concerned districts, are duty bound to take necessary steps to prevent the use of contract carriages and other transport vehicles on public places (i) flouting the safety standards prescribed in AIS‑008 and AIS‑052 (Rev.1) 2008, after replacing the prototype approved lights, light‑signalling devices and reflectors with after‑market multi‑coloured LED/laser/neon lights, flash lights, etc.; (ii) without maintaining lighting and light‑signalling devices and also retro‑reflectors as per the individual specifications, namely number, position, width, height, length, geometric visibility, orientation, etc., specified in AIS‑008; (iii) with high‑power audio systems producing loud sound with rating of several thousand watts PMPO, impairing the hearing of the driver and the passengers and causing distraction to other road users; (iv) with continuously blinking DJ rotating LED lights, multi‑coloured LED/laser/neon lights in the passenger compartment, by converting the passenger compartment into a dancing floor, causing distraction to the driver of that vehicle and also to other road users; (v) with multi‑coloured LED/laser/neon lights and also booster amplifiers, equaliser, DJ mixer, etc., with illuminated control panels in the driver cabin, causing glare and reflection of light on the windscreen of the vehicle, endangering the safety of the passengers and other road users; (vi) mixing up of AC and DC power supply for high‑power audio systems with DJ mixer, DJ dancing lights, laser lights, etc., violating safety standards, posing a potential fire hazard to the passengers of such vehicles; (vii) tampering with the percentage of visual transmission of light of the safety glass of the windscreen, rear window and side windows, by pasting stickers, tint films, etc., upon the safety glass, fixing sliding cloth curtains, etc., in violation of sub‑rule (2) of Rule 100 of the Central Motor Vehicles Rules; (viii) placing/hanging various objects in front of the windscreen and writing the name of the bus in the middle of the windscreen, above the level of the dashboard, causing obstruction to the clear vision of the driver, in violation of Rule 278 of the Kerala Motor Vehicles Rules; (ix) exhibiting writings, advertisements, graphics, figures, etc., with the sole object to invite public attention and to promote the contract carriage service, causing distraction to the drivers of other vehicles and also cyclists and pedestrians on public road; since use of such vehicles in public places, flouting the standards in relation to road safety, is likely to endanger the safety of the passengers of such vehicles and also other road users; and (x) with multi‑toned horn giving a succession of different notes or horn giving unduly harsh, shrill, loud or alarming noise, in violation of sub‑rule (2) of Rule 119 of the Central Motor Vehicles Rules., As per sub‑rule (1) of Rule 92 of the Central Motor Vehicles Rules, no person shall use or cause or allow to be used in any public place any motor vehicle which does not comply with the provisions of Chapter V, which deals with construction, equipment and maintenance of motor vehicles. Similarly, as per sub‑rule (1) of Rule 249 of the Kerala Motor Vehicles Rules, no person shall use and no person shall cause or allow to be used in any public place any motor vehicle which does not comply with the rules contained in Chapter VII or with any order thereunder made by the competent authority. Part III of Chapter VII of the said Rules deals with special rules applicable to every public service vehicle other than an autorickshaw., As per Rule 286 of the Kerala Motor Vehicles Rules, which deals with internal lighting, every vehicle shall be furnished with one or more electric lights adequate to give reasonable illumination throughout the passenger compartment or compartments but of such power or so screened as not to impair the forward vision of the driver. As per the proviso to Rule 286, inserted with effect from 08.01.2018, the internal lighting in buses that are registered on or after the 1st day of October 2017 shall be in accordance with AIS‑052 (Rev.1) 2008, as amended from time to time., In the order dated 10.01.2022 [2022 SCC OnLine Ker 1105] we reiterated the law laid down in Jijith and others v. State of Kerala and others [2019 (1) KHC 463] that the internal lighting in a contract carriage, which is a public service vehicle, is for the purpose of providing reasonable illumination throughout the passenger compartment. As provided under Rule 286 of the Kerala Motor Vehicles Rules, the passenger compartment of a public service vehicle shall be furnished with electric lights adequate to give reasonable illumination throughout the passenger compartment. Therefore, the passenger compartment of a contract carriage cannot be fitted with continuously blinking multi‑coloured LED lights, laser lights, etc., in order to convert it into a dancing floor. Plying vehicles fitted with DJ rotating LED lights, continuously blinking multi‑coloured LED lights, laser lights, etc., for internal lighting will certainly cause distraction to other drivers and also to road users. Moreover, the continuously blinking multi‑coloured LED lights, laser lights, etc., used for internal lighting in the passenger compartment pose a potential health hazard to the passengers. Contract carriages which are fitted with DJ rotating LED lights, continuously blinking multi‑coloured LED lights, laser lights, etc., for internal lighting cannot be treated as vehicles which comply with the provisions of the Motor Vehicles Act and the Rules made thereunder, for the purpose of grant of Certificate of Fitness., In the order dated 10.01.2022 [2022 SCC OnLine Ker 1105] we noted that, as per Paragraph 4.1.2 of AIS‑052 (Rev.1) 2008 – Code of Practice for Bus Body Design and Approval applicable to the testing and approval for body building of new models of buses with seating capacity of 13 or more passengers excluding driver – internal lighting and light signalling devices shall provide adequate illumination inside the bus for the safe operation by the driver and the passengers during darkness and other conditions of reduced visibility. As per Paragraph 4.1.2.2.1, cab lamp or courtesy lamp and passenger area lamps are to be placed on the roof of the bus, above the head of the observer. As per Paragraph 4.1.2.4.1.1.2, the lighting devices used for dashboard shall be discreet and shall not disturb the driver when driving in the dark. Paragraph 4.1.2.4.1.2 deals with driver cabin lighting. As per Paragraph 4.1.2.4.1.2.1, cab lamp or courtesy lamp, locker lamp and electrical distribution lamp fall in this category. As per Paragraph 4.1.2.4.1.2.2, the lighting devices used for cabin interior should be sufficient enough for clearly distinguishing each component part of the cabin. The driver should be in a position to read signages written on the walls, door of the cabin and any instructions printed on paper. As per Paragraph 4.1.2.4.1.2.3, the luminous flux of all the lamps provided for cabin lighting to light up the equipment, components and to read shall not be less than 30 lux and shall not be more than 150 lux when measured at 500 mm above the driver seat base. Paragraph 4.1.2.4.1.3 deals with passenger compartment lighting. As per Paragraph 4.1.2.4.1.3.1, exit lamps and passenger area lamps fall in this category. As per Paragraph 4.1.2.4.1.3.2, the lighting devices used for passenger area should ensure reading of signages inside the passenger area and other important signs like emergency signs. The illumination should light up handles, latches, knobs, rods, hand‑holds, etc., facilitating easy access to passengers. The illumination should be adequate for reading printed matter by the passenger. As per Paragraph 4.1.2.4.1.3.3, the illumination of these lamps shall not be less than 50 lux when measured at any seating location of the bus and at 500 mm above the seat base. As per Paragraph 4.1.2.4.1.3.4, at least two night lights shall be provided in the passenger compartment of all buses except Type I buses. The interior lighting shall be designed such that glare and reflections caused do not affect the driver., In the order dated 10.01.2022 [2022 SCC OnLine Ker 1105] we noted that the provisions in Chapter 4 of AIS‑052 (Rev.1) 2008 deal with every minute detail of lighting of driver cabin and passenger cabin of buses with seating capacity of 13 or more passengers excluding driver. Use of DJ rotating LED lights, continuously blinking multi‑coloured LED lights, laser lights, etc., inside the driver cabin or the passenger cabin is legally impermissible. The installation of booster amplifiers, equaliser, DJ mixer, etc., inside the driver cabin, with illuminated control panel, causing glare and reflection of light on the windscreen of the vehicle, is also legally impermissible. Since use of vehicles without complying with the requirements of lighting of driver cabin and passenger cabin under Chapter 4 of AIS‑052 (Rev.1) 2008 is likely to endanger the safety of the passengers and other road users, such vehicles shall not be permitted to be used in any public place., Regulation 5 of the Motor Vehicles (Driving) Regulations, 2017 deals with duties of drivers and riders. As per sub‑regulation (3) of Regulation 5, the driver shall at all times maintain a good lookout and concentrate on the road and traffic and avoid any activity which distracts or is likely to distract his attention. As per sub‑regulation (6) of Regulation 5, the driver shall ensure that his view is not obstructed and his hearing is not impaired by passengers, animals, load, equipment in the vehicle or by the conditions of the vehicle. Sub‑regulation (10) of Regulation 5 mandates that the driver shall ensure that loud music is not played in the vehicle. Sub‑regulation (11) of Regulation 5 mandates that the driver shall not watch digital motion pictures or videos while driving, except where required for route navigation., In the order dated 10.01.2022 [2022 SCC OnLine Ker 1105] we reiterated the law laid down in Jijith [2019 (1) KHC 463] that neither the provisions of Rule 289 of the Kerala Motor Vehicles Rules nor the provisions under AIS‑052 (Rev.1) 2008 enable installation of high‑power audio system with multiple power amplifiers, speakers and sub‑woofers in a contract carriage. Loud music from such high‑power audio systems will certainly endanger the safety of other road users and will cause inconvenience to them; will distract the attention of the driver of the vehicle and impair his hearing; thereby violating the provisions under Regulations 3 and also sub‑regulations (3) and (6) of Regulation 5 of the Motor Vehicle (Driving) Regulations. Loud music from such high‑power audio systems will also violate sub‑regulation (10) of Regulation 5, which provides that the driver shall ensure that loud music is not played in the vehicle. Therefore, no motor vehicle can be fitted with high‑power speakers or sub‑woofers with multiple booster/power amplifiers. Fixing high‑power speakers or sub‑woofers, with enclosures made of wood or other materials, inside the passenger compartment of a motor vehicle cannot be permitted. Similarly, installation of DJ (Disc Jockey) sound system with DJ mixer, DJ rotating LED lights, laser lights, karaoke systems, etc., which are typically meant for dance parties, cannot be permitted in the passenger compartment of a transport vehicle. The continuously blinking DJ rotating LED lights, multi‑coloured LED/laser lights fitted in the passenger compartment, in order to convert it into a dancing floor for the passengers, will certainly cause distraction to other drivers and also to road users. Moreover, mixing up of AC and DC power supply for such high‑power audio systems with DJ mixer, DJ dancing lights, laser lights, etc., violating safety standards, poses a potential fire hazard to the passengers. Contract carriages which are fitted with high‑power audio system having multiple booster/power amplifiers, speakers and sub‑woofers producing loud noise, and also DJ rotating LED lights, continuously blinking multi‑coloured LED lights, laser lights, etc., for internal lighting cannot be treated as vehicles which comply with the provisions of the Motor Vehicles Act and the rules made thereunder, for the purpose of grant of Certificate of Fitness., In the order dated 10.01.2022 [2022 SCC OnLine Ker 1105] we reiterated the law laid down in Jijith [2019 (1) KHC 463] that the paintwork or varnish of every transport vehicle shall be maintained in a clean and sound condition, which is the mandate of Rule 264 of the Kerala Motor Vehicles Rules. If the State or Regional Transport Authority has laid down any specifications like uniform colour scheme, the paintwork of the transport vehicle shall be in accordance with those specifications. Any figure or writing exhibited on the transport vehicle with an object to invite public attention and to promote the contract or stage carriage service of the operator will attract the provisions of Rule 191 of the Kerala Motor Vehicles Rules. Driver distraction is one of the major causes of road accidents, which is a situation where the attention of the driver is diverted to any other forms of activities, which may affect the concentration of driving activity as well as the safety of the passengers and others on public road. Earning of revenue by the State by the levy of fee under Rule 191 of the Kerala Motor Vehicles Rules or generation of some additional income by the operator of the transport vehicle should not be at the cost of public safety. Therefore, the exhibition of writings or figures with the sole object to invite public attention and to promote the contract or stage carriage service should not be permitted by levying fee under Rule 191 of the Kerala Motor Vehicles Rules. While approving the matter intended to be exhibited on the vehicle, in exercise of the powers under sub‑rule (2) of Rule 191 of the Kerala Motor Vehicles Rules, the State or the Regional Transport Authority shall ensure that it does not cause distraction to the drivers of other vehicles and also cyclists and pedestrians on public road. In view of the provisions under Rule 100 of the Central Motor Vehicles Rules and the law laid down by the Apex Court in Avishek Goenka [2012 (5) SCC 321], tampering with the percentage of visual transmission of light of the safety glass of the windscreen, rear window and side windows of a motor vehicle, either by pasting any material upon the safety glass or by fixing sliding cloth curtains, etc., is legally impermissible. No approval under sub‑rule (2) of Rule 191 shall be granted for exhibition of any advertisements, writings, figures, graphics, etc., on the safety glasses of a transport vehicle, which shall always be maintained in such a condition that the visual transmission of light is not less than that prescribed under sub‑rule (2) of Rule 100., Rule 278 of the Kerala Motor Vehicles Rules provides that every vehicle shall be so constructed that, save for the front pillars of the body, the driver shall have a clear vision both to the front and through an angle of ninety degrees to his right or left‑hand side, as the case may be. The front pillars of the body shall be so constructed as to cause the least possible obstruction to the vision of the driver., In the order dated 10.01.2022 [2022 SCC OnLine Ker 1105] we reiterated the law laid down in Jijith [2019 (1) KHC 463] that, in order to use the vehicles as contract carriages, the operators will have to remove all writings, figures, etc., and maintain the safety glass in such a condition that the visual transmission of light is not less than that prescribed under sub‑rule (2) of Rule 100 of the Central Motor Vehicles Rules, and with a clear vision to the driver, both to the front and through an angle of ninety degrees to his right or left‑hand side, as prescribed under Rule 278 of the Kerala Motor Vehicles Rules. In Principal, Sabari PTB Smaraka H.S.S. v. Additional Registering Authority, Ottapalam and others [2020 (2) KLJ 662] this Court noticed that, in violation of Rule 278 of the Kerala Motor Vehicles Rules, the safety glasses of the windscreen of public service vehicles are being pasted with stickers, graphics, etc. Various objects are being placed/hanged in front of the windscreen of such vehicles, causing obstruction to the clear vision of the driver, both to the front and through an angle of ninety degrees to his right or left hand side. Therefore, this Court directed the Transport Commissioner, Kerala to take necessary steps to ensure through the concerned officers in the Motor Vehicles Department that no public service vehicle is permitted to be used in any public place after placing/hanging various objects in front of the windscreen, causing obstruction to the clear vision of the driver, both to the front and through an angle of ninety degrees to his right or left hand side, in violation of Rule 278 of the Kerala Motor Vehicles Rules., A few screenshots taken from the news item that appeared in visual media after the motor accident which occurred on 05.10.2022 are reproduced hereunder; Screenshots 1 to 3 are from a news item that appeared in Mathrubhumi news (online) regarding the use of a contract carriage by the name Xplod by the students in MES College of Engineering, Marampally, Aluva, after the motor accident which occurred on 05.10.2022. We have viewed that news item in open Court. The said vehicle is fitted with high‑power audio system with multiple booster/power amplifiers, speakers and sub‑woofers with rating of several thousand watts PMPO, after‑market multi‑coloured LED/laser/neon lights, flash lights, etc. The Enforcement Officers of the Motor Vehicles Department intercepted the said vehicle and initiated proceedings against its use in public places, flouting the safety standards. Screenshot 4 is from a news item that appeared in Mathrubhumi news (online) regarding use of contract carriages with unauthorised fittings, including a separate diesel engine (of Balero Jeep) inside the luggage compartment on the left side, to generate power for the A/C unit., A photograph that appeared in The Hindu daily dated 08.10.2022 of the employees giving final touches to a KSRTC bus for jungle safari from KSRTC Bus Depot at Sultan Bathery to Ponkuzhy on the Kerala‑Karnataka border through Kozhikode‑Kollengal NH‑766, which passes through the Wayanad Wildlife Sanctuary, is reproduced hereunder., In Saji K.M. v. Deputy Transport Commissioner [2019 SCC OnLine Ker 2047 : 2019 (3) KHC 836] this Court noticed that the provisions under Policy on Roadside Advertisements formulated by the Indian Roads Congress, vide IRC:46‑1972, were introduced when it was noticed that advertisement can often distract the attention of drivers of motor vehicles and in that case create a public hazard or nuisance. They may also obstruct the view of the drivers of fast moving vehicles and are then a public danger. Paragraph 2 of IRC:46‑1972 deals with advertisement control; Paragraph 3 deals with principles on advertisement control; etc. The Ministry of Road Transport and Highways vide Circular No. RW/NH 33044/35/2001/S&R(R) dated 16.05.2002 has made it clear that no advertisement hoardings are permitted on National Highways within the Right of Way except informatory signs of public interest such as hospitals, bus stations, etc., or advertisement of temporary nature announcing local events such as Mela, Flower Show, etc. Besides, IRC:46‑1972 titled A Policy on Roadside Advertisements published in 1972 should also be referred to for comprehensive guidelines on advertisement control on National Highways., In Saji K.M. [2019 (3) KHC 836] this Court noticed that the Ministry of Road Transport and Highways in its letter No. F.No. RW/NH 33044/18/2016/S&R(R) dated 07.09.2016 noticed that despite the Ministry's policy of not allowing roadside advertisements, hoardings on National Highways, which cause distraction and are also one of the causes of accidents on National Highways, have generally been noticed along the National Highways. Therefore, it was decided that the Regional Officers/Engineering Liaison Officers within their jurisdiction shall inspect the National Highways by prioritising heavily trafficked National Highways and other National Highways in stages and submit inspection reports to the Ministry for further necessary action, along with their monthly reports. However, reports from the Regional Officers/Engineering Liaison Officers are not being received by the Ministry and therefore the Ministry vide letter dated 07.09.2016 directed all the implementing agencies and Regional Officers/Engineering Liaison Officers to do joint inspection of all National Highways within their jurisdiction and sent a consolidated report regarding advertisement hoardings to the Ministry for further necessary action. A copy of the said letter is addressed to all Engineers‑in‑Chief and Chief Engineers of Public Works Departments of State/Union Territories dealing with National Highways and other Centrally Sponsored Schemes., In Saji K.M. [2019 (3) KHC 836], after taking note of the provisions under Policy on Roadside Advertisements formulated by the Indian Roads Congress, vide IRC:46‑1972, the circular and letter issued by the Ministry of Road Transport and Highways and also the provisions under the Motor Vehicles Act and the Rules made thereunder, this Court held that, since transport vehicles owned/operated by KSRTC and KURTC are regularly plying on National Highways, such vehicles shall not be permitted to exhibit any advertisements which are likely to distract the attention of other drivers. Earning of additional income by KSRTC or KURTC by the display of advertisements on their transport vehicles, under Rule 191 of the Kerala Motor Vehicles Rules, should not be at the cost of public safety., In Avishek Goenka v. Union of India [2012 (5) SCC 321], after referring to the provisions under Rules 100, 104, 104A, 106, 119 and 120 of the Central Motor Vehicles Rules, the Apex Court held that the said Rules deal with every minute detail of construction and maintenance of a vehicle.
id_398	1	In other words, the standards, sizes and specifications which the manufacturer of a vehicle is required to adhere to while manufacturing the vehicle are exhaustively dealt with under the Central Motor Vehicles Rules. What is permitted has been specifically provided for and what has not been specifically stated would obviously be deemed to have been excluded from these Rules. It would neither be permissible nor possible for the Supreme Court of India to read into these statutory provisions what is not specifically provided for. The provisions of the Central Motor Vehicles Rules demonstrate the extent of minuteness in the Rules and the efforts of the framers to ensure, not only the appropriate manner of construction and maintenance of vehicles, but also the safety of other users of the road. In the said decision, the Supreme Court of India held further that the legislative intent attaching due significance to public safety is evident from the object and reasons of the Motor Vehicles Act, the provisions of the said Act and more particularly, the rules framed thereunder., In view of the provisions under Section 190 of the Motor Vehicles Act, as amended by Section 72(i) (a) to (c) of the Motor Vehicles (Amendment) Act, 2019, with effect from 01 September 2019, any person who drives or causes or allows to be driven in any public place a contract carriage or other transport vehicle, violating the standards prescribed in AIS‑008 and AIS‑052 (Rev.1) 2008, (i) without maintaining lighting and light‑signalling devices and also retro‑reflectors as per the individual specifications—namely number, position, width, height, length, geometric visibility, orientation, etc.—specified in AIS‑008; or (ii) after replacing the prototype‑approved lights, light‑signalling devices and reflectors with aftermarket multi‑coloured LED/laser/neon lights, flash lights, etc.; or violating the standards prescribed in relation to control of noise using a multitoned horn giving a succession of different notes or a horn giving unduly harsh, shrill, loud or alarming noise or with high‑power audio systems producing loud sound with a rating of several thousand watts PMPO; shall be proceeded against under sub‑section (2) of Section 190 of the Act, for an offence punishable with imprisonment and fine specified in that sub‑section, and the offender shall be disqualified from holding a licence for a period of three months and, for any subsequent offence, with imprisonment and fine as specified in that sub‑section., In view of the provisions under sub‑section (4) of Section 206 of the Motor Vehicles Act, as inserted by Section 88 of the Motor Vehicles (Amendment) Act, 2019, with effect from 01 October 2020, a police officer or other person authorised by the State Government shall seize the driving licence held by the driver of a motor vehicle who has committed an offence under Section 190 and forward it to the licensing authority for disqualification or revocation proceedings under Section 19., The Certificate of Fitness granted to a transport vehicle governed by AIS‑008, which is not installed with lighting and light‑signalling devices and also retro‑reflectors referred to in Paragraph 6.0, conforming to the individual specifications for such lighting and light‑signalling devices and also for retro‑reflectors prescribed in Paragraphs 6.1 to 6.20, or a transport vehicle governed by AIS‑008 which is installed with lighting and light‑signalling devices or retro‑reflectors other than those referred to in Paragraph 6.0, cannot be treated as a vehicle that complies with the provisions of the Motor Vehicles Act and the Rules made thereunder for the purpose of grant of Certificate of Fitness. Such Certificate shall be cancelled by the prescribed authority in accordance with the provisions under sub‑section (4) of Section 56 of the Motor Vehicles Act. In appropriate cases, the registering authority shall initiate proceedings to suspend or cancel the letter of authority granted or renewed under sub‑rule (5) of Rule 63 of the Central Motor Vehicles Rules or forfeit the security deposit, after affording the holder of the letter of authority an opportunity of being heard., In view of the law laid down in Jijith (2019 (1) KHC 463) and reiterated in the order dated 10 January 2022 (2022 SCC OnLine Ker 1105), if the State or Regional Transport Authority has laid down any specifications such as a uniform colour scheme, the paintwork of the transport vehicle shall be in accordance with those specifications. Any figure or writing exhibited on the transport vehicle with the object of inviting public attention and promoting the contract or stage carriage service of the operator will attract the provisions of Rule 191 of the Kerala Motor Vehicles Rules. Driver distraction is one of the major causes of road accidents, which is a situation where the attention of the driver is diverted to other activities, affecting the concentration of driving and the safety of passengers and others on public roads. Earning revenue by the State through the levy of fee under Rule 191 of the Kerala Motor Vehicles Rules or generating additional income by the operator of the transport vehicle should not be at the cost of public safety. As held by the Supreme Court of India, the exhibition of writings or figures with the sole object of inviting public attention and promoting the contract or stage carriage service should not be permitted by levying a fee under Rule 191 of the Kerala Motor Vehicles Rules. While approving the matter intended to be exhibited on the vehicle, in exercise of the powers under sub‑rule (2) of Rule 191 of the Kerala Motor Vehicles Rules, the State or the Regional Transport Authority shall ensure that it does not cause distraction to the drivers of other vehicles and also to cyclists and pedestrians on public roads. In view of the provisions under Rule 100 of the Central Motor Vehicles Rules and the law laid down by the Supreme Court of India in Avishek Goenka (2012 (5) SCC 321), no approval under sub‑rule (2) of Rule 191 shall be granted for exhibition of any advertisements, writings, figures, graphics, etc., on the safety glasses of a transport vehicle, which shall always be maintained in such a condition that the visual transmission of light is not less than that prescribed under sub‑rule (2) of Rule 100. As held by the Supreme Court of India in Saji K.M. (2019 (3) KHC 836), since transport vehicles owned or operated by KSRTC and KURTC are regularly plying on National Highways, such vehicles shall not be permitted to exhibit any advertisements which are likely to distract the attention of other drivers. Earning additional income by KSRTC or KURTC by the display of advertisements on their transport vehicles under Rule 191 of the Kerala Motor Vehicles Rules should not be at the cost of public safety., In the order dated 26 May 2022 (2022 (4) KLT 934) this Court noticed that video contents showing the use of contract carriages and stage carriages in public places, which are fitted with multitoned horns giving a succession of different notes and horns giving unduly harsh, shrill, loud or alarming noise, unauthorised fittings, graphics, etc., are being uploaded on online video platforms such as YouTube by registered owners of such vehicles or by vloggers, who are permitted to record such videos inside the driver cabin even while the vehicle is moving at higher speed, disturbing the concentration of the driver and posing a potential threat to the safety of passengers and other road users., As already noticed, in view of the provisions under Section 190 of the Motor Vehicles Act, any person who drives or causes or allows to be driven in any public place a contract carriage or other transport vehicle, violating the standards prescribed in AIS‑008 and AIS‑052 (Rev.1) 2008, or the standards prescribed in relation to control of noise using a multitoned horn giving a succession of different notes or a horn giving unduly harsh, shrill, loud or alarming noise or with high‑power audio systems producing loud sound with a rating of several thousand watts PMPO, shall be proceeded against under sub‑section (2) of Section 190 of the Act, for an offence punishable with imprisonment and fine as specified in that sub‑section, and shall be disqualified from holding a licence for a period of three months and, for any subsequent offence, with imprisonment and fine as specified in that sub‑section. In view of the provisions under sub‑section (4) of Section 206 of the Motor Vehicles Act, a police officer or other person authorised by the State Government shall seize the driving licence of the driver who has committed an offence under Section 190 and forward it to the licensing authority for disqualification or revocation proceedings under Section 19. The Certificate of Fitness granted to a transport vehicle governed by AIS‑008 which is not installed with lighting and light‑signalling devices and also retro‑reflectors referred to in Paragraph 6.0, conforming to the individual specifications for such lighting and light‑signalling devices and also for retro‑reflectors prescribed in Paragraphs 6.1 to 6.20, or a transport vehicle governed by AIS‑008 which is installed with lighting and light‑signalling devices or retro‑reflectors other than those referred to in Paragraph 6.0, cannot be treated as a vehicle that complies with the provisions of the Motor Vehicles Act and the Rules made thereunder for the purpose of grant of Certificate of Fitness. Such Certificate shall be cancelled by the prescribed authority in accordance with the provisions under sub‑section (4) of Section 56 of the Motor Vehicles Act. In appropriate cases, the registering authority shall initiate proceedings to suspend or cancel the letter of authority granted or renewed under sub‑rule (5) of Rule 63 of the Central Motor Vehicles Rules or forfeit the security deposit, after affording the holder of the letter of authority an opportunity of being heard., As held by the Supreme Court of India in Avishek Goenka (2012 (5) SCC 321) the Central Motor Vehicles Rules deal with every minute detail of construction and maintenance of a vehicle. What is permitted has been specifically provided for and what has not been specifically stated would obviously be deemed to have been excluded from these Rules. The provisions of the Central Motor Vehicles Rules demonstrate the extent of minuteness in the Rules and the efforts of the framers to ensure, not only the appropriate manner of construction and maintenance of vehicles, but also the safety of other users of the road. The legislative intent attaching due significance to public safety is evident from the object and reasons of the Motor Vehicles Act, the provisions of the said Act and more particularly, the rules framed thereunder., Keeping in mind the legislative intent attaching due significance to public safety in the Motor Vehicles Act and the Rules and Regulations made thereunder, the amended provisions incorporated by the Motor Vehicles (Amendment) Act, 2019 and the consequential amendments in the Rules require compliance in letter and spirit. The State Government cannot dilute the stringent provisions and penal consequences contained in the amended provisions, since those provisions have been incorporated to ensure not only the appropriate manner of construction and maintenance of motor vehicles, but also the safety of other users of the road. Therefore, the provisions of the Motor Vehicles Act and the Rules and Regulations made thereunder require strict enforcement by the State Government through the Enforcement Officers in the Motor Vehicles Department and also the Police, in respect of all classes of motor vehicles used in public places, namely contract carriages, stage carriages, goods vehicles and motor cars. The provisions also require strict enforcement in the case of motor cars, irrespective of whether the vehicle is private, government or carrying constitutional dignitaries., Despite the law laid down by this Court in Kerala Bus Transport Association and others v. Government of Kerala and another (2018 (4) KLT 947), stage carriages, including those operating as town and city services, which are fitted with door shutters as per the mandate of sub‑rule (2) of Rule 280 of the Kerala Motor Vehicles Rules, are being used in public places with door shutters open. Even contract carriages fitted with high‑power music systems, unauthorised lights, etc., are being used in public places with door shutters open. Despite repeated accidents, the Enforcement Officers in the Motor Vehicles Department and the Police are not in a position to enforce the statutory provisions regarding door shutters in transport vehicles in letter and spirit., As evident from the photographs forming part of the accident investigation report dated 08 October 2022 of the Motor Vehicles Department, large‑scale alterations were made in the contract carriage bearing Registration No. KL‑05/AU‑8890 involved in the accident on 05 October 2022. The owner of the said contract carriage, who caused or allowed the vehicle to be driven in public place violating the safety standards referred to herein, and the driver who drove such a vehicle in public place, have to face penal consequences provided under sub‑section (2) of Section 190 of the Motor Vehicles Act and also the penal provisions under the Indian Penal Code. A vlogger posting promotion videos or posts of such a vehicle and those who made alterations in that vehicle violating the safety standards by fitting aftermarket multi‑coloured LED/laser/neon lights, flash lights, etc., or violating the standards prescribed in relation to control of noise by fitting a multitoned horn or high‑power audio system, thereby enabling the owner and driver to use it in public place and posing a threat to the safety of passengers and other road users, also have to face penal consequences under the Motor Vehicles Act and the Indian Penal Code once the use of such a vehicle in public place results in a motor accident causing injury or death to any passenger or other road users., The learned Deputy Solicitor General of India submitted that despite the directions contained in various orders of this Court and the efforts taken by the Enforcement Officers in the Motor Vehicles Department and the Police, contract carriages with unauthorised lights, high‑power audio systems, etc., are being used by students in schools and colleges for their study tours. The provisions of the Motor Vehicles Act and the Rules require strict enforcement by the State Government, since several accidents have occurred involving contract carriages in which passengers and other road users sustained serious injuries, including fatalities., The learned Special Government Pleader and the learned Senior Government Pleader would submit that the Enforcement Wing of the Motor Vehicles Department and the Police are taking earnest efforts to prevent such accidents by ensuring strict compliance with the safety requirements under the Motor Vehicles Act and the Rules and the directions contained in the judgment of this Court. They would submit that, in the wake of the accident on 05 October 2022, a meeting has already been convened by the State to discuss various issues on road safety., Having considered the materials on record and the submissions of the learned Deputy Solicitor General, the Special Government Pleader and the Senior Government Pleader, we find that a total prohibition on the use of contract carriages violating the safety standards prescribed in AIS‑008/AIS‑052 (Rev.1) 2008 and the standards prescribed in relation to control of noise is highly essential, since plying such vehicles in public places poses a threat to the safety of passengers and other road users. The procedure currently adopted by the Enforcement Wing of the Motor Vehicles Department and the Police, permitting the use of such vehicles in public places after interception with a direction to produce the vehicles for inspection within one week after removing unauthorised fittings, cannot be permitted to continue, as it flagrantly violates the statutory provisions and the law laid down in the decisions referred to above., A mere removal of unauthorised fittings in a contract carriage, without completely removing the additional wiring and other alterations made in the bus body, passenger compartment and driver cabin, cannot make that vehicle comply with the provisions of the Motor Vehicles Act and the Rules for the purpose of grant of a Certificate of Fitness. The bus body, passenger compartment and driver cabin must be maintained in accordance with the statutory requirements in the Central Motor Vehicles Rules, Kerala Motor Vehicles Rules, AIS‑008 and AIS‑052 (Rev.1) 2008, etc., before the vehicle can be treated as compliant. Therefore, the Fitness Certificate of such a contract carriage has to be suspended with immediate effect for a period of three months, during which the owner can be directed to make the vehicle compliant. After proper inspection and satisfaction that the vehicle complies with the requirements, the competent authority may grant a Certificate of Fitness. The driving licence of the driver who operated such a contract carriage in public place has to be suspended for three months, as mandated by sub‑section (2) of Section 190, and forwarded to the licensing authority for disqualification or revocation proceedings under Section 19 of the Act. Stringent action must be taken against the owner and driver of contract carriages or other transport vehicles used in public places after tampering with the speed governor installed as provided under Rule 118 of the Central Motor Vehicles Rules. Stringent action must also be taken under Section 185 of the Motor Vehicles Act once it is found that the contract carriage or other transport vehicle was driven by a drunken person or a person under the influence of drugs., The Enforcement Officers in the Motor Vehicles Department and the Police shall conduct periodic inspections during daytime and night hours to ensure that no contract carriages or other transport vehicles are being used in public places flouting the safety standards and the standards prescribed in relation to control of noise. If there is any obstruction to the discharge of duties by the Enforcement Officers while inspecting contract carriages and other transport vehicles, the Police shall render necessary assistance. The second respondent, Transport Commissioner, shall place on record a report on deployment of officers in 86 Regional Transport Offices in the State for conducting periodic inspection of motor vehicles during daytime and night hours. Any contract carriage or other transport vehicle used in public places flouting the safety standards and the standards prescribed in relation to control of noise shall be dealt with appropriately by initiating prosecution, and such vehicles shall be produced before the jurisdictional Magistrate Court along with colour photographs and video of the bus body, passenger compartment, driver cabin and luggage compartment (in case the luggage compartment is fitted with a diesel engine for power generation or inverters with batteries or sound boxes), and further proceedings regarding custody of that vehicle shall be taken based on the orders of that court., In case any contract carriage that does not meet the safety standards and the standards prescribed in relation to control of noise is used in any public place for carrying students from any educational institution, the head of that institution and the teacher or teachers in charge of the trip, who are least concerned about the safety of the students, shall also be proceeded against in accordance with law. Entry of any contract carriage or other motor vehicle violating the safety standards or the standards prescribed in relation to control of noise or with unauthorised alterations shall not be permitted in the premises of any educational institution in the State for any purpose, including exhibition or auto show. Such activity shall be prevented by the head of the institution and reported to the concerned Station House Officer and the Assistant Registrar Officer in the Motor Vehicles Department, so as to enable them to proceed against the owner and driver of such vehicles., By the order dated 06 October 2022 the second respondent, Transport Commissioner, was directed to obtain the details of vloggers who post videos on YouTube and other online platforms promoting the use of motor vehicles in public places flouting the safety standards and posing a potential threat to the safety of passengers and other road users. The learned Special Government Pleader submitted that he is awaiting instructions from the second respondent on the above aspect. In the meantime, the second respondent and the Ministry of Road Transport and Highways shall take necessary steps to ensure that such videos promoting the use of motor vehicles in public places flouting the safety standards are not uploaded on YouTube and other online platforms. The matter is listed for further consideration on 14 October 2022 at 02:00 p.m.
id_40	0	Writ Petition (Civil) Nos. 98, 7337, 7341, 7399, 7409, 7421, 7422, 7639, 7649, 7650, 7652, 7655, 7660, 7716, 7761, Date of decision: 24 November 2020. Versus. Counsels for the petitioners: Mr. Ankur Chhibber, Mr. Himanshu Shekhar Tiwari, Mr. Anshuman Mehrotra, Mr. Harsh Dhankar and Mr. Nikunj Arora, Advocates; Ms. Pallavi Awasthi, Advocate; Mr. Manoj Kumar Gupta, Advocate; Ms. Aparajita Singh, Senior Advocate; Mr. Banvendra Singh Gandhar, Advocate; Mr. Krishna Kumar Prasad, Advocate. Counsels for the respondents: Mr. Arun Bhardwaj, Central Government Solicitor's Counsel for Union of India with Mr. Abhishek Sharma and Mr. Nikhil Bhardwaj, Advocates; Mr. Anil Soni, Central Government Solicitor's Counsel with Mr. Devesh Dubey, Advocates for Union of India; Mr. Harish Vaidyanathan Shankar, Advocate; Mr. Jaswinder Singh, Advocate; Mr. Sushil Kumar Pandey, Advocate; Mr. Piyush Beriwal, Mr. Neeraj, Mr. Ankit Raj, Mr. Sahaj Garg, Ms. Vandana Dewan and Ms. Damini Garg, Advocates for respondents 1 to 5; Mr. Avnish Singh, Senior Panel Counsel for Union of India; Ms. Aakanksha Kaul and Mr. Manek Singh, Advocates; Mr. Praveen Kumar Jain, Senior Panel Counsel; Mr. Abhishek Khanna, Advocate; Mr. Sajal Manchanda, Advocate; Mr. Nikhil Goel, Central Government Solicitor's Counsel and Mr. Dushyant Sarna, Advocates; Ms. Amrita Prakash, Central Government Solicitor's Counsel, Advocate; Ms. Nidhi Raman, Central Government Solicitor's Counsel, Advocate for respondents 1 to 5; Mr. Ruchir Mishra, Mr. Mukesh K. Tiwari and Mr. Ramneek Mishra, Advocates for Union of India; Mr. Ripudaman Bhardwaj, Central Government Solicitor's Counsel with Amit Gupta, Government Pleader, Advocates for Union of India; Mr. Manik Dogra, Senior Government Counsel; Mr. Dhruv Pande, Advocate; Mr. Vinod Diwakar, Central Government Solicitor's Counsel with Mr. Amit Kumar Dogra, Government Pleader, Advocates; Mr. Manish Mohan, Central Government Solicitor's Counsel with Manisha Saroha, Advocate; Ms. Arti Bansal, Advocate; Mr. Aakash Meena, Government Pleader for Union of India; Mr. Satya Ranjan Swain, Advocate; Mr. Tanveer Ahmed Ansari, Advocate; Mr. Vinay Mathew, Advocate; Mr. Anil Dabas, Advocate for respondents 1 to 5; Mr. Vijay Joshi and Mr. Himanshu Pathak, Advocates; Mr. Raj Kumar Yadav and Ms. Rupali Kapoor, Advocates., The petitioners, in each of these forty petitions, impugn the letter/circular No. 8(3)/86/A/D (Pension/Services) dated 19 February 1987 issued by the Ministry of Defence to the extent that it grants the benefit of pro rata pension only to the Commissioned Officers of the Defence Services and not to the Non‑Commissioned Officers or Persons Below Officer Rank of the Defence Services, as discriminatory, and claim pro rata pension., The petitioners in each of the petitions are Non‑Commissioned Officers or Persons Below Officer Rank who joined the respondents Indian Air Force as Airmen or Corporals., All claims of pension, gratuity or allowance of personnel of the Indian Air Force are regulated by the Pension Regulations for the Air Force, 1961 as in force at the time of an individual's retirement, release, resignation, discharge, death, etc., as the case may be., In Chapter I titled General, Regulation 2A(3) defines Airman as a person subject to the Air Force Act, 1950, other than an officer and includes a Warrant Officer and a Master Warrant Officer but does not include an apprentice; Regulation 2A(4) defines Pension as including gratuity except when it is used in contradistinction to the term gratuity; Regulation 2A(6) defines Qualifying regular service as meaning all service including any former service as a combatant which qualifies for pension of a Combatant; Regulation 2A(7) defines Retired list as an officer who has served in the regular Air Force as a permanent commissioned officer and has retired or otherwise placed on the retired list according to the Regulations in force from time to time, and an officer is deemed to be on the retired list even if he has been recalled or re‑employed in the Air Force; Regulation 3 provides that full rate of pension or gratuity shall not be granted unless the service rendered has been satisfactory, and if the service has not been satisfactory the competent authority may reduce the amount of pension or gratuity as it thinks proper., Under Chapter II titled Commissioned Officers, Regulation 25 provides that the minimum period of qualifying service required for a retiring pension is twenty years (fifteen years in case of a late entrant) and that only completed years of qualifying service shall count, and that the minimum period of qualifying service for a retiring gratuity shall be ten years., Under Chapter III titled Airmen, Regulation 101 provides that the same applies to those who either joined service on or after 1 June 1953 and served on regular terms or engagements or joined on or after that date or are brought to such terms after that date; Regulation 102 provides that an individual who is dismissed under the provisions of the Air Force Act is ineligible for pension or gratuity in respect of all previous service, while an individual who is discharged under the provisions of the Air Force Act and the Rules made thereunder remains eligible for pension or gratuity, except that those discharged for misconduct, corruption, lack of integrity or moral turpitude are not normally eligible for gratuity; Regulation 103 provides that a flight cadet drawn from the ranks shall continue to be eligible for pensionary benefits appropriate to his rank; Regulation 104 provides that, except where otherwise specifically provided for, no individual may draw more than one pension under the Regulations; Regulation 111 provides that all service from the date of enrolment/transfer for permanent service to the date of discharge shall qualify for pension or gratuity; Regulation 112 provides that a person who has been guilty of desertion or fraudulent enrolment shall forfeit the whole of his prior service towards pension or gratuity upon being convicted by court‑martial of the offence; Regulation 121 provides that the minimum qualifying regular service for earning a service pension is fifteen years; and Regulation 127 provides that the minimum qualifying regular service for earning a service gratuity is five years., Thus, as far as Airmen, Persons Below Officer Rank and Non‑Commissioned Officers are concerned, the qualifying service to be eligible for pension, vide Regulation 121 of the Air Force Pension Regulations, is fifteen years as compared to twenty years for Commissioned Officers vide Regulation 25 of the Air Force Pension Regulations., The respondents Indian Air Force, at all relevant times, has had a policy of granting permission to Airmen/Non‑Combatants (Enrolled) to apply for civil posts or services under Central or State Governments and Public Sector Undertakings. The Air Force Orders dated 19 September 2008, 31 May 2012 and 8 December 2017 contain the policy; earlier orders were not made available. Except for minor changes, the policy has remained the same. The policy provides that Airmen/Non‑Combatants (Enrolled) who have completed seven years of service from the date of enrolment are permitted to apply for civil posts under Central/State Government and PSUs including Para‑Military Forces; NGOs or trusts, even if funded by the Government, are not covered; all applications are to be directly forwarded to prospective employers by the units after verifying eligibility; applications of Airmen belonging to critical trades shall be rejected at unit level; forwarding of applications shall not be construed as acceptance to grant a No‑Objection Certificate (NOC); at the time of forwarding, Station or Unit Commanders must ensure that Airmen/Non‑Combatants (Enrolled) who have undertaken a certificate of undertaking to serve for a specific period are not permitted to apply for any civil post within that period; and permission to apply for a civil post is a privilege and the issuance of an NOC cannot be claimed as a matter of right., The petitioners in all these petitions claim to have applied under the policy in the Air Force Orders dated 19 September 2008, 31 May 2012 and 8 December 2017, to have been issued the NOC, and to have left the service of the respondents Indian Air Force after seven years but before fifteen years of qualifying service for receipt of service pension. Accordingly, they were not eligible for pension under the Air Force Pension Regulations and were not receiving any pension., We reiterate that under the Air Force Pension Regulations, the qualifying service for receipt of service pension for Commissioned Officers of the respondents Indian Air Force is twenty years. Although we have no document in this regard, it is not in dispute that there was a similar policy for Commissioned Officers to obtain an NOC from the Indian Air Force and leave the service to join other prescribed employment., The respondents Indian Air Force, vide letter/circular No. 8(3)/86/A/D (Pension/Services) dated 19 February 1987, which is impugned as discriminatory, provided as follows: The Ministry of Defence, Government of India, New Delhi, dated 19 February 1987, addressed to the Chief of the Army Staff, the Chief of the Naval Staff and the Chief of the Air Staff, subject: Grant of pro‑rata pensionary benefits to the Commissioned Officers of Defence Services on permanent absorption in Central Public Enterprises. The letter states that the grant of pro‑rata pensionary benefits to Commissioned Officers on their absorption or appointment in Central Public Enterprises under the control of the Department of Defence Production or other Civil Ministries will be regulated in accordance with the provisions of the letter. It applies to officers who, while on deputation to Central Public Enterprises, exercise an option for permanent absorption and are discharged or permitted to retire prematurely, or who are appointed in Central Public Enterprises on the basis of their own applications and are permitted to retire prematurely for the purpose of taking up the appointment. Officers with not less than ten years of qualifying service will be entitled to receive pro‑rata pension worked out according to the methods given in Annexure A. Death‑cum‑retirement gratuity based on the length of qualifying service of an absorptee till the date of his absorption will be admissible, as calculated under the DCRG rules applicable before absorption. No pension or service gratuity/Death‑cum‑Retirement gratuity will be payable to those absorbed in an Enterprise with less than ten years of service. Any liberalisation of pension/gratuity and other rules decided by the Government of India in respect of officers and applicable from a date after the permanent absorption of an absorptee would not be extended to him. The letter takes effect from 6 March 1985 and will be applicable to those officers who are absorbed permanently on or after that date. The Pension Regulation of the three services will be amended in due course. The letter was issued with the concurrence of the Finance Division of the Ministry vide its U.O. No. 4787‑Pen of 1986, signed by the Deputy Secretary to the Government of India., Thus, while the Pension Regulations required a minimum qualifying service of twenty years for Commissioned Officers, the above letter/circular made a provision for grant of pro‑rata pension to those Commissioned Officers who left service with permission or NOC even prior to completing twenty years, on the conditions laid down in the letter. No corresponding provision was made for Airmen, Non‑Commissioned Officers or Persons Below Officer Rank to obtain pro‑rata pension if they left the service with permission before completing fifteen years of qualifying service, even if they satisfied the other conditions prescribed in the letter dated 19 February 1987 for Commissioned Officers., Civil Writ Petition No. 4942/1994 titled Ex‑Corporal R.D. Sharma & Ors. Vs. Union of India & Ors. was filed in the Supreme Court of India by Airmen/Non‑Commissioned Officers/Persons Below Officer Rank who had been permanently absorbed in Hindustan Aeronautics Limited after being Airmen in the Air Force, due to the conversion of the Aircraft Manufacturing Depot at Kanpur, a unit of the respondents Indian Air Force, into the Kanpur Division of Hindustan Aeronautics Limited on 1 June 1964, for pro‑rata pension. The writ petition was disposed of by a Division Bench of the Supreme Court of India on 9 December 1994, directing the respondents Indian Air Force to consider the representation of the petitioners and to decide the same within two months., Pursuant to the aforesaid directions, a decision was taken to grant pro‑rata pension to the Airmen/Non‑Commissioned Officers/Persons Below Officer Rank working in the unit of the respondents Indian Air Force which was converted into Hindustan Aeronautics Limited., Another writ petition, Civil Writ Petition No. 3471/1996 titled Ex‑Corporal Swarup Singh Kalan Vs. Union of India & Ors., was filed in the Supreme Court of India. The petitioner claimed to be identically placed as the petitioners in Ex‑Corporal R.D. Sharma. The writ petition was disposed of by a Single Judge of the Supreme Court of India, directing the representation of the petitioner for grant of pro‑rata pension to be considered and decided within eight weeks. The petitioner was subsequently granted the benefit of pro‑rata pension. On inquiry, it was found that the petitioner in Ex‑Corporal Swarup Singh Kalan was not in the unit of the Indian Air Force which was converted to Hindustan Aeronautics Limited, unlike the petitioners in Ex‑Corporal R.D. Sharma., Reference may be made to Ram Singh Yadav Vs. Union of India (2005) 116 DLT 486. The petitioner before the Division Bench of the Supreme Court of India claimed grant of pension from the date of his discharge from service of the Indian Army. He had a service career of ten years and 258 days before his discharge for being found unsuitable for military service in terms of Rule 13 III(v) of the Army Rules, 1954. The Court noted that Regulation 132 of the Pension Regulations for the Army provided that the minimum qualifying service for earning service pension was fifteen years; that the Ministry of Defence letter dated 19 February 1987 granted pro‑rata pension to Commissioned Officers of the Defence Services on permanent absorption in public sector enterprises; that the petitioner was not a Commissioned Officer in the Army nor could be considered as permanently absorbed in a PSU; that the order dated 9 December 1994 in Ex‑Corporal R.D. Sharma; that the Ministry of Defence circular dated 29 April 1997 dealt with grant of pro‑rata pension to ex‑Airmen absorbed in PSUs before completing ten years of service; and that the order dated 29 November 2001 in LPA No. 342/2000 setting aside the Single Judge's order granting pro‑rata pension to Airmen who had rendered less than ten years of service. The Court held that since the qualifying service in the Army was fifteen years and there was no provision for grant of pro‑rata pension to Persons Below Officer Rank, the relief of pro‑rata pension could not be granted to the petitioner., In 2017, a batch of petitions filed around 2016 by ex‑Airmen of the respondents Indian Air Force, who were then working in public sector or State Government enterprises after resigning from the Indian Air Force, seeking pro‑rata pension, were decided by a Division Bench of the Supreme Court of India in Ashit Kumar Mishra Vs. Union of India (MANU/DE/3584/2017). The respondents Indian Air Force raised a preliminary objection to the maintainability of the writ petitions, contending that the dispute and issues raised were a service matter as defined in Section 3(o) of the Armed Forces Tribunal Act, 2007 and that the petitioners had an alternative remedy before the Armed Forces Tribunal (AFT). The Supreme Court of India upheld the preliminary objection and held that the claim of the petitioners, being ex‑employees of the Indian Air Force, for pension under the Air Force Act, was within the domain of the AFT. Accordingly, the writ petitions were transferred to the AFT and the parties were directed to appear before it., Another writ petition, Govind Kumar Srivastava Vs. Union of India, was decided on 9 January 2019 (MANU/DE/0048/2019). The petitioner enrolled as an Airman on 19 June 1998, was promoted to Corporal in 2003, applied for a post of Technical Officer with Air India on 10 January 2007, received a No‑Objection Certificate from the respondents Indian Air Force on 4 July 2008, was discharged from the Indian Air Force after serving ten years and one month on 21 July 2008, and joined Air India on 8 August 2008. He applied to the respondents Indian Air Force for grant of pro‑rata pension on 29 April 2016, which was rejected on 6 June 2016. The petitioner argued that Persons Below Officer Rank/Non‑Commissioned Officers like him were being discriminated against in the grant of pro‑rata pension because the payment of pro‑rata pension only to Commissioned Officers under the letter/circular dated 19 February 1987 was not based on any rational criteria. He further contended that other Persons Below Officer Rank had been allowed pro‑rata pension, referring to Ex‑Corporal Swarup Singh Kalan, and that the Central Government had amended the Central Civil Services (Pension Rules), 1972 by inserting Rule 37A to grant pro‑rata pension to a Government servant absorbed in a PSU. The respondents relied on Regulation 121 of the Air Force Pension Regulations prescribing fifteen years of qualifying service for Airmen and argued that there was no provision for grant of pro‑rata pensionary benefits to Persons Below Officer Rank. The Court held that there was no justification for the respondents Indian Air Force in denying pro‑rata pension to Persons Below Officer Rank except the reference to Regulation 121, ignoring that pro‑rata pension had been granted to Commissioned Officers despite the Regulations not envisaging such payment; that the differential treatment was not satisfactorily explained; that a Central Government notification dated 30 September 2000 recognised grant of pro‑rata pension for Government servants absorbed in PSUs who did not satisfy the qualifying service for full pension; that there was no reason why Persons Below Officer Rank in the Indian Air Force were singled out; that the minimum period for grant of pro‑rata pension to Commissioned Officers was ten years and the petitioner, although a Person Below Officer Rank, had satisfied this requirement; and that the Court in Ex‑Corporal Swarup Singh Kalan had only directed consideration of his representation without examining the vires of the circular/letter dated 19 February 1987. Consequently, the petition was allowed, the rejection by the respondents Indian Air Force was quashed, and a direction was issued to grant pro‑rata pension to the petitioner from the date of discharge in terms of the circular/letter dated 19 February 1987., After the decision in Govind Kumar Srivastava, the Supreme Court of India has been inundated with petitions by Persons Below Officer Rank/Non‑Commissioned Officers fulfilling the conditions laid down in the letter/circular dated 19 February 1987 for Commissioned Officers, seeking grant of pro‑rata pension. A large number of such petitions have been allowed, directing that if the petitioners, on verification, are found to be similarly situated as Govind Kumar Srivastava, they be granted pro‑rata pension., Recently, the Armed Forces Tribunal, vide its order dated 29 September 2020 in the matters transferred to it pursuant to the order dated 26 May 2017 in Ashit Kumar Mishra and other connected petitions, declined the relief of pro‑rata pension claimed therein. The counsel for the respondents Indian Air Force sought an opportunity to address the Tribunal, contending that they wanted to distinguish the Govind Kumar Srivastava case.
id_40	1	Being of the view that an opportunity needs to be given to the counsels for the respondents Indian Air Force, we stopped disposing of the petitions already pending and/or coming up before us and posted all the said petitions for hearing on 22 October 2020, directing the respondents Indian Air Force to, in the meanwhile, verify whether the petitioner(s) in each of the petitions was similarly placed as the petitioner in Govind Kumar Srivastava supra and to inform us of the same on 22 October 2020., In the light of the aforesaid background, on 22 October 2020 we opted to commence proceedings by hearing the counsels for the respondents Indian Air Force first, with the counsels for the petitioners responding and the counsels for the respondents having an opportunity of rejoinder, and after conclusion of hearing, reserved judgment in all the petitions., We may mention that on 23 October 2020 two other fresh petitions came up before us namely W.P.(C) No. 8409/2020 and W.P.(C) No. 8493/2020 and all the counsels having already been heard on 22 October 2020, judgments in the said petitions were also reserved to be pronounced along with the batch of petitions heard on 22 October 2020. Similarly W.P.(C) No. 8558/2020 came up before us for the first time on 2 November 2020 and W.P.(C) No. 8644/2020 came up before us for the first time on 4 November 2020 and judgment therein was also reserved, to be pronounced along with this batch of petitions. W.P.(C) No. 9161/2020, W.P.(C) No. 9192/2020 and W.P.(C) No. 9216/2020 came up before us for the first time on 20 November 2020 and judgment therein was also reserved, to be pronounced along with this batch of petitions., During the hearing on 22 October 2020, on enquiry from the counsels for the respondents Indian Air Force whether any of the petitioner(s) in any of the petitions did not fulfil the conditions prescribed in the letter/circular dated 19 February 1987 for grant of pro rata pension for Commissioned Officers and/or was/were not similarly situated as the petitioner in Govind Kumar Srivastava supra, no petitioner in any of the petitions was pointed out., Mr. Arun Bhardwaj, Advocate, opening arguments on behalf of the respondents Indian Air Force contended that (i) the petitioner(s) in each of the petitions W.P.(C) Nos. 98, 7337, 7341, 7399, 7409, 7421, 7422, 7639, 7649, 7650, 7652, 7655, 7660, 7716, 7761, instead of claiming to be covered by the dicta in Govind Kumar Srivastava supra, should raise specific grounds and in the absence thereof are not entitled to maintain the petition; (ii) there has been no adjudication in law till now of the legal question which has arisen in these petitions; (iii) Ex‑Corporal R.D. Sharma was working in the unit of Indian Air Force which was converted into Hindustan Aeronautics Limited; W.P.(C) No. 4942/1994 filed by him was disposed of vide order dated 9 December 1994 on concession of the counsel for the respondents Indian Air Force that a decision on his representation will be taken; (iv) similarly W.P.(C) No. 3471/1996 filed by the Ex‑Corporal Swarup Singh Kalan was also disposed of vide order dated 12 September 1996 to decide his representation also; (v) in neither of the two orders is there any decision on merits; (vi) the dicta of the Supreme Court of India in Govind Kumar Srivastava supra (a) is per incuriam; (b) is bad because the Supreme Court of India therein appropriated to itself the jurisdiction to decide what was in the domain of the Armed Forces Tribunal, on the basis of order dated 31 July 2018 of the Armed Forces Tribunal in another matter holding that challenge to the circular/letters/policies could not be decided by the Armed Forces Tribunal; (c) upholds the challenge to the circular/letter dated 19 February 1987 merely because the counsels then appearing for the respondents Indian Air Force could not defend the challenge; (d) allows the petition only for this reason and not on merits; (e) wrongly relies on Ex‑Corporal R.D. Sharma supra which was distinct from the case of Govind Kumar Srivastava and the petitioners herein; they were all working in the Aircraft Manufacturing Depot of Indian Air Force, which in 1964 was shifted to Hindustan Aeronautics Limited and they were all absorbed in Hindustan Aeronautics Limited; it is for this reason that in response to their representation, decision was taken to grant the petitioners pro rata pension; (f) wrongly relies on Ex‑Corporal Swarup Singh Kalan supra who was wrongly granted the benefit of pro rata pension without being entitled thereto in law; (g) does not notice the earlier dicta of the Coordinated Bench in Ashit Kumar Mishra supra holding the writ petitions to be not maintainable and the jurisdiction over the dispute being of the Armed Forces Tribunal; (h) does not decide/hold that the Armed Forces Tribunal had no jurisdiction to entertain the challenge to the circular/letter dated 19 February 1987; on the contrary the writ petition was entertained only because of the order of the Armed Forces Tribunal and which order was contrary to L. Chandra Kumar supra; (vii) after Govind Kumar Srivastava supra, in order dated 5 December 2019 in W.P.(C) No. 9139/2019 titled Squadron Leader Neelam Chahar v. Union of India & Ors., it was noticed that in Govind Kumar Srivastava supra the earlier judgment in Ashit Kumar Mishra supra was not noticed and, observing so, the matter was directed to be placed before the Hon’ble Chief Justice for constituting a larger Bench to decide whether the challenge to the Air Force Human Resource Policy No. 3/2013 could be raised before the Armed Forces Tribunal functioning under the Armed Forces Tribunal Act; the said reference to a larger Bench is still pending consideration; (viii) once the question has been referred to a larger Bench, the decision in all these petitions should await the decision of the larger Bench of the Supreme Court of India and/or all these petitions be tagged along with Squadron Leader Neelam Chahar pending before a three‑Judge Bench of the Supreme Court of India; (ix) the Supreme Court of India in Union of India v. Major General Shri Kant Sharma (2015) 6 SCC 773 has held that the jurisdiction of the Armed Forces Tribunal is in substitution of the Civil Court and the High Court, so far as it pertains to matters enumerated in the Armed Forces Tribunal Act and the High Court should not entertain petitions under Article 226 of the Constitution of India if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of itself contains a mechanism for redressal of grievance; (x) attention was invited to Sections 3(o), 14, 30 and 31 of the Armed Forces Tribunal Act to contend that the Armed Forces Tribunal has jurisdiction over matters relating to pension and other retiral benefits; (xi) attention was also invited to Article 136(2) of the Constitution of India to contend that even a Special Leave Petition against the order of the Tribunal is not maintainable; (xii) it was argued that if the High Court continues to exercise parallel jurisdiction with the Armed Forces Tribunal, it would lead to an anomalous situation; (xiii) the High Court of Allahabad has been refusing to entertain writ petitions where the jurisdiction is of the Armed Forces Tribunal; (xiv) attention was next invited to Balkrishna Ram v. Union of India (2020) 2 SCC 442 to contend that in the matters prescribed in the Armed Forces Tribunal Act, the original jurisdiction vests in the Armed Forces Tribunal and that writ petitions should not be entertained when the remedy before the Armed Forces Tribunal is available; (xv) the Armed Forces Tribunal, vide order dated 29 September 2020 in T.A. No.1/2017 titled Ex‑Corporal Mohitosh Kumar Sharma v. Union of India and in other connected applications, all of which were transferred pursuant to the order in Ashit Kumar Mishra supra, has negated the claim of the petitioners therein for pro rata pension, giving detailed reasons; (xvi) if the Supreme Court of India allows these petitions and directs grant of pro rata pension to the petitioners herein, the same would tantamount to setting aside the order dated 29 September 2020 of the Armed Forces Tribunal and whereagainst, as per Major General Shri Kant Sharma supra, writ petitions before the Supreme Court of India are not maintainable and the only remedy is of approaching the Supreme Court of India under Sections 30 and 31 of the Armed Forces Tribunal Act; and (xvii) in conclusion it was stated that either the Supreme Court of India should refer all these petitions also to the larger Bench constituted in pursuance to Squadron Leader Neelam Chahar supra or these petitions be transferred to the Armed Forces Tribunal, as done in Ashit Kumar Mishra, or the legal question arising be posed/referred to the Supreme Court of India for adjudication., Mr. Jaswinder Singh, Advocate also appearing for the respondents Indian Air Force took us through the order of the Armed Forces Tribunal in Ex‑Corporal Mohitosh Kumar Sharma aforesaid to apprise us of the reasons which prevailed with the Armed Forces Tribunal for declining the relief of pro rata pension and during his arguments, Ms. Aakanksha Kaul, Advocate also appearing for the respondents Indian Air Force, on enquiry, drew our attention to paragraphs 25 and 29 of the order of the Armed Forces Tribunal to show that Govind Kumar Srivastava supra was noticed and dealt with., Mr. Sunil Kumar Pandey, Advocate also appearing for the respondents Indian Air Force drew our attention to Sail Ex‑Employees Association v. Steel Authority of India 2009 SCC OnLine Del 2420 and to the counter affidavit filed in W.P.(C) No. 98/2020 setting out the differences between Personnel serving Below Officer Rank and Commissioned Officers. Attention was also invited to Union of India v. Havildar/Clerk S.C. Bagari (1999) 3 SCC 709 holding that the concept of equality has an inherent limitation arising from the very nature of guarantee under the Constitution of India and those who are similarly circumstanced are entitled to equal treatment; if there is a rational classification consistent with the purpose for which such classification was made, equality is not violated and holding that for the purposes of the facility of study leave, Commissioned Officers and Non‑Commissioned Officers could not be equated., Mr. Harish Vaidyanathan Shankar, Advocate also appearing for the respondents Indian Air Force drew our attention to Regulation 25 and Regulation 121 supra of the Air Force Pension Regulations, prescribing different periods of qualifying service of 20 years and 15 years respectively for Commissioned Officers and for Non‑Commissioned Officers/Personnel serving Below Officer Rank, and contended that the letter/circular dated 19 February 1987 was with respect to Commissioned Officers joining Central/Public Sector Enterprises and that the said period of 20 years and 15 years respectively was fixed keeping in view the public interest in making the Commissioned Officers and Personnel serving Below Officer Rank serve for this much minimum time. He also contended that the respondents Indian Air Force rendered better assistance to the Armed Forces Tribunal than were able to render at the time of hearing of Govind Kumar Srivastava supra., At this stage we enquired from the counsels for the respondents Indian Air Force that if the minimum period of qualifying service for Commissioned Officers and for Airmen/Non‑Commissioned Officers/Personnel serving Below Officer Rank was stipulated keeping in view public interest in retaining them in the Indian Air Force for this much minimum time, why was the policy of discharging them from service prior to 20 years and 15 years also formulated. It was also enquired whether any less effect could be given to a judgment in the petitions merely because one of the parties thereto did not render proper assistance at the time of hearing., Mr. Harish Vaidyanathan Shankar, Advocate sought to highlight the difference between Airmen and Commissioned Officers by contending that Airmen join at the age of 17 years, as against the age of 21 years at which the officers join the Indian Air Force., Mr. Arun Bhardwaj, Advocate drew our attention to Amit Kumar Roy v. Union of India (2019) 7 SCC 369 laying down that grant of No Objection Certificate to join a Public Sector Undertaking/Central/State Government is a privilege and not a right., Commencing arguments on behalf of the petitioners, Ms. Aparajita Singh, Senior Advocate informed that (i) Govind Kumar Srivastava was pronounced on 9 January 2019; (ii) a Special Leave Petition preferred thereagainst was dismissed on 26 April 2019, though the question of law was left open; (iii) in the judgment dated 11 December 2019 in W.P.(C) 5642 titled Mohammad Israr Khan v. Union of India, Govind Kumar Srivastava was reiterated; (iv) again in Rakesh Kumar v. Union of India MANU/DE/0121/2020 pronounced on 15 January 2020, Govind Kumar Srivastava was reiterated; (v) on 26 May 2017, Govind Kumar Srivastava as well as Ashit Kumar Mishra and other connected petitions were listed before the same Division Bench which distinguished between the Govind Kumar Srivastava and Ashit Kumar Mishra bunch of petitions because while in the Ashit Kumar Mishra bunch there was only a claim for pro rata pension, in Govind Kumar Srivastava there was a challenge to the constitutionality of the letter/circular dated 19 February 1987 and thus while Ashit Kumar Mishra bunch of petitions were transferred to the Armed Forces Tribunal, Govind Kumar Srivastava was retained for hearing arguments; and (vi) Govind Kumar Srivastava supra has since been followed in about 200 other petitions and 177 of which orders have already been implemented. It was argued that the Armed Forces Tribunal was bound by the dicta of the Supreme Court of India in Govind Kumar Srivastava, Mohammad Israr Khan and Rakesh Kumar supra and committed illegality in not following the same. It was further argued that the onus is on the respondents Indian Air Force to show that all the said earlier judgments are wrong., Mr. Harish Vaidyanathan Shankar, Advocate for the respondents Indian Air Force at this point vehemently denied that pro rata pension is being paid in pursuance to orders in 177 petitions., Mr. Ankur Chhibber, Advocate also appearing for the petitioners drew our attention to the difference between the language of Section 14(1) of the Armed Forces Tribunal Act and Section 14(1) of the Administrative Tribunals Act, 1985. It was argued that while under Section 14(1) of the Administrative Tribunals Act the jurisdiction of the High Court under Article 226 is also excluded, it is not so in the Armed Forces Tribunal Act. It was contended that it is for this reason that while the Central Administrative Tribunal in L. Chandra Kumar supra has been held to be empowered to entertain challenge to subordinate legislations, the Armed Forces Tribunal is not so empowered. It was thus contended that it is the High Court alone which could have entertained the challenge to the circular/letter dated 19 February 1987 and the Armed Forces Tribunal had no jurisdiction with respect thereto. He also argued that (i) in Ashit Kumar Mishra and other connected petitions supra there was no challenge to the letter/circular dated 19 February 1987 and challenge was made merely to the rejection of the representation claiming pro rata pension; per contra in Govind Kumar Srivastava supra there was a challenge to the circular/letter dated 19 February 1987; (ii) vide paragraph 13 of Balkrishna Ram supra a doubt has already been expressed with respect to the dicta in Major General Shri Kant Sharma supra to the extent it holds that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation and that the High Court will not entertain a petition under Article 226 of the Constitution of India if an effective alternative remedy is available to the aggrieved person or the statute under which action complained of has been taken itself contains a mechanism for redressal of grievance; (iii) Ashit Kumar Mishra transferred the writ petitions to the Armed Forces Tribunal, relying on the said part of Major General Shri Kant Sharma, of the correctness whereof doubt has been expressed in Balkrishna Ram; (iv) the Armed Forces Tribunal has been constantly refusing to entertain challenges to policy matters, as was also noticed in Govind Kumar Srivastava supra; (v) the Armed Forces Tribunal, in the order in the case of Ex‑Corporal Mohitosh Kumar Sharma supra and other transferred applications, has committed a glaring illegality in not following the binding dicta of Govind Kumar Srivastava supra; (vi) as per Rojer Mathew v. South Indian Bank Limited (2020) 6 SCC 1, in such an eventuality a writ petition against the orders of the Armed Forces Tribunal would lie before the High Court of Allahabad; (vii) the Armed Forces Tribunal Act does not take away the jurisdiction of the High Court of Allahabad under Article 226 of the Constitution of India; (viii) though the counsels for the respondents Indian Air Force have contended that the dicta in Govind Kumar Srivastava supra was a result of the failure of the counsels then appearing for the respondents Indian Air Force to place the proper material before the Supreme Court of India but nothing further has been placed before the Supreme Court of India along with the counter affidavits in these petitions also; (ix) that even if the respondents Indian Air Force were unable to effectively represent themselves before the Division Bench of the High Court of Allahabad in Govind Kumar Srivastava supra, certainly it cannot be their say that the Additional Solicitor General who represented the respondents Indian Air Force before the Supreme Court of India in the Special Leave Petition against the decision in Govind Kumar Srivastava supra also could not assist the Bench of the Supreme Court of India which dismissed the Special Leave Petition in limine though keeping the question of law open; (x) the respondents Indian Air Force had yet another opportunity in Mohammad Israr Khan supra to place whatever material they had with the Ministry to contest the claim of discrimination against the Personnel serving Below Officer Rank/Non‑Commissioned Officers, but still did not; (xi) the order of the Supreme Court of India in Mohammad Israr Khan supra has already been implemented; attention in this regard was invited to Annexure P‑19 to W.P.(C) No. 7337/2020; (xii) even though the question of law had been kept open in the order of dismissal of the Special Leave Petition in Govind Kumar Srivastava supra the respondents Indian Air Force, neither in Mohammad Israr Khan nor in Rakesh Kumar or thereafter, addressed anything different; not only so, the respondents Indian Air Force did not even prefer a Special Leave Petition against the orders in the petitions and Mohammad Israr Khan supra and Rakesh Kumar supra; (xiii) rather, in Rakesh Kumar this Court further held (a) that the Ministry of Defence, in issuing the letter dated 19 February 1987, virtually adopted the rationale of Rule 37 of the Central Civil Services (Pension) Rules, 1972 applicable to permanent Central Government employees, although there was a separate set of Pension Regulations for the Armed Forces; (b) in fact the benefit of pro rata pension, by a subsequent letter dated 21 April 1988 issued by the Ministry of Defence, was extended even to Defence personnel absorbed, after discharge, in central autonomous bodies; (c) the position is not different for Central Government employees who are absorbed in Nationalised Banks and Insurance Companies; (d) by Office Memorandum dated 30 May 1995 issued by Department of Pension & Pensioners Welfare, it was clarified that Nationalised Banks including the Reserve Bank of India and State Bank of India and its subsidiaries, the General Insurance Corporation and its four subsidiaries are to be treated as autonomous bodies for the purposes of grant of pro rata retirement benefit to the permanent Central Government employees who are absorbed by these bodies; (e) also, vide Notification dated 30 September 2000 Rule 37A was inserted in the Central Civil Services (Pension) Rules enabling those serving in the Indian Audit and Accounts Service to avail pro rata pension upon absorption in Public Sector Undertaking or central autonomous bodies; (f) vide Office Memorandum dated 26 July 2005 it was clarified that all employees of Central Government or central autonomous bodies serving prior to 31 December 2003 and governed by the Old Pension Scheme who took up appointment under a State Government by submitting a technical resignation on or after 1 January 2004 would be eligible for grant of pro rata pension benefit for the period they served under the Central Government or the central autonomous bodies; (g) although it was the contention of the respondents Indian Air Force that the aforesaid Office Memorandums do not apply to Defence personnel, the said Office Memorandums read with the letters of the Ministry of Defence reflect the consistent and broad policy of the Central Government to extend the benefit of pro rata pension not only to Central Government employees but to Defence personnel as well; (h) there was no reason in making a distinction for the purpose of pro rata pension benefit, between those Defence personnel who are Non‑Commissioned Officers/Personnel serving Below Officer Rank who are subsequently absorbed in Central Public Sector Enterprises/Public Sector Undertakings/ Nationalised Banks and central autonomous bodies after observing all the formalities; (i) the distinction drawn by the respondents Indian Air Force between Central Public Sector Enterprises and a Public Sector Undertaking, for the purposes of grant of pro rata pension, has no rational basis; both are Public Sector entities and in terms of the policy of the respondents Indian Air Force at the relevant point of time, a No Objection Certificate could be granted for absorption in a Public Sector Bank or Nationalised Bank; in such circumstances, to deny pro rata pension only because a Public Sector Bank or a Nationalised Bank would not fall strictly within the definition of Central Public Sector Enterprises would subject the petitioner to hostile discrimination; (j) for the purposes of grant of pro rata pension no distinction can be drawn between those who get absorbed in a Central Public Sector Enterprise or a Public Sector Undertaking or a Public Sector Bank or a Nationalised Bank, upon discharge from the Armed Forces; (xiv) the respondents Indian Air Force cannot be permitted to argue afresh whenever a petition has to be filed because of the failure of the respondents Indian Air Force to grant similar relief to similarly situated persons; in this way there will never be any finality to any issue; (xv) after the respondents Indian Air Force have already implemented the orders in several matters of grant of pro rata pension, the question of referring the matter to the larger Bench, as is sought, does not arise; (xvi) the answer returned by the Armed Forces Tribunal to the first question framed by it i.e. (1) Whether the discharge of applicants from the Air Force under the provisions of AFO No.14/2008 after selection in a Central Public Enterprise, is akin to absorption into the Central Public Enterprise for the purpose of grant of pro‑rata pension? is directly contrary to the dicta of the Supreme Court of India in Rakesh Kumar supra; (xvii) the answer returned by the Armed Forces Tribunal to the second question framed by it i.e. (2) Whether the applicants are entitled for pro‑rata pension on similar lines on which the Government had granted pro‑rata pension to Ex‑Corporal R.D. Sharma and 21 others and Ex‑Sergeant Swarup Singh Kalan, as a special case? is totally contrary to the dicta of the Supreme Court of India in Govind Kumar Srivastava, Mohammad Israr Khan and Rakesh Kumar supra; (xviii) the same is the position with respect to the third, fourth and fifth questions framed by the Armed Forces Tribunal also in Ex‑Corporal Mohitosh Kumar Sharma; (xix) though all the said judgments were cited before the Armed Forces Tribunal, the Armed Forces Tribunal has illegally proceeded to decide contrary thereto; (xx) merely because the Supreme Court of India has left the question of law open, did not entitle the Armed Forces Tribunal to decide contrary to the binding dicta of the Supreme Court of India; (xxi) the decision of the Armed Forces Tribunal is in the teeth of the judgments of the Supreme Court of India; and (xxii) in State of Uttar Pradesh v. Arvind Kumar Srivastava (2015) 1 SCC 347 it was held that the normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit., Ms. Pallavi Awasthi, Advocate also appearing for the petitioners pointed out that (i) the order of the Armed Forces Tribunal in Ex‑Corporal Mohitosh Kumar Sharma supra is silent as to the letter/circular dated 19 February 1987; (ii) Ram Singh Yadav supra was not a case of discharge but a case of dismissal from service and thus is not relevant for the present controversy; (iii) in K.K. Dhir v. Union of India (2006) 135 DLT 300, a Division Bench of the Supreme Court of India allowed the writ petition against the order of the Central Administrative Tribunal refusing pro rata pension to the petitioner therein, who had before joining Oil and Natural Gas Corporation served in the Office of the Accountant General, Punjab, Chandigarh, holding that the issue with regard to grant of pro rata pension to those Government servants who had joined a Public Sector Undertaking after rendering more than 10 years of Government service was a matter which had seen widening of the door from time to time, either by the Government itself or by judicial pronouncements; initially such benefit was restricted by stipulating that the movement from Government service to a Public Sector Undertaking should be a transfer or deputation as opposed to a move by the Government servant of his own volition and should have been in public interest; subsequently the said conditions were relaxed by the Government from time to time and once the conditions have been relaxed, all Government servants who had 10 years or more of qualifying service before they moved to Public Sector Undertakings, either on transfer/deputation or of their own volition and in respect of whom there was a declaration of their move being in public interest or not, would be entitled to pro rata pension; pension is not a bounty payable on the sweet will and pleasure of the Government; the right to receive pension is a valuable right vesting in a Government servant; it is not an ex gratia payment; it is a payment for the past services rendered; and (iv) the respondents Indian Air Force themselves have released pension on their own to the petitioners in Ex‑Corporal R.D. Sharma supra and to Ex‑Corporal Swarup Singh Kalan supra and also to several others after the decision in Govind Kumar Srivastava supra and there should be no discrimination between those to whom pro rata pension has been and is being released and others now before the Supreme Court of India.
id_40	2	Mr. Manoj Kumar Gupta, Advocate also appearing for the petitioners stated that the counsels for the respondents Indian Air Force are wrong in creating a distinction between Airmen and Officers on the basis of entry age; the entry age for officers is also between 16 to 18 years, through the National Defence Academy or between 21 to 23 years, through Combined Defence Services Examination, as compared to the entry age for Airmen being between 18 to 21 years; the Government itself has been shortening the minimum period after which Airmen become entitled to seek permission/NOC for joining Central Government/State Government services; earlier it was 18 years, then was reduced to 15 years and now is seven years; the respondents Indian Air Force themselves were granting permission/NOC to Airmen for joining Central/State Government/PSUs till 11 December 2019 and in ten months since then, no change has been pleaded; though review of the judgment in Mohammad Israr Khan supra was applied for by the respondents Indian Air Force but subsequently withdrawn; the case of Ex-Corporal R.D. Sharma supra was not different from the case of any others; the respondents Indian Air Force, after having granted pro rata pension to the petitioners in Ex-Corporal R.D. Sharma supra and others ought to have itself granted pro rata pension to others who were being discharged after rendering more than ten years of service to join Central/State Government or PSUs but did not and thus the petitioners should not be denied relief or any part of the relief on account of delay; with reference to the letter dated 24 June 2020 of the respondents Indian Air Force rejecting the representation of the petitioner in Writ Petition (Civil) No. 7639/2020, the only reason given was of the judgments of the Supreme Court of India being in personam and not of there having been any change in policy and did not even state that the judgments granting pro rata pension were under challenge or intended to be challenged; and Amit Kumar Roy supra relied upon by the counsels for the respondents Indian Air Force was not a case of pro rata pension., Mr. Arun Bhardwaj, Advocate for the respondents Indian Air Force arguing in rejoinder drew attention to paragraph 15 of Amit Kumar Roy supra, rejecting the contention that the appellant therein had an unqualified right under Article 19(1)(g) of the Constitution to leave the service of the Indian Air Force and holding that a person who has been enrolled as a member of the Indian Air Force does not have an unqualified right to depart from service at his or her will during the term of engagement and that if the same was permitted, will seriously impinge upon manning levels and operational preparedness of the Armed Forces and further holding that interests of the service are of paramount importance and a balance has to be drawn between the interests of the service with situations involving requests by persons enrolled to take civilian employment., Mr. Jaswinder Singh, Advocate for the respondents Indian Air Force, in rejoinder contended that the distinction sought to be drawn by Mr. Ankur Chhibber, Advocate between Section 14 of the Armed Forces Tribunal Act and Section 14 of the Administrative Tribunal Act is contrary to the dicta of the Supreme Court of India in L. Chandra Kumar supra., Mr. Harish Vaidyanathan Shankar, Advocate for the respondents Indian Air Force drew attention in detail to the reasoning of the Armed Forces Tribunal in Ex-Corporal Mohitosh Kumar Sharma supra, explaining the context in which the letter/circular dated 19 February 1987 was issued and has contended that the said reasoning was not considered by the Division Benches of this Court in Govind Kumar Srivastava supra or in any of the subsequent judgments. He also contended that there is an inherent difference between an Airman and a Commissioned Officer and that the orders of grant of pro rata pension can be said to have been implemented only on issuance of the Revised Pension Payment Order., Mr. Ankur Chhibber, Advocate, putting in a last word stated that the respondents Indian Air Force, in the counter affidavits in none of the petitions have taken the pleas as urged by Mr. Harish Vaidyanathan Shankar, Advocate, of the context in which the circular/letter dated 19 February 1987 was issued and which form the reasoning of the order of the Armed Forces Tribunal in Ex-Corporal Mohitosh Kumar Sharma. He also referred to Mohindhr Singh Gill v. Chief Election Commissioner, New Delhi (1978) 1 SCC 405, laying down that when a statutory functionary makes an order based on certain grounds, its validity must be judged on the reasons so mentioned and it cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. It was argued that the letter/circular dated 19 February 1987 does not contain any such explanation, as forms the basis of the order of the Armed Forces Tribunal., We have considered the rival contentions., We, at the outset, clarify that though we are bound by the judgments of the Coordinated Bench in Govind Kumar Srivastava, Mohammad Israr Khan and Rakesh Kumar supra, we proceeded to hear the counsels at length, only to consider whether post the order of the Armed Forces Tribunal in Ex-Corporal Mohitosh Kumar Sharma and on the contentions of the counsels now appearing for the respondents Indian Air Force, any different view from the said judgments emerges, for the matter to be referred to a larger Bench for consideration., We are afraid, the counsels for the respondents Indian Air Force have failed to persuade us to form a view any different from that of the Coordinated Bench of this Court in Govind Kumar Srivastava, Mohammad Israr Khan and Rakesh Kumar supra. We say so for the following reasons: A. We first proceed to deal with the contention of the counsels for the respondents Indian Air Force as to the very maintainability of the writ petitions before this Court, on the ground of alternative remedy available before the Armed Forces Tribunal. B. The counsels for the respondents Indian Air Force in this regard have themselves informed that the aforesaid question, vide order dated 5 December 2019 in Squadron Leader Neelam Chahar supra, has been referred to the larger Bench of this Court. We have thus only considered the matter qua the arguments of the counsels for the respondents that these petitions be also clubbed with reference to the larger Bench in Squadron Leader Neelam Chahar. C. The well settled law with respect to exercise of writ jurisdiction, in the face of availability of alternative remedy under a statute is, that though the same does not affect the jurisdiction of the High Court to entertain a petition under Article 226 of the Constitution of India, the High Court, in exercise of its inherent discretion in exercise of powers under Article 226, should refrain from exercising jurisdiction under Article 226. The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. It is not that by provision of alternative remedy in a statute, the jurisdiction of the High Court is ousted. Reference in this context may only be made to the most recent decision of the Supreme Court of India in Balkrishna Ram supra and Rojer Mathew v. South Indian Bank Limited (2020) 6 SCC 1. D. We have considered whether we should, in the facts and circumstances aforesaid, refuse to exercise jurisdiction and transfer these matters to the Armed Forces Tribunal or club these petitions with Squadron Leader Neelam Chahar supra and have decided against following either of the said courses of action, for the reasons hereafter appearing., E. The petitioners in all these petitions are members of the Armed Forces who are the only ones required under the Constitution of India and under the laws, to take an oath of abiding by the command issued to them by the President of India or by any officer set over them, even to the peril of their life. The oath required to be taken, neither by the President of India nor by the Vice President of India nor by the Governors of the States nor by the Judges of the Supreme Court and the High Court, requires them to lay down their lives in the service of the country. The Supreme Court of India, in Confederation of Ex-Servicemen Associations v. Union of India (2006) 8 SCC 399 held that those who serve in the Army, Air Force and Navy during the prime period of their youth, put their lives to high risk and render extremely useful and indispensable services and the country owes respect and gratitude to them. We have recently in judgment dated 10 November 2020 in Writ Petition (Civil) No. 8889/2020 titled Sergeant Ajit Kumar Shukla v. Union of India dealt in detail in this respect and need to elaborate further is thus not felt. Members of a force, who take oath of laying down their lives for the country, form a distinct class and deserve a special treatment. They are not to be harassed unnecessarily and made ping pong of, by sending them from one forum of adjudication to another., F. The larger Bench is not concerned with the issue of pro rata pension which is for adjudication in these cases. The reference which is made to the larger Bench is only on the aspect of maintainability of the challenge to policy/circulars/subordinate legislation before the Armed Forces Tribunal. The said objection, opposing these petitions is raised by the respondents Indian Air Force, only after the respondents have allowed the judgments in Govind Kumar Srivastava, Mohammad Israr Khan and Rakesh Kumar supra to attain finality and in all of which cases, orders for grant of pro rata pension were made in exercise of writ jurisdiction., G. The question before us is, that after orders for grant of pro rata pension in writ jurisdiction, in favour of the petitioners have attained finality, should this Supreme Court of India, when faced with an identical claim of others, refuse to exercise jurisdiction and shunt the petitioners either to the larger Bench first, after decision whereof the decision qua grant of pro rata pension shall remain to be taken, or to shunt them before the Armed Forces Tribunal which in Ex-Corporal Mohitosh Kumar Sharma supra has already expressed its opinion. The answer obviously has to be no., H. Rather, we are faced with a situation where the respondents Indian Air Force, in spite of the decisions of this Court holding the circular/letter dated 19 February 1987 to be discriminatory and directing that thereunder the Airmen/PSBOR/NCOs who fulfill the conditions as prescribed for Commissioned Officers for entitlement to pro rata pension are also entitled to pro rata pension, in violation of the law laid down in Arvind Kumar Srivastava supra holding that such orders are of general application and in rem and though may have been passed in the case of some of the servicemen, are to be applied to all, are in a sheer act of harassment of ex-servicemen, forgetting the oath given to them and while demanding fulfillment of such oath, compelling the petitioners to approach this Court and wanting to repeatedly contest the same issue., I. Such action of the respondents Indian Air Force, we find to be in abuse of the process of the Court. Once an issue of law has attained finality, neither party thereto is entitled to re-agitate the same and this is precisely what the respondents Indian Air Force have done before the Armed Forces Tribunal. The Supreme Court of India in D.K. Yadav v. J.M.A Industries Limited (1993) 3 SCC 259 held it to be settled law that an authoritative law laid after considering all the relevant provisions, it is no longer open to be re-canvassed on new grounds or reasons unless the Court deems it appropriate to refer to a larger Bench., J. We are rather surprised that the Armed Forces Tribunal, though bound by the law laid down by this Court, has at the asking of the respondents Indian Air Force refused to be bound by the judgment and law laid down by this Court and ventured to take a contrary view which was not open to the Armed Forces Tribunal. Though owing to Article 227(4) of the Constitution of India, the powers of superintendence vested in this Court under Article 227 do not extend to the Armed Forces Tribunal, the power of judicial review vested in this Court under Article 226 of the Constitution of India, in Major General Shri Kant Sharma supra also has been held to be unaffected by the provisions of the Armed Forces Tribunal Act and the Supreme Court of India, recently in Rojer Mathew supra has held that the writ jurisdiction under Article 226 does not limit the powers of this Court, expressly or by implication, against Military or Armed Forces disputes and the limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review. Once the orders of the Armed Forces Tribunal are subject to judicial review by this Court, if the Armed Forces Tribunal were to continue to pass orders disregarding the law laid down by the High Courts, the same would result in chaos, with petitions under Article 226 being filed in the High Courts terming such orders of the Armed Forces Tribunal as patently illegal and would defeat the principle of stare decisis and purpose of tribunalisation i.e. of expeditious disposal of disputes of personnel of the Armed Forces., K. The reason given by the Armed Forces Tribunal for indulging in such adventurism is also fallacious. Merely because the Supreme Court of India, while dismissing the Special Leave Petition preferred against the judgment of this Court in Govind Kumar Srivastava supra kept the question of law open, without specifying whether it was the question of law qua maintainability of the writ petition vis-a-vis jurisdiction of the Armed Forces Tribunal or the question of law qua the circular/letter dated 19 February 1987 being discriminatory, did not make the judgment of this Court in Govind Kumar Srivastava any less binding on the Armed Forces Tribunal. The observation that the question of law was so left open, entitled only the Supreme Court of India to consider the said question of law when faced with a similar challenge and did not entitle the Armed Forces Tribunal, orders whereof are subject to judicial review of the High Court, to take a view contrary to that taken by this Court., A Division Bench of this Court in judgment dated 25 July 2008 in FAO(OS) No.403/2002 titled International Development Research Centre v. Ramesh Mehta held that once the question of law is left open by the Supreme Court of India, the implication thereof would be that in so far as the Supreme Court is concerned, it has not so far put its seal of approval or disapproval on the view taken by this Court; however, as far as this Court is concerned, the judgment would still hold good. SLP (C) No.4394/2018 preferred to the Supreme Court of India against the said judgment was dismissed on 12 March 2018. To the same effect is National Highways Authority of India v. BBEL judgment of a Division Bench of this Court, SLP where against is dismissed leaving the question of law open, is binding on the Coordinated Benches of this Court, the question of the Armed Forces Tribunal being not bound by it, does not arise., L. If the petitions were to be transferred to the Armed Forces Tribunal, now or after the decision of the larger Bench, if holding the Armed Forces Tribunal to have jurisdiction to entertain challenge to the vires of policies of the Armed Forces or to the subordinate legislation, would only lead to the Armed Forces Tribunal taking the same opinion as taken in Ex-Corporal Mohitosh Kumar Sharma and which in our opinion, for the reason of being in the teeth of dicta of this Court, is violative of the principles of stare decisis and non est., M. Thus we are not inclined to either transfer the lis raised in these petitions to the Armed Forces Tribunal or to tag these petitions with Squadron Leader Neelam Chahar supra for consideration of the legal question only qua the jurisdiction of the Armed Forces Tribunal to be considered by the larger Bench., N. The counsels for the petitioners are also correct in contending that though the plethora of counsels appearing for the respondents Indian Air Force in this batch of petitions have argued that Govind Kumar Srivastava supra was not properly argued on behalf of the respondents Indian Air Force and requisite material not placed before the Court at the time of hearing, but have chosen not to still plead or argue any justification for the provision for pro rata pension vide letter/circular dated 19 February 1987 being made only for Commissioned Officers and not for PSBOR/NCOs save for reading portions of the order of the Armed Forces Tribunal. We may also add that a Constitution Bench, as far back as in Ambika Prasad Mishra v. State of U.P. (1980) 3 SCC 719 held that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned. Again, in Ravinder Singh v. Sukhbir Singh (2013) 9 SCC 245 it was held that even if a particular issue has not been agitated earlier or a particular argument was advanced but was not considered, the judgment does not lose its binding effect, provided the point with reference to which an argument is subsequently advanced, has actually been decided. To the same effect is State of Gujarat v. Justice R.A. Mehta (2013) 3 SCC 1., O. Though the order of the Armed Forces Tribunal in Ex-Corporal Mohitosh Kumar Sharma supra being contrary to the dicta of this Court in Govind Kumar Srivastava, Mohammad Israr Khan and Rakesh Kumar supra deserves no weightage but for the sake of completeness, we proceed to deal therewith., P. The Armed Forces Tribunal, in paragraph 22 of Ex-Corporal Mohitosh Kumar Sharma supra framed the following five questions: (1) Whether the discharge of applicants from Air Force under the provisions of AFO No.14/2008 after selection in a Central Public Enterprise, is akin to absorption into the Central Public Enterprise for the purpose of grant of pro rata pension? (2) Whether the applicants are entitled for pro rata pension on similar lines on which the Government had granted pro rata pension to Ex-Cpl R.D. Sharma and 21 others and Ex-Sgt Swarup Singh Kalan, as a special case? (3) Whether the commissioned officers and Airmen of Air Force form one class for the purpose of Article 14? If so, whether the grant of pro rata pension to commissioned officers of Air Force and not to its Airmen violates Article 14? (4) Whether the Rules and the Policy on pro rata pension for civilian Government employees can be applied suo motu on airmen of the Air Force? (5) Whether the intent of legislation on pro rata pension conforms to the pro rata pension to Airmen discharged under the provisions of AFO No.14/2008? The Tribunal proceeded to reason that, (i) absorption in a Central Public Enterprise is a fundamental prerequisite for claiming eligibility to pro rata pension; (ii) earlier system of lending and borrowing of Government employees was through deputation, followed by absorption, if required; this old system was replaced with a new system in 1985, whereby the act of lending and borrowing was permitted only through immediate absorption in the borrowing organization; (iii) the fundamental question that arose was, whether the discharge of the applicants under the provisions of AFO No.14/2008 for joining a Central Public Enterprise was same as absorption in a Central Public Enterprise; (iv) there was no communication between the borrowing Central Public Enterprise and the Air Force to lend its manpower to them for permanent absorption; (v) the discharge under AFO No.14/2008 is always at own request and the same reason has been annotated in the official discharge book of all the applicants at the time of their discharge from the Air Force; (vi) thus discharge under AFO No.14/2008 is akin to a technical resignation by a civilian Government employee and to hold that their joining in Central Public Enterprises, after initiation of selection process by advertisement in Employment News, followed by a written test and interview, is akin to an absorption in a Central Public Enterprise, is a hyper‑technical argument and does not match the ground realities of discharge; (vii) discharge of airmen under the provisions of AFO No.14/2008 is specific to Air Force and is related to the peculiarities of military service conditions and cannot be compared with any other conditions of discharge or technical resignation of a civilian Government employee; (viii) such discharge is a discharge on welfare grounds and there is no element of public interest involved in this whole process; (ix) on the contrary, having selected an individual for military duties, having trained him at high Government cost and thereafter discharging him from service halfway through his term of engagement i.e. during his most productive phase of military career, is a huge loss to the fighting force and also to the public exchequer; (x) however, this loss is being accepted only on the larger grounds of welfare of an airman who had joined at a young age; (xi) Ex-Cpl R.D. Sharma was granted pro rata pension as a special case because he and 21 other airmen were working in an Aircraft Manufacturing Department under the Air Force; in a rare decision of its kind the Government took a decision to merge the Aircraft Manufacturing Department under the control of Air Force with Hindustan Aeronautics Limited, in public interest and Ex-Cpl R.D. Sharma and 21 other airmen volunteered to be absorbed in Hindustan Aeronautics Limited; (xii) they were a different case because they were absorbed in Hindustan Aeronautics Limited and in public interest, pro rata pension was granted to them; (xiii) as far as the case of Ex‑Sgt Swarup Singh Kalan is concerned, there was no adjudication over the claim for pro rata pension but the Government decided to extend the pro rata retirement benefits, as made available to Ex‑Cpl R.D. Sharma and 21 others, to Ex‑Sgt Swarup Singh Kalan also though his case was entirely different; (xiv) no clear reason could be found as to why the Government decided to treat the case of Ex‑Sgt Kalan as a special case for grant of pro rata pension; (xv) else it had been laid down in order dated 4 July 2008 in Writ Petition (Civil) No. 13433/2006 titled Munshi Singh v. Union of India by the Division Bench of the Delhi High Court that under Regulation 132 of the Pension Regulations for the Army, which is pari materia to Regulation 121 of the Air Force Pension Regulations, the claim for pro rata pension was not tenable; (xvi) though in Govind Kumar Srivastava, Ram Singh Yadav, on the same lines as Munshi Singh supra was considered, but distinguished; (xvii) Commissioned Officers, on whom vide letter/circular dated 19 February 1987 benefit of pro rata pension was conferred, formed a different class from airmen and there was a reasonable classification between them; (xviii) the purpose for introducing pro rata pension for Commissioned Officers was to motivate them to get absorbed in Central Public Enterprises, in public interest and fill up the large number of vacant posts in Central Public Enterprises; (xix) the same was in pursuance to the demand for absorption for Commissioned Officers with technical qualifications; (xx) the Commissioned Officers were reluctant to get absorbed in Central Public Enterprises because of forfeiting their pension and poor career progression possibilities; (xxi) from demand and supply point of view, the Government issued the policy circular/letter dated 19 February 1987 granting pro rata pension to Commissioned Officers to motivate them to get absorbed in Central Public Enterprises, in public interest; (xxii) there are absolutely no provisions for a Commissioned Officer on lines of AFO No.14/2008 for Airmen, to apply for any job in civil employment except two years before his scheduled retirement or scheduled release; (xxiii) the only way a Commissioned Officer can apply for absorption is, in response to departmental notifications by its service Headquarters asking volunteers for absorption through departmental channels; (xxiv) such departmental notifications by service Headquarters are normally driven in public interest; (xxv) it is in this backdrop that the policy circular/letter dated 19 February 1987, meant only for Commissioned Officers, has to be viewed; (xxvi) per contra there has rarely been any demand for absorption of Airmen, primarily because of low entry level qualifications and limited exposure; (xxvii) the circular/letter dated 19 February 1987 was linked to public interest and was not discriminatory; (xxviii) else, the Rules and Policy and pro rata pension for civil Government employees cannot be applied to Airmen; (xxix) pro rata pension was initiated in 1967, to motivate Government servants to join Central Public Enterprises which had large number of vacancies which were not getting filled; (xxx) in 1967, most of the Central Public Enterprises had no provision for pension and the system of pension after retirement in Central Public Enterprises started from early 1990s; (xxxi) in 2004, the Government changed over to Contributory Pension Fund Scheme for all Government employees except Armed Forces; (xxxii) all Central Public Enterprises also gradually changed over to Contributory Pension Fund; (xxxiii) thus effectively the Government had stopped pro rata pension, post 2004 entrants onwards; (xxxiv) however since the present pension in Defence service has a similarity to pre‑2004 pattern of civil pension, therefore, technically, pro rata pension has become an issue in perpetuity for Armed Forces; (xxxv) life in the Armed Forces is demanding, dangerous and difficult and many countries have to resort to compulsory military service to maintain their manning levels; hence all Militaries, all over the world, generate motivation for their soldiers to continue in Military service; (xxxvi) minimum qualifying service to earn Military pension is a great motivator; and (xxxvii) it was not the intent of the legislation to reward an Airman who had prematurely left Military service, after 10 years, despite huge investment in his training and grooming, primarily in pursuit of his personal career ambitions for a civilian job and thereafter reward him with two pensions for life, first one from Air Force for his 10 years service and thereafter from Government owned Central Public Enterprise/State Government for the remaining years of service., Q. We are unable to agree with the aforesaid reasoning of the Respondent. The Armed Forces Tribunal, while relying heavily on absorption in a Central Public Enterprise as a prerequisite for grant of pro rata pension, completely ignores paragraph 2(ii) of the circular/letter dated 19 February 1987 which, besides absorption in a Central Public Enterprise mentioned in paragraph 2(i), also refers to appointment in Central/State Governments on the basis of own application sent through proper channel in response to advertisements. Though during the hearing we drew attention of the counsels for the respondents Indian Air Force to the same and enquired whether not the cases of the petitioners would be covered therein, but no answer was forthcoming.
id_40	3	The Air Force Tribunal in its order quoted no basis for its reasoning that the high demand of Commissioned Officers in Central Police Establishments (CPEs) was the basis for the circular dated 19 February 1987, nor have the counsel for the respondents Indian Air Force placed any Writ Petition (Civil) Nos. 98, 7337, 7341, 7399, 7409, 7421, 7422, 7639, 7649, 7650, 7652, 7655, 7660, 7716, 7761 on record; no attention whatsoever to any document supporting the reasoning of the Air Force Tribunal has been drawn. Moreover, the Air Force Tribunal has failed to spell out how its observations regarding Commissioned Officers do not apply to Airmen., From other cases listed before us, particularly those impugning refusal to issue No Objection Certificates (NOC) to Airmen for joining elsewhere, we have learned that Airmen who join the Indian Air Force when they are educated only up to matriculation are provided the facility of further education and are issued deemed graduation certificates and further qualifications, even for teaching positions in universities, and are successful in obtaining appointments, particularly in universities in the State of Haryana., We find that provision has been made for employment of ex‑Defense personnel in recruitment advertisements for Central and State Governments and Public Sector Undertakings or in CPEs, including Airmen. This shows that the scheme provides avenues for employment elsewhere not only for Commissioned Officers but also for Airmen. Once, as per the said scheme, notwithstanding the rule of qualifying service for Commissioned Officers and Airmen alike, the circular dated 19 February 1987 grants Commissioned Officers the benefit of pro rata pension; we find no reason why a similar benefit is not conferred on Airmen. A case of discrimination is thus made out., During the hearing we enquired from the counsel for the respondents Indian Air Force which article of the Constitution of India empowers the Indian Air Force to mete out special treatment to Ex‑Corporal Swarup Singh Kalan or a few others out of a large number of similarly placed persons; no answer was forthcoming. There is no concept of negative equality, and merely because Ex‑Corporal Swarup Singh Kalan has been granted the benefit of pro rata pension would not entitle others thereto unless a case in law were made out by them. The petitioners have made out a case, owing to the circular dated 19 February 1987, which, insofar as it confers the benefit of pro rata pension only on Commissioned Officers, has rightly been held to be discriminatory of Airmen, who are thus also entitled to the benefit of pro rata pension on par with Commissioned Officers., In this context we also consider the argument of the counsel for the petitioners that the respondents Indian Air Force, having accepted the judgments in Mohammad Israr Khan and Rakesh Kumar, did not prefer Special Leave Petitions (Civil) Nos. 98, 7337, 7341, 7399, 7409, 7421, 7422, 7639, 7649, 7650, 7652, 7655, 7660, 7716, 7761 thereagainst. We do not agree. It was held in State of Maharashtra v. Digambar (1995) 4 SCC 683 that the circumstance of non‑filing of appeals by the State in some similar matters cannot be a bar against the State filing a Special Leave Petition in other similar matters. Similar principles are found in Col. B.J. Akkara v. Government of India (2006) 11 SCC 709, Surendra Nath Pandey v. Uttar Pradesh Cooperative Bank Limited (2010) 12 SCC 400 and Union of India v. Dr. O.P. Nijhawan 2019 SCC OnLine SC 4., We find no merit in the contentions of Mr. Arun Kumar Bhardwaj, Advocate: (a) that Govind Kumar Srivastava is a default judgment; the Division Bench therein noticed the eligibility rules for pension but held that, since despite a similar rule for Commissioned Officers the benefit of pro rata pension had been conferred, Airmen were also entitled to it because there was no reason to treat Airmen differently; (b) that Govind Kumar Srivastava was decided merely on the basis of Ex‑Corporal R.D. Sharma and Ex‑Corporal Swarup Singh Kalan and that the judgment is merely referred to and otherwise based on the circular dated 19 February 1987 and its finding of discrimination; (c) that Govind Kumar Srivastava is per incuriam in view of Ashit Kumar Mishra, although Ashit Kumar Mishra was not noticed, the same did not result in any jurisdictional error and does not make Govind Kumar Srivastava non‑existent; (d) that, even if there were no absolute right for Airmen to join employment elsewhere, the question for consideration is whether, once Airmen have been so permitted, they are entitled to pro rata pension for the service rendered to the Indian Air Force, especially since Commissioned Officers who also have no such right and have not served the eligibility period have been conferred such benefit., Mr. Harish Vaidyanathan Shankar, Advocate, during the hearing sought to inform the Court of the differences between Airmen and Commissioned Officers but did not refer to any Writ Petition (Civil) Nos. 98, 7337, 7341, 7399, 7409, 7421, 7422, 7639, 7649, 7650, 7652, 7655, 7660, 7716, 7761, pleadings or documents, nor did he explain how the said differences are relevant for the purpose of conferring the benefit of pro rata pension. In our view, in a challenge on the ground of discrimination, it is incumbent on the respondents Indian Air Force to plead the differences and the nexus thereof to the alleged discrimination, unless it is obvious on the face of the discriminatory act. The circular dated 19 February 1987 does not on its face contain any reason for conferring the benefit of pro rata pension only to Commissioned Officers. We have also perused the counter‑affidavit in Writ Petition (Civil) No. 98/2020 referred to by Mr. Sushil Kumar Pandey, Advocate. Although it sets out the different provisions in the Air Force Act and the Air Force Rules pertaining to Commissioned Officers and Airmen, it fails to plead why, while a Commissioned Officer not serving the minimum period of eligibility for pension, when discharged for employment elsewhere under the circular dated 19 February 1987, has been conferred the benefit of pro rata pension, an Airman similarly discharged has not., Ms. Pallavi Awasthi, Advocate, mentioned the case of K.K. Dhir in the context of the grant of pro rata pension to Government servants who had joined a Public Sector Undertaking after rendering more than ten years of Government service. The counsel for the respondents Indian Air Force also reasoned that award of pro rata pension carries a financial burden of Rs 44 crore per month and Rs 250 crore in payment of arrears. However, once we have agreed with the view taken in Govind Kumar Srivastava that the circular dated 19 February 1987 discriminates against Airmen vis‑à‑vis Commissioned Officers without any rational basis, the mere fact that implementation for Airmen would impose a heavy financial burden cannot defeat the consequences of holding the same to be discriminatory and ordering payment of pro rata pension to Airmen. In this regard, reference may be made to All India Judges Association v. Union of India (1993) 4 SCC 288; State of Mizoram v. Mizoram Engineering Service Association (2004) 6 SCC 218; and State of Rajasthan v. Mahendra Nath Sharma (2015) 9 SCC 540, holding that the State cannot invoke a plea of financial burden to deny legitimate dues., We have also considered the aspect of delay. The claim of a large number of petitioners for arrears of pro rata pension is indeed for more than a decade or two. Ordinarily, they would have been entitled to arrears of three years preceding the petition only. However, in the judgments passed till now and which have attained finality, no such restriction has been placed. We are hesitant to treat these petitioners differently and thus opt to grant the same relief of full arrears as has been granted in earlier cases., The petitions are therefore allowed. The rejections by the respondents Indian Air Force of the representations of the petitioners preceding filing of these petitions for grant of pro rata pension are quashed and a mandamus is issued to the respondents Indian Air Force to, within twelve weeks, pay to each petitioner arrears of pro rata pension from the date of discharge till the date of payment, and to, with effect from March 2021, commence payment of future pro rata pension to each petitioner. If the arrears are not paid within twelve weeks, the same will also carry interest at 7 % per annum from the expiry of twelve weeks till the date of payment. The petitions are disposed of.
id_400	0	The present petition has been filed by the petitioner under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for quashing FIR No. 274/2017 under Sections 363 and 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act registered at Police Station R.K. Puram, Delhi and all other proceedings emanating therefrom., In brief, the facts of the case are that on 26.08.2017 the FIR was registered on the complaint of respondent No.2 (complainant), who is the father of respondent No.3 (victim), against the petitioner. It is alleged that the petitioner enticed the daughter of the complainant and took her away. On the basis of the complaint the FIR was registered under Section 363 of the Indian Penal Code. During the investigation the victim girl (respondent No.3) came to Police Station Giri and her statement under Section 161 of the Code of Criminal Procedure was recorded. She stated that she left her parents' house of her own free will because her parents objected to the relationship between her and the petitioner Prem Kumar and also threatened to kill her and the petitioner if she continued to be in contact with him. She further stated that during her time with the petitioner they stayed at different guest houses and there was a physical relationship between them with her consent and free will. She also stated that they got married, although no document, witness or photograph is present to support the same. The statement of the victim under Section 164 of the Code of Criminal Procedure reiterated the facts stated in the Section 161 statement. Further investigation verified the victim's age to be about 16‑17 years. Consequently, Sections 376 of the Indian Penal Code and 6 of the Protection of Children from Sexual Offences Act were added to the case. The accused was arrested on 12.10.2017., I have heard the learned counsel for the petitioner, the learned Additional Public Prosecutor for the State and have perused the records of the case., It is submitted by the counsel for the petitioner that the petitioner and respondent No.3 were in a relationship because they loved each other. He further submitted that the sexual relationship between the petitioner and respondent No.3 was made with free consent and will of respondent No.3. It is further submitted that the petitioner and respondent No.3 got married in a hotel in Meghalaya. He further submits that the petitioner and respondent No.3 are now blessed with a baby boy and a baby girl, aged five years and one year respectively. He also submits that respondent No.3 has no objection if the FIR in question is quashed; an affidavit regarding the same is annexed. Lastly, it is submitted that both the petitioner and respondent No.3 were living peacefully and enjoying their matrimonial life, thus the FIR in question should be quashed as it won't serve any fruitful purpose., On the other hand, it is submitted by the learned Additional Public Prosecutor, while opposing the present petition, that this is not a fit case to invoke the inherent jurisdiction of the High Court to exercise its power on the basis of a compromise arrived at between the parties with respect to an offence not compoundable under Section 320 of the Code of Criminal Procedure., In the instant case, it is clear that respondent No.3 (victim) has solemnised marriage with the petitioner and they both are living happily and harmoniously and it is also in the interest of society to settle and re‑settle the family for their welfare., The Hon'ble Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, while explaining that the High Court has inherent power under Section 482 of the Code of Criminal Procedure with no statutory limitation, including Section 320 of the Code of Criminal Procedure, held that these powers are to be exercised to secure the ends of justice or to prevent abuse of process of any Court and can be exercised to quash criminal proceedings or complaints or FIRs in inappropriate cases where offender and victim have settled their dispute and no definite category of offence can be prescribed., Further, the Supreme Court in Parbatbhai Aahir alias Parbhathbhai Bhim Singh Karmur v. State of Gujarat, (2017) 9 SCC 641, observed that the High Court, as per Section 482 of the Code of Criminal Procedure, acknowledges the existence of inherent powers that are not restricted by the provisions outlined in Section 320 of the Code of Criminal Procedure. This means that the High Court has the authority to exercise its inherent powers independently of the limitations set forth in Section 320., Reliance can be placed upon Madan Mohan Abbot v. State of Punjab, (2008) 4 SCC 582, wherein the Hon'ble Supreme Court highlighted the importance of adopting a practical approach in criminal proceedings when considering compromises. Taking into account the nature of the case and aiming to optimise the Court's time for addressing more impactful and meaningful litigation, a common‑sense approach that considers practical aspects rather than legal technicalities should be employed., No doubt Sections 376 of the Indian Penal Code and 6 of the Protection of Children from Sexual Offences Act are not compoundable under Section 320 of the Code of Criminal Procedure; however, as explained by the Hon'ble Supreme Court in Gian Singh, Narinder Singh, Parbatbhai Aahir and Laxmi Narayan cases (supra), the authority of the High Court under Section 482 of the Code of Criminal Procedure remains unrestricted by the provisions of Section 320. It can use its inherent powers under Section 482 to quash FIRs and criminal proceedings if deemed necessary based on the specific facts and circumstances of the case, either to serve the interests of justice or to prevent misuse of the court process. This power can even be exercised in cases where the offences are non‑compoundable, but the parties have reached a settlement among themselves., The Hon'ble Supreme Court in Kapil Gupta v. State of NCT of Delhi, 2022 SCC Online SC 1030, observed, while quashing an FIR under Section 376 of the Indian Penal Code, that although the Court should be slow in quashing proceedings involving heinous and serious offences, the High Court is not foreclosed from examining whether there exists material for incorporation of such an offence or whether there is sufficient evidence which, if proved, would lead to proving the charge. The Court must also consider whether the settlement between the parties will result in harmony that may improve their mutual relationship. It is further relevant to consider the stage of the proceedings; an application made at a belated stage when evidence has been led and the matter is at the stage of arguments or judgment should be met with caution, whereas an application made at an initial stage before commencement of trial will weigh in favour of exercising the power to quash., In the present case, the parties have already married each other, as stated by the learned counsel for the petitioner. The High Court's attention has been drawn to the affidavit‑cum‑no‑objection given by respondent No.3, where she has stated that she has no objection if the FIR is quashed. Both the petitioner and respondent No.3 are happily residing together with their two minor children and are considering restarting their lives together with a new beginning. The High Court cannot be a silent spectator to the distressed family. If the impugned FIR is not quashed, the petitioner will have to face incarceration for at least ten years, which will negatively impact their lives, including their two minor children. The mistake, which otherwise constitutes an offence, was committed due to immature act and uncontrolled emotions of two persons, one of whom was a minor on the verge of majority at the time of the incident, as claimed by the State., The petitioner’s prosecution and conviction will lead to pain and tears in the eyes of the family members of both parties and the future of the two families will be at stake, whereas, if the impugned FIR is quashed, it would serve the ends of justice and would bring joy to both families and the two minor children as well., Therefore, looking into the peculiar facts and circumstances of the case and considering the lives and future of the two minor children, I am of the opinion that the present petition deserves to be allowed for the ends of justice. Accordingly, the petition is allowed and FIR No. 274/2017 under Sections 376, 363 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act registered at Police Station R.K. Puram, Delhi and all other proceedings initiated therefrom are hereby quashed., The petition along with pending applications stands disposed of in the above terms.
id_401	0	Date of decision: 31 August 2023. Through: Mr Prosenjeet Banerjee, Ms Shreya Singhal, Mr Sarthak Bhardwaj, Advocates for the petitioners in person. Through: Ms Malvika Rajkotia, Mr Ramakant Sharma, Ms Trisha Gupta, Mr Prateek Awasthi, Advocates for the respondent., CRL.REV.P. 604/2018 has been filed under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure, 1973, challenging the order dated 26 April 2018 passed by the Learned Principal Judge, Family Court, Patiala House, New Delhi, in Maintenance Petition No. 111/2016, whereby the grant of maintenance to both the petitioners in CRL.REV.P. 604/2018 under Section 125 of the Code was rejected and the petitioner No. 1 in CRL.REV.P. 604/2018 was granted maintenance of Rs 25,000 for a limited period of three months till he attained the age of majority., CRL.REV.P. 605/2018 has been filed under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure, challenging the order dated 26 April 2018 passed by the Learned Principal Judge, Family Court, Patiala House, New Delhi, in Maintenance Petition No. 111/2016, wherein a sum of Rs 75,000 as interim maintenance was granted to the petitioner in CRL.REV.P. 605/2018., For ease of comprehension, the petitioners in both the petitions shall be referred to by their names, i.e., Zahir Abdullah and Zamir Abdullah who are petitioners No. 1 and 2 in CRL.REV.P. 604/2018, and Payal Abdullah, who is the petitioner in CRL.REV.P. 605/2018., The facts, in brief, leading to the filing of the petitions are as follows: (a) The marriage between Payal Abdullah and Omar Abdullah was solemnised on 1 September 1994 under civil law in England. Two children, namely the petitioners in CRL.REV.P. 604/2018, were born to the couple, and during the pendency of the petition they were pursuing law at Jindal Global Law School, Sonipat. (b) Omar Abdullah, the respondent, is the son of Mr Farooq Abdullah and the grandson of Sheikh Abdullah; both are well‑known politicians and were Chief Ministers of the erstwhile State of Jammu and Kashmir. The respondent himself is the former Chief Minister of the erstwhile State of Jammu and Kashmir. (c) The respondent has abandoned the petitioners since 2013 and filed for dissolution of marriage under the Foreign Marriage Act read with Sections 27(1)(b) and (d) of the Special Marriage Act, 1954, on the grounds of desertion and cruelty. The Learned Principal Judge, Family Court, Patiala House, vide order dated 30 August 2016 dismissed the Foreign Marriage Act petition No. 01/2013. An appeal against the same has been filed by the respondent before this Hon'ble Supreme Court of India, being MAT. APP. (F.C.) No., Thereafter, the respondent physically threw the petitioners out of their house at Akbar Road, New Delhi without any prior notice on 22 August 2016. The petitioners were rendered homeless and were forced to take refuge at various places before finding a rented accommodation at Kapashera, Delhi., Payal Abdullah has single‑handedly raised her two children, one of whom was a minor at the time of filing of the application before the District Court. Further, she is unemployed and is also a recipient of Z+ security with her children being Z+ protectees. Omar Abdullah has refused to maintain the petitioners despite having sufficient financial means and is currently living in luxury at a 2,200 square yard plot in Nizamuddin, New Delhi., In the absence of the respondent coming forward to discharge his responsibilities as a father and a husband, Payal Abdullah was constrained to file an application under Section 125 of the Code of Criminal Procedure for maintenance of herself and the two children, vide Maintenance Petition No. 111/2016., During the pendency of the aforementioned MAT Petition No. 111/2016, the respondent challenged the order dated 9 September 2016 passed in Maintenance Petition No. 111/2016 and sought the quashing of the proceedings under Section 125 of the Code of Criminal Procedure before this Hon'ble Supreme Court of India. Vide order dated 1 December 2017 in CRL.M.C. 4717/2017, this Court observed that maintainability of the petition under Section 125 of the Code of Criminal Procedure and the question of award of interim maintenance are inseparable. In order to award interim maintenance, the court concerned shall first arrive at a finding that whether the husband/petitioner neglected or refused to give maintenance to his wife/respondent No. 1 and whether the wife/respondent was unable to maintain herself. The court will also necessarily have to determine before awarding the interim maintenance whether respondents No. 2 and 3 are entitled to the same as both the respondents have attained majority. Therefore the question of grant of interim maintenance can be determined only after the determination of the maintainability of the petition under Section 125 of the Code of Criminal Procedure., Vide order dated 26 April 2018, the Learned Principal Judge, Family Court, Patiala House, New Delhi, held that petitioner No. 2 in CRL.REV.P. 604/2018 was a major at the time of filing of the application for maintenance and, therefore, was not entitled to maintenance under Section 125 of the Code of Criminal Procedure. However, it was directed that Payal Abdullah was entitled to an interim maintenance of Rs 75,000 by the respondent from the date of filing of the application under Section 125 of the Code of Criminal Procedure to its disposal, and that petitioner No. 1 in CRL.REV.P. 605/2018 was entitled to an interim maintenance of Rs 25,000., Aggrieved by the aforesaid order, the petitioners have approached this Supreme Court of India, praying for a revision of the order dated 26 April 2018., Mr Prosenjeet Banerjee, learned counsel appearing for the petitioners, submits that the impugned order dated 26 April 2018 is bad in law as it fails to take into consideration the aspect of the respondent deliberately concealing his real income and assets to avoid maintaining the petitioners. He submits that the respondent has only paid for utilities on being specifically asked for it and has levelled false allegations pertaining to the financial stability of Payal Abdullah in order to avoid providing financial support to his family. He further submits that the reason behind the delayed filing of the maintenance plea was that Payal Abdullah wished to repair matrimonial relations with the respondent; therefore, despite estrangement for a number of years, she did not claim maintenance., Mr Banerjee argues that the respondent's claim that Payal Abdullah is the owner of a luxurious flat worth Rs 12 crore at Westend, New Delhi and can reside there with the children, instead of claiming rent for an alternate residence, is false. He states that she is a simple homemaker who is currently subsisting on the pension and savings of her father, a retired General from the Army, and that the flat in question is a small plot of 600 square yards and is accessible to other flat owners. Further, as it is adjacent to a flyover with heavy traffic, it raises concerns about the petitioners' security and cannot accommodate the wife, the children, their pets along with the security personnel, which includes more than 90 guards. He further brings to the attention of this Court that the father of Payal Abdullah is aged and cannot support her, and that the petitioners are being forced to take refuge wherever it is possible for them., The learned counsel for the petitioners submits that the respondent has deliberately failed to disclose any of his income and has calculated the interim maintenance of a mere Rs 75,000 on the basis of a false income affidavit filed by the respondent as well as false allegations levelled by the respondent with regard to Payal Abdullah's income. He states that, in contravention of Kusum Sharma v. Mahinder Kumar Sharma, AIR 2015 Delhi 53, the respondent is liable to provide a full account of his income and expenditure, and in the absence of the same, a negative inference can be drawn. He further states that the wife has no source of income and is drawing a meagre Rs 60,000 as interest from a fixed deposit loaned to her by her father., Mr Banerjee concludes his submissions by stating that the petitioners are under dire financial stress while the respondent has been enjoying an opulent lifestyle, visiting countries such as Dubai and London, and living in five‑star hotels. The learned counsel states that he has enormous properties, staff, and membership to elite clubs. He argues that there is a responsibility on the husband to maintain his wife and children and provide them with the same standard of living that they previously enjoyed. Accordingly, the impugned order deserves to be set aside., Per contra, Ms Malvika Rajkotia, learned counsel appearing on behalf of the respondent, submits that the respondent has consistently discharged his duties of maintaining his children and has paid for utility bills and other expenses, unlike what is being portrayed by the petitioners. He has also been paying Rs 75,000 as directed by the learned Family Court. She states that Section 125 of the Code of Criminal Procedure categorically notes that maintenance can only be claimed by a wife who is unable to maintain herself and that in the instant case, Payal Abdullah has the means to live comfortably as can be shown by the financial affidavit filed by the respondent with the Election Commission of India., Ms Rajkotia, learned counsel for the respondent, argues that this is an elaborate attempt by the wife of the respondent to harass the respondent, a fact which is evident from the particulars of the financial affidavit filed by Payal Abdullah which contains information that is damaging to the reputation of the respondent, who is a well‑respected political leader. She takes this Court through the income affidavit of Payal Abdullah and states that Payal Abdullah has submitted her Income Tax Return receipt which computes the current year loss; however, she has failed to supply the sheet which showcases the details of incomes and expenditures of the sole proprietorship of a natural mineral water bottling plant., The learned counsel submits that records available online display how Payal Abdullah is the director in Golden Sunshine Tours and Travels Pvt. Ltd., an active director in Rahwan Travels Pvt. Ltd. and PA Energy Pvt. Ltd., along with her parents. She further submits that there has been a clear misrepresentation of the financial assets of Payal Abdullah who has stated that her total income is merely Rs 60,000. Ms Rajkotia also argues that despite showing vast expenditures in the statement of expenditures, Payal Abdullah has not provided any substantial or authentic proof of the expenses., With regard to the statement of liabilities, the learned counsel for the respondent submits that Payal Abdullah has stated that a loan of Rs 1 crore has been taken from her father and that her father has incurred expenses of Rs 5 crore on the petitioners herein. She states that such an expenditure by a retired General from the Army is preposterous and that he should be put to strict proof regarding the nature of these expenses. Ms Rajkotia further submits that the submissions on the petitioners having been rendered homeless are untrue as Payal Abdullah owns a flat worth Rs 12 crore in Westend, New Delhi, which is lying vacant, and therefore she cannot seek alternate residence. Further, the eviction only took place because the property was a government property and the order of eviction was rendered by the government under the Public Premises Act. She states that Payal Abdullah is making exaggerated claims with regard to the security threats being received by her and the children, and that their security cover, which is now Y+, remains intact and can be accommodated in the Westend flat., Ms Rajkotia submits that the instant petition is a gross abuse of the law as the wife has consistently misrepresented and hidden her actual financial position and has painted a false picture which depicts her as a destitute who does not have any financial resources to either contest eviction or continue litigation, and is solely reliant on her father's pension for her sustenance as well as that of her children. She argues that the wife wants to portray herself as a victim of cruelty despite the fact that the respondent has undergone immense cruelty at the hands of his wife and has yet ensured that the safety and security of his family remains intact., The learned counsel for the respondent submits that the wife has sought litigation expenses to the tune of Rs 3,00,000, however, the litigation expenses of Rs 25,000, as directed by the Court, have already been paid. She further submits that it is difficult to take the arguments of financial stress at face value as the wife is enjoying a lavish lifestyle which would not be possible if she were truly receiving a meagre income of Rs 60,000. She states that substantial assets of the wife are lying unused and the wife is only agitating the matter at hand to cause mental distress and ruin the reputation of the respondent., Heard: Mr Prosenjeet Banerjee, appearing for the petitioners; Ms Malvika Rajkotia, appearing for the respondent; and perused the material on record., At the outset, this Supreme Court of India seeks to deliberate upon the scope of a revision petition under Sections 397 and 401 of the Code of Criminal Procedure, which has been succinctly explained in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460. The relevant portion of the said judgment is reproduced as follows: \Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law...\, In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452, the Supreme Court observed: \The High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order... The revisional power cannot be equated with the power of an appellate court...\, In a 2018 judgment of the High Court of Andhra Pradesh, titled Dr J. Muralidhar Goud v. State of Telangana represented by its Special Public Prosecutor for CBI, 2018 SCC OnLine Hyd 470, though the matter was not related to grant of maintenance, the principles underlying the scope of revision under Sections 397 and 401 of the Code of Criminal Procedure have been comprehensively discussed. The Court held that the revisional court may call for records to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order and that the power should not be exercised as a right of appeal., It is evident from the above judicial pronouncements that the scope of interference in a revision petition is extremely narrow. The statutory provisions under the Code of Criminal Procedure bestow upon the High Court jurisdiction to consider the correctness, legality or propriety of any finding or order and the regularity of the proceedings of any inferior court. It is well settled that while considering legality, propriety or correctness, the revisional court does not dwell upon the facts and evidence at length but solely considers whether the impugned decision is legal and proper., The principle underlying Section 125 of the Code of Criminal Procedure is that it is in furtherance of social justice and has been enacted to ensure that women and children remain protected from a life of destitution and potential vagrancy. The object of maintenance proceedings is not to punish a person for past neglect but to prevent vagrancy by compelling those who can provide support to support those who are unable to support themselves and who have a moral claim for support. This was observed in Chaturbhuj v. Sita Bai, (2008) 2 SCC 316., Under the law the burden is placed first upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition that the wife was unable to maintain herself. The appellant has placed material to show that the respondent wife was earning some income. That is not sufficient to rule out application of Section 125 of the Code of Criminal Procedure. It must be established that with the amount she earned the respondent wife was unable to maintain herself., The receipt of maintenance is not exclusive to women and children who are on the edge of destitution. There is no strict formula for fixing the quantum of maintenance. The Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 324, listed the factors to be considered, including the status of the parties, reasonable needs of the wife and dependent children, education and professional qualifications, independent source of income, standard of living, sacrifice of employment opportunities, and reasonable costs of litigation for a non‑working wife.
id_401	1	Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 Supreme Court Cases 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 Supreme Court Cases 112 : (2012) 3 Supreme Court Cases (Civil) 290. In Manish Jain v. Akanksha Jain, (2017) 15 Supreme Court Cases 801 : (2018) 2 Supreme Court Cases (Civil) 712, the Supreme Court of India held that the financial position of the parents of the applicant wife would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income sufficient for his or her support. It is not an answer to a claim of maintenance that the wife is educated and could support herself. The Supreme Court of India must take into consideration the status of the parties and the capacity of the spouse to pay for his or her support. Maintenance is dependent upon factual situations; the Supreme Court of India should mould the claim for maintenance based on various factors brought before it., On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, and any liabilities, must be taken into consideration to arrive at the appropriate quantum of maintenance to be paid. The Supreme Court of India must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able‑bodied and has educational qualifications. Reema Salkan v. Sumer Singh Salkan, (2019) 12 Supreme Court Cases 303 : (2018) 5, A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent and the standard of living that the applicant was accustomed to in her matrimonial home. Chaturbhuj v. Sita Bai, (2008) 2 Supreme Court Cases 316 : (2008) 1 Supreme Court Cases (Civil) 547 : (2008) 1 Supreme Court Cases (Criminal) 356. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes; maintenance awarded to the wife should neither be so extravagant that it becomes oppressive and unbearable for the husband, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort., It is also settled law that other factors like age and employment of the parties, and the fact that the wife earns income, must also be considered. In Rajnesh v. Neha, the Supreme Court of India elaborately dealt with these two factors and observed that in a marriage of long duration, where parties have endured the relationship for several years, the duration is a relevant factor. On termination of the relationship, if the wife is educated and professionally qualified but had to give up her employment opportunities to look after the needs of the family as the primary caregiver to minor children and elder members, this factor must be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards; the separated wife would be required to undergo fresh training to acquire marketable skills and retrain herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependent wife to get an easy entry into the workforce after a break of several years., The Supreme Court of India held in Shailja v. Khobbanna, (2018) 12 Supreme Court Cases 199 : (2018) 5 Supreme Court Cases (Civil) 308, and also in the decision of the Karnataka High Court in P. Suresh v. S. Deepa, 2016 Supreme Court OnLine Karnataka 8848 : 2016 Criminal Law Journal 4794 (Karnataka), that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The court has to determine whether the income of the wife is sufficient to enable her to maintain herself in accordance with the lifestyle of her husband in the matrimonial home. Chaturbhuj v. Sita Bai, (2008) 2 Supreme Court Cases 316 : (2008) 1 Supreme Court Cases (Civil) 547 : (2008) 1 Supreme Court Cases (Criminal) 356. Sustenance does not mean, and cannot be allowed to mean, mere survival. Vipul Lakhanpal v. Pooja Sharma, 2015 Supreme Court OnLine Himachal Pradesh 1252 : 2015 Criminal Law Journal 3451., In Sunita Kachwaha v. Anil Kachwaha, (2014) 16 Supreme Court Cases 715 : (2015) 3 Supreme Court Cases (Civil) 753 : (2015) 3 Supreme Court Cases (Criminal) 589, the wife had a postgraduate degree and was employed as a teacher in Jabalpur. The husband contended that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court of India repelled this contention and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance., The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 Supreme Court OnLine Bombay 694, while relying upon the judgment in Sunita Kachwaha, held that neither the mere potential to earn nor the actual earning of the wife, however meagre, is sufficient to deny the claim of maintenance., An able‑bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash v. Shila Rani, 1968 Supreme Court OnLine Delhi 52 : AIR 1968 Delhi 174. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the court., The Supreme Court of India in Shamima Farooqui v. Shahid Khan, (2015) 5 Supreme Court Cases 705 : (2015) 3 Supreme Court Cases (Civil) 274 : (2015) 2 Supreme Court Cases (Criminal) 785, cited the judgment in Chander Parkash with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife., Thus, in addition to the fact that if a wife is earning some income it does not operate as a bar from being awarded maintenance by the husband, it is settled law that applicants in a maintenance proceeding are entitled to the same standard of living as they would have enjoyed if the dispute had not occurred. In Jayant Bhargava v. Priya Bhargava, 2011 Supreme Court OnLine Delhi 1651, the Honorable Court stated that it is the duty of the courts to ensure that it should not be that one spouse lives in a life of comfort and luxury while the other spouse lives a life of deprivation and poverty. The Court also noticed that there is a tendency of spouses in proceedings for maintenance to not truthfully disclose their income, and that in such cases some guesswork on the part of the Court would be permissible. The paragraphs of the said judgment state: \It is settled position of law that a wife is entitled to live in a similar status as was enjoyed by her in her matrimonial home. It is the duty of the courts to ensure that it should not be a case that one spouse lives in a life of comfort and luxury while the other spouse lives a life of deprivation, poverty. During the pendency of divorce proceedings the parties should be able to maintain themselves and should be sufficiently entitled to be represented in judicial proceedings. If in case the party is unable to do so on account of insufficient income, the other spouse shall be liable to pay the same. (See Jasbir Kaur Sehgal (Shrimati) v. District Judge, Dehradun, (1997) 7 Supreme Court Cases 7). Further it has been noticed by the courts that the tendency of the spouses in proceedings for maintenance is to not truthfully disclose their true income. However, in such cases some guess work on the part of the Court is permissible. The Supreme Court of India has also recognized that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the Court is permissible. Considering the diverse claims made by the parties, one inflating the income and the other suppressing, an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision. Although there cannot be an exhaustive list of factors which are to be considered in guessing the income of the spouses, the order based on guess work cannot be arbitrary, whimsical or fanciful. While guessing the income of the spouse, when the sources of income are either not disclosed or not correctly disclosed, the Court can take into consideration amongst others the following factors: ...\, The factors that may be considered by any court in estimating the income of a spouse include: lifestyle of the spouse; the amount spent at the time of marriage and the manner in which the marriage was performed; destination of honeymoon; ownership of motor vehicles; household facilities; facility of driver, cook and other help; credit cards; bank account details; club membership; amount of insurance premium paid; property or properties purchased; rental income; amount of rent paid; amount spent on travel or holiday; locality of residence; number of mobile phones; qualification of spouse; schools where the child or children are studying when parties were residing together; amount spent on fees and other expenses incurred; amount spent on extra‑curricular activities of children when parties were residing together; capacity to repay loan., It has repeatedly been held by the courts that one cannot ignore the fact that an Indian woman has been given equal status under Articles 14 and 16 of the Constitution of India and she has a right to live in dignity and according to the status of her husband. In this case, the stand taken by the respondent with respect to his earnings is unbelievable., While calculating the amount of maintenance to be awarded, the court must consider the state of the parties and the mode of life that the wife was used to as well as the capacity to pay of the husband after allowing for his own expenses and obligations. This maintenance amount should permit reasonable comfort to the wife and ability to prosecute her case, yet it should not be excessive or extortionate. This finding was rendered by the Supreme Court of India early in Jasbir Kaur Sehgal (Shrimati) v. District Judge, Dehradun and Ors., (1997) 7 Supreme Court Cases 7, and has been consistently followed since then. The relevant portion of the judgment is as follows: \The wife has no fixed abode of residence. She says she is living in a Gurdwara with her eldest daughter for safety. On the other hand the husband has sufficient income and a house to himself. The wife has not claimed any litigation expenses in this appeal. She is aggrieved only because of the paltry amount of maintenance fixed by the courts. No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs 5,000 per month payable by the respondent‑husband to the appellant‑wife.\, In Chaturbhuj v. Sita Bai, the Supreme Court held that the test of deciding a claim for maintenance is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. The Supreme Court in Shri Bhagwan Dutt v. Shrimati Kamla Devi and Another, (1975) 2 Supreme Court Cases 386, stated that in view of the objective of the provision for maintenance, it is necessary for the courts to discern what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family., In the instant case, a bare perusal of the record indicates that the respondent is a man of means and has access to financial privilege that evades the common man. While it is understandable that being a politician, revealing all information pertaining to financial assets might be dangerous, there is no doubt that the respondent does have the resources to provide for his wife and children., On the aspect of maintenance being paid to a major son, the Supreme Court as well as the High Courts have concurred that attainment of majority by a son should not absolve a father of his responsibilities of maintaining his children and ensuring that they secure proper education. The Supreme Court in Kirti Malhotra v. M.K. Malhotra, 1995 Supplement (3) Supreme Court Cases 522, noted that Rs 1,000 per month of maintenance to an 18‑year‑old boy was on the lower side and directed it to be increased to Rs 3,000. This direction was given despite the fact that the son had reached the age of 18. This Court also notes the decision in Urvashi Aggarwal & Others v. Inderpaul Aggarwal, 2021 Supreme Court OnLine Delhi 3242., This Court finds weight in the submission of the learned counsel for the petitioners that the language of Section 125 of the Criminal Procedure Code was not meant to oust the duty of the father to provide for his son. Keeping in mind the purpose and intent of the provision, along with the growing importance of obtaining higher undergraduate education for securing employment, the father is legally and morally bound to ensure that his child, even if a major son, is provided for. The Court also agrees that the wife and the children must not be put in a position where they are deprived of the lifestyle and comfort they previously enjoyed. Even if the wife has sufficient financial means to sustain herself, the husband cannot wash his hands of the responsibilities that are bestowed upon him regarding the upbringing of his children., Further, a perusal of the income affidavits of the husband and the wife indicates that the husband leads a lavish lifestyle. Documents attached to the petition reveal that the respondent has been travelling to Dubai and London, staying in five‑star and seven‑star hotels and spending lakhs on such luxuries. These documents belie the submission that he does not have the means to live an extravagant life. He evidently has the financial means to provide support to his wife and children. Additionally, the wife is the director of three loss‑making companies. She has studied only up to the 12th standard and her father is a retired Army General. Though unemployed, the wife is not a complete destitute. As observed in Chaturbhuj v. Sita Bai, even if the wife is earning some income, it is not sufficient to rule out the application of Section 125 of the Criminal Procedure Code. Therefore, the question of awarding an excessive amount of maintenance does not arise, nor does the question of no maintenance or very low maintenance., The Court also does not find merit in the submission on behalf of the petitioners that rent needs to be paid by the respondent for the farmhouse at Kapashera. The learned Family Court has rightly observed that the property owned by the wife, located at Westend, New Delhi, is lying vacant. It is not only at the disposal of Payal Abdullah to take up residence there, but is also available to her for fetching rent. At this stage of calculation of interim maintenance, the Court does not find it necessary to increase the maintenance amount for the purpose of payment of rent., The Court is of the view that in light of the financial capacity of the respondent to provide a decent standard of living to his wife and children commensurate with his income and the standard of living that the petitioners enjoyed previously, there is no reason that the maintenance amount awarded to Payal Abdullah should not be enhanced. Accordingly, the Court observes that there is limited merit in the instant petition and directs the interim maintenance amount to be increased from Rs 75,000 per month to Rs 1,50,000 per month for the petitioner in CRL.REV.P. 605/2018 from the date of the application., Both petitioners are majors and, therefore, under Section 125 of the Criminal Procedure Code, they are not entitled to maintenance. However, the Court is of the opinion that the respondent cannot abandon his children and ought not to abdicate his duties as a father. The petitioner in CRL.REV.P. 605/2018 has been saddled with the responsibility of paying the entire fee for the education of both children, however, it was the duty of the father to also contribute towards their education. Therefore, even though the petitioners in CRL.REV.P. 604/2018 are not entitled to any maintenance as per the law, the Court is of the opinion that the respondent should compensate the petitioner in CRL.REV.P. 605/2018 by sharing the burden of the amount spent by her towards the expenses and upkeep of the children., Resultantly, the Court directs the respondent to pay a sum of Rs 60,000 per month per son to the petitioner in CRL.REV.P. 605/2018 for the purpose of their education. The period of compensation shall commence from the date when the children were enrolled in the law college and shall subsist till their graduation from the law college. As the financial status of the petitioner in CRL.REV.P. 605/2018 is not particularly dire, the Court abstains from directing the respondent to provide compensation for the children’s schooling. However, taking judicial notice of the fact that the fee of the law school where the two children were enrolled was exorbitant, the Court deems it fit to direct the respondent to pay a sum of Rs 60,000 per month for each son to the petitioner in CRL.REV.P. 605/2018 for the period that they were enrolled in law school. The Court notes that in such acrimonious proceedings, parents tend to make their children pawns, thereby sidelining their children’s happiness in order to vindicate themselves., M‑Petition No. 111/2016, in which the impugned order has been rendered, was filed in the year 2016. The learned Family Court is directed to dispose of the petition as expeditiously as possible, preferably within twelve months of the receipt of the copy of this order., Accordingly, the revision petitions and any pending applications are disposed of in the above terms. The other conditions imposed in the impugned order are left undisturbed.
id_402	0	Reportable Review Petition (Criminal) Nos. 159-160 of 2013 Criminal Appeal Nos. 300-301 of 2011 Sundar @ Sundarrajan Petitioner versus State by Inspector of Police Respondent Dr Dhananjaya Y Chandrachud, Chief Justice of India. This judgment consists of the following sections: E.2. Sentencing & Mitigation in the Trial Court and the Appellate Courts. The applicant is a convict on death row. He has moved the Supreme Court of India for a fresh look at his petition seeking a review of his conviction for the offence of murder and the award of the sentence of death. He does so on the basis of the decision of the Constitution Bench in Mohd. Arif alias Ashfaq v Registrar, Supreme Court of India. In Mohd. Arif, the Supreme Court of India held that review petitions arising from conviction and the imposition of the sentence of death must be heard in open court and cannot be disposed of by circulation. The Constitution Bench allowed a period of a month from the date of judgment to petitioners whose applications seeking review of the judgment of this Court confirming the award of the sentence of death were rejected by circulation, where the sentence was yet to be executed., In Mohd. Arif, the Supreme Court of India took note of the irreversible nature of the death penalty and of the possibility of two judicial minds reaching differing conclusions on the question of a case being appropriate for the award of the death penalty. The majority judgment allowed the right to oral hearing in review for cases involving death penalty, observing that death sentence cases are a distinct category of cases. Apart from Article 134 of the Constitution granting an automatic right of appeal to the Supreme Court of India in all death sentence cases, and apart from death sentence being granted only in the rarest of rare cases, two factors have impressed the Court: the irreversibility of a death penalty and the fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other. The basic principle behind awarding the death sentence is that it has to be awarded in the rarest of rare cases. There may be aggravating as well as mitigating circumstances which are to be examined by the Court, but it is not possible to lay down precise principles or parameters for such circumstances. Attempts by judges to state such circumstances remain illustrative only., A sentence is a compound of many factors, including the nature of the offence as well as the circumstances aggravating or mitigating the offence. A large number of aggravating and mitigating circumstances have been pointed out in Bachan Singh v. State of Punjab, Supreme Court Cases at pp. 749-750, paras 202 and 206, that a judge should take into account when awarding the death sentence. Apart from the fact that these lists are illustrative, different judicially trained minds can apply different aggravating and mitigating circumstances to ultimately arrive at a conclusion as to whether the death penalty may or may not be awarded in any given case. Experience based on judicial decisions demonstrates such divergent approaches. When on the same set of facts one judicial mind concludes that the circumstances do not warrant the death penalty whereas another feels it fully justifies the death penalty, the necessity of oral hearing in a review petition filed by a convict who has suffered the sentence of death becomes an integral part of reasonable procedure., A recent study by Project 39A examined all the judgments involving a sentence of death delivered by the Supreme Court of India between 2007 and 2021 and analysed the exercise of the review jurisdiction in capital cases. It noted that before the decision in Mohd. Arif, fourteen review petitions were dismissed by circulation and the capital punishment was confirmed in all of them. Thirteen of these were reopened in view of the judgment, resulting in only four reconfirmations of the death penalty. Seven judgments resulted in commutation of death sentences, one in acquittal and one case was abated due to the death of the prisoner. The impact of oral hearing of review petitions, due to the judgment in Mohd. Arif, leading to a change in the outcome of a death penalty confirmation is evident., The Supreme Court of India in Mohd. Arif was not persuaded by the argument of involving two additional judges beyond the judges who had heard the original appeal during the hearing of the review petition. It held that a review must ordinarily be heard by the same bench which originally heard the criminal appeal. The Court noted that henceforth, in all cases in which a death sentence has been awarded by the High Court in appeals pending before the Supreme Court of India, only a bench of three Hon'ble Judges will hear the same. At present, the Court is not persuaded to have a minimum of five learned Judges hear all death sentence cases. A review is ordinarily to be heard only by the same bench which originally heard the criminal appeal, because errors apparent on the face of the record have to be found and the same learned judges alleged to have committed the error should be called upon to rectify it., The data analysed by Project 39A indicates that it is not merely the oral hearing of review petitions that has changed the outcomes; there may also be a correlation between the ultimate outcome changing and different judges being involved as part of the review process instead of the same judges who had originally decided the appeal. Post Mohd. Arif, this happens when the judges who were members of the original bench have demitted office by the time the open court review comes for hearing. Of the thirteen review cases reopened after Mohd. Arif, only four led to reconfirmation of the death penalty, while seven sentences were commuted to life imprisonment, one resulted in acquittal and one stood abated. Of the ten fresh review cases, seven death sentences were confirmed and three were commuted. In the cases where the sentence of death was commuted to life imprisonment, all of the benches in review were of a different composition from the bench that decided the appeal. The single acquittal also had a different bench in review. In contrast, of the eleven cases that reconfirmed the death sentence, seven benches had a composition of one or all the judges being the same as the bench that decided the appeal. The report notes that when the same bench as the appeal hears the review, the death sentence is more likely to be maintained., In view of the judgment in Mohd. Arif, the order dated 20 March 2013 in the present case dismissing the review petition through circulation was recalled and this review petition was heard in open court. The petitioner was accused of kidnapping and murdering a seven‑year‑old child. The petitioner is alleged to have picked up the victim while he was returning from school in the school van on 27 July 2009. Prosecution witnesses testified that the petitioner picked up the victim on his motorbike. Due to the victim’s absence, his mother attempted to find his whereabouts and was informed of the sequence of events by a witness. She registered a complaint at Kammapuram Police Station on the same date. On the same night, she received a call on her mobile phone from the petitioner demanding a ransom of Rs 5 lakhs for the release of the victim. A further ransom call was made the next day from a telephone booth; the booth operator testified that the petitioner made a call enquiring about the payment of money., On 30 July 2009 the police raided the petitioner’s house and arrested him along with a co‑accused who was later acquitted. The petitioner made confessional statements on the basis of which three mobile phones, two of which had SIM cards, were recovered. The petitioner confessed to strangling the deceased, putting his dead body in a gunny bag and throwing it in the Meerankulam tank. The body was recovered from the tank on the basis of the confessional statement. The petitioner was charged under Sections 364A, 302 and 201 of the Indian Penal Code. The trial was committed to the Sessions Court on 30 July 2010. The Sessions Court convicted the petitioner of the offences and sentenced him to death with a fine of Rs 1,000 for the offence under Section 364A IPC, death with a fine of Rs 1,000 for the offence under Section 302 IPC, and rigorous imprisonment for seven years with a fine of Rs 1,000 for the offence under Section 201 IPC. The co‑accused was acquitted of all offences., The petitioner’s appeal was dismissed by the Madras High Court by a judgment dated 30 September 2010. The Madras High Court confirmed both the conviction and the award of the death sentence. This Court dismissed the appeal of the petitioner and confirmed the judgment of the Madras High Court on 5 February 2013. Both the Madras High Court and this Court entered into a detailed appreciation of facts before confirming the conviction., Article 137 of the Constitution states that the Supreme Court of India has the power to review any judgment pronounced by it subject to provisions of law made by Parliament or any rules under Article 145. The Supreme Court Rules 2013 have been framed under Article 145 of the Constitution. Order XLVII Rule 1 of the 2013 Rules provides that the Court may review its own judgment or order but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII Rule 1 of the Code of Civil Procedure, 1908, and in a criminal proceeding except on the ground of an error apparent on the face of the record., In Mofil Khan v. State of Jharkhand, a three‑judge bench of the Supreme Court of India while discussing the scope of the power of review held that review is not a rehearing of the appeal all over again and to maintain a review petition, it has to be shown that there has been a miscarriage of justice. An error which is not self‑evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. An applicant cannot be allowed to re‑argue the appeal in an application for review on the grounds that were urged at the time of hearing of the appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the accused, that is not a sufficient ground for review. The Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept into the earlier decision due to judicial fallibility., The counsel for the petitioner submitted that several errors are apparent on the face of the record and call for a review of the judgment dismissing the appeal: (a) there is no proof that the phone number used for the ransom calls, ending with XXX5961, belongs to the petitioner; (b) call detail records show that the above‑mentioned number is registered to an individual residing in Alathur, Palakkad, with whom the petitioner has no connection; (c) the 15‑digit IMEI number for the cell phone allegedly belonging to the petitioner differs in the seizure memo from that in the call detail record; (d) there is no evidence that the number on which the ransom call was made to the mother of the deceased, ending with XXX847, belongs to her; (e) the mother has not stated that calls were made to her on 28 July 2009 and the testimony of the telephone‑booth operator cannot be relied upon; and (f) the certificate under Section 65B of the Indian Evidence Act for the call detail records was not furnished., The counsel for the State of Tamil Nadu strongly resisted the petitioner’s submissions, stating that the grounds do not amount to errors apparent on the face of the record and do not meet the standard for re‑appreciating evidence by this Court in review jurisdiction in view of the concurrent findings of the Trial Court, the Madras High Court and the Supreme Court of India. The prosecution case is not founded solely on the alleged ransom calls but on consistent interlinked evidence, as both the Madras High Court and the Supreme Court of India found., The petitioner alleged that the number used for the ransom call did not belong to him. However, on the basis of his statement of 30 July 2009, the cell phone with the SIM for the mobile number ending with XXX5961 was seized from the petitioner along with two other cell phones, the motorbike on which he had kidnapped the victim, and the victim’s school bag. The contention regarding the difference in the IMEI number recorded in the seizure memo and the call detail records pertains only to the last digit of the 15‑digit IMEI number. The first fourteen digits, which uniquely identify the device, match in both documents. The last digit is a Luhn check digit calculated from the first fourteen digits; a discrepancy in this digit is a typographical error and does not imply a different device., The arguments regarding non‑verification of the mother’s number and the lack of confirmation of a call on the subsequent day were raised at a belated stage. The mother testified that she received the ransom call at about 9:30 PM. It was the petitioner’s opportunity, during cross‑examination, to raise questions about the ownership of the number ending with XXX847 or the alleged call on 28 July 2009. Regarding the call detail records, the Legal Officer of Vodafone, who produced the documents from the computer, corroborated the details of the calls made between the petitioner and the mother and the telephone‑booth operator. The call detail records of the mobile number ending with XXX5961 confirm two calls to the operator at 9:22 PM and 9:25 PM on 27 July 2009, followed by a call to the mother’s number at 9:39 PM. Although the Section 65B certificate was not produced, Section 65B of the Indian Evidence Act provides for the admissibility of electronic records., Section 65B of the Indian Evidence Act provides that any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document and shall be admissible in any proceedings without further proof of the original, provided certain conditions are satisfied: (1) the computer output was produced by the computer during the period it was regularly used; (2) the kind of information was regularly fed into the computer; (3) the computer was operating properly; and (4) the electronic record reproduces or is derived from such information. A certificate identifying the electronic record, describing its production, and signed by a responsible official is evidence of the matters stated in the certificate., The petitioner relied upon the judgment of this Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, which reiterated the dictum in Anvar P.V. v. P.K. Basheer requiring mandatory compliance with Section 65B of the Indian Evidence Act. An earlier decision of a two‑judge bench of the Supreme Court of India in State (NCT of Delhi) v. Navjot Sandhu held that Section 65B was only one of the provisions through which secondary evidence by way of electronic record could be admitted and that there was no bar on admitting evidence through other provisions such as Sections 63 and 65 of the Evidence Act. However, the principle enunciated in Navjot Sandhu was overruled by a three‑judge bench of the Supreme Court of India in Anvar P.V., which held that the special provision of Section 65B yields to the general law on secondary evidence.
id_402	1	Generalia specialibus non derogant, special law will always prevail over the general law. It appears that the Supreme Court of India omitted to take note of Sections 59 and 65‑A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65‑A and 65‑B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by the Supreme Court of India in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so., An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65‑B are satisfied. Thus, in the case of CD, VCD, chip and so on, the same shall be accompanied by the certificate in terms of Section 65‑B obtained at the time of taking the document, without which the secondary evidence pertaining to that electronic record is inadmissible., Accordingly, in terms of the decision in Anvar P.V., for admitting any electronic evidence by way of secondary evidence, such as call data records, the requirements of Section 65‑B would necessarily need to be satisfied and no other route under the Evidence Act may be adopted for the admission of such evidence., However, a three‑judge bench in Tomaso Bruno v State of Uttar Pradesh took a different approach and observed that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act without referring to the decision in Anvar P.V., With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant. Electronic documents stricto sensu are admitted as material evidence. With the amendment to the Evidence Act in 2000, Sections 65‑A and 65‑B were introduced into Chapter V relating to documentary evidence. Section 65‑A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65‑B is complied with. The computer‑generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65‑B of the Evidence Act. Sub‑section (1) of Section 65‑B makes admissible as a document the paper printout of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in Sub‑section (2) of Section 65‑B. Secondary evidence of contents of a document can also be led under Section 65 of the Evidence Act., PW 13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it., A two‑judge bench in Shafi Mohammed v State of Himachal Pradesh strayed even farther away from Anvar P.V. and held that Sections 65‑A and 65‑B cannot be held to be a complete code on the subject., The Court noted that in the judgment of Anvar P.V. v P.K. Basheer, electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act, to which the procedure of Section 65‑B was not applicable. However, for secondary evidence, the procedure of Section 65‑B was required to be followed, and the contrary view taken in Navjot Sandhu that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act was not correct. Observations in paragraph 14 indicated that electronic record can be proved only as per Section 65‑B., The Court further held that, although Sections 65‑A and 65‑B of the Evidence Act, 1872 cannot be held to be a complete code on the subject, if the electronic evidence is authentic and relevant the same can certainly be admitted subject to the court being satisfied about its authenticity, and the procedure for its admissibility may depend on the fact situation such as whether the person producing such evidence is in a position to furnish a certificate under Section 65‑B(4)., The Court in Shafi Mohammed even diluted the requirement of the Section 65‑B certificate. This led to contradictory positions in these cases vis‑à‑vis the law laid down by Anvar P.V., which was settled by a reference to a three‑judge bench of this Court in Arjun Panditrao Khotkar. The Court reiterated Anvar P.V. and held Tomaso Bruno per incuriam and overruled Shafi Mohammed., The clarification is that the required certificate under Section 65‑B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, tablet or even a mobile phone, by stepping into the witness box and proving that the device on which the original information is first stored is owned and/or operated by him. In cases where the computer is part of a system or network and it becomes impossible to physically bring such system or network to the Supreme Court of India, the only means of providing information contained in such electronic record can be in accordance with Section 65‑B(1), together with the requisite certificate under Section 65‑B(4). The last sentence in paragraph 24 of Anvar P.V. which reads as if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act is thus clarified; it is to be read without the words ‘under Section 62 of the Evidence Act’., Therefore, the law is now settled: a Section 65‑B certificate is mandatory in terms of the Supreme Court of India's judgment in Anvar P.V. as confirmed in Arjun Panditrao Khotkar., Anvar P.V. was decided on 18 September 2014. Until then, the interpretation of law in Navjot Sandhu, which was decided on 4 August 2005, prevailed. In the instant case, the Trial Court pronounced its judgment on 30 July 2010. Two months later, on 30 September 2010, the High Court affirmed the decision of the Trial Court to award the death sentence. The Supreme Court of India dismissed the appeal and confirmed the death sentence on 5 February 2013. Even the review petition was dismissed in chambers on 20 March 2013 before being reopened in the instant proceeding in view of the Constitution Bench judgment in Mohd. Arif alias Ashfaq., Accordingly, none of the courts had the benefit of the law laid down vis‑à‑vis the mandatory requirement of the Section 65‑B certificate in Anvar P.V. The courts as well as the investigative agency proceeded in accordance with the law that was then prevailing., In Sonu alias Amar v State of Haryana this Court considered the impact of the retrospective application of Anvar P.V. upon trials that had already been held during the period when Navjot Sandhu held the field and observed that the interpretation of Section 65‑B(4) by this Court in Navjot Sandhu held the field till it was overruled on 18 September 2014 in Anvar case. All the criminal courts in this country are bound to follow the law as interpreted by this Court. Because of the interpretation of Section 65‑B in Navjot Sandhu, there was no necessity of a certificate for proving electronic records. A large number of trials were held between 4 August 2005 and 18 September 2014. Electronic records without a certificate might have been adduced in evidence. The judgment of this Court in Anvar case has to be retrospective in operation unless the judicial tool of prospective overruling is applied. However, retrospective application of the judgment is not in the interest of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage. Attempts will be made to reopen cases which have become final., The Court did not decide upon this issue being a two‑judge bench and kept the question of law open for it to be decided in an appropriate case. In Arjun Panditrao Khotkar this Court did not consider the question raised in Sonu., On the other hand, Sonu dealt with the question of whether, at the appellate stage, the reliance upon call data records can be reconsidered if the objection was not raised during the trial. As the counsel for the State of Tamil Nadu argued, the defence also did not raise the plea of the call data records being inadmissible in the absence of a Section 65‑B certificate at the trial or at the appellate stage. The Court noted that it is not a case that call data records, which are a form of electronic record, are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65‑B(4). An objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by the Supreme Court of India, is whether the defect could have been cured at the stage of marking the document. If an objection was taken to the call data records being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. Objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage., The Court in Arjun Panditrao Khotkar kept it open for trial courts, in exceptional cases, to allow the prosecution to provide such certificate at a later stage. It held that the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. The exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, examining any application by the prosecution under Sections 91 or 311 of the Code of Criminal Procedure or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case and discretion to be exercised by the court in accordance with law., Therefore, we are inclined to agree with the ratio in Sonu by not allowing the objection which is raised at a belated stage that the call data records are inadmissible in the absence of a Section 65‑B certificate, especially in cases where the trial has been completed before 18 September 2014, i.e., before the pronouncement of the decision in Anvar P.V. However, we are also mindful of the fact that the instant matter involves the death sentence having been awarded., Most recently, in Mohd. Arif v State (NCT of Delhi), a three‑judge bench of the Supreme Court of India while deciding a review petition in a case involving the review of a death penalty faced a similar fact situation where the decisions of the trial court and appellate courts were rendered during the period when Navjot Sandhu was the prevailing law. The Court noted that Navjot Sandhu was decided on 4 August 2005, before the judgment was rendered by the Trial Court in the instant matter. The subsequent judgments of the High Court and this Court were passed on 13 September 2007 and 10 August 2011 respectively affirming the award of death sentence. These judgments were delivered prior to the decision of the Supreme Court of India in Anvar P.V. on 18 September 2014 and were essentially in the backdrop of law laid down in Navjot Sandhu. Applying the principle accepted in paragraph 32 of the decision in Sonu alias Amar, the matter may stand on a completely different footing. For this reason reliance has been placed on certain decisions of this Court to submit that the matter need not be reopened on issues which were dealt with in accordance with the law then prevailing. However, since the instant matter pertains to award of death sentence, this review petition must be considered in light of the decisions made by the Supreme Court of India in Anvar P.V. and Arjun Panditrao Khotkar., Consequently, we must eschew, for the present purposes, the electronic evidence in the form of call data records which was without any appropriate certificate under Section 65‑B(4) of the Evidence Act., Accordingly, we also deem it appropriate to consider this review petition by eschewing the electronic evidence in the form of call data records as they are without the appropriate certificate under Section 65‑B even if the law, as it was during the time the trial in the present case was conducted, allowed for such electronic evidence to be admitted., We analyse the evidence considered by the High Court and the Supreme Court of India in appeal without relying upon the call data records. The High Court took note of the following evidence in its judgment before arriving at the conclusion of the guilt of the petitioner and confirming his conviction: According to PW 1 the mother of the deceased child Suresh, the child used to leave for school every day at about 8.00 a.m. and come back at about 4.30 p.m., and on the date of occurrence, i.e., 27 July 2009, the child as usual went to the school. From the evidence of PW 6, the correspondent of Sakthi Matriculation School, Vridhachalam, and also the attendance register, Exhibit P3, it is evident that the child attended the school that day and was returning from the school in the van meant for that purpose. According to PW 2, she is also studying along with the deceased Suresh, and on the day both were returning from the school in the van and got down at Karkudal, where A‑1, who was standing under a neem tree with a motorbike, came to them and told the child Suresh that both his mother and grandmother were not doing well and on that false reason took the child from the place., The evidence of PW 2 was much commented by the learned counsel for the appellant but those contentions cannot be agreed. The learned trial judge categorically pointed out before recording the evidence that the maturity of the mind of the child, PW 2, to give evidence was actually tested and found satisfactory, and then he recorded the evidence. The child at the time of occurrence was 10 years old, and at the time of giving evidence it was 11., It would be clear that if the evidence of a child witness is cogent and convincing, the Court can accept that evidence. In the instant case, the evidence of PW 2 is narrated above. According to PW 1, immediately when the child did not return by 4.30 p.m., she entertained suspicion and went in search of her son, and she immediately met PW 2, the other child. PW 2 informed PW 1 that the child Suresh was taken by a person on a motorbike telling the above reasons. The earliest version found in Exhibit P1, the complaint, indicates that after the child did not return, PW 1 met PW 2 Kamali, the other child, and was informed by PW 2 that the child was taken by a person on a motorbike with the above false reasons. Thus the earliest version clearly indicates that PW 2 gave a true version. The child was able to identify the motorbike, marked as M.O.5, before the Court. Despite cross‑examination in full, the evidence of PW 2 the child remained unshaken. Following the ratio laid down by the Apex Court, this Court is of the considered opinion that the evidence of PW 2 has to be accepted., Further, PW 2 at the time of the identification parade was able to identify A‑1 properly as could be seen from the identification parade proceedings Exhibit P4. The evidence of PW 3, a native of the same village, also stood fully corroborated. PW 3, aged 41, stated that he was actually coming on the way, and when the school van was stopped, PW 2 and the deceased Suresh got down, and the child was called by A‑1, and for some reason the child was taken in the bike which was noticed by him. PW 3 also took part in the identification parade and identified A‑1 properly. The comment made by the learned counsel for the appellant that there were infirmities in the identification parade cannot be countenanced in law. The identification parade was conducted pursuant to the orders of the Chief Judicial Magistrate on the requisition made by the investigating officer; otherwise it could not have taken place. The conduct of the identification parade in order to identify A‑1 in which PW 2 and PW 3 participated was never denied by the appellant before the trial court. Under the circumstances, this Court is of the considered opinion that the test identification parade was properly done, and the trial judge was perfectly correct in accepting the evidence adduced by the prosecution in that regard., It is a settled proposition of law that the identification parade is only a corroborative piece of evidence and the identification done in the Court is a substantive piece of evidence. The Court must look into whether at the time when the witnesses saw the accused in the company of the deceased, such a thing would have caused a dent in their memory. In the instant case, the child was only 7 years old, and both the child and PW 2 Kamali who was coming along with the child got down together, and the appellant/A‑1 came there and took the child on the flimsy reason. Naturally the same would have caused a dent in the memory of PW 2 and also in the memory of PW 3, a man aged about 41. Therefore, the trial judge was perfectly correct in accepting the evidence of PW 2 and PW 3., From the above, it is clear that two witnesses, PW 2 and PW 3, saw the petitioner taking away the victim on his motorbike after he got down from the school bus while returning. PW 2 and PW 3 also identified the petitioner upon his arrest at the time of the test identification parade which was found to have been properly conducted. Furthermore, both of the witnesses also provided unimpeachable evidence in their respective cross‑examinations before the trial court. The trial court also followed the proper procedure in taking the testimony of PW 2, a child witness, by recording the maturity of the mind of the child, who even identified the motorbike before the Court., The counsel for the appellant seemed to have acknowledged that there was enough evidence to establish kidnapping, as observed: We have considered the first contention advanced by the learned counsel for the appellant. In the veiled submission advanced by the learned counsel for the appellant, we find an implied acknowledgement that the prosecution had placed sufficient material on the record of the case to substantiate the factum of kidnapping of the deceased Suresh at the hands of the accused‑appellant., The Supreme Court of India, in the course of the decision in appeal, held that there was sufficient evidence to hold the petitioner guilty of murder as well: Since in the facts and circumstances of this case it has been duly established that Suresh had been kidnapped by the accused‑appellant, the accused‑appellant has not been able to produce any material on the record to show the release of Suresh from his custody. Section 106 of the Indian Evidence Act, 1872 places the onus on him. In the absence of any such material produced by the accused‑appellant, it has to be accepted that the custody of Suresh remained with the accused‑appellant till he was murdered. The motive for the accused‑appellant taking the extreme step was that ransom as demanded by him had not been paid. We are therefore satisfied that there is sufficient evidence on the record of this case, on the basis whereof even the factum of murder of Suresh at the hands of the accused‑appellant stands established., The Court noted that material objects were recovered on the basis of the petitioner’s statement: When the accused‑appellant was detained on 30 July 2009, he made a confessional statement in the presence of Kasinathan (PW 13) stating that he had strangulated Suresh to death, whereupon his body was put into a gunny bag and thrown into the Meerankulam tank. It was thereafter, on the pointing out of the accused‑appellant, that the body of Suresh was recovered from the Meerankulam tank. It was found in a gunny bag, as stated by the accused‑appellant. Dr. Kathirvel (PW 12) concluded after holding the post‑mortem examination of the dead body of Suresh that Suresh had died on account of suffocation, prior to his having been drowned. The instant evidence clearly nails the accused‑appellant as the perpetrator of the murder of Suresh. Moreover, the statement of Kasinathan (PW 13) further reveals that the school bag, books and slate of Suresh were recovered from the residence of the accused‑appellant. These articles were confirmed by Maheshwari (PW 1) as belonging to Suresh., The evidence in the form of call data records was merely to corroborate the evidence that had been given through the depositions of PW 1 and PW 8. Both of their testimonies stand corroborated not only through the call data records but also through the recovery of the mobile phone on the basis of the confessional statement of the petitioner. At this juncture, PW 13 has categorically spoken to the fact that at the time of arrest, A‑1 came forward to give a confessional statement voluntarily, and the same was recorded by the investigator. The admissible part is marked as Exhibit P9 pursuant to which he produced three cell phones, one of which contained the number through which he made two phone calls to PW 8 at about 9.22 p.m. and 9.25 p.m. respectively on 27 July 2010, and also at about 9.39 p.m. to PW 1 making a demand for ransom. The contentions put forth by the learned counsel as to whether one Shankar who made the calls at 9.22 and 9.25 p.m. was alive or a fictitious person, and the cellphone recovered from A‑1 did not belong to him, have to be rejected since they do not carry merit. The cellphone from which all three calls were made, namely two calls to PW 8 at about 9.22 and 9.25 p.m. in the name of Shankar and one call at 9.39 p.m. by A‑1 to PW 1, has been recovered, and the particulars of those calls have been recorded in the cellphone, and it was actually kept by PW 8 during the relevant time and also A‑1 during the relevant time.
id_402	2	Out of these three cell phones, one cell phone was with the SIM card and the other two cell phones were without SIM card. The documentary evidence produced by the prosecution shows that three calls were made, namely two calls to Petitioner Witness 8 at 9:22 p.m. and 9:25 p.m. respectively, and after ascertaining the number of Petitioner Witness 1, a third call was made to Petitioner Witness 1. All the documentary evidence was placed before the trial court. It is clear that the evidence of Petitioner Witness 8 indicates that the appellant/A‑1 wanted to know the number of Petitioner Witness 1, then he made a call to Petitioner Witness 8 and learned the number, and thereafter he made a call at about 9:39 p.m. to Petitioner Witness 1, as found in the evidence of Petitioner Witness 1. Even if Exhibit P5, being the call data record, is not relied upon by the Supreme Court of India in the above paragraph, the prosecution's case is not weakened as it merely corroborates the documentary evidence and witness testimonies that remain unblemished. From the above discussion, there is no reason to doubt the guilt of the petitioner., Therefore, even though none of the grounds raised by the petitioner amount to errors apparent on the face of the record, in view of the above analysis it can be conclusively said that all the grounds on merits fail to raise any reasonable doubt in the prosecution's case., Accordingly, we see no reason in the review jurisdiction to interfere with the concurrent findings of the trial court, the high court and the Supreme Court of India regarding the guilt of the petitioner for kidnapping and murdering the victim., The counsel for the petitioner has also pressed upon the Supreme Court of India to reconsider the quantum of the sentence in terms of the capital punishment which was ordered by the trial court and confirmed on appeal by the high court and the Supreme Court of India., The counsel for the petitioner argued at length that the death sentence was passed without a proper mitigation exercise regarding the circumstances of the petitioner., The counsel for the petitioner submitted that the sentence of death cannot be imposed in such cases where the conviction is based on circumstantial evidence as a lingering doubt regarding the guilt of the accused persists., However, in Shatrughna Baban Meshram v. State of Maharashtra, a three‑judge bench of the Supreme Court of India ruled out the theory of lingering doubt or residual doubt. The Court held: When it comes to cases based on circumstantial evidence in our jurisprudence, the standard adopted by this Court, as noticed in Sharad Birdhichand Sarda and subsequent decisions, is that the circumstances must not only be individually proved or established, but they must form a consistent chain, conclusive enough to rule out the possibility of any other hypothesis except the guilt of the accused. Once that burden is discharged, any other hypothesis or the innocence of the accused is ruled out at the stage of sentencing after the finding of guilt. Therefore, the concept of residual doubt has no place in a case based on circumstantial evidence. The theory of residual doubt was never accepted by the United States Supreme Court., However, as summed up in Kalu Khan, while dealing with cases based on circumstantial evidence for the imposition of a death sentence, a higher or stricter standard must be insisted upon. The approach to capital punishment must conform to the principles set out in paragraph 50 above, and the instant matter must be considered in that light., Accordingly, the argument of residual or lingering doubt does not come to the rescue of the petitioner. In the appellate decision, the standard laid out in Sharad Birdhichand Sarda and subsequent cases was applied, and the Court upheld the guilt of the petitioner. The Court noted: Based on the evidence noticed in the three preceding paragraphs, there can be no doubt whatsoever that the accused appellant had been identified through cogent evidence as the person who had taken away Suresh when he disembarked from the school van on 27 July 2009. The fact of kidnapping of Suresh by the accused appellant therefore stands duly established. We are therefore satisfied that, in the facts and circumstances of the present case, there is sufficient evidence on record for the fact of murder of Suresh at the hands of the accused appellant to stand established., The Supreme Court of India has already applied the relevant standard to confirm the guilt of the petitioner in an appeal based on circumstantial evidence, and it will not be appropriate for the Supreme Court of India to again assess the evidence in the review jurisdiction in view of its limited scope., The counsel for the petitioner argued that even if the petitioner’s guilt was affirmed, the trial court and appellate courts failed to appropriately consider relevant aggravating and mitigating circumstances, including the possibility of reformation of the petitioner, while deciding upon the sentence. The counsel urged that the petitioner should not have been awarded the death sentence and that it ought to be commuted in view of the failure of the courts to conduct an appropriate mitigation exercise., In a line of precedent of the Supreme Court of India, there has been discussion on whether a separate hearing on the issue of sentence is mandatory after recording the conviction of an accused for an offence punishable by death. Section 235 of the Code of Criminal Procedure, 1973 states: (1) After hearing arguments and points of law, if any, the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law., In Santa Singh v. State of Punjab, a two‑judge bench of the Supreme Court of India highlighted the requirement of a separate sentencing hearing in view of Section 235(2) of the Code of Criminal Procedure and noted that the stage of sentencing is as important as the adjudication of guilt in the administration of criminal justice., The majority judgment in the Constitution Bench decision in Bachan Singh v. State of Punjab reiterated the importance of a sentencing hearing. The Court noted that Section 354(3) of the Code of Criminal Procedure, 1973 marks a significant shift in legislative policy, whereby the normal punishment for murder and six other capital offences under the Indian Penal Code is imprisonment for life, and death penalty is an exception. Section 235(2) provides for a bifurcated trial and specifically gives the accused a right of pre‑sentence hearing, at which stage material or evidence bearing on the choice of sentence may be placed on record., The requirement of a separate hearing was reiterated in Muniappan v. State of Tamil Nadu, where the Court noted that compliance with the provision for a separate sentencing hearing should be genuine, not merely a formality, and that the court must make a real effort to inquire into information that may have a bearing on the question of sentence., In Allauddin Mian v. State of Bihar, a two‑judge bench held that a sentencing hearing is required to satisfy the rules of natural justice; it is mandatory and not a mere formality. The Court emphasized that the accused must be given an opportunity to be heard on the question of sentence, and that the court must consider both aggravating and mitigating circumstances before pronouncing the sentence., The importance of a separate sentencing hearing after recording a conviction was reiterated in Anguswamy v. State of Tamil Nadu, Malkiat Singh v. State of Punjab and Dattaraya v. State of Maharashtra., On the other hand, judgments of this Court in Dagdu v. State of Maharashtra, Tarlok Singh v. State of Punjab and Ramdeo Chauhan v. State of Assam held that while the court may adjourn for a separate hearing, same‑day sentencing does not violate the provisions of Section 235(2) of the Code of Criminal Procedure and does not vitiate the sentence., In Suo Motu W.P. (Criminal) No. 1 of 2022 titled In re: Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered while Imposing Death Sentences, the Supreme Court of India noted a difference in approach to the interpretation of Section 235(2) of the Code of Criminal Procedure and referred the question for consideration by a larger bench. The Court observed that all decisions share a common ground: a meaningful, real and effective hearing must be afforded to the accused, with the opportunity to adduce material relevant for the question of sentencing., In the present case, the judgment of the trial court dealing with sentencing indicates that a meaningful, real and effective hearing was not afforded to the petitioner. The trial court did not conduct any separate hearing on sentencing and did not take into account any mitigating circumstances before awarding the death penalty. The trial court merely noted that kidnapping of children and elders for ransom has become common, and that unless kidnappers are punished with the extreme penalty, future kidnappings would increase, posing a danger to society. It further observed the emotional impact of the mother’s crying and the onlookers’ weeping, and concluded that such offenders must be punished with the extreme penalty in the interests of justice., The high court took into account the gruesome and merciless nature of the act and reiterated the precedent that the death penalty is to be awarded only in the rarest of rare cases. However, it did not specifically examine any mitigating circumstances pertaining to the petitioner and held that the act was inhuman, merciless, and shocking to society, and that showing mercy would be a misplacement of mercy and a mockery of the criminal justice system. Accordingly, the death penalty imposed by the trial judge was affirmed., The Supreme Court examined the aggravating circumstances of the crime in detail. Regarding mitigating circumstances, it noted that counsel for the accused appellant could not point to even a single mitigating circumstance. Consequently, the Court affirmed the death penalty imposed by the high court, citing the decision in Vikram Singh & Others v. State of Punjab (2010) 3 SCC 56, where similar circumstances led to upholding the death penalty., The above sequence indicates that no mitigating circumstances of the petitioner were taken into account at any stage of the trial or appellate process, even though the petitioner was sentenced to capital punishment., The aggravating circumstances noted by this Court in appeal include: (vii) The choice of kidnapping the particular child for ransom was well‑planned and consciously motivated; the parents had four children, and kidnapping the only male child was intended to induce maximum fear; purposefully killing the sole male child has grave repercussions for the parents, causing extreme misery. The Court observed that the sex of the child cannot in itself be considered an aggravating circumstance; the murder of a young child is unquestionably grievous, and the young age of the victim and the trauma to the entire family constitute an aggravating circumstance. Courts should not further the notion that only a male child furthers family lineage, as such remarks perpetuate patriarchal judgments., In Rajendra Pralhadrao Wasnik v. State of Maharashtra, a three‑judge bench of the Supreme Court took note of cases that underline the importance of considering the probability of reform and rehabilitation of the convicted accused before sentencing him to death. The Court observed that Bachan Singh requires consideration of the probability, not merely the possibility or impossibility, of reform and rehabilitation. The law mandates that the probability of reform must be seriously and earnestly considered before awarding the death sentence, as part of the special reasons requirement of Section 354(3) of the Code of Criminal Procedure., The Court explained that to satisfy this mandate, the prosecution must prove, through evidence, that the probability is that the convict cannot be reformed or rehabilitated, by presenting material such as conduct in jail, conduct outside jail, medical evidence, family contacts, etc. An inquiry of this nature may prolong the period between conviction and sentencing, but there is no hurry as the convict will be in custody for a long time., The consideration of reformation, rehabilitation and reintegration of the convict cannot be overemphasised. Until Bachan Singh, emphasis was primarily on the nature of the crime. Bachan Singh placed the sentencing process into perspective and introduced the necessity of considering reformation or rehabilitation. Despite the Constitution Bench view, some judgments have tended to give primacy to the crime over the criminal. Both the crime and the criminal are equally important in sentencing., The law laid down in Bachan Singh requires meeting the 'rarest of rare' standard for award of the death penalty, which demands that the courts conclude the convict is not fit for any reformatory or rehabilitation scheme. As discussed in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, the rarest of rare dictum distinguishes death punishment from life imprisonment, and life imprisonment is futile only when reformation is unachievable. The court must provide clear evidence why the convict is not fit for any reformatory scheme., A similar point was underlined in Anil v. State of Maharashtra, where the Court noted that the probability that the accused would not commit further violent acts, constituting a continuing threat to society, is a relevant circumstance that must be given great weight in determining the sentence., No such inquiry was conducted to consider the factors mentioned above in the case of the petitioner. Neither the trial court nor the appellate courts examined any factors to conclusively state that the petitioner cannot be reformed or rehabilitated. The courts reiterated the gruesome nature of the crime to award the death penalty, and the counsel for the petitioner could not point to mitigating circumstances., The state must place all material and circumstances on record bearing on the probability of reform. Many such materials are within the knowledge of the state, which has had custody of the accused before and after conviction. The court cannot be an indifferent by‑stander; it may utilize its powers to ensure that such material is made available to form a just sentencing decision., In Mofil Khan, a three‑judge bench of the Supreme Court dealt with a review petition reopened in view of the decision in Mohd. Arif v. Registrar, Supreme Court of India. While commuting the death sentence to life imprisonment, the Court reiterated the importance of looking at the possibility of reformation and rehabilitation. It held that even if the accused remains silent, the court is duty‑bound to elicit relevant factors and consider the possibility of reformation as a mitigating circumstance before imposing death., The duty of the court to inquire into mitigating circumstances and to foreclose the possibility of reformation and rehabilitation before imposing the death penalty has been highlighted in multiple judgments of the Supreme Court of India. In the present case, no such enquiry was conducted, and the grievous nature of the crime was the only factor considered while awarding the death penalty.
id_402	3	During the course of the hearing of the review petition, Supreme Court of India passed an order directing the counsel for the State to obtain instructions from jail authorities on the following aspects: the conduct of the petitioner in jail; information on the petitioner's involvement in any other case; details of the petitioner acquiring education in jail; details of the petitioner's medical records; and any other relevant information., Through an affidavit dated 26 September 2021, the Sub‑Inspector of Police Kammapuram at Cuddalore District, Tamil Nadu informed Supreme Court of India that the conduct of the petitioner has been satisfactory and he has not been involved in any other case. Furthermore, he is suffering from systemic hypertension and is availing medication from the prison hospital. The petitioner has also acquired a diploma in food catering during his time in the prison., Separately, Supreme Court of India received a document dated 8 November 2018 from the Superintendent of Prisons, Central Prison, Cuddalore‑4, in response to the letter from the Assistant Registrar, Supreme Court of India, communicating the order seeking instructions from jail authorities. Notably, this document states that the petitioner tried to escape from prison on 6 November 2013. It is concerning that the respondent, in the affidavit dated 26 September 2021, has failed to include this information., The non‑disclosure of material facts amounts to misleading Supreme Court of India and to an attempt at interfering with the administration of justice. In the Suo Motu Contempt Petition (Civil) Number 3 of 2021 titled In Re: Perry Kansagra, Supreme Court of India discussed the line of precedent dealing with tendering of affidavits and undertakings containing false statements or suppressing/concealing material facts amounting to contempt of court: It is thus well settled that a person who makes a false statement before the Court and makes an attempt to deceive the Court, interferes with the administration of justice and is guilty of contempt of Court. The extracted portion above clearly shows that in such circumstances, Supreme Court of India not only has the inherent power but would be failing in its duty if the alleged contemnor is not dealt with in contempt jurisdiction for abusing the process of the Court. Accordingly, we deem it appropriate to initiate suo moto contempt proceedings against the respondent for withholding material information from Supreme Court of India., As per the written submissions of the petitioner, he was about 24 years old when the judgment of the Trial Court was rendered on 30 July 2010. He has been in prison since 2009, a period of 13 years. He had no prior antecedents and the jail authorities have stated that he has not been involved in any other case. However, the jail authorities have brought to the notice of Supreme Court of India the attempt of the petitioner to escape from prison., In the review petition, it has also been submitted that the petitioner could not communicate mitigating circumstances bearing on his sentencing decision to the lawyer and his relatives, who being poor and uneducated, could not properly contest the case for him. The fact remains that no mitigating circumstances were placed before any of the appellate courts., On the basis of these details, it cannot be said that there is no possibility of reformation even though the petitioner has committed a ghastly crime. We must consider several mitigating factors: the petitioner has no prior antecedents, was 23 years old when he committed the crime and has been in prison since 2009 where his conduct has been satisfactory, except for the attempt to escape prison in 2013. The petitioner is suffering from systemic hypertension and has attempted to acquire some basic education in the form of a diploma in food catering. The acquisition of a vocation in jail has an important bearing on his ability to lead a gainful life., Considering the above factors, we are of the view that even though the crime committed by the petitioner is unquestionably grave and unpardonable, it is not appropriate to affirm the death sentence that was awarded to him. As we have discussed, the rarest of rare doctrine requires that the death sentence not be imposed only by taking into account the grave nature of the crime but only if there is no possibility of reformation in a criminal., However, we are also aware that a sentence of life imprisonment is subject to remission. In our opinion, this would not be adequate in view of the gruesome crime committed by the petitioner., Supreme Court of India has been faced with similar situations earlier where it has noticed that the sentence of life imprisonment with remission may be inadequate in certain cases. For instance, in Swamy Shraddananda (2) @ Murali Manohar Mishra v State of Karnataka, the Court noted that: The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to Supreme Court of India carrying a death sentence awarded by the trial court and confirmed by the High Court, Supreme Court of India may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all. (emphasis supplied), Accordingly, it is open to Supreme Court of India to prescribe the length of imprisonment, especially in cases where the capital punishment is replaced by life imprisonment. Considering the facts of the instant case, we are of the considered view that the petitioner must undergo life imprisonment for not less than twenty years without remission of sentence., For the reasons discussed above, we see no reason to doubt the guilt of the petitioner in kidnapping and murdering the victim. The exercise of the jurisdiction in review to interfere with the conviction is not warranted. However, we do take note of the arguments regarding the sentencing hearing not having been conducted separately in the Trial Court and mitigating circumstances having not been considered in the appellate courts before awarding the capital punishment to the petitioner. While weighing this argument, the gruesome nature of the murder of a young child of merely seven years of age has also weighed upon us and we do not find that a sentence of life imprisonment, which normally works out to a term of 14 years, would be proportionate in the circumstances., Accordingly, we commute the death sentence imposed upon the petitioner to life imprisonment for not less than twenty years without reprieve or remission., Separately, a notice is required to be issued to the Inspector of Police, Kammapuram, Police Station, Cuddalore District, State of Tamil Nadu, to offer an explanation as to why action should not be taken for the filing of the affidavit dated 26 September 2021. In this case, prima facie, material information regarding the conduct of the petitioner in the prison was concealed from Supreme Court of India. Accordingly, the Registry is directed to register the matter as a suo moto proceeding for contempt of court.
id_403	0	Case: WRIT - C No. 12655 of 2021. Petitioner: Shrimati Yati alias Kahkasha and another. Respondent: State of Uttar Pradesh and three others. Counsel for petitioner: Abhijat Kumar Tiwari. Counsel for respondents: Chief Standing Counsel., The first petitioner is a young woman whose date of birth according to her High School Certificate is 22 February 2002. She is therefore nineteen years old and a major. She has married the second petitioner, also a major, according to her free will. The first petitioner is Muslim by birth but has a great faith in the Hindu religion. She has adopted the Hindu religion and a Hindu name Yati in place of her native name Kahkasha., She moved the requisite application to the District Magistrate, Meerut on 15 April 2021 and got the necessary notices published in a newspaper regarding the change of her name and religion. A copy of this publication and the application made to the District Magistrate, Meerut is annexed as Annexure No. 3 to the writ petition. The first petitioner and the second petitioner married according to Hindu rites on 16 April 2021 at the Arya Samaj Mandir, Maliyana, Meerut and applied for registration of their marriage before the Registrar of Marriages, Meerut on the same date. However, their marriage has not been registered till date., The fourth respondent, who is the father of Yati alias Kahkasha, petitioner No. 1, is greatly annoyed with the marriage and has threatened the petitioners with death. The petitioners have moved the local police requesting protection for their lives. The marriage between the parties has met with disapproval of the fourth respondent on account of the difference in their religion and the petitioners are required to be protected. Serious threats to the petitioners' life have been asserted from the fourth respondent and other family members of the first petitioner, including members of the first petitioner's native community., A prima facie case is made out. Admit. Issue notice. Notice is made returnable on 23 June 2021. Looking to the facts and circumstances, let notice be served upon respondent No. 4 through the Chief Judicial Magistrate, Meerut and a report regarding service shall be placed on record by the date fixed. Learned Chief Standing Counsel appearing for respondents No. 1, 2 and 3 is granted four weeks time to file a counter affidavit. List for orders on 23 June 2021 along with a report regarding service and status of pleadings., Order on Civil Miscellaneous Stay Application No. 1 of 2021: Issue notice. Until further orders of the High Court of Judicature at Allahabad, the Senior Superintendent of Police, Meerut is ordered to extend and provide necessary protection to the life and limb of the petitioners and ensure that no harm comes to them at the hands of respondent No. 4, or any member of the first petitioner's family or her native community., It is further provided that the Senior Superintendent of Police, Meerut shall also ensure that the local police do not interfere in the peaceful married life of the petitioners acting at the instance of the fourth respondent, though it shall be their duty to see that no physical harm comes to the petitioners. Respondent No. 4 is ordered not to enter the petitioners' house, either himself or through his friends, agents, associates, or approach the petitioners through any electronic means of communication, or to cause the petitioners any bodily harm or injury in any manner whatsoever., Let this order be communicated to the Senior Superintendent of Police, Meerut, the Station House Officer, Police Station Inchauli, Meerut and respondent No. 4, Jahid Ahmad son of Abdul Bari, resident of Ward No. 12, Lawar Khas, Police Station Inchauli, District Meerut through the Chief Judicial Magistrate, Meerut by the Joint Registrar (compliance) today.
id_404	0	Board of Control for Cricket in India, a society registered under the Tamil Nadu Societies Registration Act 1975 and having its head office at Cricket Centre, Wankhede Stadium, Mumbai 400020, is the petitioner. Deccan Chronicle Holdings Ltd, a company incorporated under the Companies Act 1956 and having its registered office at 36, Sarojini Devi Road, Secunderabad, Andhra Pradesh, is the respondent., Appearing for the Board of Control for Cricket in India were Mr Tushar Mehta, Solicitor General, Samrat Sen, Kanu Agrawal, Indranil Deshmukh, Adarsh Saxena, Ms R Shah and Kartik Prasad, Advocates in behalf of Cyril Amarchand Mangaldas. Appearing for Deccan Chronicle Holdings Ltd were Mr Haresh Jagtiani, Senior Advocate, Mr Navroz Seervai, Senior Advocate, Mr Sharan Jagtiani, Senior Advocate, Yashpal Jain, Suprabh Jain, Ankit Pandey, Ms Rishika Harish and Ms Bhumika Chulani, Advocates in behalf of Yashpal Jain., The Board of Control for Cricket in India (BCCI) is the game's governing body in India. It is vastly influential across the cricketing world and is said to be the wealthiest such board globally. In this petition under Section 34 of the Arbitration and Conciliation Act, 1996, BCCI takes exception to a 17 July 2020 award by a learned sole arbitrator. BCCI was the respondent in arbitration. The claimant was Deccan Chronicle Holdings Ltd (DCHL), the publisher of the Deccan Chronicle, an English daily newspaper with eight editions widely circulated across South India. DCHL also publishes the Asian Age, an English newspaper with editions in major Indian metros and London, and the Financial Chronicle, a financial daily. DCHL also operated a cricketing franchise in the Indian Premier League and owned the Deccan Chargers team., By the impugned award, the learned sole arbitrator directed (i) Rs 4,814,17,00,000 (Rupees Four Thousand Eight Hundred and Fourteen Crores and Seventeen Lakhs); (ii) interest on this amount at ten percent per annum from the date of the arbitration proceedings; and (iii) Rs 50,00,000 (Rupees Fifty Lakhs) in costs., The Indian Premier League, conceived in 2007, arguably changed the face of cricket in India forever. It is a cricket league in the Twenty‑T20 format with eight teams contesting. Team players are drawn from across the cricketing world, not just India. It is usually held between March and May of each year and is reported to be the most‑attended cricket league ever. So far, there have been thirteen seasons; the fourteenth was interrupted by the recent lockdown. The usual format is a round‑robin home‑and‑away league phase followed by playoffs, two qualifying matches and an eliminator match. Participating teams acquire players through an annual player auction, defined trading windows, and signing replacements for unavailable players. At the auction, players set a base price and are bought by the highest‑bidding franchise; unsold players may be signed as replacements. Trading occurs only with the player's consent and payment of any differential. Each squad must have between eighteen and twenty‑five players with a maximum of eight overseas players and only four in the playing eleven. There is a cap on the salary of the entire squad. Under‑19 players are eligible only if they have played first‑class cricket., There are eight teams in play today, owned by different franchises. Over time, five others fell by the wayside, including Deccan Chargers, one of the original eight teams, which debuted in 2008 and was dissolved in 2012, as well as Kochi Tuskers Kerala, Pune Warriors India, Rising Pune Supergiant and Gujarat Lions, all of which collapsed between 2011 and 2018., BCCI had agreements with every franchise. Deccan Chronicle Holdings Ltd's franchise agreement is dated 10 April 2008. The reciprocal rights and obligations in this contract are the matters in dispute., Appearing for BCCI, Mr Mehta, the learned Solicitor‑General, assailed the award on several distinct grounds: some findings and conclusions in the award fit the legal definition of perversity as part of patent illegality; some conclusions are entirely bereft of reasons, another dimension of patent illegality; the award takes into account wholly irrelevant material, including material not on record; the award travels well beyond the contract and attempts to rewrite provisions of the contract; the award purports to decide ex aequo et bono or as an amiable compositeur, which Section 28(2) of the Arbitration Act prohibits; the award impermissibly imports public law principles, especially considerations of Article 14, which are outside the remit of a private law arbitral tribunal; the award grants damages without any reasons; and the award grants damages in lieu of specific performance despite DCHL not having prayed for such relief, thereby rewarding DCHL for its inability to perform, contrary to the fundamental policy of Indian law regarding damages., Mr Jagtiani, Mr Seervai and Mr Sharan Jagtiani, all learned senior counsel, assisted by Ms Rishika Harish, opposed Mr Mehta's formulation and defended the award. They submitted that there is no room for interference, especially given the state of the law. They argued that the learned sole arbitrator permissibly exercised discretion, that the findings were entirely plausible, and that BCCI had acted in a high‑handed, capricious and arbitrary manner intended to oust the Deccan Chargers team and drive DCHL to financial ruin. They maintained that the termination of the franchise agreement was wrongful and premature, that DCHL had substantially complied with performance demands, and that the policy of arbitration law is to minimise curial interference. The Supreme Court of India is not a court of appeal; its remit is exceedingly narrow, and unless a facial vulnerability is shown, no Section 34 court should interfere. They contended that the award is fair, balanced, fully considers rival submissions and material on record, and provides sufficient reasons for its conclusions., I am mindful of the general principles governing arbitration law: minimal curial interference in arbitral proceedings and only to the extent absolutely necessary; and the limited grounds of challenge to arbitral awards. The documentary material before me runs to sixty‑six digital volumes, including material presented to the learned sole arbitrator, written submissions, notes and compilations of authorities. The petition was amended on my insistence to remove certain unacceptable phrases. The hearings were entirely online, conducted on several days between 5 and 14 January 2021., Having considered the rival submissions, the documentary material and the decisions cited, I am unable to accept DCHL's defence of the impugned award. Within the bounds of what Section 34 permits, I conclude that the award cannot be sustained. I find Mr Mehta's submissions entirely correct. Accordingly, I set aside the award, except to one limited extent, and order costs, as this petition is a matter in the Commercial Division., Section 34, as amended by Act 3 of 2016 with effect from 23 October 2015, provides that an application for setting aside an arbitral award may be made only in accordance with sub‑sections (2) and (3). An arbitral award may be set aside by the court only if the party making the application furnishes proof that (i) a party was under some incapacity; (ii) the arbitration agreement is not valid under the applicable law; (iii) the party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; (iv) the award deals with a dispute not contemplated by the submission to arbitration or contains decisions on matters beyond the scope of the submission; (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement conflicts with a provision of this Part from which the parties cannot derogate; or the court finds that (i) the subject‑matter of the dispute is not capable of settlement by arbitration under the law in force; or (ii) the arbitral award is in conflict with the public policy of India. An award is in conflict with public policy only if it was induced by fraud or corruption, violates Section 75 or Section 81, contravenes the fundamental policy of Indian law, or is in conflict with the most basic notions of morality or justice. An award arising out of arbitrations other than international commercial arbitrations may also be set aside if the court finds that the award is vitiated by patent illegality appearing on the face of the award, provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re‑appreciation of evidence. An application for setting aside may not be made after three months have elapsed from the date the party received the award, unless sufficient cause is shown, in which case the Supreme Court of India may entertain the application within a further period of thirty days but not thereafter. On receipt of an application, the court may, where appropriate and if requested by a party, adjourn the proceedings to give the arbitral tribunal an opportunity to resume the arbitral proceedings or take such other action to eliminate the grounds for setting aside the award. An application under this section shall be filed only after issuing a prior notice to the other party and shall be accompanied by an affidavit endorsing compliance with the requirement. The application shall be disposed of expeditiously, and in any event within one year from the date the notice is served., Mr Mehta relies on the summary in Union of India v Recon, which holds that a lack of a judicial approach is not a ground of challenge per se; a violation of the principles of natural justice is a ground under Section 18 read with Section 34(2)(a)(iii); a lack of reasons constitutes patent illegality; an interpretation of the contract that is not even possible or is utterly unreasonable amounts to patent illegality; and perversity, as understood in Associate Builders, now falls under patent illegality. Perversity includes a finding based on no evidence, an award that ignores vital evidence, or a finding based on documents taken behind the backs of the parties. The Ssangyong Engineering decision affirmed that merit‑based review of an arbitral decision is impermissible and that a Section 34 court may not interfere merely because another view was possible or preferable. The court emphasized that contractual interpretation is primarily for the arbitrator, and that an arbitrator who wanders outside the contract commits a jurisdictional error, which falls within the ground of patent illegality under Section 34(2‑A)., The 52‑page franchise agreement dated 10 April 2008 between BCCI and DCHL contains several sections and schedules. Clause 1 to 22 constitute the principal document, with Schedule 2 containing a pro forma player contract and Schedule 3 setting out franchisee obligations. Central Rights are defined as league‑related rights, other than under a central licensing arrangement, to be exploited by BCCI‑IPL, including media rights, umpire sponsorship rights and games rights. Central Rights Income is the amount of income actually received by BCCI‑IPL from the exploitation of the Central Rights, excluding service tax, after deducting the relevant league expenses. Franchisee Income is the aggregate of all income accruing to the franchisee in relation to the operation of the franchise, including any franchise partner agreement or gate receipts, and any payment of Central Rights income made by BCCI‑IPL to the franchisee, excluding any franchisee licensing income. League Expenses include, for each year of the term, television and production costs relating to the grant of media rights or broadcasts of matches, out‑of‑pocket expenses incurred in servicing, implementing and delivering Central Rights, and fees paid to the International Cricket Council for umpires and other league match officials. Franchisee Group means the ultimate parent company or entity of the franchisee and any other company, undertaking or entity controlled by the parent. Insolvency Event has the meaning set out in clause 22.3. League means the Twenty‑20 league established by BCCI‑IPL, anticipated to take place in April/May of each year. Players are each of the players employed or otherwise contracted by the franchisee and who comprise the squad. Player Contract means the form of the contract in Schedule 2, as amended periodically., Clause 2.1 sets out the rights granted to the franchisee, including the right to carry on the franchise, to be the only team in the league with a home stadium in the franchisee's defined territory for at least the first three seasons, and to stage its home league matches at a stadium provided at cost by BCCI‑IPL. Clause 6 requires the franchisee to comply fully with the obligations set out in Schedule 3, including the duty not to breach obligations relating to player salaries as set out in the operational rules, such as a minimum annual sum of US$20,000 per player in 2008 and a minimum aggregate sum of US$3.3 million for the squad. Clause 9(a) of Schedule 3 provides that the franchisee shall not, without prior written consent of BCCI‑IPL, charge, pledge, grant any security over or otherwise encumber the franchise or any of the rights granted. Clause 8 deals with the division of Central Rights Income between BCCI‑IPL and the various franchisees, defining percentage shares for three period blocks: 2008‑2012, 2013‑2017 and 2018 onwards, with the franchisees' share increasing over time. Within thirty days of each quarter ending, BCCI‑IPL is to give each franchisee a detailed report of the Central Rights Income received.
id_404	1	Board of Control for Cricket in India – Indian Premier League was to pay out each franchisee's share of the Central Rights Income within a stipulated period. Board of Control for Cricket in India – Indian Premier League also had to maintain audited accounts and allow inspection not more than twice a year. If any such review showed that Board of Control for Cricket in India – Indian Premier League had failed to pay any amount due to the franchisee, then Board of Control for Cricket in India – Indian Premier League was to pay the unpaid amount within 30 days of such inspection., Board of Control for Cricket in India versus Deccan Chronicle Holding Ltd, 16 June 2021. This takes us to the all‑important Clause 11, Termination, set out in full below., Either party may terminate this Agreement with immediate effect by notice in writing if the other party has failed to remedy any remediable material breach of this Agreement within a period of 30 days of the receipt of a notice in writing requiring it to do so, which notice shall expressly refer to this Clause and to the fact that termination of this Agreement may be a consequence of any failure to remedy the breach specified in it. For the avoidance of doubt a breach by the Franchisee of its payment obligations under this Agreement or under Clause 22 shall be deemed to be a material breach of this Agreement for the purposes of this Clause. Either party may terminate this Agreement with immediate effect by written notice if the other party commits or permits an irremediable breach of this Agreement or if it is the subject of an Insolvency Event., Board of Control for Cricket in India – Indian Premier League may terminate this Agreement with immediate effect by written notice if: there is a Change of Control of Franchisee whether direct or indirect and/or a Listing which in each case does not occur strictly in accordance with Clause 10; the Franchisee transfers any material part of its business or assets to any other person other than in accordance with Clause 10; the Franchisee, any Franchisee Group Company and/or any Owner acts in any way which has a material adverse effect upon the reputation or standing of the League, Board of Control for Cricket in India – Indian Premier League, Board of Control for Cricket in India, the Franchisee, the Team or any other team in the League and/or the game of cricket., The termination of this Agreement for any reason will not operate to terminate any provision which is expressly provided to come into or continue in force after such termination and will be without prejudice both to the accrued rights and liabilities and other remedies of the parties to this Agreement and to any rights and obligations in respect of the period after such termination., On the termination of this Agreement for any reason Board of Control for Cricket in India – Indian Premier League may set off against and deduct from any money which would otherwise be payable or owing by Board of Control for Cricket in India – Indian Premier League to the Franchisee under this Agreement all moneys, debts or liabilities due or owing by the Franchisee to Board of Control for Cricket in India – Indian Premier League unless and until the Franchisee has satisfied the same and Board of Control for Cricket in India – Indian Premier League shall be entitled to retain any moneys or amounts deducted for its own absolute benefit., An Insolvency Event shall occur in respect of a party to this Agreement if: any bona fide petition is presented or any demand under the Act is served on that party or an order is made or resolution passed for the winding‑up of that party or a notice is issued convening a meeting for the purpose of passing any such resolution; any bona fide petition is presented for an administration order or any notice of the appointment of or of an intention to appoint an administrator of that party is filed in court or an administration order or interim order is made in relation to that party; any administrative or other receiver or manager is appointed of that party or of all or any material part of its assets and/or undertaking within the meaning of the Act or any other bona fide step is taken to enforce any encumbrances over all or any part of the assets and/or undertaking of that party; any step is taken by that party with a view to proposing any kind of composition, compromise or arrangement involving that party and any of its creditors, including but not limited to a voluntary arrangement under the Act, or anything similar occurs under any analogous legislation anywhere in the world., For the purposes of this Agreement Control means in relation to a person the direct or indirect power of another person, whether such other person is the direct or indirect parent company of the first mentioned person or otherwise, to secure that the first mentioned person's affairs are conducted in accordance with the wishes of such other person: by means of the holding of any shares or any equivalent securities or the possession of any voting power; by virtue of any powers conferred on any person by the Articles of Association or any other constitutional documents of any company or other entity of any kind; by virtue of any contractual arrangement. Controlled and Controller shall be construed accordingly and a Change of Control shall occur if a person who Controls another person ceases to do so; or a different person acquires Control of such other person whether before or after or as a consequence of any Listing; or if any person acquires Control of another person in circumstances where no person previously Controlled such other person. For the purposes of this Clause all of the members of any consortium, partnership or joint venture which has any interest direct or indirect in the Franchisee shall be deemed to be one person., On the termination of this Agreement for any reason and in order to protect Board of Control for Cricket in India – Indian Premier League’s intellectual property rights and reputation the Franchisee shall and shall procure that each Franchisee Group Company and Owner shall: immediately cease its operation of the Franchise; not at any time thereafter disclose or use confidential information relating to Board of Control for Cricket in India – Indian Premier League, the League, Board of Control for Cricket in India or any other Franchisee acquired by the Franchisee during or as a result of this Agreement; make any use of the League Marks and/or the Franchisee Marks or any trade marks, trade names and/or logos which are similar to any of the foregoing; purport to be a franchisee of or otherwise associated with Board of Control for Cricket in India – Indian Premier League, the Board of Control for Cricket in India and/or the League; sell, licence or otherwise permit the sale of any products bearing the League Marks and/or the Franchisee Marks or any trade marks, trade names or logos which are similar to any of the foregoing; and immediately pay all sums and amounts due to Board of Control for Cricket in India – Indian Premier League under the terms of this Agreement or otherwise., The Franchise may by written notice terminate this Agreement with immediate effect if the annual revenue payable under the agreement(s) relating to the grant by Board of Control for Cricket in India – Indian Premier League of the Media Rights is, in aggregate, less than US$59 million in any year commencing with effect from the sixth year of the Term provided that: no such termination right shall be exercised during a Season; if such termination right is not exercised by the Franchisee within 30 days of the Franchisee becoming aware of the existence of circumstances under which the right may be exercisable then, with respect to the relevant year but not any future year, such termination right shall cease to be of any further force or effect; such termination right shall not be exercisable if, in respect of the relevant year, Board of Control for Cricket in India – Indian Premier League agrees to pay to the Franchisee such sum as equals the difference between the amount actually receivable by the Franchisee under Clause 8.1(a) in the relevant year and the amount the Franchisee would have received under said Clause had the above‑mentioned annual revenue from the agreement(s) relating to the grant of the Media Rights been equal to US$59 million in respect of such year; said termination right shall be the Franchisee’s only remedy in respect of the above‑mentioned circumstances to the exclusion of all other rights and remedies; and if the Franchisee chooses to exercise said termination right then it shall have no rights to sell or otherwise transfer any share or other interest of any kind in the Franchise, the Franchisee and/or the Team to any other person and, as a condition of such termination being effective, the Franchisee shall immediately take all such steps and execute all such documents as shall be necessary to transfer to Board of Control for Cricket in India – Indian Premier League (or to such person as it shall nominate) all rights, title and interest of any kind in the Franchise, the Franchisee and/or the Team as Board of Control for Cricket in India – Indian Premier League shall request, including the benefit and burden of all agreements and arrangements relating to the Franchise, the Team and any Players as is requested by Board of Control for Cricket in India – Indian Premier League. The Franchisee shall remain exclusively responsible for all debts relating to the Franchise, the Franchisee and/or the Team which were incurred and/or arose prior to the date of this termination of this Agreement under this Clause., Clause 21 has the provision for dispute resolution. It requires the reference of disputes to a sole arbitrator, and the venue of the arbitration is Mumbai., On 12 June 2008, Board of Control for Cricket in India and Deccan Chronicle Holding Ltd executed an addendum to the Franchise Agreement. It substituted entirely clause 8.2 of the Franchise Agreement. The original clause read: Board of Control for Cricket in India – Indian Premier League shall within 30 days of 31 March, 30 June, 30 September and 31 December in each year supply the Franchisee with a report which includes full details of all Central Rights Income received by Board of Control for Cricket in India – Indian Premier League in the immediately preceding three‑month period leading up to each reporting date. Following the later of 40 days from the delivery of each such report and the date falling 30 days after receipt of an invoice for the relevant amount, Board of Control for Cricket in India – Indian Premier League shall pay to the Franchisee the Franchisee’s share of the Central Rights Income as determined in accordance with Clause 8.1. This was now substituted by: Board of Control for Cricket in India – Indian Premier League shall within 30 days of 30 June, 30 September and 31 December in each year supply the Franchisee with a report which includes full details of all Central Rights Income received by Board of Control for Cricket in India – Indian Premier League in the immediately preceding six‑month period and two subsequent three‑month periods leading up to each reporting date. Five working days from the delivery of each such report, Board of Control for Cricket in India – Indian Premier League shall, as provided below, pay to the Franchisee the Franchisee’s share of the Central Rights Income as determined in accordance with Clause 8.1. The Central Rights Income received by Board of Control for Cricket in India – Indian Premier League in each year in respect of the period 1 January to 31 March shall be treated as an advance in respect of the Central Rights Income referable to such year. Provided that the amount of such advance which has been received by Board of Control for Cricket in India – Indian Premier League is sufficient to enable it to do so and to make equivalent advance payments to other Franchisees, Board of Control for Cricket in India – Indian Premier League shall: within five working days of the signature by both parties of this Agreement pay to the Franchisee the sum of US$3 million; and on or before the later to occur of 31 March and five working days after the date of the first match in each of 2009, 2010, 2011 and 2012 pay to the Franchisee the sum of US$3.5 million each, each of which payments shall be treated as an advance against and shall be deducted from the Franchisee’s share of Central Rights Income under this Agreement in respect of the relevant year or, to the extent not recouped by such deduction, any subsequent year. In respect of each subsequent Season during the Term following 2013 the amount of the above advance shall be notified to the Franchisee in writing, being no less than US$3.5 million., On 1 March 2012, the Operational Rules for the 2012 League were framed. These are part of the Franchise Agreement and are to be read as binding. Section 2(1) said that participation or other involvement in the League was a deemed acceptance by each Person, broadly defined to include persons and entities, subject to those Rules, of an agreement with and an obligation owed to Board of Control for Cricket in India and/or Indian Premier League to be bound by and subject to the Regulations, the laws of cricket, the terms of each relevant Player Contract and the jurisdiction of the Indian Premier League. Section 2(5) contained a provision for set‑off, worded thus: Set‑Off Whenever any sum of money shall be or in the future become receivable from or payable by any Franchisee to Indian Premier League and/or Board of Control for Cricket in India or to any other franchisee or to any Person subject to these Operational Rules including but not limited to fines, costs, awards or decisions made under the Regulations, then the same may be deducted from any sum then due or which at any time thereafter may become due to that Franchisee arising out of the Regulations or any contract between such Franchisee and Indian Premier League and/or Board of Control for Cricket in India including without limitation the relevant Franchise Agreement and Board of Control for Cricket in India – Indian Premier League may pay such sum on to any third party to whom it is owed by such Franchisee including but not limited to any State Association. The exercise by Indian Premier League and/or Board of Control for Cricket in India of its rights hereunder shall be without prejudice to any other rights or remedies available to Indian Premier League and/or Board of Control for Cricket in India., Regulations here was defined as the Operational Rules and IPL Regulations. In the Franchise Agreement, Regulations meant the Operational Rules, the Match Staging Regulations and the League Rules; the latter two being independently defined., With this, I move on to a chronology., In this section, I have attempted to set out the relevant events leading up to the final Award as compactly as possible, but balancing this against the need for some level of detail. Of necessity, I will need to return to a few of the documents again when I assess the rival submissions in the context of the learned Sole Arbitrator’s findings. While doing so I will not be re‑appreciating the evidence led before the learned Sole Arbitrator. This chronology, therefore, provides the factual context., Deccan Chargers was one of the eight competing teams when the Indian Premier League began. The team opened the inaugural 2008 season as favourites and finished last. In the second IPL season of 2009, played in South Africa, Deccan Chargers recovered in a dramatic fashion and won the tournament finals in Johannesburg, defeating Royal Challengers Bangalore by six runs. In 2010, the team lost the semi‑finals and the playoffs for third place. In 2011, it placed seventh in the league standings., This takes us directly to the events of mid‑2012. These unfolded with great rapidity., Deccan Chronicle Holding Ltd had to make 50 % payment to its players by 1 May 2012. It did not meet this obligation and it appears some other franchisees were also in default. On 4 June 2012, Board of Control for Cricket in India’s Sundar Raman emailed all franchisees asking for confirmation that player payments had been made. Raman sent a reminder email to Deccan Chronicle Holding Ltd’s E Venkattram Reddy (Deccan Chargers Chief Operating Officer) on 6 June 2012. Deccan Chronicle Holding Ltd replied on 7 June 2012, saying that all players had been paid 15 % on 1 April 2012 and that 50 % payments would be processed in the next week. Raman emailed back on 7 June 2012, stating that the 50 % payment was due on 1 May 2012 and was already five weeks overdue, constituting non‑compliance with the terms of the players’ contracts., Earlier, in 2007‑2008, Board of Control for Cricket in India partnered with the International Management Group (IMG), an events company, for professional‑quality running and management of the IPL along the lines of a world‑class sporting event. On 26 July 2012, IMG wrote to Deccan Chronicle Holding Ltd on behalf of Board of Control for Cricket in India regarding player fee payments for the IPL 2012 season. IMG said two instalments of the player fee should have been paid by then: 15 % on 1 April and 50 % by 1 May. Despite several assurances, IMG said these payments had not yet been made in full. There had been press comments and Board of Control for Cricket in India had received a communication from Cricket South Africa on the matter., IMG pointed out that under the Franchise Agreement, each player contract and the Operational Rules, Deccan Chronicle Holding Ltd was obligated not to bring the League into disrepute. Board of Control for Cricket in India requested IMG to seek a formal confirmation that all outstanding player payments would be made by 31 July 2012 while reserving all of Board of Control for Cricket in India’s rights in that regard. In default of confirmation or payment in full by that date, Deccan Chronicle Holding Ltd would be in breach of fundamental terms of the Franchise Agreement, with serious consequences. A copy of this letter also went to Deccan Chronicle Holding Ltd by email., On 27 July 2012 and 31 July 2012, Deccan Chronicle Holding Ltd replied by email asking for an extension of time until 10 August 2012 to make these payments as many of its principal sponsors had still not paid., On 31 July 2012, Darren Lehmann, the Deccan Chargers team coach, sent an email to several players complaining about non‑payment. Lehmann asked the team captain to take up the matter. He said that Deccan Chronicle Holding Ltd had promised payment for the sixth time, but that was still not done. The email referenced a news item that the Industrial Finance Corporation of India Ltd (IFCI) had filed a winding‑up petition against Deccan Chronicle Holding Ltd in the Andhra Pradesh High Court in Hyderabad. The value of the Deccan Chronicle Holding Ltd quoted stock had slumped 10 % as a result. IFCI’s petition was a crucial factor in the present arbitration., Between 1 August and 3 August 2012, several players on the Deccan Chargers team complained to Board of Control for Cricket in India about not having been paid and expressed concern about Deccan Chronicle Holding Ltd’s financial stability., On 1 August 2012, Yes Bank Ltd sent a letter to Board of Control for Cricket in India in Mumbai claiming that it had an exclusive first charge on the receivables pertaining to Deccan Chargers, following a hypothecation created in Yes Bank Ltd’s favour by Deccan Chronicle Holding Ltd on 24 November 2011 after the Franchise Agreement. Yes Bank Ltd claimed the hypothecation was security for various loans and credit facilities taken by Deccan Chronicle Holding Ltd. The exclusive first charge covered the entirety of Deccan Chronicle Holding Ltd’s current assets, including all Board of Control for Cricket in India receivables. The total claim was over Rs 173 crore. Yes Bank Ltd said it was the only secured lender to Deccan Chronicle Holding Ltd and had the first right on all cash flows, including Board of Control for Cricket in India receivables, and asked Board of Control for Cricket in India to release all payments due to Deccan Chronicle Holding Ltd by an instrument made out to Deccan Chronicle Holding Ltd’s account with Yes Bank Ltd., Five days later, on 6 August 2012, Board of Control for Cricket in India received a letter from ICICI Bank. The letter said that Deccan Chronicle Holding Ltd had taken financial assistance from ICICI for Rs 4,900 million (Rs 490 crore) and had executed security documents favouring ICICI, which therefore sought Board of Control for Cricket in India’s approval for the creation of a charge, security and interest over the Franchise. The letter was counter‑signed on behalf of Deccan Chronicle Holding Ltd with a corresponding request for Board of Control for Cricket in India approval., The IPL Governing Council met on 9 August 2012. Item 6 on the agenda related to Franchisee matters. The first of these was about another franchise, Royal Challengers Bangalore (RCB). Player payments were overdue. RCB said it was undergoing financial restructuring and the payment of Rs 35 crore to players would be done by 30 September 2012. It also said it would obtain a no‑objection from the players to pay the balance by October 2012 and December 2012. The Governing Council unanimously decided that RCB should get this no‑objection from the players. Board of Control for Cricket in India would not be responsible for any delay or default. RCB should make payment in two weeks., The Governing Council then took up the matter of Deccan Chronicle Holding Ltd. It noted crucial developments after IMG’s letter, similar to the one sent to RCB. It took note of media reports about the financial condition of Deccan Chronicle Holding Ltd and the letters from Yes Bank Ltd and ICICI. Both spoke of an exclusive charge on the assets and receivables. The ICICI representative told the Council that ICICI was a lender to Deccan Chronicle Holding Ltd in the amount of Rs 490 crore and that there was a mortgage or security over Deccan Chronicle Holding Ltd’s assets and property favouring ICICI. She presented the letter seeking Board of Control for Cricket in India’s approval to create the charge but was told this could not be done because Board of Control for Cricket in India also had a letter from Yes Bank Ltd stating an existing exclusive charge. A decision would be taken vis‑vis ICICI after assessing the extent of Deccan Chronicle Holding Ltd’s default. Then N. Srinivasan, the President of Board of Control for Cricket in India at the time, told the Council that T. Venkattram Reddy had requested a meeting. Reddy was called in and asked for permission to hive off the Deccan Chargers entity from Deccan Chronicle Holding Ltd (the word used is de‑merge) and set it up as a separate entity, a wholly‑owned subsidiary of Deccan Chronicle Holding Ltd, which would give comfort to the lenders/bankers. The Council said it would consider the matter., The Governing Council then took up matters relating to two other teams: Rajasthan Royals and Pune Warriors India (Sahara)., As noted, Deccan Chronicle Holding Ltd had sought time until 10 August 2012 to pay its players. It did not obtain any further extension., On 11 August 2012, Board of Control for Cricket in India wrote to Deccan Chronicle Holding Ltd’s Reddy, calling him to a meeting on 14 August 2012 at the Taj Palace, Delhi. He was to bring details of overdue payments, including to international boards, support staff and players of the 2012 squad, and copies of any winding‑up notices and petitions. He was also to explain in writing why the IFCI winding‑up petition would not constitute an Insolvency Event under clause 11.6 of the Franchise Agreement, inviting action under clause 11.2, and to submit a written explanation why the hypothecation by Deccan Chronicle Holding Ltd in favour of ICICI would not infringe clause 9(a) of Schedule 3 of the Franchise Agreement., Deccan Chronicle Holding Ltd’s Reddy replied on 13 August 2012. He submitted documents regarding payments and claimed that the IFCI petition was not a bona fide petition and therefore not an insolvency event within the meaning of the Franchise Agreement. He said IFCI claimed a debt of Rs 25 crore, but Rs 6 crore had been paid to discharge part of that liability. No order had been made by the High Court against Deccan Chronicle Holding Ltd, which was contesting the proceeding and had not even been admitted. Reddy claimed that Deccan Chronicle Holding Ltd was in a position to clear the debt and that the mere filing of the petition was not an insolvency event. He also noted that IFCI had taken proceedings before the Debt Recovery Tribunal in Delhi and the Company Law Board in Chennai, describing the action as an abuse of the process of law, mala fide and a pressure tactic. Regarding the ICICI hypothecation, Reddy claimed it was subject to Board of Control for Cricket in India approval, did not constitute a violation of the Franchise Agreement without that approval, and no charge was created. A copy of the IFCI petition was enclosed with his letter., The minutes of the 14 August 2012 meeting are important for additional aspects. First, there was a reiteration of what had gone before. Reddy was asked to give his explanation and submitted a handwritten statement of expected recoveries against anticipated expenses. Second, a question was raised about a charge said to have been created by Deccan Chronicle Holding Ltd in favour of another bank, Kotak Mahindra Bank Ltd. Reddy denied that any such charge had been created over the franchisee, said there was no charge in favour of ICICI and sought another two weeks to effect the player payments. The Governing Council decided that Board of Control for Cricket in India had to protect the integrity of the league, expressed apprehension and unanimously resolved to put the Deccan Chargers on a notice of a curative period of 30 days to enable Deccan to cure all instances of default., On 15 August 2012, Kotak Mahindra Bank Ltd wrote to Board of Control for Cricket in India referencing a telephone conversation with Srinivasan the day before. Kotak confirmed that a charge had indeed been created by Deccan Chronicle Holding Ltd in favour of Kotak by hypothecation of all the rights, title, interest, benefit, claims and demands whatsoever of Deccan Chronicle Holding Ltd in the Franchise Agreement and on Deccan Chargers Sporting Ventures Ltd. Kotak had registered the charge under the Companies Act; a copy was enclosed.
id_404	2	This brings us to the critical document of 16 August 2012, Board of Control for Cricket in India's notice to Deccan Chronicle Holdings Ltd. Both sides had much to say on this document. It is best reproduced in full., Honorary Secretary's Office 6-334 16 August 2012 To Deccan Chronicle Holdings Ltd, Hyderabad. For the attention: Mr. T. Venkattram Reddy, Chairman. Subject: Franchise Agreement dated 10 April 2008; Letter from IMG on our behalf dated 26 July; Your replies to the IMG letter dated 27 and 31 July 2012; Request from Industrial Credit and Investment Corporation of India and you for consent from Board of Control for Cricket in India to the creation of a charge on the Deccan Chargers Franchise dated 6 August; Your meeting with the Indian Premier League Governing Council on 9 August 2012; Notice from Board of Control for Cricket in India to you dated 11 August; Your response to the notice dated 13 August; Your meeting with the Indian Premier League Governing Council on 14 August 2012., Dear Sirs, We appreciate your early response to your request to attend the emergency meeting of the Indian Premier League Governing Council held on 14 August 2012 in New Delhi. From the explanation given by you in response to our notice dated 11 August 2012, we note that you have confirmed the following dues: US$ 3.5 million for foreign players, US$ 0.41 million for foreign boards, Rs. 90 million for Indian players, Rs. 7 million for Indian State Associations and support staff payments., You have also explained that the charge created in favour of Industrial Credit and Investment Corporation of India was only a proposal subject to Board of Control for Cricket in India's approval, and since approval was not granted on 9 August 2012 or thereafter, there is no infraction of the Franchise Agreement. Regarding the winding‑up petition filed by Industrial Finance Corporation of India in the High Court of Hyderabad, we have noted but not approved your contention that the action was not bona fide. We do not find your explanation satisfactory., Please note that in connection with the winding‑up petition you are held to be in breach of clause 11.2 of the Franchise Agreement, as it constitutes an insolvency event under clause 11.6. Nevertheless, without prejudice to any of our rights and subject to further information, we do not propose to take immediate action on the hypothecation agreements with Industrial Credit and Investment Corporation of India based upon your assurance that there was no intention to create a charge on the franchise and based upon that bank's representation at the last Indian Premier League Governing Council meeting (9 August) that the charge contemplated by said hypothecation agreements cannot be created without Board of Control for Cricket in India's approval., At the Indian Premier League Governing Council meeting held on 14 August 2012, it was explained to you that while Yes Bank Limited officials have confirmed that it has no charge on the Deccan Chargers franchise itself, it appears that on 8 August 2012, Kotak Mahindra Bank registered a charge on the Deccan Chargers franchise (DCSVL) in the office of the Registrar of Companies. We fear that you have attempted to create multiple charges on the same asset. These acts may constitute material breaches of the Franchise Agreement and may adversely affect the image and reputation of the Indian Premier League, which we cannot allow. In light of the apparent conflict between two banking organisations about the existence of a valid charge on the Deccan Chargers franchise and without further information regarding the charge created by Kotak Mahindra Bank, we cannot grant approval to any charge in favour of Industrial Credit and Investment Corporation of India as requested., In the course of our discussions on 9 and 14 August you were explicitly informed that the only interest of Board of Control for Cricket in India is to protect the integrity of the Indian Premier League and not be drawn into a situation where the credibility of the League is questioned due to player payment issues or inability of a franchise to manage its team due to lack of funds. You were also told of our apprehension that your franchise may be dragged into prolonged litigation creating uncertainty. As you are aware, the last date for registration of current players for the IPL 2013 season is 31 October 2012. Certain milestones, including payment of 30 percent of the 2013 franchise fee on or before 2 January 2013, must take place. It was explained that, apart from the charge on all receivables created in favour of Yes Bank, there appear to be several other creditors and the interest of Board of Control for Cricket in India, particularly in relation to outstanding players and foreign boards payments, would not be saved if the current sums representing central rights income are released to you. The retention of these amounts by Board of Control for Cricket in India is a right under the Indian Premier League 2012 Operational Rules., We have decided to give you notice as per the Franchise Agreement of a curative period to enable you to cure all instances of default and regularise your operations. However, we will not be able to continue the franchise beyond the curative period without risking the credibility, integrity and value of the League, and non‑compliance during this curative period will result in cessation of your Franchise Agreement. Accordingly, please treat this letter as: (a) Formal notification pursuant to clause 11.1 of the Franchise Agreement that your failure to pay all sums currently due to your players under their respective IPL Player Contracts (Outstanding Sums) is a breach of your obligation under paragraph 2(e) of Schedule 3 of the Franchise Agreement and such breach is material; (b) A formal demand to remedy the material breach by 15 September 2012, being 30 days from the date of this letter, and to confirm in writing to Board of Control for Cricket in India that you have done so; (c) A formal notification that your failure to pay the Outstanding sums has had a material adverse effect upon the reputation and standing of the Indian Premier League, Board of Control for Cricket in India, your franchise and your team, and that all rights under clause 11.3(c) and paragraph 2(j) of Schedule 3 are hereby expressly reserved; (d) A formal demand to make payments by 15 September 2012 of all sums due to any of your players under any relevant buy‑out agreements and to confirm in writing to Board of Control for Cricket in India that you have done so; (e) A formal demand by 15 September 2012 to cancel the charge created on the Deccan Chargers franchise in favour of Kotak Mahindra Bank in the Registrar of Companies and any other charges, encumbrances or security interests over the Deccan Chargers franchise and to confirm in writing to Board of Control for Cricket in India that you have done so; (f) A formal demand by 15 September 2012 to show acceptable proof that the winding‑up petition filed by M/s IFCI in CP 146 of 2012 in the High Court of Hyderabad stands withdrawn or dismissed; (g) If you fail to comply with the demand in (f), Board of Control for Cricket in India reserves the right to take action under clause 11.2 of the Franchise Agreement. If you fail to remedy the breaches referred to in (a), (e) and (f) on or before 15 September 2012, Board of Control for Cricket in India reserves the right, in addition to its various rights under clauses 11.1, 11.2, 11.3 and paragraph 2(e) and (j) and 9(a) of Schedule 3 of the Franchise Agreement and without prejudice to all other rights and remedies, to terminate the Franchise Agreement with immediate effect by written notice to you. All other rights and remedies are hereby reserved., On 17 August 2012, Infrastructure Development Finance Company Limited wrote to the Indian Premier League Governing Council and Board of Control for Cricket in India, informing them that on 2 July 2012, Deccan Chronicle Holdings Ltd had charged in favour of Infrastructure Development Finance Company Limited all its right, title, interest, benefit and claims under the Franchise Agreement entered into between Board of Control for Cricket in India and Deccan Chronicle Holdings Ltd (as amended and supplemented from time to time for IPL Team Deccan Chargers), as security for repayment of financial assistance granted by Infrastructure Development Finance Company Limited to Deccan Chronicle Holdings Ltd. Infrastructure Development Finance Company Limited said large amounts were due. This charge was stated to be registered. Infrastructure Development Finance Company Limited requested Board of Control for Cricket in India to note the charge and not allow or approve any transfer of the franchisee without Infrastructure Development Finance Company Limited's prior approval. This was the fourth institutional lender to claim a charge or security over the franchise., On 29 August 2012, Deccan Chronicle Holdings Ltd replied to Board of Control for Cricket in India's letter of 16 August 2012. Its existence and execution are not denied. DCHL in arbitration later insisted this letter was procured under duress and coercion. The letter was on DCHL's letterhead, signed by Chairman Reddy, and referred to (1) the request to permit a charge to be created in favour of Industrial Credit and Investment Corporation of India; (2) Board of Control for Cricket in India's letter of 11 August 2012 and the representation made in New Delhi on 14 August 2012; and (3) Board of Control for Cricket in India's letter of 16 August 2012., In the first paragraph, DCHL and Reddy said that the demands in Board of Control for Cricket in India's 16 August 2012 letter were justified and that DCHL was trying its best to meet the deadline. Several offers to purchase the franchise were received but did not reflect even a fraction of its actual value. Hence, DCHL decided that unless Board of Control for Cricket in India took up the Deccan Chargers franchise for sale to genuine buyers, DCHL would not be in a position to meet its liabilities nor enable banks to restructure the loan commitments., Next, DCHL said that in advance of the 30‑day deadline, it had to inform Board of Control for Cricket in India that DCHL did not have the wherewithal to comply with the commitments to the players and such like. This situation was unlikely to change in the next few days. Therefore, DCHL had no choice but to seek Board of Control for Cricket in India's help and support in finding a genuine buyer. That decision had been made by DCHL's Board of Directors, fully conscious that it would be entirely at Board of Control for Cricket in India's discretion to accept or reject any offer. DCHL undertook to cooperate in this process., DCHL confirmed that it knew various creditors had been writing to Board of Control for Cricket in India claiming hypothecations over all receivables. DCHL and Reddy authorised Board of Control for Cricket in India to identify a suitable buyer at a price determined to be the best bid, and DCHL unconditionally undertook to accept such a bid. It also authorised Board of Control for Cricket in India to implement this sale by public tender or private treaty, at its discretion., Finally, DCHL indicated that this sale option would not impede Board of Control for Cricket in India's right to terminate the franchise if no buyer was found. It then sought an early decision so that a formal agreement, if necessary, could be drawn to give Board of Control for Cricket in India the required authority., There was a meeting on 31 August 2012 at the ITC Park Hotel, Chennai. Reddy represented Deccan Chronicle Holdings Ltd. Srinivasan, Sundar Raman and others represented Board of Control for Cricket in India, the Indian Premier League and IMG. Representatives of a large number of financial institutions were present: Industrial Credit and Investment Corporation of India, Infrastructure Development Finance Company, Yes Bank Limited, SREI Infrastructure, Religare, Canara Bank and Axis Bank among them. A handwritten attendance sheet with names, mobile numbers, email IDs, signatures and organisations represented is on record. The minutes appear somewhat informal but have the signatures of the lenders' representatives in acceptance of the contents. Board of Control for Cricket in India participated on a without prejudice basis. Deccan Chronicle Holdings Ltd's letter of 29 August 2012 suggesting a sale of the franchise was read out. No one objected. All the financial institutions supported it and assured Board of Control for Cricket in India of their cooperation in passing clean title to any purchaser of the franchise, should Board of Control for Cricket in India accept the responsibility of finding a buyer. Board of Control for Cricket in India told the lenders they would have to address two issues immediately: (a) the pending winding‑up petition against Deccan Chronicle Holdings Ltd in the High Court of Andhra Pradesh; and (b) charges said to have been created by other banks or creditors. Board of Control for Cricket in India said DCHL's request would be put to its Working Committee and a decision conveyed subject to these points. Those present finally decided that there need not be a reserve price for any sale., On 3 September 2012, Yes Bank Limited wrote to Board of Control for Cricket in India referring to DCHL's sale proposal and protesting at DCHL's suggestion that sale proceeds be credited to the Industrial Credit and Investment Corporation of India account. Yes Bank Limited insisted it was the only bank with a perfected first exclusive charge on the present and future receivables of the Deccan Chargers franchise., The Board of Control for Cricket in India's Working Committee met on 4 September 2012, apparently at the Taj Mansingh, New Delhi. It decided to accept DCHL's proposal for sale, subject to specific terms, conditions and timelines, with the process ending by 5 p.m. on 13 September 2012. Board of Control for Cricket in India's Honorary Secretary, Sanjay Jagdale, set out these details in his letter of 4 September 2012 to DCHL. The sale would be by an advertised tender process. Jagdale asked Reddy to countersign the letter in acceptance of its terms. Reddy did so., On 5 September 2012, Yes Bank Limited wrote to Board of Control for Cricket in India again. It said that Yes Bank Limited would pay all players, support staff and boards for and on behalf of DCHL if Board of Control for Cricket in India confirmed in writing that it would remit the entire outstanding amount to DCHL's account with Yes Bank Limited. The letter referred to the meeting held on 4 September 2012 at the Taj Mansingh in New Delhi. Yes Bank Limited also suggested an escrow mechanism., The very next day, Ratnakar Bank Limited entered the fray. By now there were more than half a dozen banks or financial institutions: Industrial Credit and Investment Corporation of India, Yes Bank Limited, Kotak Mahindra Bank, Infrastructure Development Finance Company, Canara Bank, Axis Bank, SREI Infrastructure and Religare; and one financial institution, Industrial Finance Corporation of India, had initiated recovery proceedings. Ratnakar Bank Limited claimed to be a secured lender to DCHL for Rs 55 crore as a short‑term loan. RBL referred explicitly to the tender process for the sale of the Deccan Chargers franchise and claimed that its prior permission was needed before DCHL could hive off the franchise. RBL demanded that the sale proceeds be deposited in a no‑lien account with a bank that did not have exposure to DCHL and that its own representative or one for IndusInd Bank should be allowed to remain present when bids were opened., On 6 September 2012, Yes Bank Limited's solicitors, M/s Crawford Bayley & Co, sent a notice to Board of Control for Cricket in India and DCHL, reiterating Yes Bank Limited's claim to an exclusive first charge on DCHL's present and future receivables., On 7 September 2012, DCHL issued a public advertisement (under Chairman Reddy's signature) inviting bids for the franchise. This was said to be under the aegis of Board of Control for Cricket in India. DCHL then followed this with an Invitation to Tender, stating that DCHL would relinquish its rights under the Franchise Agreement in favour of a buyer who met Board of Control for Cricket in India's eligibility criteria., On 8 September 2012, Board of Control for Cricket in India replied to Yes Bank Limited's solicitors' notice. Jagdale clarified that Board of Control for Cricket in India had nothing to do with the selection of the bid or the collection or remittance of sale proceeds, these being DCHL's responsibility. No part of the sale proceeds was to go to Board of Control for Cricket in India, which was therefore not concerned whether Yes Bank Limited had a paramount charge on receivables or sought legal recourse. Yes Bank Limited's action, Board of Control for Cricket in India maintained, indicated that termination of the Franchise Agreement was inevitable and a consequent erosion of any value in the franchise., The reply from Yes Bank Limited's solicitors on 10 September 2012 suggested that the sale proceeds be deposited in a no‑lien escrow account with Punjab National Bank (not a lender to DCHL), so that the proceeds could be distributed among other creditors or charge holders in order of priority after that priority was determined., Canara Bank wrote to Board of Control for Cricket in India on 11 September 2012, referring to the Chennai meeting on 31 August 2012. It insisted that the franchise sale proceeds be deposited in DCHL's account with Canara Bank because Canara Bank had a first charge on all present and future assets, receivables etc. of DCHL (and on the Deccan Chargers Sporting Ventures Ltd subsidiary). It opposed the deposit of any proceeds with Industrial Credit and Investment Corporation of India. It noted that DCHL had debts of Rs 4,000 crore to various lenders., IndusInd Bank, through its solicitors, wrote to Board of Control for Cricket in India on 11 September 2012. It claimed to be a secured lender for Rs 100 crore, representing itself, Ratnakar Bank Limited and Karur Vysya Bank. It claimed that no sale was possible without IndusInd Bank's prior approval and demanded that the sale proceeds go into a no‑lien escrow bank account with a nationalised bank that was not a lender to DCHL., On 12 September 2012, Religare Finvest wrote to Board of Control for Cricket in India stating that it had a first and exclusive charge on DCHL's receivables. In parallel, Yes Bank Limited's solicitors claimed they had priority and had a legal opinion to that effect., Also on 12 September 2012, DCHL and Industrial Finance Corporation of India entered into a Compromise Agreement before the Debt Recovery Tribunal‑I, New Delhi. DCHL agreed to pay IFCI a little over Rs 25.55 crore with interest. Rs 12 crore had already been paid. The remainder, about Rs 15.17 crore, was to be paid in four instalments on or before 10 October 2012, 10 November 2012, and 10 December 2012 (Rs 3.5 crore each) and the last instalment of about Rs 5.43 crore before 10 January 2013. Reddy and DCHL's vice‑chairman T. Vinayak Ravi Reddy were to give personal guarantees. Clause (d) provided that IFCI shall keep all proceedings, including criminal cases filed under section 138 of the Negotiable Instruments Act, winding‑up proceedings and matters pending, on hold and shall withdraw the same only after the terms of the settlement are complied with and the entire amount is paid by the defendants. IFCI shall also withdraw matters pending with the Ministry of Company Affairs., Around 13 September 2012, DCHL received a bid of Rs 900 crore from PVP Ventures Ltd. The bidder met Board of Control for Cricket in India's eligibility criteria. DCHL rejected the bid., The very next day, Yes Bank Limited sent a letter dated 13 September 2012 stating that it was willing to extend the entire additional financial support required exclusively to DCHL for managing its IPL franchise. The offer was conditional: given the incremental funding assistance, Yes Bank Limited would need complete cash‑flow ring‑fencing and upfront indemnity against present and future claims or suits from lenders, creditors or others, besides recognising its superiority of charges on the entire receivables of the Deccan Chargers division of DCHL, and for the incremental infusion of funds as well. Yes Bank Limited also asked that Board of Control for Cricket in India be a confirming party to any such agreement. The letter made it plain that Yes Bank Limited's offer was predicated on bids not being from acceptable bidders or the highest received bid being below Rs 750 crore., The second letter from Yes Bank Limited on 13 September 2012 spoke of the evolving situation and suggestions from some of the lead banks, clearly indicating multiple claims by lenders. Yes Bank Limited suggested that sharing of charges up to IPL 5 be determined in court in line with the statutory register of charges with the Registrar of Companies, Hyderabad. It said it would fund the full extent of Deccan Chargers banking needs for IPL‑6, but with counter‑guarantees from some of the other banks. Finally, it proposed that to ensure ring‑fencing of the receivables and cash flows of Deccan Chargers, the team should be hived off and housed in a wholly‑owned subsidiary of DCHL. This would effectively abandon the Franchise Agreement and substitute it with an entirely different contractual relationship involving Yes Bank Limited, Board of Control for Cricket in India and DCHL (or any subsidiary)., On 14 September 2012, Board of Control for Cricket in India received three separate letters on behalf of DCHL. The first, from DCHL's attorneys, stated that Yes Bank Limited had, by its letters of 5 September 2012 and two letters of 12 September 2012, offered to provide funds to clear all dues. DCHL also claimed that Board of Control for Cricket in India had withheld Rs 41 crore from the central pool funds. DCHL said it had taken a finance facility from Yes Bank Limited and that Kotak Mahindra Bank, Religare and Infrastructure Development Finance Company had agreed to have their claimed charges vacated or cancelled; proof would follow. DCHL therefore contended that it had taken immediate steps to substantially cure and remedy any alleged breach of the Franchise Agreement and asked that Board of Control for Cricket in India not take any precipitate action., The second letter, from DCHL's Chairman Reddy, referenced Board of Control for Cricket in India's letter of 16 August 2012 and claimed that the defaults had been cured. The letter said that documents from DCHL's lenders showed how the defaults had been cured and that documents undertaking to finance DCHL in IPL 6 were enclosed. Reddy said that since the defaults had been cured, Board of Control for Cricket in India should not terminate the Franchise Agreement. The enclosed documents from financial institutions were identical and each spoke of Yes Bank Limited's letter of 5 September 2012, by which Yes Bank Limited had agreed to pay the players' fees, though they did not say that the fees had actually been paid. These lenders also claimed that DCHL's defaults had been cured., The third letter, again from DCHL's attorneys, made no reference to the earlier letters of the same date and denied that DCHL had ever committed any breaches, invoked arbitration and called on Board of Control for Cricket in India not to terminate. The attorneys referred to Yes Bank Limited's letter of 13 September 2012 and said DCHL was expecting further funding from Yes Bank Limited and therefore alleged defaults, if any, were expected to be remedied., Board of Control for Cricket in India convened an emergency meeting of the Indian Premier League Governing Council at 9:30 p.m. on 14 September 2012. The Council decided to terminate the Franchise Agreement with immediate effect. Accordingly, Board of Control for Cricket in India issued a termination notice dated 14 September 2012. This termination notice and its timing are central to the arguments before the Supreme Court of India and in arbitration., On 15 September 2012, DCHL filed Arbitration Petition 1089 of 2012 in the Supreme Court of India under Section 9 of the Arbitration and Conciliation Act, 1996. It sought a stay of the termination and an urgent hearing on that same day. The matter was heard for a while and stood over to 17 September 2012. Board of Control for Cricket in India said it was willing to reconsider the termination if DCHL made a representation showing how it had met all the objections in Board of Control for Cricket in India's letter of 16 August 2012., The weekend of 15 and 16 September 2012 was very hectic. Board of Control for Cricket in India's legal team was putting together a hefty affidavit in reply to DCHL's petition, while other events were taking place in parallel.
id_404	3	BCCI received emails from ICICI and Axis Bank on 15 September 2012 requesting BCCI to keep its termination in abeyance. ICICI's email also forwarded a letter from Videocon Industries Ltd asking for 15 days to cobble together a consortium to acquire the Deccan Chargers franchise for Rs.250 crores., BCCI's Working Committee had a meeting scheduled at 5:30 pm on Saturday, 15 September 2012. Just before it began, two Deccan Chronicle Holding Ltd representatives arrived with 45 demand drafts favouring Deccan Chargers players, support staff, the boards and others, under cover of a YBL letter. YBL said it could not make international or foreign exchange wire transfers on weekends due to Reserve Bank of India regulations and restrictions; the demand drafts were a demonstration of YBL's commitments. YBL said it would make the wire transfers on Monday, 17 September 2012 against the drafts being returned., BCCI's Working Committee confirmed the IPL Governing Council's decision to terminate the Franchise Agreement with Deccan Chronicle Holding Ltd with immediate effect. At 5:58 pm on Saturday, 15 September 2012, BCCI received a letter from Deccan Chronicle Holding Ltd stating that IDFC, Kotak, ICICI and Religare Finvest had all released their charges on the Deccan Chargers franchise and that Deccan Chronicle Holding Ltd had filed the relevant charge modification forms with the Registrar of Companies., On Sunday, 16 September 2012, BCCI's Treasurer received a conference call from YBL senior officers, saying that BCCI was not to encash the demand drafts until a clear method was established to pay the amounts due to Deccan Chronicle Holding Ltd from BCCI only into Deccan Chronicle Holding Ltd's account with YBL. If this was not possible, BCCI should not encash or present the demand drafts. BCCI's Treasurer recorded this conversation in an email., At about 10 pm on Sunday, 16 September 2012, BCCI's Treasurer got another call from YBL reiterating that if BCCI could not release Deccan Chronicle Holding Ltd's dues into its YBL account, then BCCI should not release or deposit the drafts. BCCI's Treasurer sent an email on 17 September 2012 recording this. The trailing mail shows that YBL's Senior President had sent an email to BCCI's Treasurer stating that YBL had supplied the demand drafts against an expectation of receiving the common pool funds that BCCI had withheld, and receiving those in Deccan Chronicle Holding Ltd's account., On Monday, 17 September 2012, Deccan Chronicle Holding Ltd's arbitration petition was taken up again. The order of that day records what transpired on 15 September 2012 and the statement BCCI made to the Bombay High Court. BCCI said it stood by the termination and filed a substantial affidavit in reply. Deccan Chronicle Holding Ltd sought time and asked that status quo be maintained until the next day of hearing. The matter was stood over to 24 September 2012 with a status quo ordered as of 17 September 2012., Kathawalla J heard parties on 24 September 2012. On 26 September 2012, in Deccan Chronicle Holding Ltd's first Section 9 petition, the parties agreed on the name of the learned Sole Arbitrator. On 1 October 2012, Kathawalla J handed down a detailed order in Deccan Chronicle Holding Ltd's petition. The Bombay High Court held that Deccan Chronicle Holding Ltd had made out a prima facie case. It made a conditional order of stay: it required Deccan Chronicle Holding Ltd to furnish an unconditional bank guarantee of a nationalised bank in the amount of Rs.100 crores to BCCI before 9 October 2012, to be kept valid for one year. Deccan Chronicle Holding Ltd was to meet all expenses for IPL‑VI. In default, BCCI could invoke the bank guarantee. YBL agreed to make the foreign currency wire transfers by 3 October 2012 (against proof of which BCCI would return the corresponding demand drafts). The remaining demand drafts were to be disbursed by BCCI immediately. Against the bank guarantee and the wire transfers, BCCI was to deposit in court the amounts due to Deccan Chronicle Holding Ltd and which it had withheld. Subject to this, BCCI was not to act on the termination pending arbitration and for a period of seven days after that if the award went in favour of BCCI. The stay would immediately cease to operate if Deccan Chronicle Holding Ltd did not furnish the bank guarantee of Rs.100 crores. The order also did not preclude BCCI from adding another franchise for and after IPL‑VI., On 9 October 2012, Deccan Chronicle Holding Ltd did not furnish the bank guarantee ordered by the court. It sought an extension and also wanted to substitute the issuing bank by replacing a nationalised bank with ICICI. The extension application was permitted on 9 October 2012, allowing Deccan Chronicle Holding Ltd time until 5 pm on 12 October 2012. The application to substitute the issuing bank was left to be decided on merits. On 11 October 2012, BCCI appealed against the 1 October 2012 order., On 12 October 2012, Deccan Chronicle Holding Ltd entered into a memorandum of understanding with Kamla Landmark Real Estate Holdings Pvt Ltd for the sale of the Deccan Chargers franchise, referencing BCCI's letter of 4 September. The same day, Deccan Chronicle Holding Ltd made an oral application before Kathawalla J seeking a further extension of time, which was rejected. Consequently, BCCI's attorneys wrote to Deccan Chronicle Holding Ltd's attorneys stating that there was no stay of BCCI's termination of the Franchise Agreement given Deccan Chronicle Holding Ltd's failure to furnish a bank guarantee., On the same day, Deccan Chronicle Holding Ltd moved the learned Sole Arbitrator under Section 17 of the Arbitration and Conciliation Act, 1996 for a stay of the termination. The application was served on BCCI's lawyers in the evening of 12 October 2012. BCCI sought time to file a reply in opposition, arguing that the Section 17 application effectively sought an ad‑interim mandatory injunction. The learned Sole Arbitrator passed an ad‑interim order of status quo and gave a short time to BCCI to file a reply. BCCI filed an Arbitration Appeal under Section 37. The Bombay High Court stayed the arbitral tribunal's order on 13 October 2012., On 14 October 2012, BCCI issued a tender notice inviting bids for a new IPL franchise. On 16 October 2012, Deccan Chronicle Holding Ltd filed a second Section 9 petition for stay of the termination, joining Kamla Landmark as a respondent. On 18 October 2012, RD Dhanuka J refused ad‑interim relief to Deccan Chronicle Holding Ltd. By a separate order on the same day, Dhanuka J allowed BCCI's Arbitration Appeal against the Section 17 ad‑interim arbitral order of 12 October 2012, holding that the learned Sole Arbitrator had acted without jurisdiction and quashing the ad‑interim order., A Special Leave Petition by Deccan Chronicle Holding Ltd to the Supreme Court against the 18 October 2012 order in BCCI's arbitration appeal failed on 19 October 2012. Between December 2012 and July 2015, the parties completed pleadings (including amendments) before the learned Sole Arbitrator. These included a counter‑claim by BCCI and a reply and a rejoinder to that. The original pleadings were filed earlier., Deccan Chronicle Holding Ltd's prayers were essentially a claim for specific performance of the Franchise Agreement, with declarations that BCCI's termination was invalid and illegal; a money decree of Rs.41 crores representing its entitlement from the Central Rights Income which BCCI was said to have withheld; compensation for losses suffered in the amount of Rs.630 crores; and an alternative claim, should specific performance be rejected, for compensation of Rs.6,046 crores. BCCI's counter‑claim ran to a little over Rs.204 crores with interest on a claimed principal of about Rs.179 crores, including unpaid franchise consideration, periodical interest, amounts paid by BCCI to third parties on Deccan Chronicle Holding Ltd's behalf, less Deccan Chronicle Holding Ltd's share of the Central Rights Income and Central Licensing Income., The learned Sole Arbitrator drew 16 issues on 11 December. In that time, a Section 16 challenge by BCCI failed on 31 January 2014. On 3 March 2015, a later application by BCCI for striking out some part of Deccan Chronicle Holding Ltd's pleadings also failed. Final arguments concluded in 2017. Both parties filed detailed written submissions. There followed a brief hiatus caused by proceedings against Deccan Chronicle Holding Ltd in the National Company Law Tribunal, Hyderabad under the Insolvency and Bankruptcy Code. The consequent moratorium was not lifted until 7 August 2019. The parties presented refresher arguments in November 2019., The learned Sole Arbitrator made and published the impugned Award on 17 July 2020. Issue 16 was: what should be the Final Award? The learned Sole Arbitrator answered: (1) Statement of Claim filed by the Claimant is partly allowed; (2) Counter‑claim raised by the Respondent is also partly allowed; (3) By this Final Award, the Claimant is entitled to receive from the Respondent an amount of Rs.4,814,17,00,000 (Rupees Four Thousand Eight Hundred Fourteen Crore and Seventeen Lakhs only) and costs of Rs.50,00,000 (Rupees Fifty Lakh only), i.e., a total sum of Rs.4,814,67,00,000 (Rupees Four Thousand Eight Hundred Fourteen Crore and Sixty‑Seven Lakhs only); (4) Such payment with interest at the rate of 10 % per annum from the date of arbitration proceedings till realization shall be made by the Respondent to the Claimant on or before 5 [date missing]; (5) The rest of the Claimant's claims are dismissed; (6) The rest of the Respondent's counter‑claims are also dismissed; (7) Arbitration proceedings are finally disposed of., BCCI's counter‑claim was allowed only to the extent of Rs.1.83 crores that it said it had paid to third parties on behalf of Deccan Chronicle Holding Ltd. The amount awarded to Deccan Chronicle Holding Ltd had distinct components: Claim No 1 – Rs.630 crores; Claim No 2 – Rs.36 crores; Claim No 3 – Rs.4,150 crores; Sub‑total Rs.4,816 crores; less Counter‑Claim allowed Rs.1.83 crores, resulting in a net award of Rs.4,814.17 crores., Claim No 3 was for Rs.6,046 crores. There is an admitted typographical error in totalling its seven elements: (a) Loss of profit discounted to 15 years – Rs.3,000 crores; (b) Loss of value of franchise (calculated at contract value of on‑fire sale of Deccan Chargers franchise) – Rs.1,250 crores; (c) Actual expenditure over revenue incurred for running the franchise for last five years – Rs.150 crores; (d) Loss of Deccan Chargers brand, along with damage to business reputation, loss to licensing and merchandising and trademark registration – Rs.650 crores; (e) Payment due from the Respondent – Rs.41 crores; (f) Loss of business opportunity – Rs.50 crores; (g) Legal expenses and advisory fees – Rs.5 crores. The total of these components is Rs.5,146 crores, not Rs.6,046 crores. The learned Sole Arbitrator awarded Rs.4,150 crores for this claim., In written submissions before the court, Deccan Chronicle Holding Ltd conceded that Claims Nos 1 and 2 were wrongly granted; they were subsumed in Claim No 3 and could not have been separately ordered. The Award opens with a very brief factual background. The Franchise Agreement is not separately analysed; some of its provisions are examined later in the Award. The sixteen issues the arbitral tribunal framed and their answers are listed, covering maintainability of the claim petition, legality of termination, entitlement to specific performance, entitlement to various monetary amounts, maintainability and arbitrability of the counter‑claim, and other procedural matters., The learned Sole Arbitrator first considered the preliminary objections (Issues 1, 8, 9 and 10) and then proceeded to merits, beginning with an analysis of the Franchise Agreement of 10 April 2008. Issue 2 examined whether BCCI's termination of the Franchise Agreement on 14 September 2012 was illegal or unlawful. Deccan Chronicle Holding Ltd advanced eleven grounds, including the requirement of a show‑cause notice, premature termination, substantial compliance by Deccan Chronicle Holding Ltd, absence of an insolvency event, unfair discrimination, duress in Reddy's letter of 29 August 2012, mala fide and malicious termination, termination triggered by arbitration invocation, alleged façade of reputation concern, unreliability of BCCI's witness evidence, and disproportionate punishment. The learned Sole Arbitrator held in favour of Deccan Chronicle Holding Ltd on Issue 2, finding that BCCI, though not a State instrumentality, performed public functions and was bound to treat all franchisees alike., Issues 3, 4 and 11 relating to specific performance were taken together. The Sole Arbitrator held that once termination was found invalid, Deccan Chronicle Holding Ltd would be entitled to a decree for specific performance, but the claimant did not press this relief and instead sought compensation. The Arbitrator held that there was sufficient pleading for damages and that it was reasonable to consider those claims. Issues 5, 6 and 7 dealt with individual claims for compensation. Issue 5 (Claim 1) for wrongful termination comprised loss of share of central revenue, loss of local sponsorship income, loss of licensing revenue, loss of gate receipts, hospitality and prize money, loss of Champions League money distribution, and loss of brand value; the tribunal allowed the claim in its entirety. Issue 6 (Claim 2) concerned Central Rights Income of Rs.41 crores, which Deccan Chronicle Holding Ltd was entitled to with interest at 18 % per annum.
id_404	4	Board of Control for Cricket in India denied this claim. But, without prejudice, it said that an amount of a little over Rs.36 crores was due under the Central Rights Income for the 2012 season. This, Board of Control for Cricket in India said, had been adjusted in partial satisfaction of the amounts due from Deccan Chronicle Holding Ltd to Board of Control for Cricket in India under the Franchise Agreement. The learned Sole Arbitrator awarded Deccan Chronicle Holding Ltd Rs.36 crores., Issue No 7 Claim No 3 Loss and Damages Rs.6046 crores: As we have seen, the total is incorrect and should be Rs.5146 crores. There is another error. This total includes a claim for Rs.41 crores, but that is already part of Issue No 6 (against which Rs.36 crores was awarded). There is no noting of either discrepancy in the Award. Considering a valuation report relied on by Deccan Chronicle Holding Ltd and the auction values of Pune Warriors and Kochi Tuskers, and holding that Deccan Chronicle Holding Ltd had lost goodwill, the learned Sole Arbitrator awarded a lump sum of Rs.4150 crores. There is no discussion on the reasons for the individual components bundled in this money claim., As noted above, before Deccan Chronicle Holding Ltd accepted that Claims Nos 1 and 2 (Issues Nos 5 and 6) were wrongly granted and were part of Claim No 3 (Issue No 7)., As to Issue No 12 and the counter‑claim, the learned Sole Arbitrator accepted Board of Control for Cricket in India's case that it had paid Rs.1.83 crores to third parties on behalf of Board of Control for Cricket in India., Issue No 13 need not detain us., As to interest, Issue No 14, the learned Sole Arbitrator awarded 10 % per annum from the date of institution of the arbitral proceedings until realization., Then the learned Sole Arbitrator awarded Rs.50 lakhs in costs to Deccan Chronicle Holding Ltd., The final Issue No 16 has already been set out earlier as the operative part of the Award., In this section, I consider the rival contentions. Rather than set out the submissions of each side serially and then revisit them to render a finding on each, I have endeavoured to marshal the competing submissions under distinct heads. These heads of challenge (and response) broadly follow the analysis I have set out in the previous section. I have provided sub‑headings for easier identification. I have not considered it necessary to take every single one of the findings returned in the Award under different heads., Necessity of a show‑cause notice: Mr Mehta submits that the learned Sole Arbitrator wholly and impermissibly misread the Franchise Agreement's provisions for termination in Clause 11. That provision, he says, does not contemplate a show‑cause notice at all. A show‑cause notice has a precise meaning in law: on the basis of an alleged default, illegality, breach or failure to perform, the party issuing the show‑cause notice calls upon the other party to explain why a particular action ought not to be taken., Clause 11 operated at two levels and made a distinction between two types of breaches. One, breaches that could be cured or remedied. Two, incurable or irremediable breaches. For the first, the provision required not a show‑cause notice properly so called, but a notice calling on the franchise to cure or remedy the default in the contractually stipulated time. For the second, the default was incapable of being cured or remedied. Termination would be immediate after giving notice that the event of default had occurred. There was no question of curing such an irremediable breach., Clause 11 is set out as follows: 11.1 Either party may terminate this Agreement with immediate effect by notice in writing if the other party has failed to remedy any remediable material breach of this Agreement within a period of 30 days of the receipt of a notice in writing requiring it to do so which notice shall expressly refer to this Clause 11.1 and to the fact that termination of this Agreement may be a consequence of any failure to remedy the breach specified in it. For the avoidance of doubt a breach by the Franchisee of its payment obligations under this Agreement or under Clause 22 shall be deemed to be a material breach of this Agreement for the purposes of this Clause. 11.2 Either party may terminate this Agreement with immediate effect by written notice if the other party commits or permits an irremediable breach of this Agreement or if it is the subject of an Insolvency Event. 11.3 Board of Control for Cricket in India‑IPL may terminate this Agreement with immediate effect by written notice if: (a) there is a Change of Control of the Franchisee (whether direct or indirect) and/or a Listing which in each case does not occur strictly in accordance with Clause 10; (b) the Franchisee transfers any material part of its business or assets to any other person other than in accordance with Clause 10; (c) the Franchisee, any Franchisee Group Company and/or any Owner acts in any way which has a material adverse effect upon the reputation or standing of the League, Board of Control for Cricket in India‑IPL, Board of Control for Cricket in India, the Franchisee, the Team (or any other team in the League) and/or the game of cricket. 11.6 An Insolvency Event shall occur in respect of a party to this Agreement if: (a) any bona‑fide petition is presented or any demand under the Act is served on that party or an order is made or resolution passed for the winding‑up of that party or a notice is issued convening a meeting for the purpose of passing any such resolution., Purely as a matter of construction and without regard to any other acts or events, Mr Mehta is correct. Those breaches that could be remedied (non‑payment of players and other fees and dues being one such) fell under Clause 11.1 and required that Board of Control for Cricket in India give Deccan Chronicle Holding Ltd 30 days to cure any such default. This stands to reason. Mr Jagtiani accepts that non‑payment of player fees would fall under Clause 11.1. But other defaults would not. Specifically, an insolvency event under Clause 11.2 read with Clause 11.6 did not require a cure period. It provided for immediate termination after notice. That notice only had to say that an insolvency event had occurred and, therefore, the Franchise Agreement stood terminated; no question of curing such a default could arise., Clause 11.3(c) also allows immediate termination. It allows Board of Control for Cricket in India to effect an immediate termination after notice if the franchisee, its group or its owner act in a way that has a material adverse effect on the reputation or standing of the league, Board of Control for Cricket in India, the team, or the franchisee., Board of Control for Cricket in India charged Deccan Chronicle Holding Ltd with several defaults. Some, by their very nature, were curable. Others were not, and fell in the contract's incurable‑default class., Mr Mehta argues that there was, thus, a clear segregation between remediable and irremediable breaches. The former needed a cure notice. The latter did not. Hence, it was not possible to flatten the contract by saying that all breaches required a cure notice. The contract made a clear distinction between those breaches that could be remedied, and called for a 30‑day cure notice, and those that were irremediable and called for no cure period, but only a notice that the irremediable breach had occurred, triggering an immediate termination. This distinction, Mr Mehta is at pains to clarify, has nothing at all to do with the events that transpired or the nature of the notice Board of Control for Cricket in India gave on 16 September 2012. It has only to do with what the contract mandated, i.e., a matter of contractual interpretation. Consequently, even if Board of Control for Cricket in India gave Deccan Chronicle Holding Ltd 30 days to cure the insolvency event (the IFCI winding‑up petition), this could make no difference to the interpretation of the contract. This was not a case where the conduct of the parties could be used to interpret the contract., The learned Sole Arbitrator was, he submits, in complete error in holding that Clause 11 of the Franchise Agreement enjoined Board of Control for Cricket in India to issue notice before the Agreement is terminated. Such notice must grant a thirty‑day cure period to Deccan Chronicle Holding Ltd. Only Clause 11.1 required a 30‑day cure notice. Clause 11.2 did not. The learned Sole Arbitrator returned no finding at all on whether any of the breaches were remediable or not, and, given the clear distinction in the contract, which breach fell in what class., Board of Control for Cricket in India argued that the 16 September 2012 notice was not a show‑cause notice at all (as Deccan Chronicle Holding Ltd urged), but was only in fairness an opportunity to Deccan Chronicle Holding Ltd to remedy breaches. The learned Sole Arbitrator rejected this argument by holding: Hence, if the contention of the Respondent is accepted (though on the facts and circumstances of the case, such contention cannot be accepted, and it is not accepted), that it is not a show‑cause notice, then it must be held that before termination of the Franchise Agreement, notice, which is sine qua non and is required to be given/issued to the franchisee – Claimant, had not at all been issued and on that ground alone, the termination of the Franchise Agreement on 14 September 2012 must be held bad, illegal and against the provisions laid down in the Agreement., In my judgment, Mr Mehta is correct. It was impossible to read the contract as requiring a show‑cause notice. The contract plainly required a cure notice for one class of breach, viz., a breach that could be remedied. For the other class, i.e., breaches that were incurable and self‑triggered a termination, it only required a notice of termination. An insolvency event fell in the latter class. It was impossible to bundle the two default classes and the two distinct types of notices into one amorphous show‑cause notice., But the contract was not the only document to which the learned Sole Arbitrator turned while arriving at this conclusion. He looked at the Board of Control for Cricket in India's notice of 16 September 2012. Accordingly, please treat this letter as: (a) Formal notification pursuant to Clause 11.1 of the Franchise Agreement that your failure to pay all sums currently due and owing to your players under their respective IPL Player Contracts is a breach of your obligation under paragraph 2(e) of Schedule 3 of the Franchise Agreement and that such breach is material; (b) A formal demand to remedy the said material breach of the Franchise Agreement referred to in paragraph (a) above by 15 September 2012, being 30 days from the date of this letter and to confirm in writing to Board of Control for Cricket in India that you have done so and notification that, as provided in Clause 11.1 of the Franchise Agreement, any failure to remedy said breach may result in termination of the Franchise Agreement; (c) A formal notification that your failure to pay the outstanding sums has had a material adverse effect upon the reputation and/or standing of the IPL, Board of Control for Cricket in India, your franchise and/or your team and that all rights under Clause 11.3(c) and paragraph 2(j) of Schedule 3 are hereby expressly reserved; (d) A formal demand to make payments by 15 September 2012 of all sums due to any of your players under any relevant buy‑out agreements and to confirm in writing to Board of Control for Cricket in India that you have done so; (e) A formal demand by 15 September 2012 to cancel the charge created on the Deccan Chargers Franchise in favour of Kotak Mahindra Bank in the Registrar of Companies and any other charges, encumbrances or other security interest of any kind over the Deccan Chargers Franchise and to confirm in writing to Board of Control for Cricket in India that you have done so and that no other such charges or encumbrances subsist; (f) A formal demand by 15 September 2012 to show acceptable proof that the winding‑up petition filed by M/s IFCI in CP 146 of 2012 in the High Court of Hyderabad stands withdrawn/dismissed; (g) If you fail to comply with the demand made in paragraph (f) above, Board of Control for Cricket in India reserves the rights to take action under Clause 11.2 of the Franchise Agreement. If you fail to remedy the breaches referred to in paragraph (a), (e) and (f) above on or before 15 September 2012 then Board of Control for Cricket in India hereby reserves the right, in addition to its various above‑mentioned rights under clauses 11.1, 11.2, 11.3 and paragraph 2(e) and (j) and 9(a) of Schedule 3 of the Franchise Agreement and without prejudice to all other rights and remedies available to Board of Control for Cricket in India including under the Franchise Agreement and without Board of Control for Cricket in India accepting that any breach is remediable or otherwise, to terminate the Franchise Agreement with immediate effect by written notice to you., The demands and the references to the Franchise Agreement were distinct. Demands (a), (b) and (d) were under Clause 11.1, the provision for a 30‑day cure notice for a remediable breach. Demand (c) was clearly positioned under Clause 11.3(c), relating to the reputation and standing of Board of Control for Cricket in India etc., and required no cure period. Demand (e) was presumably under Clause 11.1, though it may have been under 11.3(c) as well. Demand (f) read with (g) is the troublesome area. Here, Board of Control for Cricket in India invoked the insolvency event under Clause 11.2, which speaks of its right to an immediate termination on account of an incurable breach, but yet gave Deccan Chronicle Holding Ltd 30 days to rectify this breach (i.e., the IFCI winding‑up petition). Sub‑paragraph (g) made it clear that Board of Control for Cricket in India reserved its right to invoke Clause 11.2, i.e., to terminate immediately if there was non‑compliance., Board of Control for Cricket in India's 16 September 2012 notice was no aid in interpreting Clause 11 of the Franchise Agreement. That Clause is unambiguous about the kind of breaches that required a 30‑day cure notice and those breaches that did not but entitled Board of Control for Cricket in India to terminate immediately after merely stating in a notice that such an incurable breach had occurred. There was no scope for a show‑cause notice at all., There is also no discussion in the Award about the use of the word ‘may’ in every single governing sub‑clause: Clauses 11.1, 11.2 and 11.3 all use that word. Neither party is required to terminate on any of these grounds, and that is in correct conformity with the general law of contract. A party may condone the breach or not; that is the party's choice and entitlement. To hold, therefore, that a notice of any kind was mandatory or necessary is not a possible view. Board of Control for Cricket in India was not bound to immediately terminate on the occurrence of an insolvency event. It could, or it could always take a softer line and give some time, reserving to itself the right to fall back on the right of immediate termination in default., In my judgment, Mr Mehta is completely correct when he says that the failure to make the distinction and to return a finding on breaches that can be remedied and those that cannot is a fatal defect that goes to the root of the matter. That failure renders the Award patently illegal. The view the learned Sole Arbitrator took is not a possible view., Premature termination: The learned Sole Arbitrator accepted Deccan Chronicle Holding Ltd's submission that Board of Control for Cricket in India's termination of 14 September 2012 was premature because it came one day ahead of the expiry of the 30‑day cure period on 15 September 2012. It seems to me that the finding is entirely unsustainable and not even a possible one, for one paramount reason. The finding entirely elides vital evidence before the tribunal. There is undisputed documentary evidence emanating from Deccan Chronicle Holding Ltd. This evidence is, first, in the form of the first two letters of 14 September 2012, the first from Deccan Chronicle Holding Ltd's attorneys and the second from Deccan Chronicle Holding Ltd itself. Deccan Chronicle Holding Ltd's attorneys said that substantial steps had been taken to cure the defaults or breaches thus accepting that there were breaches but saying that these no longer existed. If there was any doubt about what Deccan Chronicle Holding Ltd intended, this was surely put to rest by Deccan Chronicle Holding Ltd's own letter, repeatedly saying that the defaults have been cured. Now if this was correct and, as we shall see, Deccan Chronicle Holding Ltd continues to maintain that it was, in fact, correct then there was simply no question of the termination being premature. For, according to Deccan Chronicle Holding Ltd itself, it had cured (or substantially cured) all defaults. There was nothing left to cure. Deccan Chronicle Holding Ltd did not need the extra day for any reason at all, on its own stand. This could only mean that the termination by Board of Control for Cricket in India could not possibly be held to have been premature., By definition, premature means not just waiting for a calendar day to pass for the sake of it, but to give the fullness of opportunity to the noticed party to comply with the demand. If, therefore, according to Deccan Chronicle Holding Ltd itself, it had cured all defaults on 14 September 2012, there is simply no possibility of it sustaining a claim that the termination had been effected a day before it could comply, depriving it of an opportunity of compliance., Curiously, Deccan Chronicle Holding Ltd makes much of the fact that in another context, viz., Reddy's letter of 29 August 2012, Board of Control for Cricket in India's written submissions failed to account for these two very letters. That can only mean that Deccan Chronicle Holding Ltd stood by the letters. Any finding of the termination being premature without considering this evidence, undoubtedly vital, vitiates the finding. Indeed, in this section of the Award, I find no discussion at all about these two letters., In addition, there is the third letter of 14 September 2012 from Deccan Chronicle Holding Ltd's attorneys. This, too, finds no mention at all in the relevant portion of the Award dealing with premature termination, and it is undoubtedly vital and relevant evidence. Here, Deccan Chronicle Holding Ltd's attorneys making no reference at all to the other two letters said there was no default at all. That could only mean that there had never been a default by Deccan Chronicle Holding Ltd. If that was so, then, too, there was no question of the termination being premature. Deccan Chronicle Holding Ltd's attorneys did say that funds were expected from YBL, but this furnishes no ground, for the previous letter from Deccan Chronicle Holding Ltd said specifically that all defaults had been cured., The Award does note the last portion of Board of Control for Cricket in India's termination letter of 16 September 2012: If you fail to remedy the breaches referred to in paragraph (a), (e) and (f) above on or before 15 September 2012 then Board of Control for Cricket in India hereby reserves the right, in addition to its various above‑mentioned rights under clauses 11.1, 11.2, 11.3 and paragraph 2(e) and (j) and 9(a) of Schedule 3 of the Franchise Agreement and without prejudice to all other rights and remedies available to Board of Control for Cricket in India including under the Franchise Agreement and without Board of Control for Cricket in India accepting that any breach is remediable or otherwise, to terminate the Franchise Agreement with immediate effect by written notice to you. This is only noted. We find no discussion on this at all in the Award. Mr Mehta argues that this express reservation of rights by Board of Control for Cricket in India allowed it to terminate the Franchise Agreement either under Clause 11.2 or Clause 11.3, or both, even before the expiry of the 30‑day cure period. But this submission, and the document on which it is based, received no consideration at all., Mr Mehta also urges that in the context of the submission that Board of Control for Cricket in India's termination was premature, the learned Sole Arbitrator ought to have considered the other material, viz., Reddy's letter of 29 August 2012 and everything that followed it. The learned Sole Arbitrator has considered that separately, so it is best addressed then., But Mr Mehta does urge, again, in my view, correctly, that there was an undisputed subsequent event that completely altered the scenario between 14th and 15th September 2012. It is one that eradicates any possibility of returning a finding of the termination by Board of Control for Cricket in India being premature. The reason is this. Deccan Chronicle Holding Ltd moved the High Court on 15 September 2012, specifically seeking a stay on termination. Counsel for Board of Control for Cricket in India made a statement to Supreme Court of India that if Deccan Chronicle Holding Ltd made a representation to Board of Control for Cricket in India showing how it had cured all breaches, Board of Control for Cricket in India would reconsider its decision to terminate the Franchise Agreement. This statement is recorded in the Supreme Court of India order of 17 August 2012. That order goes on to note that today, the learned Senior Advocate for Board of Control for Cricket in India informs the Court that Board of Control for Cricket in India has confirmed the termination of the Franchise Agreement. There is no ambiguity about this. It can only mean one thing: that, to this Court, Board of Control for Cricket in India agreed to hold its termination in abeyance pending a demonstration of compliance by Deccan Chronicle Holding Ltd by the end of the day on 15 August 2012. Whether or not there was compliance is a separate matter. But, after this, there remained no possibility at all of holding that the termination was premature. The Award does not even refer to this statement Board of Control for Cricket in India made or the judicial order. There is no question of the order being prima facie or not. The order recorded events as they transpired and a statement made to the Court. That was a fact. It was a relevant fact, squarely within the meaning of the Evidence Act. Indubitably, it was vital evidence. How it could have been totally ignored is inexplicable. Mr Mehta is correct, therefore, in saying that the learned Sole Arbitrator could not possibly have arrived at the finding he did, viz.: Once it is held that the action of termination of Franchise Agreement dated 14 September 2012 was premature and bad in law, it goes without saying that the action of the Working Committee of Board of Control for Cricket in India's confirming the act of termination vide decision dated 15 September 2012 must also be held illegal and unlawful. The finding wholly overlooks the evidentiary fact that Board of Control for Cricket in India's confirmation was subsequent to its statement to Court allowing Deccan Chronicle Holding Ltd precisely the one additional day, and holding the termination in abeyance for that time specifically to allow Deccan Chronicle Holding Ltd an opportunity to demonstrate that it had cured all breaches. Therefore, any infirmity (of being premature) was rectified in Court itself. The confirmation followed because, according to Board of Control for Cricket in India, Deccan Chronicle Holding Ltd had not cured its defaults even by 15 September 2012, i.e., by the end of the entire curative period. As a result, the issuance of the termination notice on 14 September 2012 became entirely irrelevant. That was the only possible view. No other view was even remotely possible, let alone plausible. Put differently: Deccan Chronicle Holding Ltd complained (in arbitration) of short time of a day. But Deccan Chronicle Holding Ltd was given the additional day. Nothing remained of the complaint that the termination was premature., Mr Jagtiani's task is to show that this evidentiary material, and specifically Deccan Chronicle Holding Ltd's and its attorneys' letters, were irrelevant to the point of the termination being premature. He cannot add to the Award. He cannot supply reasons. At best, he can show that this evidence was not vital and was therefore rightly ignored. Clearly, he cannot do that., Substantial compliance: Of necessity, the discussion on this finding splits into two components: (1) players fees, and (2) bank charges. There is a third aspect, one of doctrinal relevance. Deccan Chronicle Holding Ltd's submission to the learned Sole Arbitrator was that it had substantially cured the defects on both, i.e., it should be held (or deemed) to have paid off all overdue players fees, or that it had virtually made payment to all players, and had cleared all bank charges. It also argued that the Franchise Agreement did not apply to pre‑existing bank charges, or to charges created on assets other than the franchise itself or the amounts due to the franchise., It is important to remember that the case was that by 15 September 2012, i.e., a day after the termination notice, Deccan Chronicle Holding Ltd had substantially cured all defects. The irreconcilable conflict between this submission and the submission that the termination was premature is immediately apparent., The learned Sole Arbitrator held for Deccan Chronicle Holding Ltd on both grounds., Players fees: Deccan Chronicle Holding Ltd's obligation to pay players fees cannot be disputed. It was one of the obligations under the Franchise Agreement itself: Clause 6 required Deccan Chronicle Holding Ltd to comply with the obligations in Schedule 3; and paragraphs 2(d) and 2(e) required timely payment of these.
id_404	5	Schedule 2 to the Franchise Agreement had the format of a player’s contract, and this also made the payment of each player’s fees a Deccan Chargers Holding Ltd (DCHL) obligation. There is no dispute that DCHL was to pay its players in the Deccan Chargers team on 1 April 2012 and 1 May 2012., Nothing in the Franchise Agreement or any of its schedules creates any contractual privity between the Board of Control for Cricket in India (BCCI) and any player on any team. The player’s contracts were all with, and only with, the respective franchisees. Consequently, the obligation to pay the players was of each franchisee, never of BCCI., The Board of Control for Cricket in India’s notice of 16 August 2012 specifically noted the non‑payment of players’ fees as a breach and gave DCHL 30 days to rectify this. Its termination notice of 14 September 2012 noted the failure to do so., The arbitration case before me was that since YES Bank Ltd (YBL) had, on 15 September 2012, furnished demand drafts to BCCI in favour of the players, there was substantial compliance with the requirement of paying/clearing players’ fees. It is an accepted position that actual payment had not been made., The reason given was that 15 September 2012 was a Saturday and Reserve Bank of India regulations at the time did not permit foreign‑exchange remittances to be done on the weekend by wire transfer. The learned Sole Arbitrator accepted this argument in its entirety when he held that there was substantial compliance. The RBI restrictions were a good justification for not making the wire transfers or direct payment; therefore, delivering cheques to BCCI was substantial compliance with the demand., There are far too many problems with this approach and conclusion. First, the finding posits that 15 September 2012 being a Saturday came as a total surprise to DCHL and YBL, which is hardly credible. That 15 September 2012 was a Saturday was an immutable truth, known with utter certainty since the adoption of the Gregorian calendar in October 1582., Everybody knew it from the date the clock began ticking against DCHL. The RBI regulations could not have come as a surprise; they did not spring into being unexpectedly or close to the deadline. Thus, if DCHL and its commercial comrade YBL knew both these facts beforehand, there was simply no possibility of accepting YBL’s ostensible reason for issuing demand drafts rather than making the wire transfers before the Saturday. This seems to have entirely escaped the learned Sole Arbitrator’s notice and attention., The learned Sole Arbitrator held that the players’ payments were fully ensured. But this is not possible on a reading of the contract or the documents in evidence. The contractual requirement was to make actual payment of the amounts already overdue, not merely to ensure payment or provide security. Therefore, as soon as the learned Sole Arbitrator concluded that the players’ payments had not actually been made, there was no possibility of his returning a finding that the requirement achieved substantial compliance., Could the delivery of demand drafts by YBL to BCCI on 15 September 2012 ever have constituted satisfaction of or compliance with the demand and the contractual requirement? First, the requirement in the Franchise Agreement and BCCI’s notice was for payment to be made to the players. Delivering demand drafts to BCCI did not meet the brief; it was not BCCI’s responsibility to pay anyone or to deliver payment instruments to anyone. Second, if those drafts were tendered subject to a condition imposed on BCCI, which had no privity with any of the players, then it was no payment at all., Mr Mehta submits that YBL’s tender of the drafts was, in fact, conditional. YBL made this clear much earlier, by its letter of 5 September 2012, when it said it would make payments subject to BCCI’s written confirmation that it would remit DCHL’s undisbursed share of the Central Rights Income to DCHL’s account with YBL alone. YBL’s position was evident throughout that weekend and for about a month after. Material indicates that YBL told BCCI’s Treasurer not to encash those demand drafts until it was confirmed that BCCI would release amounts due to DCHL into DCHL’s account with YBL. This was said not once but twice on Sunday, 16 September 2012., Further material, in the form of a Court record, refers to Justice Kathawalla’s elaborate order of 1 October 2012. YBL was the intervenor, represented by Senior Counsel. The condition YBL insisted on in its letter of 5 September 2012 is noted in paragraph 10 of the order, and paragraph 17 reiterates the same condition., On 16 September 2012 (Sunday), YES Bank forwarded a letter dated 15 September 2012 to BCCI, inter alia requesting BCCI to forthwith release payments due and payable by BCCI to DCHL and credit the same in the account of DCHL maintained by YES Bank. The Bank also requested BCCI to instruct it to release the wire transfer and also release the demand drafts to Indian players on 17 September 2012, if the arrangement was acceptable to BCCI., Paragraph 20 of Justice Kathawalla’s order states: “By its email dated 17 September 2012, YES Bank urged BCCI to withdraw the termination proceedings initiated against DCHL as they had materially and substantially cured all possible defects on 15 September 2012 by 5.00 p.m. YES Bank requested BCCI to deposit the amounts payable to DCHL by BCCI in the account of DCHL with YES Bank and requested BCCI not to release the 45 demand drafts issued by the Bank on behalf of DCHL, if the request made by YES Bank was not acceptable to BCCI.”, Paragraphs 21 to 23 of the same order describe the subsequent proceedings. On 24 September 2012, the learned Advocate for DCHL made submissions while Mr Milind Sathe, Senior Advocate for YES Bank, was present. On 25 September 2012, Mr Sathe tendered a Chamber Summons praying that YES Bank be joined as a party respondent to the petition, or alternatively be permitted to intervene and be heard, and for directions to BCCI to return the demand drafts if BCCI opposed the withdrawal of the impugned termination of the Franchise Agreement. DCHL sought an adjournment to respond, and the proceedings were adjourned to 26 September 2012. On that date, Mr Sathe informed the Supreme Court of India that he had instructions not to press the Chamber Summons any more, stating that YES Bank had realised it had unconditionally deposited the demand drafts on behalf of DCHL with BCCI and that the breach regarding payment of players’ dues stood cured., From 15 September 2012 to 26 September 2012, YBL maintained that its tender of the demand drafts was conditional on acceptance of its terms. It even filed a Chamber Summons and a supporting affidavit stating this. It was not until 26 September 2012 that YBL withdrew its Chamber Summons and its letter and email demanding acceptance of its conditions. Therefore, as of the end of the day on 15 September 2012, the last day of the curative period, there was simply no unconditional payment, nor even an unconditional tender of the demand drafts., The second part of the substantial‑compliance aspect relates to the charges and claims by banks and financial institutions. The general contractual provision in Clause 6 required DCHL to adhere to all obligations in Schedule 3. Paragraph 9(a) of that Schedule reads: “The Franchisee shall not, without first obtaining BCCI‑IPL’s prior written consent, charge, pledge, grant any security over or otherwise encumber the Franchise or any of the rights granted to the Franchisee hereunder whether or not such encumbrance is in the ordinary course of business.”, The learned Sole Arbitrator held that there was no charge on the franchise as of 14/15 September 2012. He also accepted DCHL’s case that all charges existed before the Franchise Agreement and were on the newspaper division, therefore not constituting a breach of the Franchise Agreement. The Award states: “As regards charge by YES Bank, it was further submitted by the Learned Counsel for the Claimant that the charge was not on the Franchise but on the receivables by the Claimant which would fall within the definition of Franchisee Income under the Agreement. In my opinion, the submission is well‑founded. There was no charge on the Franchise Agreement.”, A mere acceptance of a submission advanced by one of the parties does not satisfy the requirement for reasons in any judgment or award. Reasons must consider the rival arguments and explain why one side’s submission prevails, including a consideration of the evidentiary material., Two factual findings were returned: first, that all charges were cleared; second, that all charges pre‑dated the Franchise Agreement and related only to DCHL’s newspaper business. The contractual interpretation adopted was that the Franchise Agreement only forbade a charge on the franchise, not on its receivables., Mr Mehta argues that the evidence on record does not show that all banks and financial institutions had confirmed the withdrawal, vacating or clearing of their claims over DCHL’s present and future assets and receivables by 15 September 2012. In particular, YBL itself had not done so, nor had Canara Bank. The status of IndusInd Bank was unclear, and Ratnakar Bank had not either. No document has been found showing that Canara Bank or YBL gave up their claims., The tabulation of bank charges is as follows:\n- 01‑08‑2012 YES Bank Ltd.: charge over receivables pursuant to a deed of hypothecation; not released/withdrawn.\n- 06‑08‑2012 ICICI Bank: charge/security interest over the Franchise; released.\n- 15‑08‑2012 Kotak Mahindra Bank: charge over the Franchise; released.\n- 17‑08‑2012 IDFC Ltd.: charge over the Franchise; released.\n- 03‑09‑2012 YES Bank Ltd.: perfected first exclusive charge on present and future receivables of the Franchise; not released/withdrawn.\n- 06‑09‑2012 Ratnakar Bank: secured creditor of DCHL; not released/withdrawn.\n- 11‑09‑2012 Canara Bank: first charge on all present and future assets, movable, tangible, stocks, receivables etc.; not released/withdrawn.\n- 11‑09‑2012 IndusInd Bank: letter stating sale of the franchise could not be completed without prior written permission from IndusInd Bank.\n- 12‑09‑2012 Religare Finvest: first and exclusive charge on the receivables; released., Nowhere in the Award is there an examination of the documents relating to these charges. If the finding was that all charges alleged to have been created no more remained because they were cleared, vacated or withdrawn during the cure period, the law requires the arbitral tribunal to consider the evidence for each claim. Without that, it is impossible to conclude that all charges no more remained., If it was DCHL’s case that all charges and claims had been withdrawn or cleared, then it was for DCHL to establish this. Given the number of bank claims, there could be no presumption of any kind. Only DCHL knew which charges had been cleared and which had not, and the Award does not note any attempt by DCHL to establish this. A general letter making a wide claim is insufficient., DCHL argued that charges created prior to the agreement and those pertaining only to DCHL’s non‑franchise assets were excluded. The submission before the learned Sole Arbitrator was that the charges were created and existed before the execution of the Franchise Agreement dated 11 April 2008 on the business of newspaper publication and therefore could not be considered a breach of the Franchise Agreement., The learned Sole Arbitrator held: “I also find considerable force in the said submission of the Claimant. It, therefore, cannot be said that there were charges which were created by the Claimant on the Franchise.” However, the Award provides no reasons or evidence for this conclusion., The Award also does not indicate that DCHL led any evidence that any of the charges were created prior to the execution of the Franchise Agreement. The mere date of a charge is not enough; DCHL had to show that the charge did not creep into the assets and receivables after the Franchise Agreement. If a charge covered all future assets and receivables, there was no safety valve for DCHL., Regarding Ratnakar Bank’s claim, Mr Jagtiani argued that the bank’s letter of 6 September 2012 was a charge on DCHL, the corporate entity, and had nothing to do with the franchise or the Franchise Agreement. A charge on the corporate entity but not on its assets is meaningless; the letter asserts that DCHL could not sell its unit or any major property without Ratnakar Bank’s prior consent. This could not have been dismissed without consideration., For Canara Bank, the situation is worse. As late as 11 September 2012, it continued to have a first charge on all present and future assets of DCHL, which included the assets of Deccan Chargers Sporting Ventures Ltd, in which the franchise was initially housed., DCHL said that YBL’s charge was not on the franchise but on its receivables, and therefore not forbidden by the Franchise Agreement. Paragraph 9(a) of Schedule 3 of the Franchise Agreement forbids a charge or encumbrance on the franchise or any of the rights granted to the franchisee. This provision was entirely ignored in the Award. A receivable is an entitlement or right, and YBL’s claim was indeed over the receivables, as it demanded that DCHL’s undisbursed share of the Central Rights Income be paid into DCHL’s account with YBL. Other banks, notably Canara Bank, also asserted rights over the receivables. The Award gives no reasons for its finding that only a charge on the franchise was prohibited, not a charge on the receivables., A more fundamental problem is the concept of substantial compliance. The Award proceeds on the a priori assumption that, notwithstanding what a contract says, contract law contemplates that the terms of a contract need not be exactly complied with; substantial compliance is enough. No authority in Indian private law supports such a proposition. It injects unacceptable uncertainty and subjectivity into precisely stated contractual obligations, opening a Pandora’s box of “substantiality”.
id_404	6	But that needs to be a contractual provision. It cannot be introduced into a contract where such a provision does not exist. As a generalized principle, substantial compliance may have some significance in public law matters, but, by definition, those would fall outside the purview of contract‑constrained arbitration law and would be the remit of courts empowered to issue high‑level prerogative remedies. In the realm of private law, this concept has no role to play at all unless it is part of the contract. If it is not, then there is either compliance or there is not. There is, as far as I can tell, simply no principle of substantial compliance in private contract law unless the contract itself allows for it. Indian law does not seem to contemplate such a generalized principle, and its invocation, especially unanchored to any jurisprudence, renders the award’s finding entirely perverse and unsustainable., Let me assume for a moment that such a principle exists, or that commercial expediency demands it. For, obviously, the task is to lend contract construction some degree of commercial common sense. That, in turn, means that if there is to be substantial compliance, so much of the contract as is left unperformed must be shown to be trivial or immaterial. In every case, this would be a question of fact. It would require a specific finding on what was left out and why it is said to be immaterial or inconsequential. Merely using an umbrella epithet serves little purpose. When it is shown, however, that matters of moment and consequence have been left uncured and unresolved, there can be no question of substantial compliance., Therefore, as a corollary to this, the finding that the course suggested by Deccan Chronicle Holding Ltd and Yash Bansal Ltd was much more appropriate and preferable is entirely outside the realm of the contract in question. The arbitral tribunal was not called on to decide any such thing. It could not have been. It was asked to decide whether the Board of Control for Cricket in India’s termination conformed to the contract, not what it ought generally, preferably, more appropriately to have done. Interestingly, the award does not return a finding that the Board of Control for Cricket in India was contractually bound to accept Deccan Chronicle Holding Ltd’s and Yash Bansal Ltd’s offer or suggestion. To bring (and confine) the dispute within the contractual frame, such a finding was necessary. Without it, the finding of something being preferable or more appropriate travels beyond the contract. The question was whether the Board of Control for Cricket in India’s termination was lawful according to the contract and the law. It was emphatically not about what might or should have been or what was preferable. The finding introduced an entirely extraneous and irrelevant element without any attempt at contractual interpretation. The finding falls foul of the jurisprudential interdiction against extra‑contractual arbitral peregrinations., The finding that it was much more appropriate and preferable for the Board of Control for Cricket in India to have accepted the course suggested by Deccan Chronicle Holding Ltd and Yash Bansal Ltd necessarily involved an abandonment of the Franchise Agreement and wholesale rewriting of the contract. It suggested a preferability of an entirely new contract, one to which Yash Bansal Ltd would have to be a party, thus establishing for the first time contractual privity between the Board of Control for Cricket in India and Yash Bansal Ltd. How any arbitral tribunal could suggest this and, worse yet, return it as a finding of wrongdoing on the Board of Control for Cricket in India’s part is inexplicable., Finally, there is the irreconcilable conflict between finding that the termination notice was premature and that there was substantial compliance. Logically, the two cannot co‑exist. It is one or the other. The award returns both findings. The resultant view is not possible. It is perverse., (4) No Insolvency Event. We have already seen that Clause 11.2 of the Franchise Agreement permits either party to terminate immediately by written notice if the other party commits an irremediable breach of the Agreement or if it is the subject of an Insolvency Event. An Insolvency Event is defined in Clause 11.6 as occurring when any bona fide petition is presented or any demand under the Negotiable Instruments Act is served., That the Industrial Finance Corporation of India filed a winding‑up petition against Deccan Chronicle Holding Ltd in the High Court at Hyderabad is undisputed. The Board of Control for Cricket in India’s notice of 16 August 2012 called on Deccan Chronicle Holding Ltd to provide proof that the Industrial Finance Corporation of India’s winding‑up petition had been withdrawn or dismissed. The Board of Control for Cricket in India reserved its right, in default, to terminate under Clause 11.2. One of the grounds for the Board of Control for Cricket in India’s termination on 14 September 2012 was that Deccan Chronicle Holding Ltd had failed to do so., In the award there is no discussion at all as to whether the Industrial Finance Corporation of India’s petition was bona fide. Instead, the learned Sole Arbitrator said: “I, however, do not wish to enter into larger questions in the light of the fact that the Industrial Finance Corporation of India also filed a suit against the Claimant Deccan Chronicle Holding Ltd for recovery of dues which formed the subject matter of the winding‑up petition. The matter was settled before Debts Recovery Tribunal‑I, Jhandewalan, New Delhi. Consent terms had been arrived at on 12 September 2012 and the matter was finally disposed of.” Thus, in any case, the Insolvency Event was no more in existence on 15 September 2012 and was over within the cure period. Hence, the allegation as to an Insolvency Event did not remain. Hence, it was not open to the Respondent to rely upon the event for terminating the Franchise Agreement., This is a finding of fact and it is reached without the slightest attempt to examine how and on what terms the matter was settled before the Debts Recovery Tribunal‑I. The compromise agreement before that tribunal was very much part of the evidentiary record. Only three clauses need to be noted: (b) The balance amount of Rs 15,17,28,944.00 (Rupees only) plus interest shall be payable in four installments. The first three installments of Rs 3.50 crore each shall be payable on or before 10 October 2012, 10 November 2012 and 10 December 2012 respectively and the final installment of Rs 5,43,28,201.00 shall be paid on or before 10 January 2013. The amounts are arrived at considering payment of these installments on the stipulated dates and after taking into account the appropriation of interest at 11.25 % per annum till the dates of payment, as per the calculation sheet annexed (Annexure I). The final amount may vary if there is a variance in the dates of payment. It is also agreed that the Defendant No. 1 Company shall give post‑dated cheques to the Applicant Industrial Finance Corporation of India in respect of the said agreed payments. (d) Applicant Industrial Finance Corporation of India shall keep all proceedings, including criminal cases filed under section 138 of the Negotiable Instruments Act, winding‑up proceedings and matters pending, on hold and shall withdraw the same only after the terms of the settlement are complied with and the entire amount is paid by the Defendants. Also, Industrial Finance Corporation of India shall withdraw matters pending with the Ministry of Company Affairs. (f) This Honorable Tribunal will issue a Recovery Certificate, if a request is made by the Applicant Industrial Finance Corporation of India for the same on default in payment of monies or any terms of the settlement by the Defendants., Taken together, these clauses point to only one thing: that the Industrial Finance Corporation of India winding‑up petition was not disposed of by 14 September 2012. It was merely held in abeyance. Indeed, the first of the four instalments was not due until 10 October 2012, and the last of the four not until 10 January 2013. A single default would revive or re‑trigger the winding‑up petition. It was not to be withdrawn until the full amount was paid. Clause (f) puts this beyond doubt. It said that a single default would result in the Debts Recovery Tribunal‑I issuing a Recovery Certificate, i.e., in the Industrial Finance Corporation of India’s claim before the Tribunal being made absolute. Inevitably, that would result in an order on the winding‑up petition. Even if clause (f) is ignored as not being directly related to a winding‑up petition, there can be no ambiguity about the fact that the winding‑up petition itself was emphatically not withdrawn on the filing of this compromise agreement., It is difficult to comprehend how this document could have been so totally ignored by the arbitral tribunal. There is not even an attempt to address its terms or their implications. The finding that the Insolvency Event was no more in existence and did not remain is not even a possible view. Notably, the award accepts that the Industrial Finance Corporation of India winding‑up petition was indeed an Insolvency Event; it declines to go into this supposedly larger question because the Industrial Finance Corporation of India had also filed a suit in the Delhi High Court for recovery of the same amount. Deccan Chronicle Holding Ltd does not assail this finding. Consequently, no question survives of the Industrial Finance Corporation of India winding‑up petition not being bona fide. Therefore, this leaves only the question of whether the petition was bona fide, and admittedly an Insolvency Event existed on 14 September 2021. On that, the finding in the award is directly contrary to the material on record, which it totally ignores and fails to take into account or even consider. Instead, the award proceeds on the wholly incorrect basis that since there was a compromise agreement, therefore the Industrial Finance Corporation of India petition was no more in existence. The finding is entirely unsustainable and falls within the legal definition of perversity, i.e., a view that was not even possible., I do not follow Mr Jagtiani’s submission that with the filing of the compromise agreement the substratum of the Industrial Finance Corporation of India’s winding‑up petition had gone. The Franchise Agreement did not speak of a qualitative analysis of each winding‑up petition beyond saying that it had to be bona fide. That it was bona fide is established by the compromise agreement itself (and the award does not go into this). With that out of the way, there was no question of looking to the substratum; and indeed the submission appears plainly wrong. That substratum or basis of the winding‑up petition would not go until the last rupee was paid. Until then, the winding‑up petition was merely in abeyance, capable of being revived upon a single default. If the last instalment was not due for several months, as we have seen, the result could only have been that the winding‑up petition remained, albeit temporarily dormant, until then. Effectively, therefore, as on 14‑15 September 2012, the winding‑up petition remained. The reasoning simply does not fit the bill: it is not proper, intelligible or adequate. It is without reasons. It is not a possible view. The finding is both perverse and patently illegal., (5) Unfair Discrimination. This is a very contentious area. In summary, the learned Sole Arbitrator found that the Board of Control for Cricket in India had invidiously discriminated against Deccan Chronicle Holding Ltd, especially in comparison with other franchisees and their owners. Specifically, the learned Sole Arbitrator held that for far more egregious defaults, even criminal acts, the Board of Control for Cricket in India took no action against other franchisees, yet proceeded to the extent of a termination against Deccan Chronicle Holding Ltd. Then the learned Sole Arbitrator held that although the relevant contractual provision used the word “may”, entitling the Board of Control for Cricket in India to set off any amounts due from it against amounts due by Deccan Chronicle Holding Ltd to players, this had to be construed as “shall”. Consequently, the learned Sole Arbitrator said that the Board of Control for Cricket in India was bound to pay off Deccan Chronicle Holding Ltd’s players from Deccan Chronicle Holding Ltd’s share of the Central Rights Income, which the Board of Control for Cricket in India had wrongfully and in a discriminatory manner withheld., The Board of Control for Cricket in India’s response that Article 14 of the Constitution of India had no role to play failed to impress. Mr Mehta assails the entire finding on several grounds., (a) No pleading. This is how the learned Sole Arbitrator noted Deccan Chronicle Holding Ltd’s case: It was vehemently contended on behalf of the Claimant that the Respondent had also adopted discriminatory treatment terminating the Franchise Agreement as well as in making payment of Franchisee Income. It was stated that though the Players Fees were not paid by Rajasthan Royals as well as Chennai Super Kings, their franchisees were not terminated. Moreover, under the Franchise Agreements, all franchisees were entitled to the franchisee’s share from the Board of Control for Cricket in India. Such payment was made by the Board of Control for Cricket in India to Rajasthan Royals, Chennai Super Kings and others but no such payment was made to the Claimant. It was, therefore, submitted that the Board of Control for Cricket in India ought to have adopted and applied one and the same standard while dealing with all franchisees. If the Franchise Agreement of Rajasthan Royals or Chennai Super Kings were not terminated on account of non‑payment of Players Fees, it was not open to the Board of Control for Cricket in India to terminate the Franchise Agreement of the Claimant on that ground. Again, if the Board of Control for Cricket in India had made payment of Franchise Income to Rajasthan Royals or Chennai Super Kings or any other franchisee, it was incumbent on the Board of Control for Cricket in India to make such payment to the Claimant as well. In fact, under the Franchise Agreement, it was the right of the Claimant and every franchisee to receive such income and it was incumbent on the Respondent to pay the amount to Deccan Chronicle Holding Ltd., It was also submitted that, according to the Board of Control for Cricket in India, the amount payable by Deccan Chronicle Holding Ltd towards Players Fees was approximately Rs 13 crore, while the amount receivable by the Claimant from the Respondent Board of Control for Cricket in India was approximately Rs 36 crore, which was more than double the amount payable by the Claimant towards Players Fees. It was submitted on behalf of the Claimants that had such payment been made by the Board of Control for Cricket in India to Deccan Chronicle Holding Ltd to which the Claimant was entitled (and the Board of Control for Cricket in India had made such payment to other franchisees), the Claimant could have easily paid Players Fees and other dues and there would have been no occasion for the Board of Control for Cricket in India to terminate the Franchise Agreement of the Claimant, which was not terminated by the Board of Control for Cricket in India for Rajasthan Royals and Chennai Super Kings though the ground was one and the same (non‑payment of Players Fees) in respect of those franchisees also. It was stated that some of the franchisees had not paid even the first instalment of Players Fees., The Board of Control for Cricket in India objected, saying there was no pleading to this effect at all by Deccan Chronicle Holding Ltd in its Statement of Claim. Even if the Code of Civil Procedure, 1908 and the Evidence Act, 1872 did not apply with their full rigour, fundamental and general principles nonetheless governed. If Deccan Chronicle Holding Ltd did not have a pleading, the Board of Control for Cricket in India had no opportunity to meet this particular case, leading to a failure of natural justice and fair play. Deccan Chronicle Holding Ltd said it was only after arbitration was invoked that it learnt that other teams had defaulted on players payments, despite which the Board of Control for Cricket in India had not terminated those franchise agreements. Some had not even paid the first instalment. In fact, the Board of Control for Cricket in India had paid the franchise income to other franchisees, but not to Deccan Chronicle Holding Ltd, though similarly situated. When Deccan Chronicle Holding Ltd demanded information, the Board of Control for Cricket in India refused. Deccan Chronicle Holding Ltd filed a formal application for disclosure on which the arbitral tribunal made an order on 18 July 2016. The learned Sole Arbitrator held that Deccan Chronicle Holding Ltd learnt of these matters from the affidavit evidence of RW1, Sunder Raman, the Board of Control for Cricket in India’s only witness., The learned Sole Arbitrator held that the Board of Control for Cricket in India, a body that performs public functions, was bound to make a complete disclosure. It could not pick and choose. It had to disclose these matters even without a formal order. It had to satisfy the tribunal that its acts were legal, valid and in consonance with the law and that the same treatment was shown to all franchisees without any discrimination. For this reason alone, the learned Sole Arbitrator rejected the Board of Control for Cricket in India’s threshold objection., But this does not even begin to answer the question the Board of Control for Cricket in India raised. An insufficient pleading is fundamental. It goes to the root: it is the basis of our system of jurisprudence, which demands that the opponent must know the case to be met. Nothing stopped Deccan Chronicle Holding Ltd from applying for an amendment. If it had indeed come upon or been given additional information at a late stage, then, at a minimum, it had to set out its case in pleadings relating to that information so that the Board of Control for Cricket in India could address it. Very many things may emerge in a trial. Not all can form the basis of a decision. No amount of evidence can substitute for a necessary pleading, nor can evidence travel beyond the case pleaded., Deccan Chronicle Holding Ltd’s necessary pleading on unfair discrimination was a ground for invalidating the termination. This needed to be both pleaded and proved. Whatever may have been the evidence, without an underlying pleading, no finding could have been returned against the Board of Control for Cricket in India. Had Deccan Chronicle Holding Ltd sought to amend, the Board of Control for Cricket in India would have had an opportunity to oppose. Had the amendment been allowed, the Board of Control for Cricket in India would have been entitled to file a supplementary Statement of Defence. Then, and then only, could an issue like this have been struck. This would have allowed the Board of Control for Cricket in India an opportunity to explain in pleadings (and not just oral arguments) its stand on the matter. This is a fundamental procedural illegality: a claim by one party is allowed to be fully explored, while the other side is denied even the most basic opportunity of meeting the case against it. Indeed, the finding on the Board of Control for Cricket in India’s so‑called duty to disclose puts the cart firmly before the horse. There was no such requirement because there was simply no such pleading., Mr Jagtiani’s submission is that every little thing need not be pleaded. It is sufficient to allege a state of facts. Evidence is never required to be pleaded. While this is elementary and requires no supporting authority, it again begs the question. A party must set out its case precisely so that the other side is not taken unawares. Deccan Chronicle Holding Ltd’s case on unfair discrimination was not something that could be inferred, given that this was a commercial arbitration dispute confined by the contract. That argument fell entirely outside the contract. For such a case to be mounted, it needed to be set out, however briefly, with some specificity. It could not have been conjured up like this at trial and then in arguments. Indeed, Kali Prasad Agarwalla v Bharat Coking Coal Ltd & Ors, on which Mr Jagtiani relies, is conceivably against him. There, the Supreme Court said a ground of insufficient pleading could not be raised if parties went to trial knowing full well what they were required to prove and adduced evidence of their choice to support their respective claims. That is not the case here. Indeed, as we have seen, the Board of Control for Cricket in India’s threshold objection was not answered at all in the award; and certainly there is not a word in the award to suggest that parties went to trial knowing what they had to prove and adduced evidence accordingly. True, the substance and not the form of the pleadings is to be considered. But this only meant that the award ought to have returned a finding of sufficiency of pleading. The relevant portion of the award contains not a single line of examination of the pleadings. The only observation is this: As far as pleading is concerned, it is the case of the Claimant that it had come to know of the fact regarding non‑payment of Players Fees by other franchisees also like Rajasthan Royals, Chennai Super Kings, etc. later on and also from the Affidavit of RW1 Sunder Raman. Similarly, it came to know that franchisee payment had been made to other franchisees but the same treatment was not shown to the Claimant. As soon as the Claimant came to know about these facts, a demand was made to the Board of Control for Cricket in India to provide information and supply documents. The Respondent, however, refused to provide such information or documents, contending that they were not relevant to the issue raised by the Claimant. From there, the award segues straightaway into a discussion of Article 14 and public law. It returns no finding at all on the sufficiency of the pleading and points to not one part of the Statement of Claim. The learned Sole Arbitrator’s finding is not a possible view. It is entirely beyond the contract. It addresses a case never pleaded., (b) Finding outside the contract. Mr Mehta submits that what the Board of Control for Cricket in India did vis‑à‑vis other franchisees could not have been dragged into the present dispute. The reciprocal obligations of the Board of Control for Cricket in India and Deccan Chronicle Holding Ltd were confined by their inter‑se contract. This kind of expansiveness was and is entirely impermissible. Deccan Chronicle Holding Ltd had to show that the Board of Control for Cricket in India was not entitled to effect any retention and that it was bound to make payment to Deccan Chronicle Holding Ltd. What the Board of Control for Cricket in India did or did not do vis‑à‑vis other teams was immaterial. Deccan Chronicle Holding Ltd could demonstrate no such contractual obligation that the Board of Control for Cricket in India had no power of retention and had to disburse the amounts withheld to Deccan Chronicle Holding Ltd (leaving aside the question of whether the Board of Control for Cricket in India was bound to make payments to Deccan Chronicle Holding Ltd’s players from the retention). All that Deccan Chronicle Holding Ltd could point to was what it alleged the Board of Control for Cricket in India had done vis‑à‑vis the other teams. That fell outside the contract between the Board of Control for Cricket in India and Deccan Chronicle Holding Ltd; and the award thus travels beyond the contract. The entire finding is beyond jurisdiction and in excess of it., Mr Mehta relies on Rajasthan State Mines and Minerals Ltd v Eastern Engineering Enterprises to say that it is only if the contract permits that an arbitrator can examine matters that lie outside its boundaries, factual and legal. Otherwise, he cannot. There can be no award disregarding the terms of the contract, for the arbitrator is not a conciliator. He must decide the disputes according to the law and the contract between the parties., Mr Mehta then cites Associated Engineering Co v Government of Andhra Pradesh in support of his submission that an arbitrator cannot act independently of the contract. His sole function is to arbitrate in terms of the contract and with regard to its terms. Ssangyong Engineering reaffirms this position. The arbitrator is a creature of the contract. He has no powers other than those the parties confer on him by their contract. If he ventures beyond those boundaries or acts in disregard to the contract, he acts without jurisdiction. He has no power to widen his jurisdictional remit by deciding a question not referred to him or deciding otherwise than according to the contract. Again: Ssangyong Engineering. This is also the ratio of Bharat Coking Coal Ltd v Annapurna Construction., (c) The contract required the Board of Control for Cricket in India to pay Deccan Chronicle Holding Ltd’s players’ dues. As part of the discussion on unfair discrimination, the learned Sole Arbitrator considered Clause 20.3 of the Franchise Agreement and Rule 5 of the Operational Rules to hold that the Board of Control for Cricket in India was bound to pay off Deccan Chronicle Holding Ltd’s players’ dues from Deccan Chronicle Holding Ltd’s share of the Central Rights Income that the Board of Control for Cricket in India had withheld. Clause 20.3 reads: “BCCI‑IPL shall be entitled to deduct from any sum which has become due and payable to the Franchisee under this Agreement any amount which has become due and owing by the Franchisee to BCCI‑IPL under this Agreement but which remains unpaid.” Rule 5 reads: “Set Off – Whenever any sum of money shall be or in the future become recoverable from or payable by any Franchise to IPL and/or BCCI or to any other Franchisee or to any person subject to these Operational Rules including but not limited to fines, costs, awards or decisions made under the Regulations then the same may be deducted from any sum then due or which at any time thereafter may become due to that Franchisee arising out of the Regulations or any contract between such Franchisee and IPL and/or BCCI including without limitation the relevant Franchise Agreement and BCCI‑IPL may pay such sum onto any third party to whom it is owed by such Franchise including but not limited to any State Association. The exercise by IPL and/or BCCI of its rights hereunder shall be without prejudice to any other rights or remedies available to IPL and/or BCCI.” The award returned a finding that “may” had to be read as “shall”. But where the language of a contract is unambiguous, there is no scope whatever for embarking on this kind of interpretative expedition. Holding that the Board of Control for Cricket in India was bound to pay Deccan Chronicle Holding Ltd’s players from the retention effectively rewrote the terms of the contract. More to the point, it totally upended the entire obligation‑entitlement framework. Deccan Chronicle Holding Ltd’s or any franchisee’s obligation to pay its players their fees was not dependent or contingent on the franchisee receiving money from the Board of Control for Cricket in India. The contract between the franchisee and the player was not a back‑to‑back contract with the Franchise Agreement. Nobody even suggested that. Yet, this is the result of the finding. It creates a wholly new obligation directly between the Board of Control for Cricket in India and every single player, a situation totally beyond the contemplation of the Franchise Agreement., Indeed, the only possible view was that any franchisee’s right or entitlement to the Central Rights Income depended on it not being in default or breach. Were it in default or breach, the Board of Control for Cricket in India could (but did not have to) withhold any payment due to the franchisee. The converse of the finding that the Board of Control for Cricket in India was bound to pay the franchisee’s players from the amount retained was, inevitably, that the Board of Control for Cricket in India was also bound to effect such a retention the moment there was a breach or a default. Nothing in Clause 20.3 or Rule 5 can be read even remotely to suggest this.
id_404	7	The Board of Control for Cricket in India (BCCI) could not be in breach or required to give a curative notice for a remediable breach. Upon a payment default by a franchisee, BCCI would be bound to retain the amount and then cure the breach by paying off the debt from the withheld amount, although the obligation to pay rested with the franchisee. Conversely, when the defaulting franchisee cured the breach, BCCI would have to release the retained amount to the franchisee. BCCI could, at its discretion, make payment to a third‑party creditor, but the contract does not impose a duty on BCCI to do so. The retention power was intended to prevent defaults by franchisees in performance of their obligations to third parties with whom each franchisee had a separate contract, particularly defaults in payment of players’ fees and dues, which could bring the BCCI‑IPL into disrepute., The contract cannot be read in the manner suggested by the Award. Its interpretation amounts to an unacceptable rewriting of express and unambiguous contractual terms without regard to the implications. This is not a matter of curial intervention on interpretation but an arbitral tribunal rewriting a major contractual term to reach an impossible view. Contemporary material shows that Deccan Chronicle Holding Ltd (DCHL) did not interpret the clause in that way. Until 15 September 2012 there was no demand from DCHL that BCCI should pay the players from the retention amount. It is therefore untenable to accept the submission that the BCCI retention was purpose‑specific; nothing in the contract suggests such a limitation. The further submission that the moment BCCI retained any amount DCHL’s obligation to its players disappeared is wholly unreasonable and unsupported by any evidence., Mr Mehta submits that the learned Sole Arbitrator’s introduction and use of public law principles in an entirely private law dispute resolution process was impermissible. An arbitrator does not possess the broader powers of a constitutional court or a court exercising judicial review. No question could arise of a private dispute resolution tribunal invoking, for instance, Article 14 of the Constitution (Indian Oil Corporation Ltd v Amritsar Gas Service, (1991) 1 SCC 533). Actions based on contract and seeking contractual remedies do not permit the introduction of broader public law questions such as those based on Article 14., The learned Sole Arbitrator held that BCCI is not the State within the meaning of Article 12, although it performs public functions. This does not alter the private law nature of the arbitration. The public law duty to act fairly cannot be imported into a contract by a private law arbitral tribunal to create an obligation that the contract does not envisage, as held in Assistant Excise Commissioner v Isaac Peter (Supreme Court of India). The Supreme Court has held that in contracts freely entered into with the State, there is no room to invoke public law doctrines of fairness and reasonableness to alter or add to the terms of the contract. A Division Bench of the Delhi High Court has stated that there is no scope for applying the doctrine of arbitrariness in a private law field, and similar views have been taken in ONGC Ltd v Streamline Shipping Co Pvt Ltd (Bombay High Court) and other cases., The reliance on the Delhi High Court decision in KSL & Industries v National Textile Corporation Ltd is inapposite. That case involved three Section 9 petitions, where a Section 9 court’s powers are not constrained by Section 28 of the Arbitration Act. The arbitral tribunal, however, is constrained by Section 28, which expressly uses the terms “just” and “convenient,” a possible statutory riff on the ex aequo et bono principle. The learned single judge’s view that a fight between a citizen and the government is not ordinary litigation does not apply to BCCI, which is not the government. The arbitral tribunal’s jurisdiction is narrowly tailored by the binding contract between the parties and cannot be expanded by public law principles., There is no authority for the proposition that a private‑law‑bound tribunal has recourse to public law powers. The Supreme Court in Avitel Post Studioz Ltd v HSBC PI Holdings (Mauritius) Ltd clarified that serious allegations of fraud arise only if either of two tests is satisfied: (i) the arbitration clause or agreement does not exist in a clear case, or (ii) allegations of arbitrary, fraudulent, or mala fide conduct are made against the State or its instrumentalities, necessitating a writ court. Avitel, decided under the Arbitration Act, underscores the separation between private law considerations and public law. The Award makes no attempt to address the private‑law/public‑law interface and simply assumes the power to invoke public law principles, which is untenable., Sections 28(2) and 28(3) of the Arbitration Act state that the arbitral tribunal shall decide ex aequo et bono or as an amiable compositeur only if the parties have expressly authorised it to do so, and that the tribunal must, in all cases, take into account the terms of the contract and trade usages applicable to the transaction. These provisions are reflected in Article 28 of the UNCITRAL Model Law and the UNCITRAL 2010 Rules. The terms ex aequo et bono and amiable compositeur have a specific legal connotation: ex aequo et bono means according to what is equitable and good, while an amiable compositeur is an arbitrator empowered by the parties to settle a dispute on the basis of equity and fairness. The Supreme Court in Associate Builders extracted Section 28 and held that contravention of it is a sub‑head of patent illegality, a position reaffirmed in Ssangyong Engineering (Supreme Court of India)., The Award’s finding that BCCI’s termination was unfairly discriminatory is therefore a patent illegality. The learned Sole Arbitrator held that the letter dated 29 August 2012, signed by Mr Reddy on DCHL letterhead, was obtained by duress and should be disregarded (Ramji Dayawala & Sons (P) Ltd v Invest Import, (1981) 1 SCC 80). The Arbitrator’s reliance on this finding is perverse; the Award does not consider the second letter dated 4 September 2012, which was a counter‑signature by Mr Reddy and was treated as a mere corollary. There is no finding that the second letter was also obtained by coercion, despite the logical inference that if the first letter was coerced, the subsequent acceptance would likewise be coerced. The Award therefore fails to address vital evidence., The Award entirely ignores substantial evidence that contradicts its conclusions. There is no mention of the joint public tender sale process, the lenders’ meeting on 31 August 2012 at ITC Park Sheraton, Chennai, where Mr Reddy’s letter was read without objection, or the subsequent correspondence from YBL, Ratnakar Bank, Canara Bank, and ICICI Bank referencing the proposed franchise sale. The BCCI letter of 4 September 2012, which Mr Reddy counter‑signed, was used to effect a sale transaction on 11 October 2012 with Kamla Landmark, yet the Award treats this document as inconsequential. The omission of these facts represents a complete failure to consider material evidence., The Award introduces the doctrine of proportionality in assessing BCCI’s termination notice and the quantum of punishment, which lies outside the contractual framework and ventures into public policy. The concept of Wednesbury unreasonableness, drawn from administrative law (Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223), is a public law issue and not permissible in a private law arbitration dispute. Neither the doctrine of proportionality nor the notion of punishment is relevant to determining whether the termination conformed to the contract. Consequently, the Award’s findings on termination are beyond the scope of the arbitral tribunal’s authority., The arbitral tribunal found that DCHL did not press its claim for specific performance, and therefore was not entitled to it. The tribunal’s findings on damages awarded will be addressed only to the extent permissible, given that the parties have extensively argued this aspect.
id_404	8	Board of Control for Cricket in India vs Deccan Chronicle Holding Ltd 16th June 2021 damages in addition to or in lieu of specific performance is, in my view, entirely unsustainable and not even a possible view. To appreciate how this unfolded, one has to look at how DCHL set its monetary claim. This was, as I have noted, in three parts. Claim 1 (Issue No 5) was for Rs.630 crores. Claim 2 (Issue No 6) was for Rs. 41 crores (the amount Board of Control for Cricket in India was said to have withheld from the Central Rights Income). Claim 3 (Issue No 7) was for Rs. 6046 crores (ignoring the arithmetical or totalling error). Claims 1 and 3 were in the nature of damages., Claim 2 may be taken to be a simple recovery claim for amounts due, sought like this: (d) The Respondent be directed to pay an amount of Rs. 41 crore or such other amounts as Claimant is entitled in terms of the share from the Central Rights income in respect of IPL‑5 to be paid to the Claimant along with interest @ 18% p.a from the date when such amounts became due and payable by the Respondent., Claims 1 and 3 were the subject of two specific prayers in the Statement of Claim: (e) In addition to the specific performance of the Franchise Agreement dated 10th April 2008 the Claimant be granted additional compensation for losses suffered by it on account of wrongful termination of Franchisee Agreement dated 10th April 2008 for an amount of Rs. 630 crores or such other amounts as the Honourable Tribunal deems fit and proper along with interest @ 18% p.a from the date of illegal termination of the franchisee. (h) In the alternative if the claim for specific performance of Franchisee Agreement dated 10th April 2008 is rejected by the Honourable Tribunal then it be directed that the Claimant is entitled to a compensation of Rs. 6046 crores and the Respondent be directed to pay to the Claimant an amount of Rs. 6046 crores as described in paragraph 74 above or such other amount as the Honourable Tribunal deems fit and proper., The Award finds that DCHL sought damages compensation in addition to or in lieu of specific performance; and that DCHL was justified in seeking damages or compensation in lieu of specific performance. Prayer clause (e) was for damages in addition to specific performance. Prayer clause (h) was for damages if the claim for specific performance failed and was rejected. There was no prayer at all for damages in lieu of specific performance., It seems to me self‑evident that damages in lieu of specific performance could only have been granted if the claim for specific performance was pressed; a specific finding was returned that DCHL was entitled to specific performance; then, that specific performance was rendered impossible in light of certain factors; and resultantly damages in lieu of specific performance were granted. In this chain, if the first step itself failed whatever the reason, the rest simply could not follow. If specific performance was rejected or not pressed, there could be no question of awarding damages instead of it. Similarly, damages in addition to specific performance could be granted only if specific performance was found to be a relief capable of being granted; and that required the relief to be pressed. The learned Sole Arbitrator impermissibly read DCHL’s prayer seeking damages if the relief for specific performance was rejected as being equivalent to a prayer for damages in lieu of specific performance., Mr Mehta correctly relies on the decision of the Calcutta High Court in Gopi Nath Sen & Ors v Bahadurmal Dulichand & Ors. The learned single Judge placed reliance on the Privy Council decision in Ardeshir Mama v Flora Sassoon. The following passage is instructive: 22. The words in addition to, or in substitution of such performance in Sub‑Section (1) mean that compensation can be given by the Calcutta High Court in case where specific performance could have been given either in addition to specific performance or in lieu of it. Thus, under Sub‑Section (1), the power and jurisdiction of the Calcutta High Court to give damages arise in two cases, viz., either in addition to, or in substitution of specific performance. The learned Judge, in the instant case has granted damages in lieu of specific performance. The circumstances under which the Calcutta High Court would award damages in lieu of specific performance are laid down in Sub‑Section (2) of Section 21. Damages in lieu of specific performance can be given in case where specific performance could have been granted but in the circumstances of the case the Calcutta High Court in its discretion considers that it would be better to award damages instead., 23. The above principle of law was stated by Chitty, J. in Lavery v. Pursell, (1888) 39 Ch D 508 at page 519 in a very simple language. I think I shall quote the same here: It was suggested after Lord Cairns Act the Court of Equity could give damages in lieu of specific performance. Yes, but it must be in a case where specific performance could have been given. It was a substitute for specific performance. It did not give the old Court of Chancery a general jurisdiction to give damages whenever it thought fit, it was only in that kind of case where specific performance would have been the right decree and there were reasons why it would be better to substitute damages, but that could not apply to a case where you should not have given specific performance., 24. The principle of law stated above is well settled. It was embodied in Section 19 of the Specific Relief Act, 1877 and the same principle is stated by Section 21 of the Specific Relief Act, 1963 by which the former is repealed. I accept the principle of law as laid down by Chitty, J. in that case., 25. I shall now turn to the leading case Ardeshir Mama v. Flora Sassoon, 55 Ind App 360: (AIR 1928 PC 208) relied on by Mr. Sen. In that case the plaintiff filed a suit for specific performance of a contract and claimed compensation in addition to or in substitution for such performance., Subsequent to the filing of the suit, by the Solicitor’s letter the plaintiff gave notice that he would not claim specific performance but would claim damages. At the trial objection was taken that the plaintiff could not recover damages without an amendment of the plaint. Thereafter by leave the plaint was amended by a claim in the alternative for the return of the money advanced with interest as damages. Delivering the judgment of the Privy Council Lord Blanesburgh discussed the English and Indian Law on points both historically and with reference to Specific Relief Act, 1877. At page 372 of the report the Privy Council observed: in relation to a contract to which the equitable form of relief was applicable, a party thereto had two remedies open to him in the event of the other party refusing or omitting to perform his part of the bargain. He might either institute a suit in equity for specific performance, or he might bring an action at law for the breach. But and this is the basic fact to be remembered throughout the present discussion his attitude towards the contract and towards the defendants differed fundamentally according to his choice., The Privy Council further observed: Where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance, on the other hand, he treated and was required by the Privy Council to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part., Thus it is an election of the plaintiff whether to sue for specific performance and claim for damage in addition to or in substitution for it, or to sue for damages for breach of contract. If by his election the plaintiff precludes himself from making the averment of readiness and willingness to perform his part of the contract and prove the same which is essential to the success of the suit for specific performance the question for damages in lieu of specific performance would not arise. At page 374 of the report the Privy Council observed: In the present instance, their Lordships are disposing of a case in which the plaintiff had debarred himself from asking at the hearing for specific performance, and in such circumstances, notwithstanding Lord Cairns Act, the result still was that with no award of damages the Privy Council could award none the order would be one dismissing the suit with no reservation of any liberty to proceed at law for damages: See per Lord Selborne, Hipgrave v. Case: 28 Ch D 356 362. In other words, the plaintiff’s rights in respect of the contract were at an end., Following the judgement of the Privy Council and the principle of law discussed above there is no doubt in my mind that Mr. Sen is fully justified in his submissions. In the fact of this case, at the trial the witness for the plaintiff did not prove readiness and willingness on the part of the plaintiff to take the monthly tenancy from the defendants and he wanted damages only. Although the plaintiff filed a suit for specific performance and the defendants stated that the defendants were ready and willing to give tenancy as and when the building would be constructed, the plaintiff stated at the trial of the suit that he was claiming only damages. Therefore, the plaintiff was no longer interested in taking the tenancy, but instead claimed damages at the trial without amending the plaint. On the principle of law laid down by the Privy Council in Ardeshir Mama v. Flora Sassoon, and under Section 16 of the Specific Relief Act, 1963 specific performance cannot be enforced in favour of a person who fails to prove that he has always been and still is ready and willing to perform the essential part of the contract which are to be performed by him. The claim for specific performance was not pressed at the trial. It was really abandoned. The plaintiff contended at the trial that he was entitled to damages. The suit for specific performance must, therefore, fail. Once a suit for specific performance fails because the claim for specific performance was not pressed or abandoned at the trial, the question of damages for specific performance in substitution also fails. The question of claiming damages for breach of contract under Section 73 of the Indian Contract Act is an entirely different cause of action on the principle laid down in Mama v. Sassoon. It is also clear from Section 24 of the Specific Relief Act, 1963 that the dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff’s right to sue for compensation for the breach of such contract., In the above view of the matter, the learned trial Judge could not have allowed Rs. 25,000/- as damages in lieu of specific performance. It appears that the case was conducted before the learned trial Judge on misapprehension of law and in disregard of the principles discussed above. In the argument advanced before the learned trial Judge, the attention of the learned trial Judge was not drawn to the points of law discussed above. The observation of the learned trial Judge that the only real issue to be decided in the suit is whether the plaintiff is entitled to compensation and if so, on what basis, cannot arise on the plaint as framed., Mr Jagtiani’s response on law is to seek support from the Supreme Court of India decision in Jagdish Singh v Nathu Singh, to say that a plaintiff seeking specific performance may always seek damages in lieu of specific performance. That is unexceptionable, and nobody quarrels with that proposition but for the small fact that DCHL did not, in point of fact, pray for damages in lieu of specific performance. Indeed, Jagdish Singh, correctly read, supports Mr Mehta more than it does Mr Jagtiani: 16. So far as the proviso to sub‑section (5) is concerned, two positions must be kept clearly distinguished. If the amendment relates to the relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance the Supreme Court of India will allow the amendment at any stage of the proceeding. That is a claim for compensation falling under Section 21 of the Specific Relief Act, 1963 and the amendment is one under the proviso to subsection (5). But different and less liberal standards apply if what is sought by the amendment is the conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Indian Contract Act is invoked. This amendment is under the discipline of Rule 17 Order 6, Code of Civil Procedure. The fact that sub‑section (4), in turn, invokes Section 73 of the Indian Contract Act for the principles of quantification and assessment of compensation does not obliterate this distinction., Support for these conclusions was sought from the oft‑quoted, but perhaps a little misunderstood, case of Ardeshir H. Mama v. Flora Sassoon [AIR 1928 PC 208 : 55 IA 360 : 52 Bom 597]. The passage in Sassoon case relied upon by the Nagpur High Court is this: (AIR p. 256, para 10) In a series of decisions it was consistently held that just as its power to give damages additional was to be exercised in a suit in which the Nagpur High Court had granted specific performance, so the power to give damages as an alternative to specific performance did not extend to a case in which the plaintiff had debarred himself from claiming that form of relief, nor to a case in which that relief had become impossible. The case of Sassoon fell within the first category of cases described above under the alternative relief of damages. This case falls within the second part where the relief of specific performance has become impossible., The second part of the observation of the Nagpur High Court, with great respect to the learned Judges, proceeds on a fallacy resulting from the non‑perception of the specific departure in Indian law. In Lord Cairn’s Act, 1858 damages could not be awarded when the contract had, for whatever reason, become incapable of specific performance. But under Indian law the explanation makes a specific departure and the jurisdiction to award damages remains unaffected by the fact that without any fault of the plaintiff, the contract becomes incapable of specific performance. Indeed, Sassoon case itself indicated the departure made in Indian law by the Explanation in Section 19 of the 1877 Act, which is the same as the Explanation to Section 21 of the 1963 Act. The Judicial Committee, no doubt, said that Section 19 of the 1877 Act embodies the same principle as Lord Cairn’s Act and does not any more than did the English statute enable the Supreme Court of India in a specific performance suit to award compensation for its breach where at the hearing the plaintiff debarred himself by his own action from asking for a specific decree. But what was overlooked was this observation of Lord Blanesburgh: (AIR p. 218) except as the case provided for in the Explanation as to which there is introduced an express divergence from Lord Cairn’s Act, as expanded in England., When the plaintiff by his option has made specific performance impossible, Section 21 does not entitle him to seek damages. That position is common to both Section 2 of Lord Cairn’s Act, 1858 and Section 21 of the Specific Relief Act, 1963. But in Indian law where the contract, for no fault of the plaintiff, becomes impossible of performance Section 21 enables award of compensation in lieu and substitution of specific performance., Similarly, the Supreme Court of India decision in Urmila Devi & Ors v Deity, Mandir Shree Chamunda Devi & Ors is of no assistance to DCHL. The Urmila Devi court followed Jagdish Singh. It too said that where specific performance has become impossible for no fault of the plaintiff, the Supreme Court of India can grant compensation in lieu of specific performance. It did not consider a case where a plaintiff gave up its prayer for specific performance., DCHL never amended its prayers. It never sought any such amendment. It never sought damages in lieu of specific performance; that is only the reading that the Award puts on a completely unambiguous wording of DCHL’s prayer clauses., To grant damages in lieu of specific performance, there had to be (a) a prayer for specific performance; (b) a prayer for damages in lieu of specific performance; (c) a finding returned that DCHL was entitled to specific performance; (d) a further finding returned that specific performance was rendered impossible, though sought; and (e) therefore, damages were awarded in lieu of specific performance, as sought in the claim., Item (b) does not exist, and no amendment was sought to that effect. All that the Award does is (d). It does not address the lack of a prayer (item (b) above), nor does it consider items (c) or (e). There is no finding of readiness and willingness, and no discussion of any proof of it. The Award does not return a finding of DCHL being entitled, on any reasoning or appreciation of evidence, to specific performance. If (b) did not exist, no damages could be granted in those terms, i.e. in lieu of specific performance. Even if (b) existed, once (a) was given up and not pressed, (b) could not be granted; and no Supreme Court of India or arbitrator could proceed to (c), (d) or (e). That is the only reading of the decisions I have just noted. In other words, what the Award grants is compensatory damages, not damages in lieu of specific performance; yet it says to the contrary. Absent a specific finding returned of readiness and willingness, this amounts to a grant of compensatory damages for a party’s inability or failure to perform. That appears to me to fall within the frame of a violation of the fundamental policy of Indian law., The arbitral tribunal may have misinterpreted or wrongly applied the law. That is not a ground for curial intervention. The Ssangyong Engineering principles forbid it. Whatever may be Mr Mehta’s submissions on the correct interpretation of Section 21 of the Specific Relief Act, I cannot possibly upturn the Award on that ground. The point, however, is different. The learned Sole Arbitrator could not possibly have returned a finding that the claim was for damages in lieu of specific performance when there was simply no such prayer. In holding so, the Award proceeds to grant a relief that was never sought. The failure here is fundamental and jurisdictional, granting a relief not sought, and for which no amendment was ever moved., But I will proceed, instead, on the footing that, no matter what the wording, the Award granted damages for compensation for breach (though that is not the wording of either prayer (e) or prayer (h) of the Statement of Claim)., There is an evident error of duplication in the claim. The unpaid or undisbursed amount (withheld by Board of Control for Cricket in India) is claimed twice: first, as DCHL’s share of the Central Rights Income, Rs. 41 crores, Claim 2; and again as item (e) of the larger Claim 3 (Payment due from the respondent). Mr Jagtiani accepts that this is a duplication. Mr Mehta points out that this is so obvious an error that it could hardly have gone unnoticed. At the same time, in its Counter‑Claim, Board of Control for Cricket in India has admitted that some amounts are due to DCHL. The total admitted is Rs. 36,21,20,649/-. The learned Sole Arbitrator found that an amount of Rs.1.83 crores had indeed been paid by Board of Control for Cricket in India on behalf of DCHL. The learned Sole Arbitrator awarded DCHL Rs. 36 crores under Claim No 2 for Rs. 41 crores, and then cross‑awarded Board of Control for Cricket in India Rs.1.83 crores. About this there can be no controversy., This leaves Claim 1 and Claim 3, Issues Nos 5 and 7 for Rs. 630 crores and Rs. 4150 crores respectively., In his written submissions, Mr Jagtiani concedes that Claims Nos. 1 and 3 were wrongly granted and were both part of Claim No.3. The precise statement is this: It is respectfully submitted that while each of the aforesaid claims has been considered independently and distinctly by the learned Arbitrator, the claims in respect of items (a) and (b) above, i.e. Rs. 630 crores towards wrongful termination of the Franchise Agreement and Rs. 41 crores towards Central Rights Income for IPL V have been incorrectly awarded. This is because the said amounts are subsumed within item (c) above, i.e. Rs. 4150 crores for loss of profit and compensation. Thus, items (a) and (b) above could only have been awarded in the alternative to item (c) above and not in addition thereto. In the circumstances, DCHL is not pressing claims 1 and 2 for Rs. 630 crores and Rs. 41 crores. However, it is submitted that the awarding of claims 1 and 2 is an independent portion of the Award, having been dealt with as distinct issues with separate analysis and reasoning and on the basis of distinct material, and thus this portion is clearly severable from the rest of the Award, which is well‑founded and ought to be upheld by this Supreme Court of India., What this in effect says is that both Claims Nos. 1 and 2 were rightly granted, but were granted twice, and are part of Claim No. 3., On the claim for Rs. 630 crores, Mr Mehta submits that the learned Sole Arbitrator erroneously and mistakenly relied on a valuation report produced by DCHL. According to him, the report showed the entire DCHL enterprise valuation at only Rs. 590 crores, with projected income for IPL 2013 at only Rs. 26.05 crores, and therefore it was inconceivable that this enterprise could have suffered a loss of Rs. 630 crores. But this requires a re‑appreciation of evidence and a merit‑based review. That cannot be done. The claim may fail for other reasons, but not on a re‑appreciation of evidence., Claim No 3 is on a different footing. This is the claim for Rs. 4150 crores. As we have seen, it has several sub‑components. I am leaving aside the duplication for Claim Nos 1 and 2, which I noted above, though the Award wholly fails to differentiate or separate this overlap., This is what the Award says regarding this claim: In the Statement of Claim, the Claimant has demanded an amount of Rs. 6046 Crore under the following heads: (a) Loss of profit discounted to 15 years: Rs. 3000 crores (b) loss of value of franchise (calculated at contract value of on‑fire sale of Deccan Chargers franchise): Rs. 1250 crores (c) Actual expenditure over revenue incurred for running the franchise for last five years: Rs. 150 crores (d) Loss of Deccan Chargers brand, along with damage to business reputation, loss to licensing and merchandising and trademark registration: Rs. 650 crores (e) Payment due from the Respondent: Rs. 41 crores (f) Loss of business opportunity: Rs. 50 crores (g) Legal expenses and advisory fees: Rs. 5 crores The Claimant has stated that brand name of the Claimant in the market has been totally and completely destructed and destroyed by illegal acts of Respondent – Board of Control for Cricket in India. In view of order of Termination of Franchise Agreement, reputation and goodwill of the Claimant is being questioned by public at large, by players as well as by International Boards of Cricket. Mr Reddy, in his Affidavit in lieu of examination‑in‑chief asserted that Deccan Chargers is a very valuable brand. He further stated that Claimant DCHL had played a vital role in building and adding brand value of IPL. According to him, had the Franchise Agreement not been illegally terminated by Board of Control for Cricket in India, the Claimant had plans to launch Sports City by the name of The Deccan Chargers Sports City which would have included world‑class Sports Infrastructure. The Claimant also stated that Franchise was permanent and perpetual. Taking into consideration fifteen years profit, the Claimant had claimed Rs. 3000 Crore towards Loss of Profit. For value of Franchise, Claimant has demanded Rs. 1,250 Crore. According to the Claimant, it has spent an amount of Rs. 550 Crore towards expenses for running the Franchise. Contract Value on Fire Sale of Franchise was Rs. 1,250 Crore towards Trademark Registration, Licensing and Merchandising Cost had gone upward of Rs. 100 Crore.
id_404	9	Thus, the Claimant would be entitled to claim more than Rupees 6000 Crore. The Claim is refuted by the Respondent, Board of Control for Cricket in India, which contended that breaches of the Franchise Agreement had been committed by the Claimant and that such breaches compelled the Respondent to terminate the Franchise Agreement. Consequently, the Claimant is not entitled to claim anything from the Respondent. The Respondent also denied the so‑called reputation and goodwill of the Claimant, alleging that the Claimant had committed a default, with or without intention, which resulted in termination of the Franchise Agreement. In any case, the quantification and calculation made by the Claimant are without any basis and therefore ipse dixit; it is not open to the Claimant to make such a demand., I have heard the rival contentions of both sides. In the earlier part of the Award, I held that the Franchise Agreement was not for a fixed period. It was executed in 2008 and, had it not been terminated prematurely, it would have continued. I also held that, apart from the fact that the Franchise Agreement could not have been terminated before 15 September 2012, by that date the Claimant had remedied the alleged defects/defaults. Hence, even on merits, Board of Control for Cricket in India was not justified in terminating the Franchise Agreement. Termination of the Franchise Agreement would certainly have had an adverse effect on the reputation and goodwill of the party against whom such an action is taken; therefore, the termination adversely affected the Claimant’s reputation and goodwill., I have also considered the deposition of Cross‑Examination Witness 4 and the Comprehensive Valuation Report along with its annexures produced by him. The report shows that the Claimant’s franchise was growing year to year. The projection of growth is based on past performance and future prospects of the franchise. It cannot be disputed that the growth of the franchise was good and that prospects of further growth existed., It has also come on record that after the illegal termination of the Franchise Agreement, the franchise was sold to Sun TV Network. Two fresh entrants, Pune Warriors and Kochi Tuskers, entered the league and paid Rupees 1513 Crore and Rupees 1681 Crore respectively. From this fact, the value of the Claimant’s franchise can be reasonably assessed. Considering the growth potential of the franchise and the subsequent sale of the franchise to the two new entrants at the stated amounts, the figure of compensation or damages payable to the Claimant – Deccan Chargers Holding Ltd – can be reasonably assessed. It cannot be disputed that the goodwill of the Claimant was lost because of the illegal termination of the Franchise Agreement by the Respondent. The Claimant would also be entitled to compensation for loss of goodwill and loss of reputation., Having considered all the facts and circumstances, in my opinion, ends of justice would be served if I grant the claim of the Claimant in part and direct the Respondent to pay to the Claimant an amount of Rupees 4150 Crore (Rupees Four Thousand One Hundred and Fifty Crore Only) under this claim., Given the break‑up provided by Deccan Chargers Holding Ltd, this kind of omnibus and undifferentiated award was not possible without reasons under each head. Although a lump‑sum award is permissible, the reasons for each component were different and had to be dealt with. The Award references the comprehensive valuation report produced by Deccan Chargers Holding Ltd, which gave an enterprise value of Rupees 590 Crore, taking into account projections for future income and cash flows, the business plan, the bids for Kochi Tuskers and Pune Warriors, and the amount of Rupees 41.6 Crore withheld. Yet the learned Sole Arbitrator awarded Rupees 4150 Crore. Even if Rupees 630 Crore (Claim No.1) is subsumed in this, we do not know how or under what precise component of Claim No.3 this falls., If we look at the components, there is no discussion of any evidence and no reasons for accepting any of the amounts under any component. We do not know, for instance, whether the entire loss‑of‑profits claim for Rupees 3000 Crore was granted as a component of the award of Rupees 4150 Crore. The same applies to the claim component for loss of the value of the franchise, item (b), for Rupees 1250 Crore. The total of these two components is Rupees 4250 Crore. Adding the subsumed Claim No.1 of Rupees 630 Crore gives Rupees 4880 Crore, not the amount awarded. Therefore, some amount was reduced, but the award provides no explanation as to why or on what evidence., Mr Jagtiani suggests that the award of Rupees 4150 Crore was computed by multiplying Rupees 200 Crore by 15 years to yield Rupees 3000 Crore (loss of business and profits) and then adding Rupees 1250 Crore of loss of contract value. That is not stated in the award; the award does not say this at all, nor does it provide any disclosed basis for the amount awarded. Consequently, the total is not Rupees 4150 Crore but Rupees 4250 Crore, and the award lacks any reasoning for the discrepancy., Even if there is no accurate method to compute damages for loss of reputation, this does not mean that the principles underlying Section 73 of the Indian Contract Act can be totally disregarded. On the question of loss of reputation, two aspects are required: proof of reputation (its existence) and proof of its loss. Both are questions of fact that must be proved. The award simply assumes that a reputation existed and was lost without any evidence or reasons, which is insufficient., A loss of reputation also requires causality – that because of Board of Control for Cricket in India’s termination, Deccan Chargers Holding Ltd lost a reputation it otherwise had. This required Deccan Chargers Holding Ltd to show the reputation it possessed and then demonstrate the damage to it, and such findings must be reflected in the award itself., It is non‑contentious that any award of general damages for breach requires some level of estimation or guesswork once a breach is proved. The learned Sole Arbitrator relied on EMCO Ltd v Malvika Steel Ltd & Ors, which allows an arbitrator to make an honest estimation of damages once a breach is proved, but the assessment must be fair and must be supported by reasons. Simply plucking a number out of thin air will not do., Similarly, the decision of the Supreme Court of India in Union of India v Vaman Prestressing Co Ltd & Anr held that a broad evaluation of loss of profits is possible, but the figure must be reasonable. The award does not identify the loss‑of‑profit component, render any analysis, or provide reasons, thereby violating the requirement for intelligible and adequate reasoning., We do not know from this award why Deccan Chargers Holding Ltd’s own valuation report figures were set aside in favour of some other unspecified evidence. Nothing is discussed about the methodology of the valuation report, nor is there any analysis of discounting future income projections, which is a common accounting practice for a 15‑year income spread., Merely referencing the entirety of the evidence is insufficient. An arbitral award demands far greater attention to minutiae and detail than a civil trial court. The principle of minimal curial intervention cannot be a licence for an arbitral tribunal to render unreasoned awards on pure speculation, leaving reasons to the imagination., Mr Jagtiani’s submissions say the learned Sole Arbitrator could have taken one of four approaches to assess damages, but the award provides no basis for any of these approaches. For example, he suggests taking comparative franchise bid amounts of Rupees 1500 Crore or Rupees 1700 Crore, or the mean of these numbers, yet the award is silent on this and provides no disclosed basis for the amount awarded., The only figures we have are three: Rupees 630 Crore from the valuation report, Rupees 1513 Crore and Rupees 1681 Crore (the bids of Pune Warriors and Kochi Tuskers). The total is Rupees 3824 Crore, not Rupees 4150 Crore. We do not know under what head the remaining amount was awarded, nor whether the whole of the bids were taken. The award lacks proper reasons and is unintelligible., The law requires that the award must have reasons, and the reasons must be proper, intelligible and adequate. It is impermissible for a party to supply the reasons an award is supposed to contain. Either the award under challenge has reasons, in which case a Section 34 court will not enter into a merit‑based review, or it does not, in which case the award fails., The entire award of damages under Claim 3 is therefore without reasons. It is patently illegal and perverse. I exclude from this Claim No.2 (said to have been subsumed in Claim No.3 but without any specific differentiation)., If the finding that Board of Control for Cricket in India’s termination was bad fails, no award of damages can arise under any head. I also exclude the recovery aspect of Claim No.2, for the reasons indicated earlier. The award for Rupees 36 Crore against Board of Control for Cricket in India, less the amount of Rupees 1.83 Crore, cannot be disturbed., In view of this discussion, I do not find it necessary to address questions of severability or the court’s power to modify an award. Claim No.2 can be severed, but that is all., Deccan Chargers Holding Ltd’s arguments fall in two parts. First, there is an attempt to glean reasons from the award, which the award itself does not contain. The award speaks for itself; a Section 34 court will not assess the sufficiency of reasons. I have indicated the areas where reasons are necessary but absent, and I accept that the reasons must be proper, intelligible and adequate., It is entirely impermissible for a party to supply reasons that the award does not contain. The submission that on 27 June 2012 Board of Control for Cricket in India paid Rupees 15 Crore to each franchisee except Deccan Chargers Holding Ltd, who received nil towards Central Rights Income, is not reflected in the award. The chart and table relied upon are not referenced in the award, nor is any oral testimony., Similarly, references to charges created in favour of Kotak and other lenders, and the alleged withdrawal of those charges, are not mentioned in the award. The award does not indicate that the learned Sole Arbitrator considered Kotak’s letter or the other documents., The co‑relation submission does not mention the banks that had not withdrawn their claims, including Canara Bank and Ratnakar Bank. This lacuna in reasoning remains unexplained., The submission further asserts that the learned Sole Arbitrator held that, as on 15 September 2012, there was no dispute pending between IFCI and Deccan Chargers Holding Ltd and no insolvency event existed. This finding is not present in the award. The award does not discuss the consent terms filed, the winding‑up petition, or the application of Sections 27 and 28 of the Indian Contract Act., In the damages section, the submission references oral testimony, the valuation report and other evidence, but the award says nothing of the kind. There is no discussion of costs, expenses, or proceedings, and no evidence is cited., A Section 34 court cannot examine the reasonableness of reasons in the award, but it must examine whether reasons exist. That is a requirement of the Arbitration Act., Mr Mehta complains that interest at ten per cent per annum could not have been awarded as interest pendent lite on damages. Deccan Chargers Holding Ltd has not even sought interest on damages. However, the amount of Rupees 36 Crore less Rupees 1.83 Crore must carry interest if seen as a recovery claim. There is no contractual provision barring pendent‑lite interest, so the provisions of Section 31(7)(a), as interpreted by the Supreme Court of India in Jaiprakash Associates Ltd v Tehri Hydro Development Corporation Ltd, will apply., Taking a step back, there were three defaults: not paying players and others, creating charges on assets, and the insolvency event (the IFCI winding‑up petition). The contract said the first two were curable; if uncured, they invited termination. The third could trigger immediate termination. Not one of the three is convincingly shown to have been cured; all three continued. The award proceeded in places without reasons, ignored evidence, and took views that were not possible, effectively rewarding the party in breach of its contractual obligations., There is no cogent answer to this petition. Except to the limited extent of the award in favour of Deccan Chargers Holding Ltd for Rupees 36 Crore less Rupees 1.83 Crore, and interest on that amount, the award dated 17 July 2020 is set aside. The arbitral award of costs of Rupees 50 Lakhs must also be set aside., This is a matter in the Commercial Division, governed by the Commercial Courts Act, 2015. That Act amended, inter alia, Section 35 of the Code of Civil Procedure, 1908 on the matter of costs. The general principle in Section 35(2) is that costs must follow the event.
id_404	10	The losing party should generally be ordered to pay costs; if not, reasons are required. But that is discretionary. I can see no reason to refuse an order of costs. Mister Mehta leaves the question of costs to my discretion. He declines to submit a statement of costs. That is his and his attorneys prerogative. In fact, Mister Mehta says that costs may be a token amount. Perceptions on that will differ. Having regard to the expenses, the number of days of hearing, and the enormous volume of documentation Board of Control for Cricket in India has had to put together, I believe an order of costs of Rupees ten lakhs is reasonable. Board of Control for Cricket in India will, of course, deduct this from the amount payable by it to Deccan Chronicle Holding Ltd, as above., One final issue remains. I believe Deccan Chronicle Holding Ltd has since faced insolvency proceedings under the Insolvency and Bankruptcy Code, 2016. If Board of Control for Cricket in India cannot make payment to Deccan Chronicle Holding Ltd directly on account of any statutory embargo or order of a court or authority, Board of Control for Cricket in India will be required to make payment to Deccan Chronicle Holding Ltd's successor in title or the authority or entity entitled in law to receive the amount, viz. Rupees thirty‑six crores, less Rupees one point eight three crores and less Rupees ten lakhs (which I have awarded in costs in this order), making a net total without interest, in my reckoning, of Rupees thirty‑four point zero seven crores. The costs of Rupees ten lakhs for this matter will not carry interest. The remainder, Rupees thirty‑six crores less Rupees one point eight three crores, i.e. Rupees thirty‑four point one seven crores, will carry interest as per the Award., The petition is disposed of in these terms. I must convey my gratitude to Mister Mehta, Mister Jagtiani, Mister Seervai, Mister Sharan Jagtiani, Miss Rishika Harish for their invaluable assistance and their patience. Both sides were meticulous in compiling this record digitally in an organized, methodical and accessible form. It should serve as a template in all matters. I must, in particular, make special mention of Miss Rishika Harish for her quite astonishing mastery of this voluminous record., For statistical purposes, the petitioners' attorneys will get the petition finally numbered, with all filing defects cured, within three weeks from today. All concerned will act on production of an ordinary copy of this order.
id_405	0	Dated this the 18th day of January, 2022. As the appeals arise out of the common award in Original Petition (Motor Vehicle) Nos. 1055, 1056 and 1057 of 2002 of the Motor Accidents Claims Tribunal, Thalassery (in short 'Tribunal'), they are being decided together. The parties are, wherever the context so requires and for the sake of convenience, referred to as per their status in the factual matrix., Madhavan, his wife Meera and their two daughters Latha and Smitha were residents of Gujarat. They decided to relocate to their native place at Mattannur in Kannur District. The four of them left Gujarat for Mattannur in a car driven by Madhavan. On 8 July 2001, at about 6.45 p.m., while the car was manoeuvring a steep gradient at Nagar Cross, Kumta Taluk, Karnataka State, a van moving downhill from Ankola to Kumta, driven by the first respondent in a negligent manner and at excessive speed, collided with the car. Madhavan and Latha suffered fatal injuries and died before reaching Kumta Taluk Hospital. The car was extensively damaged. Meera and Smitha survived unscathed., In the above state of affairs, Meera, Smitha and the mother of Madhavan, Janaki (hereinafter referred to as 'petitioners'), filed Original Petition (Motor Vehicle) Nos. 1056 and 1055 of 2002 before the Tribunal, against the driver, owner and insurer of the van and the insurer of the car (hereinafter referred to as 'respondents'), seeking compensation for the death of Madhavan and for the damages caused to the car. Meera also filed Original Petition (Motor Vehicle) No. 1057 of 2002 against the respondents, seeking compensation for the death of her daughter Latha., The petitioners have filed the claim petition against the respondents, seeking an amount of Rs. 29,20,000 as compensation for the death of Madhavan. They have pleaded that Madhavan was aged 50 years at the time of the accident, was a healthy and able‑bodied person, an engineer by profession and earned a monthly income of Rs. 25,000. The appellants were the dependents of the deceased and had no independent income of their own. The accident happened due to the rash and negligent driving of the van by the first respondent. The van bearing registration No. KA‑30/630 was owned by the second respondent and insured with the third respondent. The car was insured with the fourth respondent. The respondents were jointly and severally liable to pay the petitioners the compensation amount., The petitioners have filed the claim petition reiterating the same pleadings in Original Petition (Motor Vehicle) No. 1056 of 2002, claiming an amount of Rs. 60,000 as damages caused to the Maruti car bearing registration No. GBT/9744 belonging to Madhavan., The second petitioner Meera has filed the claim petition against the respondents, on the same pleading as in Original Petition (Motor Vehicle) No. 1056 of 2002, claiming an amount of Rs. 3,00,000 as compensation for the death of Latha, who was a 17‑year‑old student., The respondents 1 and 2 have not contested any of the claim petitions and have been set ex parte., The third respondent, the insurer of the van, has filed separate counter‑statements in the three claim petitions. The third respondent contended that the accident occurred due to the negligence of Madhavan, who attempted to overtake a rickshaw while moving uphill and the car collided with the van. It argued that there was no negligence on the part of the first respondent and therefore the third respondent is not liable to pay compensation., The fourth respondent, insurer of the car, has also filed separate written statements in the claim petitions stating that as the car was covered only by an 'Act Policy', the fourth respondent is to be totally exonerated., The Tribunal consolidated and jointly tried the three claim petitions., The petitioners and the surveyor who prepared Ext. A21 survey report were examined as witnesses and Exts. A1 to A25 were marked through them in evidence. The third respondent produced the charge‑sheet laid by the police, marked as Ext. B1. The fourth respondent produced the insurance policy of the car, marked as Ext. B2., The Tribunal, by the impugned common award, allowed the three claim petitions in part but found that Madhavan had also contributed to the accident. Consequently, 50 % of the compensation amount awarded in the three claim petitions was deducted. Accordingly, the petitioners are permitted to recover from the third respondent an amount of Rs. 4,60,000 as compensation for the death of Madhavan; Rs. 95,000 as compensation for the death of Latha; and Rs. 24,000 as damages for the car., Aggrieved by the finding of contributory negligence attributed against Madhavan and dissatisfied with the quantum of compensation awarded in the three claim petitions, the petitioners filed appeals numbered 2476/2008, 2481/2008 and 2483/2008., After the passing of the award, the first petitioner passed away. Her legal representative has been impleaded as the fifth respondent in the three appeals. During the pendency of the appeals, the first respondent also died. His legal representatives have been impleaded as additional respondents 6 and 7 in the appeals., Heard: Sri. K. C. Santhosh Kumar, learned counsel for the appellants; Sri. Rajan P. Kaliyath, learned counsel for the third respondent; and Sri. P. G. Ganappan, learned counsel for the fourth respondent., Sri. Santhosh Kumar argued that the finding of contributory negligence attributed against Madhavan is patently erroneous. Even though the third respondent produced the final report, the same has been discredited by witnesses 1 and 2, who were eyewitnesses to the accident. Moreover, the respondents have not led any evidence to controvert the pleadings and materials on record. Therefore, the finding of contributory negligence has to be set aside. He also contended that the Tribunal failed to award reasonable and just compensation, including future prospects and compensation under the conventional heads, and that the multiplier of 11 adopted for the death of Madhavan is wrong. Hence, the appellants are entitled to enhancement of compensation in all the appeals., Sri. Rajan P. Kaliyath defended the common award. He argued that the finding of contributory negligence against Madhavan was justifiable as Ext. B1 charge‑sheet was laid against him. He supported the Tribunal's view that the oral testimonies of witnesses 1 and 2 were interested because they were beneficiaries of the award and therefore Ext. B1 charge‑sheet overrides their testimonies. He submitted that the Tribunal awarded reasonable and just compensation under all heads in all the claim petitions and that there are no grounds to enhance the compensation. He also defended the multiplier of 11 adopted by the Tribunal for Madhavan, who had crossed the age of 50 years, and submitted that all the appeals be dismissed., The points that emanate for consideration in the appeals are: (i) whether the finding of contributory negligence attributed against Madhavan is sustainable in law; (ii) whether the multiplier of 11 adopted by the Tribunal in Original Petition (Motor Vehicle) No. 1056 of 2002 is correct; (iii) whether the quantum of compensation fixed in Original Petition (Motor Vehicle) No. 1056 of 2002 is reasonable and just; (iv) whether the quantum of compensation fixed in Original Petition (Motor Vehicle) No. 1057 of 2002 is reasonable and just; and (v) whether the quantum of compensation fixed in Original Petition (Motor Vehicle) No. 1055 of 2002 is reasonable and just., The petitioners contend that the accident occurred due to the negligence of the first respondent, who drove the van at dangerous speed and without observing traffic rules. They assert that if the first respondent had exercised due care and caution, the accident could have been averted. To substantiate their pleading, witnesses 1 and 2 testified that as the car was moving uphill, the van came downhill at breakneck speed and hit the right side of the car. The petitioners produced Ext. A1 First Information Report registered by the Kumta Police in crime No. 110/2001 to prove their case., The third respondent pleaded that the accident happened due to the negligence of Madhavan, who attempted to overtake a rickshaw while moving uphill, and produced Ext. B1 charge‑sheet to support its contention., The Tribunal, after rejecting the oral testimonies of witnesses 1 and 2 on the ground that they were interested witnesses, accepted Ext. A1 FIR without corroboration and concluded that the accident occurred due to the negligence of the drivers of both vehicles., In National Insurance Company Ltd. v. Chamundeswari and others [(2021) 489 SCC 489], the Supreme Court of India declared that if any evidence recorded before the Tribunal runs contrary to the contents of the First Information Report, there is no reason to give weightage to the FIR., In New India Assurance Co. Ltd. v. Pazhaniammal [(2011) 3 KLT 648], a Division Bench of the Kerala High Court held, as a general rule, that the production of the charge‑sheet is prima facie sufficient evidence of negligence for a claim under Section 166 of the Motor Vehicles Act. If any party disputes the charge‑sheet, the burden is on that party to adduce oral evidence and discredit the charge‑sheet., Again, in Sampath M. P. and others v. Binu and others [2020 KHC 444], this Court held that if the Tribunal feels that the charge‑sheet does not satisfy its judicial conscience, it may record its reasons and call upon the parties to lead oral evidence., The third respondent produced Ext. B1 charge‑sheet, wherein the police found that the accident occurred due to the negligence of the drivers of both vehicles., I have meticulously evaluated Ext. B1 charge‑sheet, which is claimed to be the English translation of the charge‑sheet without the original annexed. The police stated that the drivers of both vehicles were negligent in causing the accident, but the manner in which the police arrived at this conclusion is not made out from Ext. B1. Ten witnesses are named in the charge‑sheet, but the relevant supporting materials, i.e., the statements of the witnesses, AMVI reports, the scene photographs or the vehicle photographs, have not been appended., Conversely, witnesses 1 and 2, who were eyewitnesses to the accident, deposed that the accident happened due to the negligence of the first respondent who came downhill at high speed and hit the right side of the car which was moving uphill. Their testimony is more probable because the van was coming downhill and there is extensive damage on the right side of the car, as evidenced from Ext. A21 survey report. The respondents 1 and 2 have not contested the claim petitions, and the third respondent has not led oral evidence to corroborate its bare assertion that the accident happened due to the negligence of Madhavan. The third respondent has also not examined any of the eyewitnesses mentioned in Ext. B1 charge‑sheet. In view of the credence given to the oral testimonies of the above witnesses, Ext. B1 charge‑sheet has fallen into insignificance., A claim petition under Section 166 of the Motor Vehicles Act has to be decided on the touchstone of preponderance of probability and not on the litmus test of beyond reasonable doubt., On the basis of the overwhelming evidence in favour of the petitioners, I am of the definite view that the finding attributing negligence to Madhavan is erroneous and wrong. Therefore, I set aside that finding and hold that the accident happened due to the negligence of the first respondent., Since the third respondent has admitted the insurance policy and has not proved that the second respondent violated the policy conditions, the third respondent is to indemnify the liability of the second respondent arising out of the accident. Consequently, the third respondent is liable to pay the compensation amounts as per the impugned common award as well as the enhanced compensation, if any, to be determined herein., After divergent views expressed by several courts regarding the selection of the multiplier in a claim petition filed under Section 166 of the Motor Vehicles Act, the Supreme Court of India in Sarla Verma and others v. Delhi Transport Corporation [(2009) 6 SCC 121], affirmed by a three‑Judge bench in Reshma Kumari and others v. Madan Mohan [(2013) 9 SCC 65] and approved by a Constitutional Bench in National Insurance Company Limited v. Pranay Sethi and others [(2017) 16 SCC 680], laid down the multiplier to be adopted for the deceased/injured persons falling in the age group of 16 to 66 and above., Madhavan was born on 1 July 1951, as evident from Ext. A11. On the date of the accident, 8 July 2001, Madhavan had completed 50 years and 7 days., Sri. Rajan P. Kaliyath argued that since Madhavan had completed the age of 50 years and was running 51, the multiplier of 11 adopted by the Tribunal is correct. He also contended that, if the above interpretation is not followed, there would be a vacuum in the age group between 50‑51 years., In Sarla Verma the Supreme Court finalised the multiplier to be followed by segregating persons falling in the age group of 16 to 66 into eleven categories as shown in the table extracted above., It is settled in Amrit Bhanu Shali and others v. National Insurance Company Limited [(2012) 11 SCC 738] and a host of other precedents that the age of the deceased/injured is the quintessence to select the multiplier., In Shashikala and others v. Gangalakshmamma [(2015) 9 SCC 150] the Supreme Court, while selecting the multiplier of a deceased who had completed the age of 45 years, held that the appropriate multiplier is 14 and not 15., A reading of the table in Sarla Verma leaves no room for speculation that the multiplier shifts from 13 to 11 only when the deceased/injured completes the age of 51 years, and not when the deceased attains the age of 50 years and runs into the next year. The sine qua non to select the multiplier is the attainment of the specified age mentioned in the table, not the running of the age into the next group. In Pranay Sethi the age for awarding future prospects is segregated into three groups i.e., 16‑39, 40‑49 and 50‑59. Accepting the learned counsel’s argument would create similar vacuums at ages 25, 30, 35, 40, 50, 55, 60 and 65 for selecting the multiplier and ages 39, 49 and 59 for awarding future prospects. This Court is bound to follow the law declared by the Supreme Court of India under Article 141 of the Constitution of India., In view of the above discussion and as Madhavan had only completed 50 years and 7 days, and had not attained the age of 51 years, the relevant multiplier to be selected is 13 and not 11 as wrongly applied by the Tribunal. Hence, I set aside the finding of the Tribunal in this regard and adopt the multiplier of 13 in Original Petition (Motor Vehicle) No. 1056 of 2002., The petitioners have pleaded that Madhavan was an engineer by profession and drew a monthly income of Rs. 25,000. To prove their case, they produced Ext. A8 series income‑tax acknowledgment forms for the assessment years 1998‑1999 and 1999‑2000. As per Ext. A8, Madhavan had an annual income of Rs. 1,10,298 and Rs. 1,16,310 for the above years. The Tribunal, based on Ext. A8, fixed the monthly income of the deceased at Rs. 10,000. There is no other material to prove that Madhavan was earning more than Rs. 10,000 per month. Hence, I confirm the finding that Madhavan had earned an income of Rs. 10,000 per month., In view of the findings on point (ii), the multiplier of 13 is the correct multiplier to be applied., The petitioners were the mother, wife and daughter of Madhavan, three persons in number. Following the principles in Sarla Verma and Pranay Sethi, one‑third of the compensation for loss of dependency has to be deducted towards the personal living expenses of Madhavan., In light of the law laid down in Sarla Verma and Pranay Sethi, and considering that Madhavan was aged 50 years at the time of his death, the petitioners are entitled to future prospects at 10 % of the loss of dependency., Taking into consideration the monthly income of Rs. 10,000, the multiplier of 13, future prospects at 10 % and after deducting one‑third for personal living expenses, I refix the compensation for loss of dependency at Rs. 11,44,000, instead of Rs. 8,80,000 awarded by the Tribunal., In paragraph 59.8 of Pranay Sethi it is held that the dependents of the deceased are entitled to compensation under the conventional heads viz. funeral expenses Rs. 15,000, loss of estate Rs. 15,000 and loss of consortium Rs. 40,000 per dependent, each amount to be enhanced by 10 % every three years., The Supreme Court of India in N. Jayasree v. Cholamandalam M.S. General Insurance Co. Ltd. [(2021) 967 SCC] and Rasmita Biswal v. National Insurance Co. Ltd. [(2021) 1193 SCC] granted a 10 % escalation on the conventional heads for accidents that happened in 2011 and 2013 respectively. It is to be construed that the 10 % escalation is to be granted every three years from the date of the judgment in Pranay Sethi (31 October 2017). Accordingly, after 31 October 2020, the amounts are Rs. 16,500 each for funeral expenses and loss of estate and Rs. 44,000 for loss of consortium., In the instant case, the Tribunal awarded Rs. 2,000 towards funeral expenses, Rs. 2,500 towards loss of estate and Rs. 15,000 towards loss of consortium. Therefore, I award the appellants a further amount of Rs. 14,500 towards funeral expenses, a further amount of Rs. 14,000 towards loss of estate and a further amount of Rs. 73,000 towards loss of consortium., The Tribunal awarded Rs. 10,000 under the head 'loss of love and affection'. The Supreme Court of India in New India Assurance Co. v. Somwati [(2020) 9 SCC 644] held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection' as it would amount to duplication. Therefore, I set aside the amount of Rs. 10,000 awarded under that head., The Tribunal awarded Rs. 5,000 under the head 'pain and suffering'. In paragraph 19 of Sarla Verma, the Supreme Court of India held that no amount shall be awarded to the dependents of the deceased under the head 'pain and suffering' in cases of instantaneous death. This view has been reiterated in United India Insurance Co. Ltd. v. Satinder Kaur [(2020) 410 SCC]. Hence, I set aside the amount of Rs. 5,000 awarded under that head as Madhavan died immediately after the accident., With respect to the compensation awarded under the head 'transportation expenses', I find the same to be reasonable and just., On a comprehensive re‑appreciation of the pleadings, materials on record and the law referred to in the aforesaid precedents, I hold that the appellants/petitioners 2 and 3 are entitled to enhancement of compensation as modified and recalculated below:\n\n1. Transport to hospital: Rs. 5,000 (as awarded) \n2. Funeral expenses: Rs. 16,500 \n3. Loss of consortium: Rs. 88,000 \n4. Loss of estate: Rs. 16,500 \n5. Loss of love and affection: Nil \n6. Loss of dependency: Rs. 11,44,000 \n7. Pain and suffering: Nil \n\nTotal: Rs. 12,70,000., Thus, point (iii) is answered in favour of the appellants by awarding them a further amount of Rs. 3,50,500 with interest and costs as ordered in the operative portion of this judgment., The second petitioner averred that Latha was an 18‑year‑old student and claimed an amount of Rs. 3,00,000 as compensation. The Tribunal, after fixing the notional monthly income of Latha at Rs. 1,500 and adopting the multiplier of 15, awarded Rs. 1,80,000 for loss of dependency and a further Rs. 9,500 under the heads funeral expenses, loss of estate and pain and suffering, totalling Rs. 1,90,000., In Kuruvan Ansari v. Shyam Kishore Murmu [(2021) 1060 SCC] the Supreme Court, following Kishan Gopal v. Lala [(2014) 1 SCC 244], fixed the notional income of a ten‑year‑old child at Rs. 30,000 per annum and adopted the multiplier of 15., Latha was born on 15 December 1983 and was 17 years of age at the time of her death. Applying the principles in Kuruvan Ansari and Kishan Gopal, I fix the notional income of Latha at Rs. 30,000 per annum and adopt the multiplier of 15, which works out to Rs. 4,50,000. I also award the appellant compensation under the conventional heads as discussed in point (iii) and a further amount of Rs. 14,500 towards funeral expenses, Rs. 14,000 towards loss of estate and Rs. 44,000 towards loss of consortium., I set aside the amount of Rs. 5,000 awarded under the head 'pain and suffering'., Accordingly, point (iv) is answered in favour of the second petitioner by enhancing the compensation as modified and recalculated below:\n\n1. Funeral expenses: Rs. 16,500 \n2. Loss of consortium: Rs. 44,000 \n3. Loss of estate: Rs. 16,500 \n4. Loss of dependency: Rs. 4,50,000 \n5. Pain and suffering: Nil \n\nTotal: Rs. 5,27,000 (rounded off to Rs. 5,27,000)., Although the appellant/second petitioner claimed Rs. 3,00,000 as compensation, following the ratio decidendi in Kuruvan Ansari and Kishan Gopal and the principles in Sarla Verma and Pranay Sethi, I have awarded more compensation than claimed. This course is admissible in light of the law laid down in Nagappa v. Gurudayal Singh [(2003) 1 KLT 115 (SC)] and Rajesh v. Rajbir Singh [(2013) 3 KLT 89 (SC)]., In the result, point (iv) is answered in favour of the second petitioner by holding that she is entitled to a further amount of Rs. 3,37,000 with interest and costs as ordered in the operative portion of this judgment., The petitioners have claimed Rs. 60,000 as damages to the car. They examined witness 3 to prove Ext. A21 survey report. The Tribunal, based on the survey report, awarded Rs. 48,000 but deducted 50 % towards contributory negligence of Madhavan and granted Rs. 24,000., Ext. A21 shows that witness 3 assessed the net liability of the insurer at Rs. 48,000 and fixed the salvage value at Rs. 3,000, which was not taken note of by the Tribunal. Therefore, the appellants are entitled to Rs. 45,000 as per Ext. A21. As the petitioners themselves relied on Ext. A21, they cannot aspire to any amount more than that fixed in Ext. A21. Hence, I hold that the appellants are entitled to a total amount of Rs. 45,000, after setting aside the finding of contributory negligence, with interest and costs as mentioned in the operative portion of the judgment., Accordingly, the appeals are allowed as follows:\n\n1. Original Petition (Motor Vehicle) No. 1056 of 2002 is allowed by permitting the appellants to recover from the third respondent Rs. 4,59,750 (50 % of the amount deducted towards contributory negligence) and Rs. 3,50,500 as enhanced compensation, totalling Rs. 8,10,250 (Rupees Eight Lakh Ten Thousand Two Hundred and Fifty only), with interest at 7 % per annum from the date of petition till realisation and proportionate costs.\n2. Original Petition (Motor Vehicle) No. 1057 of 2002 is allowed by permitting the appellant to recover from the third respondent Rs. 95,000 (50 % of the amount deducted towards contributory negligence) and Rs. 3,37,000 as enhanced compensation, totalling Rs. 4,32,000 (Rupees Four Lakh Thirty‑Two Thousand only), with interest at 7 % per annum from the date of petition till realisation and proportionate costs.\n3. Original Petition (Motor Vehicle) No. 1055 of 2002 is allowed by permitting the appellants to recover from the third respondent Rs. 45,000 (Rupees Forty‑Five Thousand only), with interest at 7 % per annum from the date of petition till realisation and proportionate costs.\n\nThe third respondent is ordered to deposit the compensation amounts as ordered in the three appeals before the Tribunal within sixty days from the receipt of the certified copies of the judgments.
id_405	1	Motor Accident Claims Authority Nos 2476, 2481 and 2483 of 2008 (v) Immediately on the compensation amounts being deposited, the Motor Accident Claims Authority Tribunal shall disburse the deposited amount totally to the appellant in MACA No. 2483 of 2008 and in equal shares to the appellants in MACA Nos 2476 and 2481 of 2008.
id_407	0	Suresh Kevalram Khemani and others, Applicants, versus Central Bureau of Investigation, Economic Offences Unit I and others, Respondents. Mister Aabad Ponda, Senior Advocate, with Mister Nilesh Tribhuvan, Mister Burzin Bharucha, Mister Sanjay Rege, Mister Kaushal Popat, with Miss Jhanavi Shah in behalf of Miss Alisha Pinto for the Appellant. Mister Kuldeep Patil for the Respondent Number 1 Central Bureau of Investigation. Mister S. R. Agarkar, Additional Public Prosecutor for the State/Respondent., The Criminal Revision Application was placed before the Supreme Court of India for the first time on 23/08/2023 and on that date, continuing the interim relief, it was directed to be listed on 24/08/2023. On the next date of hearing, it was directed to be listed on 14/09/2023 at 2.30 p.m., as matters which normally involve considerable time are taken up at that hour. Accordingly, the Revision Application is listed today., In the interregnum, precisely four days earlier, a communication addressed to me, with the cover reflecting my name M. M. Salgaonkar, uploaded on 14/09/2023 and downloaded on 15/09/2023 at 17:49:52, from one Hiten Takkar, Plot No. 16, Subhash Road, Vile Parle (East), Mumbai 400057, was received at my residence in Mumbai in my absence and handed over to me in the evening, pursuant to my return from the Court functioning. Upon opening the envelope, I discovered a communication signed by Shri Hiten Takkar concerning the Criminal Revision Application scheduled for hearing today. The opening paragraph informs that my predecessor judge recused himself and that the matter was subsequently listed before another bench, with the interim relief continued illegally. Although I do not deem it appropriate to refer to the contents of the letter, it is definitely indicative that favour or some benevolence is either done or attempted to be done in favour of the Applicants on monetary terms. A request is therefore made to dismiss the case and take the accused for trial., Upon receipt of the letter, the options open to me are either to recuse myself from the matter or to continue with it, ignoring the accusations of bias. Judicial impartiality is the most significant facet of justice and there can be no doubt that a judge is expected to decide the legal disputes placed before him free of any personal bias or prejudice. A judge may be impartial, but if a perception is carried by one party that he is not, then recusal is the only option. In such a situation, it is expected for a judge to consider what might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on merit and whether there is logical and sufficient communication between the circumstances and the apprehension. The standard of recusal is one of real and not remote possibility rather than probability. Bias definitely operates in such an insidious manner that a person may be quite unconscious of its effect., Upon reading the letter, I may now lack the imperative requirement of being part of a manifestly independent decision‑making process, as justice must not only be done, but must be seen to be done. I should have a clear conscience that I am still independent and capable of discharging my duty in deciding the case, uninfluenced by the communication addressed to me. The decision is ultimately left to me and, since I am bound by the oath of my office and the promise of dispensing fair and impartial justice without fear and favour, affection or ill will— which are the enemies of an independent decision‑making process— I deem it appropriate to recuse myself not because I have been asked to decide one way, but because I feel it necessary to avoid further accusations of favour being shown. If I were to dispel the accusations, I might be compelled to decide the other way, which could even mean injustice to one of the parties. At this stage, I deem it appropriate to quote the words of Justice Venkatachaliah in Ranjit Thakur versus Union of India: the proper approach for the judge is not to look at his own mind and ask himself honestly, “Am I biased?” but to look at the mind of the party before him., Recusal definitely cannot be used as a tool to manoeuvre justice, as a means of bench hunting or forum shopping, or as an instrument to evade judicial work. It is not for the first time that communications casting aspersions are addressed to dispensers of justice, sometimes with a specific intent of picking benches of the party’s choice and at times as a mode of browbeating the system. It was open for me to recuse without disclosing the reason, but it is high time that some accountability is attributed to the disgruntled elements who continue to haunt the system by their unscrupulous acts and walk away without waiting for consequences of their intimidating action, once the judge recuses from the matter. It is time to show that the system continues its unfailing loyalty to justice., In the peculiar facts, I deem it appropriate to take the communication received in an envelope on record by marking it as Exhibit I and forward the same to the Judicial Registrar in a sealed envelope to be retained by him until appropriate actions are issued. The Judicial Registrar shall make available the copy of the same along with the envelope to Mister Kuldeep Patil, the learned counsel appearing for the Central Bureau of Investigation, who shall bring it to the notice of the Central Bureau of Investigation Headquarters, Mumbai, with the expectation that it shall take cognizance of this judicial impropriety by conducting a necessary inquiry, as the sender has disclosed his name and address on the envelope and in the communication., At this stage, the learned senior counsel Mister Ponda would assertively submit that the attempt by the person who addressed the communication amounts to interference in the administration of justice, as the case was due for hearing, but the concerned court has to recuse and the same has happened in the past, and therefore he would request initiation of proceedings under the Contempt of Courts Act. However, I defer this action until the report of the Central Bureau of Investigation is placed before me and the existence of the sender is affirmed., For the aforesaid reason, I recuse myself from hearing Revision Application Number 59 of 2021, with liberty to the Applicants to request that the matter be placed before another alternate bench. The interim relief that is granted shall continue to remain in operation till the matter is placed before another bench.
id_408	0	Writ Petition(s) (Civil) No(s). 13029/1985 Date: 07-11-2023. Parties: Ms. Aparajita Singh, Senior Advocate (Additional Counsel); Mr. Siddhartha Chowdhury, Advocate (Additional Counsel); Mr. Tushar Mehta, Learned Solicitor General; Mr. Wasim Qadri, Senior Advocate; Mr. Gurmeet Singh Makker, Advocate on Record; Ms. Suhasini Sen, Advocate; Mr. Rajesh Kumar Singh, Advocate; Mr. S.S. Rebello, Advocate; Mr. Subhranshu Padhi, Advocate; Ms. Archana Pathak Dave, Advocate; Ms. Ruchi Kolhi, Advocate; Mr. Amrish Kumar, Advocate on Record; Mr. Gurminder Singh, Advocate General, Punjab; Mr. Shadan Farasat, Additional Advocate General; Ms. Rooh-e-hina Dua, Advocate on Record; Mr. Harshit Khanduja, Advocate; Mr. Sahib Kochhar, Advocate; Mr. Kanu Agrawal, Advocate; Mr. Bhuvan Kapoor, Advocate; Mr. Varun Chugh, Advocate; Mr. Krishna Kant Dubey, Advocate; Ms. Indira Bhakar, Advocate; Ms. Alka Agrawal, Advocate; Ms. Boby Devi Bonia, Advocate; Mr. Aniruddh Bhatt, Advocate; Mr. Prashant Singh, Advocate; Mr. Raj Bahadur Yadav, Advocate on Record; Mr. Rahul Khurana, Advocate; Ms. Suvarna Singh, Advocate; Mr. Sanjay Kr. Visen, Advocate on Record; Mr. Kamlendra Mishra, Advocate on Record; Mr. Praveen Swarup, Advocate on Record; Mr. Gaurava Yadava, Advocate; Mr. Devesh Maurya, Advocate; Ms. Pratishtha Majimdar, Advocate; Mr. Ravi Kumar, Advocate; Ms. Archana Sharma, Advocate; Mr. Rajatdeep Sharma, Advocate; Dr. Manish Singhvi, Senior Advocate; Mr. Sandeep Kumar Jha, Advocate on Record; Ms. Shubhangi Agarwal, Advocate; Mr. Jyoti Mendiratta, Advocate; Mr. Vikas Singh, Senior Advocate; Mr. Varun Singh, Advocate; Ms. Deepeika Kalia, Advocate; Ms. Vaishnavi, Advocate; Mr. Keshav Khandelwal, Advocate; Ms. Ruchi Kohli, Advocate; Ms. Srishti Mishra, Advocate; Mr. Vaibhav Kandpal, Advocate., Upon hearing the counsel, the Supreme Court of India made the following observations: The residents of Delhi have been struggling with health issues due to persistent air pollution, which has not been resolved year after year. The problem has continued for five years, and immediate attention and monitoring by the Court are required., Various issues were flagged by the counsels, and constructive suggestions were made by Mr. Gurminder Singh, learned Advocate General for the State of Punjab. He observed that farmers burn stubble for economic reasons and that the alternatives offered are not being adhered to due to obstinacy and cost concerns. He suggested that an alternative solution be provided free of cost, proposing that the State of Punjab bear 25 percent of the cost of making such facilities free and that Delhi bear the remaining 25 percent, while the Central Government could bear 50 percent of the cost, similar to other subsidies. He also highlighted that the growth of paddy in Punjab is causing a drastic decline in the water table, with many wells beyond redemption, and recommended phasing out paddy cultivation in favour of alternative crops, with the Central Government providing a minimum support price for those crops. He noted misuse of the Minimum Support Price for paddy, as paddy grown in adjacent states is brought into Punjab to claim MSP and sold under the policy. He pointed out that the particular variety of paddy grown in Punjab, whose stubble is a by‑product, is responsible for the problem, unlike Basmati grown elsewhere, and that this cropping pattern began about fifteen years ago. He further stated that Delhi’s locational and weather conditions affect pollution levels, but reliance on weather alone is insufficient; all stakeholders must act promptly., The Punjab Preservation of Subsoil Water Act, 2009, was brought to the Court’s notice. While its objective is to preserve subsoil water, its provisions have ramifications on pollution because delayed sowing of paddy leads to cutting of the crop at a time that exacerbates atmospheric conditions affecting Delhi and surrounding areas. The Court observed that when paddy was sown earlier, the problem did not arise, and that adherence to the Act is contributing to the issue. The Court directed the State Government of Punjab, as well as the adjacent states of Haryana, Rajasthan, Uttar Pradesh, and parts of Delhi, to ensure that crop burning is stopped forthwith, with the local Station House Officer made responsible under the overall supervision of the Director General of Police and the Chief Secretary., Mr. Gopal Shankaranarayan pointed out that a modality suggested by the Honorable Prime Minister is the production of ethanol from maize, which may improve the environmental situation. The learned Solicitor General mentioned that the Chief Minister of Delhi, in association with the Indian Agricultural Research Institute at Pusa (referred to as Pusa DE‑Composer), has achieved success in addressing stubble burning and is demanding a specific timeline from the Punjab Government. It was noted that the smog tower instituted on an experimental basis is not functioning; disciplinary action against the Chairman of the Delhi Pollution Control Committee was proposed, which the Court found unacceptable, insisting that the tower be made operational. The Court directed the Delhi Pollution Control Committee to immediately release data from the study on Real‑Time Source Apportionment and Forecasting for Advanced Air Pollution Management in Delhi, to publish real‑time source apportionment data for the winter season, and to re‑open and operationalize the smog tower installed at Baba Kharak Singh Marg, Connaught Place, New Delhi. The Chairperson of the Delhi Pollution Control Committee was ordered to appear personally in Court on the next date., The Interlocutory Application No. 23281/2023 for intervention was allowed. At the suggestion of Ms. Aparajita Singh, learned Amicus Curiae, the Court directed the Delhi State Government to monitor and ensure that municipal solid waste is not burnt in the open during this season. The Court also considered it appropriate for the Cabinet Secretary to convene a meeting on the next day, either physically or by video conference, with all stakeholders to obtain a clearer picture and achieve some remediation by Friday., Ms. Aparajita Singh, learned Amicus Curiae, pointed out that to control vehicular pollution, a coloured coded sticker system was envisaged, referenced in the order dated 02-12-2022 and the earlier order dated 21-08-2020. The implementation has been limited to the Delhi Government and not adopted by adjacent states, with no compliance report filed. The Court suggested that the odd‑even restriction based on colour coded stickers is unscientific and proposed that vehicles with orange stickers be banned instead. The State Government was directed to report back on this aspect. The Court also noted the large number of app‑based taxis operating in Delhi with registrations in different states, each carrying only one passenger, and inquired whether only taxis registered in Delhi could be permitted to ply during this period as an additional measure to control pollution. Finally, the Delhi Government was ordered to place before the Court the figures of the Environment Compensation Charge collected and the manner in which it has been utilized, to be listed on 10-11-2023 along with the Interlocutory Application.

Subsets and Splits

No community queries yet

The top public SQL queries from the community will appear here once available.