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Date of Decision: 13 September 2022. Kalyani Singh, Petitioner, versus Central Bureau of Investigation, Respondent. Present: Mr. R. S. Cheema, Senior Advocate, with Mr. Sartej Singh Narula, Advocate; Mr. Sandeep Sharma, Advocate; Mr. Arshdeep Singh Cheema, Advocate; Mr. Gurinder Singh, Advocate; and Mr. Satish Sharma, Advocate for the petitioner. Mr. Rajeev Anand, Standing Counsel for respondent – Central Bureau of Investigation. Mr. R. S. Bains, Senior Advocate, with Ms. Aarushi Garg, Advocate for the complainant., Through the instant petition filed under Section 439 of the Code of Criminal Procedure, the petitioner seeks regular bail in the case First Information Report RC No. 0512016S0004 dated 13 April 2016, registered under Sections 302, 120-B and 201 of the Indian Penal Code and Sections 25, 27 and 54 of the Arms Act, at the Special Crime Branch, Central Bureau of Investigation, Chandigarh. The investigations were initially undertaken by the Chandigarh Police but, by an order of the Home Secretary, Chandigarh Administration dated 20 January 2016, the investigation was transferred to the Central Bureau of Investigation, and the case was registered with the Special Crime Branch, CBI, Chandigarh., The crime occurred near Kothi No. 1001, Sector 27‑B, Chandigarh. The Sub‑Inspector informed the Station House Officer of Police Station Sector 26 that at about 10 p.m. a wireless message was received indicating a person lying near Kothi No. 1001, Sector 27‑B. The SHO, accompanied by an Assistant Sub‑Inspector and other police officials, proceeded to the site in a government vehicle and discovered the dead body of a man aged approximately 34‑35 years lying in a pool of blood on a pedestrian track in the green park adjoining Kothi No. 1015, Sector 27‑B. The deceased had injuries on his left cheek and chest with blood oozing, suggesting gunshot injuries. A report was sent from the crime scene to the police station for registration of a case under Section 302 of the Indian Penal Code against unknown persons., It is evident that after the transfer of the investigation to the Central Bureau of Investigation, the CBI entered into the investigation of the murder of the deceased Sukhmanpreet Singh alias Sippy Sidhu, but for more than six years made no progress in solving the case. The petitioner was arrested on 15 June 2022 based on inculpatory evidence collected by the CBI. The Supreme Court of India will consider the validity of the evidence gathered against the petitioner., Investigation revealed that in April‑May 2015 Sippy Sidhu again managed to send objectionable pictures of Ms. Kalyani Singh over the mobile phones of her friends. On enquiry by her friends, Ms. Kalyani Singh advised them to delete the pictures as they were morphed, suspecting Sippy Sidhu's act. Ms. Kalyani Singh also raised objections with the mother of Sippy Sidhu, who assured her that she would arrange the marriage of Sippy Sidhu. However, Ms. Kalyani Singh told her that she did not want to marry Sippy Sidhu. Even at this juncture, Sippy Sidhu and Ms. Kalyani Singh remained in touch, meeting each other and exchanging emails after the incident of 27 November 2014. Ms. Kalyani Singh remained in touch with Sippy Sidhu via his email id sippysidhu@gmail.com and her email id singh.kalyani26@yahoo.com., Investigation revealed that in April‑May 2015 Sachin Bhatia, known to Ms. Kalyani Singh, received obscene photographs of Ms. Kalyani Singh from mobile number 8198834127, which continued till July 2015. He could not identify the sender as Ms. Kalyani instructed him not to respond to that number. Ms. Kalyani Singh also disclosed that her marriage could not be materialised because the mother of Sippy Sidhu did not want an inter‑caste marriage., Investigation revealed that Ms. Kalyani Singh was a frequent visitor to the office of Sippy Sidhu up to August 2015. She also assisted Mr. Sippy Sidhu in his office and sometimes used the mobile phones of his employees to call him when he was not available in the office., Investigation disclosed that on the night of 17 August 2015, three to four suspects visited the residence of the deceased Sippy Sidhu and left the place in a small car. They left behind a black pouch containing a spiral diary with the name, address and mobile number of Sippy Sidhu along with the name Bhupinder Singh @ Yuvraj. A complaint was lodged with Punjab Police at Mohali, but no clue of the suspects could be worked out despite immediate action by Mohali Police., Investigation revealed that the spiral diary left by the suspects on 17 August 2015 mentioned the date 07 July 2015, u/s 302, Bhiwani, Dinesh and mobile number 9999996166, besides the names of the deceased Sippy Sidhu and his friends. Records of the District and Sessions Judge, Bhiwani, showed that a total of 32 murder cases were under trial as on 07 July 2015 in five different courts of Bhiwani, of which only 10 cases were fixed for hearing on that date. No link could be established between the accused in those cases and the names mentioned in the diary. The mobile number 9999996166 belonged to Mr. Sumit Gupta, resident of Shakarpur, Delhi‑92, who runs a photostat and telecom shop. He denied any knowledge of a person named Dinesh or any connection to Bhiwani., Investigation revealed that on 20 August 2015, GF‑1 dropped Sippy Sidhu at Chandigarh Railway Station to board the Shatabdi train to Delhi. Sippy Sidhu stayed with GF‑II in Delhi for a night. The next day, on 21 August 2015 at 13:45 hours, he boarded flight number 9W 122 from Delhi to London., Investigation disclosed that Sippy Sidhu and Ms. Kalyani Singh exchanged numerous emails up to 14 September 2015, including the period he remained abroad. During the exchange, both shared information about suspects detected outside Sippy Sidhu’s house, and Ms. Kalyani Singh advised him to be vigilant as he was being followed. On 29 August 2015, Sippy Sidhu admitted his wrongdoings, expressed seriousness to marry her, and asked if she had found someone else. He offered to resolve matters face to face with Ms. Kalyani and GF‑I. On 30 August 2015, Sippy Sidhu informed her that he had ended all ties with GF‑I as he could not afford to lose Kalyani over the friendship of GF‑I. On 7 September 2015, Ms. Kalyani Singh sent an email asking about his well‑being and travel plans, writing: “Hi, how are you? How is everyone? I am ok. How is your trip going? How was the awards function? Any promotion of the firm? Otherwise, how is your tour going on the professional front? Hope you are having fun. Do take care of your back and do not over‑exert yourself.” On 8 September 2015, Sippy Sidhu replied: “Hi, I am fine here. Awards went well. I am leaving for Toronto on 10. I will be in India on 16 September, then I will stay there for a couple of weeks and then again I have to leave abroad for few months. How are you? Thanks.”, Investigation revealed that during his visit to Canada, Sippy Sidhu participated in a sports awards function on 4 September 2015 organised by his friend Mr. Ramandeep Singh Goldy in the United Kingdom. He stayed with him until 7 September 2015. During this visit, Sippy Sidhu told his friend Ramandeep Goldy that he was facing threats as some persons were seen outside his residence and he suspected a threat to his life. Afterwards, Sippy Sidhu went to Toronto to meet his friends and stayed there until 15 September 2015. He returned to India on 16 September 2015 by flight number 9W 229., Investigation revealed that on his return to India on 16 September 2015, Sippy Sidhu was received by GF‑II at Delhi and stayed with her until the morning of 18 September 2015. He left Delhi by air on the morning of 18 September 2015 and was received by GF‑I and her father at Chandigarh Airport, who dropped him at his residence. On the same day at about 11.00 a.m., Sippy Sidhu again met GF‑I at her factory and planned to watch the movie ‘Everest’ at Elante Mall, Chandigarh. At about 8.15 p.m., while Sippy Sidhu and GF‑I were in his car in the Industrial Area, Chandigarh, he received two calls on his mobile number 9888810001 from mobile number 8558073647, after which he cancelled the movie programme and returned to Mohali. At about 21.00 hours on 18 September 2015, the mobile location of the deceased was seen at Sector 27, Chandigarh., Investigation revealed that, as per call detail records of mobile number 9888810001, two calls were received by Sippy Sidhu in the presence of GF‑I when his location was at the Industrial Area, Chandigarh. The calls originated from mobile number 8558073647 belonging to Harishankar Gupta, a mehndi applier at Sector 19, Chandigarh. At about 8.15 p.m., when Sippy Sidhu received a call while sitting in his car beside GF‑I, he responded with the words “Main karda han, Main Karda han,” which were audible to GF‑I. He then stepped out of the car to attend another call. Upon returning, he appeared perplexed and, when asked by GF‑I, explained “Meri tan fatt gayi si.” He later gave a false explanation that his brother Jippy Sidhu and another advocate were supposed to appear in court but could not, and that the daughter of his client was lodged in police lock‑up at Sector 19, Chandigarh. He claimed the client’s mother was blaming him, saying “meri kudi di life kharab kar diti h, te main chhadna ni.” While moving towards Elante Mall, he was nervous and told GF‑I that his reputation was at stake. He cancelled the movie programme, returned to Mohali, and dropped GF‑I at her house. At about 21:06:33 hours, the mobile location of the deceased was at Sector 27, Chandigarh before his return to his home location at 21:48:24 hours on 18 September 2015. No girl or female was lodged in police lock‑up at Police Station Sector 19, Chandigarh on that date., Investigation revealed that Harishankar Gupta was working as a mehndi applier in Sector 19, Chandigarh. On 18 September 2015, a girl aged about 25 years, wearing a black top, jeans, and a dark dupatta around her neck, approached him and said, “Mera phone ghar chhut gaya hai, mujh e phone karwa do.” He gave his mobile phone to the girl, who completed the call and returned the phone after deleting the dialed number. The mobile number 8558073647 of Harishankar Gupta was used to call Sippy Sidhu’s mobile number 9888810001 at 20:11:26 hours by an unknown girl. This was the same call attended by Sippy Sidhu in the presence of GF‑I on 18 August 2015., Investigation disclosed that a computer‑generated sketch of the suspect girl who made calls from Sector 19, Chandigarh on 18 September 2015 to the deceased Sippy Sidhu was prepared based on the description provided by Harishankar Gupta, indicating a facial resemblance to Ms. Kalyani., Investigation disclosed that on 18 September 2015 at 20:55:21 hours, another 13‑second call was received on mobile number 9888810001 of the deceased Sippy Sidhu from mobile number 9216910382, later identified as belonging to Balinder Kumar, who was present in the market at Sector 19, Chandigarh for purchase of clothes. He parked his motorcycle opposite Manchanda Book Depot, where a girl of height 5′ 3″ wearing a black top and jeans, with a dupatta around her neck, approached him from behind and requested to make a phone call using his mobile. He complied and handed over his phone; the girl made a call to an unknown person. The description of the girl matched that of the girl who approached Harishankar Gupta. Calls from mobile number 8558073647 were made at 20:11:26 (7 seconds), 20:11:52 (4 seconds) and 20:12:25 (41 seconds); a call from mobile number 9216910382 was made at 20:55:21. The same girl is believed to have approached the deceased Sippy Sidhu from Sector 19‑C, Chandigarh between 20:11:26 and 20:55:21 on 18 September 2015. After borrowing a phone, the impact of the calls was such that Sippy Sidhu reached Sector 27, Chandigarh at 21:06:33 on the same evening after dropping GF‑I at her house in Mohali, and returned to his house at 21:48:24., Investigation disclosed that CCTV footage from the shop of M/s Thapar Shoes, Sector 19, Chandigarh, showed a girl moving swiftly during the relevant time on 18 September 2015. The footage was obtained from Chandigarh Police on DVD (sealed) along with CCTV footage from # 1001, Sector 27, Chandigarh, and sent to the Central Forensic Science Laboratory, Chandigarh for frame‑by‑frame analysis to obtain a clear view of the girl for identification. A brief 22‑second CCTV clip from # 1001, Sector 27, Chandigarh was recorded by police, and DVR data from # 1001, # 1049 and # 164 were taken on a pen drive. Loss of CCTV data from # 1001 and # 1049 hampered the investigation to identify the killer, vehicle and accomplices., Investigation disclosed that on 18 September 2015, after arriving in Chandigarh from his girlfriend’s house in Delhi, Sippy Sidhu exchanged phone calls with numerous persons regarding his office building, installation of CCTV cameras and other routine matters. No call or email was exchanged over the mobile or email of Ms. Kalyani., Investigation revealed that on 18 September 2015, Ms. Kalyani Singh, wearing a black and white saree, was seen in Sippy Sidhu’s office on the fourth floor by a person present in the building. Both were discussing an issue; Ms. Kalyani Singh spoke loudly while Sippy Sidhu attempted to pacify her. On 19 September 2015, Ms. Kalyani Singh was again seen in the office. After she left on 19 September 2015, Sippy Sidhu appeared upset over her behaviour, although the location of her mobile did not corroborate this., Investigation disclosed that on 19 September 2015, the mobile location of Sippy Sidhu was at his house until 13:03:51 hours. During this period, he received two calls from GF‑I at 08:47:07 and 13:03:51, two calls from Ms. Pawan Kaur of Sai Aasra Paraplegic Rehab Centre, Chandigarh at 09:09:30 and 12:53:05, two calls from Jatin Batra at 10:21:31 and 10:34:00, and two calls from Jitender of CCTV at 10:36:58. After 13:03:51 until 16:26:30, he remained at his office. At 18:20:04 he was at his house, and after 18:32:04 he was located at various places in Sector 27, Sector 19 and Sector 16, Chandigarh up to 21:03:40, thereafter returning to his house at 21:26:02. He remained at his house from 21:26:02 on 19 September 2015 to 13:00 hours on 20 September 2015, during which he exchanged calls with friends, GF‑I, Harshita, GF‑IV and persons involved in office work., Investigation disclosed that on 20 September 2015, Sippy Sidhu attended a bhog ceremony with his mother at Sacha Dhan Gurudwara, Mohali and remained there until 1 p.m. GF‑I called him and invited him for a family lunch at Sector 26, Chandigarh. He had lunch with GF‑I’s family at Swagat Restaurant at about 1.30 p.m. During lunch, he expressed excitement about his plan to purchase a house in Canada. After lunch, both returned to their respective houses. In the evening, Sippy Sidhu took GF‑I in his car to the Industrial Area to purchase furniture, but the shop was closed. While returning to Mohali, he planned to watch the movie ‘Everest’ at 4.20 p.m. at North Country Mall, Mohali. After watching the movie at 7 p.m., he received a call from mobile number 9815108889 of Mr. Angrez Singh, resident of village Gandhar, PS Lakher Wali Mandi, Tehsil and District Muktsar, Punjab, a college friend. Sippy Sidhu dropped GF‑I at her home. Afterwards, GF‑I sent him a WhatsApp message at 7:29 p.m. saying “Love your sweetie.”, Investigation disclosed that Mr. Angrez Singh, a college friend of Sippy Sidhu, discussed a murder case from his village, which was confirmed from the call recordings on his mobile phone. Nothing incriminating relevant to the case was discussed during this conversation. Mr. Angrez Singh preserved the recording because he was later called by the local police., Investigation disclosed that on 20 September 2015, Smt. Deepinder Kaur, along with her son Sippy Sidhu, visited Sacha Dhan Gurudwara to attend a bhog ceremony. After returning from the gurudwara at 1 p.m., Sippy Sidhu changed his clothes and went for lunch with GF‑I. At about 3.30 p.m., he again went out with GF‑I and returned to his house at about 7 p.m. after watching the movie ‘Everest’ at North Country Mall, Mohali. He came to her room and relaxed on her bed, complaining of pain in his legs. Smt. Deepinder Kaur called her servant to give him a massage. Afterwards, Sippy Sidhu said that Ms. Kalyani had called him at Sector 27 Park, Chandigarh. He left the house at about 7.30 p.m. in his car after taking two apples from the refrigerator. At about 11.00 p.m., she made a call to Sippy Sidhu which was attended by a lady police officer who informed her about the incident at Sector 27, Chandigarh., Investigation revealed that Sippy Sidhu returned to India on 18 September 2015 and was killed under mysterious circumstances on 20 September 2015. On each evening of the three days, his location was found to be in Sector 27, Chandigarh. On 18 September 2015, after receiving a phone call, Sippy Sidhu dropped GF‑I and returned to Sector 27, Chandigarh. Between 18 September 2015 and 20 September 2015, Shri Parminder Singh attended three functions: on 18 September 2015 he, his wife, Vikas Singh and Vikas Singh’s wife visited the house of his friend Arun Abrol, Advocate, at Mohali; on 19 September 2015 a dinner was organized at his house; and on 20 September 2015 he, his family and other relatives attended a birthday party at the house of Shri Kuldeep Singh. These visits are unusual in reference to Sippy Sidhu’s presence in Sectors 19, 27 and 16, Chandigarh during those three days., Investigation revealed that Ms. Kalyani Singh failed to explain why she stopped calling or contacting Sippy Sidhu with effect from 15 September 2015, i.e., one day prior to his scheduled arrival in India on 16 September 2015, and despite a long association with him, she did not attend his funeral or bhog, nor did she visit his house for condolence., Investigation revealed that Mr. Vikram Nagpal and Mr. Vishal Nagpal, residents of # 1001, Sector 27‑B, Chandigarh, were present in their house near the place of occurrence. At about 9.30 p.m., hearing sounds like the bursting of two crackers followed by two similar sounds like gunfire, they came out of their house and observed an unknown person lying in the park. They informed the Police Control Room. After about 20 minutes, police arrived. The next day, police examined the CCTV DVR installed at their house and recorded movement of a small car outside their house during the relevant time; the car did not belong to them or their relatives., Investigation revealed that Mr. Rajanbir Singh, resident of # 1015, Sector 27‑B, Chandigarh, was present in his house, a few meters away from where the dead body was lying. He heard a gunshot from the park side across the boundary wall of his house. When he approached the wall, he saw a person of medium height about 5′ 7″ walking away. The person stopped on the walking track and turned to look at him. Out of fear, he immediately got down on his knees on the grass in his courtyard near the boundary wall to avoid any reaction., Investigation revealed that Mrs. Amreeta Singh, wife of Rajanbir Singh, was also present in a first‑floor room of his house on the night of 20 September 2015. She heard gunshots followed by a girl’s scream at about 9.30 p.m. She went to the balcony facing the main gate, where she saw a small white car parked under a street light near the main gate. She also noticed a girl of about 26‑27 years swiftly coming from the side of the park towards the car. The girl opened the driver’s side door and drove away towards the east side of the house. A computer‑generated sketch of the suspect girl was prepared., Investigation disclosed that Mr. Kuldeep Singh, residing at # 113, Sector 18, Chandigarh, along with his wife Mrs. Sarbjit Kaur, son Mr. Amandeep Singh and daughter‑in‑law Mrs. Amandeep Kaur, are co‑brothers of Mr. Sarjit Singh, father‑in‑law of Shri Parminder Singh. On 20 September 2015, on the occasion of his wife’s birthday, they invited relatives from Chandigarh to dinner at their house. Shri Parminder Singh and his family arrived at around 8.15 p.m. and stayed till 11.00 p.m. Families of the father‑in‑law of Shri Parminder Singh and of Shri Vikas Singh, son of Mr. Sarjit Singh, also attended. Photographs were taken from 07:51 to 08:20 p.m. and from 10:20 to 10:26 p.m. on 20 September 2015 by Shri Amandeep Singh., Investigation revealed that during examination of Ms. Kalyani Singh and her family members, they gave an alibi that on 20 September 2015 they, along with their relatives, were present at House No. 113, Sector 10, Chandigarh throughout the birthday celebration from 8.15 p.m. to 11.00 p.m. Other members of the birthday party corroborated this version regarding their presence on the evening of 20 September 2015., Investigation revealed that, to ascertain the veracity of the statements of Ms. Kalyani Singh and her family, a polygraph examination of Ms. Kalyani Singh and her father Shri Parminder Singh was conducted at the Central Forensic Science Laboratory, New Delhi, after recording their consent before the court. The polygraph report of Ms. Kalyani Singh showed deceptive answers to questions concerning her absence from the party, presence at Sector 27, Chandigarh and the killing of Sippy Sidhu. The polygraph of Shri Parminder Singh was found to be truthful. Other participants of the birthday party declined to undergo polygraph testing., Investigation disclosed that tower dumps installed at Mohali, Chandigarh and Panchkula, covering the place of occurrence, were collected from the service providers. No breakthrough was obtained during scrutiny. While examining the tower dump of the place of occurrence at Sector 27, Chandigarh, some mobile numbers were observed as suspicious based on their locations and common connections with other numbers relevant to the case. All the suspects were located and examined, but they were found to be usual visitors to the tower location and explained their presence with plausible reasons., Investigation revealed that a computer‑generated sketch of the suspect girl who entered a white car near the place of occurrence, i.e., Sector 27, Chandigarh, was prepared based on the description given by Mrs. Amreeta Singh, who had seen a girl moving from the place of occurrence after the incident on 20 September 2015., Investigation revealed that Mr. Jitender Singh, son of Mr. Gurmeet Singh, working as an air‑conditioning mechanic at Sector 52, Chandigarh, stated that he met Sippy Sidhu at his office, F‑45‑2, Phase VIIIB, Mohali, in 2014. He was also in touch with the deceased from 18 September 2015 to 20 September 2015 regarding installation of CCTV cameras at Sippy Sidhu’s house in Mohali. They were planning to purchase a CCTV camera on 20 September 2015, and Sippy Sidhu was in possession of a large amount of Rs 33,230 in his pocket., Investigation revealed that scrutiny of WhatsApp chat No. 1835 between Ms. Kalyani Singh (mobile number 8198834127) and Sippy Sidhu for the period from 23 December 2014 to 22 August 2015 showed that Sippy Sidhu sent objectionable pictures of Ms. Kalyani Singh with Manjot Singh Cheema.
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On 13 April 2015 at 17:25:22, Sippy Sidhu sent the postpaid mobile bill of 9646400004 belonging to Simarandeep Singh Sandhu, indicating the duration of calls exchanged by Simarandeep Singh with Kalyani Singh. On 28 April 2015 at 19:27:25, Sippy Sidhu sent objectionable pictures of Kalyani Singh with her so‑called mama. At 19:32:12 on the same day, Sippy Sidhu again sent a screenshot of pictures of Ms. Kalyani Singh in a compromising position., Investigation of WhatsApp Chat No. 1703 of Ms. Kalyani Singh (mobile number 9888661315) with Sippy Sidhu for the period from 22 January 2015 to 14 April 2015 revealed that on 15 February 2015 at 17:47:16, Ms. Kalyani Singh sent a message to Sippy Sidhu stating, \You know that just stay with the bitch you have made out with. It was so bloody important for you to do this. You could not stop yourself. Blood help, get lost.\ On 17 March 2015 at 08:34:37, Sippy Sidhu sent her screenshots of alleged recordings of mobile number 9646400004 of Simarandeep Singh Sandhu and a photograph showing images of CDs related to messages, call logs, Viber, etc., in respect of mobile number 9417670318 of Kalyani Singh and 9646400004 of Simarandeep Singh Sandhu. The seven CDs were taken on record from Jasman Preet Singh and sent to the Centre for Forensic Science Laboratory (CFSL), Chandigarh for data retrieval. However, CFSL, Chandigarh, vide its report No. CFSL (C) 2134/PHY/530/15/1605 dated 30 June 2016 and Report No. CFSL (C) 1342/PHY/385/2020/1723 dated 07 October 2020, opined that exhibits marked CD‑1 to CD‑7 contain no data., Investigation of the iPhone 6 (Apple, IMEI No. 358365063233444) taken from Ms. Kalyani Singh found that on 13 September 2015, Shri Navkiran Singh sent a message to Kalyani Singh wishing her a \Garbage free life\. On 14 September 2015, Ms. Kalyani Singh last contacted Sippy Sidhu via e‑mail. On 20 September 2015, while present in the same room at Flat 113, Sector 10, Chandigarh, Ms. Kalyani Singh exchanged WhatsApp messages with Sabah Singh: at 09:11 PM Sabah wrote, \Come in other room\; at 10:24 PM Kalyani replied, \Yea just got them nothing new lol\., The investigation into property matters revealed that in 2010 M/s Ozone Company received an amount of Rs 7 crore from M/s Omaxe India to facilitate the latter’s purchase of land from farmers at Amritsar and to obtain release of the land from acquisition by the Improvement Trust, Amritsar. Shri Sippy Sidhu came into contact with the directors of Ozone Company, namely Shri Sukhwinder Singh, Bhupinder Singh (also known as Yuvraj, son‑in‑law of Bibi Jagir Kaur) and Shri Avtar Singh. In 2013 Shri Sippy Sidhu intervened between M/s Ozone and M/s Omaxe at his residence to settle their dispute, which remained unresolved and pending adjudication in court. No further interference by Shri Sippy Sidhu was recorded. In 2009 Shri Sippy Sidhu and Shri Avtar Singh agreed to construct an office building on a plot owned by Shri Sippy Sidhu at F‑452, Phase‑8B, Mohali. The industrial plot was valued at Rs 2.35 crore; Shri Avtar Singh contributed an equal amount for construction and acquired a 51 % share, while Shri Sippy Sidhu retained 49 %. Shri Avtar Singh, an NRI and director of M/s Ozone, also invested in certain properties in Mohali and Jalandhar districts of Punjab, which were known to the deceased Sippy Sidhu, although no role of Shri Sippy Sidhu in those disputes was found., The investigation uncovered that Shri Sippy Sidhu had multiple affairs with other women, whose names are omitted to preserve dignity as no role on their part in the murder of Shri Sippy Sidhu has been established. One such woman, referred to as GF‑6, is a single child of an industrialist from Mohali. Her parents proposed her engagement to Shri Sippy Sidhu, but the proposal was delayed by Shri Sippy Sidhu’s mother. Ms. Kalyani Singh objected to the relationship and warned the woman to stay away from Shri Sippy Sidhu. The woman first met Shri Sippy Sidhu during college in 2002, married in 2004, separated in 2011, and re‑established contact with Shri Sippy Sidhu in 2013‑14. She visited his house several times before 20 September 2015, maintained frequent phone calls (including on the night of the incident), and assisted his family after the murder on 20 September 2015. She is a divorcee with whom Shri Sippy Sidhu developed an acquaintance and offered to settle her matters, but she did not accept the help., After referring to all material collected during the investigations, the Investigating Officer concluded that an untraced report was to be filed in respect of the petition First Information Report (FIR). The report was instituted on 7 December 2020 before the learned Committal Court of the High Court of Punjab and Haryana at Chandigarh. On 8 December 2020, the learned Committal Court ordered that it be determined whether the report filed by the Investigating Officer was a final report, an untraced report, or a status report, and adjourned the matter to 14 January 2021., On 14 December 2020, the Investigating Officer stated that no investigation was pending in respect of the petition FIR except for the polygraph test report, which was awaited. The learned Committal Court adjourned the proceedings to 12 January 2021 for filing a fresh report by the Central Bureau of Investigation (CBI). The CBI did not file a final report on 12 January 2021 but submitted that polygraph tests of some suspects were to be conducted by CFSL, New Delhi, on 3 March 2021 and 4 March 2021. Consequently, the committal proceedings were adjourned to 15 March 2021, then to 31 March 2021, and subsequently to 3 May 2021 for a report on the tests. On 22 April 2021, the learned Committal Court, having been seized of a report drawn by the Postgraduate Institute of Medical Education and Research (PGIMER) indicating that Shri Simarandeep Singh Sandhu was on medication (Betacap – propranolol and Tryptomer – amitriptyline) that could interfere with polygraph results, ordered the CBI to respond regarding the feasibility of conducting the polygraph test on the suspect. On 3 May 2021, Shri Simarandeep Singh Sandhu was provided with the medical report. On 1 June 2021, the learned Committal Court, in view of the medical report, issued notice to the CBI on the suspect’s application to withdraw his earlier consent for the polygraph test. On 7 July 2021, the Court allowed Shri Simarandeep Singh Sandhu to withdraw his consent dated 12 November 2020, but permitted the investigating team to employ Forensic Psychological Assessment and Layered Voice Analysis (LVA). Shri Karpal Singh also moved an application to withdraw his consent; the Court permitted both applications, denied the CBI’s request to perform LVA, and ordered that no further action be taken by the investigating agency. The proceedings were listed for 16 August 2021 to consider acceptance or rejection of the untraced report submitted by the CBI., On 16 August 2021, notice was given to the family members of the deceased to protest the acceptance of the untraced report instituted on 8 December 2020. On 22 September 2021, the relatives sought an opportunity to file a protest. Various dates were assigned for filing pleadings. On 12 January 2022, aggrieved victims filed a protest petition before the learned Committal Court against the acceptance of the untraced report, and were granted an opportunity to file a reply. On 7 February 2022, the Investigating Officer was noted not to have asserted any pointed inculpatory evidence against the petitioner. On 23 February 2022, a reference was made to an order dated 14 February 2022, whereby the Investigating Officer was asked to conclude the investigation within two months, and the learned Committal Court adjourned the proceedings to 16 March 2022 for submission of the report., On 16 March 2022, the Investigating Officer submitted that, according to source information, the last four digits of the Maruti Zen car spotted at the crime scene were 1183 and that a record from the Department of Transport should be obtained. The identity of the car’s owner was not revealed by the Court. On 27 July 2022, the learned Committal Court directed the Investigating Officer to submit, in a sealed cover, the statements of witnesses recorded under Section 161 of the Code of Criminal Procedure and the documents mentioned in the final report dated 7 December 2020, and permitted the investigating agency to record supplementary statements of any already examined witness. The Court has not yet accepted the untraced report filed on 7 December 2020., The crime site is in the neighbourhood of the house of Rajanbir Singh and Amreeta Singh, and also near the houses of Vikram Nagpal and Vishal Nagpal. Statements of these persons, including that of Kundan Lal, a domestic help of Rajanbir Singh, were initially recorded by the Investigating Officer but only after nearly six months from the occurrence. According to the statements, Rajanbir Singh heard gunshots, moved to the boundary wall overlooking the park where the crime occurred, heard two more shots, and saw a person of medium height walking away. He claimed to have knelt down to avoid being seen. The domestic help gave a similar account. The learned counsel for the petitioner argues that these statements lack details about the physical features of the person, any weapon carried, or the presence of a lady at the scene, and were recorded after a long delay, rendering them unreliable under Section 162 of the Code of Criminal Procedure. The counsel also notes that Rajanbir Singh’s re‑examination by the CBI on 20 May 2016 has not been disclosed, suggesting malafides in the investigation., Amreeta Singh, wife of Rajanbir Singh, resident of Kothi No. 1015, Sector 27‑B, Chandigarh, gave a statement on 20 May 2016 (more than eight months after the crime) that she heard a woman’s scream and later saw a girl walking towards her car and driving away. The counsel points out that her initial statement on 20 September 2015 did not describe the girl’s physical features. A supplementary statement recorded on 4 August 2020, in which she recalled the girl’s features, was used to draw sketches that the Investigating Officer later linked to the petitioner. The counsel argues that, had the initial statement contained such details, a valid identification parade could have been conducted, lending credibility to the identification., The counsel further argues that the statements of Jatinder Singh, recorded on 1 August 2016, 21 November 2017, 9 January 2018, 1 February 2019 and 1 September 2020, are unreliable because they were taken more than ten months after the crime, attract the bar of Section 162, and the witness was not an ocular witness but merely claimed to have reached the Press Club area of Sector 27 at about 7 PM on 20 September 2015. The counsel also notes that the Investigating Officer has failed to produce call data records from the service provider for Jatinder Singh’s mobile phone, which could have established his presence at the crime scene., In paragraphs 16.13 to 16.16 of the untraced report, the prosecution attributes a motive to the petitioner, alleging that she was spurned by the deceased’s relatives because of an inter‑caste marriage proposal. The learned counsel for the petitioner contends that the CBI’s later emphasis on the petitioner’s motive—stemming from the deceased allegedly transmitting obscene photographs to various persons, causing embarrassment—is contradictory to the earlier narrative and appears to be a post‑hoc alignment with the complainant’s theory. The counsel asserts that the investigations have been coloured, lacking objectivity and impartiality., The counsel for the petitioner also disputes the complainant’s claim that the deceased abandoned his ties with the petitioner after learning of her other relationships, calling it completely false. He further points to Annexure P‑8 (page 116) showing the deceased’s earnestness to remain close to the petitioner, and to email chains dated 29 August 2015, 30 August 2015, and 30 August 2015 (pages 122‑124) that refute any breach of ties and instead indicate that the deceased warned the petitioner of a perceived threat to his life while he was abroad., The counsel notes that the prosecution itself alleged in paragraph 16.46 (page 57) that the petitioner visited Shri Sippy Sidhu’s office on 18 September 2015 and 19 September 2015, contradicting the CBI’s claim of a breach of ties. He further argues that the CBI’s allegation that the petitioner clandestinely called the deceased on 18 September 2020 to conceal her identity is unfounded., The counsel submits that up to the filing of the untraced report before the learned Committal Court, no incriminatory evidence was available against the petitioner; she was listed only as a suspect. Any subsequent incriminatory material appears to be the result of twisting and skewing of investigations. The email exchanges cited demonstrate no breakdown in the relationship, and there is no evidence of the petitioner making calls from unknown numbers. Moreover, there is an absence of call detail records and tower location data that could place the petitioner at the crime scene, undermining any argument that the deceased was summoned by her., The counsel further points out that paragraph 16.40 of the untraced report mentions calls that frightened the deceased, with his responses “Main Karda Haan” and “Meri Taan Fatt Gai Si,” suggesting the caller was a mafia don threatening the deceased. The counsel argues that this aspect remains uninvestigated by the CBI, and an objective investigation could have identified the actual offender., The counsel observes that the annexure (page 120) shows emails in which the petitioner warned the deceased about a Maruti car carrying persons with weapons, prompting the deceased to inform the Director General of Police. The Investigating Officer did not investigate this lead, resulting in a skewed investigation that omitted a potentially relevant factor., The petitioner has successfully established an alibi, claiming she was at a party at the relevant time, a claim corroborated by a positive polygraph test conducted on her father. The polygraph test on the petitioner herself was declared deceptive, but the counsel argues that the alibi remains credible., The counsel finally notes that the untraced report attributes a motive to the petitioner based on an alleged breach of promise of marriage due to inter‑caste opposition. Although this motive could have led the CBI to incriminate the petitioner, the CBI instead filed an untraced report while keeping the petitioner merely as a suspect, and no further incriminatory evidence was collected. Consequently, apart from the alleged motive, there was no substantive evidence linking the petitioner to the crime, and the untraced report was never accepted by the learned Committal Court of the High Court of Punjab and Haryana at Chandigarh.
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In consequence, the Central Bureau of Investigation now assigning any motive to the present petitioner is, prima facie, an afterthought and a stratagem employed to assign guilt to the petitioner. The High Court of India finds that this is a consequence of protest against the acceptance of the untraced report preferred by the aggrieved, who assigned a motive to the petitioner on the basis that the deceased had taken to share the cell phone clicked obscene pictures of the petitioner with certain individuals and family members, resulting in embarrassment to her, after which she allegedly nursed an ill motive to commit the offence. The Central Bureau of Investigation has adopted a similar stand and changed the initially assigned motive, which was not deemed fit to inculpate the petitioner. Therefore, the investigations into the aspect of an ill motive, if any, nursed by the petitioner against the deceased appear to be coloured investigations by the Central Bureau of Investigation, aligning with the motive assigned by the aggrieved. Consequently, these investigations are not made in an objective mode but in a partisan and coloured mode and do not inspire the confidence of the High Court of India., The effect of the different motives at different stages being assigned by the Central Bureau of Investigation to the petitioner is that the same also becomes inconsequential. The reasons for forming the above conclusion arise from the fact that, in the close proximity of the crime, the available WhatsApp messages exchanged between the petitioner and the deceased show that both were enjoying cordial relations. It is also evident from Annexure P‑8 at page 116 of the paper book, paragraph 16.37 at page 53 of the untraced report, and Annexure P‑8 pages 122‑123 that the petitioner and the deceased maintained cordial relations till the end. The alleged breakdown of ties is contradicted by page 57 of the paper book, which reveals that the petitioner visited the deceased’s office on 18‑09‑2015 and 19‑09‑2015, prior to the occurrence, with no evidence of bickering. Hence, up to the crime event there was no acrimony between them. Consequently, the prosecution’s assignment of motive to the petitioner is enveloped in doubt and, at this stage, no inculpatory effect can be attached., The prosecution attributed to the petitioner the role of carrying animosity towards the deceased and relied upon Hari Shankar Gupta, who stated that on 18‑09‑2015 at 8.15 PM a girl of about 25 years, wearing a top, jeans and a dark dupatta, with open hair up to the shoulder and physical features like the petitioner, visited his premises and asked for his mobile, claiming he had left it at home. He handed over his mobile, and after completing the call, she returned it after deleting the dialled number. The call was attended by the deceased along with his girlfriend at Industrial Area, Chandigarh. However, this call was made on 18‑09‑2015, not on the relevant date of 20‑09‑2015, and therefore may not be given much importance. Moreover, although the untraced report instituted by the Central Bureau of Investigation references this call, the Central Bureau of Investigation did not use it to inculpate the petitioner. Regarding the unknown calls purportedly made by the petitioner to the deceased from Hari Shankar Gupta’s cell phone, the High Court of India will deal with that at a subsequent stage. From the above, it can be concluded that the motive initially assigned to the petitioner by the Central Bureau of Investigation has not been established. The motive was earlier abandoned by the Central Bureau of Investigation, but later the agency changed its stand to align with the motive assigned by the complainant, which nevertheless does not appeal to the judicial conscience of the High Court of India as prima facie inculpatory., In the neighbourhood of the crime site there are the houses of Rajanbir Singh, Amreeta Singh, Vikram Nagpal and Vishal Nagpal. Rajanbir Singh and Amreeta Singh have a domestic help, Kundan Lal. Both Rajanbir Singh and Kundan Lal joined investigations after six months from the crime, and their statements do not reveal the identity or physical features of the petitioner; they only mention hearing gunshot sounds and sighting a male person at the crime site. Amreeta Singh, wife of Rajanbir Singh, joined investigations after about eight months and stated that she heard a woman’s screams and later saw a girl walking towards her car and driving away, without disclosing the girl’s physical features. In a supplementary statement recorded by the Central Bureau of Investigation on 04‑08‑2020, Amreeta Singh recollected the physical features of the girl and assisted the investigating officer in drawing sketches, relating the sketches to the petitioner. However, no valid test identification parade was ever conducted, and her initial statement, made after more than eight months, did not contain the marked identifiable physical features required under Section 162 of the Code of Criminal Procedure. Consequently, her later recollection appears to have been influenced by tutoring from the Central Bureau of Investigation, rendering her a planted or engineered witness. Therefore, her identification of the petitioner through sketches cannot be given credence., The pivot of the prosecution case rests on the statement of Jatinder Singh, claimed to be an ocular witness. He made statements to the investigating officer on 01‑08‑2016, 21‑11‑2017, 09‑01‑2018, 01‑02‑2019 and 01‑09‑2020, none of which claimed him to be an eye witness. Suddenly, in a statement made on 09‑11‑2021 under Section 161 of the Code of Criminal Procedure, he claimed to be an eye witness and named the petitioner as the prime inculpatory participant. This statement is prima facie weak and cannot be accepted. When the untraced report was filed, his earlier statements were already with the Central Bureau of Investigation, where he never claimed to be an eye witness. His later claim appears to be a somersault made during the phase of the learned committee Court being seized with an untraced report and protest by the aggrieved, rendering the statement contradictory and suspect. Consequently, Jatinder Singh appears to be a planted witness coached by the investigating agency., The cell phone of Jatinder Singh was the best electronic evidence to support his statement of 09‑11‑2021. Call data and tower locations could have shown his presence in and around the crime site at the relevant time, which would have allowed the High Court of India to assign credibility to his statement. However, this evidence was never collected by the investigating officer, nor was data from the service provider obtained. The failure to collect this evidence devalues his statement, and at this stage it carries no evidentiary strength., It appears that in the neighbourhood of the crime site some DVRs existed and enclosed CCTV footage of the crime event. Although the investigating agency collected the footage, paragraph 16.44 of the untraced report does not disclose that the petitioner was present at the crime site. The Central Bureau of Investigation declared that only a part of the incident was enclosed in the DVR and alleged that the investigating agency destroyed the other portions of the CCTV footage and the DVR. Prima facie, the missing portions could be due to glitches rather than tampering. The allegation of tampering by the investigating agency appears to be mis‑founded and seems intended to camouflage the numerous faults committed by the Central Bureau of Investigation., The petitioner remained in Central Bureau of Investigation custody for six days, but during that period the investigating officer did not record her disclosure statement about concealing or hiding the crime weapon, nor was any recovery effected. This omission is extremely grave, especially as Jatinder Singh’s ocular account inculpates the petitioner as the principal in the first degree. The statement of Jatinder Singh was not available with the Central Bureau of Investigation during the petitioner’s custody, suggesting that the investigating officer antedated the statement to justify the arrest. The non‑recovery of the weapon of offence from the petitioner also fails to connect her to the alleged crime., The investigation into the crime began about seven years ago, yet no headway has been made except the filing of an untraced report on 07‑12‑2020 before the learned committee Court. It appears that the investigating officer was anxious to close the investigation by arresting the petitioner, remaining indifferent to the untraced report filed on 07‑12‑2020, which reflected statements of all witnesses but did not inculpate the petitioner. This haste, coupled with the omission of relevant uninvestigated facets, leads to the conclusion that the investigations were botched and slipshod, aimed at solving the crime merely by arresting the petitioner rather than identifying all offenders., Jiwan Singh, a domestic help in 2021, stated that the deceased had left his home intimating him that he had to visit the petitioner. This statement is delayed and, at this stage, carries no creditworthiness. Moreover, the best electronic evidence suggesting the petitioner’s guilt is not available before this Court, and the petitioner has raised a plea of alibi. The Central Bureau of Investigation, even in the untraced report, accepted the alibi, which is established by the positive results of a polygraph test conducted on the petitioner’s father, confirming the petitioner’s presence at a birthday party at the relevant time. Consequently, the negative polygraph result of the petitioner is insignificant, and the alibi is well‑rested., Paragraph 16.40 of the untraced report reveals that certain unknown calls caused fright in the mind of the deceased, as reflected in his replies “Main Karda Haan” and “Meri Taan Fatt Gai Si”. An email exchanged between the petitioner and the deceased mentions security cover and weapons provided to the deceased, which the petitioner did not apply for. A car with registration ending 1183 was found at the crime site, along with a Maruti 800 chasing the deceased’s car, carrying a girl and a boy. The bag in the car contained a diary mentioning the deceased’s name, office address and house address, indicating contract killers. The email reflects deep trust the deceased reposed in the petitioner and that some persons were targeting the deceased. However, the identities of the occupants of the car and the boy and girl remain untraced, and the Central Bureau of Investigation has not related them to the petitioner., The lack of thoroughness of investigations by the Central Bureau of Investigation appears to result from its alignment with the aggrieved. Although cooperation with the aggrieved was necessary, the investigating officer abandoned objectivity and fairness, taking only misfounded clues from the victim‑aggrieved. Consequently, objective and fair investigations have not been carried out. The Central Bureau of Investigation, as the prime investigating agency, is expected to conduct impartial investigations, but in this case it adopted the stand of the aggrieved without credible evidence to inculpate the petitioner., The untraced report was filed in 2020, whereas the investigation was handed over to the Central Bureau of Investigation in 2015. Instead of employing scientific techniques to identify the real offenders, the agency appears to have relied on tutored and planted witnesses merely to solve the crime by arresting the petitioner., Nevertheless, justice must be done to the aggrieved, and the investigating officer, with the leave of the High Court of India, may conduct further investigations into the uninvestigated facets of the crime. The judicial conscience of the High Court of India feels that such investigations may result in all offenders being brought to inculpation and complete justice being done to the aggrieved and society., Therefore, the High Court of India is constrained to admit the petitioner to regular bail, especially as no evidence has been adduced by the investigating agency suggesting a likelihood of her fleeing from justice or tampering with prosecution evidence. In the aftermath, the bail petition is allowed, and the petitioner is ordered to be released from judicial custody, subject to furnishing personal and surety bonds of Rs 2 lakhs each to the satisfaction of the learned trial Judge, making an undertaking not to tamper with prosecution evidence or influence witnesses, appearing before the trial Court as directed, and depositing her passport with the investigating officer and leaving the country only with permission of the Court., The foregoing observations are meant only for the disposal of the present petition and shall have no bearing on the merits of the trial arising from the FIR. The records of the learned committee Court are to be returned forthwith, and the records of the Central Bureau of Investigation are also to be returned forthwith to the learned counsel for the Central Bureau of Investigation.
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Date of decision: 12 May 2023. Writ Petition (Civil) 6332/2023 and Civil Miscellaneous Application 24870/2023 through: Mr. Rajiv Bajaj, Mr. Saurabh Soni, Mr. Karan Prakash and Ms. Shruti Khosla versus through: Mr. T. Singh Dev, Mr. Abhijit Chakravarty, Ms. Anum Hussain, Mr. Aabhaas Sukhramani, Mr. Tanishq Srivastava and Mr. Bhanu Gulati, Ms. Nisha Bhambhani, Mr. Rajat Arora and Ms. Mariya Shahab, Ms. Mamta Jha, Mr. Rohan Ahuja and Ms. Shruttima Ehersa, Advocates for Prathiba M. Singh., The hearing was conducted in hybrid mode., This is a petition filed by the petitioner, Azmat Ali Khan, seeking removal of videos, tweets and various news items appearing on online platforms and news channels in respect of FIR No. 295/2023 dated 19 April 2023 registered at Police Station Dabri, Dwarka, Delhi, lodged against the petitioner. The petitioner contends that the news constitute fake news, threats and are severely jeopardising his life, reputation and safety. The petitioner is a classical singer., It is stated that an FIR has been lodged by a lady with whom the petitioner was in a relationship for the last eight years. The allegations in the FIR are currently under investigation by the concerned police authorities. Senior Counsel for the petitioner, Mr. Rajiv Bajaj, submits that the circulation of the videos is posing a great threat to the independent investigation of the FIR and to the petitioner’s personal safety and security. He further submits that the videos released by Sudarshan News and other platforms are extremely derogatory and that comments on the YouTube platform show a threat to his life. The petitioner has written an email dated 9 May 2023 to the respondents regarding his grievances., On behalf of Respondent No. 4, Google, Ms. Mamta Jha submits that since the FIR has already been registered, the originators of the videos ought to be heard and orders may then be passed., On behalf of Respondent No. 3, News Broadcasting & Digital Standards Authority, Senior Counsel Ms. Nisha Bhambhani submits that none of the news channels, namely Respondent Nos. 6 and 7 – Suresh Chavanke and Odisha Television Limited respectively – are members of the NBDSA. Therefore, Respondent No. 3 has no jurisdiction over the said news channels., Mr. T. Singh Dev, Senior Counsel on behalf of Respondent No. 2, Press Council of India, states that the email received on 9 May 2023 is being looked into by the Press Council of India, which has jurisdiction only over the print media., Heard. Considering the nature of this matter, notice is issued to all the respondents., On behalf of Respondent No. 2, Mr. T. Singh Dev, Senior Counsel accepts notice. On behalf of Respondent No. 3, Ms. Nisha Bhambhani, Senior Counsel accepts notice. On behalf of Respondent No. 4, Ms. Mamta Jha, Senior Counsel accepts notice., Notice is also issued to the remaining respondents, Nos. 5 to 10., In addition, notice is issued to Ms. Hetu Arora Sethi, Assistant Superintendent of Police, on behalf of Delhi Police. A status report is to be placed on record by Delhi Police regarding the investigation of FIR No. 295/2023 dated 19 April 2023 registered at Police Station Dabri, Dwarka, Delhi., Ms. Hetu Arora Sethi, Assistant Superintendent of Police, Delhi Police, is also directed to contact the complainant in the said FIR and intimate the complainant about the pendency of this petition. She shall file a status report regarding the investigation by the next date., Mr. Sandeep Mohapatra, Assistant Superintendent of Police, who is present in Delhi High Court, is requested to accept notice on behalf of the Union of India. He is further requested to seek instructions from Respondent No. 1, Ministry of Electronics and Information Technology, and from the Ministry of Information and Broadcasting., Considering that there is a severe threat to the independent investigation of the FIR and to the safety and security of the petitioner, as evident from the comments and videos placed before the Delhi High Court, the links set out below are directed to be immediately blocked for public viewing until the next date of hearing: https://twitter.com/sudarshannewstv/status/1655117315149803521?s=48&t=xeZ5uN46Q15a7B-7MV5tg, https://www.youtube.com/watch?v=NhLgvVHMkAM, https://odishatv.in/news/crime/sikh-widow-in-delhi-alleges-love-jihad-files-case-of-rape-conversion-threat-203657, https://organiser.org/2023/05/08/172945/bharat/delhi-sikh-widow-files-fir-for-rape-attempting-conversion-says-azmat-aliforced-me-to-adopt-islam-which-denied, https://sikh-widow-alleges-love-jihad-files-case-of-conversion-threat-and-rape., Order dated 24 May 2023. Dated under the signature of the Court Master.
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Reserved on 11.08.2021 and delivered on 25.08.2021. Applicant: Sher Ali. Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Zia Uddin Ahmad and Tanisha Jahangir Monir. Counsel for Opposite Party: G. A. Hon'ble Samit Gopal, J., Heard Sri Zia Uddin Ahmad, learned counsel for the applicant, and Sri Sanjay Kumar Singh, learned Additional Government Advocate for the State, and perused the material on record., This bail application under Section 439 of the Criminal Procedure Code has been filed by the applicant Sher Ali, seeking enlargement of bail during trial in connection with Case Crime No. C-37 of 1997, under Sections 364, 304 and 506 of the Indian Penal Code, registered at Police Station Phoolpur, District Varanasi., The prosecution case, as per the First Information Report registered by Sanjay Kumar Gupta, the son of the deceased Gorakhnath alias Om Prakash Gupta, alleges that on 27 February 1997 a person from Kumar Guest House, Lanka, Varanasi, together with Mahesh Chandra Agarwal, approached the first informant’s house and inquired about his father. On 28 February 1997 at about 04:00 a.m., the same person, accompanied by Sub‑Inspector Shankhdhar Dwivedi of Kotwali Police Station, Shahdol, and police personnel including the present applicant Sher Ali, Digvijay Pandey, Jagat Singh, the transporter Suresh Prasad Agarwal, Mahesh Chandra Agarwal and unknown persons, arrived in three vehicles, shouted the name of the first informant’s father, forcibly seized him, assaulted him and took him inside a Commander Jeep. The first informant’s brothers and mother inquired about the reason, but the persons gave no answer and also kidnapped the cleaner Kariya Yadav and seized a truck. The first informant sought the whereabouts of his father at various police stations and the district court, and later informed the Senior Superintendent of Police, Varanasi, by telegram. On 1 March 1997 he sent a telegram to the Senior Superintendent of Police, Varanasi, and the Superintendent of Police, Shahdol. On 2 March 1997 a police constable from Phoolpur Police Station conveyed a wireless message that the father had died of a heart attack. The first informant, with relatives, travelled to Shahdol on 3 March 1997, learned from the newspaper that the dead body was lying in the District Hospital and that a post‑mortem had been conducted. He discovered that his father had been taken from Varanasi to Kotwali Police Station, Shahdol, by the District Inspector, Kotwali In‑charge R. Rajan, Sub‑Inspector Shankhdhar Dwivedi, and the police personnel named above, and was mercilessly assaulted, resulting in death at the police station on 1 March 1997 at about 08:00 p.m. The police, in conspiracy with the doctors of the District Hospital, falsified the admission and death records to show death in the hospital. The cleaner Kariya was illegally detained. The police did not allow the family to see the dead body until 04:00 p.m. On 2 March 1997 the first informant gave a tehreer to the Inspector In‑charge Kotwali about the kidnapping and murder, but no First Information Report was registered. On 3 March 1997 at about 04:00 p.m. the first informant and his companions were allowed to see the dead body, which was swollen, foul‑smelling and bore injury marks. The Inspector In‑charge R. Rajan and other police personnel threatened them and forced the cremation of the body near a river at Akasvani, Shahdol, after arranging wood. On 4 March 1997 the first informant returned to Varanasi, reported the incident to Phoolpur Police Station and performed the thirteenth‑day rites. Subsequent inquiries at Phoolpur Police Station on 16 March and 25 March 1997 yielded no further information, and the constable advised the informant to apply to the Senior Superintendent of Police. Newspapers in Shahdol reported the custodial death, leading political leaders to move applications for a murder case and a high‑level inquiry. The first informant sent an application by registered post to the Senior Superintendent of Police, Varanasi, but no action was taken. The petition asserts that the persons kidnapped and murdered his father and that a case should be registered and investigated in the interest of justice., The First Information Report was registered on the basis of an application dated 21 April 1997 moved by Sanjay Kumar Gupta, the first informant, under Section 156(3) of the Criminal Procedure Code before the Chief Judicial Magistrate, Varanasi, with a prayer for registration of the case and investigation., The post‑mortem examination of the deceased Gorakhnath alias Om Prakash Gupta was conducted on 2 March 1997 at 12:45 p.m. by a team of three doctors of District Shahdol. The doctors found two contusions with reddish‑blue margins: one measuring 6 cm by 2 cm on the lateral aspect of the lower part of the left thigh, and another measuring 5 cm by 2 cm just above the first injury. They opined that both injuries were antemortem and caused by a hard blunt object. The cause of death could not be definitively ascertained; the viscera were preserved for chemical and histopathological examination, and the time since death was within 24 hours., After registration of the First Information Report, the matter was investigated by the local police, but by order dated 9 October 1997 of the Superintendent of Police (Rural), Varanasi, the investigation was transferred to the Special Investigation Squad (S.I.S.) Branch, Varanasi. The S.I.S. concluded its investigation and submitted Final Report No. 18 of 1998 dated 23 October 1998., Against the final report, the first informant filed a protest petition dated 31 January 2001 along with his affidavit. The Court of the Chief Judicial Magistrate, Varanasi, by order dated 5 June 2007, accepted the protest petition, rejected the final report, summoned the accused persons for offences under Sections 364, 304 and 506 of the Indian Penal Code, issued non‑bailable warrants, and ordered the case to be registered as a State case. The order is annexed as annexure 26 to the affidavit., Against the order dated 5 June 2007, an application under Section 482 of the Criminal Procedure Code was filed by R. Rajan before the Allahabad High Court, numbered Criminal Miscellaneous Application (under Section 482) No. 22539 of 2007 (R. Rajan v. State of Uttar Pradesh and another). By order dated 13 September 2007, the further proceedings in the case were stayed. The matter was heard finally on 27 August 2012, the judgment was reserved, and the case was listed for rehearing before the appropriate Bench by order dated 14 February 2013. An interim order directed continuation till the next date fixed., The first informant Sanjay Kumar Gupta then filed Writ Petition (Criminal) No. 8 of 2018 before the Supreme Court of India titled Sanjay Kumar Gupta v. State of Uttar Pradesh and another. By order dated 23 September 2020, the Supreme Court vacated the order dated 13 September 2007 passed in the Section 482 petition and directed the Chief Judicial Magistrate, Varanasi, to proceed with the matter in accordance with law. The Supreme Court observed that the allegation involved custodial death of the petitioner’s father, that the medical report dated 21 February 1997 showed a normal cardiac condition, and that ante‑mortem injuries were present. It noted that the investigation had been transferred to the S.I.S. Branch, that the final report dated 23 October 1998 had been protested, and that the Chief Judicial Magistrate had rejected the closure report and issued summons and non‑bailable warrants. The Supreme Court vacated the stay order of 13 September 2007, directed the Chief Judicial Magistrate to proceed, and ordered that the order be placed before the Chief Justice of the Allahabad High Court for administrative action. The writ petition was allowed, parties were to bear their own costs, and the trial was directed to be conducted on a day‑to‑day basis and concluded within one year from commencement. Pending applications were disposed of., The Section 482 petition (Criminal Miscellaneous Application No. 22539 of 2007) was connected with two other petitions, Criminal Miscellaneous Application Nos. 24013 of 2007 (Shankhdhar Dwivedi and others v. State of Uttar Pradesh and others) and 24145 of 2007 (Suresh Chandra Agrawal v. State of Uttar Pradesh and another), which were disposed of by order dated 8 October 2020 of the Allahabad High Court in view of the Supreme Court order dated 23 September 2020 in Writ Petition (Criminal) No. 8 of 2018., The order dated 8 October 2020 of the Allahabad High Court was challenged before the Supreme Court of India in Special Leave to Appeal (Criminal) No. 5499 of 2020 (R. Rajan v. State of Uttar Pradesh and another). The Supreme Court dismissed the appeal by order dated 19 November 2020, stating that despite the learned counsel’s arguments, it was unable to interfere with the impugned order under Article 136 of the Constitution of India. All pending applications were also disposed of., Subsequently, co‑accused Jagat Singh and the present applicant Sher Ali preferred Criminal Miscellaneous Anticipatory Bail Application No. 7440 of 2021 (Jagat Singh and another v. State of Uttar Pradesh). By order dated 6 April 2021, anticipatory bail was granted, providing that in the event of arrest the applicants would be released on anticipatory bail until the conclusion of the trial, subject to conditions. The order noted that Sub‑Inspector Shankhdhar Dwivedi had already been granted anticipatory bail in Criminal Miscellaneous Anticipatory Bail Application under Section 438 of the Criminal Procedure Code No. 1195 of 2021, dated 3 February 2021, and that R. Rajan had similarly been granted anticipatory bail in Criminal Miscellaneous Anticipatory Bail Application under Section 438 of the Criminal Procedure Code No. 9211 of 2020, dated 3 February 2021. Accordingly, the present applicants were entitled to similar protection., The conditions of anticipatory bail were: (i) the applicants shall make themselves available for interrogation by a police officer as and when required; (ii) they shall not, directly or indirectly, induce, threaten or promise any person acquainted with the facts of the case to dissuade him or her from disclosing such facts to the court or any police officer or tamper with evidence; (iii) they shall not leave India without prior permission of the court; and (iv) in default of any condition, the investigating officer may file an appropriate application for cancellation of anticipatory bail. The application was disposed of., Co‑accused R. Rajan had also filed Criminal Miscellaneous Anticipatory Bail Application No. 9211 of 2020 (R. Rajan v. State of Uttar Pradesh) and was granted anticipatory bail by order dated 3 February 2021. That order was challenged before the Supreme Court of India in Special Leave to Appeal (Criminal) Nos. 1928‑1929 of 2021 (Sanjay Kumar Gupta v. State of Uttar Pradesh and another) and the order dated 6 April 2021 in Criminal Miscellaneous Anticipatory Bail Application No. 7440 of 2021 was also challenged in Special Leave to Appeal (Criminal) No. 3496 of 2021. Both SLPs were disposed of by order dated 25 May 2021., The SLP (Criminal) Nos. 1928‑1929 of 2021 involved the informant of Case Crime No. C‑37 of 1997, under Sections 364, 304 and 506 of the Indian Penal Code, challenging the Allahabad High Court orders granting anticipatory bail to Sub‑Inspector Shankhdhar Dwivedi (Application No. 1195 of 2021) and to R. Rajan (Application No. 9211 of 2020). The Supreme Court noted that the allegations concerned custodial death of the appellant’s father on 1 March 1997 after his arrest on 28 February 1997, and that the High Court’s observations were based on generalised statements about arrests and human rights, without specific consideration of the material facts. The Court expressed that while it could not endorse the High Court’s approach, it would not comment further as the respondents had surrendered and were in custody, and their right to seek regular bail during trial remained. The appeals were disposed of, and all pending applications were also disposed of., The SLP (Criminal) No. 3496 of 2021 challenged the order dated 6 April 2021 of the Allahabad High Court granting anticipatory bail to co‑accused Jagat Singh and Sher Ali in Case Crime No. C‑37 of 1997. The Supreme Court held that the order was in conflict with the stay order dated 25 February 2021 passed by this Court in SLP (Criminal) Nos. 1928‑1929 of 2021, which had stayed the operation of the High Court’s anticipatory bail order. The Court observed that the stay order had not been brought to the notice of the High Court, leading to the issuance of an order that was not operative.
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Thus, the order so passed by the High Court of Allahabad on 06.04.2021 cannot be approved for the reasons and observations in the preceding part of this order; and additionally for the reason that the impugned order dated 06.04.2021 stands in conflict with the stay order passed by the Supreme Court of India on 25.02.2021. In this matter, by an order passed by the Supreme Court of India on 28.04.2021, operation of the impugned order dated 06.04.2021 was stayed with directions to respondent Nos. 2 and 3 to surrender. It has been submitted by the learned counsel for these respondents that they surrendered on 19.05.2021. Taking note of the submissions so made and for the reasons foregoing, this appeal is also allowed and, while setting aside the impugned order and rejecting the application made by the respondents for anticipatory bail, we would extend the same liberty and observations for these respondents that it would be open for them to apply for regular bail and, if any such prayer is made by them, the same may be considered expeditiously by the Supreme Court of India in accordance with law, uninfluenced by any observations occurring in this matter in any of the orders pertaining to the plea for anticipatory bail and irrespective of any observation made in this appeal. The appeal stands disposed of in the above terms. All pending applications also stand disposed of., The Supreme Court of India had set aside the orders of anticipatory bail granted in the petition of the applicant and co‑accused persons and had rejected the said applications and directed them to apply for regular bail and directed that if any such prayer is made by them, the same be considered expeditiously in accordance with law. The applicant surrendered on 19.05.2021 before the court below at Varanasi and filed an application for bail which was rejected by an order dated 30.06.2021 passed by the Additional Sessions Judge, Court No. 1, Varanasi. Consequently, the present bail application has been filed before the Supreme Court of India. The series of prolonged litigation ends here with the applicant surrendering before the court concerned and then resorting to filing a bail application under Section 439 of the Criminal Procedure Code., Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case; that the deceased Gorakhnath alias Om Prakash Gupta was involved in Crime No. 103 of 1997 under Sections 420 and 406 of the Indian Penal Code, Police Station Kotwali, District Shahdol, in which he was arrested and a charge sheet was submitted against him and Kariya alias Chandrabali on 25.07.1997; that Shiv Shankar Gupta, to whom the paper loaded in the said truck was sold, is also an accused in the charge sheet as an absconder; that the deceased, while being in custody at Police Station Kotwali, District Shahdol, complained of chest pain and, after being taken to the toilet by the applicant who was present there, fell on the stairs due to a severe heart attack; that the deceased was taken to the hospital, admitted, and later died, and that doctors after the post‑mortem could not give any definite opinion about the cause of death, the viscera examined by the Forensic Science Laboratory did not reveal any poison, and the death was a natural death; that after lodging the First Information Report on the basis of an application under Section 156(3) of the Criminal Procedure Code, the matter was investigated by the local police but, by an order dated 09.10.1997 passed by the Superintendent of Police (Rural), Varanasi, the investigation was transferred to the Special Investigation Squad, Varanasi; that the investigation concluded by way of submission of a final report in the court on 23.10.1998, after which a protest petition was filed on 31.01.2001, which was allowed, the final report was rejected, and the applicant and other accused persons, a total of six named in the First Information Report, were summoned to face trial; that the First Information Report is based on totally false and frivolous allegations, there is no corroboration of the prosecution’s version that the deceased died a custodial death, the death was natural, the applicant is a retired government servant and his implication is false; and that the applicant has no criminal history as stated in paragraph 84 of the affidavit and has been in jail since 19.05.2021., Per contra, learned Additional Government Advocate for the State opposed the prayer for bail and argued that the deceased was taken away from his house by the applicant and co‑accused persons, which is not disputed; that the deceased was under police custody at Police Station Kotwali, District Shahdol on the date of his death; that the death occurred while the deceased was under police custody; that the order summoning the accused while allowing the protest petition and rejecting the final report is well considered; that the beating of the deceased while in police custody is evident from two contusions on his body, the sites of which are fleshy parts that can be received only after being assaulted; that, on the applicant’s own showing and referring to paragraph 23, it was the applicant who was present when the deceased felt unwell; that the present case is a case of custodial death in which the deceased received injuries as evident from the post‑mortem report; that the post‑mortem report and the opinion of the doctors do not suggest any heart attack or heart problem; that the release of the applicant at the stage when the trial has been expedited by the Supreme Court of India by an order dated 23.09.2020 may have an adverse effect as he is a resident of a different State, Madhya Pradesh; that the matter is serious as it concerns custodial death; and that the prayer for bail of the applicant be rejected., After having heard learned counsels for the parties and having gone through the records, it is evident that the applicant is named in the First Information Report. The prosecution’s case that the deceased was taken to Police Station Kotwali, District Shahdol is not under dispute. The applicant is named specifically and has been assigned the role of taking the deceased from Varanasi to Shahdol along with other co‑accused persons. The presence of the applicant at the police station has been pleaded in paragraph 23 of the bail application, and it is pleaded that when the deceased felt ill, the applicant was present. The deceased, as per the post‑mortem report, has received injuries on his body which are suggestive of assault by a hard and blunt object. There is no finding in the post‑mortem examination report that would be suggestive of any heart problem or cardiac arrest. There is nothing to show that the death was natural. The present case is a case of custodial torture and death. The Supreme Court of India, by an order dated 23.09.2020 passed in Writ Petition (Criminal) No. 8 of 2018, directed the trial court to proceed with the trial on a day‑to‑day basis and to endeavour to conclude it within a period of one year. The applicant is a resident of a different State. He has been in the police force, which is a disciplined force enshrined with the duty of maintaining law and order and protecting citizens. His release may have an adverse effect on the trial., Custodial violence, custodial torture and custodial deaths have always been a concern for civilized society. Time and again the judicial verdicts of the Supreme Court of India and other courts have shown their concern and anguish in such matters., In the celebrated case of D.K. Basu v. State of West Bengal (1997) 1 SCC 416, the Supreme Court of India, while expressing its anguish in cases of custodial deaths, observed: “Custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law‑breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human‑rights jurisprudence. The answer, indeed, has to be an emphatic No. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under‑trials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.”, In Neelabati Bahera v. State of Orissa (1993) 2 SCC 746, the Supreme Court of India pointed out that prisoners and detenues are not denuded of their fundamental rights under Article 21 and that only such restrictions as are permitted by law can be imposed on the enjoyment of the fundamental rights of arrestees and detenues. It was observed: “It is axiomatic that convicts, prisoners or under‑trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under‑trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law.”, Instances have come to our notice where the police have arrested a person without warrant in connection with the investigation of an offence, without recording the arrest, and the arrested person has been subjected to torture to extract information or to recover case property or to obtain a confession. The torture and injury caused to the arrestee have sometimes resulted in death. Death in custody is not generally shown in the lock‑up records and every effort is made by the police to dispose of the body or to make out a case that the arrested person died after being released from custody. Complaints against such torture or death are generally not given attention by police officers because of ties of brotherhood. No First Information Report at the instance of the victim or his kith and kin is generally entertained and even higher police officers turn a blind eye. Even where a formal prosecution is launched by the victim or his kith and kin, no direct evidence is available to substantiate the charge of torture or causing hurt resulting in death, as the police lock‑up where torture is generally caused is away from public gaze and the witnesses are either policemen or co‑prisoners who are highly reluctant to appear as prosecution witnesses due to fear of retaliation. It is often seen that when a complaint is made against torture, death or injury in police custody, it is difficult to secure evidence against the policemen responsible for resorting to third‑degree methods since they control police‑station records which they can manipulate. Consequently, prosecution against delinquent officers generally results in acquittal. State of Madhya Pradesh v. Shyamsunder Trivedi & Others (1995) 4 SCC 262 is an apt illustration of the observations made above., Further, in the case of Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and another (2003) 7 SCC 749, the Supreme Court of India again showed its anguish in matters of custodial violence, torture and abuse of police powers, observing: “If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time,” said Abraham Lincoln. This Court, in Raghbir Singh v. State of Haryana (1980) 3 SCC 70, took note of these immortal observations while deprecating custodial torture by the police., Custodial violence, torture and abuse of police power are not peculiar to this country; they are widespread and have been a concern of the international community because the problem is universal. The Universal Declaration of Human Rights (1948) stipulates in Article 5 that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Despite this declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication., Now‑days, all around, the problem is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from rooftops to be defenders of democracy and protectors of people’s rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace‑loving puritans and saviours of citizens’ rights., Article 21, one of the luminary provisions in the Constitution of India, 1950, occupies a place of pride in the Constitution. The article mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. This sacred and cherished right, personal liberty, includes the right to live with human dignity and contains an in‑built guarantee against torture or assault by the State or its functionaries. Chapter V of the Criminal Procedure Code, 1973, deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees for making life meaningful and not a mere animal existence. It is therefore difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution., Justice Brandis observed, “Government as the omnipotent and omnipresent teacher teaches the whole people by its example; if the Government becomes a law‑breaker, it breeds contempt for law, it invites every man to become a law unto himself.” (Quoted in Olmstead v. United States, 277 US 438, at p. 485, quoted in Mapp v. Ohio, 367 US 643, at p. 659)., The diabolic recurrence of police torture resulting in terror in the minds of common citizens, that their lives and liberty are under a new and unwarranted peril because guardians of law destroy human rights by custodial violence and torture, has been highlighted in cases such as Gauri Shankar Sharma v. State of Uttar Pradesh (AIR 1990 SC 709), Bhagwan Singh and Anr. v. State of Punjab (1992) 3 SCC 249, Nilabati Behera alias Lalita Behera v. State of Orissa (AIR 1993 SC 1960), Pratul Kumar Sinha v. State of Bihar (1994) Supp. (3) SCC 100, Kewal Pati (Smt.) v. State of Uttar Pradesh (1995) 3 SCC 600, Inder Singh v. State of Punjab (1995) 3 SCC 702, State of Madhya Pradesh v. Shyamsunder Trivedi (1995) 4 SCC 262, and D.K. Basu v. State of West Bengal (1997) 1 SCC 416. These decisions have not softened the inhuman approach in dealing with persons in custody., Rarely, in cases of police torture or custodial death, direct ocular evidence of the complicity of police personnel is available. Bound by ties of brotherhood, police personnel often prefer to remain silent and frequently pervert the truth to save their colleagues, as illustrated in the present case where police witnesses feigned ignorance about the whole matter., The exaggerated adherence to proof beyond reasonable doubt by the prosecution, even when the prosecuting agencies are themselves at fault, ignoring ground realities and the peculiar circumstances of a given case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis, society suffers and a criminal is encouraged. Torture in police custody, which has increased of late, receives encouragement from such unrealistic approaches, reinforcing the belief among police that no harm will come to them if a prisoner dies in lock‑up because evidence is scarce. Courts must not lose sight of the fact that death in police custody is perhaps one of the worst crimes in a civilized society governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights recognized by the Constitution of India and is an affront to human dignity. Police excesses and maltreatment of detainees, under‑trial prisoners or suspects tarnish the image of any civilized nation and encourage the men in khaki to consider themselves above the law., Considering the totality of the case, the nature of evidence available on record, I am not inclined to release the applicant on bail. The bail application is, accordingly, rejected., The party shall file a computer‑generated copy of such order downloaded from the official website of the High Court of Allahabad. The computer‑generated copy of such order shall be self‑attested by the counsel of the party concerned. The concerned court, authority or official shall verify the authenticity of such computerized copy of the order from the official website of the High Court of Allahabad and shall make a declaration of such verification in writing.
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Date of decision: 22 December 2023. Present: Mr. Gurinder Singh Dhillon, Advocate for the appellant‑wife; Mr. Ashok Kumar Jindal, Advocate for the respondent‑husband. The appellant‑husband has preferred the present appeal against the order dated 25 September 2023 passed by the learned Principal Judge, Family Court, Gurugram (hereinafter referred to as Family Court) whereby the application filed by the husband raising objections to the wife’s affidavit of evidence has been rejected., The husband filed a petition for grant of divorce on the grounds of cruelty and desertion against the wife before the learned Family Court. It was stated in the petition that the marriage between the appellant (husband) and the respondent (wife) was solemnised on 04 May 2016 at Ghaziabad in Uttar Pradesh. No child was born out of this wedlock. The petition averred that it was the second marriage of the appellant as he was earlier married to Ms. Bhawana on 25 January 2011. That marriage was dissolved by a decree of divorce dated 05 April 2013 by mutual consent. The parties to the instant list resided and cohabited together as husband and wife. On 22 August 2016, the appellant was transferred to Kolkata and he requested the respondent to accompany him, which was flatly refused by her. Thereafter the parties continued to reside separately in different cities and met intermittently. The alliance soon turned abnormal and both parties levelled allegations and counter‑allegations against each other. Consequently, the appellant‑husband was constrained to file a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 1955 Act) before the Family Court at Gurugram seeking dissolution of marriage by grant of a decree of divorce on the grounds of cruelty and desertion., Upon notice by the learned Family Court, the wife appeared and filed a written statement denying the allegations made in the petition seeking decree of divorce. She denied that she was aware that the appellant was a divorcee and alleged that he misrepresented himself as unmarried at the time of her marriage. She further stated that it was the appellant and his family members who had committed cruelty upon her. She averred that the appellant had miserably failed in discharging his duties as a husband and deliberately avoided her company, thereby depriving her of conjugal relationship. Accordingly, dismissal of the divorce petition was prayed for., From the pleadings of the parties, issues were framed by the learned Family Court vide order dated 06 July 2019. The issues framed were: (1) Whether the marriage between the parties is liable to be dissolved by passing a decree of divorce on the grounds mentioned in the petition? (2) Whether the petitioner is stopped by his own act and conduct from filing the present petition? No other issue was pressed or claimed by the learned counsel for the parties. Onus was not disputed. For an early settlement of family dispute, where possible, only a memorandum of the substance of what the witness deposes shall be recorded and affidavits of formal witnesses shall be recorded through affidavits only. Parties were directed to appear on 19 November 2019 for evidence of the petitioner and to file pleadings, documents and list of witnesses within seven days, failing which they shall bring the witnesses at their own responsibility. Advance copies of affidavits were to be supplied to the respondent’s counsel in time for cross‑examination., Both parties sought to lead their evidence. The appellant‑husband submitted his evidence by way of affidavit and was cross‑examined on behalf of the wife. Vide order dated 10 August 2023, the counsel for the husband closed evidence on his behalf. An affidavit of evidence was submitted on behalf of the wife to which objections were raised by the husband by filing an application/objections. The wife filed her reply to this application/objections. In this backdrop, the learned Family Court passed the order dated 25 September 2023 thereby rejecting the objections raised by the husband and dismissing the application filed by him. The order dated 25 September 2023 is impugned in the present appeal., Learned counsel for the appellant‑husband has argued that the impugned order has been passed in derogation of the provision contained in Order VIII Rule 1‑A of the Civil Procedure Code, 1908 since the documents had not been produced by the wife along with the written statement filed by her. It has been further argued that there was no application filed by the wife for grant of leave of Court in terms of Order VIII Rule 1‑A (3) of the Civil Procedure Code, 1908. It has also been argued that the rejection of objections raised by the husband has caused grave prejudice to him as the wife had introduced new documents before the Family Court at the time of leading evidence and, therefore, the impugned order deserves to be set aside., Per contra, learned counsel appearing for the respondent‑wife submits that the impugned order has been passed keeping in view the provisions of the Family Courts Act, 1984 and no prejudice has been caused to the husband as he is yet to cross‑examine the wife. He also argued that any material which may not be otherwise admissible or relevant under the Indian Evidence Act, 1872 may still be taken into evidence by the Family Court to decide a matter before it. In his submission the impugned order does not call for any interference by this Court., We have heard learned counsel for the parties and have perused the available record with their assistance. The prime issue for determination in the present appeal is whether the provisions of the Civil Procedure Code, 1908 (hereinafter referred to as CPC) and the Indian Evidence Act, 1872 (hereinafter referred to as the 1872 Act) are applicable to proceedings under the Family Courts Act, 1984 (hereinafter referred to as the 1984 Act) and, if so, to what extent. The analogous issue is whether the learned Family Court ought to have permitted the respondent‑wife to adduce into evidence the documents which were not annexed by her along with the written statement filed by her., Order VIII Rule 1‑A of the Code of Civil Procedure, 1908 reads: “Duty of defendant to produce documents upon which relief is claimed or relied upon by him. (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set‑off or counter‑claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. [(3) A document which ought to be produced in Court by the defendant under this rule, but is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.]” The Family Courts Act, 1984 stipulates: “(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 or the rules made thereunder shall apply to the proceedings under Chapter IX of that Code before a Family Court. (3) Nothing in sub‑section (1) or sub‑section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject‑matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other. 13. Right to legal representation: Notwithstanding anything contained in any law, no party to a suit or proceedings before a Family Court shall be entitled, as of right, to be represented by a legal practitioner; provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae. 14. Application of Indian Evidence Act, 1872: A Family Court may receive as evidence any report, statement, document, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. 20. Act to have overriding effect: The provisions of this Act shall have effect notwithstanding anything inconsistent therein contained in any other law for the time being in force.”, The precedents germane to the matter are as follows: (i) Chief Justice of A.P. v. L.V.A. Dikshitulu, 1979 (2) SCC 34 – the primary principle of interpretation is that a constitutional or statutory provision should be construed according to the intent of those who made it; where the language is precise and plain, it must be given effect regardless of consequences. (ii) National Insurance Co. Ltd. v. Laxmi Narain Dhut, 2007 (3) SCC 700 – the Golden Rule of interpretation holds that statutes are to be interpreted according to the grammatical and ordinary sense of the words, but where literal interpretation leads to unjust results, the legislative intent prevails. (iii) Jose Paulo Coutinho v. Maria Luiza Valentina Pereira & Anr., 2019 (20) SCC 85 – when there is a conflict between a general law and a special law, the special law prevails (generalia specialibus non derogant). (iv) Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1995 SC 661 – Heydon’s Rule of Interpretation requires consideration of the common law before the enactment, the mischief the law intended to remedy, the remedy provided, and the true reason for the remedy. (v) R.M.D. Chamarbaugwalla v. Union of India, 1957 AIR 628 – interpretation must ascertain the intent of the makers, not merely a literal construction. (vi) Shivanand Damodar Shanbhag v. Sujata Shivanand Shanbhag, 2013 (16) RCR (Civil) 623 – Section 14 of the Family Courts Act provides an exception to the general rule of evidence; the Family Court may admit material it deems necessary without being bound by the strict provisions of the Indian Evidence Act. (vii) Sugandhi (dead) by Lrs & Anr. v. P. Rajkumar, 2020 (10) SCC 706 – Order VIII Rule 1‑A of the Civil Procedure Code, 1908 mandates that a defendant produce documents with the written statement; a document not produced may be admitted in evidence only with the leave of the Court, and the discretion to grant such leave must be exercised judiciously., Sections 10(1) of the 1984 Act empower a Family Court to be deemed a civil court for the purposes of exercising all powers vested in a civil court and make the provisions of the Civil Procedure Code, 1908 applicable to proceedings before it, subject to the other provisions of the Act and the Rules. Section 10(3) expressly provides that nothing in Section 10(1) shall prevent the Family Court from laying down its own procedure to achieve settlement or to determine the truth of the facts in dispute. This shows that while the legislature broadly mandated the application of the Civil Procedure Code to Family Court proceedings, it simultaneously vested discretion in the Family Court to devise its own procedure. Section 20 of the 1984 Act contains a non‑obstante clause giving the Act overriding effect over any other law. Consequently, the Civil Procedure Code, 1908 does not apply compulsorily to proceedings under the Family Courts Act, 1984., The Golden Rule of Interpretation, as applied by the Supreme Court in Dikshitulu’s case and Dhut’s case, indicates that the language of the 1984 Act is precise, plain and unequivocal, expressing a clear legislative intent that the Civil Procedure Code, 1908 does not mandatorily apply in full force to proceedings under the 1984 Act. The Statement of Objects and Reasons for the enactment of the Family Courts Act, 1984 emphasises the need for a special procedural regime to facilitate speedy settlement of family disputes, simplifying evidence and procedure, and denying parties the automatic right to be represented by legal practitioners. The Heydon’s Rule of Interpretation further supports that the special law (Family Courts Act) prevails over the general law (Civil Procedure Code) in the field of matrimonial disputes., In sum, the principles of law that emerge are: (I) Section 10(3) read with Section 20 of the Family Courts Act, 1984 contains a non‑obstante clause giving supremacy to the provisions of the Act over other enactments. (II) The Civil Procedure Code, 1908 is not applicable with its full rigour to proceedings under the Family Courts Act, 1984.
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In other words, a Family Court is entitled to lay down its own procedure, as warranted by the facts and circumstances of a given case, and it is not bound by the procedural rigours of the Code of Civil Procedure, 1908. However, while devising its own procedure, the Family Court must ensure that such procedure is in consonance with the basic canons of jurisprudence such as the principles of natural justice, good conscience and equity., A Family Court is well within its powers to take into evidence any material which, in the judicial discretion of that Family Court, may be essential for effectively adjudicating a dispute before it, whether or not such material fulfills the requirements of the Indian Evidence Act, 1872. While exercising such discretion, the Family Court must bear in mind that receiving such material as evidence does not violate the basic principles of our legal system., Order VIII, Rule 1‑A of the Code of Civil Procedure, 1908 is not a mandatory provision; it is a directive in nature, especially with respect to proceedings under the Family Courts Act, 1984. A Family Court will be well within its judicial discretion to take into evidence any material in terms of sub‑rule (3) of Order VIII, Rule 1‑A without any formal application for leave by the defendant. However, while exercising such discretion the Family Court is required to pass a reasoned order., The appellant husband filed a petition for grant of divorce on the grounds of cruelty and desertion and referred to certain instances to substantiate his allegations. The respondent wife filed her written statement denying the allegations and stated that the attitude and conduct of the husband and his family members became so unbearable that she was constrained to leave her matrimonial home. While framing issues vide order dated 06‑07‑2019, the learned Family Court directed that only a memorandum of the substance of what the witnesses depose shall be recorded and that the evidence of formal witnesses shall be recorded through affidavits only. It is clear that the Family Court consciously devised its own procedure and did not follow the procedural rigours of the Code of Civil Procedure or the Indian Evidence Act. Both parties sought to lead evidence in pursuance of the issues framed vide order 06‑07‑2019 and were aware of the nature of the procedure adopted by the learned Family Court for adjudication of the case., The issue in hand concerns objections raised by the husband to the wife’s attempt to produce documents along with her affidavit of evidence, which were not produced by the wife with the written statement and for which no formal application for leave under sub‑rule (3) of Order VIII, Rule 1‑A of the Code of Civil Procedure was filed. The husband filed an application raising objections to the wife producing such documents; the wife filed a reply. The learned Family Court, vide the impugned order, rejected the husband’s objections, recorded that the husband had been provided with copies of all documents appended to the wife’s affidavit of evidence and that he would be permitted to cross‑examine the wife on all aspects including those documents. Accordingly, no prejudice can be said to have been caused to the husband, and no infirmity is found in the impugned order., There is no gain in stating that the husband, if so advised, may lead evidence in rebuttal or may make a plea for additional evidence. If such pleas are raised, they shall be dealt with by the learned Family Court in accordance with law. As a sequel to the foregoing discussion, the impugned order dated 25‑09‑2023 passed by the learned Family Court is upheld and the instant appeal is dismissed. Nothing herein shall be construed as an expression of opinion on the merits of the case. No order as to costs.
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Criminal Revisional Jurisdiction Present: Honourable Justice Shampa Dutt (Paul) Criminal Revision 1284 of 2019 Shampa Deb (Basu) The State of West Bengal & Another For the Petitioner: Mister Pradip Kumar Mandal. For the State: Mister Saswata Gopal Mukherjee, Public Prosecutor. Miss Rita Datta. For the Opposite Party: None. Hearing concluded on 14 September 2023. Judgment on 5 October 2023., The present revision has been preferred praying for quashing of the proceeding including the impugned Charge Sheet No. 648/16 dated 31 March 2016 under Sections 341, 323 and 506 of the Indian Penal Code against the petitioner in respect of the General Register Case No. 6024 of 2015 whereby cognizance has been taken by the Learned Chief Judicial Magistrate, Baruipur, South 24 Parganas., The petitioner’s case is that her husband Subrata Kumar Dev, son of Late Prabhat Kumar Dev of Baruipur Dattapara, Panchanan Tala Road, Ward No. 8, under Baruipur Police Station lodged a written complaint that his wife and his son were living in his father‑in‑law’s house for six years. When he wanted to keep in touch with his son, he was driven out from the house by his wife. Then his wife came to his house in Baruipur and beat and threatened him. This gave rise to the present case., The State has placed the case diary along with a memorandum of evidence., In spite of due service, there is no representation on behalf of the opposite party No. 2., From the materials on record including the case diary, it appears that the parties got married in the year 2001; they had a child/son in 2009; the husband’s mother also expired in 2009; the accused wife’s father expired in 2021 at the age of 90 years; her mother, aged 70 years, is 100 percent blind in both eyes; the petitioner works as a primary school teacher near her parents’ house; none of the complainant’s parents are alive; since the death of his mother, the opposite party No. 2/husband/complainant has been residing with the petitioner’s family; the dispute appears to be in respect of selling or retaining the complainant’s house; there does not appear to be any marital problems as no allegations of mental or physical cruelty have been made against the complainant/husband., Such being the situation, the main problem between the parties is regarding their place of stay., But the circumstances in this case clearly support the petitioner wife herein., The school where she teaches is near her mother’s house, who as seen from the disability certificate filed, is 100 percent blind in both eyes., The complainant husband’s parents are not alive nor is he employed., Admittedly, since his mother’s death in 2009, he has been residing in the petitioner’s paternal home., Now when the mother of the wife is 100 percent blind in both eyes, having none to look after and protect her, the opposite party No. 2/husband is being unreasonable., A situation like this undoubtedly requires that a child, the daughter petitioner herein, will be her mother’s mental, physical and emotional support, more so when the husband having no other family members has been residing with them since 2009., She is also the sole earning member of the family. Her school is near her mother’s house., Taking care of one’s parents is an emotional and loving act. No force in the world can stop a child from doing it and no child can be forced to do so, if he or she does not want to., In the case diary there is absolutely no material on record to prima facie substantiate the offences alleged against the petitioner and thus permitting the proceedings to continue will clearly be an abuse of the process of law., The revisional application being Criminal Revision 1284 of 2019 is accordingly allowed., The impugned proceeding including impugned Charge Sheet No. 648/16 dated 31 March 2016 under Sections 341, 323 and 506 of the Indian Penal Code against the petitioner in respect of the General Register Case No. 6024 of 2015 whereby cognizance is taken by the Learned Chief Judicial Magistrate, Baruipur, South 24 Parganas, is quashed., All connected applications, if any, stand disposed of., Interim order, if any, stands vacated., Copy of this judgment be sent to the learned Trial Court for necessary compliance., Urgent certified website copy of this judgment, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
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id_751
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Petitioner: Dr. Vijay Kumar Sharma. Respondent: State of Uttar Pradesh and two others. Counsel for petitioner: Vijay Kumar Dixit and Ashok Mehta. Senior Counsel for respondent: Additional Advocate General Honorable Munishwar Nath Bhandari, J., and Honorable Ajai Tyagi, J. (as per Honorable Munishwar Nath Bhandari, J.)., The writ petition seeks (i) a writ, order or direction in the nature of mandamus commanding the respondents numbered two and three to treat Case Crime No. 385 of 2019 as the main case crime and to merge all other case crimes and FIRs registered in the Bike‑Bot matter at Police Station Dadri and elsewhere in the State of Uttar Pradesh, as statements under Section 162 of the Criminal Procedure Code, into the main case crime No. 385/2019; (ii) a writ, order or direction in the nature of mandamus commanding the respondents numbered two and three to treat the charge sheet filed in Case Crime No. 385/2019 on 01 February 2021 as the main charge sheet and to treat all subsequent additional charge sheets as supplementary charge sheets to be merged with the main charge sheet; (iii) a writ, order or direction in the nature of mandamus commanding respondent number two to initiate trial proceedings at the earliest in the main case crime No. 385/2019 and to conduct a single trial for all connected matters merged into that case; and (iv) a writ, order or direction in the nature of mandamus commanding respondent number two not to subject the petitioner to fresh investigation or remand in favour of respondent number three for each FIR, and to stop issuing multiple routine remand orders against the petitioner in respect of the same offence arising out of the same incident, facts, grounds, cause of action, course of transaction and evidence in the Bike‑Bot matter, where the petitioner has already been under judicial remand since 19 November 2020., Learned Senior Counsel Ashok Mehta, assisted by Learned Counsel Vijay Kumar Dixit, appearing for the petitioner, primarily pressed the first prayer and annexure‑14 describing the number of cases registered against the petitioner. The petitioner contends that hundreds of FIRs have been registered against him, and that he is produced for remand in reference to each FIR, whereas after the first FIR, subsequent FIRs should have been taken as statements under Section 162 of the Criminal Procedure Code. A prayer was made to the police authorities not to produce the petitioner for remand in each FIR, but to treat subsequent FIRs as statements under Section 162 of the Criminal Procedure Code., The petition is seriously opposed by learned counsel for the respondents, who state that the petitioner, along with other accused, cheated around three lakh persons involving approximately Rs 4,000 crore, resulting in separate first information reports on different dates and in reference to different transactions., The facts show that an investor company, Garvit Innovative Promoters Limited (hereinafter referred to as GIPL), was incorporated to carry out the business of rental of bikes on the pattern of Ola/Uber, taking investments from the public for purchase of bikes to be rented out. The rental received was to be paid to the investors. The authorised representative of GIPL opened a bank account in Noble Cooperative Bank Limited, where the investment amounts were deposited. Noble Cooperative Bank Limited, of which the petitioner is the Chief Executive Officer, transferred the funds elsewhere as directed by the authorised signatory of GIPL., GIPL subsequently requested Noble Cooperative Bank Limited to issue approximately 2,61,000 cheques for distribution of dividend and monthly rental to the investors. The bank issued the cheques allegedly without the petitioner’s knowledge or approval. The allegations of fraud, if any, could be made against GIPL and the officers of the cooperative bank for issuance of cheques without the petitioner’s permission; they could not be made against the petitioner. The bank intimated the illegalities committed by GIPL by sending a letter to the Reserve Bank of India and the Financial Intelligence Unit, which was leaked, leading the promoters of GIPL to threaten the petitioner. The promoter of GIPL, Shri Sanjay Bhati, and others were arrested, and despite the petitioner’s cooperation and a statement under Section 161 of the Criminal Procedure Code recorded by the Economic Offence Wing, Meerut, the petitioner was also arrested. The petitioner cooperated with the agency, yet the case was registered against him along with others, resulting in several remands pursuant to each FIR., Learned Senior Counsel appearing for the petitioner submitted that, in view of the judgment of the Supreme Court of India in T.T. Antony versus State of Kerala and others reported in (2001) 6 SCC 181, this Court should direct the respondents to treat subsequent FIRs after the first as statements under Section 162 of the Criminal Procedure Code. The petitioner also relied on the judgment in Amish Devgan versus Union of India and others reported in (2021) 1 SCC 1., The writ petition is seriously opposed by learned counsel for the respondents, who argue that the petitioner’s reliance on the judgments of the Supreme Court of India in T.T. Antony and Amish Devgan may not be accepted as both judgments are not applicable to the facts of this case. They also cite the judgment of the Supreme Court of India in Arnab Ranjan Goswami versus Union of India and others reported in (2020) 14 SCC 12. In the cited cases, a single incident gave rise to several FIRs disclosing one or more cognizable offences, and the Supreme Court of India directed that subsequent FIRs be treated as statements under Section 162 of the Criminal Procedure Code. Since the facts of the present case involve different persons and separate incidents, the respondents contend that the judgments should not be applied to restrain the police from producing the petitioner on remand in reference to each FIR., We have considered the rival submissions of the parties and perused the record. The writ petition was filed with multiple prayers, but during argument learned counsel for the petitioner mainly pressed prayer number one, seeking that all subsequent FIRs after the first be treated as statements under Section 162 of the Criminal Procedure Code, thereby preventing remand of the petitioner in reference to each FIR. The prayer was also made in reference to the number of cases registered by the Enforcement Wing at annexure‑14., The facts on record show that Noble Cooperative Bank Limited issued approximately 2,61,000 cheques to various investors, involving a huge amount running into crores. The issuance of the cheques was said to be on the instruction of GIPL. The allegations further show transfer of the amount received from the investors, leaving hardly any balance in the bank account of GIPL. The transfer of the entire amount was known to the bank, yet they issued the cheques. The investors lodged first information reports in reference to their own transactions., The issue for consideration before the Supreme Court of India is whether all subsequent FIRs after the first should be treated as statements under Section 162 of the Criminal Procedure Code, and accordingly restrain the respondents from producing the petitioner on remand in reference to each FIR., The judgment of the Supreme Court of India in T.T. Antony (supra) involved an FIR registered on an incident when a minister visited Kannur district of Kerala to inaugurate an evening branch of a cooperative bank, leading to violent demonstrations, police firing, and several injuries and deaths. The first FIR was registered as Case Crime No. 353 of 1994, and after three years another FIR bearing Case Crime No. 268 of 1997 was registered pursuant to a report of an inquiry commission. The Supreme Court of India considered whether registration of a subsequent FIR out of the same incident was proper and held that any FIR arising out of the same incident subsequent to the first FIR should be taken as a statement under Section 162 of the Criminal Procedure Code., The Court observed that a balance must be struck between the fundamental rights of citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence. While Section 173 of the Criminal Procedure Code empowers the police to make further investigation and forward further reports to the magistrate, the Court noted that subjecting a citizen each time to fresh investigation for the same incident, giving rise to one or more cognizable offences, would be an abuse of statutory power. The Court indicated that a case of fresh investigation based on successive FIRs, not being a counter‑case, may be a fit case for exercise of power under Section 482 of the Criminal Procedure Code or under Articles 226/227 of the Constitution., The significance of the term ‘same incident’ is that FIRs not arising out of the same incident giving rise to one or more cognizable offences should not be treated as statements under Section 162. In the present case, the FIRs arise from separate transactions by different investors; therefore, the judgment in T.T. Antony would not be applicable., The petitioner also relied on paragraphs 123 and 125 of the judgment in Amish Devgan (supra). Paragraph 123 states that subsequent FIRs should be treated as statements under Section 162 of the Criminal Procedure Code, and paragraph 125 explains that Section 179 of the Criminal Procedure Code permits prosecution in the court having jurisdiction over the offence, while Section 186 relates to cases where two separate charge sheets have been filed on the basis of separate FIRs, postulating that the first charge sheet filed on the basis of the first FIR should be treated as the main charge sheet and others as statements under Section 162. The judgment also allows, in exceptional cases, the High Court or this Court to treat a subsequently registered FIR as the principal FIR, provided it does not cause prejudice, inconvenience or harassment to any party., The facts of the present case differ, as each FIR was registered by a different person in respect of a separate incident. Consequently, the judgments in T.T. Antony, Amish Devgan and Arnab Ranjan Goswami, which apply when several FIRs are registered out of one incident, are not applicable., In view of the foregoing, we are unable to accept the prayer made by the petitioner. The writ petition is dismissed, with the note that other than the prayer pressed during the course of argument and dealt with, we have not considered other issues that were not raised.
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Applicant: Dr. Shaharyar Ali. Opposite Party: State of Uttar Pradesh and Another. Counsel for Applicant: Ramesh Chandra Yadav, Ajay Yadav. Counsel for Opposite Party: G.A. This is an application for anticipatory bail on behalf of the applicant, Dr. Shaharyar Ali, in connection with Case Crime No. 124 of 2021, under Section 505(2) of the Indian Penal Code and Section 67A of the Information Technology Act, Police Station Ramgarh, District Firozabad., Heard learned counsel for the applicant and learned Additional Government Advocate appearing for the State through video conferencing. It is submitted by learned counsel for the applicant that he has been falsely implicated in the instant crime at the instance of the informant, who is a Zila Mantri of the Bharatiya Janata Party, on account of animosity., It is urged that the applicant is a professor in a degree college and Head of the History Department. It is argued that the objectionable and obscene post regarding Shrimati Smriti Zubin Irani, Honourable Union Cabinet Minister of Textiles as well as Women and Child Development, has been done through a hacking of his Facebook ID, regarding which he has expressed his apologies and also disowned the post., It is argued that the applicant is a respectable man with no criminal history and is, therefore, entitled to be enlarged on anticipatory bail, in the event of arrest., Mr. Shashi Shekhar Tiwari, the learned Additional Government Advocate, has vehemently opposed the prayer for bail. He submits that the post carries an obscene comment about an Honourable Minister in the Central Government and a senior leader of a political party, which is a statement made and circulated on social media containing a rumour likely to promote hatred or ill will behaviour between different religious groups, an act punishable under Section 505(2) of the Indian Penal Code., The applicant, being a responsible and senior teacher in a college and Head of Department, ought to have been cautious in writing a comment of the kind under consideration. It is submitted by the learned Additional Government Advocate that the applicant is not entitled to anticipatory bail, considering his conduct., High Court of India has considered the rival submissions. The question whether the applicant did actually post the offending and obscene post regarding the Honourable Minister is to be prima facie accepted at this stage, as there is no material to show that the applicant's account was, in fact, hacked. Rather, the applicant has posted his apology on that account, which shows that the account is prima facie still being operated by him., It is also apparent that this post was shared by co-accused in the crime, one Huma Naqvi, and the contents of the post are indeed such which may in fact promote or in all likelihood promote ill-will or hatred between different communities., In the prima facie opinion of High Court of India, looking to the fact that the applicant is a senior teacher in a college and Head of Department, conduct of this kind prima facie does not entitle him to the indulgence of anticipatory bail. It is, however, not to say that this is an expression of opinion on the merits of the case., The applicant is entitled to surrender and seek regular bail, which shall be considered in accordance with law. In the entirety of the circumstances, High Court of India does not find it to be a fit case to grant anticipatory bail. The application for anticipatory bail is hereby rejected. In case, however, the applicant surrenders before the court concerned, his bail application shall be considered expeditiously and in accordance with law.
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id_754
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Sureshkumar (Petitioner) versus the Regional Passport Officer, Claret Plaza, Melakkal Main Road, Kochadai, Madurai 625016, and the State represented by the Inspector of Police, Q Branch CID Police Station, Madurai (Respondents). The petitioner filed a writ petition under Article 226 of the Constitution of India seeking a writ of mandamus directing the first respondent to renew the petitioner's passport number K0865983 and to issue the passport pursuant to the petitioner's application number MD1074120739522 dated 19 April 2022. For the petitioner: Mr. D. Rameshkumar. For the respondents: Mr. V. Malaiyendran for Respondent 1 and Mr. G. Sivaraja, Government Advocate for Respondent 2., The petitioner approached the Regional Passport Officer, Madurai for renewal of his passport by submitting an application dated 19 April 2022. The passport authority sought a verification report from the police. The police reported that a criminal case was pending against one Nazirudheen and that the petitioner's passport had been seized in connection with that case. In view of the report, the passport authority did not process the petitioner's application, leading to the filing of this writ petition., When the matter was taken up for hearing, the learned Government Advocate appearing for the second respondent submitted that the petitioner had not come under their adverse notice. Nazirudheen, referred to in the police verification report, was an accused in Crime No.1 of 2019 registered with the Q Branch CID Police, Madurai and happened to be the petitioner's travel agent. Apart from this relationship, there was nothing adverse to the petitioner. The second respondent made it clear that they had no objection to allowing the writ petition., The learned Judge could have simply noted the stand of the second respondent and allowed the writ petition as prayed for, but his conscience did not permit him to leave the matter at that. The Hon'ble Chief Justice had allotted the General Miscellaneous portfolio, which includes the subject of passports. Crime No.1 of 2019 was registered by the Q Branch CID Police, Madurai based on credible information that one Vaithiyanathan, in conspiracy with unknown public servants and others at Madurai and Trichy, fraudulently obtained Indian passports for many Sri Lankan and Indian nationals using forged documents. The criminal acts took place from 1 February 2019 to 30 June 2019. The case was registered for offences under Sections 120B, 420, 465, 468, 471 of the Indian Penal Code and Sections 12(1A)(a), 12(1A)(b) and 12(2) of the Passport Act, 1967., The Judge was also informed that a public interest litigation, Writ Petition (MD) No.2563 of 2021, had been filed seeking transfer of the investigation to the Central Bureau of Investigation. The Hon'ble Division Bench directed the Q Branch to complete the investigation within three months, a time limit later extended by six months. The final report had not been filed on the ground that sanction had not been obtained for prosecuting the erring government servants., The Judge noted that Shri K. Annamalai, State Bharatiya Janata Party President, had raised the same issue publicly. Almost three years had elapsed since the first information report was registered. After granting interim relief to the petitioner, the Judge called upon the second respondent to file a status report. The status report indicated that as many as 41 persons were proposed to be prosecuted, including officials from the Regional Passport Office, Madurai and state police officials. The Central Government had granted sanction for prosecution of one of its servants and declined sanction for thirteen. The Government of Tamil Nadu had granted sanction for prosecuting Thiru Sivakumar, then Assistant Commissioner of Police, Intelligence Section, Madurai City, along with one Inspector and three Head Constables. The final report was to be filed shortly before Judicial Magistrate No. IV, Madurai, who was directed to scrutinize it and point out any defects. Once defects are identified, the investigation officer shall rectify them forthwith, and the learned Trial Magistrate shall take cognizance expeditiously. Several months have already elapsed, and the case has serious national security implications. It is scandalous that one police station in Madurai City facilitated fraudulent issuance of as many as 54 passports, and the corrupt elements must be brought to book at the earliest., The process of police verification in connection with passport applications is well known. The application is sent to the jurisdictional police station of the district or city where the applicant resides through the portal for field verification. There are four logins for the police at various levels: one for the field enquiry police officer, one for the Station House Officer (SHO), one for the district or city police, and one for the Deputy Superintendent of Police (DSP) or Assistant Commissioner of Police (ACP) authorized by the Superintendent of Police (SP) or Commissioner of Police (COP) who acts as the nodal officer for passport verification. At the police station, login is given to the field enquiry police officer, usually a Head Constable nominated by the SHO for passport field verification. The SHO accepts the verification of the field enquiry officer and submits the status to the district or city office., The field enquiry officer logs into the mPassport application on a tablet, selects each verification request, and answers questions on identity check and criminal background, including doubts regarding citizenship, pending criminal cases, pending warrants, and pending court orders. Citizenship verification relies on documents such as birth certificates, Class 10 certificates, Aadhaar card, and previous passport. Criminal antecedents are checked through the Crime and Criminal Tracking Network & Systems (CCTNS). Remarks are entered as 'Nil adverse' or case particulars, and the status is marked as 'Clear' or 'Adverse'. The officer uploads his signature and any documents obtained during field verification. The SHO then logs into the Passport Seva website, approves the verification, uploads his signature, and adds remarks if any. At the district or city level, one login provides a general view of verification requests, while a second login, accessible only through a designated system and a security dongle provided by the passport authority, allows the nodal DSP or ACP to give final approval. The nodal officer inserts the dongle into the designated computer, enters remarks, and can overwrite fields filled by the police station. A typical rural district handles between 150 and 200 passports per day, which are forwarded after verification to the passport office by the nodal DSP., The buck stops with the nodal officer, and involvement of officials above that rank is rare. During the relevant period, Shri S. Davidson Devasirvatham, Indian Police Service, was the Commissioner of Police, Madurai City. Had the final report been filed before the public interest litigation was instituted in 2021, had the time limit laid down by the Hon'ble Division Bench been adhered to, and had the sanctioning authorities accorded sanction without delay, the present controversy would not have arisen. The Judge gives a clean chit to Shri S. Davidson Devasirvatham, IPS, and compliments Shri K. Annamalai, State Bharatiya Janata Party President, for taking up the cause and acting as a watchdog in a democracy.
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id_755
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Through: Ms. Aayushi Jain, Advocate versus Through: Mister Rajal Rai, Mister Rohan Sharma, Ms. Poonam Sharma, Advocates for Respondent 1. Mister Ajay Yadav, Advocate for Respondent 2., The present petition has been filed by the petitioner challenging the orders dated 01 November 2021 and 14 March 2023 passed by the learned Judge, Family Court, North-West District, Rohini Courts, Delhi (hereinafter referred to as the Family Court) in Husband and Wife Maintenance Application No. 867 of 2019 titled Shri Ravinder Singh Bhasin v. Kanwaljit Kaur and Others, as also praying for expeditious disposal of Husband and Wife Maintenance Application No. 867 of 2019 in a time‑bound manner., By the order dated 01 November 2021, the learned Family Court had framed a preliminary issue on the maintainability of the petition against the respondents numbered 2 to 6. The said issue was decided by the learned Family Court vide its order dated 14 March 2023. No challenge to the finding on the issue is raised in the present petition by the petitioner. The challenge to the order dated 01 November 2022 is, therefore, infructuous and I fail to understand why the same has been challenged by way of the present petition., As far as the challenge to the order dated 14 March 2023 is concerned, the learned counsel for the petitioner submits that on the decision on the preliminary issue, the learned Family Court referred the parties to a Court Counselor to explore the possibility of arriving at an amicable settlement, and adjourned the further proceedings in Husband and Wife Maintenance Application No. 867 of 2019 to 18 October 2023. She submits that there is no possibility of an amicable settlement of the disputes between the parties, and the adjournment to such a long date was not warranted., The learned counsel for the respondents submits that they have no objection to the pre‑ponement of the date of hearing of Husband and Wife Maintenance Application No. 867 of 2019 pending before the Family Court., Even otherwise, I find that the learned Family Court, while referring the parties to a Court Counselor, should not give an adjournment for such a long period. Even though the order records that there are approximately 4000 matrimonial cases of various nature pending before the Family Court, such a long adjournment is still not warranted. The Family Court has to keep a watch on the petition and counseling proceedings that take place before the Court Counselor on a regular basis, and such watch cannot happen if the Family Court adjourns the matter for such a long date., Be that as it may, with the consent of the learned counsel for the respondents, the date of hearing of Husband and Wife Maintenance Application No. 867 of 2019 is pre‑poned to 08 August 2023. The Family Court is requested not to grant any unwarranted adjournments to either party, and to make an endeavour for expeditious adjudication of the petition pending before it., I am informed that respondent number 6 in the petition pending before the Family Court remains unserved., The Family Court shall also take steps to have respondent number 6 served expeditiously, so that the petition can proceed for its adjudication., The present petition is disposed of in the above terms., Dasti.
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Original Petition (Civil) Number 1428 of 2020 dated 7 December 2020. The question before this original petition is the procedure to be followed by a Court when a case record goes missing., The petitioner is a co‑owner of the property comprised in Resurvey No. 558 in Block No. 3/10 in Kannur‑1 Village, having an extent of 6.88 ares, covered by Exhibit P3 basic tax receipt and Exhibit P4 possession certificate. The property originally belonged to Andrew Rodger Lambie. The erstwhile owner had, by an unregistered Will (Exhibit P1) dated 4 January 1961, bequeathed the property in favour of his wife, the respondent. On the death of her husband, the respondent filed Original Petition Number 48 of 1964 (Exhibit P9) before the District Court, Thalassery, seeking letters of administration with the Will annexed in respect of item No. 2 in Exhibit P1. By Exhibit P2 judgment the original petition was allowed. The respondent sold the property to the petitioner's predecessors in interest. Ultimately, by document Number 1685 of 1971, the property was assigned in favour of the petitioner's mother and other relatives. The property has now vested in the petitioner and his siblings, who are desirous of constructing a building on it., The petitioners approached a bank for financial assistance, but the bank insisted on a certified copy of the Will. In those circumstances, the petitioner filed Exhibit P5 copy application, Exhibit P6 Vakalath and Exhibit P7 list of documents before the District Court in Original Petition Number 48 of 1964 to obtain the certified copy of Exhibit P1. The endorsement on Exhibit P9 original petition substantiates that the Will was marked as Exhibit A1 in evidence. However, by Exhibit P8 endorsement made on Exhibit P7, the Record Clerk returned Exhibits P5 to P7 on the ground that the Will could not be traced. The petitioner seeks to set aside Exhibit P8 endorsement and to direct the District Court to issue the certified copy of the Will., When the original petition came up for consideration on 17 November 2020, the High Court of Kerala called for a report from the District Court. The learned District Judge, by communication dated 24 November 2020, informed the High Court that the Record Clerk had searched for the Will, as the index paper indicated that the record was kept in a sealed cover with the Sheristadar. Although a thorough search was conducted in the chest and almirah, the Will could not be traced. The reason for non‑retrieval was not mentioned by the Record Clerk in the copy application. Consequently, the High Court is not in a position to issue the certified copy of the Will, as it is not available in the case records., As the relief sought in the original petition concerns the issuance of a certified copy of the Will, notice to the respondent was dispensed with. The learned counsel appearing for the petitioner was heard. The endorsement on Exhibit P9 original petition proves that the Will was marked in evidence as Exhibit A1. The communication of the learned District Judge also establishes that the Will was kept in a sealed cover in the safe custody of the Sheristadar. Therefore, the Will has been misplaced or lost while the document was in custodia legis., This Court, after noticing the increasing incidents of missing case records, promulgated an Official Memorandum dated 30 January 2019, issuing exhaustive directions to all Subordinate Courts to deal with such situations. The memorandum, communicated to all Judicial Officers and Sections for strict compliance, states: It has come to the notice of the High Court that instances of missing case records reported from the Subordinate Courts are increasing recently, despite the strict directions issued by the High Court on the subject. This causes considerable delay in the disposal of cases, thereby causing difficulty to the parties. In some cases the documents are impossible to reconstruct, which may result in miscarriage of justice. The following directions are issued to all Subordinate Courts for strict compliance. One of the main reasons for missing records is improper keeping of records. Subordinate judicial officers shall ensure that case records are properly maintained in their courts. Any lack of space or insufficiency of racks should be addressed promptly. They shall impress upon their staff the need for proper upkeep and safety of records. The High Court had earlier issued instructions to report instances of missing records promptly, but considerable delay in reporting has been noticed. Any lapse in promptly reporting missing documents to the High Court will be viewed seriously. The High Court also directed Subordinate Courts to ensure that a thorough search is conducted before reporting a missing document. Often the matter is reported without such a search, and records are traced only after instructions for reconstruction are issued. Judicial officers shall ensure that missing records are necessarily traced and reconstruction shall be a last resort. The search shall not be casual; the judicial officer may avail the service of all court staff, even on holidays, to trace the records. When documents are irrecoverably lost and need to be reconstructed, the courts shall report the steps taken to trace the document and the possibility of reconstruction at the time of reporting to the High Court. It is incumbent upon the courts to secure copies of such documents at the stage of reporting to the High Court and to inform the High Court, so that the matter can proceed as soon as instructions are received. To appreciate the relevance of the missing document in further proceedings, Subordinate Courts shall report the nature of the case, details of the lost document and the stage of the case. These details shall be entered in the form appended as Annexure I and forwarded with the report. Disciplinary proceedings against delinquent employees shall be conducted promptly. Since the power to take disciplinary action rests with the District Judge or Chief Judicial Magistrate, while reporting the missing records they shall simultaneously fix responsibility and initiate action against the delinquent. The whole proceedings shall be completed in a time‑bound manner and a report shall be sent to the High Court on conclusion. Subordinate judicial officers are advised to take a strict view while dealing with disciplinary proceedings with respect to missing records and to issue necessary directions to their staff for proper upkeep and safety of records. Instances of missing records must not be repeated. Any violation of these directions will be viewed seriously by the High Court and dealt with accordingly., By virtue of the provisions in Chapter VII of the Civil Rules of Practice, Kerala, 1971 (the Rules), the Record Clerk had no authority to return Exhibits P5 to P7. It is evident from the communication of the learned District Judge that the missing of the record was not brought to his notice before Exhibit P8 was endorsed and Exhibits P5 to P7 were returned. The learned District Judge has informed that the certified copy cannot be issued as the Will cannot be traced. This is contrary to the directions and procedure prescribed in the Official Memorandum., In light of the Official Memorandum, it was the duty of the learned District Judge to have promptly ordered a proper search, thereafter report the matter to the High Court of Kerala, and as a last resort, order the reconstruction of the records. In view of the directions in the Official Memorandum and that Exhibit P1 is in the custody of the Court, I hold that Exhibit P8 endorsement and the returning of Exhibits P5 to P7 are erroneous and unsustainable in law and are liable to be set aside. Accordingly, I allow this original petition by setting aside Exhibit P8 endorsement and, in exercise of the powers of the High Court of Kerala under Article 227 of the Constitution of India, I direct the District Court, Thalassery to accept Exhibits P5 to P7, take the necessary steps contemplated in the Official Memorandum, and pass appropriate orders on Exhibit P5 in accordance with law., Forward a copy of this judgment to the Registrar (Subordinate Judiciary) of the High Court of Kerala.
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Supreme Court of India\n\nSuo Motu Writ Petition No. 574 of 2015 and Writ Petition (Miscellaneous) No. 24178 of 2018 and Writ Petitions No. 30869 of 2017, 19652 of 2018, 20421 of 2020 and 1810, 1814, 1816, 1818, 1819, 1821 and 1822 of 2021.\n\nPetitioners:\n- The Director, Archaeological Survey of India, Janpat, New Delhi-110 004.\n- The Superintending Archaeologist, Chennai Circle, Archaeological Survey of India, Chennai-9.\n- The Chief Secretary, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-600 009.\n- The Secretary, Government of Tamil Nadu, Tourism, Culture and Religious Endowment Department, Secretariat, Chennai-600 009.\n- Heritage Conservation Society, represented by Secretary, Mister Srikumar, No. 102/x, Kurunji Street, Polepettai, Tuticorin. (Respondent 5 impleaded as per the order of this Supreme Court dated 10 February 2015)\n- The Commissioner, Hindu Religious and Charitable Endowment Department, Chennai-34. (Respondent 6 impleaded as per the order of this Supreme Court dated 09 April 2015)\n\nRespondents: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents to take speedy steps to constitute the 17‑Member Heritage Commission and to set up the Mamallapuram World Heritage Area Management Authority to safeguard the archaeological monuments in the State of Tamil Nadu., For Respondent 1 and Respondent 2: Mister G. Karthikeyan, Assistant Solicitor General. For Respondent 3 and Respondent 4: Mister S. R. Rajagopal, Additional Advocate General assisted by Mister J. Ramesh, Additional Government Pleader. For Respondent 5: Doctor S. Padma. Amicus Curiae for the petitioners: Mister P. S. Raman. Petitioner in Writ Petition Nos. 19652 of 2018 and 1810, 1814, 1816, 1818, 1819, 1821 and 1822 of 2021: Mister Rangarajan Narasimhan, appearing in person. Petitioner in Writ Petition No. 20421 of 2020: Mister R. Venkataraman, appearing in person. Periyanambi Narasimha Gopalan, Secretary to Government, Tourism, Culture and Religious Endowments Department, Government of Tamil Nadu, Secretariat, Chennai-600 009. The Commissioner, Hindu Religious and Charitable Endowment Department, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai-600 034. Respondents: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the first respondent to appoint all the members, as informed by the second respondent by its letter Number 25639/2018/Y2 dated 12 June 2018 to the State Level Heritage Screening Committee., For Petitioner: Mister K. Gokul. For Respondent 1: Mister P. H. Aravind Pandian, Additional Advocate General assisted by Mister J. Ramesh, Additional Government Pleader.\n\n“Without culture, and the relative freedom it implies, society, even when perfect, is but a jungle. This is why any authentic creation is a gift to the future.” – Albert Camus\n\nWe repeat, these hybrid constructions are not the least interesting for the artist, the antiquary and the historian. They make us aware to what extent architecture is a primitive thing, demonstrating as they do, like the cyclopean remains, the pyramids of Egypt, or the gigantic Hindu pagodas, that architecture’s greatest products are less individual than social creations; the offspring of nations in labor rather than the outpouring of men of genius; the deposit left behind by a nation; the accumulation of the centuries; the residue from the successive evaporations of human society; in short, a kind of formation. Each wave of time lays down its alluvium, each race deposits its own stratum on the monument; each individual contributes his stone. Thus do the beavers, and the bees; and thus does man., “While considering the importance of issues involved in the present cases, the aforesaid quotes of the renowned literary masters have been reminiscent in the mind of this Supreme Court.”, India has an extraordinary, vast and diverse pool of cultural heritage and ancient monuments in the form of buildings, temples and other archaeological sites and remains. Its southern State Tamil Nadu’s ancient culture is one of the most glorious in world history, dating back more than two thousand years. Its immortal creations of resplendent architecture, design and construction of forts to temples, murals to paintings, sculptures to scriptures, made of lime mortar to clay bricks, from stones to rocks, from herbs to fruits, have stood to unite this glorious land. Tamil Nadu is famous worldwide for its magnificent and ancient temples. The monuments are the living witnesses of a golden historic era of over a thousand years. They exemplify the valor of this land and are symbols of cultural expression. Particularly, the temples, many of which are more than two thousand years old, are repositories of knowledge and treasure houses of art and architecture. They are a continuing legacy that connects the present with the past and are living symbols of a unique culture; the festivities connected there make them vibrant and colorful. Our people are also deep‑rooted in heritage. However, these heritage and cultural assets are going into oblivion nowadays. The upcoming generation does not know their value. Moreover, the custodians of grand and antique temples and ancient monuments are least bothered and the conservation of our valuable heritage is deteriorating not due to any natural calamity or catastrophe, but due to reckless administration and maintenance under the guise of renovation., In ancient times, there have been cultural invasions which, though they damaged certain places of historical and archaeological importance, also thrust deep‑rooted dispel into the minds of our people. It would not be enough if a monument or a heritage site is merely handed over to future generations; it is equally exigent that its history is also passed on. The younger generation, preoccupied with science and technological development, needs to understand that many things claimed to be discovered and equated with scientific objective were said and laid down here centuries ago in the spiritual sphere. The intelligence, knowledge and skill of the people of this land have been far superior and precocious even in fields that science is yet to find answers. Not only have the forebears left behind theories beyond human comprehension, but also astonishing and illuminating monuments and scriptures. The object of such creation was not just a personal achievement, but a conscious effort to leave a historical imprint for future generations. Just as good memories create nostalgia, knowledge about history brings a sense of pride, belonging and motivation to recreate history. To fulfil its informative and educative functions, a monument or a place of historical importance with heritage value, in addition to its preservation, needs to be opened to the public so that its spatial dimension as well as its content can be experienced and be sustainable. Thus, it is needless to emphasise that these have to be preserved and protected at all costs for posterity. With this prelude, this Supreme Court is inclined to proceed with this Suo Motu Public Interest Litigation., On 6 January 2015, the First Bench headed by the Hon’ble Chief Justice Sanjay Kishan Kaul, as he then was, initiated Suo Motu proceedings based on a newspaper report published in The Hindu on Sunday, 4 January 2015 titled “Silent Burial”, relating to the inaction of the Government in establishing the statutory authority, framing Rules and constituting a 17‑member Heritage Commission to advise on heritage issues. It was pointed out that in April 2012, the Government announced its decision to enact a law on Heritage Commission, which was welcomed by activists and conservationists; the State Legislature passed a bill and it received the assent of the Governor. However, there was no progress thereafter. The newspaper report further indicated another Government initiative, the Mamallapuram World Heritage Area Management Authority, inspired by the model of Hampi World Heritage Area Management Authority, meant for conservation of the cultural heritage of the area declared a World Heritage Site in 1984, which also has not been set up., Our Constitution, understanding the importance of long‑standing history and civilization, has thrust upon the State a duty to protect, safeguard and nourish the rich culture, tradition and heritage of this land. The devout inhabitants of indigenous faiths have left behind numerous symbols reflecting their adroit and arduous work, which by the efflux of time have garnered great veneration to the faiths now known as religions. The right to profess, practice and propagate religion shall also include the right to protection of the symbols of such religion. When the State, obligated under the Constitution to protect the symbols of heritage, tradition and culture, fails in its duty, the courts have to step in. Since the matter is of vital importance, it has been taken up as Public Interest Litigation and registered as Suo Motu Writ Petition No. 574 of 2015 to issue a mandamus directing the respondents to take speedy steps to constitute the 17‑Member Heritage Commission and also set up the Mamallapuram World Heritage Area Management Authority for the purpose of safeguarding the archaeological monuments in the State of Tamil Nadu. During the pendency of the same, various writ petitions touching upon the protection, maintenance and sustenance of ancient temples, idols, murals, temple lands and other places/articles of archaeological and historical importance were filed before this Court. In view of the commonality, interconnectivity and interdependence of the issues, all the writ petitions have been clubbed together and taken up for hearing along with this Public Interest Litigation. However, for convenience and easy understanding, separate orders are being passed by this Court and the present order is with respect to Suo Motu Writ Petition No. 574 of 2015 and Writ Petition (Miscellaneous) No. 24178 of 2018., At the outset, it would be appropriate to brief about the heritage and cultural assets possessed by the State of Tamil Nadu and their role in improving the local economy by way of tourism, preservation of cultural and traditional values and practices, serving educational resources, increasing community value and social inclusion and, above all, bringing pride to the Nation. The entire State is strewn with great examples of ancient Tamil architecture that go back as far as two thousand years. Apart from the temples, the State is also home to several historical forts and other architectural marvels from its medieval heritage to colonial history. It comprises the oldest inhabitants of the world, as it is the motherland to the world’s oldest language, Tamil, in usage. The State has remained a cultural hub for various activities like debates, art, innovations, architecture, music and commerce from time immemorial. The culture, tradition and practices are connected with religious beliefs. The record of valorous and historical events found in many places such as temples, forts, monuments and heritage sites exemplify the indomitable claim towards the ancientness of the language, belief, tradition and culture of the people. Czech Professor Kamil V. Zvelebil, in ‘Tamil Culture’ under the chapter “The Tamil Contribution to World’s Civilization”, narrated: “There is no doubt that the culture of the Tamils belongs to the great and immortal treasures of the world’s civilization. This will stand as testimony to the pride of Tamil culture.”, In social and cultural parlance, heritage is often related to tradition, folklore, arts, monuments, places or things of special importance, architectural excellence or historical value. Such value is accredited by recognition from society based on its uniqueness, artistic and historical importance. Among ancient rulers, the Pandyas, Cholas and Pallavas gave importance to art and architecture, people and governance, language and culture, temple and faith, until the renaissance when much resurrection was done by the Vijayanagara Empire. The monuments act as authentic records of history. Especially in civilizations that lack written records, they are the only means that throw light on the past. Apart from being a historical record, the monuments bear witness to the artistic, cultural, technological and economic development of the people who created them., Monuments created over thousands of years are the most durable and famous symbols of ancient civilizations. The evolution of the human race, from primitive to medieval to modern age, is reflected in the artefacts that stand tall, effervescent and illuminating. They symbolize the growth and development of the place and people and are frequently used to enhance the appearance of a city or location. Structures created for other purposes that have become notable by their age, size or historical significance may be regarded as monuments. They are also designed to convey historical or political information and can be used to reinforce the primacy of contemporary political power and educate the populace about important events or figures from the past. Such monuments, which stand as testimony to cultural, artistic, traditional and natural heritage of this land, have to be preserved and passed on to future generations., The land of Tamil Nadu has multitudinous ancient, large and exhilarating temples with astounding and unique style and art, all of archaeological importance. These temples played multiple roles in the development of society. They are not only places of worship but also exhibit extraordinary art in the form of sculptures, idols, paintings, murals and music, which form part of its heritage. Temples that have withstood the test of time are also places of archaeological or historical importance as they reflect historical events termed as legend in common parlance and are instrumental in the survival of the language of this land. Therefore, this Supreme Court finds it necessary to describe the activities associated with the temples exhaustively but objectively., Every ancient temple was structured so that specific places were allocated for activities associated with traditional worship, including recital of hymns in praise of the deity, recital of Thirumurai, Vedic hymns, dance, drama or folklore, debates, conduct of festivals, etc. During festivals, folklore programmes and dramas were conducted not only depicting historical events but also the legends of the temple where the events take place. Bharatanatyam, one of the ancient dance forms in the world, which has its origin in Tamil Nadu, attributable to Lord Nataraja, along with other dance forms, were rendered in traditional folklore. The activities held in the mandapams have gone a long way in the preservation, promotion and survival of the temples and various types of arts and literature and contributed to research on our language, tradition and culture. The mandapams in temples had pillars of varying numbers, size, form, technique, art and design. The artistic exuberance of ancient Tamils is reflected in the paintings and murals in the temples and religious places. The paintings also convey various stories including the legend of the temples. Any art, be it music or painting, can continue to survive only if it is practiced. The existence of the temple is interwoven with the co‑existence of the aforementioned activities. The waning of one activity will affect the rituals and eventually the temple itself. Hence, not only the preservation and redemption of temples alone, but also the activities associated with the regular and traditional functioning of the temples, are of paramount consideration., From time immemorial, music and art are closely associated with the culture and tradition of temples. Music in this land is mixed with every tradition and ritual. It is still a matter of pride for an artist to perform or give discourse in a temple. Legends speak about the Tamil Sangams conducted, wherein talents in music, art and debates were displayed. Temple artistes and musicians have dedicated their services to play musical instruments in an eminent manner whenever poojas for the deities are performed and during festivals arranged by the temple authorities as per the rituals and customs. Some see it as a spiritual opportunity to unify and experience the bliss of the supreme. The classical Tamil literature of our land was set to music. The ancient musical tradition has been referred to in the Sangam literature such as Puranaanooru, Kalithogai, Ettuthokai and other works. Silappathikaram, which belongs to the post‑Sangam period, makes various references to different forms of music performed by Tamil musicians. It is believed that recitations in a particular raga or pann yielded specific results. Appar, Thirugnanasambandar, Sundarar, Manikkavasagar and the Alwars, the Saiva and Vaishnava saints, composed music linked with the hymns, Devaram and Divyaprabhandam compositions between the sixth and tenth centuries CE. Legends recorded in the temple fortify that the saints and their hymns performed many miracles, even bringing back the dead to life. They not only paved the way for the upliftment of the Tamil language but also for the revival of old temples and emergence of new structures throughout the state. Professor Kudavayil Balasubramanian, in his book ‘RAJARAJECHARAM’, refers to a stone inscription describing that fifty musicians were appointed a thousand years ago by King Rajaraja in a Shiva temple to perform Devara hymns. Oduvars were trained and appointed in all temples along with sets of musicians well‑versed in various instruments such as mridangam, percussion instruments, flute, murali, vangi, paadaviyam, udukkai, conch, uvachupparai, sagadai and karadigai. After Raja Raja made it mandatory that hymns from Thirumurai be recited every day in the temple, dedicated Oduvars for each temple were appointed. Also, people well‑versed in mridangam, nadaswaram and other musical instruments were appointed for each temple. However, such appointments are now unfortunately restricted to few cities and temples. Therefore, it can be safely concluded that it is the duty of the temple administration to ensure that the recitations of the divine hymns with musical instruments take place in every temple, which is significant for the survival and flourishing of the art, besides aiding in preservation of the ancient temples and their values., Temples were used as offices of records, wherein records relating to allocation of lands, historical events, poems and literary works written on palm leaves were stored. They were accepted as authentic places for record keeping. The recovery of Thirumurai from Thillai Chidambaram Temple by Raja Raja Cholan stands as testimony to the same. Two early thirteenth‑century inscriptions mention re‑organisation of old temple libraries. Moreover, inscriptions in Thiruvothur, Tirumalperu, Koogoor, Tiruverumbur and Thiruppanandhal record that temples were not only places of worship but also acted as places for justice. It is relevant to mention the synonymous place in Asia viz., Thiruvarur, which is a chariot house known for its culture and where the great king Manu Needhi Cholan dispensed fair justice as per the advice of his council of ministers, whose statue finds place in this Chartered High Court of Madras., Temples were the epicentres for philanthropic services ensuring various social welfare activities. Huge extents of lands, jewels, properties and even animals were donated to temples. Such donations were made not only out of love for the deity but also considering that the income derived from the lands would help the temples in the performance of every ritual perpetually. Stone inscriptions record many charitable endowments that provided both food and accommodation for students studying Tamil literature and grammar. Though the land was administered by the kings, the intervention of the kings in spiritual and charitable matters was less. In those days, people were conscious enough not to encroach or usurp temple lands. With changing times, culture and belief, the lands and other properties of the temples have been coveted, warranting interference by this Court., Temples have also been medical centres for physical treatment. The holy ash given in Saivite temples was believed to cure many diseases. Even today, the sacred sand (Puthuman) taken by people from Sankaran Koil is believed to have a curing effect. Further, temple premises were used for commercial transactions and officials were appointed in each temple to take care of economic activities and safekeeping of temple properties and documents., The mutts, where Tamil literature, hymns, music and scriptures associated with the religion and beliefs of this land are taught, also remained platforms for national leaders, poets, scholars and ascetic hermits. They were pillars to instil discipline and faith. Even today, traditional mutts run educational institutions. The mutts owned huge extents of lands donated by devotees to enable them to sustain and propagate religious beliefs by conducting regular poojas, festivals, rituals and religious courses., The ancient temples, which we adore, were constructed with specific design and stability that made them capable of acting as fortresses during times of war. Kotchengat Chozan, a Chola king and one of the 63 Nayanmars, built many admirable madakoils (temples). History reveals that temples have not only acted as fortresses during invasions but also as shelters during natural calamities., The stone inscriptions found in the temples are great sources of historical data. Numerous stone inscriptions left by Pallava, Chola and Pandya dynasties visible in temples reveal not only the history of our ancestors, their culture, traditions, welfare activities, thought process, scientific skills and foresight, but also their administrative excellence. They act as great sources of evidence and link us to the past. The stone inscriptions in Uthiramerur Vaikundaperumal temple record the prevalence of democratic elections to local bodies before eleven hundred years. There are many numerous and rare stone inscriptions and epigraphy found in the temples of Tamil Nadu., The temples here have been centres for tourist attraction mainly because of their antiquity, some of which have legends dating them to before two thousand years. Despite many storms in various forms, they stood tall reflecting not only structural stability but also universal truth. Therefore, in order to save and safeguard the ancient heritage of this land, it is necessary not only to protect and resurrect the temples and their properties but also to restore the age‑old Tamil traditions and cultures followed in the temples and bring them to public knowledge., Our kings adopted scientific methods in constructing the temples for future preservation. A monument, sculpture or scripture is not just a record of historical fact but a testimony to the knowledge, culture, tradition and lifestyle of the people. It exhibits briefly the happenings of yesteryears to be imbibed, followed and carried forward by present and future generations. It is now an accepted fact that the temples were not constructed merely as places of worship but also have scientific significance based on their locations. The murals and paintings in the temples and caves demonstrate the knowledge of our people in chemistry and the prevalence of the same in many places of Tamil Nadu speaks volumes on the natural intelligence of the people of this land., Many such monuments and sites of historical importance came to be revealed because of expeditions. The Big Temple built by King Rajaraja Cholan, which is unique in style and architecture, has been declared a World Heritage Site by UNESCO. During the British regime, efforts were made by British archaeologists to unearth the history and architectural treasure of this country, which paved the way for the establishment of the Archaeological Survey of India., Archaeology is the study of the human past using material remains. These remains can be any objects that naturally formed, were created, modified or used by people. The word archaeology is derived from the Greek word arkhaios, which means ancient. Although some archaeologists study living cultures, most archaeologists concern themselves with the distant past. The remains that are mobile are called artifacts; artifacts include tools, clothing and decorations. The immobile remains, such as pyramids or post‑holes, are called features. The quest to acquire knowledge is an ardent quality of the zealous mind. History of human evolution, of places, of culture, of faith, of language, of practices, of traditions has baffled human brains for long without conclusive answer, but the search has never stopped., The subject of archaeology and the preservation of ancient monuments are considered important sovereign functions by many countries. The attempt to claim to be among the oldest of the aborigines of the world has pushed countries to invest time and money to know the past. The presence of such monuments is not only a matter of national pride but also contributes significantly to the economy through tourism and business opportunities. Not only Government departments but also many independent bodies have been continuously working by forming organisations towards protection and preservation of heritage sites, monuments, temples etc., According to UNESCO’s World Heritage Convention, landscapes and sites of outstanding universal value can be designated as World Heritage Sites; monuments, groups of buildings and sites of outstanding universal value from the point of view of history, art or science are to be designated as cultural heritage, for which the designating nation has appropriate legal, scientific, technical, administrative and financial measures in place to identify, protect, conserve, present and rehabilitate world heritage sites. However, the sovereignty of the State where the site is located is not to be compromised. The World Heritage Committee is the body responsible for the practical implementation of the Convention as well as managing and deciding how to use the World Heritage Fund. It also determines whether a property will be included in the World Heritage List., The International Union of Anthropological and Ethnological Sciences (IUAES), situated in Paris, is concerned with anthropological interests; its purposes are to promote international cooperation in the sciences of man, notably by way of the International Congress, study commissions, expeditions, subsidies to scholars, publications and other scientific activities; to organise research on an international basis; to promote scientific cooperation among national societies of anthropology and ethnology; and to promote cooperation with other unions. The Royal Commission on the Historical Monuments of England (RCHME) is responsible for documenting buildings and monuments of archaeological, architectural and historical importance in England. The National Park Service (NPS) is an agency of the United States Federal Government that manages all national parks, many national monuments and other conservation and historical properties. It is charged with a dual role of preserving the ecological and historical integrity of the places entrusted to its management, besides making them available and accessible for public use and enjoyment. The National Register of Historic Places (NRHP) is the United States federal Government’s official list of districts, sites, buildings, structures and objects deemed worthy of preservation for their historical significance. A property listed in the National Register or located within a National Register Historic District may qualify for tax incentives derived from the total value of expenses incurred in preserving the property. The Australian Heritage Council (AHC) is the principal adviser to the Australian Government on heritage matters. Its role includes the assessment of places for the Heritage List and Commonwealth List and nomination of places for inclusion in the list. The Ministry of Culture of the Russian Federation (MCRF) deals with culture and art issues and its main function is to implement the Strategy of State Cultural Policy; the Ministry of Culture is authorized to issue legal regulations, to develop and propose draft regulations in the areas of culture, arts, cinematography, copyright and associated rights, cultural and historical heritage and tourism as well as international cultural and information‑related cooperation. The Central Committee of the Greek Archaeological Service (CCGAS), renamed as Archaeological Committee, deals with the preservation and restoration of cultural monuments, management of archaeological sites, establishment and management of museums and supervision of research and excavation activities both by local as well as foreign archaeological institutes active in Greece., In India, places of historical importance are also linked to belief, culture, tradition and arts.
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Though the culture, tradition, style and design of various places of archaeological importance in the world differ, it was a poet from Tamil Nadu named Kaniyanpoongundranar who called upon the people to unite for the cause of love and affection by labelling all as one race, and laid down the world to be for all using the phrase Yaadum Oore Yavarum Kelir, which is now depicted in the United Nations Organisation. Our country has a Central Government Organisation at the centre and each state has its own Archaeological department. Considering the provisions of the Constitution, whenever a place is declared to be a place of national importance, the Central Act will govern the subject and the monument would come under the control of the Archaeological Survey of India., The Archaeological Survey of India was founded in 1861 by Alexander Cunningham. After Independence it is attached to the office of the Ministry of Culture. It administers more than 3,650 ancient monuments, archaeological sites and remains of national importance, which include temples, mosques, churches, tombs, cemeteries, palaces, forts, step‑wells and rock‑cut caves. The Archaeological Survey of India also maintains ancient mounds and other similar sites that represent the remains of ancient habitation., The Tamil Nadu State Archaeology Department was founded in 1961. It has separate wings for excavations, chemical laboratory, monuments, epigraphy and manuscripts. So far the Department has conducted excavation works at 40 different sites, including on‑shore and off‑shore excavations, and has 93 monuments within its ambit. The Hindu Religious and Charitable Endowments Department, custodian of ancient temples, their money, articles and land, is also duty‑bound to protect and maintain the various temples under its control that are of archaeological and historical importance., Before proceeding further, it is worthwhile to look at the architectural excellence found in Mamallapuram and some of the temples in Tamil Nadu., Mamallapuram is an important place in the history of art; its temples and sculptures are not only the earliest in this region but also significant in variety and elegance. It is situated near a coastal village that is a great tourist spot and heritage attraction. Earlier, in the reign of Pallava rulers, it was a major port. The formation of Mamallapuram is the result of artistic works from 580 A.D. to 730 A.D. It is a unique site and the only place in India where all three stages of temple architecture—cave temples, single‑stone temples and structural temples—can be seen. Open‑air bas‑reliefs are not found elsewhere in the country. It is a museum of temple architecture with many sculptures of historical importance and natural scenes enshrined in the rocks., Meenakshi Amman Temple, a historic temple located at Madurai, is an important pilgrimage place with Saiva tradition attracting thousands of devotees. With huge gopurams, thousands of sculptures and numerous sculpted pillared halls built over the centuries, it stands as a masterpiece of Dravidian architecture. Thiruparankundram Subramanya Swamy Temple is one among six temples of Lord Muruga, built in rock‑cut architecture, where the statues are carved on the wall of the Thiruparankundram rock with antiquity traces in the Sangam literature., Ramanathaswamy Temple at Rameshwaram, dedicated to Lord Shiva, is one of the twelve Jyotirlinga temples. Appar, Sambandar and Sundarar have glorified the temple with their songs. The temple has the longest and magnificent corridor with advanced architectural designs of the Tamil kings. Thanjavur is the centre of architecture, art and religion of South India, having the grand Brihadeeswarar Temple, also called the Big Temple, the largest in the country with the world’s tallest tower and a huge statue of Nandi as its marvel., Srirangam Ranganathar Swamy Temple, dedicated to Lord Vishnu, was constructed in the Tamil style of architecture glorified in the Thiviya Pirabandham, the early medieval Tamil literature of the Alvars. The temple is surrounded by seven rectangular enclosures, one within the other, and there are 21 gopurams leading into these enclosures. The architectural portion of the temple begins with the fourth court, whose outer wall is of massive height. Within the courtyard there are two interesting structures: a hall of a thousand carved granite pillars arranged in rows, and a ‘Horse Court’ containing rows of pillars carved as rearing horses. Such significant and monumental architecture portrays the ability of the sculptors. Srirangam is an outstanding model that has reached the stage of a temple‑town and is about to be enlisted as a World Heritage Site., Thiruvattaru Adikesava Perumal Temple, situated in Kanyakumari District, is a notable temple built with granite stones and provided with a copper‑sheeted roof. The history of the temple has been written by Professor A. K. Perumal in a research book titled ‘Adikesava Perumal Temple’, which depicts the various paintings enshrined in the temple. With more than 50 inscriptions in Tamil and a number of stunning sculptures, it is mentioned in Purananooru, one of the oldest literatures in Tamil dating back to 2,000 years, by the poet Mangudi Maruthanar. The temple complex is enormous, spanning 150 acres, with magnificent towers in all prakaras, wooden carvings, wall paintings and sculptures relating to epics; it is declared an ancient temple with high traditions., Arunachaleswarar Temple, Tiruvannamalai, is an ancient temple with a thousand‑pillared hall and the massive shrine of Unnamalai Amman. Thirucourtalanatha Swamy Temple, Tenkasi, was constructed by the Cholas and is one of the 64 Shakti Peethams; its Chitra Sabhai, the hall of pictures, exemplifies the artistic talents of the Tamils. Srivilliputhur Temple, dedicated to Lord Vishnu and Andal, is a marvel of Dravidian architecture with inscriptions from Chola, Pandya and Nayak rulers. Bhagavathi Amman Temple, Kanyakumari, located at the confluence of the Bay of Bengal, the Arabian Sea and the Indian Ocean, is said to have been constructed over 3,000 years ago., As regards temple architecture, naturally our minds are attracted to the designs and beauty of many kinds, namely Kara Kovil, Kokudi Kovil, Aala Kovil and Perungovil, each with different characteristics. All these types of temples have been constructed with a sense of devotion and hard work, taking note of the necessity to record history and pass on culture to future generations. Thus our kings took great care to ensure that temples were built with astounding skill and intelligence., Cave temples are a very good example of temple architecture. The entire Thirukazhukundram temple was constructed by digging a single massive rock, termed Otraikal Mandapam in Tamil. Similarly, Thirumurthi cave temple, Magisashura Mandapam and Varaagaperuman cave temple have been constructed in Mamallapuram, and two notable cave temples exist in Tiruchirappalli Hill. These cave temples were constructed without a vimana (uppermost structure). The Thirukokarnam (Gokarneshwarar) temple in Pudukkottai is another cave temple built out of a rock with a monolithic sivalinga. The manner of construction shows the skill, care and caution adopted by the sculptors to make the structures last for many centuries while preserving the basic features required for a temple’s traditions and culture. These rock temples are solid with old traditions, beauty, elegance and pillars, reflecting the history of our land as well as supreme architectural knowledge and skill., The temples underwent spectacular and rapid expansion with the construction of majestic gopuras, vimanas, mantapas with exquisite sculptures and shrines during the 15th and 16th centuries. The rulers paid lavish attention to the temples by gold‑plating their vimanas, gifting them with thousands of pearls, necklaces with diamonds, gold ornaments, revenue from prosperous villages and hundreds of cows. The construction of a temple itself is a very difficult endeavour. Efforts were also taken to preserve and gradually improve the temples by adding many sub‑temples, shrines, tanks, mantapas with beautiful sculptures and maintaining them with utmost care. Successive kings, even of different lineages, were magnanimous, tolerant and pious enough not to destroy or alter earlier sculptures; instead they added new structures that were huge and beautiful, portraying with great elegance the skill and history of this land., There are extraordinary bronze images of the gods in our land. Most temples in Tamil Nadu have a moolavar, an idol of the main deity made of stone, and an urchavar, a bronze idol, which is mostly used during festivals. The age of the Cholas constitutes the most creative phase of South Indian history and is the period during which Tamil culture reached a peak. The world‑renowned sculptor Auguste Rodin considered the Nataraja image to be the most perfect representation in the world of rhythmic movement. For an artistic appreciation of South Indian bronzes, one is forced to turn to the few museums and art galleries that have acquired collections., Temple bronzes are treasures of our land as they have been made with utmost faith to religion, culture and related aspects, depicting the tremendous talent of the sculptors in making the vigrahas in whatever form or pose they wished to see. Every idol symbolises the character of the deity and conveys a message. The perfection in creation is a tribute to the creator himself. The bronze and panchaloha idols are lively enough to reflect the nine different emotions of human perception. Although bronze idols were recognised in ancient scriptures, they were put into practice in the new millennium by the Cholas and Pallavas. Such idols were often part of the temple festivals held annually., The prevalence of a strong atmosphere of devotion and reverence in the Tamil Nadu temples is evident from the architectural excellence. The culture of the people, their various religious activities, the manner of worship, their way of life, devotion to God and hard work are all woven together and embodied in the sculptures., Having noted the richness of cultural heritage in the state of Tamil Nadu as referred to above, which needs to be nurtured, preserved and retained for future generations, the Government passed a bill in the legislature on Heritage Commission consisting of experts and representatives from various departments and the Mamallapuram World Heritage Area Management Authority; however nothing moved, which led to initiation of this pro bono publico litigation. After entertaining this case, taking note of the admitted fact that our land is fortunate to have an ancient civilization and much heritage value, the temple architecture being a highly developed science, a large number of monuments and temples are stated to be unprotected by the Archaeological Survey of India and/or Government. The Supreme Court of India issued several directions to the respondent authorities periodically, due to which various developments took place., On 09 April 2015, keeping in mind the nature of the issue involved and being suo motu proceedings, Mr P. S. Raman was appointed as Amicus Curiae to assist the Supreme Court of India, who furnished details by way of a report pointing out the lapses on the part of the respondents., On 12 October 2015, denying the allegation leveled by the fifth respondent, the Heritage Conservation Society, the Commissioner of the Hindu Religious and Charitable Endowments Department, Chennai, sixth respondent, filed a rejoinder stating that some persons like the fifth respondent are filing petitions before the Supreme Court of India with an intention to stall and prevent various renovation works under the guise of conservation of heritage. It is the duty of the Government to oversee proposals for carrying out all kinds of repair and restoration works and to give a facelift to the important temples situated in the town of Kumbakonam. It was further stated that cleaning works are carried out with abundant caution using smooth brushes and suitable chemicals to avoid physical and water pressure on the structures. It was also stated that the damages caused to the temples were not due to any act of negligence, but only due to the ravage of time beyond the control of the Hindu Religious and Charitable Endowments Department., On 14 October 2015, the Supreme Court of India passed an order observing that heritage belongs to all the people, all citizens of Tamil Nadu, of this country and of the world, keeping in mind its importance; that everything is not hunky‑dory, which is apparent from the fact that even the list of more than 100‑year‑old temples with archaeological significance has not been drawn up and a study began only when the Court intervened. The Court observed that the objective is clear: heritage temples with archaeological and religious significance should be identified, maintained and renovated in a manner to ensure that no damage is caused. It was also observed that the staff of the Public Works Department (on deputation to the Hindu Religious and Charitable Endowments Department) may not have the expertise to carry out the task; that even in the renovation of this High Court, the Court had to take recourse to other agencies to maintain the original glory. The Court further observed that the Archaeological Survey of India has an important role to play in terms of technology input, and that they are often not consulted, despite their expertise in conservation matters. The Court directed the Hindu Religious and Charitable Endowments Department to hold a discussion with the stakeholders represented before the Court and to place a final picture of how the Government proposes to proceed in the matter before the Supreme Court of India., A report was filed by Dr R. Nagaswamy, former Director of Archaeology, Government of Tamil Nadu, who worked with the Committee. The Amicus Curiae also submitted his second report, making certain suggestions. Paragraph 9 of the report reads as follows: (a) No more cementing or white‑washing should be undertaken on walls and ceilings, thereby affecting the beautiful murals and frescos which are in an extremely delicate and deteriorating state; the temple trust/administration could consider availing services of fresco restorers to preserve them. (b) Artistic antique doors that have been replaced by modern doors should be attempted to be made reusable instead of being discarded. (c) Several ancient sculptures and artefacts were seen strewn around the thousand‑pillar mandapam area without any protection; they need to be immediately catalogued and kept in safe custody. (d) Wherever flooring has been sought to be repaired, replacement with new granite slabs should be the last option. (e) The new ramp constructed in the Horseman mandapam should preferably be removed and instead a small wooden ramp for use of the disabled may be made, to prevent unauthorised vehicular movement to the mandapam. (f) Construction of stucco sculptures on top of the mandapams and use of enamel or distemper paint should be avoided; nothing new should be added to the original heritage structure in the guise of restoration. (g) The temple complex, in several places, is being used as a shed for keeping debris including huge quantities of wood, which is a potential fire hazard; steps should be taken to remove all of them immediately. (h) The outer three prahars of the temple are now full of commercial and residential buildings; the authorities should ensure that no further construction is put up there and also stop existing constructions from adding floors so as to affect the view of the gopurams. (i) Some disputes were raised about the processes involved in giving tenders for the renovations; as this is perceived to be not within the scope of the committee, no comments are offered other than that, being almost entirely funded privately, the normal tender process may or may not have been followed., The second aspect over which considerable dispute has arisen is the removal of the Hanuman idol from its pre‑existing location to its present location and the present status of the main deity (Ranganatha Swamy) whose balalayam is being undertaken. As both matters relate to Agama Shastras, the Committee is not commenting on them, but the Court may direct that, with the assistance of experts, a report on the above be given. The writ petitioner objected to the procedure apprehending some structural changes to the sanctum sanctorum; the temple authorities, including the Joint Commissioner, gave an unconditional oral undertaking to the Committee that no structural changes would be made to the sanctum sanctorum or the deity himself and that proper Agama practices have been followed for the balalayam., The last general recommendation is that in undertaking exercises of the present nature, the authorities try to follow not only the guidelines of UNESCO in respect of the Srirangam temple itself but also the general principles given in the Burra Charter referred to in the first report., On 30 November 2015, the Supreme Court of India, taking into consideration the aforesaid report, was of the view that a better arrangement, as per the minutes of the meeting held on 02 November 2015 by the Commissioner of the Hindu Religious and Charitable Endowments Department, envisages preparation of a manual to be formulated by the Expert Committee appointed by the Government. Dr Nagaswamy’s report also referred to the incalculable harm being done in the process of renovation of inscriptions on walls and pillars. The Court observed that necessary meetings for achieving the objects should be called by the Commissioner, along with the Amicus Curiae and the team, which will proceed with drawing up future plans of action to be placed before the Court, including possible participation of representatives of UNESCO. However, the observations have not been given effect., On 25 January 2016, the Supreme Court of India, in its order, observed that there is an agreement that persons who are members of the Committee may individually give their suggestions for the computation of a manual; the suggestions were to be given within one month; upon receipt, the Department will prepare a draft manual within one month thereafter; and this draft manual will then be placed for discussion before the Committee, whose meeting will be called with a minimum five‑day notice. The Court also observed that the learned Amicus Curiae and the Department are free to obtain suggestions from persons other than the Committee members; the exercise of involving the best experts to carry out the work should also go on simultaneously; and necessary assistance can also be provided by the Central Government or the Archaeological Survey of India on both issues., On 16 April 2016, the sixth respondent, the Hindu Religious and Charitable Endowments Department, filed an affidavit pursuant to the order dated 25 January 2016, stating that a draft manual has been prepared after consultation and discussions with various Agama experts and archaeologists. Since experts from UNESCO are not available in India, Indian experts who have contributed largely on structural conservation have been consulted and their suggestions taken in the preparation of the draft manual. The draft manual was circulated to all stakeholders in the Committee on 31 March 2016, and a meeting was attended by them wherein they expressed their views. A copy of the minutes of the meeting held on 07 April 2016 and the draft manual were enclosed with the affidavit. The manual recommends that a comprehensive conservation management plan be prepared in consultation with experts for temples of high value. The manual bans sand‑blasting and emphasizes that water washing be done only with approval and supervision., On 05 July 2016, the Amicus Curiae filed a report stating that a working draft Conservation and Maintenance Manual for Hindu Religious and Charitable Endowments temples has now been made ready, circulated and placed before the Supreme Court of India. In the report, the Amicus Curiae placed certain recommendations regarding the draft manual, periodic feedback on the recommendations of the manual, safeguards that must be put in place before any work is undertaken, listing of all the temples in Tamil Nadu under the purview of the Hindu Religious and Charitable Endowments Department, the need for trained stapathis and the need to ensure enlistment of trained cryptographers to undertake recording and explanations of the various ancient inscriptions in the ancient temples., The Court has passed the following order: ‘We have heard different parties at length. The learned Amicus has given certain suggestions and the learned Advocate General requests some time to examine the same for their implementation. There has been some interesting exchange of communication with the United Nations Educational, Scientific and Cultural Organization (UNESCO). In fact, Mr Rangarajan Narasimhan, who is one of the petitioners, had approached UNESCO in view of the stand taken earlier before us on 16 April 2016 in Writ Petition No. 574 of 2015 to the effect that experts from UNESCO are not available in India. UNESCO has unequivocally stated that one of its oldest field offices is actually in New Delhi since 1948. Not only that, they claim to have been in touch with the Government of Tamil Nadu particularly between 2008 and 2010 regarding the study on Chettinad heritage. The position regarding the credentials of the particular person has been explained. The UNESCO responded to the Hindu Religious and Charitable Endowments Department’s letter dated 21 June 2016, and on 04 July 2016 raised a question regarding the conservation manual. UNESCO’s view is that there may be a need to widen the scope and improve the means of the consultation process. It is their view that the manual cannot be validated unless it is tested on the ground and informed by practical experience, and they suggested taking up a small conservation project as a pilot case. In view of the Department’s difficulties due to lack of staff, it is opined that the modalities of monitoring the status of conservation of temples need to be reviewed and the whole institutional mechanism of temple conservation should be examined. UNESCO has expressed its willingness to assist the Department in reviewing the institutional mechanism for conservation of temples and working out a strategy for improvement.’, The Court therefore requested that a representative of UNESCO who can make the Court more informed on the issue be present in Court on the next date of hearing, for which arrangement may be made by the State Government., The Court also noted that the petitioner sought clarification on the expression ‘essential works’ as used in the order dated 30 November 2015. The Court held that ‘essential works’ refers to works which cannot be delayed, as the structure may collapse in the meantime., The learned counsel for the Archaeological Survey of India stated that there are a number of encroachments and movement of unauthorised vehicles in front of the Mahabalipuram monument area and that the Archaeological Survey of India is taking steps. Certain suggestions have been made by the Amicus in this regard. The Archaeological Survey of India is to inform the local administration of the steps to be taken as a precaution, which shall be duly implemented by the local administration and the police authorities., Copy of this order be issued to the State Government as well as to Mr Rangarajan Narasimhan, so that it can be communicated to the representative of UNESCO. Copy of this order be also issued to the learned Amicus., On 23 August 2016, the Supreme Court of India passed a detailed order, which for better appreciation of the issue involved is extracted hereunder: Conservation Manual in UNESCO. The Court is in receipt of a copy of a letter dated 15 July 2016 addressed by the Director and UNESCO Representative to Bhutan, India, Sri Lanka and Maldives, to the Commissioner of the Hindu Religious and Charitable Endowments Department. UNESCO’s opinion is that it may be difficult to consider the manual prepared as a conservation manual as per the common professional understanding, since it fails to address the basic principles of such a manual, i.e., who does what, when and how regarding routine maintenance, time‑bound conservation projects and emergency situations. Certain other basic questions have been raised in an annexure titled ‘Questions related to the Draft Manual’. UNESCO emphasized that the service manual does not solve the problem unless there is an adequate institutional mechanism to ensure the quality of conservation work, something with which the Court has been deeply concerned. UNESCO advised reviewing the current procedures of the Department, including decision‑making for choice of temples for conservation work, extent of work, selection of a contractor and monitoring of its work, as well as the human‑resource basis of the Department. Simultaneously, UNESCO noted that the draft manual nonetheless contains some useful observations and recommendations, such as reconciling the principle of Agama Shastra and international conservation standards, developing clear guidelines for conservation practitioners, creating a graded inventory of temples on the basis of heritage values, and preparing a comprehensive conservation and management plan for key heritage temples. UNESCO also suggested the first steps: setting up a team of conservation experts and stakeholders for a fact‑finding mission to identify issues in conservation practice through case studies of five to six temples where conservation projects are ongoing or were recently undertaken; conducting an expert workshop on Agama Shastra and conservation; and reviewing the inventory of temples under the responsibility of the Department and its grading methodology.
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UNESCO has expressed its willingness to work with the Department and coordinate such activities provided that expenses for work and fees for experts are met by the Government of Tamil Nadu., The letter also refers to two properties proposed by the Government of Tamil Nadu for future World Heritage status and included in the tentative list in April 2014: Sri Ranganathaswamy Temple, Srirangam and the Chettinad Village Clusters of the Tamil Merchants. It has been observed that successful inscription of a site on the World Heritage list relies not only on its outstanding universal value but increasingly on the availability of an institutional and legal framework to ensure the conservation of the site as per international norms. Consequently, future inclusion in the final World Heritage list requires necessary action, beginning with a review of the current standards and procedures for the conservation of temples and heritage in general., A subsequent letter dated 18 August 2016, in furtherance of the earlier letter, requests the following first steps: set up a team of conservation experts and stakeholders for a fact‑finding mission to identify issues in current conservation practices through case studies of five to six temples where conservation projects are ongoing or were recently undertaken; conduct an expert workshop on conservation in Agama Shastra; review the inventory of temples under the responsibility of the Hindu Religious and Charitable Endowments Department and its grading methodology. These activities will be important, and an in‑depth review of the management system of the Hindu Religious and Charitable Endowments Department to set a baseline is suggested. UNESCO will be happy to coordinate these activities provided that the costs are met by the Government of Tamil Nadu. The request is for these matters to be examined in the hearing of the Madurai High Court scheduled for today., We are of the view that the Hindu Religious and Charitable Endowments Department should proceed in terms of the suggestions of UNESCO contained in the letter of 15 July 2016 with the annexure and the letter of 18 August 2016, hold further discussions and thereafter file a status report before the Madurai High Court as to the progress made and the time schedule within which the remaining aspects have to be addressed, in chart form., Learned counsel for the Archaeological Survey of India submits that a letter dated 29 July 2016 was addressed to the District Collector, Kancheepuram, recommending actions to be taken, followed by a reminder of 11 August 2016. However, nothing has been reported as having happened despite the direction contained in paragraph 8 of the last order dated 5 July 2016 that, after the Archaeological Survey of India informs the local administration of the steps to be taken, the same should be duly implemented by the local administration and the police authorities., The Archaeological Survey of India has filed photographs before the Court showing the extent of the problem where large areas have been encroached upon, even blocking the view of the monuments., A map has also been placed before the Court showing the position of the area under the Archaeological Survey of India, the bus stand and the bunk shops in the prohibited area, which are required to be removed., Learned Amicus Curiae has referred to his report dated 25 August 2015, where near the sea the Mahishasuramardhini monument and the broken lion rock exist, which are not even enclosed. The recommendation was to widen the protected area to include these features and to take steps to prevent vehicular traffic near the monuments. Other photographs show broken sculptures in the Varaha Mantapam, damages to the deity and the mantapam, and a pay‑and‑use toilet complex constructed inside the reserved area., The latter aspect pointed out by the learned Amicus Curiae would have to be addressed by the Archaeological Survey of India, which can file a status report in respect of the same., As far as the first aspect mentioned in the report of the Archaeological Survey of India is concerned, the District Collector, Kancheepuram, is directed to take steps and file a status/compliance report., The aforesaid actions shall be taken within a period of six weeks., It is made clear that if any litigation is initiated qua the same, it shall be listed only before this Bench of the Madurai High Court., An affidavit has been filed by the Executive Officer of the Arulmigu Padalathri Narasimha Perumal Temple, Singaperumal Koil, Chengalpet Taluk, Kancheepuram District, claiming the necessity of certain work to be carried out qua the Gopuram. The learned Amicus Curiae is requested to look into this issue and give his opinion on the next date of hearing., A copy of the order is to be issued to the State Government, to the learned Amicus Curiae, to Mr. Rangarajan Narasimhan and also to the second respondent, which filed a compliance affidavit on 24 October 2016 pursuant to the order dated 23 August 2016 passed by this Court. The affidavit states that the second respondent, Assistant Superintendent Archaeological Engineer, Archaeological Survey of India, Chennai Circle, visited the monumental site at Mamallapuram on 20 September 2016 with supporting staff to assess the status of particular sculptures pointed out by the learned Amicus Curiae and prepared a status report. No action has been taken by the district administration regarding removal of encroachments, movement of unauthorized vehicles, shifting of the bus stand, despite the direction of this Court dated 23 August 2016., An affidavit filed on behalf of the sixth respondent states that, in response to UNESCO’s suggestion, a letter was sent to UNESCO on 16 August 2016 proposing a workshop in Chennai with UNESCO participation. After deliberations, a pre‑workshop meeting was held on 21 October 2016, attended by the Commissioner and Additional Commissioner (Tiruppani), Hindu Religious and Charitable Endowments Department. The Commissioner, State Archaeological Department, Egmore and the Archaeological Survey of India, Chennai Circle, were addressed on 9 March 2016 to send a list of names to form an expanded Committee/Panel to individually visit and offer expert opinion on renovation proposals for heritage temples under the control of the Hindu Religious and Charitable Endowments Department of Tamil Nadu. A Screening Committee has been suggested at the State and Regional levels to study and approve proposals submitted for any renovation of temples of heritage value., The sixth respondent stated that after the meeting, they felt it appropriate to coordinate with UNESCO on the points suggested by this Court. The affidavit also pointed out various improvements undertaken and steps to be taken with respect to Arulmigu Mariamman Temple, Samayapuram; Arulmigu Adikesavaperumal Temple, Sriperumbudur; Arulmigu Kamachiamman Temple, Mangadu; Arulmigu Kamakshi Amman Temple, Kanchipuram; Arulmigu Kottaimariamman Temple, Salem; and Arulmigu Arunachaleswarar Temple, Tiruvannamalai., On 24 October 2016, an Inspection Report on a group of monuments in Mamallapuram was filed, stating the conditions prevailing in the Kotaikal Mandapa, Toilet Block, rock‑cut sculpture representing a group of elephants, monkeys and peacock, Ganesh Ratha, rock‑cut Varaha temple containing Varaha and Vama incarnations of Vishnu (Varaha Mandapa), Mahishasuramardhini rock standing in the sea to the north of the Shore Temple and two small carved rocks to the south of the Shore Temple. Suggestions were given to protect those sculptures., On 25 October 2016, this Court passed an order in the miscellaneous petitions filed in Writ Petition No. 574 of 2015, directing the Amicus Curiae to look into the issue and make suggestions to this Court keeping in mind the requirement of essential works from both architectural and Agama perspectives. The order observed that an appropriate course would be to appoint a Committee of Experts who would consider individual applications of temples to decide what constitutes essential work so as to avoid unnecessary delay and multiplicity of proceedings., On 3 November 2016, an affidavit was filed by the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, referring to the order passed by this Court on 25 October 2016. The affidavit states that the State Government had identified Shri K. T. Narasimhan, Superintending Archaeologist (Retired), Archaeological Survey of India, and nominated him as Consultant for Srirangam Temple rampart walls restoration in Government Order No. 93 dated 17 May 2013; thereafter the Government designated him as Consultant Archaeologist/Conservationist in Government Order No. 171 dated 29 June 2013, which is under challenge in Writ Petition No. 37619 of 2015. The State Government, vide Government Order No. 199 dated 8 August 2013, constituted an Expert Committee of four members with expertise in conservation to protect the conservation/restoration/renovation of ancient heritage temples/monuments. For restoration and preservation of murals, the Government constituted an Advisory‑cum‑Supervisory Committee (Expert Committee) and Working Committee in Government Order No. 237 dated 11 October 2013. Many retired personnel have been identified to give recommendations for renovation/repair works. All these works are being carried out in the temples in accordance with the Agamas, since those are living temples where devotees worship daily in thousands., An order in Government Order No. 264, Tourism, Culture and Religious Endowments Department dated 1 November 2016, formed the State Level Committee and Regional Level Committee for carrying out these tasks. It was prayed to modify the order dated 25 October 2016 insofar as it relates to the formation of a new Committee overlooking the Committee already in place., On 4 November 2016, this Court, after hearing the parties at length, passed an order that all miscellaneous petitions filed by individual temples be referred to a Committee consisting of the following specializations: (1) Structural Engineering Expert, (2) Archaeological Expert, (3) Conservation Expert, (4) Traditional Sthapathi, (5) Two Agama Experts. The Departmental Representative shall act as the Secretary of the Committee for facilitating its work and furnishing records. The Committee will look into repairs and renovations as observed in the order dated 25 October 2016, giving priority depending on urgency, as some religious ceremonies have designated days., On 7 November 2016, this Court constituted the Expert Committee to carry out the essential works in the temples., On 19 December 2016, the sixth respondent filed an affidavit stating that a letter dated 26 November 2016 was issued to UNESCO requesting a proposal, and in response a letter was received from UNESCO stating that UNESCO experts are to intervene in the renovation of temples, including the Moolavar Deity for ten temples, which has been objected to by several devotees. Since the issues relating to Agamas are religious, intervention by an organisation like UNESCO in conducting an Agama Workshop would likely cause resentment among various sections. A letter was issued to UNESCO in this regard and a reply is awaited., On 22 December 2016, this Court recorded the assurance given by the learned Advocate General that UNESCO would be welcomed to perform its task. The Court also recorded an affidavit filed by the Commissioner, Hindu Religious and Charitable Endowments Department, which in paragraph 5 expressed an unwelcome stance towards UNESCO. The Court observed that such a stance must be rejected in toto and directed the Commissioner to file a proper affidavit., On 10 January 2017, the sixth respondent filed another affidavit stating that a letter dated 28 December 2016 was issued to UNESCO to the effect that the earlier letter dated 19 December 2016 sent by the Department shall be treated as withdrawn and that the Department takes pleasure in welcoming UNESCO and assures all necessary support for the fact‑finding mission and the conduct of the Agama workshop., On 12 January 2017, this Court perused the affidavit filed by the Commissioner and observed that progress would be made in the matter with collaboration of UNESCO experts. The Executive Officer of Arulmigu Meenakshi Sundareswarar Temple filed Writ Petition No. 30869 of 2017 in Writ Petition No. 37619 of 2015 (by order dated 11 January 2021, delinked from the said writ petition and tagged along with this Suo Motu Writ Petition No. 574 of 2015) seeking impleadment and permission to continue ongoing renovation works. Similarly, Mr. Rangarajan Narasimhan, party‑in‑person, filed Writ Petition No. 19652 of 2018 in Writ Petition No. 574 of 2015, to direct the Hindu Religious and Charitable Endowments Department and the Executive Officer of Sri Ranganatha Swamy Temple, Srirangam, to furnish certain information relating to the temple as requested in his RTI application., On 30 November 2018, as per the administrative order of the Hon’ble Chief Justice, other writ petitions touching upon the protection, maintenance and sustenance of ancient temples, idols, temple lands, murals and other archaeological and historical places were listed along with this Suo Motu Public Interest Litigation before this Bench under the caption ‘specially ordered cases’., Thereafter, pursuant to the order dated 8 January 2019 passed by a Division Bench of the Madurai High Court, Writ Petition (Madurai Division) No. 24178 of 2018 was tagged with this Suo Motu writ petition batch. The prayer made in the said writ petition is to issue a mandamus directing the Secretary to the Government, Tourism, Culture and Religious Endowments Department, Chennai, to appoint all members as informed by the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, vide his letter bearing No. 25639/2018 dated 12 June 2018 to the State Level Heritage Screening Committee. According to the petitioner, the Committee is not functioning for want of appointment of members and hundreds of temples have been waiting in queue for years for approval of renovation/repair works. The petitioner referred to Damodara Narayanaperumal Koil at Thirukkannangudi and Mari Mutharamman Temple at Aralwaimozhi, Kanyakumari District, where Balalayam ceremonies were conducted five years ago but renovation works have not started due to lack of Committee approval. The Committee consists of nine members, of which seven posts are vacant; therefore, all vacancies need to be filled immediately by the Government., On 4 December 2020, this Bench, taking note of the object behind the constitution of the Expert Committee—that heritage temples with archaeological and religious significance should be identified, maintained and restored without causing damage—passed an order in Writ Petition Nos. 16006 of 2018 and 13991 of 2020 in Writ Petition No. 574 of 2015, thereby reconstituting the Expert Committee and issuing certain directions. The directions include: (i) the Hindu Religious and Charitable Endowments Department shall formulate procedure for convening Committee meetings with convenience of members and circulate agenda papers well in advance; (ii) members shall start functioning immediately and decide pending cases at the earliest; (iii) the Committee shall consider all required details of Agama, structural stability, historical and archaeological aspects for approving works; (iv) members shall cooperate among themselves and with the Department for smooth functioning; (v) meetings shall not be postponed unnecessarily and cases shall be taken up based on nature and urgency; (vi) the opinion of any two Agama Experts out of four (one Saiva and one Vaishnava) shall be sufficient where Agama opinion is essential; (vii) members shall consult religious scriptures before expressing any opinion; (viii) a detailed questionnaire to be filled by petitioning temples shall be placed before the Committee prior to meetings; (ix) participation of stakeholders or representatives of petitioning temples, if required, shall be decided by the Committee; (x) the Department shall provide transport facilities to Committee members; (xi) the Committee shall ensure protection and preservation of monuments and ancient temples while making decisions; (xii) the Committee’s decision shall be final and binding; (xiii) any grievance may be approached to this Court with a petition or memo. This order is subject to the final order to be passed in the main Suo Motu Writ Petition No. 574 of 2015., After reconstituting the Expert Committee, Mr. Rangarajan Narasimhan pointed out certain lapses and shortcomings in the Committee’s functioning and raised allegations against some members, filing seven miscellaneous petitions (Writ Petition Nos. 1810, 1814, 1816, 1818, 1819, 1821 and 1822 of 2021) seeking appropriate directions to the Hindu Religious and Charitable Endowments Department., We have heard all parties at length and perused the affidavits, counter‑affidavits, rejoinders, reports and supportive documents filed before this Court. Although many directions have been issued, the respondent authorities, particularly the Hindu Religious and Charitable Endowments Department, have not established a mechanism to protect monuments, temples, temple lands, properties, idols, etc., necessitating this Court to consider a solution to formulate a proper working system in the interest of the monuments, temples and the public at large., The issues revolve around the protection of historical monuments, heritage sites, temples and their properties. There is a dire need to manage and conserve our ancient cultural heritage and monuments employing advanced technology for protection, preservation and nourishment., India is a land united by abundant diversity in language, culture, tradition, arts, folklore, music, knowledge and natural resources. Pre‑Mughal and pre‑English history shows that the country was ruled by various kings who, though diverse in language and culture, were united by a love for the arts. Temple culture originated here and spread to many countries. Comparative studies of ancient religions reveal several commonalities. The legends of this land are recognized worldwide, and the religious faiths, beliefs and hymns are accepted by people of other countries despite occasional political appeasement controversies in our own country. The ancient knowledge of science and technology was far advanced. Tamil Nadu has the highest number of monuments and temples with heritage value, serving as a testimony of pride and talent in arts, science and sculpture. During British rule, steps were taken to preserve and develop artisan talent, leading to the establishment of the Madras School of Art in 1850 by Dr. Alexander Hunter to preserve ancient sculpture craft and provide trained workers for temple renovation and other works of art., After independence, although temples were brought under state control, the autonomy of other religious institutions was preferred. Tamil Nadu is blessed with the most ancient temples in the country, home to more than 42,000 temples, of which over 38,000 come under the control of the Hindu Religious and Charitable Endowments Department. Some temples are at least 2,000 years old and consist of deities, sculptures and marvelous architecture. The location of pillars and deities has significance rooted in spiritual or miraculous events recognized in legends and Agamas. Sculptors with sound knowledge of history and legends were called Sthapathis, whose assistance is required for construction, renovation and restoration work. UNESCO’s suggested in‑house mechanism would require every temple to have a Sthapathi., Even centuries ago, sculptors from this land travelled worldwide and built temples with great architectural design and precision in Indonesia, Sri Lanka and Cambodia. They were well‑versed not only in sculpting but also in customs, enabling them to bring every deity to life with precision. Many temples in this state have been declared places of archaeological importance, yet many others awaiting declaration display uniqueness and antiquity warranting protection. The state now faces an indifferent situation, riddled with idol thefts on one hand and the need to preserve, repair and resurrect existing temples and deities on the other., The Hindu Religious and Charitable Endowments Department is the custodian of most temples and their properties, including idols. It is their primary duty to protect, maintain and safeguard temples and valuable idols/antiques, which this Court, with great anguish, observes the Department has failed to do. Protection of temples also implies protection of temple lands and associated activities. It is startling that, despite substantial income from major temples, the Department has not maintained historical temples nor safeguarded idols, which have significant antique value. Some temples recognized by UNESCO as heritage sites are in ruins, and neither the Archaeology Department nor the Hindu Religious and Charitable Endowments Department has shown interest in identifying and protecting them, facilitating miscreants in stealing idols. Some officials appear more interested in personal gain than in fulfilling their entrusted duties., The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (effective from 28 April 1960) has been in force for 61 years, yet the Department has not taken inventory of idols, properties, jewels and other articles gifted to or owned by temples. Moreover, the Department has not computerised details of idols, jewels and properties nor provided adequate ICON Centres with surveillance to keep valuable idols safe in the centres and temples. This has enabled culprits to smuggle idols out of the country. As theft of Panchaloka idols worth crores increased, the Idol Wing, CID, vide Government Order No. 2098 dated 7 October 1983, was created to investigate and recover idols, but the steps taken by the Wing have been unsatisfactory and it remains ineffective., It is also the duty of the State to protect monuments, including idols and antiques of historical value. Article 49 of the Directive Principles of State Policy (Part IV of the Constitution) states: “Protection of monuments and places and objects of national importance. – It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.” According to Article 51A(f), every citizen of India has a duty to value and preserve the rich heritage of our composite culture. The Constitution thus imposes an obligation on the State and a duty on every citizen to value and preserve the rich heritage, including temples, arts, sculptures and scriptures. The Government has miserably failed in its duty to protect places of national importance and temple properties such as idols and lands. Therefore, the Directive Principles must be directed towards protection of ancient monuments and idols and to thwart all attempts to damage or smuggle them., It is the primary responsibility of the Hindu Religious and Charitable Endowments Department to ensure that the properties of all religious endowments are protected. The definition of religious endowment under Section 6(17) and religious institution under Section 6(18) includes Mutts. For better understanding, the objects and reasons for the enactment of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1991 (Tamil Nadu Act 46 of 1991) are reproduced: A large part of small, ancient and dilapidated temples which form part of our rich heritage are lying uncared for; many of these temples are in ruins; lack of adequate finance has led to this neglect.
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It is therefore proposed to reorganize the Hindu Religious and Charitable Endowments Administration Department by establishing a Temple Administration Board to ensure proper maintenance and administration of the temples, besides observance of worship and rituals. The endeavour is to have a two‑tier system of administration, namely the Temple Administration Board at the apex level and a District Committee at the district level. The Chief Minister will be the Chairman ex‑officio of the Temple Administration Board. The overall superintendence and governance of temples, including appointment of trustees of temples having an annual income of Rs 1,00,000 and above, are to be vested with the Temple Administration Board, and the power to appoint trustees for temples having an annual income of less than Rs 1,00,000 is to be vested with the District Committees. It is also proposed to entrust the powers of the Commissioner, Deputy Commissioner and Assistant Commissioner under the Hindu Religious and Charitable Endowments Act, except certain powers of a judicial nature, with the Temple Administration Board and District Committees, suitably. Thus, it is clear from the aforesaid statement of objects and reasons to the Amendment Act, 46 of 1991 that a Board was created with the Chief Minister of the State at the helm to take necessary action to protect the ancient temples., Section 23 of the Hindu Religious and Charitable Endowments Act, 1959 deals with the power and duties of the Commissioner in respect of temples and religious endowments, which reads as follows: Subject to the provisions of this Act, the administration of all temples (including specific endowments attached thereto) and all religious endowments shall be subject to the general superintendence and control of the Commissioner, and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such temples and endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist, provided that the Commissioner shall not pass any order prejudicial to any temple or endowment unless the trustees concerned had a reasonable opportunity of making their representations., As per the above section, it is the duty of the Commissioner to ensure the object of the Hindu Religious and Charitable Endowments Act, namely the effective administration of the temples, which includes the proper maintenance of the temples, idols, paintings and the properties of the temples., The Commissioner and the officials are duty‑bound to observe the forms and ceremonies of the institution administered, implying that all the day‑to‑day traditional procedures are adhered to. It would also include that the essential works, including the restoration of damaged idols, pillars, paintings, etc., are to be carried out. Scientific results have shown that periodical restoration and renovation decrease the possibility of damage., Section 97 enables the Commissioner to create a common fund through which maintenance of old and needy temples and their buildings and paintings can be carried out. The provision reads: Creation of Hindu Religious and Charitable Endowments Common Good Fund. (1) It shall be lawful for the Commissioner to create a fund to be called the Hindu Religious and Charitable Endowments Common Good Fund, out of contributions voluntarily made by the religious institutions from their surplus funds or by any person for the renovation and preservation of needy temples and their buildings and paintings, for the promotion and propagation of tenets common to all or any class of religious institutions and for any of the purposes specified in sub‑section (1) of section 66. (1‑A) The Commissioner may, on a direction from the Government, transfer to the fund any surplus or such portion thereof as may be specified in the direction, remaining in the Tamil Nadu Hindu Religious and Charitable Endowments Administration Fund after the repayment of the amounts specified in sub‑section (2) of section 12 and sub‑section (2) of section 96. (2) The fund shall be vested in and administered by the Commissioner in such manner as may be prescribed., It is to be noted that the word ‘temple’ includes the deity and the structures in the temple. The funds earned by the temple can be used only for the fulfilment of the objects of the Act spelled out in Section 66, including maintenance of the same temple or other temples and for propagation of tenets common to all or any class of religious institution. The funds cannot be diverted or transferred to other departments or to the state exchequer for any other use. Many temples in the state are ruined and unattended; some ancient temples of spiritual and historical value do not earn any income; and some temples have surplus income. It is therefore the duty of the department to identify those temples that require adequate and immediate attention, including allocation of funds for repair or renovation and for ensuring that the daily rituals are promptly performed., Emphasising the importance of maintenance of the temples, images, paintings, architecture and sculptures, which cannot be achieved except by periodical inspection and supervision, the Government has been empowered to frame rules as per Section 116, which reads: Power to make rules. (1) The Government may, by notification, make rules to carry out the purposes of this Act. (2) Without prejudice to the generality of the foregoing power, such rules may provide for (i) all matters expressly required or allowed by this Act to be prescribed; (xii) the custody of jewels and other valuables and documents of religious institutions and the conditions and restrictions subject to which the jewels and other valuables may be disposed of; (xvii) the preservation, maintenance, management and improvement of the properties and buildings of religious institutions including architectural, sculptural and epigraphic features; (xviii) the inspection and supervision of the properties and buildings of religious institutions, the reports to be submitted by persons making such inspection and supervision and the fees leviable for such inspection, supervision and report; (xix) the preservation of the images in temples; (xxii) the preparation and sanction of the estimates and acceptance of tenders, in respect of public works and for supplies in religious institutions; (xxiii) the qualifications to be possessed by the officers and servants for appointment to offices in religious institutions and the conditions of service of all such officers and servants., The rules on different subjects enumerated in Section 116 have been framed by the Government, including the Advisory Committee Rules, 1997 (G.O. Ms. No. 275, C.T. & R.E. Department, dated 16 July 1997, SRO No. A‑102(a) 1987). In exercise of the powers conferred by subsection (4) of section 7 read with subsection (1) of section 116 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959), the Governor of Tamil Nadu made the following rules: The Advisory Committee shall meet at least once in six months and more often if needed as decided by the Chairman. The Advisory Committee may make recommendations in respect of the following matters: (1) establishment and maintenance of universities, colleges or other institutions with special provisions for the study of Hindu religion, philosophy or shastras or for imparting instruction in temple architecture; (2) renovation of temples in need of repairs by enlisting the cooperation of the public; (3) general suggestions in accordance with the terms of the trust and usage for better administration of religious institutions; (4) preservation of the architectural beauty of temples., Section 7 of the Hindu Religious and Charitable Endowments Act and the Advisory Committee Rules, when read cumulatively, make it clear that the Advisory Committee should meet at least once every six months to take steps for protection of the temples and images. The Committee is also empowered to recommend establishment and maintenance of universities or colleges with special provisions for the study of Hindu religion, philosophy or culture or for imparting instruction in temple literature. However, such meetings have not been conducted, and as a result many temples have been left in a lurch. Moreover, demolition of ancient temples and reconstruction of new temples by officers of the Hindu Religious and Charitable Endowments Department, without considering their responsibilities to preserve and protect the heritage, paves the way for loss of heritage and denies future generations the opportunity to appreciate the values of these ancient temples., It is necessary that the properties of temples and religious institutions be maintained properly in order to derive more income for the betterment of the temples. The custodians of the temple properties are the trustees, the Hindu Religious and Charitable Endowments Department and mutts, who must keep in mind the object and reason behind such donations. Endowments and lands are donated in love, faith and satisfaction towards the religion, for the temples to be self‑sufficient to perform everyday rituals and to uplift devotees economically and spiritually. A duty is cast on the Commissioner under Section 23 to ensure that such temples and endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded. Section 29 of the Act lays down the preparation of a register for all institutions by the Commissioner. Additionally, the Joint Commissioners are empowered to retrieve temple lands from encroachers by exercising the powers under Sections 78, 79 and 80. However, officials have not properly exercised these powers and are in dereliction of duties. Hence, the Hindu Religious and Charitable Endowments Department should act diligently to retrieve all properties under encroachment., With regard to sites of archaeological importance, the legal provisions casting a duty on the central and state governments are clear. A ‘heritage site’ is an official location where pieces of political, military, cultural or social history have been preserved due to their cultural heritage value, whereas a ‘historic site’ may be any building, landscape, site or structure of local, regional or national significance., In 1904 an Act called the Ancient Monuments Preservation Act was enacted for preservation of ancient monuments, archaeological, historical and artistic interests. This effort continued after independence. In 1951 the Parliament enacted the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951, under which various monuments were declared of national importance. Subsequently, the Ancient Monuments and Archaeological Sites and Remains Act, 1958 was enacted on 28 August 1958 for the preservation of ancient and historical monuments and archaeological sites and remains of national importance, for regulation of archaeological excavations and for protection of sculptures, carvings and other objects., Section 2 of the Ancient Monuments and Archaeological Sites and Remains Act defines ‘Ancient Monument’ as any structure, erection or monument, or any tumulus or place of interment, or any cave, rock‑sculpture, inscription or monolith which is of historical, archaeological or artistic interest and has been in existence for not less than 100 years, including (i) remains of an ancient monument, (ii) site of an ancient monument, (iii) such portion of land adjoining the site required for fencing or covering or otherwise preserving the monument, and (iv) the means of access to and convenient inspection of an ancient monument. ‘Antiquity’ includes (i) any coin, sculpture, manuscript, epigraph or other work of art of craftsmanship, (ii) any article, object or thing detached from a building or cave, (iii) any article, object or thing illustrative of science, art, crafts, literature, religion, customs, morals or politics in bygone ages, (iv) any article, object or thing of historical interest, and (v) any article, object or thing declared by the Central Government by notification in the Official Gazette to be an antiquity for the purposes of this Act, which has been in existence for not less than one hundred years. ‘Archaeological site and remains’ means any area which contains or is reasonably believed to contain ruins or relics of historical or archaeological importance which have been in existence for not less than one hundred years, and includes (i) such portion of land adjoining the area required for fencing or covering or otherwise preserving it, and (ii) the means of access to and convenient inspection of the area. ‘Maintain’, with its grammatical variations, includes fencing, covering, repairing, restoring and cleansing of a protected monument, and any act necessary for preserving a protected monument or securing convenient access thereto. ‘Protected area’ means any archaeological site and remains declared to be of national importance under this Act. ‘Protected monument’ means an ancient monument declared to be of national importance under this Act., Section 19 deals with restrictions on enjoyment of property rights in protected areas. No person, including the owner or occupier of a protected area, shall construct any building within the protected area or carry on any mining, quarrying, excavating, blasting or similar operation, or utilise the area in any other manner without the permission of the Central Government, provided that cultivation involving digging of not more than one foot of soil is not prohibited. The Central Government may, by order, direct that any building constructed in contravention of this provision be removed within a specified period, and if the person refuses or fails to comply, the Collector may cause the building to be removed and the person shall be liable to pay the cost of removal., The Antiquities and Art Treasures Act, 1972 (Act No. 52 of 1972) was enacted on 9 September 1972 with the objects of regulating the export trade in antiquities and art treasures, preventing smuggling and fraudulent dealings in antiquities, providing for compulsory acquisition of antiquities and art treasures for preservation in public places, and other related matters., Section 2 of the Antiquities and Art Treasures Act defines ‘antiquity’ to include (i) any coin, sculpture, painting, epigraph or other work of art or craftsmanship; (ii) any article, object or thing detached from a building or cave; (iii) any article, object or thing illustrative of science, art, crafts, literature, religion, customs, morals or politics in bygone ages; (iv) any article, object or thing of historical interest; (v) any article, object or thing declared by the Central Government by notification in the Official Gazette to be an antiquity for the purposes of this Act, which has been in existence for not less than one hundred years; and (vi) any manuscript, record or other document of scientific, historical, literary or aesthetic value which has been in existence for not less than seventy‑five years. ‘Art treasure’ means any human work of art, not being an antiquity, declared by the Central Government by notification in the Official Gazette to be an art treasure for the purposes of this Act, provided that no declaration shall be made where the author is alive., A conjoint reading of the provisions illustrates that for a monument to be considered an ancient monument or for an article to be declared an antiquity, it must have been in existence for more than 100 years. Under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, mere existence of a historical structure for more than 100 years is sufficient for it to be declared a monument of national importance, whereas the Antiquities and Art Treasures Act deals only with storage and trade of antiquities. The Ancient Monuments and Archaeological Sites and Remains Act, 1958 has a wider scope, giving the Archaeological Survey of India the right to maintain any site of historical importance. The Supreme Court of India, in Sakku Bai v. State of Karnataka [2020 Online SC 167], while dealing with the necessity of existence of a monument to treat the site as of historical or archaeological importance, held that the 1961 Act makes two distinct categories for protected monuments (Sections 3‑18) and protected areas (Section 19 onwards). The former relates to ancient monuments, the latter to archaeological sites and remains. The definitions do not require a link between the existence of an archaeological site and an ancient monument; an area may be protected independent of any monument if there is a reasonable belief that it contains ruins or relics of historical or archaeological importance., The Ancient Monuments and Archaeological Sites and Remains Act, 1958 gives the Archaeological Survey of India the right to declare any site as a protected area and to remove all unauthorised constructions and alterations within the protected area. Similar rights are granted to the state under the State Act. The Act also makes clear that if a monument is a shrine or place of worship, it shall not be used for any purpose inconsistent with its character, thereby protecting the right of public worship. The Big Temple in Thanjavur, though declared a World Heritage Site and within the protected zone of the Archaeological Survey of India, remains a prominent place of worship under the control of the Hindu Religious and Charitable Endowments Department of the state., The Supreme Court, in Archaeological Survey of India v. State of Madhya Pradesh [(2014) 12 SCC 34 : 2014 SCC OnLine SC 1042], while dealing with the powers of the Archaeological Survey of India to deny permission to carry out repairs, held that the Bade Baba Temple, dating back to the 6th‑7th century, had undergone natural wear and tear, demolition and rebuilding in 1940, collapse of the dome in 1976, extensive repairs in 1992, and recurring damage to the main building. The idol remained intact. The Court observed that the dispute centred on who should carry out the repairs and in what manner. The Archaeological Survey of India claimed that repairs should be under its supervision, whereas the Jain Temple Trust claimed its prerogative. The Court noted that removal of the idol was justified to protect it, and that reconstruction in accordance with the Agamas was approved by the Acharyas of the Digamber Jain Sect. The judgment makes clear that even when a monument or temple is under the ambit of the Archaeological Survey of India, the state or the Hindu Religious and Charitable Endowments department is empowered to carry out necessary repairs., The Tamil Nadu Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1966, which is pari materia to the Central Act, deals with the constitution, role and functioning of the state department. Section 18 of the State Act corresponds to Section 19 of the Central Act. In exercise of the powers conferred by Section 38 of the Tamil Nadu Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1966 (Tamil Nadu Act 25 of 1966), the Tamil Nadu Ancient and Historical Monuments and Archaeological Sites and Remains Rules were framed in 1971., Rule 9 deals with prohibition of certain acts within protected monuments and reads as follows: No person shall, within a protected monument, (a) do any act which causes or is likely to cause damage or injury to any part of such monument; (b) discharge any firearms; (c) cook or consume food except in areas, if any, permitted for that purpose; (d) hawk or sell any goods or wares, canvass customers, display advertisements or give tours for monetary consideration except under a licence granted by the Director; (e) beg for alms; (f) violate any practice, usage or custom applicable to the monument; (g) bring for any purpose other than maintenance of the monument (i) any animal, or (ii) any vehicle except in areas reserved for parking thereof., The Ancient Monuments and Archaeological Sites and Remains Act was amended in 2010. Section 30A provides punishment for construction in a prohibited area, with imprisonment up to two years, a fine up to one lakh rupees, or both. Section 30B provides punishment for construction in a regulated area without prior permission, with the same penalties. Section 30C provides that any officer of the Central Government who enters into or acquiesces in any agreement, permits, conceals or connives at any act of construction or reconstruction in a prohibited or regulated area shall be punishable with imprisonment up to three years, a fine, or both., A reading of the above provisions demonstrates that the role of the state department is to protect monuments by carrying out appropriate repair works without damaging the original structures, and to ensure that all illegal encroachments and constructions are removed. Officers of the Central Government must also ensure appropriate action to protect monuments or sites. Section 30C, together with Sections 30A and 30B, empowers action against any Central Government officer who fails in his duty, and also enables action against any state officer who colludes with perpetrators. The UNESCO team report indicates that both the Central and State departments have failed to safeguard sites and remove encroachments at many temples and archaeological sites, including Mamallapuram, and are therefore liable to be prosecuted under Section 30C., Rules 10, 30, 31, 38 and 49 of the Management and Preservation of Properties of Religious Institutions Rules, 1964 specifically deal with renovation and repairs of antiquities and buildings of heritage value and archaeological importance. Rule 10 provides that proposals for works that are not purely secular shall be framed with due regard to the principles and practices for traditional architecture and the need to preserve architectural, sculptural and archaeological features. Rule 30 provides that construction and repairs of any gopuram shall, with the sanction of the appropriate authority, be entrusted to a qualified stapathi selected from the panel approved by the Government. Rule 31 provides that repairs, alterations etc. shall be carried out by the board of trustees only with prior permission of the Commissioner, which shall be granted only after obtaining competent advice. Rule 38 provides that whenever the Commissioner finds it desirable or necessary, the Archaeological Department shall be consulted regarding any building work.
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Rule 49 provides that the Board of Trustees shall maintain paraphernalia such as cars, vahanams, palanquins and chapparams in good condition. Proposals for their repair shall be made to the appropriate authority for sanction at the time of budget submission, after obtaining the advice of an expert sthapathi from outside the panel approved by the Government. Thus, a comprehensive statutory framework exists for carrying out repairs and renovation works in temples in the state of Tamil Nadu while preserving and conserving their archaeological and historical heritage., Rule 2 of the Religious Institutions Custody of Jewels, Valuables and Documents and Disposal Rules requires each religious institution to maintain a register in the form specified by the Commissioner. The register shall contain lists of jewels, gold vessels, silver vessels and other valuables, giving correct descriptions, full particulars, estimated values and weights (excluding vahanams). Entries shall be made at the time of purchase, acquisition, sale, loss, exchange, alteration or substitution of any jewel or valuable., Rule 8 prescribes the procedure when jewels and valuables not used daily but required for festivals are entrusted to an office‑holder. The office‑holder must provide a written acknowledgement in a special register and give a written undertaking to indemnify the institution against loss or damage. Details of the items, their serial numbers and the period of custody shall be entered in the register. If custody exceeds one day, the trustee shall provide safe facilities. Upon return, a record of return shall be made in the register., Rule 21(1) mandates that all jewels and valuables of religious institutions be appraised by a team consisting of a Verification Officer (Deputy Commissioner cadre), a gold‑cum‑gem specialist and a Technical Assistant, who are responsible for appraisal work in all temples within their jurisdiction., Although the Rules on custody of jewels and valuables are in force, a proper inventory is not maintained. There is no central registry containing details of all valuables, jewels and documents, which hampers cross‑verification and accountability of individuals handling them., Pursuant to an order of the Supreme Court of India for setting up conservation experts and stakeholders for a fact‑finding mission to identify issues in conservation practice through case studies of five to six temples, the UNESCO Fact‑Finding Mission for Tamil Nadu Temples, 2017 was established to work within the framework of technical support to the Government for defining an appropriate conservation approach., The mission began in late March 2017 and reviewed the nature and quality of physical interventions recently made to historic temples. The temples examined included Meenakshi Amman Temple, Madurai; Nellaiyappar Temple, Tirunelveli; Vanamamalai Perumal Temple, Nanguneri; Marudhakali Amman Temple, Kumbakonam; Nageswara Swami Temple, Kumbakonam; Nagnanadha Swami Temple, Manambadi; Shri Adhi Narayana Perumal Temple, Pazhaverkadu, Chennai; Shri Arunachaleswarar Temple, Tiruvannamalai; Shri Ranganatha Swamy Temple, Srirangam, Trichy; and Shri Kamakshi Amman Temple, Kancheepuram., Other temples visited to understand ritualistic norms and conservation processes included Subramaniya Swami Temple, Tiruchendur; Uchista Ganapathi Temple, Manimoorthispuram, Tirunelveli; Shri Adhi Narayana Azhwar Temple, Azhar Thirunagari; Shri Kalatheeswarar Temple, Nangai Mozhi, Tuticorin; Shri Veeraraghava Perumal Temple, Palayakayal, Tuticorin; Shri Narasimha Perumal Temple, Namakkal; Shri Kailasanathar Temple, Kambarasampettai; Shri Pundarikatcha Perumal, Thiruvellarai; Shri Jambukeswarar Akilandeswari Temple, Thiruvanaikaval; and Shri Vishnu Temple, Malayadipatti, Pudukottai., The mission primarily focused on the order of the Supreme Court of India assigning UNESCO to provide a factual report on the conservation approach and processes followed in the above temples., The major issues observed in conservation of temples, as stated by UNESCO, are: (i) The Hindu Religious and Charitable Endowments Department (HR&CE) lacks the capacity and qualified experts to carry out large‑scale conservation works; (ii) No appropriate system or process is followed for documenting, assessing, reporting and tendering heritage works, and there is no empanelment of qualified heritage contractors; (iii) The quality of many regional and local sthapathis is questionable, as found incompetent on site, a point also accepted by the Chief Sthapathi of HR&CE; (iv) Some HR&CE staff members show potential to be trained as Heritage Managers, but the majority lack essential qualifications and are misfit for responsibility, with officials primarily managing day‑to‑day affairs and lacking technical qualifications for conservation; (v) The quality of conservation works varies widely, ranging from good examples to mediocre works and shocking cases of demolition of historic temples; (vi) Despite involvement of experts such as the Archaeological Survey of India, ex‑ASI archaeologists, Chief Sthapathi and structural experts, HR&CE does not follow their reports at ground level; (vii) Inputs from Agama Shastras are absent in all conservation projects, and there is a disjunction between Agama Shastras and Shilpa Shastras, with limited adherence to Shilpa Shastras; (viii) Maintenance of records of existing and proposed drawings, historic research and historic layering of temples is largely missing; (ix) Comprehensive Conservation Plans or Detailed Project Reports are absent, leading to ad‑hoc decisions by a few individuals without holistic assessment of urgency, necessity, severity and justification., Quoting Agama Shastras, referencing Shilpa Shastras, aligning with conservation guidelines such as the Archaeological Survey of India Policy and ICOMOS Charters, adhering to national and state Acts, employing scientific procedures like structural analysis, surveys and detailed reports, and communicating the conservation approach, the mission made final recommendations. It stated that the temples handled by the HR&CE Department are unimaginable to manage without a coherent operational structure and an army of experts, skilled sthapathis and craft persons; otherwise simultaneous conservation, management and repair are not feasible., The mission further recommended that, given the large number of temples, the HR&CE Department should supervise and administer immovable properties as per the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, while conservation works should be assigned to a specialised department such as Archaeology. A multidisciplinary approach is required, involving Agama experts, sthapathis, archaeologists, historians, conservation architects, landscapists, services experts and visitor‑management experts, preferably inducted into the HR&CE organisational structure to ensure in‑house technical expertise, especially since some Joint Commissioners manage between 500 and 1000 temples. General conservation guidelines and capacity‑building of HR&CE staff and officials were also mentioned, with separate recommendations for each temple., The report also outlines the functioning of the HR&CE Department and the Act prescribing rights and duties of various authorities involved in Tiruppani works, funds management, government grants, schemes for conducting Tiruppani in temples—particularly in habitations of Adi Dravida and tribal communities—and the importance of conservation, renovation and restoration of heritage temples as observed by the Archaeological Expert Committee, including the restoration of murals and approval of sthapathis for standards in Agama and Shilpa Shastras., The mission formulated conservation guidelines covering the following essential components: (a) Documentation of all plans, elevations, sections and architectural details using advanced techniques such as LiDAR and AutoCAD; (b) Surveys employing Ground Penetrating Radar and total stations to understand ground conditions, geology and drainage, followed by detailed condition assessment of structures and artworks; (c) Historic layering and evolution of the temple, including application of Shilpa Shastras, architectural styles, patronage, religious events, rituals and changes over time; (d) A comprehensive Conservation Management Plan addressing physical conservation as per Agama and Shilpa Shastras, landscape, drainage, services, lighting, visitor management, adaptive reuse, risk management and integration with the surrounding city plan; (e) Phased implementation of the plan on a yearly basis with periodic monitoring; (f) Involvement of experts including traditional sthapathis of highest calibre, engineers, archaeologists, art conservators and conservation architects, ensuring their recommendations are observed at ground level; (g) Complete recording of all works carried out within the temple complex, including dismantled or removed portions, specifications for new works and before‑, during‑ and after‑photographs., The report emphasized that, considering major problems were found to be ineffective on‑site implementation, capacity building of HR&CE staff and officials for conservation works is essential., The Director of UNESCO Representative for India, Bhutan, Maldives and Sri Lanka addressed a letter dated 14 June 2017 to the Hon’ble Chief Justice, stating that the field visit by the UNESCO Expert Team confirmed multiple gaps in the rationale and quality of physical interventions made to heritage temples, which the report would detail with recommendations. The letter warned that without will or adequate human resources in the HR&CE Department, the report would be of no use, and it also pointed out incidents of aggressive behaviour and unprofessional attitude by some HR&CE officers, especially at Srirangam., Dr. R. Nagaswamy, former Director of Archaeology, appointed by the Supreme Court of India to assist the amicus curiae, filed a memo stating that neither the HR&CE Department nor the State Archaeological Department has done anything to preserve or restore ancient temples of Tamil Nadu. He noted that temples are worshiped by hundreds of millions of believers and constitute institutions of long‑standing faith; therefore, if a part of a temple or vigraham is damaged, it must be repaired, not replaced. He also observed that the UNESCO charter emphasizes the highest academic standards for conservators and interdisciplinary experts; a sthapathi alone is not qualified to alter ancient structures, which must be repaired in the same form as the original, necessitating experts in both modern traditional architecture and the history of architecture., Dr. Nagaswamy further argued that conservation, preservation and restoration of temples are highly scientific and can be carried out only by specially trained scientists. He stated that executive officers currently carrying out these works are not experts and therefore unable to speak authoritatively on specialization. He highlighted the absence of a strong unit for conservation and restoration in the country and recommended that a number of engineering candidates be trained, possibly through a special institute set up by the state government with UNESCO assistance and international faculty; until such time, all structural work in temples should be prohibited., The conservation, renovation and maintenance of temples are carried out as per the traditional heritage protection system practiced by the core community, with rules laid down in traditional texts. The HR&CE Act and Rules prescribe modalities for sanctioning and allocating funds for proposals whenever conservation is needed due to religious motivation or structural distress. In the Government order dated 08 August 2013, the Archaeological Survey of India was invited to be actively involved in the conservation of temples of historic significance. Since 2013, all conservation activities have been carried out with participation of an expert committee from the ASI, as per the ASI Conservation Manual. However, ASI expertise is limited to monuments and ruins and has limited understanding of living heritage temples. Pursuant to the Supreme Court of India order dated 25 January 2016, the HR&CE Department, after consultation with various experts, prepared a draft manual for conservation and maintenance of temples. Stakeholder suggestions were invited on 4 February 2016, and a meeting on 7 April 2016 considered objections and views. The manual addresses various aspects of South Indian temple construction, concepts of conservation and practices for diagnosing structural defects., The manual proposes classification of temples based on heritage values and includes: (i) understanding and highlighting traditional repair and renewal practices to provide insight into religion and heritage protection; (ii) identifying threats to heritage structures; and (iii) disseminating awareness of maintenance and structural conservation, noting that damage due to vegetation, weathering and foundation defects are key problems faced by several temples. It also addresses maintenance and preservation of murals and inscriptions within temple complexes. The manual aims to raise awareness among executive officers, PWD engineers and trustees on heritage conservation and maintenance, initiates dialogue among stakeholders, and is made publicly available on the department website. The manual is pending government consideration, whereas the Supreme Court of India regards it as dormant., Mr. R. Venkataraman, petitioner in Writ Petition No. 20421 of 2020 seeking to implead himself as a party to the Suo Motu Writ Petition No. 574 of 2015, stated that despite the Supreme Court of India order in Criminal Appeal Nos. 8690 and 12060 of 2017, the HR&CE officials have not taken proper care to preserve the heritage and salient features of temples and monuments. He alleged that the HR&CE Department has failed to overcome malpractices at all levels, resulting in huge loss to temples and the Government, and that top officials are accused in idol theft cases yet continue to administer the management, allowing continued mismanagement. He further claimed that the Department has failed to collect large lease and rental arrears from temple properties, lacks proper auditing, and that representations to the Commissioner, HR&CE Department, Chennai regarding idol theft, missing registers, etc., have not been considered. He prayed for diversification of powers vested in the HR&CE Department and, citing the historical significance of Sri Pasupatheeswarar Temple at Pandanallur, sought a direction to the ASI to inspect and file a report for possible declaration as a protected monument., Mr. R. Singaravelan, learned Senior Counsel assisting the Supreme Court of India in public interest, submitted that the Suo Motu Public Interest Litigation touches fundamental freedoms of conscience, religion and the right to manage religious affairs under Articles 25 and 26 of the Constitution of India. He argued that although the HR&CE Act provides a procedure for fixing compensation to tenants who have erected superstructures on leased properties, a Tribunal with a Judicial Officer should be constituted to decide all disputes related to religious institutions, as currently only HR&CE officials decide sensitive matters. He noted that Section 34D of the HR&CE Act bars civil court jurisdiction in important complicated matters, placing them in the hands of department officials, which can cause inordinate delay and affect temple rights and worshippers., He further observed that Section 63 confers wide powers on the Joint Commissioner and Deputy Commissioner to inquire and decide disputes relating to religious institutions, including status, affairs and worshippers, which contravenes fundamental rights under Articles 25 and 26 and the principle of natural justice that no one should be judge in their own cause. He cited Supreme Court decisions in B.P. Mittal v. Union of India (1983) 1 SCC 51 and M. Siddiq v. Suresh Das (2020) 1 SCC 1, emphasizing that places of worship enjoy constitutional and statutory protection and the Government must respect the fundamental right of worship., He contended that disputes over encroachment and possession of religious properties should be decided by Joint Commissioners, then Commissioners as revisional authority, and thereafter by a Tribunal; a District Tribunal should be constituted with appeals to a Division Bench of the High Court as a Special Appellate Tribunal to avoid delay and prevent HR&CE officials from adjudicating their own actions. He referred to the Supreme Court decision in Rathinasamy v. State of Tamil Nadu (2009) 5 SCC 625. He also argued that appointment of Archakas should follow Agama prescriptions rather than hereditary order, and any deviation would infringe freedom of religion. He highlighted that the Scheme decree for temple administration provides a three‑year term for the Committee of Trustees, but subsequent government orders reduced it to two years, which is unsustainable. He raised concerns about misuse of Undiyal funds, improper leasing of temple properties, and non‑payment of rent., Relying on Rule 14 of the Tamil Nadu Government Servants Conduct Rules, 1973, he submitted that no person with a political background shall be appointed as a Trustee or employee of a temple. He further suggested that Section 34 of the HR&CE Act, which permits lease of religious institution properties beyond five years with the Commissioner’s sanction, should be read down to align with the three‑year tender period for other government properties, subject to renewal with a 25 % increase in case of no complaint or default. He stressed periodic inspection of temple administration by higher‑rank officials such as the Commissioner or Joint Commissioner of the HR&CE Department., Dr. S. Padma, counsel for the fifth respondent, submitted that mismanagement, financial crimes, theft, procedural violations and corruption are the root causes of heritage destruction, with ignorance and incompetence of the HR&CE Department as a secondary factor. She stated that the primary function of the HR&CE Department is to administer movable and immovable temple properties and it has no locus standi to undertake construction activities under the guise of renovation. Despite several Supreme Court and Supreme Court of India orders directing the Department to desist from destroying temple heritage, many temples have been demolished due to non‑declaration of century‑old temples as monuments. She cited the Meenakshi Amman Temple case where the Court directed the HR&CE Department to perform conservation with ASI assistance, and the Sri Moovendhar Easwaran Temple incident where a sixteen‑pillar mandapam was removed, stolen and sold without action. She recommended constituting a committee of a local ASI officer and a Central Public Works Department officer to adopt a scientific approach to prevent destruction of temples, water bodies and related heritage., She further noted that due to lack of diligence and competence in record‑keeping, many century‑old temples are missing from official lists, hindering police efforts to locate temples from recovered idols. She emphasized that heritage includes not only temple structures but also tanks, mutts, chariots, jewels, arts, artifacts and sacred groves, which require proper documentation and grading by the ASI and Census of India. She urged that all conservation plans and related documents be published on the official website before work commences, along with all government orders, circulars and schemes, to ensure transparency. She called for annual archaeological inspections of all monuments and temples, surprise visits, and Comptroller and Auditor General auditing to assess structural damage and evaluate the value of destroyed antiques.
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Referring to Sri Narasimha Swamy Temple, Namakkal, the learned counsel stressed that the Archaeological Survey of India may be directed to declare all temples that are more than 100 years old, even if a single idol is present, as monuments as required under the Directive Principles of State Policy. According to the learned counsel, the heritage of the temples should be preserved as it is the responsibility of the present generation to safeguard and hand it over to future generations. Hence, a central idol and antiques wing with Archaeological Survey of India experts should be constituted to handle destruction, smuggling and theft cases, and to document the history, agama and rituals. An Expert Committee may also be constituted and a representative from Suo Motu W.P. No. 574 of 2015 and WP (MD) No. 24178 of 2018 UNESCO shall be considered as part of the Committee. She ultimately submitted that the Hindu Religious and Charitable Endowments Department should eradicate all lapses which are the root causes of the problems and that other Government organisations such as the Archaeological Survey of India, the Comptroller and Auditor General, the Census of India, etc., should be consulted or engaged to protect the heritage of the temples and its properties, and that the practice of leasing temple lands to private individuals should be stopped. The learned counsel also prayed that all employees belonging to the internal department, such as hereditary priests, trustees and employees of various castes or denominations, who are collectively called living heritage and are repositories of the Vedas, Thirumurai, Agamas, music, Ayurveda‑Siddha‑local medical streams, arts and dance, should be provided with monetary and service benefits as granted by the Telangana Government recently., Mr. Rangarajan Narasimhan, petitioner in the miscellaneous petitions, as party‑in‑person, submitted that the Government cannot interfere in matters of religious affairs of a religious denomination and deny the right to manage the religious affairs and administer the properties of the religious institution, subject to public order, morality and health. The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, who has supervisory control over the temples, has to regulate and supervise the administration of the religious institutions. According to Section 47 of the Hindu Religious and Charitable Endowments Act, the trustees are permitted to continue to manage the affairs of the temple and the appropriate authority has power to appoint non‑hereditary trustees or ‘fit persons’ to perform the functions of the Board of Trustees pending constitution of the Board of Trustees. The petitioner observed that many religious institutions are without trustees and the non‑appointment of trustees is a fundamental reason for the gross neglect of the physical structure of the temples as well as their wealth. It is further submitted that thousands of temples are now managed by fit persons belonging to the Hindu Religious and Charitable Endowments Department and that Executive Officers are given the responsibility to act as fit persons for a large number of temples, which becomes physically, mentally and morally impossible for such Executive Officers to discharge their duties truthfully to their conscience, resulting in the loss of several ancient, historic and heritage temples of the nation. Therefore, he requested the Supreme Court of India to issue appropriate directions in this regard., The petitioner also submitted that Thiruppani is fundamentally a religious affair governed by Agama Shastras supported by Shilpa Shastras, which are protected under Article 26 of the Constitution of India. The art of constructing temples is several millennia old and this art and science is completely ignored by the Executive Officers, who are unqualified for such a role. The petitioner stated that the powers can be given to appropriate authorities under the Hindu Religious and Charitable Endowments Act only for the preservation, maintenance, management and improvement of the structures of the religious institutions. The fit persons functioning in temples in lieu of the Board of Trustees have been appointed only for an interim period, and the temple buildings and premises shall not be used for purposes not connected with worship, usages and observations of such temples. The petitioner further submitted that stringent rules on the conduct, character, interest and knowledge on both religious affairs and administrative abilities must be enacted to ensure that the right person is placed to manage the religious affairs of the temples and that the Commissioner can pass such rules in consultation with a committee to be appointed by the Supreme Court of India, and qualified persons should be appointed as per the framed rules. It is also submitted that the audit of the religious institutions shall be done by an external agency, the trustees of the temples be awarded a fixed salary, the Hindu Religious and Charitable Endowments Act must be suitably amended by incorporation of penal provisions and the provisions of the Act be reviewed by a committee to improve its efficacy., It is stated that the ancient temples in Tamil Nadu proudly stand as historical monuments with tall towers, beautiful domes, large corridors and huge walls. The state is bound to preserve and protect them. Vegetation growing on the old constructions is heavily damaging them. During 2012‑13, the traditional method of cleansing temple premises called Uzhavarapani, once launched by Saint Appar Adigal, one of the four leading exponents of the Saiva school, was relaunched to introduce the spirit of service. Through this programme, eradication of weeds and vegetation was carried out in 640 temples. Special attention needs to be given to temples because they are visited daily with continuous human interface through performance of poojas, cultural performances and the like. The temple tanks will have to be protected as per the scheme ‘renovation of temple tanks and rain water harvesting’ by the following measures: clearing encroachments in and around the temple tanks; putting up a compound wall around the tanks; deepening and desilting the temple tanks; re‑laying the steps of the temple tanks; providing facility for the inflow of rainwater into temple tanks and an overflow channel for surplus water. Revival of Kaala Poojas in ancient temples was evolved to set right the setbacks in their performance that are glorified by the hymns of Alwars and Nayanmars, and this scheme provides means for performing Kaala Poojas at temples utilizing the surplus funds of affluent temples. Thus, temple repair works have to be carried out with a holistic approach and not as separate parts of works., According to Section 36 of the Hindu Religious and Charitable Endowments Act, a temple requiring financial assistance for renovation receives funds from the surplus funds of affluent temples by way of diversion. Every year the Government grants Rs 3 crore for temple renovation. From voluntary donations given by individuals and contributions made by Hindu Religious Institutions, a separate Common Good Fund was created in the name of the Commissioner. A corpus fund of Rs 8 crore was created from the surplus funds of affluent temples for development. From the interest accruing from this corpus, financial assistance is rendered for the renovation of temples of ancient historical significance. Small village temples under the control of the department are provided with financial assistance for temple renovations under the Village Temple Renovation Scheme created for this purpose. In respect of Palani Arulmigu Dandayuthapani Swamy Temple, a corpus of Rs 2 crore was created by diversion from the surplus funds. All such allocations must be timely utilized for the temple., It is pointed out that a high‑powered committee should be constituted with representatives from the Government (Hindu Religious and Charitable Endowments, Public Works Department, Tourism), conservation specialists, archaeologists including the Archaeological Survey of India, persons well‑versed in religious affairs and prominent community leaders already involved in voluntary restoration activities. Its members shall be qualified to offer technical support, including in the fields of chemical and diamond analysis. This high‑level team shall engage necessary personnel to draft a comprehensive conservation manual for the temples of Tamil Nadu taking note of world practices. The manual shall prescribe the qualification required for each member of the committee., It is further stated that administrative officials shall not be involved in the ecclesial activities of temples that are 100 or more years old. No activities shall be done directly through donors. All activities shall be done only through a committee of trustees, members or officials created for this purpose. Without the approval of trustees and the temple committee, no temple preservation or conservation activity shall be sanctioned. Engineers of the Tamil Nadu Government construction department and Public Works Department should never be involved in temple preservation activities. If they are to be involved, they must receive at least one year of training in an internationally accredited institute for the preservation of heritage, conservation and archaeology before being assigned to maintenance activities., It is submitted that the Hindu Religious and Charitable Endowments Department is reluctantly attempting a sub‑standard compliance of the specific direction of the Supreme Court of India and that the draft conservation manual prepared by them contains very little discussion on conservation of heritage temples, which may be viewed as a negative aspect of the manual. According to the learned counsel, the manual should classify all temples in the State by age, e.g., 100 years, 500 years and 1000 years, and should specify punitive actions as per the law (Criminal Procedure Code, Public Property Protection Act and Ancient Monuments and Archaeological Sites and Remains Act) against erring officials. It should contain provisions on how damages in the temple are to be rectified. As there are 8,500 temples of more than 100 years old, the conservation manual should be prepared scientifically. Further, the quality of materials used in renovation works should be contained in the manual and ISI standard materials should be used while renovating. The bricks, lime mortars, etc., used are to be incorporated in the manual., It is alleged that several ancient temples were neglected in a dilapidated condition. A study of various charters, conventions and recommendations indicates the need for the following initial steps towards protection of the temples: (a) a comprehensive census and database of all temples in the State of Tamil Nadu that are at least one hundred years old; (b) declaration of all such temples as ‘historically important temples’; and (c) classification of the temples into various categories based on antiquity, archaeological importance, special features of statues, idols and murals, and susceptibility to damage from natural causes as well as human interference., It is stated that each preservation or conservation activity shall be done as per the plan designed by the central archaeological department after its inspection and in a manner that will qualify their certification for operation. Conservation should not immediately involve renovation or civil works unless required for the stability of the structures. The need for any civil work should be considered after consulting experts well‑versed in the Agamas applicable to that particular temple. Stapathis are to execute only the clear directions of the experts concerning any repairs or alterations. No new structures are to be built in heritage temples. The Department should send a proposal regarding the civil works planned to be executed to the Archaeological Survey of India and, after obtaining its guidance and approval, only civil works inside and adjacent to a heritage temple can be undertaken. Such works are to be monitored by Conservation Experts currently in service in the Archaeological Survey of India or by experts deputed by the Archaeological Survey of India. Numerous cases indicate damages to ancient structures, and basic safety of the works has to be followed while doing conservation work. It is pointed out by the Heritage Conservation Society that demolition work is happening even without removing the idols and the works are done just above the idols, which amounts to criminal negligence and lack of common sense., Referring to the report submitted by the conservationist of the Archaeological Survey of India, it is stated that proper preservation and conservation of ancient temples as per the norms prescribed in our ancient architectural texts and using power tools by adopting modern advanced techniques is sine qua non to achieve results acceptable for a world heritage monument. All stone pillars, pilasters as well as wall portions need thorough cleaning to remove accumulated dirt and to expose the iconographical features. For most of the wall portions, pointing was made with cement and hence should be removed and ancient lime mortar applied to properly maintain it. All polished marbles, tiles, modern inscriptions, etc., laid in heritage temples should be removed carefully. Further, scientific analysis of ancient painting composition may be carried out by taking a small sample from the paintings where damage has already occurred and the base and pigment sections are exposed. In respect of Thiruvotriyur Adhipureeswarar Devasthanam, the same has been renovated using modern techniques without paying heed to any of the conservation norms that have been set out. A list of ancient temples whose renovation or repair works are pending for want of necessary orders by the respective committee has also been produced., It is further stated that temple renovation works are not merely building a structure and hence should be done with care without changing the heritage values of the old structures. While renovating the temples, the Sthapathi has to specify the type of materials used and the methods to be carried out, which should be followed by all engineers and builders. For any reason, modern construction materials such as cement, refined oil or chemically added materials shall not be used in any construction that is more than 100 years old and has survived the tests of time and nature. Maintenance activities shall be done only using traditional materials such as lime, wood and handmade bricks. If there is a mandatory need to use modern construction materials and no traditional alternative is found, then it can be allowed only after a detailed scientific study. Construction can be done without changing the heritage values and no construction should be permitted within a notified distance of all historically important temples., It is submitted that every year, as per archaeological rules and regulations, the State archaeological department official shall conduct inspection in and around temples of 100 years or more and submit a report to the central archaeological department as well as to the department commissioner for further action and advice. Before inspection, all places that must be inspected shall be listed, documented and used during future inspections. Details of the inspection and its reports shall be made available on the website. Therefore, the department may be directed to inspect all important temples irrespective of age, for which the Hindu Religious and Charitable Endowments Department may be directed to render necessary assistance., It is stated that although the Hindu Religious and Charitable Endowments Department issued a circular directing all officers to photograph metal and stone idols belonging to temples under its control and register them on the department’s website as well as on the website of the Archaeological Survey of India along with details of weight and measurements, the officials have yet to comply with the direction., It is stated that the Government of India sanctioned a grant of Rs 90 crore through the 13th Finance Commission towards expenditure in connection with the renovation, repair and maintenance of ancient temples and artifact monuments and sculptures in Tamil Nadu; accordingly, the State Government released the amount to the identified 228 ancient temples vide Government Order 295 Tamil Development Religious Endowments and Information (RE1‑1) Department dated 10.11.2011 in four installments. However, scrutiny of the documents produced reveals many lacunae and lapses in financial propriety, compliance and control over the expenditure. The temples that are recipients of the grant for the year 2011‑12 have not commenced the work to date and the grant has been kept idle in the bank accounts of the temples, and no action was taken by the department, and hence the unutilized amount requires recovery as per the conditions of the grant and credit back to the Government account. Sanctioning and releasing the grant based on approximate estimates without obtaining a technical opinion and estimate from the department’s Sthapathi or technical people caused additional expenditure and delay in execution. For example, in respect of Adhinarayana Temple at Pazhaverkadu, the temple authorities submitted a revised estimate for the rework to be carried out with limestone, leading to additional expenditure and the expenditure already incurred becoming unfruitful. It is further submitted that approving and sanctioning the grant to temples without ascertaining the age authorized by the Archaeological Survey of India is against the provisions of the Government Order and the expenditure incurred by temples not listed as ancient by the Archaeological Survey of India is improper; and a portion of the grant was utilized without sanction for construction and reconstruction of mandapams and walls and dismantling the existing structure and reconstruction, instead of renovation and repairs. Poor implementation of the Oru Kaala Pooja Scheme resulted in non‑reaching of intended funds (interest amount) to the beneficiary temples across the State and hence steps should be taken to send all interest payments to the temples through Electronic Clearing Service by obtaining the bank accounts of the remaining temples; and allowing the temples to retain the grants without incurring expenditure for the intended purpose for more than a year and non‑production of records to verify the correctness of expenditure is against the provisions of financial propriety., It is alleged that various representations were received by the Hindu Religious and Charitable Endowments Department seeking details regarding stolen materials belonging to temples, property details, revenue records, lease‑hold details, recovery of arrears for lease‑hold properties, maintenance of animal and cattle in the temple, maintenance of temple funds, and details regarding the theft of jewellery. It is further submitted that a detailed enquiry is to be conducted for missing records, theft of idols and other alienation of immovable properties of the temples., It is stated that no internal audit was conducted. As per the extract from the Comptroller and Auditor General audit of the Hindu Religious and Charitable Endowments Department, enclosed at page 89 of the typed set in W.P. No. 574 of 2015, it is seen that as per the District Central Board statement for collection of revenue due to religious institutions for the fiscal year 1419 (as on March 2010) an amount of Rs 33,651.99 lakh was due from persons who had taken temple land on lease and the said amount was increased fivefold. In accordance with Section 79C of the Hindu Religious and Charitable Endowments Act, any money due to religious institutions may be recovered and for the purpose of such recovery, the Commissioner of the Hindu Religious and Charitable Endowments Department shall have the powers of a Collector under the Tamil Nadu Revenue Recovery Act and hence may be directed to take appropriate action in this regard., It is pointed out that every religious institution shall pay to the Commissioner an annual contribution as prescribed and the cost of auditing its accounts as determined by him, according to Sections 92(i) and 92(ii) respectively of the Hindu Religious and Charitable Endowments Act. The Government in Government Order No. 485 of the CT&RE Department dated 02.12.1991 prescribed centage charges at the rate of 1 % for preparation of estimate and another 1 % for scrutiny of estimate to be collected for the work done by the Engineering wing of the Hindu Religious and Charitable Endowments Department and therefore effective action be taken to collect the pending centage charges and the fact be intimated to audit., It is alleged that the main deities in the temples have been altered without following any procedure, resulting in loss of many jewels, shalagrams and other precious stones. There are communications relating to demolition of the temple, change of deity in Amirthavalli Nayagi Sanadhi and Sowmya Damodhara Perumal Koil, etc. Despite the order of the Supreme Court of India dated 30.11.2015, the temple authorities of Sri Jambugeshwar Akilandeswari Temple, Thiruvanai Koil, Trichy, have demolished portions of ancient structures of the temple. Similarly, a specification report has been produced for the work of dismantling the damaged sannathi relating to Arulmigu Cellandiamman Thirukoil, Karur District, which is an ancient temple, but the said temple was stated to have been completely demolished on 04.11.2020, despite the order of the Supreme Court of India. The parties produced various photographs and alleged that the moolavar deity was changed and in some temples, toilet or septic tanks were constructed inside the temple premises, which is against the norms., There are certain documents relating to the estimates for works undertaken in the Srirangam temple between 2014‑16 amounting to Rs 5,66,90,801. However, the total amount of funds spent by the temple during this period according to the Board Resolution is Rs 20,90,98,368. Apart from this, the temple has spent more than Rs 25 crore for conservation work of rampart walls on the 5th, 6th and 7th prakaras and hence the temple has spent in excess of Rs 50 crore during 2014‑16. Documents depict that the Board of Trustees of the temple resolved to spend temple funds for non‑essential works, showing the depth of corruption by the trustees appointed., It is brought to the notice of the Supreme Court of India that the Hindu Religious and Charitable Endowments Department officials failed to coordinate with the UNESCO team during the visit to Thiruchendur temple, where they carried out sand and water blasting claiming that UNESCO had approved the work. UNESCO has expressed its willingness to assist the department in reviewing institutional mechanisms for conservation of temples and to work out a strategy for improvement, and hence the expertise may be utilized by the department., It is emphasized that as the conservation of ancient temples is absolutely a science, a conservation wing is essentially required and has to be established with the help of Anna University, Indian Institute of Technology Madras, etc., to monitor complete documentation and authenticity for the work done apart from carrying out new construction works with adaptation of modern scientific methods. According to the learned counsel, preserving the historical structures is a very big science. It should not involve any new modifications to heritage structures and should be preserved as originally existing wherever possible. If renovation work has to be carried out in a temple, the same materials that were originally used should be used in old structures. Science and technology should be used to conserve the structures and scientific laboratories will help in this regard. Security measures such as installing CCTV cameras have to be taken., It is stated that the temples in Tamil Nadu are major tourist attractions. For the welfare of devotees and tourists visiting the temples, the temple administration and the tourism department jointly provide basic amenities such as toilets, bathrooms, drinking water, dormitories, information centres, approach roads, high‑mast lamps, cloak rooms, lawns and parking facilities., When documenting, protecting and maintaining the old temples and water bodies, trees, parks (temple gardens) and other structures, the manual shall clearly quote these rules. For every rule, its source of documentation shall be referenced and recorded. In addition, environmental regulatory compliance (EIA Notification and Coastal Regulation Zone) and compliance of all safety rules shall be properly documented in the manual and shall be implemented for the sacred duties of the temples. The employees, their qualifications, rights and duties shall be clearly expressed for the associated maintenance of the temples, their surroundings and protection. Various temples existing all over the State should be properly documented covering all details pertaining to the temple including the nature of works carried out., It is asserted that the Hindu Religious and Charitable Endowments Department has a total extent of 478,462.46 acres of land. However, the land records were not produced to audit and the correctness of the figures and the custody of the land in possession of temples could not be ensured. Hence, it is necessary to furnish information relating to the extent of land to which pattas are to be transferred to temples from private persons, the extent of land pattas to be restored in the name of temples in computerized chitta from private persons, the extent of lands to be cleared from encroachment and restored in the name of temples, etc. Further, the ancient temples and the lands surrounding them shall be declared and documented as protected area as per archaeological laws and those lands must be maintained., It is alleged that the gold obtained through change of gold bond was not sold but kept in a locker as idle, which caused monetary loss to the temple. Therefore, it is necessary to update the register regarding maintenance of jewels, icons, valuables, articles, antiques, stolen or lost from the temples, besides maintaining a register for theft, missing valuable gold, silver ornamental items, etc., The Hindu Religious and Charitable Endowments Department should not split the total cost of renovation or civil works expenses concerning heritage temples into smaller denominations. The Department should also take immediate steps to remove the toilets built inside the temples. Further, no shops shall be present or set within the premises of ancient temples. If shops selling items for worship and latrines need to be built, then they must be built outside of the temple as per the advice of the archaeological department. Moreover, vehicles belonging to Government and Government‑related organizations must receive an evaluation certificate from the Central Vehicle and Maintenance Organization and be sold only by public auction. The validly appointed trustees by the department and the officials have to strictly follow the Management and Preservation of Properties of Religious Institutions Rules, 1964 (as amended) and the Circular dated 10.06.1979 vide Na. Ka. No. 42271/78., It is pressed into service that maintenance and preservation activities done each year, complaints received, scientific studies and yearly inspection details shall be made publicly available. In addition, every two years, the regulatory guidelines shall be reviewed by a group of international archaeological experts and improved. All records associated with this review shall be publicly available on the website. All expenses related to the maintenance, preservation and conservation activities shall be recorded as per the Government Accounting Rules, 1990 and shall be subjected to auditing. The auditing official shall inspect maintenance activity whose costs exceed Rs 1 crore and audit the associated expenses and records at required intervals. All associated details have to be made available on the website at once. The department should make an assessment of damages made to heritage temples in Tamil Nadu within the last ten years and do its best to restore the structures very carefully., Reiterating the averments made in the latest affidavit filed on 11.01.2021, Mr. M. Karthikeyan, learned Special Government Pleader (Hindu Religious and Charitable Endowments), submitted that there are about 44,121 religious institutions under the control of the Hindu Religious and Charitable Endowments Department, out of which 1,966 are mutts, charities and endowments, 42,155 are temples, of which nearly 8,450 temples are ancient, built before 100 years, and it was found that nearly 21,000 temples need to be renovated and Kumbabhishegam performed in the upcoming years.
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The Hindu Religious and Charitable Endowments Department has decided to restore heritage temples in a phased manner, giving priority to structures degrading due to natural phenomena. It is creating a database of the present condition of all temples under its supervisory control. Subordinate officers are directed to inspect the temples, upload present conditions, age, approximate restoration cost and photographs. To date, particulars relating to 40,695 temples have been uploaded on the department website, based on which the temples will be classified as Heritage and Non‑Heritage and a list will be prepared for conservation and renovation., From the database, 32,935 temples are stated to be in good condition, 6,414 temples are considered to have damages that need repair, 530 temples are identified as partially dilapidated and 716 temples as severely dilapidated. Steps have been initiated to restore and renovate all 1,246 dilapidated temples in a phased manner, and a unique ID for each dilapidated temple has been created in the Tiruppani module of the department website to give priority to the restoration process. The proposal for renovation is initiated only after consulting experts and is vetted by an expert present in the Regional Level Heritage Temple Screening Committee formed as per Government Order No. 256 TC&RE Department dated 01.11.2016; therefore, there is no violation on the part of the department., Stoutly refuting the allegations made against the Hindu Religious and Charitable Endowments Department, Mr. Karthikeyan, learned Special Government Pleader (Hindu Religious and Charitable Endowments), submitted that the department is cautious in preserving ancient temples and undertakes renovation works in accordance with archaeological norms. It engages experts in various fields and has constituted several committees, including an Archaeologist, Conservationist, Archaeological Chemist, etc. The Government has also constituted a separate renovation and conservation wing for the Tamil Nadu Hindu Religious and Charitable Endowments Department vide Government Order (Ms) No. 108 TC&RE Department dated 09.08.2019. The following committees have been formed: (a) the Honorable High Court appointed Expert Committee; (b) two State Level Heritage Temple Screening Committees; (c) eleven Regional Level Heritage Temple Screening Committees; (d) Drawing Approval Committee; and (e) Advisory and Expert Committee for preservation of Murals. An expert committee at the Head Office, consisting of a Conservation Architect and a Stapathi, will also supervise ongoing works and ensure they are done as per the estimates., A special mechanism has been adopted to preserve heritage temples, including identification through a grading process, condition assessment of damaged structures, preparation of detailed project reports, approval by relevant committees, execution of works, training of workers, monitoring during execution, and creation of public awareness. The Chief Minister announced the creation of new offices: nine Joint Commissioners' offices, eight Assistant Commissioners' offices, a verification wing for appraisal of jewels and valuables, 117 Inspector posts at the grassroots level, 91 Executive Officer posts, and, in the newly announced offices, posts of Engineers, Regional Stapathis and Stapathis, with Archaeologists/Conservationists to be outsourced if necessary. Craft persons are also included in the conservation process., Since the existing rules are not sufficient to conserve and safeguard heritage temples, it is considered to amend them by incorporating provisions from the National Conservation Policy and various International Charters. A Conservation Manual containing elaborate procedures for renovation of heritage, non‑heritage and village temples is under preparation and will be finalized with Government approval. Safety measures taken by the department include strong rooms in 11,512 temples, burglar alarms in 5,773 temples (with financing for 817 needy temples from the corpus fund sanctioned by Government Order No. 17, Tourism, Culture and Religious Endowments Department dated 11.02.2014), tell‑tale clocks in major institutions, closed‑circuit television cameras in 3,602 temples, 34 Icon centres, police protection, night watchmen, deployment of 1,000 Grade II police constables and 3,000 ex‑servicemen in districts, metal detectors, digital video recorders and CCTV within temple premises, and construction of idol strong rooms for more than 3,000 temples. The learned counsel pleaded that the Expert Committee appointed by the Supreme Court of India may be made permanent., Regarding the relief sought in Writ Petition No. 24178 of 2018, Mr. Karthikeyan, learned Special Government Pleader (Hindu Religious and Charitable Endowments), referred to the counter affidavit dated 17.11.2020 and submitted that, subsequent to the filing of the writ petition, two Heritage Screening Committees were formed—one for the southern region and another for the northern region—vide the proceedings of the Commissioner in Reference Case No. 57789/2015/Y2 dated 27.11.2018. Their terms are: (i) preparation and approval of a conservation manual; (ii) selection and empanelment of experts in different categories; (iii) training of officials nominated in the District level committee; (iv) field inspection and monitoring of works approved by the committee; and (v) preparation of formats and templates for inspection. All members have been nominated as prayed by the petitioner and the tenure of the committees is two years from 08.11.2018. The allegations against the department are ill‑founded; the department, as custodian of the temples and their properties, is taking all required steps to restore the originality and heritage glory of the temples., Regarding the prayer made in Writ Petition No. 30869 of 2017, the learned Special Government Pleader (Hindu Religious and Charitable Endowments) submitted that the suggestions put forth by the Executive Officer of Arulmigu Meenakshi Sundareshwarar Temple, Madurai were considered, the renovation works are almost complete, and therefore no order needs to be passed in this petition., From the pleadings and submissions, it is ascertained that many old ancient temples have been damaged because of time, age and lack of proper maintenance. Even after the Pallava period, some temples constructed during the Chola period after the 10th century A.D. have also been damaged. While renovating old temples, authorities must take note of the original sculptural works and carry out renovation without damaging originality. The UNESCO report points out that insufficient staff with technical skills in sculpting, Agamas and Shastras have caused damage to original structures and cultural heritage. Old rock inscriptions must be protected and restored to their originality, as they reflect the period, time, age and details of the sculptural work. Renovation/restoration must be done only by experts to ensure protection of both the sanctum and architectural value., Many temples have been constructed by various kings with distinct features. The value of a temple or monument is unknown to a layperson; only the Government or an expert can assess its value and period. Historians can identify the period of construction by studying the temples. With modern technology, information can reach the public quickly. Therefore, officials of the Hindu Religious and Charitable Endowments Department need an organisational restructure that includes qualified stapathis trained in Agama and Shilpa Sastras (as suggested by the UNESCO team), engineers, system operators, etc., to properly maintain these valuable treasures without altering their ancientness or original value., The Supreme Court of India has exhaustively discussed the role of temples in societal development. Temples of Tamil Nadu embody continuing traditions and living heritage. From the 7th‑century Pandya period through the Chola, Vijayanagara and Nayaka periods, temples were constructed for their architectural, artistic, archaeological, socio‑religious and economic value and now hold great cultural and historical significance. Belonging to the Saivite and Vaishnavite sects, they are visited by local devotees and Hindu pilgrims and are valued by historians, researchers and archaeologists as benchmarks of architecture. The Shore Temple of Mamallapuram and the Brihadeeswarar Temple in Thanjavur are listed in the World Heritage List, and the Shri Ranganatha Swamy Temple at Srirangam is on the tentative list for future nomination. Preservation of daily rituals and temple structures is essential for the survival of religion. Tamil Nadu has the highest number of temples and historical sites in India, and the constitutional framework obliges the State to protect, preserve and maintain all places of archaeological and historical importance., History reveals that many temples built by kings have not been adequately protected, leading to theft and smuggling of idols and dilapidation of architecturally significant structures. Proper screening systems could prevent smuggling, which requires mis‑declaration and would warrant action by the Directorate of Revenue Intelligence and Customs authorities. The Supreme Court of India, in R. Venkataraman v. Director General of Police and others (order dated 21.07.2017, Criminal Original Petition Nos. 8690 and 12060 of 2017, reported in 2018‑2‑LW‑65), directed the respondent authorities to send details of cases where idols have been smuggled to the Superintendent of Police, Idol Theft Wing, for initiation of cases under the Customs Act, 1962. It is reported that this direction has not been properly complied with., In Department of Customs v. Sharad Gandhi (2019 SCC Online 286), the Supreme Court of India held that prosecution under the Customs Act, 1962 is not barred in regard to antiquities or art treasures, and that the respondent authorities must necessarily initiate prosecution under the Customs Act whenever an antique is smuggled, stored or moved without proper licence., The noble object behind the donation of properties and lands in favour of temples is to protect the temples and enable them to survive for several long years, preserving heritage and culture for future generations. However, temple properties and lands are being encroached, misappropriated and mishandled. The great Tamil poet Thirumoolar wrote, \none should cause any damage or usurp the properties of the temple.\ Out of 5.25 lakh acres of temple land, only 4.78 lakh acres are currently available; the balance is in the hands of encroachers. The Hindu Religious and Charitable Endowments Department is the custodian and administrator of temples and their properties but has not purchased even a small portion of land for any temple. The administrative right to deal with temple properties is to preserve and augment revenue, implying that temple lands should not be alienated. The Supreme Court of India, in V. Muthusamy v. Superintendent of Police (2018‑1‑WLR‑530; 2018‑2‑LW‑623), directed the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai to act under Section 34A of the Act and fix market rents for all properties and take further action. Similarly, in P. Lakshmanan v. Superintendent of Police (2018 (3) CTC 493; (2018) 3 MLJ 202), the Commissioner was directed to conduct enquiry under Section 78 of the Act and recover temple lands, but no fruitful efforts have been reported., There are about 413 monuments in Tamil Nadu under the control of the Archaeological Survey of India, of which 403 fall under the Chennai circle and 10 under the Thrissur circle. The State department has conducted excavations at 40 sites, including Keeladi, which has shed new light on the antiquity of language and origin. While the State has done commendable work in manuscripts, it has fallen short in the maintenance of heritage sites and temples, as pointed out in the UNESCO team report. The Supreme Court of India, in Rajeev Mankotia v. Secretary to the President of India [(1997) 10 SCC 441], emphasized that the Government should provide necessary budget for repairs, ensure proper maintenance and preservation of national monuments, and allocate adequate annual budgetary provisions. The Court compared this with the preservation of historic settlements such as Williamsburg in the United States, urging similar efforts in India., On 13.01.2020, in Writ Petition No. 26896 of 2018, the Supreme Court of India directed that the Hindu Religious and Charitable Endowments Department should employ stapathis qualified from the Government College of Architecture and Sculpture at Mamallapuram, rather than staff deputed from other departments. This direction has not yet been fully complied with. The reports of UNESCO and the amicus curiae highlight deficiencies in handling repair and renovation work and recommend a complete restructuring of the administrative set‑up by including stapathis, architectural engineers, Agama and Shilpa experts. Appointment of qualified stapathis with traditional knowledge would fill the lacunae., Monumental sites and places of historical importance must be identified, photographed, listed and preserved. Although the Hindu Religious and Charitable Endowments Department denies that its renovation work causes erosion or damage, the Supreme Court of India is of the opinion that the department should be more sensitive to archaeological and historical values. A permanent mechanism should be devised, including experts from all fields for consultation before renovation works, rather than decisions being taken by only the Chief Stapathi and senior officials. Contracts for restoration of idols, pillars, gopurams and other structures are being treated as pure civil contracts. Given the growing need to protect temples and their properties, it is time to issue necessary directions whose compliance will enable the department to carry out renovation and repair works while preserving originality and ancientness., In Seshamma I v. State of Tamil Nadu [(1972) 2 SCC 11], the Supreme Court of India laid down the importance of the Agamas concerning Archaka appointments. The Agamas prescribe that only a devotee of Shiva belonging to a particular denomination may serve as Archaka in Saivite temples, and similarly a Vaishnavite Archaka may serve only in Vaishnavite temples. The Brahmapurana states that an image becomes uninhabited by the deity if it is broken, burnt, removed, insulted, touched by beasts, placed on impure ground, worshipped with mantras of other deities, or touched by outcastes. The Agamas are stricter, and only persons belonging to the appropriate denomination may perform puja in those temples. Any state action permitting defilement of the image by an unauthorized Archaka would violate Article 25(1) of the Constitution., In Adhi Saiva Sivachariyargal Nala Sangam v. State of Tamil Nadu [2016 (2) SCC 725], the Supreme Court of India clarified that the validity of a Government Order regarding Archaka appointments depends on the facts of each case and the specific Agamas applicable to the temples. The Court reiterated that exclusion or inclusion of a particular denomination for Archaka appointments does not violate Article 14 as long as it is not based on caste, birth or any other constitutionally unacceptable parameter, in accordance with Article 16(5) of the Constitution.
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So long as the prescriptions under a particular Agama or Agamas are not contrary to any constitutional mandate, the impugned Government Order dated 23 May 2006, which by blanket fiat states that any person who is a Hindu and possessing the requisite qualification and training can be appointed as an Archaka in Hindu temples, has the potential of falling foul of the dictum laid down in Seshammal. A determination of the contours of a claimed custom or usage would be imperative and, in that light, the validity of the impugned Government Order dated 23 May 2006 will have to be decided in each case of appointment of Archakas whenever and wherever the issue is raised., In the aforesaid decisions, the Supreme Court of India has clearly laid down the importance of a qualified Archaka and knowledge in Agama shastras. Knowledge in Agamas is an essential qualification to decide on the repair, renovation or preservation of temples. It is not in dispute that for the 42,155 temples under the control of the Hindu Religious and Charitable Endowments Department, there are not enough qualified sthapathis. The Court, in the order passed in Writ Petition No. 26896 of 2018, recorded the necessity to have qualified sthapathis on the Board. Having qualified sthapathis in the department has manifold advantages, namely: availability of knowledgeable experts; timely decisions; easy identification of the nature of work required; avoidance of damage to idols or sculptures; cost reduction and facilitation of routine surveillance and preservation; and creation of employment opportunities for people of the religion with knowledge in Agamas, tradition, culture and art., The Hindu Religious and Charitable Endowments Department’s administrative set‑up has to be revamped and staffed with sthapathis, in‑house qualified architectural engineers, Agama experts, chemical analysts, jewel valuers and experts in epigraphy. The preservation of temples includes not only the structures but also the idols, sculptures, scriptures, paintings and murals. A holistic and combined effort is required from experts of various fields. All renovation and repair works must be carried out only with the consent of the experts and sthapathis. Renowned experts in Agamas can also be considered as consultants. Because many temples in Tamil Nadu are ancient and require regular visits and maintenance to avoid deterioration of structures, idols, murals and paintings, it is essential that at least one qualified sthapathi be appointed at every district level depending upon the division of blocks and number of temples in each district., Similarly, the courses offered in the Government College of Architecture and Sculpture at Mamallapuram must be upgraded with new scientific skills and computer technology in the syllabus. Post‑graduate courses must also be offered so as to harness the skill of interested and qualified personnel. This would ensure that the age‑old profession of sculpture is kept alive for generations to come. The Court earlier opined that an independent sthapathi can be appointed as a traditional sthapathi to avoid any bias with the opinion of the Government in the Expert Committee. Taking into account the various directions issued earlier, considering the overall scheme and scope of the Hindu Religious and Charitable Endowments Act and the necessity to have adequate qualified sthapathis in the department, only qualified persons must be permitted to occupy the post of sthapathi in the department. To avoid any back‑door recruitment, such traditional sthapathi should also possess the necessary educational qualification, and all posts must be filled in a transparent manner as per the procedure laid down under the law., Another important contention that is often raised is the non‑appointment of a Trustee and the management of temples with department staff appointed as Fit Person. As per the provisions of the Hindu Religious and Charitable Endowments Act, the Commissioner is empowered to appoint a Fit Person to administer the temple in the absence of a Trustee, and this cannot be resorted to as a matter of routine exercise. The word “Fit” is synonymous with “Appropriate”. The legislature intends to appoint a person not only with impeccable integrity, devotion, sincerity, honesty and belief, but also with some basic knowledge in Agamas, tradition and administration. The appointment cannot be mechanical; it must be made with application of mind in a transparent manner. Only a theist can be permitted to occupy any post in the temple or in the department, as the occupation of any post requires sincerity as well as an interest and belief to augment the object of the Act. Trustees so appointed must also be worthy of such appointments; mere political recommendation or the capacity to make huge donations cannot be a criterion for appointment as a Trustee. A true donor is a person who makes donations in pursuance of philanthropic or spiritual ideology, not for a quid‑pro‑quo appointment., As discussed earlier, the redemption of temples cannot be achieved merely by safeguarding their physical form and properties. The object can be achieved only if temple activities are restored to their traditional days. Temples are places where people receive positive vibes and peace of mind when traditional music is played. Tamil Nadu is one of the prominent states where music is performed by artistes during festivities and other important functions in temples, and its glory and sanctity have to be preserved. Artistes playing musical instruments such as Tavil, Nadaswaram, Sruthi, Talam and Mridangam deserve recognition so as to revive the sinking tradition of temple music. The historic significance of the services of musicians in the temples of the State has to be preserved and the age‑old arts must be revived. For these purposes, the Hindu Religious and Charitable Endowments Department must take appropriate steps for creation of certain posts, besides making appointments in accordance with law., As envisaged by the reports filed earlier before the Supreme Court of India and the articles in the newspaper, heritage sites and places of archaeological importance have to be properly maintained. The State is to constitute a Heritage Commission and the Mamallapuram World Heritage Area Management Authority and to have a mechanism, including a manual, for the process of conservation, preservation and maintenance of heritage sites and monuments, the mode of collection and preservation of data, the number and nature of members of the Commission/Authority/Committee, their qualifications and term of office, specific powers, duties and procedures to be followed. All places of historical importance, whether religious or not, have to be taken stock of, recovered, maintained and celebrated. Different wings of the central and state governments have to act in tandem to protect the ancient monuments of this land. Representatives from various departments with experts have to be brought together to ensure that not only the monuments are preserved, but also that appropriate repair works by qualified professionals are carried out to increase the longevity of archaeological or historical places, temples and monuments., In Rajeev Mankotia v. Secretary to the President of India [(1997) 10 SCC 441], the Supreme Court of India referred to the preservation of heritage buildings as a manifestation of cultural heritage and held that the Ancient Monuments and Archaeological Sites and Remains Act, 1958 provides for the preservation of ancient and historical monuments and archaeological sites and remains of national importance. Section 2(a) defines “ancient monument” to include any structure, erection or monument, any tumulus or place of interment, any cave, rock‑sculpture, inscription or monolith of historical, archaeological or artistic interest that has existed for not less than one hundred years. The Court explained that all such monuments, whether of national or State importance, must be protected, preserved and maintained., In A.A. Gopalakrishnan v. Cochin Devaswom Board and others [(2007) 7 SCC 482], the Supreme Court of India held that it is the duty of the courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. The Court emphasized that trustees, archakas, shebaits and employees must vigilantly prevent usurpation or encroachment of temple properties., In K. Guruprasad Rao v. State of Karnataka and others [(2013) 8 SCC 418], the Supreme Court of India observed that the States should be burdened with the responsibility of protecting ancient and historical monuments within their territories and that protection must be balanced with development activities., In Archaeological Survey of India v. State of Madhya Pradesh [(2014) 12 SCC 34], the Supreme Court of India observed that a temple cannot be regarded as a ‘Monument’ under the Ancient Monuments Act and consequently the archaeological department has no jurisdiction over it; therefore, the temple, its administration and properties must be governed by the provisions of the Hindu Religious and Charitable Endowments Act, which are in line with Article 26 of the Constitution of India., In Sarika v. Administrator, Shri Mahakaleshwar Mandir Committee, Ujjain [(2018) 17 SCC 112], the Supreme Court of India held that Mahakaleshwar Jyotirlingam has great spiritual importance and that there is a constitutional duty to protect it under Articles 25, 26 and 49, as well as a fundamental duty under Article 51‑A to promote harmony, preserve cultural heritage and strive towards excellence., In Indian National Trust for Architectural and Cultural Heritage (INTACH) v. Chennai Metropolitan Development Authority [2010 Writ LR 836], a Division Bench of the Supreme Court of India observed that enthusiastic “clean‑up” efforts that involve sand‑blasting can damage heritage structures and directed the Government to issue rules preventing any repair or renovation of heritage buildings without the necessary approval of the Heritage Conservation Committee., In K.S. Kuppusamy v. Commissioner, Hindu Religious and Charitable Endowments Department, Chennai and others, order dated 29 February 2016 in Writ Petition No. 1972 of 2015, the Supreme Court of India summed up that the Tamil Nadu Hindu Religious and Charitable Endowments Department must safeguard temples, uphold their glory and respect the sentiments of the people., In N. Dhanasekaran v. Tamil Nadu Government [2018‑2‑LW‑216], the Supreme Court of India observed that the temples of Tamil Nadu are living heritage of India with immense cultural, historical, architectural, artistic, archaeological, socio‑religious and economic values. The Court noted that the Hindu Religious and Charitable Endowments Department lacks the capacity and qualified experts to carry out large‑scale conservation and that a coherent operational structure with an army of experts, skilled sthapathis and crafts persons is essential. The Court suggested that either the Department should limit itself to supervision and administration of immovable properties while assigning conservation works to a specialised department such as Archaeology, or it should reorganise its structure to include technical experts at various levels and ensure the empanelment of only qualified sthapathis and contractors for specialised works., In S. Sridhar v. State of Tamil Nadu and others (2020) 8 MLJ 438, the Supreme Court of India held that temples are entitled to rights of possession and enjoyment of disputed lands subject to the control and administration of the Hindu Religious and Charitable Endowments Department. The Court stated that no trustee or private individual shall claim right over such lands, that the title vests with the Government which shall not alienate the lands for purposes other than the beneficial interests of the temple, and that the temples are entitled to prescriptive rights in view of the Revenue Standing Order and the Hindu Religious and Charitable Endowments Act., In Mrinalini Padhi v. Union of India [(2018) 7 SCC 785], the Supreme Court of India categorically held that pilgrimage centres are of religious, social, historical and architectural importance, representing the cultural heritage of the country, and that both the State and Central Governments, as well as the courts, may treat matters relating to such centres as public interest litigation and issue appropriate directions., In the ultimate analysis, the Supreme Court of India is of the firm view that the cultural and heritage value as well as the archaeological importance of historical monuments, sites, temples and their properties have to be conserved, preserved and maintained. The Court has repeatedly directed the Hindu Religious and Charitable Endowments Department to compile a list of all temples, retrieve temple lands and properties from encroachers, make an inventory of idols, jewellery and valuables, create strong rooms, computerise records and exhibit them on a website, and appoint qualified sthapathis from the Government College at Mamallapuram for each district along with other necessary staff. During the pendency of the suo motu writ petition, despite the Court’s order, some temple structures were demolished under the guise of renovation, and encroachment in Mamallapuram has not been removed. The Court therefore issues the following directions: (1) The respondents shall establish the Mamallapuram World Heritage Area Management Authority to manage and safeguard all monuments and shall notify it within eight weeks; (2) The respondents shall constitute a Heritage Commission consisting of seventeen members within eight weeks, which shall act as an advisory body to the Authority and the Government.
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The Heritage Commission shall consist of 17 members including the representatives from the Archaeological Survey of India, representatives from the State Archaeological Department, one renowned historian or anthropologist, two representatives of the Public Works Department i.e., one from Building Structural and Conservation Wing and another from Architectural Wing, one representative from the Hindu Religious and Charitable Endowment Department not below the rank of Joint Commissioner, one Stapathi qualified from the Government College of Architecture and Sculpture, Mamallapuram or any other college in the state with similar objectives, two experts in Agamas and Shilpa Shastras and one chemical analyst. The inclusion of a representative from the UNESCO shall also be taken into consideration., The Heritage Commission shall identify all the structures, monuments, temples, antiques with historical/archaeological importance within the State of Tamil Nadu, formulate a list with age of such monuments by categorising them within their period group, issue appropriate notification, render periodical advices to the State, supervise the restoration, repair works etc. and maintain the same., No structural alteration or repair of any monument / temple / idol / sculpture / murals of which are notified either under the Central Act or the State Act, shall take place without the sanction of the Heritage Commission., The State shall reconstitute the State Level Expert Committee, consisting of a Structural Expert, Archaeological Expert, Conservation Expert, a qualified Traditional Stapathi preferably from the Government College of Architecture and Sculpture, Mamallapuram, an Expert from history, epigraphy, iconography and Fine arts and two Agama Experts, besides a representative from the Hindu Religious and Charitable Endowment and Public Works Department. The State Level Expert Committee shall be responsible for carrying out and granting sanctions for the repairs/renovations of the temples and archaeological sites, on the recommendation of the District Level Committees., The State shall constitute District Level Committees, which will consist of a historical expert, qualified stapathis, Architectural Expert, Mural Expert, conservation expert, a representative from the Hindu Religious and Charitable Endowment Department, within a period of eight weeks., The Committee shall visit all the temples in their respective District, identify the temples and sculptures which are required to be brought under the State Act and which require immediate attention for repairing and prepare a report that is to be forwarded to the Government for appropriate action under the supervision of the Heritage Commission or the State Level Expert Committee as the case may be., The Committee shall meet at least once in every month and conduct periodical inspection of the monuments and temples in line with the objects of the Hindu Religious and Charitable Endowment Act, Ancient Monuments and Archaeological Sites and Remains Act (Central as well as State Acts) and the Rules framed thereunder., The Government shall finalise the conservation manual containing the regulations for the functions of the Heritage Commission as well the Mamallapuram World Heritage Area Management Authority and the procedures for conservation, preservation and renovation of heritage and non-heritage temples, monuments and historical sites with the assistance of the officials attached to the State and Central Archaeological Survey of India Departments and the Hindu Religious and Charitable Endowment Department, within a period of twelve weeks., The Archaeological Survey of India shall conduct state‑wide field survey of antique temples of more than 100 years old and estimate the damage and restore the structure according to its conservation rules to its former glory within a period of six to twelve months. The assessment documents shall be kept on the official website of the Chennai Archaeological Survey of India Circle, after having scanned and photographed, for public scrutiny. It is open to the Archaeological Survey of India to create a public portal, enabling the public to pass on information about historic monuments and temples of their area so as to enable the respondents to take immediate steps to preserve them., The conservation plan and its related documents shall be published on the official website of the Archaeological Survey of India before starting the conservation activity, so as to enable the worshippers to provide feedback on the same., The Hindu Religious and Charitable Endowment Department with the assistance of the Archaeological Survey of India shall grade the temples, such as listed and non‑listed, based on architectural values, historic importance, year of existence, etc., Architectural marvels, mural paintings, stone and wall inscriptions, wooden carving, copper plates, old antique utensils of the temples, etc., shall be protected, preserved and maintained properly by the respondents., The Comptroller and Auditor General audit shall be done with Archaeological Survey of India expertise to assess the damage structurally and evaluate the value of the antique destroyed. Further, the compliance audit, financial audit and performance audit shall also be done every year for managing the huge resources of the temples., Periodical inspections shall be made by the higher officials in the cadre of the Additional Commissioner or Joint Commissioner of the Hindu Religious and Charitable Endowment Department, to look into the temple‑related issues and its properties., The Archaeological Survey of India shall inspect and declare all the temples which are more than 100 years old, even if a single idol in a temple, as a monument according to the Directive Principles of State Policy., Annual archaeological inspection should be done for all the temples and supervisory visits shall also be made., No structural alteration or repair of any monument, temple or idol or sculpture or murals or paintings which come within the purview and control of the Hindu Religious and Charitable Endowment Department, shall take place without the sanction of the State Level or District Level Committee and all pending works shall forthwith be proceeded further, only after obtaining sanction from the said Committee., The District Level Committees must identify the temples in which repair/renovation works have been carried out, wherein cement and white washing has been done detrimental to the original structure, inform the same to the State Level Committee or the Commission as the case may be, so as to enable the appropriate authority to redo the work by restoring the originality. Every restoration without altering the form or material must be done after a detailed report in writing supported by adequate photographs and measured by drawing records., The Renovation and Conservation Wing for the Hindu Religious and Charitable Endowment Department constituted by the Government, by Government Order (Ms) No.108, Tamil Nadu Construction and Rehabilitation Department, dated 09.08.2019, should ensure that the members of the committee are trained with scientific/technical knowledge to undertake the works of conservation and should act strictly for the purpose to which it was constituted., The Hindu Religious and Charitable Endowment Department shall adopt scientific technology in the process of documentation, preservation and conservation of heritage temples and its properties and valuables., To maintain the quality of ornamental works, the usage of sand blasting for cleaning the buildings must be avoided and the shortfalls in the repair works done in the temples in violation of Agama and Shilpa Shastras as pointed out in the report of the UNESCO team must be attended to and the original position must be attempted to be restored., The funds of the temples shall first be utilized for the maintenance of temples, conducting temple festivals, payment to its staff including the archakas, oduvars, musicians, folklore and drama artistes. In case of surplus funds, the same shall be utilized for attending the repair and maintenance of other temples in the state as specified under the Hindu Religious and Charitable Endowment Act and the Rules framed thereunder and for propagation of the tenets of all or any of the religious institutions under the Hindu Religious and Charitable Endowment Act., The State Government shall allocate funds for protection and preservation of the ancient monuments declared under the State Act and for the functioning of the Commission as well the State and the District Level Committees. The State Government shall also make proper access/roads leading to the monuments. Such exercises shall be done within a period of six to twelve months from date of receipt of this order., The Hindu Religious and Charitable Endowment Department shall frame standards and procedures for auditing the fixed and current assets of the temples and its properties., The Hindu Religious and Charitable Endowment Department may permit the stakeholders of the various religious denominations to participate in the meetings conducted by the Committees as and when required., The audit of the religious institutions shall be conducted periodically by an independent audit wing as required under Section 87 of the Hindu Religious and Charitable Endowment Act and the same must be ensured by the Hindu Religious and Charitable Endowment Department., The funds received from the donors shall be accounted and registered in the records maintained by the Hindu Religious and Charitable Endowment Department., The respondent authorities shall ensure that the officials are updating the registers for maintenance of jewels, icons, valuables, articles, antiques, stolen or lost from the temples and also the cases relating to theft, missing of valuable gold, silver ornamental items, etc., and necessary action be taken to retrieve the lost/theft items., The District Committees must take stock of the lands of all the temples within their respective District, list out the total extent with survey number and door number, vacant or leased, nature of land i.e. agricultural or otherwise, current rent, date of fixation of rent, current market rent, name of lessee/tenant, duration of lease, whether authorised by the Commissioner, if the period of lease is beyond five years, nature of the lessee whether individual, firm or company and, in case the lessee is an individual, the religion of such individual, arrears if any of each lessee with period of default, list of cases pending before any forum or Court regarding the rent or entitlement to lease, list of encroachers including sub‑tenant and sub‑lessees and status of action taken to remove the encroachers, list of temple lands conveyed and action taken to retrieve them and status of the criminal complaint lodged against illegal sale of temple land, if any, and document the same properly. A detailed report also be filed before this Court within a period of twelve weeks., The agricultural lands fit for cultivation must preferably be let out to poor farmers rather than persons already holding large extents of land and, for that purpose, a scheme is to be devised and only after verification of extent of the land held by the lessee and obtaining an undertaking, the lands must be leased out in consonance with the provisions of the Hindu Religious and Charitable Endowment Act., The State Government or the Commissioner of the Hindu Religious and Charitable Endowment Department, who are the Trustee/administrator of the temple lands, shall not alienate or give away the lands contrary to the wish of the donor. The lands shall always remain with the temples. The public purpose theory shall not be invoked in cases of temple lands over which the interest of the community people of the religious denomination generally rests., Insofar as service inams as per the customary practice is concerned, only one property shall be given to an individual during his/her tenure of service and after his/her retirement or disassociation with the temple, the same shall be recovered. Wherever more than one property has been given as inam, the same shall be recovered and given to some other deserving service providers. In case the land/property is under the occupation of any third party, steps must be taken to evict them forthwith., The encroachment and illegal constructions in the protected area, archaeological sites, temple lands, etc., must immediately be removed. The extent of lands owned by the temples must be identified with the help of the revenue Department by the District Level Committee. The District Collector of the appropriate District, on the request of the Heritage Commission or State Committee or District Level Committees or by any officer of the Hindu Religious and Charitable Endowment Department, shall forthwith take steps for the removal of any such illegal construction or encroachment or unauthorised occupants. Appropriate action must be taken against the errant Government officials of the central as well as state department and officers under the Hindu Religious and Charitable Endowment Department for not removing the encroachments in the protected and regulated area, within a period of eight weeks on expiry of the time given., A list of defaulters with the arrears due from them must be prepared within a period of six weeks and the same must be published on the website. Appropriate steps must be taken to evict them and recover the arrears as per the provisions of the Hindu Religious and Charitable Endowment Act and the rules thereunder., The respondent authorities shall regulate the period of lease pertaining to the properties of the religious institutions and renewal of the same., The Hindu Religious and Charitable Endowment Department shall allocate the agricultural lands belonging to the temples for organic farming and temple animal husbandry., The District Level Committees shall take stock of all the idols in temples which fall within the definition of Ancient Monument or Antique, prepare a list of such monuments, take photographs and computerise the same., The Hindu Religious and Charitable Endowment Department and the Archaeological Survey Department of the Central and the State Governments shall display on their website details relating to number of idols or monuments or any article of historical importance that have been stolen from any temple or places of archaeological or historical importance, whether retrieved, whether FIR launched or not and the status of the cases., The Hindu Religious and Charitable Endowment Department shall recover the missing moolavar idols and master property registers, for the purpose of conservation and heritage of temples., The Hindu Religious and Charitable Endowment Department must ensure that all the temples have strong rooms, which are efficiently secured with latest scientific technology and must be under 24x7 video surveillance with alarm. All the existing ICON Centres must be brought under 24x7 video surveillance with alarm., The stock of idols in the temples must be computerised and the same must be maintained in the manual books, if not done earlier., The respondent authorities shall launch prosecution under the provisions of the Customs Act against any person who has involved himself in the theft, storage and movement of antiques/idols without valid licence., Central Idol and Antique Wing with Archaeological Survey of India experts shall be constituted under the model of the Central Bureau of Investigation to handle the destruction, smuggling and theft cases., The Hindu Religious and Charitable Endowment Department shall submit a report to the Supreme Court of India with a list of idols per ICON centre and about the requirement of the additional ICON centres, within a period of eight weeks., The Hindu Religious and Charitable Endowment Department must appoint adequate number of Oduvars well trained in Thirumurai and Battargal in Divyaprabandams for each temple and musicians accustomed to the temple tradition and ensure that Thevara paadasalai and Prabhandha paadasalai are established in each Saiva and Vainava temple to impart education regularly., The Hindu Religious and Charitable Endowment Department shall appoint enough number of qualified and eligible archakas for each temple subject to the prevailing rules and regulations and ensure that the daily rituals are duly performed., The Hindu Religious and Charitable Endowment Department shall engage poets, folklore and drama artists, who must exhibit traditional and legendary stories associated with the temple during festivals. The State Government must also endeavour to publicise the rich heritage, history and culture of this land and, for that purpose, organise seminars, tours, competitions, etc., The Hindu Religious and Charitable Endowment Department shall appoint qualified stapathis in temples taking note of the number of temples in each Block and District; if the sanctioned post is not sufficient, they shall take steps to get necessary orders from the Government in this regard., The salary and other service and retirement benefits of all the staff of the temple including that of the archakas and oduvars must be fixed as per the provisions of the Minimum Wages Act and on par with Government servants., The terminal benefits of the retired staff in the temples under the Hindu Religious and Charitable Endowment Act must be settled within 30 days from the date of their retirement. A list of cases where terminal benefits have not been settled must be filed before this Court within a period of eight weeks., A fixed salary be awarded to the trustees of the temple, which can be arrived at based on the income of the religious institution to ensure participation on a full‑time basis by the selected trustee, subject to penal and disciplinary provisions of the Act. In a routine manner, periodical transfer for the staff of the temples must be made., The Hindu Religious and Charitable Endowment Department shall file a report before this Court within a period of eight weeks listing out the number of temples without Trustees, the duration of such vacancy, the particulars of the persons appointed as Fit Person and the steps taken by the Department to appoint trustees., If no hereditary trustees stake claim, then steps must be taken to appoint non‑hereditary trustees. The non‑hereditary trustees must be from the religious denomination to which the temple belongs, without the political background., Stringent rules on the conduct, character, interest and knowledge on both religious affairs as well as administrative abilities of the trustees must be enacted to ensure that the right person is appointed to manage the religious affairs of the temples., Keeping in mind that the overall administration shall be with the Hindu Religious and Charitable Endowment Department, the authorities shall supervise the affairs of the religious institutions ensuring that the Hindu Religious and Charitable Endowment Act is strictly complied with by the trustees and taking necessary remedial steps for which they are paid an annual contribution as specified under Section 92., Disciplinary action shall be taken against the officials who are responsible for demolition and reconstruction of the ancient temples without necessary approval/permission from the required authority., The respondent authorities shall look into whether appropriate departmental action is taken against the erring officials of the Hindu Religious and Charitable Endowment Department and trustees of the temples under Sections 53 and 66 of the Act against whom allegations with regard to loss and theft of idols, illegal transfers of the properties/lands owned by the public religious institutions/temples are made, after conducting proper enquiry in this regard., The State Government shall take steps to upgrade the courses offered in Government College of Architecture and Sculpture, Mamallapuram and also offer postgraduate courses on par with other colleges so as to excel in the profession, strengthen the in‑house skill and management of the temples with the help of qualified persons as pointed out by the UNESCO., A Special Tribunal shall be formed to exclusively deal with the matters relating to the religious institutions coming under the provisions of the Hindu Religious and Charitable Endowment Act, such as disputes on religious affairs, culture, tradition, heritage, inams and recovery of pending rent, validity of lease, illegal encroachment and other temple and mutts land issues., Such Tribunal shall be constituted under the Head of the Working or Retired District Judge as Chairman with two or more Members from the rank of retired Subordinate Judicial Officers with the jurisdiction to decide all the matters related to the nature and status of the Religious Institutions, privileges and performances of rituals and poojas in all the religious institutions and their properties and the right of the worshippers by conducting the cases like a Civil Court of summary nature within the maximum period of six months., All the employees and trustees concerned with the temples are made to be governed by the Tamil Nadu Government Servants Conduct Rules. There shall be a prohibition for a person with political background to be appointed as a Trustee or employee of the temple in any cadre, in view of Rule 14 of the Tamil Nadu Government Servants Conduct Rules., The Central Government shall implement the Ancient Monuments Act in letter and spirit, by declaring all religious structures more than 100 years old including temples, temples' tanks, mutts, temple chariots, jewels, art, artefacts, and sacred groves etc., including private denomination temples, as national monuments with immediate effect., A high‑level committee has to be formed to review the Hindu Religious and Charitable Endowment Act once in three years to make necessary amendments, however, subject to judicial review., The Hindu Religious and Charitable Endowment Act must be suitably amended by strict incorporation of penal provisions as per the Indian Penal Code and the procedures laid down under the Criminal Procedure Code to cover all the illegal acts done in respect of the temples for proper action., Steps be taken to amend the Hindu Religious and Charitable Endowment Rules by incorporating various provisions on the line of National Conservation Policy and International Charters regarding conservation of monuments., A district‑wise committee headed by the District Ayurvedic Head Doctor and Siddha Head Doctor, trustees, food and safety officer and devotees shall be constituted for procurement of genuine, traditional and scientifically declared safer prasadam and abishegam items., Daily maintenance to upkeep the animals, which are considered as customs, shall be accorded to scientific and responsible local Government Veterinary Officers and Forest Department Officials., Water bodies must be handed over to a scientific committee consisting of a local Archaeological Survey of India Officer and local CPWD officer, for preservation and maintenance., All the expenses incurred for maintenance by the Archaeological Survey of India officers etc., shall be borne by the Hindu Religious and Charitable Endowment Department., The respondent authorities shall maintain transparency in all the matters., The Hindu Religious and Charitable Endowment Department shall display the history of the temple on a granite board in front of the temples and also fix a direction board guiding the route to the temples., The Government shall provide necessary assistance in all aspects to the Hindu Religious and Charitable Endowment Department to comply with the directions of this Supreme Court of India within the time stipulated., No litigation in respect of the subject matter of the present petition shall be entertained by subordinate courts. In case any suit or other legal proceedings are filed, the subordinate courts shall refer the same to this Supreme Court of India in view of the decision rendered by the Honorable apex court in the Mrinalini Padhi case (cited supra). For clarification, if any, the party interested/affected is at liberty to approach this Bench in the present proceeding itself, as directed by the Honorable Chief Justice, by order dated 23.08.2016., With the aforesaid directions, this Suo Motu W.P No. 574 of 2015 and W.P.(MD) No.24178 of 2018 are disposed of. Since this Court has elaborately discussed the issues involved and issued many directions touching every aspect, the Miscellaneous Petitions are liable to be closed and are accordingly closed. No costs., Post the matter for reporting compliance after twelve weeks., Before parting, this Court places on record its appreciation for the efforts rendered by the learned counsel Dr. S. Padma, learned Senior Counsel Mr. R. Singaravelan, learned Special Government Pleader (Hindu Religious and Charitable Endowment) Mr. M. Karthikeyan and party‑in‑person Mr. Rangarajan Narasimhan, who have devoted considerable time in rendering their assistance and made valuable suggestions., Index: Yes/No Internet: Yes. No. To 1. The Director, Archaeological Survey of India, Janpat, New Delhi-110 004. 2. The Superintending Archaeologist, Chennai Circle, Archaeological Survey of India, Chennai -9. 3. The Chief Secretary, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai-600 009. 4. The Secretary, Government of Tamil Nadu, Tourism, Culture and Religious Endowment Department, Secretariat, Chennai 600 009. 5. Secretary, Heritage Conservation Society, No.102/x, Kurunji Street, Polepettai, Tuticorin. 6. The Commissioner, Hindu Religious and Charitable Endowment Department, Chennai -34.
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Reserved on 07.05.2022, Pronounced on 21.05.2022, Bail Application Number 08/2022. Through: Mr. B. A. Bashir, Senior Advocate, with Ms. Falak Bashir, Advocate. Through: Mr. Sajad Ashraf, Government Advocate., The petitioner has invoked the jurisdiction of this High Court under Section 439 of the Code of Criminal Procedure seeking bail in a case arising out of FIR No.69/2021 for offences under Sections 376, 109 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act registered with Police Station, Shergari, Srinagar., As per the prosecution case, on 08.08.2021, the victim along with her father lodged a complaint with Police Station, Shergari, alleging that the victim, aged about 14 years, was sent by her father to the house of accused Arif Waza, the husband of the petitioner, for learning embroidery work. It was alleged that after eight days the victim returned home and two days thereafter accused Mohammad Arif Waza called her on telephone, after which the victim started crying. The father inquired about the reason and the victim narrated that she had been raped by accused Arif Waza after making her unconscious. The police registered the FIR and started investigation., During investigation, a statement of the victim under Section 164 of the Code of Criminal Procedure was recorded. In her statement she stated that during her stay in the house of the accused she was raped twice by the husband of the petitioner. She further stated that as a result of sexual assault she suffered bleeding and when she narrated the incident to the petitioner, she was told that she deserved the same treatment. She also stated that something was sprinkled on her mouth by the petitioner which made her unconscious and when she regained her senses she found herself naked. She further stated that the petitioner is a woman of bad character who is having an illicit relation with one of the cousins of her grandfather. The victim also stated that when she talked to the husband of the petitioner on telephone, he told her that if she becomes impregnated, he will bear the expenses of terminating the pregnancy. She further stated that the husband of the petitioner offered Rs.4000 to Rs.5000 to her father to settle the matter but they did not accede to this request., After investigation, the role of the petitioner as an abettor came to the fore and, as such, offence under Section 109 of the Indian Penal Code was added to offences under Section 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act. The charge sheet was accordingly laid before the trial court against the petitioner and her husband and they are facing trial for offences under Section 376, Section 109 read with Sections 4 and 17 of the Protection of Children from Sexual Offences Act., It appears that the petitioner had approached the trial court for grant of bail but the same was rejected by the trial court vide its order dated 31.12.2021. The record of the trial court reveals that the charges against the petitioner were framed on 27.11.2021 and till date statement of only the victim girl has been recorded. The statements of other prosecution witnesses have not been recorded so far., It has been contended by the petitioner that she has been falsely implicated in the case and that she is languishing in jail since 08.08.2021. It is further contended that the story projected by the victim in her statement recorded under Section 164 of the Code of Criminal Procedure is highly improbable and concocted. According to the petitioner, it is a case of honey trap and exploitation. It has been further contended that there are contradictions in the statements of the victim recorded under Section 161, Section 164 of the Code of Criminal Procedure and her statement recorded during the trial. It is also contended that statements of the prosecution witnesses recorded during the investigation are also contradictory in nature. Finally, it has been submitted that the petitioner is a woman and, as such, she is entitled to leniency while considering her prayer for grant of bail., The bail application has been resisted by the respondent by filing a reply. In its reply, the respondent has reiterated the facts of the case and submitted that the bail application deserves outright rejection. It has been contended that detailed discussion of the evidence and documentation should be avoided at the time of considering the bail application. It is also contended that a minor victim, aged about 14 years, has been subjected to repeated sexual assaults by the husband of the petitioner with the active aid and assistance of the petitioner, and therefore no leniency can be shown in the instant case., I have heard learned counsel for the parties and perused the material on record., Before coming to the merits of the rival submissions, it would be apt to notice the principles governing the grant or refusal of bail. These principles have been elucidated in a number of judgments rendered by the Supreme Court of India and this High Court. They may be summarized as follows: (i) The nature and gravity of the accusation and the exact role of the accused; (ii) The position and status of the accused vis‑vis the victim or witnesses; (iii) The likelihood of the accused fleeing from justice; (iv) The possibility of the accused tampering with evidence or witnesses and obstructing the course of justice; (v) The possibility of repetition of the offence; (vi) The prima facie satisfaction of the court in support of the charge including frivolity of the charge; (vii) Stage of the investigation; (viii) Larger interest of the public or the State., When it comes to offences punishable under a special enactment such as the Protection of Children from Sexual Offences Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment. Section 31 of the Act makes the provisions of the Code of Criminal Procedure applicable to the proceedings before a Special Court and provides that the provisions of the aforesaid Code, including the provisions as to bail and bonds, shall apply to the proceedings before a Special Court. It further provides that the Special Court shall be deemed to be a Court of Sessions. Thus, the provisions of the Code of Criminal Procedure, including the provisions as to grant of bail, are applicable to the proceedings in respect of offences under the POCSO Act. The present application is therefore required to be dealt with by this High Court in accordance with the provisions contained in Section 439 of the Code of Criminal Procedure. The other provisions of the POCSO Act, which are also required to be kept in mind, are Sections 29 and 30, which read as under:, Section 29. Presumption as to certain offences – Where a person is prosecuted for committing, abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of this Act, the Special Court shall presume that such person has committed, abetted or attempted to commit the offence, unless the contrary is proved., Section 30. Presumption of culpable mental state – (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability., Section 29 raises a presumption of commission of an offence under Sections 3, 5, 7 and 9 of the POCSO Act against a person prosecuted for such offence, unless the contrary is proved. Similarly, Section 30 raises a presumption regarding the existence of a culpable mental state against an accused in prosecution of any offence under the Act which requires such mental state. The accused has the right to prove the absence of such mental state., Coming to the facts of the instant case, the petitioner is alleged to have aided and abetted her husband, the main accused, in the commission of rape upon the prosecutrix, who, as per the prosecution case, was aged about 14 years at the relevant time. The prosecutrix has clearly implicated the petitioner and her husband in her statement recorded under Section 164 of the Code of Criminal Procedure. According to her, the petitioner sprinkled something on her mouth which made her unconscious. She also stated that she was made to sleep in the same room with the petitioner and her husband. In her statement recorded during the trial, the prosecutrix repeated these allegations. The only deviation is that she stated that she was administered some medicine by the petitioner to make her unconscious. In her statement recorded under Section 161 of the Code of Criminal Procedure, the prosecutrix also stated that she was made to go unconscious., There may be certain contradictions in the statement of the prosecutrix recorded during trial when compared with her statements recorded during investigation, but it is not open to this High Court to minutely examine and weigh the evidence at the time of considering the bail plea of the petitioner. The fact remains that the prosecutrix, in her statement recorded during the trial, has supported the prosecution case and reiterated that she was raped twice by the husband of the petitioner with the aid and assistance of the petitioner. To that extent there are no contradictions in the statement of the prosecutrix. Thus, the petitioner has been unable to rebut the presumption arising against her under Section 29 of the POCSO Act. The presumption of innocence is not attached to the petitioner in the facts and circumstances of the instant case., From a perusal of the record, it is clear that there is material on record to suggest that the petitioner is involved in commission of offence under Section 376/109 of the Indian Penal Code read with Sections 4 and 17 of the POCSO Act. Abetment of an offence carries the same punishment as is provided for that offence. Section 376(3) of the Indian Penal Code provides punishment in a case where rape has been committed upon a woman under 16 years of age. The punishment is not less than 20 years, which may extend to imprisonment for life. Thus, the offences for which the petitioner is facing trial are serious in nature., The petitioner is aged about 63 years whereas her husband is aged about 65 years. The victim is aged only 14 years. The record shows that the victim was sent by her father to the house of the petitioner to learn embroidery work, thus the victim was under the guardianship of the petitioner and her husband. By indulging in abhorrent behavior with the child victim, the petitioner and her husband have shaken her trust and brought a bad name to the relationship of a child with her guardian. The gap in age makes the alleged act more heinous and shows an element of perversion. The position of the petitioner qua the victim makes the offence all the more heinous. Thus, merely because the petitioner is a woman does not entitle her to concession of bail in these circumstances., So far as the trial is concerned, it is still at its inception and only the statement of the victim has been recorded. The statements of other prosecution witnesses, including the father and three more relatives of the prosecutrix, are yet to be recorded. If the petitioner is admitted to bail at this stage, there is apprehension that the prosecution witnesses, who are close relatives of the victim, would be influenced by the petitioner., The Supreme Court in the case of State of Bihar v. Rajballav, (2017) 2 SCC 178, while considering the question of grant of bail to an accused alleged to have committed an offence under the POCSO Act against a child victim, placed reliance upon the ratio laid down in Ramesh v. State of Haryana, (2017) 1 SCC 529, and referred to the following observations made by the Court:, Justifying the measures to be taken for witness protection to enable the witnesses to depose truthfully and without fear, Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked: Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise. Time has come for a comprehensive law being enacted for protection of the witness and members of his family., Almost similar effect are the observations of the Law Commission of India in its 198th Report (Report on witness identity protection and witness protection programmes). The reason is not far to seek. In the case of victims of terrorism and sexual offences against women and juveniles, we are dealing with a section of society consisting of very vulnerable people, be they victims or witnesses. The victims and witnesses are under fear of danger to their lives or the lives of their relations or to their property. It is obvious that in the case of serious offences under the Penal Code, 1860 and other special enactments, there are similar situations for victims and witnesses. While in the case of certain offences under special statutes such fear or danger to victims and witnesses may be more common and pronounced, in the case of victims and witnesses involved in serious offences, fear may be no less important. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims and witnesses, then there is no reason why it should not be equally fair in the case of other general offences of serious nature falling under the Penal Code, 1860. The fear or danger, or rather the likelihood thereof, is common to both cases. That is why several general statutes in other countries provide for victim and witness protection., The Court, after noticing the aforequoted ratio laid down in Ramesh's case, observed: No doubt, the prosecutrix has already been examined. However, few other material witnesses, including father and sister of the prosecutrix, have yet to be examined. As per the records, threats were extended to the prosecutrix as well as her family members. Therefore, we feel that the High Court should not have granted bail to the respondent ignoring all the material and substantial aspects pointed out by us, which were the relevant considerations., In view of the aforesaid ratio laid down by the Supreme Court, it is clear that in cases involving offences of serious nature falling under the Indian Penal Code or the POCSO Act, where the victim is a minor child, the Court has to be alive to the need for protecting the victims and the witnesses and it is the duty of the Court to ensure that victim and witnesses, in such serious matters, are made to feel secure while deposing before the Court. This can be ensured only if the statements of the victim and the material witnesses are recorded while keeping the accused behind the bars., A perusal of the record shows that the learned trial court rejected the bail application of the petitioner on 31.12.2021 and by that time the statement of the prosecutrix had already been recorded. Without any change of circumstances, the petitioner rushed to this High Court and filed the instant bail application. It is true that this High Court is vested with jurisdiction to entertain a bail application under Section 439 of the Code of Criminal Procedure even when the trial court has refused bail without any change in circumstances, but at least it was incumbent upon the petitioner to bring to the notice of this Court any circumstance that would persuade it to take a view different from that of the learned trial court. The petitioner has failed to point out any such circumstance. On this ground also, the bail application deserves to be rejected., For the foregoing reasons, I do not find any merit in this application. The same is, accordingly, dismissed. The petitioner shall, however, be at liberty to move a fresh bail application upon any change in the circumstances.
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Amk Sahil Sanjay Shah, Applicant; The State of Maharashtra, Respondent; Mr. P. S. Malhi as well as Mr. Amandeep Singh for the Applicant; Mr. Y. M. Nakhwa, Advocate for the Respondent State; Mr. Sreeram Shirsat, Public Prosecutor for the Respondent National Crime Bureau., This is an application for anticipatory bail in Criminal Revision No. 37 of 2021 registered with the National Crime Bureau, Mumbai Zone for the offences under Sections 8(c), 27, 27(A), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985., The prosecution case is that on 12 April 2021, based on specific information, the National Crime Bureau intercepted accused number one Ganesh Shere and accused number two Sidharth Amin near Shop number 2, Sudarshan CHS, G B Ambedkar Road, Parel village, Mumbai, and during the search 310 grams of marijuana and Rs. 1,50,000 were seized. Investigation proceeded. The prosecution alleged that the Applicant was the supplier of contraband drugs., Anticipating arrest, the Applicant had preferred an anticipatory bail application before the Maharashtra Sessions Court. The application was rejected by order dated 23 April 2021., The learned Advocate for the Applicant submits that there is no cogent evidence against the Applicant showing his involvement in the crime. The Applicant has no history of being involved in any crime. The contraband allegedly recovered from the co‑accused was of small quantity; they were arrested and granted bail. The National Crime Bureau had never issued any summons to the Applicant. It was only after the Applicant had preferred an anticipatory bail application that the summons was issued. Section 27 of the Narcotic Drugs and Psychotropic Substances Act is not attracted. There was no direct evidence to substantiate the Applicant’s involvement in the crime. The prosecution has relied upon WhatsApp chat, which does not establish the Applicant’s involvement. The inference drawn by the Respondent is not supported by any evidence. The Applicant had never received any summons in any other case being investigated by the Respondent., Mr. Sreeram Shirsat, learned Counsel appearing for the Respondent National Crime Bureau submitted that there is strong evidence against the Applicant to show his complicity in the crime. The WhatsApp messages collected by the Investigating Agency show the Applicant’s involvement in the present case as well as his involvement in drug trafficking in the past. His involvement is also disclosed in Criminal Revision No. 8 of 2021 and No. 16 of 2021, which relate to offences under the Narcotic Drugs and Psychotropic Substances Act. The Applicant is not available and is avoiding arrest. The investigation shows the Applicant’s involvement as supplier of the contraband in the present case., The Respondents have also filed an affidavit in reply to oppose this application for anticipatory bail. I have perused the document pointed out by the learned counsel for the Respondents, which includes statements of witnesses and documents relating to the investigation of the present case. The WhatsApp messages, statements of the arrested accused, and the investigation conducted by the Respondents reveal the Applicant’s complicity in the crime. This is not a fit case to exercise the powers under Section 438 of the Code of Criminal Procedure to grant anticipatory bail to the Applicant. Hence, no case is made out to grant relief in the application. The application stands rejected.
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Applicant: In Re. Opposite Party: Sri Shubham Kumar. Advocate. Counsel for Applicant: Sou Moto, Ashish Mishra. Counsel for Opposite Party: Ashok Kumar Upadhyay., Hon'ble Justice Saumitra Dayal Singh, J. Hon'ble Justice Rajendra Kumar IV, J. The present contempt proceeding has arisen upon the reference made by the then Additional Principal Judge of Aligarh Family Court No. 1 on a written complaint dated 09 May 2022. A connected reference has also similarly arisen. Thus one reference is against the litigant Subhash Kumar and the other against his lawyer Shubham Kumar. A father‑son relationship exists between the litigant and his lawyer., The complaint was forwarded to this Court by the learned Additional Principal Judge, Aligarh Family Court No. 1, vide communication dated 25 July 2022. The references were registered after following the due procedure., Upon the references being entertained, notices were issued to Subhash Kumar in Contempt Application (Criminal) No. 14 of 2022 and to Shubham Kumar in Contempt Application (Criminal) No. 15 of 2022., Since the contempt proceedings relate to six cases, all involving Subhash Kumar and the entire transaction took place on the same date, we have chosen to deal with the two explanations by this common order., The allegation against Subhash Kumar is that he misbehaved in the court of the learned Additional Principal Judge, Aligarh Family Court, which was hearing another case, Case No. 273‑2019 (Suman vs. Vinod)., Perusal of the complaint reveals that in the forenoon session Subhash Kumar misbehaved inside the court hall and started shouting that his matter was not being called. When asked to wait, he refused and continued his unruly behaviour. Despite being warned, he persisted, leading to the contempt proceeding. The allegation is that he obstructed judicial proceedings, giving rise to criminal contempt., With respect to Shubham Kumar, the learned Additional Principal Judge, Aligarh Family Court No. 1, complained that in the afternoon session he disrupted the hearing in Case No. 957‑2016 (Mithelesh Kumar vs. Rajesh) on 09 May 2022. He is accused of offering unruly and loud behaviour and of threatening the court by seeking transfer of the proceedings. When required to act in a civilized manner, he refused to abide by the advice of the court and insisted on continuing to speak in the same manner. He further alleged that his 70‑year‑old father would never have misbehaved with the court. The reference to his father may relate to the earlier forenoon incident in Case No. 277‑2019 (Suman vs. Vinod)., Shubham Kumar is described to have shouted that he is a practitioner of the Allahabad High Court and knows how to deal with petty courts. He is also alleged to have threatened to lodge a complaint against the Presiding Officer. Despite repeated reprimand, he continued to use unparliamentary language and obstructed the judicial proceeding., Both Subhash Kumar and Shubham Kumar appeared in person. Earlier they had engaged Sri Ashok Kumar Upadhyay as counsel, but Shubham Kumar insisted that they would defend themselves without a lawyer. After his explanation, Subhash Kumar adopted the explanation and submissions advanced by his son. Later both stated that another opportunity may be given to Subhash Kumar to be represented through a lawyer. The request was made after about an hour of hearing. When asked if the contemnors were seeking forgiveness, both initially said ‘Yes’, but their subsequent answer was nonsensical. Subhash Kumar also stated that his son may be pardoned as he is a young advocate., Subhash Kumar denied that the alleged occurrence took place. He submitted that he is a retired employee of the district judgeship and has utmost respect for the judiciary., Both Subhash Kumar and Shubham Kumar explained that they have utmost regard for the institution and its procedures and that they consciously did not commit any act amounting to contempt. However, their apology was inadequate in view of the facts recorded on the order sheet by the learned Additional Principal Judge, Aligarh Family Court, and the indisputable fact that Shubham Kumar kept pressing for audience during the post‑lunch session by filing at least two applications, one at 3:00 p.m. and another at 3:30 p.m. Thus, it cannot be disputed that he continued to interject the proceeding before the Aligarh Family Court without justifiable cause., It is his own case that the matter in which he was engaged (that of his father) had not been called out during the post‑lunch session. Therefore, it is inexplicable why he persisted in making queries to the court or continued to file applications before the learned court., Court proceedings are formal proceedings which must be conducted in a dignified manner without undue disruptions. Any grievance that a litigant or lawyer may have may be addressed in due course. Any order that may be passed by a court, to which a lawyer or litigant may have a grievance, may be addressed by filing an appropriate application or appeal or by making an appropriate mention at the appropriate time., However, these commonly enforced practices may be set aside in an emotionally charged atmosphere. What more catastrophic than a son (lawyer) appearing for his father (litigant) in a matrimonial case involving his mother! It cannot be for courts to advise lawyers to choose their clients. It has always been left to the wisdom of the learned members of the bar. The basic teaching that any member of the bar imbibes in the initial years of practice is to not appear for blood relatives. This wisdom has not touched Shubham Kumar. He not only took up the matter of his father but also against his mother, thereby becoming a party to the dispute himself. It would be sad if statutory law were to provide restraints on whose brief to take., Considering the entirety of the facts, we find that the present matter is not one that the court may have the luxury to deal with, given its over‑burdened docket. In a matter where both lawyer and litigant claim, though not convincingly, utmost regard for the court, their behaviour is wholly unacceptable and objectionable. Enough time has been wasted on those who are already wasting time., As to the lack of apology, it is not for the court to extract an apology from any litigant or his lawyer or to force them to tender such an apology. Courts exist and will continue to exist to deliver justice to those in need despite indiscretions committed by persons such as the contemnors. We do not have time to divert our attention from the cause of justice to punish the contemnors as per the rules of law. Our time is better utilized to address the cry for justice by genuine litigants. It does not merit being wasted on the jesters and deviant lawyer and litigant that these contemnors are. They are far less deserving of that. Thus, such contemnors may sometimes waste the court’s time yet they may be allowed to get away in the interest of genuine litigants and meaty matters., Not wanting to waste any further moment on such a litigant and lawyer and leaving it to them to introspect, we consign the present proceedings at this stage. However, should any further conduct be offered by Subhash Kumar or Shubham Kumar in any other court or case, we impose a condition that a copy of this order be annexed to disclose to that court their previous conduct., We also make it clear that we have refused to exercise our jurisdiction to absolve either Subhash Kumar or Shubham Kumar of their conduct. It is only on account of wastage of time that we seek to prevent further audience. They are thoroughly undeserving of that. Thus consigned., We record that we have found the conduct of Ms. Garima Singh, the then learned Additional Principal Judge, Aligarh Family Court No. 1, to be unblemished. The officer did all to ensure that the decorum of the court was maintained and better sense prevailed on the two contemnors before us. Accordingly, the application under Section 340 read with Section 195 of the Criminal Procedure Code is rejected as meritless and scandalous., A copy of this order shall be communicated to the Bar Council of Uttar Pradesh for its due consideration and appropriate counseling to Shubham Kumar.
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Reserved on: 27.09.2023 Pronounced on: 20.11.2023 Through: Mr. Mohit Mathur, Senior Advocate and Mr. Pawash Piyush, Advocate versus Through: Ms. Richa Dhawan, Applicant with Inspector Nitesh Bhardwaj, Police Station Maurice Nagar., The present petition has been filed by the petitioner under Section 439 of the Criminal Procedure Code seeking regular bail in FIR No. 106/2016 under Section 302 of the Indian Penal Code, 1860 read with Sections 25, 27, 54 and 59 of the Arms Act, 1959 registered at Police., Vide order dated 01.06.2023, notice was issued in the bail application and the State was directed to file a status report. The State has filed status reports dated 14.08.2023 and 16.09.2023, which are on record., According to the status reports, on 10.05.2016 information was received from the Police Control Room that one Sunny (petitioner herein) had informed that he was going to commit suicide and a lady who was also with him had shot herself. The information was recorded vide DD No. 26-A and was entrusted to Sub‑Inspector Sandeep for investigation., On reaching Hindu College, a Ford EcoSport car bearing registration No. DL 86 AK 8361 was found. In the driver seat, one person was sitting while on the co‑driver/passenger seat a lady was lying who was found to be dead. The person in the driver seat disclosed his name as Naveen Uppal alias Sunny (petitioner herein) and he informed the name of the lady as Anjali Devi. The body of Anjali Devi was sent to hospital, where she was declared brought dead., During enquiry it was revealed that the petitioner and the deceased were in a relationship for several years. The deceased was married and had children, whereas the petitioner was married to another lady. The prosecution case is that the petitioner told the deceased to leave him and when she refused, the petitioner shot her., With the aforesaid allegations, the FIR was registered on 11.05.2016 and the petitioner was arrested on the same day., Mr. Mohit Mathur, learned Senior Counsel for the petitioner submits that the petitioner has been in custody since 11.05.2016. He further submits that the petitioner was granted the benefit of interim bail as per the recommendations of the High Powered Committee and surrendered in jail on 07.04.2023. The petitioner has been enlarged on interim bail on six different occasions vide orders dated 17.04.2017, 04.06.2018, 27.07.2018, 04.02.2019, 13.08.2019 and 22.06.2020 and the concession was not misused. He further submits that the prosecution has sought to examine 64 witnesses and the petitioner may not be kept in custody till the conclusion of trial, which is not likely to be concluded anytime soon., On the merits of the case, Mr. Mathur submits that the petitioner and the deceased were in a relationship since many years. In January 2016 the petitioner was engaged to another lady, against his wishes and under family pressure his marriage was performed on 24.04.2016, i.e., fifteen days prior to the incident. He submits that both were extremely disturbed by the events and had jointly planned to end their lives together by committing suicide. The fact of relationship is established from the material on record. To buttress his contention, he placed reliance on the testimony of the son of the deceased, examined as Witness 23., He submits that pursuant to the suicide pact, the deceased shot herself and when the petitioner tried to shoot himself, the bullet got stuck in the chamber of the pistol. This is borne out from the testimony of Witness 7, Assistant Sub‑Inspector Tej Singh, who produced the Police Control Room call book before the Learned Trial Court wherein it is recorded that the petitioner and the deceased had agreed to commit suicide. Reliance is also placed on the seizure memo prepared by the Investigating Officer which mentions that the magazine of the pistol was found empty and one live cartridge was found in the chamber. The Forensic Science Laboratory report records that many attempts have been made to test fire exhibit 9mm cartridge marked A1, but resulted in misfire., It was submitted that after the call was made by the petitioner, he did not try to abscond from the place of the offence but went to the location where he was asked to go by the Station House Officer of Police Station Maurice Nagar. The statement of the Station House Officer recorded under Section 161 of the Criminal Procedure Code shows that the petitioner followed her instructions and reached the spot near Hindu College., Mr. Mathur submitted that the prosecution case that the petitioner caused the death because the deceased would not agree to leave him and that she had advanced a loan of Rupees 5 lakhs to the petitioner is belied by the conversations recovered from the phones of the parties. The transcript of the recording dated 09.05.2016, i.e., the day immediately prior to the alleged incident, shows that the deceased and the petitioner were conversing to the effect that they shall commit suicide the next day., It is submitted that the petitioner has no other case pending except the present one. No recovery is required from the petitioner as the prosecution has filed the charge sheet and the supplementary charge sheet., All public witnesses have been examined by the prosecution and only official/police witnesses remain to be examined; therefore there can be no apprehension that the petitioner may influence witnesses., In the backdrop of the aforesaid facts and circumstances, Mr. Mathur urges that the petitioner be enlarged on bail., The learned applicant appearing on behalf of the State argues that the petitioner has been accused of a grave and serious offence and therefore may not be enlarged on bail. She submits that the petitioner was found sitting on the driver seat of the car and the dead body of the deceased was lying on the front left side seat and the petitioner was also found in possession of the weapon of offence i.e., country‑made pistol and one live cartridge without any permit or licence. She further submits that as per the Medical Legal Certificate, the cause of death was found to be craniocerebral damage consequent to a firearm injury., She also submits that on 13.03.2016 and 14.03.2016 the location of the petitioner was found to be Uttar Pradesh West, which confirms that the petitioner had travelled to purchase the illegal weapon from Akbarpur, Uttar Pradesh. The learned applicant relied upon various audio recordings recovered from the phones of the petitioner and the deceased, details of which are as follows: (a) Record 0002 is a recording between the petitioner, his mother Veena Uppal, the deceased and the deceased’s husband, wherein it is revealed that the deceased had given Rupees 5 lakhs to the accused and the mother and the petitioner are agreeing to the terms of return of the amount. (b) Record 003 is a conversation between the deceased and the petitioner, whereas Record 0007 is a conversation between the father of the accused and the deceased; it is contended that the recordings clearly manifest that the deceased was not happy with the marriage of the petitioner., It is submitted that during the pendency of the trial, the husband of the deceased, Sanjay Kumar, made a complaint against the petitioner alleging that the petitioner had threatened the witness whilst the petitioner was in judicial custody., I have heard the learned Senior Counsel for the petitioner as well as the learned applicant for the State and perused the material on record., Prima facie there is substance in Mr. Mathur’s submission that the petitioner and the deceased were in a relationship as evident from the testimony of the deceased’s husband, Sanjay Kumar, examined as Witness 17 on 29.08.2018: \\\Accused Sunny present in the court today was in touch with my wife (deceased) and they also used to long talk with each other on mobile phones. They were in touch from the last 7‑8 years from the date of incident and they have developed relationship with each other. Accused started coming at my house in my absence and when I came to know about the same I had asked the accused not to come at my home in my absence. On few occasions, he came to my house in my presence and I have asked accused not to come at my house. On number of occasions, accused took my wife out of the home in my absence. Initially, I had gone with accused out of home, but when I came to know about his conduct with regard to my wife, I avoided to go with him.\\\, The prosecution in the supplementary charge sheet states that many photographs were recovered from the phone of the deceased showing close relations between the petitioner and the deceased. The relevant part reads: \\\On examination of report it has been observed that mobile phone Samsung marked MP1, containing two SIM cards SC1 & SC2 and one memory card MC1 was in use with accused Naveen Uppal alias Sunny, and mobile phone Motorola marked MP3 was being used by deceased Anjali; many photographs of accused Naveen Uppal, deceased Anjali and her baby girl Roas taken in family formation establish close association.\\\, The son of the deceased, examined on 17.04.2017, admitted the close relationship between the petitioner and his family: \\\Accused was neighbor of my mausi. My father and my mother also used to visit the house of my mausi. Since the accused used to visit the house of my mausi, me and my parents came in contact with accused Naveen and we all started talking to him. The accused also started visiting our house at Sector 24 Rohini. We started celebrating the festivals together. We used to go for outing together as we developed close relation with each other.\\\, It thus appears that the petitioner and the deceased were in a cordial relationship and families of the petitioner and the deceased were known to one another. In this view of the matter, the possibility of the petitioner and the deceased being involved in a consensual romantic relationship cannot be ruled out at this stage., Notably, the defence of the petitioner from the very inception has been that petitioner and the deceased were in a love relationship and they had entered into a suicide pact as the petitioner’s parents got him married to some other woman against his wishes. This is also borne out from the testimony of Assistant Sub‑Inspector Tej Singh, examined as Witness 7, who was the first responder: \\\Today I have brought the PCR Call Book (Wireless log & Diary). As per the register brought by me the first call in the present case was received by me at 8:26 am on 10.05.2016. ... I do not remember if senior officer had interrogated the accused at the spot in my presence. (Vol. I had offered water to the accused and later on I removed the dead body of deceased Anjali. I remained at the spot approximately for about 1 hour. During this time I came to know that accused Naveen Uppal had informed that he was having love affair with Anjali but his parents had got married against his wishes with some other girl and today he i.e. accused Naveen along with Anjali was roaming in the area of Delhi University around 7:40/7:45 pm and Anjali had shot herself with desi katta and he i.e. accused Naveen Uppal had also tried to shoot himself with desi katta but bullet struck (failed) and Anjali fell down on the left front seat of the car.\\\, Prima facie there also appears to be merit in the submission of the learned Senior Counsel for the petitioner that pursuant to the suicide pact between the petitioner and the deceased, after the deceased committed suicide when the petitioner tried to commit suicide, the bullet got stuck and the country‑made pistol did not fire. The report of the Forensic Science Laboratory filed along with the supplementary charge sheet clearly states that although the country‑made pistol was found to be in normal working order, the cartridge recovered from the petitioner did not fire despite many attempts. It is also not the case of the prosecution that any other cartridge was recovered from the petitioner. The relevant part of the report reads: (1) The exhibit marked F1 is a firearm as defined in the Arms Act. It is an improvised pistol, capable of chambering and firing standard 9mm ammunition. (2) Four 9mm cartridges received in laboratory for test firing and two 9mm cartridges taken from laboratory stock were chambered and successfully test fired through exhibit improvised pistol marked F1 in the laboratory. Hence, it is opined that exhibit improvised pistol marked F1 is in normal working order. (3) Many attempts have been made to test fire exhibit 9mm cartridge marked A1, but resulted in misfire., One of the motives attributed to the petitioner by the prosecution is that the deceased and her husband had advanced some money to the petitioner, which he was not returning. However, a perusal of the transcript of the conversation relied upon by the learned applicant shows that the petitioner as well as his mother, Veena Uppal, had already agreed to return the money, which raises a doubt about the motive attributed to the petitioner for committing the murder of the deceased. Similarly, the petitioner also expressed his fondness for the deceased. This contradicts the prosecution version that when the deceased refused to leave the petitioner, he killed her., Prima facie there is also substance in the contention of the learned Senior Counsel that the transcript of the audio recording dated 09.05.2016, i.e., the day immediately prior to the alleged incident, shows that the petitioner and the respondent had entered into a suicide pact. A perusal of the transcript of the audio recording (Annexure‑8 to the paperbook), which has not been disputed by the State in its status report, manifests that the deceased had in no uncertain terms expressed her love for the petitioner and stated to the petitioner that she cannot live without him. The deceased also expressed her desire not to continue her life without the company of the petitioner; similarly, the petitioner also expressed his fondness for the deceased., It is trite that detailed and elaborate appreciation of evidence cannot be undertaken at the stage of considering a bail application. However, for the limited purpose of seeing whether there exists a prima facie case in favour of the accused warranting grant of bail, the evidence can be looked into for indicating reasons therefor. Reference may be had to the observations of the Supreme Court in Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra, (2018) 11 SCC 458, which read as under: \\\This contradicts the prosecution’s version that when the deceased refused to leave the petitioner, he killed her.\\\, The law in regard to grant or refusal of bail is very well settled. The Delhi High Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly where the accused is charged with having committed a serious offence. Any order devoid of such reasons would suffer from non‑application of mind. It is also necessary for the Delhi High Court granting bail to consider, among other circumstances, the following factors before granting bail: (a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or threat to the complainant; (c) prima facie satisfaction of the court in support of the charge., Though probative and the evidentiary value of the testimonies and other evidence will be seen by the learned Trial Court at an appropriate stage, at this juncture while considering the petitioner’s application for bail, the possibility of the petitioner and the deceased being involved in a consensual romantic relationship and the deceased partaking in a suicide pact with the petitioner and shooting herself cannot be discounted. The testimonies of the prosecution witnesses and other evidence, which have been referred to only for the limited purpose of deciding the present bail application, clearly tilt the balance in favour of granting bail to the petitioner., It is not the case of the prosecution in the status report that the petitioner has jumped the interim bail granted to him on different occasions as well as the interim bail granted as per the guidelines issued by the High Powered Committee. Even otherwise, the petitioner is a permanent resident of Delhi, thus there is no reason to believe that the petitioner will flee from administration of justice if enlarged on bail., Even the apprehension of the learned applicant that the petitioner may influence material witnesses cannot be sustained, in as much as all public witnesses have been examined., Further, it cannot be overlooked that the prosecution has cited as many as 64 witnesses, out of which only 24 witnesses have been examined in the last 7 years. Needless to say, that it is going to be a protracted trial. In the given circumstances, no useful purpose will be served in keeping the petitioner behind bars. It would indeed be a travesty of justice to keep the petitioner in jail for an indefinite period for an offence which may ultimately be found not to have been committed by him, especially when there is material on record which has the prospect of probabilizing the defence of the petitioner., Considering the above discussed circumstances in entirety, I am of the view that the petitioner is entitled to grant of regular bail pending trial. Accordingly, the petitioner is admitted to bail subject to his furnishing a personal bond in the sum of Rupees 50,000/- with two sureties of like amount, subject to the satisfaction of the Trial Court/Duty Magistrate/CMM, further subject to the following conditions: (a) Petitioner shall not leave the limits of Delhi/NCR. (b) Petitioner shall surrender his passport, if any, before the Trial Court at the time furnishing bail bond/surety bond. (c) Petitioner shall appear before the learned Trial Court as and when the matter is taken up for hearing. (d) Petitioner shall provide all mobile numbers to the Investigating Officer concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the Investigating Officer concerned. (e) Petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the present case., It is made clear that the observations made herein are only for the purpose of considering the bail application and the same shall not be deemed to be an expression of opinion on the merits of the case., The petition stands disposed of., Copy of the order be forwarded to the concerned Jail Superintendent for necessary information and compliance.
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Petition for Special Leave to Appeal (Criminal) No. 8730/2021 (Arising out of impugned final judgment and order dated 08-11-2021 in CRR No. 1388/2021 passed by the High Court of Punjab and Haryana at Chandigarh). Date: 22-11-2021. This petition was called on for hearing today., For Petitioners: Mr. Siddharth Luthra, Senior Advocate; Mr. Anand Mishra, Advocate on Record. For Respondents: Mr. Aditya Grover, Advocate; Mr. Harshit Khanduja, Advocate; Ms. Gauri Neo Rampal, Advocate on Record; Mr. Arjun Grover, Advocate; Ms. Pooja R. Sharma, Advocate., Upon hearing the counsel, the Supreme Court of India made the following: The impugned order is as under: On request made by counsel for the petitioner, the matter was adjourned to 10 January 2022., The special leave petition has been preferred not on any other fact or even the fact that the order is wrongly recorded but that the High Court erred in mechanically adjourning the matter for three months without issuing notice to the respondent and that the long adjournment without any interim protection would take away the petitioner’s right to approach a higher court., We do not know why the adjournment was requested—whether the counsel was not ready or whether there was lack of material instructions from the petitioner to the counsel. The fact remains that the learned judge only obliged the counsel for the petitioner by accepting the request for adjournment. Yet the order is sought to be faulted by the petitioner by filing a petition under Article 136 of the Constitution of India. If this is not a misuse of process of law, one can say little else., This Supreme Court of India is not a walk‑in place only because Chandigarh happens to be in proximity to Delhi. We are of the view that the petitioner must pay for wastage of judicial time and thus dismiss the petition with cost of Rs. 20,000 to be deposited with the Supreme Court Group C (Non‑Clerical) Employees Welfare Association within four weeks from today. Pending applications stand disposed of.
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Bail Application No. 1096/2021 State Vs. Navneet Kalra FIR No. 116/2021 PS- Lodhi Colony (Crime Branch) under section 3 and 7 of the Essential Commodities Act, Section 3 of the Epidemic Diseases Act, 1879 and Sections 420, 188, 120-B, 34 of the Indian Penal Code dated 13.05.2021. The present application has been received by way of transfer pursuant to order dated 12.05.2021, passed by the Learned Principal District & Sessions Judge, South East District, New Delhi and is taken up through video conferencing., Present: Shri Atul Srivastava, Shri Mohd. Iqrar, Learned Additional Public Prosecutors for the State with Assistant Commissioner of Police, Crime Branch and Investigating Officer Sub-Inspector Kamal Kumar. Shri Vikas Pahwa, Senior Advocate with Shri Vineet Malhotra, Shri Vishal Gohri, Shri Harsh Sethi, Shri Hemant Shah, Shri Shubhendu Kaushik, Shri Sumer Singh Boparai, Shri Shadman Siddiqui, Shri Arham Masud, Shri Abhishek Pati and Mrs. Raavi Sharma, Learned Counsels for the applicant/accused., The present application, under Section 438 of the Criminal Procedure Code seeking grant of anticipatory bail, has been filed on behalf of applicant/accused Navneet Kalra. It is emphatically contended by Learned Senior Counsel for the applicant/accused that the applicant/accused is in the profession of operating optical stores and restaurants. He is a married person having family consisting of senior citizen parents, two minor children and wife. The safekeeping of his family during the pandemic of Covid‑19 is upon the applicant/accused., The applicant/accused accidentally fell down and sustained about 20 stitches at AIIMS Hospital on 19.04.2021. Thereafter, he also underwent surgery of his jaw at Medanta Hospital on 05.05.2021., The applicant/accused has clean antecedents and has never been involved in any criminal case whatsoever, but he is now being implicated in a false and frivolous complaint made by a third party. The applicant/accused is being implicated on account of business and personal rivalry by the third party against whom the applicant/accused had filed a complaint with police authorities suspecting black marketing of machines which the applicant’s company was selling., One M/s Matrix Cellular (International) Services Ltd. was importing oxygen concentrators and thermal imaging devices during the pandemic for widespread distribution and making the oxygen concentrators available to the public at large, via advertisements on internet, apps and all social media platforms. The applicant/accused had also requested M/s Matrix Cellular (International) Services Ltd. to supply some concentrators so that the applicant/accused could also be involved in widespread distribution of the same in order to save lives during the pandemic of Covid‑19. All the sales were being made only through banking channels., On 28.04.2021, the applicant lodged a complaint through an e‑mail with the Station House Officer, Police Station Fatehpur Beri, against one Mr. Sujeet, who wanted to purchase one oxygen concentrator and was creating a ruckus outside the office of Dayal Opticals, Khan Market, New Delhi. When the e‑mail bounced, the complaint was sent to the Station House Officer, Police Station Fatehpur Beri through WhatsApp. If the applicant/accused had indulged in black marketing, he would not have lodged that complaint., The present FIR was lodged on 05.05.2021 alleging black‑marketing of oxygen concentrators, thermal imaging devices and KN‑95 masks under sections 420, 188, 34 of the Indian Penal Code, Section 3 read with Section 7 of the Essential Commodities Act and Section 3 of the Epidemic Diseases Act, which prescribes maximum punishment of seven years. Four employees of the applicant/accused were arrested from Nege & Ju restaurant on 05.05.2021., As per the judgment of the Hon'ble Supreme Court of India in Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273, the applicant is ready and willing to join investigation. The applicant/accused should not be arrested as the maximum punishment prescribed is seven years. As per minutes of meeting dated 04.05.2021 of the High‑Powered Committee, guidelines laid down in Arnesh Kumar's judgment are to be followed., An oxygen concentrator and thermal imaging machine have not been notified as essential commodities and therefore the Essential Commodities Act, Epidemic Diseases Act and Section 188 of the Indian Penal Code could not have been invoked. There is no recovery of KN‑95 masks from the applicant/accused. There is no cap or ceiling price for the oxygen concentrators or thermal imaging machines set by the Central or State Government and the price of liquid oxygen/oxygen cylinder has only been notified by the Central Government. Even the Hon'ble High Court was informed on 06.05.2021 that cap or ceiling price for these products had not been notified by the Central and State Governments., The applicant/accused allegedly dealt with oxygen concentrators and not with liquid oxygen cylinders. There are no allegations of false or fraudulent representation against the applicant/accused and therefore invocation of Section 420 IPC is not justifiable. The applicant/accused was conducting sales openly and receiving payments through banking channels. He had not imported the oxygen concentrators and other goods., The applicant/accused is being portrayed as a criminal in social media and his photograph is being circulated, causing grave prejudice to the applicant/accused., Vide order dated 12.05.2021, the Learned Chief Metropolitan Magistrate, South East, has granted regular bail to four co‑accused persons. The applicant/accused undertakes to abide by all conditions as may be imposed by this court. There is neither any violation of the Essential Commodities Act, 1955 nor the Epidemic Diseases Act, 1897, nor has the applicant/accused committed any offence under provisions of the Indian Penal Code. The applicant/accused and his company have bought the machines through legal method i.e. through cheques and there is no illegal hoarding of the machines. There is no violation of any directions issued by the Central Government either under section 3 or 7 of the Essential Commodities Act, 1955 or Section 3 of the Epidemic Diseases Act, 1897, as alleged., The allegations against the applicant/accused, as per FIR, are that he permitted the oxygen concentrators to be delivered to third parties from his premises where he was running a restaurant under the name of Nege & Ju. As far as incriminatory statements of co‑accused are concerned, the confessional statements made to a police officer are not admissible under Section 25 of the Evidence Act. Self‑incriminatory disclosure statements cannot be read against the applicant/accused at this juncture as the same would be required to be proved with cogent and corroborative evidence during trial., He is absolutely innocent and has deep roots in society. There is no likelihood of his absconding. The applicant/accused undertakes to join and cooperate with the investigating agency and appear before the court as and when required. Therefore, the applicant/accused be released on anticipatory bail., Reliance is placed upon judgments delivered by the Hon'ble Supreme Court in the cases of Prakash Babu Raghuvanshi Vs. State of Madhya Pradesh (2004) 7 SCC, In Re: Contagion of Covid‑19 Vs. In Prisons Suo Motu Writ Petition (C) No. 1/2020, Chirag Indravadan Shah Vs. State of Gujarat, 2020 SCC Online GUJ 2263 and Sagar Somnath Mutekar Vs. State of Maharashtra, 2020 SCC Online BOM 7937; judgments delivered by the Hon'ble High Court of Gujarat in the cases of Deviben Bharabhai Khimani Vs. State of Gujarat, Criminal Miscellaneous Application (For Anticipatory Bail) No. 17 of 2018, Rameshbhai Arjanbhai Gohil Vs. State of Gujarat, Criminal Miscellaneous Application (For Anticipatory Bail) No. 24926 of 2017, Mukesh Vrajlal Halani Vs. State of Gujarat, Criminal Miscellaneous Application No. 13955 of 2008, Rizwan Usman Mansuri Vs. State of Gujarat, Criminal Miscellaneous Application No. 18497 of 2020; judgment delivered by the Hon'ble High Court of Patna in the case of Md. Eltaf @ Md. Eltaf Raza Vs. State of Bihar, Criminal Miscellaneous No. 14488 of 2020; and judgment delivered by the Hon'ble High Court of Delhi in the case of Gaurav Yadav & Anr. Vs. Union of India & Ors., W.P.(C) No. 5222/2020 decided on 13.08.2020., Per contra, the Learned Additional Public Prosecutor appearing for the State has submitted that during patrolling by the Station House Officer, Police Station Lodhi Colony on 05.05.2021, a restaurant in the name and style of Nege & Ju was found to be operating in Central Market, Lodhi Colony, New Delhi and during search of the said restaurant, 32 boxes of oxygen concentrators with capacity of 9 L and 5 L, one box of thermal scanner and KN‑95 masks were recovered. Thereafter, the present case was registered and investigation was carried out. On 05.05.2021, accused persons viz. Gaurav Suri, Satish Sethi, Hitesh Kumar and Vikrant were arrested., During their sustained interrogation, the accused disclosed that they used to purchase oxygen concentrators and other Covid‑19 treatment related equipment from various sources and sold them at exorbitant price to needy persons. 387 oxygen concentrators, 112 boxes containing KN‑95 masks and 95 oximeters were recovered at the instance of accused persons from Matrix Cellular International Services Pvt. Ltd., 7 Khullar Farms House, Mandi Road, Fatehpur Beri, New Delhi. On 06.05.2021, during the police custody remand of accused Hitesh, an employee of applicant/accused Navneet Kalra, nine oxygen concentrators were recovered from Town Hall Restaurant, Khan Market, New Delhi. On 07.05.2021, ninety‑six oxygen concentrators were recovered from Khan Chacha Restaurant, Khan Market, New Delhi. Invoices in the name of Dayal Opticals for selling 250 units of oxygen concentrators were seized at the instance of accused Hitesh. Accused Gaurav Suri, Business Head of Matrix Cellular, disclosed that those 250 units were sold to applicant/accused Navneet Kalra, who is the owner of Dayal Opticals., On 07.05.2021, accused Gaurav Khanna, CEO of M/s Matrix Cellular International Services Pvt. Ltd., was arrested. He was looking after the operations of M/s Matrix Cellular International Services Pvt. Ltd., Khullar Farms, Sultanpur, Mandi Road, Mehrauli, New Delhi and subsequently, investigation was transferred to the ISC/Crime Branch, Chanakyapuri, New Delhi on 08.05.2021. Accused Gaurav Khanna disclosed that due to the Covid‑19 global pandemic in 2020, the work of the company was badly affected and therefore they started dealing in Covid‑19 items and imported some articles such as oximeters, oxygen concentrators, KN‑95 masks and also procured some other articles., Accused Gaurav Khanna further disclosed that the applicant/accused company had sold the oxygen concentrators to needy persons with profit margin of Rs 40,000 to Rs 42,000 per piece. The delivery of some oxygen concentrators was given by them from Khullar Farm (Sultanpur) and Nege & Ju restaurant, Lodhi Colony and they had sold around 300‑350 oxygen concentrators to the applicant/accused, owner of Dayal Opticals. The sale of recovered oxygen concentrators was unauthorizedly operational from Nege & Ju restaurant at Central Market, Lodhi Colony, New Delhi during the lockdown., The import of oxygen concentrators under applicable laws, the quality of the recovered oxygen concentrators, the payment and cash transaction involved in sale of oxygen concentrators and other equipment, importing and acquiring oxygen concentrators from third parties and thereafter selling the same to customers, import/domestic acquisition of oxygen concentrators by Matrix are subject matter of verification and these aspects are being verified during investigation., As per report received from Shriram Institute, the output of oxygen concentration given by the concentrators being sold by applicant/accused has been found to be merely 20.8 %. The details of customers who purchased the oxygen concentrators through online mobile application ‘X Factor’ are being obtained and investigation is yet to be carried out regarding the manner of sale and purchase., Accused persons were taking undue advantage of the situation created by the second wave of Covid pandemic and they made wrongful pecuniary gains by fraudulently representing that they were selling premium portable oxygen concentrators manufactured with German collaboration, which were sufficient to meet requirement of two persons. In fact, the concentrators being sold by applicant/accused were not manufactured with German collaboration and were manufactured in China. Accused persons have admitted the procurement price of the medical equipment ranging between Rs 12,500 and Rs 20,669 and selling these equipments for up to Rs 70,000 and above., On 02.05.2021, during hearing of W.P.(C) No. 4984/2021 titled as M/s Bram Health Care Private Ltd. Vs. Union of India & Anr., the Hon'ble Delhi High Court observed that oxygen gas cylinders, oxygen flow meters and medicines required for treatment of Covid‑19 disease were being sold in the black market at prices above the Maximum Retail Price (MRP). The Court directed the State to ensure that none of the equipment or medicines used in the treatment of Covid‑19 be sold above the MRP and that any person found indulging in hoarding or selling at above MRP be booked and brought to the notice of the Court for initiating independent contempt action., The relevant notifications under the Essential Commodities Act in respect to oxygen concentrators are as follows: (i) Office Memorandum of Government of India vide File No. 20(8)/09/2019/Div. III/NPPA dated 29 June 2020, directing that Maximum Retail Price of medical devices cannot be increased more than ten percent in a year and that manufacturers/importers of pulse oximeters and oxygen concentrators submit MRP details within ten days; (ii) Office Memorandum of Government of India vide File No. X.11035/281/2018‑DRS dated 11 February 2020, notifying devices intended for use in humans or animals as drugs effective 1 April 2020; (iii) Notification vide order No. PN/206/74/2020/F/F, No. 8(74)/2020DP/NPPA/Div‑II dated 31 March 2020, bringing medical devices under the Drug (Price Control) Order, 2013; (iv) Notification No. 4/2015‑2020 New Delhi dated 30 April 2021, revising Foreign Trade Policy to include import of oxygen concentrators for personal use as exempted category; (v) Order passed by Drugs Control Department circulated vide No F. 52/DC.HOO/2020/199 dated 07.05.2021 directing retailers, wholesalers and distributors not to sell these items above the notified price or MRP and not to deal in them in an unauthorized manner., In view of the said notifications, oxygen concentrators are covered in the definition of essential commodities and price of the same must be governed and regulated as per the directions of the Government. The accused persons had never informed the concerned authorities about the MRP labels or pasted over the oxygen concentrator boxes. The oxygen concentrators were procured and sold at exorbitant prices. As per statement of one aggrieved, the applicant/accused first quoted the price of an oxygen concentrator as Rs 49,999 and on the next day forced him to pay Rs 55,000 owing to urgent requirement. The purchaser also pointed out that the purity of oxygen was 48 % at SL/min which is very low and does not serve the purpose., It has come to notice during investigation through social media posts that applicant/accused had collected advance payments from several needy persons for supply of oxygen concentrators and kept postponing delivery on the pretext of shipment being held up. He kept increasing the price and eventually neither supplied the item to several persons nor refunded their advance amount and is absconding. Several persons who bought oxygen concentrators found its performance much below advertised benchmarks and demanded replacement or refund, but were told that there is no policy of refund or replacement, whereas no such clause was mentioned in the brochure., Investigation is still at the initial stage and probability of many aggrieved and cheated persons emerging cannot be ruled out. The margin of profit, in comparison to cost, is very high, especially in view of the ongoing pandemic. Moreover, Matrix company was selling these oxygen concentrators clandestinely by using restaurant premises as cover and no information regarding storage and sale was conveyed to any Government authority. The accused persons have hatched a deep‑rooted conspiracy to gain wrongfully, using the pandemic situation, and compelled needy persons to part with money far in excess of acceptable international market rates., Thirty‑two oxygen concentrators have been recovered from Nege & Ju, Lodhi Colony, nine oxygen concentrators have been recovered from Town Hall Restaurant and ninety‑six oxygen concentrators have been recovered from Khan Chacha Restaurant at the instance of employee Hitesh. Several raids have been conducted at all possible hideouts of the applicant/accused, but the premises were found to be locked. The applicant/accused has switched off his mobile phones and is deliberately avoiding the process of law. A total of 524 oxygen concentrators have been recovered at the instance of arrested accused persons., The custodial investigation of the applicant/accused is required to bring on record the facts, manner of sale and amount involved. During initial investigation, names of Classic Metal and Spice Healthcare have emerged which require further investigation. Due to Covid‑19 infection, many victims could not be joined in investigation till date. The applicant/accused is a very influential person and may tamper with evidence or influence witnesses and hamper the pace of investigation. Custodial interrogation of the applicant/accused is required to unearth the entire conspiracy., The court is of the considered view that the parameters governing anticipatory bail were laid down by a Constitution bench of the Hon'ble Supreme Court in the case of Gurbaksh Singh Sibbia Vs. State of Punjab (1980) 2 SCC 565 wherein it was held that while considering grant or denial of bail, the court has to consider (1) gravity of offence; (2) nature of evidence on record against the accused; (3) likelihood of accused committing further offences; (4) previous criminal antecedents; (5) likelihood of accused absconding or evading process of law; and (6) larger interest of the public or the State., The allegations levelled against the applicant/accused are serious i.e. he made fraudulent representation that he was selling premium portable oxygen concentrators manufactured with German collaboration, which were sufficient to meet requirement of two persons. The applicant/accused collected advance payments from several needy persons for supply of oxygen concentrators and kept postponing delivery on the pretext of shipment being held up, increased the price and eventually neither supplied the product nor refunded the advance amount. There is prima facie incriminating evidence on record that the concentrators sold by the applicant/accused were not manufactured with German collaboration and were manufactured in China. They were not having adequate output to meet requirement of even one person. As per reports dated 12.05.2021 submitted by Shriram Institute for Industrial Research, New Delhi, in respect of two oxygen concentrators seized from the premises of the applicant/accused, the average output in terms of oxygen purity is found to be 32.7 % and 38.2 %. With laboratory room air, the oxygen concentration was found to be merely 20.8 %., As per statement of one aggrieved, the applicant/accused first quoted the price of an oxygen concentrator as Rs 49,999 and on the next day forced him to pay Rs 55,000 owing to urgent requirement. The purchaser also pointed out that the purity of oxygen was 48 % at SL/min which is very low and does not serve the purpose for which it was purchased. The applicant/accused is reported to have collected advance payments from several needy persons for supply of oxygen concentrators and kept postponing delivery on the pretext of shipment being held up, increased the price and eventually neither supplied the product nor refunded their advance amounts. The applicant/accused has not joined investigation till date., Mobile phone of the applicant/accused, which reportedly contains incriminating WhatsApp chats with customers, details of calls made to co‑accused persons and his accounts, is required to be seized. Custodial interrogation of the applicant/accused is required to be carried out to unearth the entire conspiracy hatched between him and a number of co‑accused persons., Therefore, Section 41(1)(b)(ii) of the Criminal Procedure Code is applicable which empowers a police officer to arrest an accused for conducting proper investigation of the offence. This exception has been recognized by the Hon'ble Supreme Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273. The possibility of the applicant/accused tampering with evidence or intimidating prosecution witnesses cannot be ruled out. Therefore, no case for grant of anticipatory bail is made out. The application is accordingly dismissed. Nothing expressed herein shall tantamount to expression of opinion on merits of the case. Copies of this order be sent to the Learned Additional Public Prosecutor for the State, Learned Counsels for applicant/accused and Investigating Officer, through email forthwith.
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Dated: 16th May, 2022. In pursuance of Rule 4 of Order II of the Supreme Court Rules, 2013, Honourable the Chief Justice of India has directed that the Supreme Court will be closed for the annual Summer Vacation from Monday, the 23rd May, 2022 to Sunday, the 10th July, 2022 (both days inclusive) and will reopen on Monday, the 11th July, 2022., Under Rule 6 of Order II of the Supreme Court Rules, 2013, Honourable the Chief Justice of India has nominated the following Division Benches to sit as Vacation Benches during the Summer Vacation, 2022:, Division Bench: Honourable Dr Justice D.Y. Chandrachud and Honourable Ms Justice Bela M. Trivedi., Division Bench: Honourable Mr Justice S. Abdul Nazeer and Honourable Mr Justice Pamidighantam Sri Narasimha., Division Bench: Honourable Mr Justice Ajay Rastogi and Honourable Mrs Justice B.V. Nagarathna., Division Bench: Honourable Mr Justice B.R. Gavai and Honourable Mr Justice Pamidighantam Sri Narasimha., Division Bench: Honourable Mr Justice M.R. Shah and Honourable Mr Justice Aniruddha Bose., Division Bench: Honourable Mr Justice A.S. Bopanna and Honourable Mr Justice Vikram Nath., Division Bench: Honourable Mr Justice J.K. Maheshwari and Honourable Ms Justice Hima Kohli., Division Bench: Honourable Mr Justice C.T. Ravikumar and Honourable Mr Justice Sudhanshu Dhulia., Division Bench: Honourable Mr Justice Surya Kant and Honourable Mr Justice J. B. Pardiwala., Division Bench: Honourable Mr Justice Abhay S. Oka and Honourable Mr Justice M.M. Sundresh., Division Bench: Honourable Ms Justice Indira Banerjee and Honourable Mr Justice J. K. Maheshwari., Division Bench: Honourable Mr Justice Dinesh Maheshwari and Honourable Mr Justice Krishna Murari., During Summer Vacation the Registry will remain open from 10.00 A.M. to 5.00 P.M. for all the Officers and staff members of the Registry except Group C (non‑clerical) staff in whose case timings will be from 9.30 A.M. to 5.30 P.M. on all the days except Saturdays (other than the 9th July, 2022), Sundays and holidays when it shall remain closed.
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Shailaja (Original Complainant) aged about 32 years, occupation: Laborer, resident at Masvane, Taluka Shahpur, District Thane (Accused in Nagpur Jail, Nagpur) Respondent (Original Accused) and wife Ashok Baban Mukane aged about 32 years, occupation: Laborer, resident at Masvane, Taluka Shahpur, District Thane (Accused in Nagpur Jail, Nagpur) Appellant The State of Maharashtra (at the instance of Shahpur Police Station) Respondent 1 of 56 Ms. Veera Shinde, Additional Public Prosecutor, for Appellant-State in Confirmation Case No. 3 of 2019. Mr. Shashikant Chaudhari, appointed Advocate and wife Ms. Snehal S. Chaudhari, Mr. Pranot Pawar and Mr. Gyanprakash R. Pal, for Respondent in Confirmation Case No. 3 of 2019 and for Appellant in Criminal Appeal No. 586 of 2019. Mr. R. S. Kshirsagar, Additional Public Investigator, Shahapur Police Station., The learned Additional Sessions Judge, Kalyan, had submitted the proceeding to the Supreme Court of India for confirmation of the sentence of death awarded by him in Sessions Case No. 47 of 2014 on 6th March 2019 under section 366 of the Code of Criminal Procedure, inter alia, an appeal by the appellant challenging his conviction and sentence of death for having committed murder of the victim and sentence of life imprisonment for committing rape upon her., Petitioner Witness 1 – mother of the victim and the complainant was a resident of Village Saavroli, Taluka Shahapur, District Thane. The family comprised her husband, two sons, one daughter‑in‑law, grandson, two daughters (the victim and another daughter). The victim was pursuing her studies in the Tool Mechanic Course in ITI., On 5th September 2013, as usual, Petitioner Witness 1 – mother of the victim accompanied her at Asangaon Railway Station around 5.45 a.m. The victim was to attend her college and catch a local train of 6.10 a.m. After leaving the victim at the station, Petitioner Witness 1 returned home and then left for her work at 8.30 a.m. However, instead of attending her work, she went to her sister and both of them went to Kolshewadi, Kalyan, to meet one Appa Shinde, who was known for financially helping poor girls for their admissions in school. They could not meet Appa Shinde., Thereafter, both of them went for their work in the company. Around 10.30 to 10.45 a.m., Petitioner Witness 1 called the victim on her mobile number 9225396130. The victim did not answer the call though the bell was ringing. Petitioner Witness 1 returned home around 6.30 p.m. Normally, the victim used to return home around 5.30 p.m. However, on that day she did not return home and several calls were made on her mobile, which were not reachable. Around 8.00 p.m., Petitioner Witness 1 asked her son to go to the railway station in search of the victim. He returned home by 9.30 p.m. to inform that he could not see the victim at the railway station. Petitioner Witness 1 thought that, due to fear of her father, perhaps the victim might have gone to her friend's house and would go to her college the next morning directly from her friend's house. As such, no report was made on that day., On 6th September 2013, Petitioner Witness 1 was at home since it was a holiday. Around 10.30 a.m., her son informed her that the dead body of the victim was lying beside the railway crossing. The victim was found half naked, her jeans pulled down and shirt raised up to the breast. Her lips were swollen and blood was oozing from her nose and mouth. Her face was swollen. Petitioner Witness 1 was in utter shock and was not taken to the spot. Her son had noticed that the mobile handset of Tata Company belonging to the victim was found stolen. It was apparent that she was raped and murdered., A complaint was lodged by Petitioner Witness 1 with Shahapur Police Station, on the basis of which a crime bearing No. 181 of 2013 under sections 302 and 376(1) of the Indian Penal Code was registered on 6th September 2013 at 16:05 hours (Exhibit 35)., Before registering a First Information Report, Petitioner Witness 2 – Shivaji Hari Satpute had already informed the police of having noticed the dead body of the victim lying in a half‑naked condition with blood and froth oozing from the mouth. Her college bag was placed on her stomach; the zip of the bag was found open and articles from the bag, viz. water bottle and one red coloured purse, were found lying near her body. This information was given on 6th September 2013 at 9.15 a.m. and ADR No. 81 of 2013 was registered at 11.35 a.m (Exhibit 38)., Petitioner Witness 24 – Sunil Dattatray Wadke, Police Inspector then attached to Shahapur Police Station, visited the scene of occurrence. An inquest as well as spot panchanama was drawn in the presence of four pancha witnesses. A rough sketch map of the spot was drawn by the Revenue Inspector. The dead body of the victim was sent for autopsy to Sub‑District Hospital, Shahapur. Hospital authorities were asked by the investigating officer to collect vaginal swab, nail clipping, pubic hair and skull hair by issuing a requisition. Autopsy was conducted at J.J. Hospital, Mumbai. Biological samples were sent for chemical analysis to the Forensic Science Laboratory. Post‑mortem was conducted by a panel of three doctors. The report indicates that the principal cause of death was due to asphyxia caused by smothering with compression of the neck associated with head injury., Further investigation was carried out by Petitioner Witness 26 – Deputy Superintendent Prashant Vijaykumar Waghunde. The appellant was arrested on 10th September 2013 when he was found loitering in a suspicious condition beneath Asangaon Fly Over Bridge on the railway track. During interrogation, he allegedly confessed his guilt before the police. At the time of his arrest, clothes on his person comprising a pant and T‑shirt along with green coloured half pant were seized by the police., While in police custody, it is contended that he voluntarily made a disclosure statement, pursuant to which the clothes which were on his person at the time of committing the offence came to be seized. Those clothes comprised one ash‑coloured full‑sleeves shirt labelled 'Ruff & Tuff' and a black coloured pant labelled 'METIC'. Those clothes were duly seized and sealed vide panchanama (Exhibit 51). DNA examination of the samples collected from the person of the victim vis‑à‑vis the appellant confirmed that they match and that it was the appellant who had committed rape upon the victim. The investigating officer had recorded statements of the witnesses. Certain documentary evidence had been collected from the institution where the victim was pursuing her studies such as her attendance register in the college on the date of the incident etc. During investigation, it was revealed that while returning home from the college, the appellant accosted her on the way and committed forcibly rape. He killed her as she had resisted him., The investigating officer had collected call detail records of the mobile phone of the victim as well as some other suspects. After investigation, a charge‑sheet was filed in the Court of Judicial Magistrate First Class, Shahapur which, in turn, was committed to the Sessions Court, Kalyan., A charge was framed under sections 302 and 376(1) of the Indian Penal Code against the appellant. It was read over and explained to him. He abjured the guilt and claimed a trial. His defence was of total denial and false implication in this case. No defence evidence has been adduced., To substantiate the charge, prosecution examined 26 witnesses coupled with some documentary evidence in the form of call detail records, autopsy report, DNA report, panchanamas etc., The learned Additional Sessions Judge heard the appellant as well as the prosecution on the point of sentence. He placed reliance mainly upon the latest judgment of the Hon’ble Supreme Court in the case of Mukesh and another v. State (NCT of Delhi) and others, as well as the ratio laid down by the Supreme Court in the case of Bachan Singh v. State of Punjab, Ramnaresh and others v. State of Chhattisgarh and Dhananjoy Chatterjee alias Dhana v. State of West Bengal. The learned Additional Sessions Judge discussed how the case falls within the rarest of rare category by referring to the evidence on record, especially the medical evidence. He observed that the victim was brutally assaulted by the appellant with the aim to commit rape. He therefore awarded death penalty to the appellant., A reference under section 366 of the Criminal Procedure Code has been made by the learned Additional Sessions Judge for confirmation of death penalty., We heard Additional Public Prosecutor Ms. Veera Shinde and Mr. Chaudhari, counsel for the appellant‑accused, at length. With the assistance of the counsel, we have meticulously gone through the entire evidence, post‑mortem report and the reports of the Forensic Science Laboratory. We also heard the appellant in person as well as considered an affidavit of the appellant and an affidavit sworn by Petitioner Witness 24 – Sunil Wadke, investigating officer., The learned counsel has pressed into service 44 case laws which are as under: (1) Bachan Singh v. State of Punjab; (2) Machhi Singh and others v. State of Punjab; (3) 51980 Criminal Law Journal 636; (4) 61983 Criminal Law Journal 1457; (5) Sharad Biridhichand Sarda v. State of Maharashtra; (6) State of Punjab v. Harchet Singh alias Chet Singh; (7) State of Tamil Nadu v. Suresh and another; (8) Ronny alias Ronald James Alwaris v. State of Maharashtra; (9) Akhtar v. State of U.P.; (10) Nirmal Singh and another v. State of Haryana; (11) Kumudi Lal v. State of U.P.; (12) Mohd. Chaman v. State (N.C.T. of Delhi); (13) Raju v. State of Haryana; (14) Bantu alias Naresh Giri v. State of M.P.; (15) State of Maharashtra v. Bharat Fakira Dhiwar; (16) Pandurang Kalu Patil and another v. State of Maharashtra; (17) Golakonda Venkateswara Rao v. State of A.P.; (18) Amit alias Ammu v. State of Maharashtra; (19) Anter Singh v. State of Rajasthan; (20) Surendra Pal Shivbalakapal v. State of Gujarat; (21) State of Rajasthan v. Ram Niwas and another; (22) State of U.P. v. Desh Raj; (23) Amrit Singh v. State of Punjab; (24) Bishnu Prasad Sinha and another v. State of Assam; (25) State of M.P. v. Munnibai and another; (26) Santosh Kumar v. State through CBI; (27) Rameshbhai Chandubhai Rathod v. State of Gujarat; (28) State of Maharashtra v. Goraksha Ambaji Adsul; (29) Haresh Mohandas Rajput v. State of Maharashtra; (30) Amit v. State of U.P.; (31) Ramnaresh and others v. State of Chhattisgarh; (32) Neel Kumar @ Anil Kumar v. State of Haryana; (33) Sandesh alias Sainath Kailash Abhang v. State of Maharashtra; (34) Mohinder Singh v. State of Punjab; (35) Ram Deo Prasad v. State of Bihar; (36) Shankar Kisanrao Khade v. State of Maharashtra; (37) Lalit Kumar Yadav alias Kuri v. State of Uttar Pradesh; (38) Tattu Lodhi alias Pancham Lodhi v. State of Madhya Pradesh; (39) Prahlad v. State of Rajasthan; (40) Rajendra Pralhadrao Wasnik v. State of Maharashtra; (41) Sachin Kumar Singhraha v. State of Madhya Pradesh; (42) State of Jharkhand v. Mathura Yadav; (43) State of Maharashtra v. Imtiyaz Ahmad Mohd Ali Shaikh; (44) The State of Maharashtra v. Krushna s/o Ramrao Ridde; (45) Mofil Khan and another v. The State of Jharkhand; (46) The State of Maharashtra v. Rahimuddin Mohfuz Shaikh @ John Anthony D'souza @ Babu @ Baba., Case laws at serial numbers 1, 2, 4, 7, 8, 9, 10, 11, 12, 16, 18, 21, 22, 42, 43, 44 are on death sentence and hence are not applicable. Judgment at serial number 5 in the case of State of Tamil Nadu v. Suresh and another is not applicable as it is on the point of evidence of accomplice. Judgment at serial number 6 in the case of Ronny alias Ronald James Alwaris v. State of Maharashtra is on the point of test identification parade and hence not applicable. In the judgment at serial number 13 in the case of State of Maharashtra v. Bharat Fakira Dhiwar, the Hon’ble Supreme Court accepted the circumstantial evidence in the form of recovery of articles stained with blood of the deceased as a clinching and truthful evidence. Judgment at serial number 17 in the case of Anter Singh v. State of Rajasthan deals with section 27 of the Indian Evidence Act, which, according to the Supreme Court, is in nature of exception to preceding provisions, particularly sections 25 and 26. The Supreme Court has laid down conditions necessary for invoking section 27 of the Indian Evidence Act. Judgment at serial number 19 in the case of State of Rajasthan v. Ram Niwas and another is not applicable as it deals with evidence of an approver under section 306 of the Code of Criminal Procedure. Similarly, judgment at serial number 20 in the case of State of U.P. v. Desh Raj is on the aspect of 'last seen together'. Judgment at serial number 23 in the case of State of M.P. v. Munnibai and another is on section 34 of the Indian Penal Code and hence not applicable., We wonder why and how these judgments as precedents have been cited by the counsel for the appellant. It is apparent that a compilation of case laws has been tendered without referring to any single precedent from the list of judgments noted above., At the outset, we hold that the prosecution has succeeded in establishing homicidal death of the victim, yet the evidence is too short and weak to establish any nexus of the appellant qua murder of the victim. There is absolutely no point in considering the voluminous case laws comprising 44 judgments tendered on behalf of the appellant on the aspect that the case does not fall within the rarest of rare category. Since we are disinclined to accept the contention of the prosecution that it has proved the charge of murder against the appellant, he needs to be given benefit of doubt on that count. Not a single case law is pointed out as to how the ratio laid down therein would be applicable to the present set of facts., It has been argued that the prosecution case revolves around circumstantial evidence, however, it has failed in establishing the chain of events, for there are several discrepancies and doubts in the testimonies of the prosecution witnesses, which according to the counsel, do not inspire confidence. There is not a single eye witness who is said to have seen the victim returning home on the day of the incident by the side of the railway track. The counsel would argue that no efforts were taken by Petitioner Witness 1 to ascertain the whereabouts of the victim when she was found missing in the evening of 5th September 2013. Non‑examination of the brother of the victim who had noticed her dead body and who was the one to intimate the informant – Petitioner Witness 1 – that the victim was not found at the railway station, is fatal to the prosecution case. This, according to the counsel, is a serious lacuna in the prosecution case and, therefore, the appellant needs to be acquitted., So far as the evidence of Petitioner Witness 2 – Shivaji Hari Satpute is concerned, it is submitted that he is an usual police witness who was in touch with the police and, therefore, his evidence is not free from doubt. He was already present on the spot before arrival of police. It is argued that this witness had received a call from one Dilip Chandrakant Sangare but the said Dilip Sangare has not been examined by the prosecution. There is no call detail record produced of conversation between this witness and Dilip Sangare. As regards inquest panchanama, it is submitted that one pancha is the sister‑in‑law of the victim and, therefore, she is an interested witness. The counsel has also questioned the credibility of Petitioner Witness 8 – Gulab Rambabu Agrawal as she was involved in an illegal liquor business. According to him, she was a planted witness by the police, who had no occasion to see the so‑called Tata mobile handset, which the appellant purportedly wanted to sell her., Similar is the argument with respect to the evidence of Petitioner Witness 9 – Mangesh Hari Hirankar. According to the counsel, he cannot be said to be a reliable and trustworthy witness who was under the influence of liquor at the relevant time. The next argument of the counsel is that seizure of the clothes of the appellant as well as the articles from the scene of occurrence is not free from doubt as the correct procedure of seizure had not been followed by the investigating officer., As far as the evidence of Petitioner Witness 18 – Dr. Dattaram Bhore, who had conducted autopsy, is concerned, it is submitted that age of the victim had not been proved by the prosecution, nor the time of her death. It is submitted that the post‑mortem report in itself is insufficient to establish any link between the appellant and the alleged offence of murder and rape., The counsel would argue that the investigating officer as well as chemical analyzer Mr. Siddharth More and Avinash Surve had not followed the procedure. The chemical analyzer and his assistant had not been examined by the prosecution. They had called local pancha, especially the relative of the complainant and, therefore, that evidence is also untrustworthy. The counsel, therefore, has prayed for acquittal of the appellant., On the other hand, the Additional Public Prosecutor has supported the impugned judgment and order of conviction by stating that it is a fit case of maintaining the conviction for the offence of not only committing rape upon the victim but also eliminating her brutally by strangulating as well as forcibly hitting her head with some hard and blunt object. The Additional Public Prosecutor would argue that the trial court has rightly awarded death penalty since it is a case which falls under the rarest of rare category in view of the principles laid down by the Supreme Court in the case of Bachan Singh and Machhi Singh and other precedents., This case indeed revolves around circumstantial evidence. Before adverting to the circumstances brought on record by the prosecution, it would be essential to note that indubitably the victim died a homicidal death who was also subjected to rape. The defence has not seriously disputed the fact of homicidal death of the victim as well as the fact that she was subjected to rape. The evidence needs to be scrutinized so as to see whether the prosecution has been successful in showing a nexus between the crime and the criminal i.e. the appellant keeping in mind the well‑known principles enunciated in the case of Sharad Sarada and many others on circumstantial evidence., Broadly speaking, the following circumstances emerged from the overall evidence of the prosecution: (a) The appellant was residing in a hut which was not far away from the scene of occurrence; (b) The appellant and his wife knew that it was the usual footpath being used by the victim; (c) The appellant had consumed liquor on the day of the incident and also on the following day; (d) The appellant had been to the liquor shop of Petitioner Witness 8 – Gulab Agrawal on 5th September 2013 during evening hours; (e) The appellant had offered to sell a Tata Docomo mobile handset to Petitioner Witness 8 – Gulab Agrawal in the presence of Petitioner Witness 9 – Mangesh Hirankar; (f) Discovery of clothes of the appellant on his person at his instance from the hut with semen stain and pubic hair on the pant; (g) The DNA report of the appellant and the victim., The defence has not disputed the factum of homicidal death of the victim as well as the fact that there was rape. Nevertheless, it would be expedient to go through the evidence of Petitioner Witness 18 – Dr. Dattatray Bhore., Petitioner Witness 18 – Dr. Dattatray Vitthal Bhore, who was then Assistant Professor in J.J. Hospital, Mumbai, conducted autopsy over the dead body of the victim along with Dr. S. S. Bhise and Dr. G. D. Niturkar. Dr. Bhise and Dr. Niturkar were Assistant Professors in the Department of Forensic Medicine, Grant Medical College, Mumbai at the relevant time., Evidence of Dr. Bhore reveals that the dead body of the victim aged about 17 years was brought to the hospital by an Assistant Police Inspector Patil of Shahapur Police Station on 6th September 2013 at 8.00 p.m. Autopsy was conducted between 9.00 p.m. and 11.00 p.m. on that day. On examination of the body, which was wrapped in a red coloured bed sheet and was nude, the following external injuries were noticed: (a) Contusion 4 cm × 0.5 cm, muscle deep, over left cheek 2 cm away from left angle of mouth, dark red; (b) Abrasion‑contusion 2 cm × 0.5 cm, muscle deep, over left sub‑mandibular region, dark red; (c) Abrasion 3 cm × 1.5 cm below left eyelid over left maxillary region, dark red; (d) Abrasion 0.2 cm × 0.2 cm below left nostril laterally, dark red; (e) Linear nail‑mark abrasion 2 cm × 0.5 cm behind right ear, oblique, dark red; (f) Abrasion 5 cm × 1 cm over the backside over right scapular region, dark red; (g) Contusion 5 cm × 4 cm, muscle deep, over left arm posterio‑medially, dark red; (h) Contusion 3 cm × 2 cm, muscle deep, behind right elbow joint posterio‑medially, dark red; (i) Abrasion 4 cm × 2 cm behind right elbow posterio‑laterally, dark red; (j) Abrasion 4 cm × 0.5 cm over right leg laterally just above right lateral malleolus; (k) Abrasion‑contusion over inner aspect of lower lip, left side, 2 cm × 0.5 cm, dark red. All the injuries were stated to be fresh and were caused within 24 hours, probably by a hard and blunt object. Abrasions were due to rough surface and nagging., When there is no direct evidence and the decision has to be based on circumstantial evidence, a few guidelines and salient features have been enunciated by various judgments including the well‑known decision in the case of Sharad Sarda. Broadly speaking, the evidence must satisfy the following tests: (a) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (b) Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused; (c) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; (d) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence., Petitioner Witness 3 – Sachin Kondiram Bhoir acted as a pancha in respect of the scene of offence (Exhibit 113) as well as inquest panchanama (Exhibit 40). The substance of his evidence is that he was summoned by the police on the spot at 10.00 a.m. on 6th September 2013 along with the sister‑in‑law of the victim. The body of the victim was found lying beside the railway track. Blood was oozing from her nose and mouth. There was an injury over her cheek. A bag was lying on her stomach. A chocolate coloured purse was lying beside her. There was one SIM card of Tata Docomo. A black coloured bag contained some textbooks of the institute where the victim was pursuing her study. There was a water bottle, tiffin box, lipstick, identity card issued by the Railway Department etc. All the articles were seized by the police under a panchanama which is proved at Exhibit 42. Petitioner Witness 3 identified all the articles during trial. The defence declined to cross‑examine this witness. Thus, seizure of the articles lying near the victim has been duly proved by the prosecution., A team of doctors had noticed the following injuries on the genital region: labia majora and minora – contusion over inside surface of labia majora and minora on both sides, dark red; tearing of the hymen seen at 7 o’clock position on right side with infiltration of blood in margins of remaining tags of hymen. The injuries were probably caused by forceful intercourse., On internal examination, the team of doctors found the following ante‑mortem injuries: (a) Head injury – under‑scalp contusion 8 cm × 10 cm, bone deep, over right fronto‑temporal‑parietal region, dark red; (b) Under‑scalp contusion 3 cm × 2 cm, bone deep, over vertex, red; (c) Brain tissue – subdural hematoma 10 cm × 8 cm over right parieto‑occipital region extending to left parietal region, dark red; (d) Subdural hemorrhage 5 cm × 4 cm over left occipital region, dark red; (e) Subarachnoid hemorrhage 6 cm × 4 cm over right parieto‑occipital region, dark red; (f) Subarachnoid hemorrhage over left occipital region 2 cm × 1 cm, red. The hemorrhage was due to hard and blunt object. (g) Neck injury – on dissection of the skin of neck underlying muscle, hemorrhage is seen from mentum of chin to left sub‑mandibular region, caused by pressure on neck and muscles of both sides of neck., Five samples of viscera were preserved: viscera for chemical analysis – three bottles; blood for grouping and DNA – two bottles; nail clipping for chemical analysis – one bottle; scalp hair and pubic hairs for chemical analysis – two bottles; vaginal swab for chemical analysis – one bottle., Post‑mortem report: rigor mortis well marked, slight or absent, present in upper limbs and present in lower limbs. Signs of decomposition present; early decomposition with maggots of length 0.5 cm all over body, dense over face and external genitalia. Lividity of buttocks, loins, back and thighs. Post‑mortem lividity developed, fixed faint purple colour all over back except bony prominences. Right side of face shows post‑mortem lividity staining which is reddish‑purple and fixed., Eyes closed, maggots seen; on opening both pupils dilated and fixed, right eye shows subconjunctival hemorrhages. Mouth partly open, maggots seen inside oral cavity, lip cyanosed, teeth intact, tongue inside mouth cavity. Nose – oozing of blood‑tinged fluid with mucus from both nostrils. Skin – marks of blood etc. External genitalia – maggots present around labia majora and minora; contusion over inside surface of labia majora and minora, dark red; tearing of hymen at 7 o’clock position with infiltration of blood. No evidence of purging, excoriation of skin seen at places on inner side of thigh produced by maggots.
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Position of limbs, especially of arms and fingers, in suspected drowning: the presence or absence of sand or earth within the nails or on the skin of hands and feet was noted in anatomical position. Black ink stains were present over the palmar aspect and fingers of both hands, chest and abdomen., Surface wounds and injuries were described with their nature, position, dimensions and direction. Contusions and abrasions of various sizes and locations were noted, all described as dark red in colour. Injuries included a contusion on the left cheek, an abraded contusion on the left submandibular region, abrasions below the left eyelid, a linear nail‑mark abrasion behind the right ear, abrasions on the back side of the right scapular region, contusions on the left arm posteromedially, contusions behind the right elbow joint posteromedially, abrasions behind the right elbow posterolaterally, an abrasion on the right leg just above the lateral malleolus, and an abraded contusion on the inner aspect of the lower lip., Other injuries discovered by external examination or palpation, such as fractures, were noted; no palpable fracture was found., Head injuries: under the scalp a contusion measuring 8 cm by 10 cm, bone deep, was present over the right frontotemporal‑parietal region. The meninges were intact, vessels congested. Subdural hematoma measuring 10 cm by 8 cm was present over the right parieto‑occipital region extending to the left parietal region. Subdural hemorrhage measuring 5 cm by 4 cm was present over the left occipital region. Subarachnoid hemorrhage measuring 6 cm by 4 cm was present over the right parieto‑occipital region, weighing 2.75 grams, and another subarachnoid hemorrhage over the left occipital region measured 2 cm by 1 cm., Thorax: walls, ribs, cartilages, pleura, larynx, trachea and bronchi, right lung, left lung, pericardium, heart with weight, large vessels and additional remarks were recorded. Dissection of the neck skin revealed underlying muscle hemorrhage from the mentum of the chin to the left sub‑mandibular region and muscles of both sides of the neck, dark red in colour. No rib fracture was found. The trachea was congested, with no foreign body. Both lungs were intact but congested. The heart was of normal size and shape, valves intact, chambers empty., Abdomen: walls, peritoneum, cavity, buccal cavity, teeth, tongue, pharynx, oesophagus, stomach and its contents, small intestine and its contents, large intestine and its contents, liver with weight and gall bladder, pancreas and suprarenals, spleen with weight, kidneys with weight were examined. No free fluid or blood was found in the peritoneal cavity. Organs were intact, congested, pale‑mucosa. Stomach content was 150 cc semisolid, undigested food material, no specific odour, muscle pale. Both intestines were intact, partly loaded with gases. All other organs were unremarkable and congested., Bladder and organs of generation: the bladder was intact and almost empty. The uterus was intact, measuring 8 cm long, 5 cm wide at the fundus and 1.25 cm thick, with an empty cavity. A cyst was present in the right ovary. Endometrium was pale. Viscera for chemical analysis (03 bottle), blood for group and DNA (02 bottle), nail clipping for chemical analysis (01 bottle), scalp hair and pubic hairs for chemical analysis (02 bottle), and vaginal swab for chemical analysis (01 bottle) were retained, totaling nine bottles., According to Prosecution Witness 18, Doctor Dattatray Bhore, the cause of death of the victim was asphyxia due to smothering with compression of the neck associated with head injury. The final cause of death certificate (Exhibit 92) confirms death due to asphyxia caused by smothering and throttling with head injury, an unnatural death., The viscera and other biological samples, including nail clipping, scalp hair, pubic hair, vaginal swab and blood of the victim, as well as blood, semen, nail clipping and pubic hair of the appellant, were sent for chemical analysis to determine whether the DNA profiles matched. Doctor Bhore testified that the DNA report revealed a match between the victim's vaginal swab and the appellant's blood sample, allowing an inference of sexual intercourse between the victim and the appellant., Doctor Bhore testified that the dead body of the victim was brought to J.J. Hospital, Mumbai by A.P. I. Patil from Shahapur Police Station on 6 September 2013 at 8.00 p.m. Autopsy commenced at 9.00 p.m. and was completed at 11.00 p.m. He stated that all injuries on the body were sustained within 24 hours, probably caused by a hard and blunt object. He opined that the death was due to asphyxia caused by smothering and throttling with head injury. The victim was missing from the evening of 5 September 2013, indicating that the incident occurred during that evening., During a short cross‑examination, the defence suggested that the injuries listed in columns 17 and 19 of the autopsy report could be caused by a fall from a hilly area. The expert denied this suggestion. The expert also denied the claim that semen could not be obtained from the victim's vagina because the body was in early decomposition, noting that the internal cavity of the vagina was empty and there were no signs of a menstrual cycle. He further stated that in forcible rape, contusions are seen on the labia majora and minora both inside and outside. The evidence of this witness was not disbelieved., The prosecution then addressed the evidence of witnesses regarding the appellant's complicity and nexus with the offences. It was established that the victim was subjected to rape and was killed by her tormentor., Prosecution Witness 1, the mother of the victim, testified that on 5 September 2013 at 5.45 a.m. she accompanied the victim to Asangaon Railway Station, where the victim boarded the 6.10 a.m. local train. The mother returned home, later visited a relative's house, called the victim at about 10.45 a.m. (the victim did not answer), went to work, and returned home by 6.30 p.m. finding the victim absent. She inquired with family members and at 8.00 p.m. sent her son to Asangaon Railway Station to search for the victim; he returned at 9.30 p.m. with no clues. The family assumed the victim might have stayed with a friend and made no grievance., On 6 September 2013 around 10.30 a.m., the victim's brother learned that the dead body was lying near the railway track. The mother was shocked, went to the police station and lodged a complaint (Exhibit 35). She identified the victim's personal items, including a pair of jeans, reddish shirt, pink brassiere, black knicker, white sanitary napkin, Adidas bag, compass box, Breeze soap, a chocolate‑coloured purse, red tiffin box and water bottle, marked as Articles A to K. She did not suspect anyone at that time., Prosecution Witness 2, Shivaji Satpute, first informed the police on the morning of 6 September 2013 that the dead body was lying near the railway track between Asangaon and Saavroli. He called Police Inspector Sunil Dattatray Wadke of Shahapur Police Station. Satpute noticed a purse, SIM card, bag and water bottle near the victim. The First Information Report is Exhibit 35. He testified that while the victim was going home, the appellant attempted to commit rape; when she resisted, he killed her by assaulting and pressing a bag over her mouth. Satpute is not an eye‑witness; his testimony is based on what he thought after noticing the scene., Doctor Guruprasad Murlidhar Wagh, attached to Sub‑District Hospital, Shahapur, testified that on 6 September 2013 around 9.00 a.m. he received a requisition from Shahapur Police Station to perform an autopsy on the victim and to collect samples (Exhibit 68). He collected scalp hair, pubic hair and nail clippings of the victim, handed the samples to the police, and referred the body to J.J. Hospital, Mumbai for autopsy after consulting his superior. During cross‑examination, it was reiterated that he collected around 10 to 15 strands of scalp and pubic hair., Exhibit 157 is the result of analysis of the appellant's full pant and hair detected in its zip. The chemical analyzer found a human semen stain measuring 3 cm in diameter on the left front upper portion and two semen stains each about 2 cm in diameter on the right front upper portion. The DNA report is clinching in nature., The victim's clothes—shirt, bra, knicker and jeans—showed no signs of resistance. All clothing, including underwear and the sanitary napkin found inside, were intact, indicating the victim was not conscious or alive at the time of the rape. The pair of jeans were so tight that they had to be cut at the lower portion during the post‑mortem. It is apparent that the appellant may have pulled the victim's jeans up to the knees and, while raising his waist, committed rape. Pubic hairs were found stuck in the zip of his pant, suggesting hurried removal after the offence. No marks of resistance were found on the appellant's clothes, which would be expected if the victim had been conscious., The prosecution case states that the appellant was residing in a hut belonging to Prosecution Witness 6, Kashinath Mahadu Bondre, on land bearing Survey No. 132 at village Saavroli, situated to the west of the railway track where the victim was found dead. Bondre gave the land for cultivation to Prosecution Witness 10, Navsha Chima Wagh. Bondre used the field during the harvesting season. The appellant had been residing in the hut for two months prior to the incident., Prosecution Witness 10, Navsha Chima Wagh, admitted cultivating the land of Bondre and erecting the hut but denied permitting the appellant to reside there with his family. He acknowledged that Balu Pawar is his maternal brother and that the appellant is a relative of Balu Pawar, yet he denied the appellant's residence in the hut. During cross‑examination, he was confronted with his earlier statements, and Investigating Officer Sunil Wadke proved the residence at Exhibit 131. Consequently, it has been proved that the appellant was residing in the hut with his family at the relevant time., Navsha Chima Wagh also admitted in cross‑examination that the appellant used to sell leaves at Byculla, traveling regularly from Asangaon to Byculla. This indicates that Wagh was aware of the appellant's movements, supporting the conclusion that the appellant was indeed residing in the hut., On 5 September 2013, during the evening hours, the appellant visited the liquor shop of Prosecution Witness 8, Smt. Gulab Rambabu Agrawal, who is engaged in illicit liquor business at Asangaon. The appellant, along with two to three customers, was present at the shop. Gulab testified that the appellant quarreled with Prosecution Witness 9, Mangesh Hari Hirankar, behind her shop after being served liquor. She stated that the appellant asked her whether she was interested in purchasing a mobile handset; she replied in the negative, stating she was illiterate., During cross‑examination, Gulab identified the appellant when shown to her at the police station and admitted she had not seen the mobile handset. Her testimony was not disbelieved despite her involvement in illicit liquor business. Prosecution Witness 9, Mangesh Hari Hirankar, corroborated her account, stating that on the morning of 6 September 2013 he, along with Yogesh and Janu, was consuming liquor behind Gulab's shop. The appellant was present and asked Gulab whether she would purchase a mobile handset, which she refused. Mangesh testified that he later asked for three mugs of liquor for Rs. 60/‑; Janu offered a mug to the appellant, after which Mangesh became angry, slapped the appellant, and gave him kick blows causing the appellant to fall. He later reported the incident to the police on 15 September 2013., Both Gulab Agrawal and Mangesh Hari Hirankar testified that the victim possessed a TATA Docomo mobile handset. Only the SIM card was found near the victim's body. It is probable that the appellant threw the SIM card from the victim's handset and attempted to sell the handset to Gulab. The handset was not recovered, but records show the victim regularly used a TATA handset with mobile number 9225396130., Prosecution Witness 4, Bharat Mohandas Punjwani, was summoned by the Investigating Officer on 7 September 2013 at Shahapur Police Station. In his presence, the victim's clothes—pair of jeans, shirt, knicker, bra and a white sanitary napkin—were seized (Exhibit 49)., Later, on 11 September 2013, Bharat Punjwani was again summoned. The appellant, present at the police station, voluntarily made a statement and led the police to a hut where his own clothes were found: an ash‑coloured full shirt and a black full pant. The appellant signed a memorandum panchanama in the presence of Bharat Punjwani and Manohar Choudhary (Exhibit 50). The police escorted the appellant in a Jeep (Registration No. MH‑04‑EP56) to Village Saavroli, crossed railway gate No. 67/B‑2, and walked about 240 metres to the hut., The hut was a temporary small structure covered with a plastic sheet, measuring approximately 7 ft × 11 ft × 14 ft. It contained two plastic cans of water, one of oil, a small tin of chilli powder, few utensils, bed sheets, mats and children's clothes, and a hearth made of three stones. Inside, the appellant produced a gray ash‑coloured full‑sleeve terricot shirt labelled \Ruff & Tuff\ and a black terricot full pant with embossed \METIC\ on the buttons. Two hair strands were found in the zip of the pant, along with faint hardened stains., The chemical analyzer report (Exhibit 154) listed samples forwarded for examination: blood in two vials, blood in two test tubes, pubic hair, nails and semen, all labelled Ashok Baban Mukane. DNA extracted from blood on the appellant's pant and hair from the pant matched the appellant's blood sample, indicating a male source. No female DNA was detected in the pubic hair and nail samples. Control samples of blood and semen from Ashok Baban Mukane were also analysed., No cogent evidence was presented by the prosecution to directly link the appellant to the serious injuries inflicted on the victim, including smothering, neck compression or head trauma. In normal circumstances, a conscious victim would have resisted, likely leaving scratches or bruises on the assailant. The victim was a young, able‑bodied girl who would not have easily succumbed to the appellant's advances without resistance.
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In the absence of any such marks on the person of the appellant, it would lead to drawing an inference that the appellant had committed rape when the victim was either unconscious or no longer alive. As already discussed hereinabove, Petitioner Witness 18 – Dr. Dattatray Bhore opined about several injuries, contusions and the probable weapon used by the assailant. The victim was subjected to continuous assault with a hard and blunt object as well as brushing against a rough surface and nagging., The ante‑mortem injuries noticed on the genital region are as follows: contusion is seen over the inner surface of the labia majora and minora on both sides, dark red in colour. Tearing of the hymen is seen at the 7 o’clock position on the right side with infiltration of blood in the margins of the remaining tags of the hymen. The injuries were probably caused by forceful intercourse., The most crucial evidence of the Directorate of Forensic Science Laboratory, vide Exhibit 20, in respect of Deoxyribonucleic Acid extracted from the blood samples of the victim is as follows: Report – The Deoxyribonucleic Acid extracted from the vaginal swab of the victim in Forensic Science Laboratory, Maharashtra Case No. DNA‑1090/13 and blood samples of the victim and ex‑1 Ashok Baban Mukane in Forensic Science Laboratory, Maharashtra Case No. DNA‑1077/13 was typed at 15 Short Tandem Repeat loci and gender‑specific Amelogenin locus using Polymerase Chain Reaction amplification technique. No male Deoxyribonucleic Acid is detected in ex‑2 pubic hair of the victim in Forensic Science Laboratory, Maharashtra Case No. DNA‑1091/13, ex‑1 nail clippings of the victim in Forensic Science Laboratory, Maharashtra Case No. DNA‑1092/13, ex‑2 pubic hair, ex‑3 finger nail clipping, ex‑4 toe nail of the victim in Forensic Science Laboratory, Maharashtra. Interpretation: (1) One of the mixed Deoxyribonucleic Acid profiles of the vaginal swab of the victim in Case No. DNA‑1090/13 and the blood sample of the victim is identical and from the same source of female origin. Deoxyribonucleic Acid profiles matched with the maternal and paternal alleles in the source of blood. (2) One of the mixed Deoxyribonucleic Acid profiles of the vaginal swab of the victim in Case No. DNA‑1090/13 and the blood sample of Ashok Baban Mukane in Case No. DNA‑1077/13 is identical and from the same source of male origin. Deoxyribonucleic Acid profiles matched with the maternal and paternal alleles in the source of blood. (3) Two control male Deoxyribonucleic Acid profiles are obtained from the vaginal swab of the victim., A Single Judge of the Honourable High Court in the case of Reghuvir Desai v. State, while emphasizing the importance of Deoxyribonucleic Acid test and its worth in pinpointing with mathematical accuracy observed: 'Deoxyribonucleic Acid (DNA) is found specially in cell nuclei which are the foundation of heredity. DNA is the genetic blueprint for life and is virtually contained in every cell. No two persons, except identical twins, have ever had identical DNA. DNA testing can make a virtually positive identification when the two samples match. It exonerates the innocent and helps to convict the guilty.' (See page 249 of Jhala and Raju's Medical Jurisprudence, Sixth Edition). The DNA testing hits the nail on the head of the accused and is the last and clinching piece of evidence which shows that it is the accused and the accused alone who committed the rape on the victim. Needless to add that the DNA report had hit the nail on the head of the appellant in view of its clinching nature., Petitioner Witness 20 – Dr. Trupti Mukund Rokade collected the blood sample, pubic hair, nail clippings and semen samples for Deoxyribonucleic Acid analysis of the appellant on 13 September 2013 when she was attached to Civil Hospital Thane as Medical Officer. She testified that the appellant was found capable of doing sexual intercourse. She issued a certificate to that effect, which is Exhibit 107. In cross‑examination by the defence, it was testified that the samples were given to a police officer who had brought the sample collection kit. The appellant, in his statement under Section 313 of the Code of Criminal Procedure, while answering Question No. 20, clearly admitted that his blood sample was collected for Deoxyribonucleic Acid test., Petitioner Witness 12 – Smt. Kamini Patel, Lady Police Constable, along with police staff, went to the spot on 6 September 2013 at 10:30 a.m. As per the directions of the Investigating Officer, she assisted in drawing the spot panchanama and also accompanied the dead body when it was shifted to Sub‑District Hospital, Shahapur for inquest and thereafter to J.J. Hospital. Clothes on the person of the victim were removed and given into her custody. She testified that the Medical Officer had collected the nail clipping and pubic hair of the dead body and handed them over to her., Petitioner Witness 14 – Pandharinath Pandurang Patil, then Revenue Circle Officer attached to Khardi Revenue Circle, at the request of the Investigating Officer visited the spot of the incident on 7 September 2013 and drew the sketch map, which is Exhibit 76. The sketch map gives an idea of the exact location where the dead body of the victim was lying between the railway track and the footway., Petitioner Witness 22 – Vijay Sadashiv Patil was posted as Assistant Police Inspector at Shahapur at the relevant time. He was in the team of the Investigating Officer and visited the spot. He drew a rough sketch map of the scene of occurrence and directed the photographer to take photographs. The rough sketch map, Exhibit 114, also shows the topography of the scene, which appears to be abutting the railway track and surrounded by grass. There is no material difference between Exhibit 76 and Exhibit 114., The prosecution has succeeded in establishing a nexus between the appellant and the act of rape upon the victim in view of the discussion made hereinabove as well as conclusive evidence in the form of Deoxyribonucleic Acid profile. Petitioner Witness 18 – Dr. Dattatray Bhore reiterated that while committing forcible sexual intercourse, contusions in the labia majora and minora over internal and external surfaces are to be expected. He reaffirmed that from the DNA report it has been confirmed that the appellant performed forcible sexual intercourse with the deceased victim., We must say that the Investigating Officer conducted the investigation of the murder of the victim in a most casual and perfunctory manner. Petitioner Witness 24 – Sunil Wadke, the Investigating Officer, testified that on 10 September 2013, at about 8:00 p.m., the appellant was found loitering in a suspicious condition beneath Asangaon Fly‑Over Bridge on the railway track and was apprehended. He disclosed his name as Ashok Baban Mukane. The evidence reveals that during a discreet inquiry the appellant confessed that he had committed a crime., Confession to a police officer is inadmissible in evidence unless it is made in the immediate presence of a magistrate; therefore, the said confession is not admissible. Investigating Officer Petitioner Witness 24, Sunil Wadke, ought to have immediately taken the appellant for medical examination to ascertain whether there were any resistance marks, bruises or abrasions on his person. It appears that there were no external injuries on the appellant when examined on 13 September 2013 by Petitioner Witness 20 – Dr. Trupti Rokade, who obtained the blood, semen, nail clipping and pubic hair of the appellant., The learned Additional Sessions Judge erred in holding the appellant guilty of the offence of murder of the victim without convincing and satisfactory evidence on record. In normal circumstances one may presume that due to resistance from the victim while attempting to commit rape, the appellant might have smothered her face with a bag or throttled her neck resulting in death. However, in the absence of any marks or bruises or abrasions on the appellant, it is difficult to reach such a conclusion. Moreover, the Investigating Officer failed to produce the hard and blunt object alleged to have been used in giving blows over the victim’s head., The injuries on the scalp described in the autopsy report are so grave and severe that they would not have been possible without the use of a hard and blunt object with full force. Had the victim been smothered with the bag alleged by the prosecution, there would have been evidence such as saliva or other liquid on it, which is absent on record. Under such circumstances, we find it difficult to hold that the prosecution has established any nexus between the death of the victim and the appellant., Petitioner Witness 25 – Anupkumar Nivruti Shinde, Senior Clerk in the institution where the victim was pursuing her studies, testified that the victim was a student of Mechanical Machine Tools and Mechanical Trade, a two‑year course with training hours from 7:30 a.m. to 3:00 p.m. He produced a muster roll extract for the period 1 August 2013 to 6 September 2013. It was proved that on 5 September 2013, the date of the incident, the victim attended the college up to 3:00 p.m. This witness was not cross‑examined by the defence. The victim’s last location, as noticed from her mobile and tower location, was near the spot as per the evidence of Petitioner Witness 22 – Vijay Sadashiv Patil. The SIM card seized from the spot belonged to Tata Docomo, number 9225396130, registered in the name of Petitioner Witness 1 – mother of the victim., Call detail record indicated that on 5 September 2013 at about 16:54:34 the location of the deceased was at Asangaon Railway Station. Apart from the appellant, the Investigating Officer nabbed three suspects – Shahid Shaikh, Prasad and Balu Pawar. Their blood samples were collected for Deoxyribonucleic Acid analysis. Petitioner Witness 16 – Dr. Mahendra Kendre examined suspect Balu Pawar on 4 October 2013 when he was produced before him by Shahapur Police Station with a requisition for collection of his blood sample for DNA. The blood sample was collected and handed over to the concerned police personnel. The defence declined to cross‑examine this witness. Petitioner Witness 17 – Dr. Mamta Alaspurkar examined suspects Shahid and Prasad on 3 October 2013, collected their blood samples for DNA profiling and handed them over to the police. After analysis by the Chemical Analyzer of the Forensic Science Laboratory, their DNA profiles did not match that of the victim., As such, the prosecution has succeeded in establishing that it was none other than the appellant who committed rape upon the victim. The three suspects were interrogated and nabbed by the Investigating Officer as they were found conversing with the victim through their mobile handsets. Except for the conversation, nothing incriminating was found. Medical evidence ruled out any complicity on their part, and they have been allowed to go free., As already held in a series of decisions, whenever a case is based on circumstantial evidence, the Court must find that the circumstances relied upon by the prosecution are established by satisfactory, cogent, clear and convincing evidence and that they exclude any other hypothesis except that the appellant is guilty of the offence with which he is charged. Here, from the overall evidence on record and the discussion, the prosecution has established with clear and cogent evidence a sole hypothesis that it was the appellant who committed rape upon the victim., While hearing the appellant on the point of sentence, an affidavit dated 8 December 2021 was produced. Relevant portions read: 'I say that I am innocent and have been falsely implicated in the offence by the investigating officer, Mr. Police Inspector Sunil Wadke. At that time my wife was detained and arrested by Mr. Wadke. My confession statement was forcefully recorded by the Investigating Officer. On 7 September 2013 at about 3:00 p.m. I was called to Shahapur Police Station on the pretext of inquiry. At about 7:30 p.m. I was allowed to go home and immediately my wife Bharati was taken to the Police Station and released at about 10:00 p.m. Shahid, son of Ramzan Shaikh, was called to the Police Station on the same day. Ramzan Shaikh, a well‑known contractor, came to the Police Station and took Shahid away. On 8 September 2013 at 8:00 a.m., while on my way to the vegetable market near Asangaon Bridge, officers from Shahapur Police Station caught me and took me to the Police Station. A police officer, Mr. Ganpatrao Pingle, slapped me. I was assaulted by four to five police officers including Police Inspector Wadke and Prashant Waghunde. Police Inspector Wadke kept some money on the table and offered me to confess the offence, which I denied. I was forcefully given liquor to drink. The officers offered me lakhs of rupees if I confessed and assured that they would maintain my wife and children; I denied the offer. Police Inspector Wadke strictly asked me to accept the offer or else I would have to pay them. I informed them that I have a family and can maintain them myself. They then called my wife Bharati to the Police Station. In front of my wife I was assaulted throughout the night of 8 September 2013. Police also threatened me that if I refused to confess they would implicate my wife as an accused. On 9 September 2013 I was unable to stand due to assault on my legs. I was given electric shock by Police Inspector Wadke and one constable to force a confession. My wife placed her dupatta on my legs in lock‑up. I was told that my children were standing outside the Police Station. While in the Police Station my semen samples were forcibly collected. On 11 September 2013 I was produced before the Honourable Magistrate Court. Police Inspector Wadke threatened me that if I disclosed the date of arrest and assault in Court he would kill me by shooting me and also kill my wife. Due to this crucial situation I could not decide whether to save myself or my family, so I remained silent. My statements were recorded forcefully. During my entire remand period my wife was kept in the Police Station. The Investigating Officer also asked me to confess to theft and sale of mobile, which I could not. Due to the distorted mentality of the investigating officers and deliberate mistakes systematically committed in this matter to save the real culprits, the punishment given by the trial court has ruined the lives of my dependents and me.', At the outset, most of the contents of the affidavit filed only when the appellant was to be heard on the point of sentence are incorrect and misleading. Whenever the appellant was produced during the trial before the Additional Sessions Judge, he could have instructed his lawyer and brought these facts to the notice of the Hon'ble High Court. He could have stated everything during his statement under Section 313 of the Code of Criminal Procedure, which is a direct dialogue between the accused and the trial Court without any intervention of the advocate. The affidavit is silent as to why the appellant did not disclose the so‑called facts before the trial Court and therefore appears to be a false affidavit intended to garner sympathy and divert the Court’s attention. The affidavit mentions that on 7 September 2013 a person named Shahid, son of Ramzan Shaikh, a well‑known contractor, was present at the Police Station and later taken away by his father, but provides no clarity on the relevance. The falsity of the affidavit is apparent as, in his statement under Section 313, the appellant affirmed that his blood samples were collected for DNA test in the hospital at Shahapur, whereas in the affidavit he alleges that his semen samples were forcefully collected on 9 September 2013 at the Police Station, which is implausible., The falsity of his contention is also apparent from the evidence of Petitioner Witness 20 – Dr. Trupti Rokade, who testified that she collected blood samples, pubic hair, nail clipping and semen sample of the appellant for DNA on 13 September 2013. Thus there was no question of forcibly collecting his semen samples by the police on 9 September 2013. Further, according to Petitioner Witness 24 – Sunil Wadke, the appellant was arrested on 10 September 2013 at about 8:00 p.m. when he was found loitering in a suspicious condition beneath Asangaon Fly‑Over Bridge. This again falsifies his claim of semen collection on 9 September 2013. It is obvious that the appellant tried to gain undue advantage by alleging that the samples collected from his person, which were sealed and kept safely in the almirah of Petitioner Witness 24, Sunil Wadke, for three days, were later sent for chemical analysis through courier by Petitioner Witness 15 – Shridhar Korphade, Police Constable attached to Shahapur Police Station, vide Crime Report No. I181‑2013., Other recitals of his affidavit that he was offered money by Petitioner Witness 24 – Sunil Wadke, Police Inspector, which were kept on the table at the Police Station and he was asked to confess, are not credible. It is not clear what exact offer was alleged. From the recitals, it can be inferred that this is a fabricated story to obtain sympathy and to escape capital punishment., The fortiori of the entire discussion made hereinabove is that the prosecution has failed in establishing the charge of murder against the appellant; therefore, the findings and the sentence awarded need to be reversed by acquitting the appellant of the said charge. Interference in the impugned judgment of conviction and sentence is, therefore, warranted to that extent., However, since the prosecution has succeeded in establishing the charge of rape beyond all reasonable doubt, we do not intend to interfere with the finding arrived at by the learned Additional Sessions Judge. The appeal is partly allowed. The reference of the confirmation of death sentence submitted by the learned Additional Sessions Judge, Kalyan in Sessions Case No. 47 of 2014 under Section 366 of the Code of Criminal Procedure is answered in the negative. The conviction of the appellant under Section 302 of the Indian Penal Code is set aside and he stands acquitted of that offence. A fine amount of Rs 5,000/- be refunded if already paid by him. The conviction and sentence of the appellant under Section 376(1) of the Indian Penal Code with fine stands confirmed. As per an order of this Court dated 30 November 2021, the appellant was produced from Nagpur Central Prison on production warrant for hearing him on the point of sentence. He shall be sent back to Nagpur Central Prison for undergoing the remaining part of his substantive sentence. The District Legal Services Authority, Thane shall pay compensation to Petitioner Witness 1 – mother of the victim in the sum of Rs 5,00,000/- within six months from the date of receipt of this order. Order as regards disposal of muddemal property is maintained.
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Number K-13014/06/2023-US.I Government of India Ministry of Law and Justice Department of Justice (Appointments Division) Jaisalmer House, 26, Man Singh Road, New Delhi-110011, dated 23rd January 2024. In exercise of the power conferred by clause (1) of Article 217 of the Constitution of India, the President is pleased to appoint Shri Justice Abhay Ahuja, Additional Judge of the Bombay High Court, to be a Judge of that High Court with effect from the date he assumes charge of his office. Deputy Secretary to the Government of India, Narayan Prasad., To the Manager, Government of India Press, Mint Road, New Delhi. Number K-13014/06/2023-USI dated 23 January 2024., Copy to: Shri Justice Abhay Ahuja, Additional Judge of the Bombay High Court through the Registrar General, Bombay High Court, Mumbai; the Secretary to the Governor, Maharashtra, Mumbai; the Secretary to the Governor, Goa, Panaji; the Secretary to the Chief Minister, Maharashtra, Mumbai; the Secretary to the Chief Minister, Goa, Panaji; the Secretary to the Chief Justice, Bombay High Court, Mumbai; the Chief Secretary, Government of Maharashtra, Mumbai; the Chief Secretary, Government of Goa, Panaji; the Registrar General, Bombay High Court, Mumbai; the Accountant General, Maharashtra, Mumbai; the Accountant General, Goa, Panaji; the President's Secretariat, Chief Administrative Section, Rashtrapati Bhawan, New Delhi; the Principal Secretary to the Prime Minister, Prime Minister's Office, South Block, New Delhi; the Registrar (Confidential), Office of the Chief Justice of India, 7 Krishna Menon Marg, New Delhi; the Technical Director, MC, Department of Justice, with a request to upload on the website of the Department.
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Whereas, the Odisha High Court, with a view to encouraging young lawyers practicing in the District Courts including the outlying stations of the districts, has instituted an award named Lawyer of the Year Award; whereas a draft scheme approved by the Odisha High Court for the said award was circulated among all the Bar Associations of the districts through the concerned District Judges seeking their views and comments; whereas, upon consideration of such views and comments received from the Bar Associations and the District Judges, the Odisha High Court, in order to regulate the procedure of submission of applications, the manner of recommendation for such award and selection of the best lawyer from amongst the candidates, had notified the Promising Lawyer of the Year Award Scheme; and whereas the Odisha High Court has partially revised the said scheme and does hereby notify the following revised scheme., The scheme shall be called Lawyer of the Year – 2022 Award Scheme and it shall come into force from the date of its notification., The award shall be an annual award and shall be in the form of a collection of books worth ten thousand rupees, along with a certificate and a memento. The work of a lawyer for the entire calendar year from 1 January to 31 December shall be evaluated by the jury. For instance, for the year 2023, the work of the lawyer for the period 1 January 2022 to 31 December 2022 shall be evaluated. The award shall ordinarily be presented on Lawyers Day every year. In a given year, only one lawyer per district including the outlying stations shall be chosen by the jury for the award. The Odisha High Court shall announce every year the schedule and dates of inviting applications, the last date of receipt of the applications, the date of receiving the recommendations of the jury and the date of announcement of the award., The lawyer must be an enrolled member of the Odisha State Bar Council and a member of the local Bar Association. The lawyer must be a practicing lawyer either in a District Court or in any outlying station of that district. The age of the lawyer must not be less than thirty years and more than forty years. In an exceptional case, a lawyer below thirty years but not below twenty‑eight years may be considered, provided adequate justification is furnished by the jury in writing in support of such recommendation. The age of the lawyer shall be determined as on the first day of January of the year for which the award is given; for instance, for the year 2022 the age shall be determined as on 1 January 2022. A lawyer who has won the award in a particular year shall not be eligible for consideration for the award in the succeeding years. The lawyer must not be related in the first degree to any sitting judge of the Odisha High Court or any judicial officer in that district. A declaration to this effect shall be furnished by the lawyer along with the application in Form I annexed to the scheme. The lawyer shall furnish certificates from two local lawyers of not less than ten years of experience to be known as referees. The certificates of the referees for the award should be in separate letters, certifying in three short paragraphs in Form II annexed to the scheme the conduct, court etiquette, general reputation and integrity of the lawyer. The referee shall not be a current office bearer of the local Bar Association or related in the first degree to the lawyer. A referee shall not give a certificate for more than three applicants., The jury in every district shall comprise the District Judge, the Chief Judicial Magistrate and three senior members of the bar from the entire district including the outlying stations having experience of twenty years or more, to be nominated by the concerned District Judge. Preferably, one such senior member of the bar shall be a woman wherever available. If an applicant lawyer is related in the first degree to a member of the jury or has been his or her associate lawyer at any point of time, the said jury member shall not participate in the selection process for that applicant lawyer. The recommendation of the jury must be unanimous. The jury in a district shall recommend to the Odisha High Court one among those who qualify best in that particular district, including the outlying stations, for the award. For the purpose of qualifying, a candidate shall have to secure a minimum of fifty points. The jury may also gather inputs from a variety of sources for finalising its decision. Each jury member shall submit the evaluation in Form III annexed to the scheme., In order to qualify for the award, the following parameters shall be considered by the jury: the number of cases handled by the lawyer independently during the year; the number of such cases e‑filed by the lawyer during the year; the number of judgments or final orders in contested cases during the year handled independently by the lawyer; the lawyer should have conducted at least one trial in a civil or criminal case entirely by himself or herself during the year by appearing for any party, that is, plaintiff, defendant, accused, prosecution or complainant or victim. A trial shall be considered complete only when the final judgment or order is pronounced. The information in the above clauses shall be provided by the lawyer in Annexure A to Form I annexed to the scheme and shall be accompanied by self‑attested documents which shall be verified by the office of the District Judge. If any information provided in any of the forms annexed to this scheme is found to be false or incorrect at any point of time, it shall disqualify the lawyer for the award. The conduct, court etiquette, general reputation and integrity of the lawyer shall also be taken into account., It is possible that in a particular calendar year (1 January to 31 December) no lawyer from a particular district fulfills the above parameters. The award is not to be given for the sake of being given; it must be given only to a lawyer who truly satisfies all the above requirements., A committee of judges of the Odisha High Court constituted by the Chief Justice shall examine the recommendations of the jury in each district; the matter shall then be placed before the Chief Justice with the views of the committee. The announcement of the award will be made by the Chief Justice, whose decision shall be final., Name of the lawyer applicant; gender (male, female, third gender); Odisha State Bar Council enrollment number with date (a copy of the enrollment certificate shall be enclosed); local Bar Association membership number; date of birth (authenticated document shall be enclosed); address for correspondence. Number of cases handled independently by the applicant lawyer during the year; number of cases e‑filed by the applicant; number of judgments or final orders in contested cases during the year handled independently; number of trials (civil or criminal) conducted by the applicant lawyer by himself or herself during the year (the case numbers and courts' names shall be indicated in a separate format as Annexure A of this application). Self‑attested proof in support of the information supplied shall be enclosed. The applicant declares that the information furnished above is true to the best of his or her knowledge and further declares that he or she is not related in the first degree to any sitting judge of the Odisha High Court or any judicial officer in that district., Case details as per the information supplied at paragraph 11(a) of the application format: case number, name of the court in which cases were independently handled, name of the parties represented by the lawyer independently. Case details as per the information supplied at paragraph 11(b): case number, e‑filing number, name of the court, name of the parties represented by the lawyer independently. Case details as per the information supplied at paragraph 11(c): case number, name of the court, name of the parties represented by the lawyer independently, date of the final order or judgment in the contested cases. Case details as per the information supplied at paragraph 11(d): case number, name of the court in which the trial (civil or criminal) was conducted, name of the parties for whom the applicant was the lawyer, date of the final order or judgment in the contested cases., Three short paragraphs on the court etiquette, general reputation and integrity of the applicant lawyer shall be provided by each referee. The referee declares that he or she is not a current office bearer of the local Bar Association and is not related in the first degree to the applicant lawyer. Signature of the referee lawyer., Time schedule for Promising Lawyer of the Year 2022 Award: uploading of the scheme with appendices including the application form, certificate of the referee lawyers, dispatch by e‑mail of the evaluation sheet for the jury, checklists for the District Judges by 26 January 2023; last date for receipt of complete applications by the District Judges by 15 March 2023; last date for receipt by the Odisha High Court of the recommendation by the jury from the districts by 31 March 2023; announcement of awards on 22 April 2023; presentation of awards at Cuttack on 28 April 2023.
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Vide order dated 05th February, 2024, we had directed respondent Nos. 1 to 3 to remain present before the Supreme Court of India on 19th February, 2024 at 10:30 a.m. and answer as to why an action should not be taken against them for having committed contempt of the Supreme Court of India., The aforesaid order was passed in the background that on 11th May, 2023, when Civil Appeal No. 19839 of 2017 was listed before the Supreme Court of India, a statement made by Mr. Ravindra Kumar, learned senior counsel appearing for the appellants therein that in view of the increase in price, the Ghaziabad Development Authority (GDA) may not be in a position to pay the compensation, as directed by the High Court., On the basis of the said statement, the Supreme Court of India recorded that the GDA was free to release the land as it was not in a position to pay the compensation., After the aforesaid order was passed, an award came to be declared on 30th December, 2023., We had issued the order dated 05th February, 2024, directing personal presence of the contemners since we were, prima facie, of the view that passing of the award after making a statement before the Supreme Court of India that the land is not required, was to mislead the Supreme Court of India., We were also of the prima facie view that the award was passed on 30th December, 2023 after the contempt notice was issued by the Supreme Court of India on 08th December, 2023., Further, the fact that was noticed by us was that on 08th January, 2024, a statement was made by learned Advocate-on-Record appearing for respondent No.1 that the said respondent had taken steps for releasing the land., Today, when the matter is listed, Mr. Mukul Rohatgi, Mr. Siddharth Luthra and Mr. Ravindra Kumar, learned senior counsel appeared for respondent No.1 and Mr. Tushar Mehta, learned Solicitor General for India has put in appearance for the respondent State authorities., It is submitted that there had been certain miscommunications with regard to the instructions given by the Ghaziabad Development Authority to the learned counsel., It is projected that the statement dated 08th January, 2024 was made by the learned Advocate-on-Record on the basis of the incorrect instructions issued from the office of the Ghaziabad Development Authority., Mr. Mukul Rohatgi, learned senior counsel submitted that as a matter of fact, by passing an award, the petitioners have been granted relief which was prayed for before the High Court. It is submitted that as per the contention raised before the High Court, the petitioners were interested in getting compensation as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the Act, 2013) which came into force with effect from 01.01.2014, and the relief sought for has been granted as per the award dated 30th December, 2023., Mr. Mukul Rohatgi further submitted that initially the Ghaziabad Development Authority was under an erroneous belief that the land was a residential land and as such the compensation was determined to the tune of Rs. 407 crores., It was, however, subsequently realized that the land was not a residential land but was agricultural in nature and, therefore, the Ghaziabad Development Authority was in a position to pay the compensation. It was thus contended that the respondents have not violated any order of the Supreme Court of India and hence they deserve to be discharged from the contempt notice., Mr. Mukul Rohatgi, learned senior counsel, also tried to put across a gracious view of the authorities that it is the petitioners who have been benefited. He stated that had the land been acquired in the year 2004, the petitioners would have got compensation as per the old Act. It is only because the compensation is required to be paid as per the 2013 Act, they would be getting a handsome amount., Insofar as the statement made by learned Advocate-on-Record on 8th January, 2024 is concerned, it is quite possible that the said statement may have been made due to the lack of proper communication between respondent No.1 and the learned Advocate-on-Record. Hence learned Advocate-on-Record cannot be faulted for making such statement., However, we find that the statement made by Mr. Ravindra Kumar, learned senior counsel on 11th May, 2023 cannot be on the basis of any miscommunication between the parties. The record would clearly show that an affidavit was filed by Shri Raj Kumar Mittal working as Tehsildar, Ghaziabad Development Authority, Ghaziabad, Uttar Pradesh in Civil Appeal No. 19839 of 2017 on 19th December, 2017, stating therein that the land in question was not really needed., The affidavit further stated that the aforesaid decision was taken by the Ghaziabad Development Authority in its Board meeting and they had unanimously passed a resolution to that effect., The said position would also be fortified by the communication dated 11th July, 2017 addressed by the Additional District Collector (L.A.), Irrigation, Ghaziabad to Special Executive Officer, Ghaziabad Development Authority, requesting him to make available the amount on the basis of calculation sheet. The calculation sheet would show that the compensation payable was assessed to the tune of Rs. 407 crores., The header of the calculation sheet would also show that it is for Indirapuram Residential Scheme., E-converso, Mr. Dama Sheshadri Naidu, learned senior counsel, representing the petitioners urged that the award allegedly passed by the authorities on 30th December, 2023 is nothing but an eyewash and is in total disregard to the statement made before the Supreme Court of India. He urged that neither was any notice given to the petitioners before the issuance of the award nor were the mandatory provisions of the Act of 2013 which came into force with effect from 01.01.2014 followed and thus, the award is nothing but a nullity in the eyes of law. He rather contended that looking to the facts preceding the issuance of the award, it is apparent that the award has been passed in a clandestine manner by antedating the proceedings., Though, prima facie, we are not impressed with the submission of Mr. Mukul Rohatgi that this is all a comedy of errors, but since we are only dealing with the contempt petition, in such jurisdiction, the limited enquiry that would be permissible is to find out whether the respondents had deliberately or willfully acted in such a manner which would amount to the disobedience of the orders passed by the Supreme Court of India., Therefore, technically, though respondent No.1 and its authorities cannot be held to have acted in a manner which could be said to be committing contempt of the Supreme Court of India, there appears to be something more in the matter that meets the eye., From 2017, it required a period of almost seven years for the offices of the Ghaziabad Development Authority to wake up from their deep slumber and realize that the land was not a residential land but was an agricultural land., This argument on behalf of the State or its instrumentalities after holding the land of a citizen for a period of 20 years and then taking a plea that the land owners are getting benefited, is something unpalatable., Though the Right to Property is no more a Fundamental Right, still it is recognized as a Constitutional Right under Article 300A of the Constitution of India. Depriving a citizen of his Constitutional Right to use the land for 20 years and then showing graciousness by paying the compensation and beating drums that the State has been gracious, in our view, is unacceptable., The State is not doing charity by paying compensation to the citizen for acquisition of land., The real question that the competent authorities will have to consider is whether the land which is required for extension of Indirapuram Residential Scheme in the area of Ghaziabad would be considered as an agricultural land or not., However, since we find that technically there is no contempt in the matter, we leave all these questions open to be decided by the competent authorities at the appropriate stage., We do not propose to observe anything more than that. As pointed out by Mr. Mukul Rohatgi, learned senior counsel, the petitioners would be entitled to take out proceedings if they are aggrieved by the adequacy of the compensation., We only observe that taking into consideration that the land of the petitioners was under the sword of acquisition for almost two decades and that some part of the delay is also attributable to the Court inasmuch as the proceedings were pending for last so many years, the authorities or the Supreme Court of India, before whom the proceedings post award would be initiated, would take up the matter and decide the same expeditiously., We also clarify that we are not adjudicating on the validity of the award. The petitioners would always be at liberty to raise all permissible challenges to the award and associated proceedings in accordance with law, which would be considered on its own merits., We further direct that if any proceedings are initiated by the petitioners either challenging the award or challenging the adequacy of the compensation, the same shall be decided within a period of six months from the date of the institution., It is further directed that if the Ghaziabad Development Authority or its officers make an attempt to prolong the proceedings, the Supreme Court of India or the authorities would be free to draw an adverse inference and decide the proceedings within the aforesaid period., In view of the above, the contempt petition is disposed of., Pending applications, if any, stand disposed of., New Delhi, 19 February 2024., Date: 19-02-2024., These matters were called on for hearing today., For Petitioners: Mr. Dama Seshadri Naidu, Senior Advocate; Mr. Aman Vachher, Advocate; Mr. Anil Gupta, Advocate; Mr. Dhiraj, Advocate; Mr. Ashutosh Dubey, Advocate; Mrs. Anshu Vachher, Advocate; Ms. Abhiti Vachher, Advocate; Mr. Akshat Vachher, Advocate; Mr. Amit Kumar, Advocate; Ms. Anisha Mahajan, Advocate; M/S. Vachher And Agrud, Advocate-on-Record., For Respondents: Mr. Mukul Rohatgi, Senior Advocate; Mr. Siddharth Luthra, Senior Advocate; Mr. Ravindra Kumar, Senior Advocate; Ms. Sakshi Kakkar, Advocate-on-Record; Ms. Sakshi Singh, Advocate; Ms. Ranjeeta Rohtagi, Advocate; Mr. Shaurya Sahay, Advocate-on-Record; Mr. Tushar Mehta, Additional Solicitor General, Advocate; Mr. Shaurya Sahay, Advocate., Upon hearing the counsel the Supreme Court of India made the following: The contempt petition is disposed of in terms of the signed order. Pending applications, if any, stand disposed of.
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The Collegium of the Supreme Court has recommended the names of three Judicial Officers of the Delhi Higher Judiciary, namely Shri Girish Kathpalia, Shri Dharmesh Sharma, and Shri Manoj Jain, as Judges of the High Court of Delhi in the following terms: On 22 December 2022, the Chief Justice of the High Court of Delhi in consultation with his two senior‑most colleagues recommended the elevation of Judicial Officers as Judges of the High Court of Delhi. The file was received in the Supreme Court from the Department of Justice on 07 April 2023. In order to ascertain the fitness and suitability of the above‑named persons for elevation to the High Court, in terms of the Memorandum of Procedure, Judges of the Supreme Court conversant with the affairs of the High Court of Delhi were consulted., For the purpose of assessing the merit and suitability of the above‑named Judicial Officers for elevation to the High Court of Delhi, we have scrutinized and evaluated the material placed on record including the observations made by the Department of Justice and certain complaints/representations placed before us., Shri Girish Kathpalia: The Judgment Evaluation Committee has graded judgments authored by him as outstanding. He is the senior‑most member of the Delhi Higher Judicial Service. The Intelligence Bureau has reported that he has a good personal and professional image and that nothing adverse has come to notice against his integrity. We have considered the opinion of consultee Judges with regard to his suitability for elevation. In view of the above, the Collegium is of the considered opinion that Shri Girish Kathpalia is fit and suitable for appointment as a Judge of the High Court of Delhi., Shri Dharmesh Sharma: We have considered the inputs provided by the Intelligence Bureau. The inputs of the Intelligence Bureau are evaluated in conjunction with the opinion of consultee judges who, with their long years of experience in the High Court of Delhi, observed the conduct and work performance of the officer. The Judgment Evaluation Committee has graded judgments authored by him as outstanding. In view of the above and on an overall consideration of the proposal for his elevation, the Collegium is of the considered opinion that Shri Dharmesh Sharma is suitable for appointment as a Judge of the High Court of Delhi., Shri Manoj Jain: The Judgment Evaluation Committee has graded judgments authored by him as outstanding. We have considered the opinion of consultee Judges with regard to his suitability for elevation. The Intelligence Bureau has reported that he has a good personal and professional image and that nothing adverse has come to notice against his integrity. In view of the above, the Collegium is of the considered opinion that Shri Manoj Jain is suitable for appointment as a Judge of the High Court of Delhi., While considering the above proposal, the Collegium has also taken note of the fact that the proposal involves non‑recommendation of a senior Judicial Officer. In this regard, we have gone through Minutes of the High Court Collegium, which has duly recorded reasons for not recommending the name of the Judicial Officer. We are in agreement with the justification given by the High Court Collegium in its Minutes for not recommending the senior Judicial Officer. In view of the above, the Collegium resolves to recommend that Shri Girish Kathpalia, Shri Dharmesh Sharma, and Shri Manoj Jain, Judicial Officers, be appointed as Judges of the High Court of Delhi. Their inter se seniority be fixed as per the existing practice.
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Harishchandra Sitaram Khanorkar, aged 55 years, residing at Plot No.9, in front of the house of Bodare, Chakrapani Nagar, Nagpur (presently at Central Jail, Nagpur), State of Maharashtra, was represented by Shri A.S. Dhore, Advocate, together with Shri Sheikh Sohailuddin, Advocate and Shri Yash Bangale, Advocate. Shri M.J. Khan, Additional Public Prosecutor, represented the respondent State. The matter was heard finally with the consent of learned counsel for the parties., The appellant herein is convicted for the offences punishable under Section 376(2)(f)(j)(i)(n) of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.25,000/-; in default, to suffer simple imprisonment for a period of one year., The prosecution case in brief is as follows: On 02/12/2013, the mother of the victim lodged a report at Hudkeshwar Police Station, Nagpur, alleging that the victim was her daughter. The father of the victim was not alive and the informant (the mother) had performed a second marriage. The accused, Harishchandra Khanorkar, was treated by the informant as a brother. The informant was working as a domestic servant in the house of the accused. The victim was staying with the accused in his family, which consisted of his daughter and son. The informant further alleged that after she performed a second marriage, the victim continued to stay with the accused. The accused admitted that the victim was enrolled in school and was studying in the 11th standard. On 28/11/2013, the victim approached the informant at her house complaining of abdominal pain. The informant called the accused and took the victim to the hospital, where it was revealed that the victim was seven months pregnant. The victim disclosed that when she was in the 9th standard, the accused forcibly committed sexual intercourse with her, touching her body, and repeated the act three to four times, resulting in conception. Subsequently, the victim delivered a child, which was given to Bal Kalyan Samiti. The informant lodged a report at Hudkeshwar Police Station on 02/12/2013. On the basis of the report, police registered the offence against the accused under Crime No. 370/2013., After registration of the crime, the investigating officer visited the alleged spot of the incident and drew a spot panchnama. He collected blood samples of the victim and her child in a deoxyribonucleic acid kit and the blood samples of the accused in a deoxyribonucleic acid kit and forwarded them for DNA examination. He also collected the medical report of the victim and, after completion of investigation, submitted a charge‑sheet against the accused. The learned trial court framed the charge vide Exhibit 6, recorded the evidence, found that the prosecution had proved the charges, and convicted the accused as mentioned hereinbefore., Heard Shri Dhore, learned counsel for the appellant., The appellant submitted that the accused is falsely implicated in the alleged offence. The prosecution has not proved the age of the victim. The victim narrated before the medical officer that she was in a love relationship with a person named Rajan, and the pregnancy might be the result of that relationship. The appellant argued that only on the basis of DNA evidence, the accused cannot be held guilty for the offence punishable under Section 376(2)(f)(j)(i)(n) of the Indian Penal Code. The learned Additional Public Prosecutor submitted that the victim’s evidence, corroborated by medical evidence and DNA report, sufficiently shows that the accused committed sexual intercourse with the victim, resulting in her pregnancy. The appellant is not entitled to any leniency., Children are the greatest gift of humanity and sexual assault on children is the most heinous crime. To substantiate the charge, the prosecution examined eight witnesses: (i) PW‑1 Victim (Exhibit 59) (name not mentioned due to the mandate of Section 228‑A of the Indian Penal Code); (ii) PW‑2 Mother of the victim (Exhibit 64); (iii) PW‑3 Dr. Mangala Marotrao Sonak (Exhibit 67), Medical Officer who examined the victim; (iv) PW‑4 Kiran son of Vasantrao Chougale (Exhibit 77), Investigating Officer; (v) PW‑5 Amulya Amol Pande (Exhibit 91), Chemical Analyzer; (vi) PW‑6 Yuvraj Prabhakarrao Khadse (Exhibit 109), Head Master; (vii) PW‑7 Dr. Pratik Sahadeo Gilbe (Exhibit 114), Medical Officer; (viii) PW‑8 Dr. Sushil Pundlikrao Vairagade (Exhibit 116), Medical Officer. Besides oral evidence, the prosecution relied upon various documents such as the statement of the victim under Section 164 of the Criminal Procedure Code (Exhibit 55), FIR (Exhibit 65), medical certificate (Exhibit 68), spot panchnama (Exhibit 78), letters to medical officer (Exhibit 79), letters to the Court of Assistant (Exhibit 80), identification forms (Exhibits 82 to 84), letters to the Court of Assistant (Exhibit 85), letter to the Chief Medical Officer (Exhibit 87), search and seizure memo (Exhibit 88), DNA report (Exhibit 92), school leaving certificate (Exhibit 111), school admission extract (Exhibit 112), medical certificate of the accused (Exhibit 115), letter by Dr. Vairagade to police (Exhibit 117) and sonography report (Exhibit 118)., According to the prosecution, the victim was a minor at the time of the incident. To prove the victim’s age, the prosecution relied mainly on the evidence of PW‑1 (victim) and PW‑2 (mother). PW‑1 stated her birth date as 27/12/1997 and that she was studying in the 9th standard when the alleged incident took place. PW‑2 testified that at the time of the incident her daughter was studying in the 10th standard at Dadasaheb Khadse High School and had been residing at the accused’s house since the 6th standard. To determine the exact age, the prosecution examined PW‑6 Yuvraj Prabhakarrao Khadse, Head Master of Dadasaheb Khadse High School, Nagpur. He testified that the victim was admitted in the 8th standard on 25/06/2010 and left the school on 15/06/2013. The birth date recorded in the school was based on the transfer certificate from Swargiya Shrawanji Watkar Uccha Prathamik Shala, Hudkeshwar Road, Nagpur. He produced the transfer certificate copy (Exhibit 110), school admission extract (Exhibit 111) and the admission register extract (Exhibit 112)., The accused challenged the birth date of the victim. During cross‑examination, the victim denied that she had disclosed a false birth date. The mother had not stated the victim’s birth date. The material evidence is the head master’s testimony. It was elicited that the head master had not verified the correctness of the birth date, as it was taken from the transfer certificate, and he had not personally entered the entry. The prosecution did not produce a matriculation certificate or the school record wherein the victim was first admitted, which is material evidence., Learned counsel for the appellant relied on the judgments of Umesh Chandra v. State of Rajasthan (AIR 1982 SC 1057), Jarnail Singh v. State of Haryana (2013 All India Reporter (Criminal) 2946), Mahadeo s/o Kerba Maske v. State of Maharashtra and another (2013) 14 SCC 637., The Honourable Apex Court, in Jarnail Singh v. State of Haryana (2013 All India Reporter (Criminal) 2946), observed that although Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 is strictly applicable to determine the age of a child in conflict with law, the provision should also be the basis for determining the age of a child who is a victim of a crime. The manner of determining age conclusively is expressed in Sub‑rule 3 of Rule 12. Under this provision, the age of the child is ascertained by adopting the first available basis among the options postulated in Rule 12(3). If an option is expressed in a preceding clause, it has overriding effect over a subsequent clause. In the hierarchy, a matriculation (or equivalent) certificate is the highest‑rated option; if unavailable, the date of birth entered in the first school attended is considered final and conclusive; if that is unavailable, the birth certificate issued by the corporation, municipal authority or panchayat is considered; and only in the absence of all these, medical opinion may be relied upon., Thus, in the present case, the prosecution has not proved the victim’s age by producing relevant documents or evidence on record., Regarding the charge under Section 376(2)(f)(j)(i)(n) of the Indian Penal Code, the prosecution’s reliance is on the evidence of PW‑1 (victim) and the scientific DNA report. The facts show that the victim had no father and her mother had performed a second marriage, so she was residing with the accused. The accused, who was of the age of her father, allegedly forced sexual assault, resulting in pregnancy and delivery at a tender age. The victim stated that she resided with the accused, who she called ‘Mama’. When she was in the 9th standard, the accused forcibly had sexual intercourse with her on three to four occasions. She later experienced vomiting, and the accused took her to Vairagade Hospital at Manewada, where Dr. Vairagade disclosed a seven‑month pregnancy. The victim could not afford an abortion and delivered a child in the last week of November 2013. Her mother lodged the report and the child was handed over to the Child Welfare Committee. During cross‑examination, the defence attempted to suggest a love relationship with a boy named Rajan, which the victim denied. No other incriminating evidence emerged., The evidence of PW‑2 (mother) is limited to confirming that her daughter was residing with the accused, became pregnant, and delivered a male child, and that she lodged the report (Exhibit 65). PW‑2 also denied that the victim had a love affair with Rajan., To corroborate the victim’s version, the prosecution relied on medical evidence. PW‑3 Dr. Mangala Marotrao Sonak testified that the victim was referred to her for medical examination and narrated a history of a relationship with a boy named Rajan for one and a half years, resulting in conception and delivery on 28/11/2013. On examination, she found milk secretion in the breast and a palpable uterus, and issued a medical certificate (Exhibit 68). She also collected the victim’s blood samples and handed them to the police. During cross‑examination, it was elicited that the victim gave her history without pressure., PW‑7 Dr. Pratik Sahadeo Gilbe examined the accused on 09/12/2013. The accused informed him that the incidents took place from 2008 to 2013 at his residence. Dr. Gilbe opined that there was nothing to suggest that the accused was incapable of performing sexual intercourse and issued a medical certificate., PW‑8 Dr. Sushil Pundlikrao Vairagade initially examined the victim. He testified that on 28/11/2013 a girl was brought to his hospital with abdominal pain and distension, accompanied by a man who was under the influence of alcohol and claimed to be the girl’s maternal uncle. The girl was in agony, unable to walk, pregnant, and in labour pain, and delivered a male child within 10‑15 minutes. The girl appeared to be 10‑12 years old. No relative was present, and the man left without speaking. Dr. Vairagade informed the police about the incident. Cross‑examination did not produce incriminating evidence., PW‑4 Kiran, son of Vasantrao Chougale, the investigating officer, testified that he obtained the DNA kit from the forensic lab, forwarded the victim’s and child’s blood samples, and also obtained the accused’s blood samples in sealed condition, forwarding the kits to the chemical analyzer along with letter Exhibit 85 and invoice Exhibit 86. He received the DNA report and filed it with the charge‑sheet., The prime evidence on which the prosecution relied is the scientific DNA report. PW‑5 Amulya Amol Pande, the assistant chemical analyzer, stated that he is an expert in DNA profile analysis, having conducted analysis in more than 800 cases and undergone special training. The accuracy of DNA results is claimed to be 100 %. On 05/12/2013, he received the requisition letter and DNA kits, and on 06/12/2013 the sealed kits were received in his office along with identification forms (Exhibits 82 to 84). Sixteen short tandem repeat loci were examined using the polymerase chain reaction technique. The report concluded that the victim and the accused are the biological parents of the baby (Exhibit 92). He affirmed the accuracy of the report., During cross‑examination of the DNA analyst, attempts were made to suggest that he had not received special training. He acknowledged that a person with an M.Sc. in Chemistry can perform DNA tests and that special training is required. He described the method, including extraction of DNA by a robotic method, amplification by polymerase chain reaction, electrophoresis on a genetic analyzer, and preparation of the report. He denied that his health condition affected the analysis and maintained that the DNA test is reliable., After appreciation of the evidence, the prosecution case revolves around the victim’s testimony, medical evidence, and the DNA report. The victim categorically stated that she was residing in the accused’s house when the sexual assault occurred. At the time of framing the charge, the accused was 55 years old and the victim was about 19‑20 years old, a difference of more than 30 years. The victim explained that after the marriage of the accused’s daughter, she was subjected to sexual intercourse, became pregnant, and delivered a male child. The mother of the victim worked as a domestic helper in the accused’s house, which led to the acquaintance. The victim’s father had died early, and her mother’s second marriage led her to take shelter with the accused, calling him ‘Mama’. The accused did not treat her as a daughter but assaulted her. The defence did not deny her presence in his house or the forceful nature of the intercourse., The victim’s evidence is corroborated by PW‑2 (mother) regarding the pregnancy and delivery, and by medical officers PW‑3 and PW‑8. PW‑8 identified the accused as the man who brought the victim to the hospital and left her in agony. The defence has not denied that the accused took the victim to the hospital., The DNA analysis by PW‑5 further corroborates the victim’s version, concluding that the accused and the victim are the biological parents of the child. The procedure, including sealed sample handling and identification forms, was documented, and no evidence of tampering was produced., The evidence shows that a young girl was subjected to sexual intercourse, resulting in pregnancy and delivery. The accused has not denied the allegations, and no evidence was presented to show false implication. The victim’s testimony, supported by scientific evidence, is sufficient to establish penetrative sexual assault. Sexual activity with an immature girl has a traumatic effect that persists throughout her life., It is also supported by scientific evidence. Technological advancement in forensic science, particularly DNA testing, has the ability to exonerate the wrongly convicted and identify the guilty, providing powerful new evidence for the criminal justice system., In Mukesh and another v. State (NCT of Delhi) (2017 All India Reporter (Criminal) 2448), the Honourable Apex Court emphasized the importance of DNA evidence, noting that after the amendment of the Criminal Procedure Code by insertion of Section 53A (Act 25 of 2005), DNA profiling has become part of the statutory scheme, and Section 164A requires medical examination of the victim of rape for DNA profiling., Thus, the totality of circumstances indicates that the victim had no motive to falsely implicate the accused, and her evidence, corroborated by medical and scientific evidence, shows that she was sexually assaulted by the accused., Learned Advocate Shri Dhore submitted that the punishment awarded by the trial court is the maximum punishment. He noted that the accused is more than 55 years of age. Although the defence of consent is unavailable, the fact remains that prior to lodging the report the victim never complained and continued to stay with him. Considering that the accused maintained and brought up the victim when her parents left her, the punishment should be reduced., We have given thoughtful consideration to the submissions made by the learned advocate for the appellant. The Protection of Children from Sexual Offences Act, 2012 is enacted with the specific object that the law should operate in a manner that the best interest and welfare of the child are paramount at every stage, to ensure healthy physical, emotional, intellectual, and social development. The object is also that a person with a culpable state of mind should be punished for harassing the child and to keep society child‑friendly. From the evidence on record, the accused is 55 years old whereas the victim was only 16 years of age at the time of lodging the report. The first instance of sexual assault occurred when she was in the 9th standard. The evidence shows that the accused had physical relations with her on three to four occasions, resulting in pregnancy and delivery at the tender age of 16. The victim carried the pregnancy at a tender age due to the accused’s actions. Dr. Vairagade’s evidence reveals that the person who brought the victim to the hospital was under the influence of liquor, the victim was in agony, and she delivered a child within 10‑15 minutes. The accused left the victim in the hospital in labour pain and did not take care of her thereafter. Dr. Vairagade identified the accused as the person who brought her to the hospital and left her there., The prosecution evidence further discloses that the victim, who took shelter at the accused’s house because her father was not alive and her mother had performed a second marriage, trusted the accused, and that trust was betrayed. The accused had a moral obligation to protect the child, but he destroyed her future life, causing serious psychological and physical harm. Rape is not merely a physical assault; it is often destructive to the whole personality of the victim, and such allegations must be dealt with utmost sensitivity., The Honourable Apex Court, in Ravi s/o Ashok Ghumare v. State of Maharashtra (2019 All India Reporter (Criminal) 4873 (Supreme Court)), held that the object and purpose of determining the quantum of sentence must be society‑centric, without being influenced by a judge’s personal views, as society is the biggest stakeholder in the administration of criminal justice. Society has a fundamental right to live free from psycho‑fear, threat, danger or insecurity at the hands of anti‑social elements. The courts must apply the doctrine of proportionality and impose suitable and deterrent punishment that commensurates with the gravity of the offence. The sentencing policy needs to strike a balance between deterrent effect and complete reformation for integration of the offender into civil society. The criminal law is viewed on a dimensional plane wherein the courts adjudicate between the accused and the State, while the victim, the de facto sufferer of a crime, has no say in the adjudicatory process and is made to sit outside the court as a mute spectator.
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The ethos of criminal justice dispensation to prevent and punish crime would surreptitiously turn its back on the victim of such crime whose cries went unheard for centuries in the long corridors of the conventional apparatus. A few limited rights, including the right to participate in the trial, have now been bestowed on a victim in India by Act Number 5 of 2009 whereby some pragmatic changes in the Criminal Procedure Code have been made., Considering the above observation of the Supreme Court of India, the facts of the present case are examined and reveal that the small girl was subjected to sexual assault by an adult man and was forced into motherhood at a very tender age when she was unable to bear the burden. The subsequent conduct of the accused shows that he left the victim girl in the hospital in pain and mental agony and she delivered the child there without support from anyone., The Nagpur High Court had considered all these aspects and rightly concluded to award the punishment of life imprisonment. The Nagpur High Court observed that the accused, who was in a position of trust and dominance over the victim, took undue advantage of these circumstances and committed a heinous crime to fulfil his lust. The victim underwent tremendous mental trauma by delivering a child and will have to lead the remaining life with a permanent scar as well as psychological impact. The Nagpur High Court further observed that she is a shelterless child, jeopardising future prospects of enjoying life; therefore, such cases should be dealt with iron hands and maximum punishment needs to be awarded. Thus, the Nagpur High Court assigned reasons while awarding the maximum punishment., We do not find any reason to interfere with the impugned judgment even on the point of quantum of sentence. Considering all these factors, no case for acquittal as well as for lesser punishment is made out. The appeal is devoid of merits., While dismissing the appeal, the question of rehabilitation of a victim as she is shelterless is to be addressed. Admittedly, the father of the victim girl is not alive, the mother is residing with her second husband and keeping the victim without any shelter would again place her on the street; therefore, we direct the Secretary, High Court Legal Service Sub‑Committee, Nagpur to take necessary steps regarding the rehabilitation of the victim girl. Until then, the victim girl shall be kept in the Priyadarshini Shaskiya Mahila Vasatigruha, Nagpur., Hence we proceed to pass the following order: The Criminal Appeal is dismissed. The Secretary, High Court Legal Service Sub‑Committee, Nagpur shall take necessary steps regarding the rehabilitation of the victim girl. Until then, the victim girl shall be kept in the Priyadarshini Shaskiya Mahila Vasatigruha, Nagpur. A copy of the judgment shall be forwarded to the Secretary, High Court Legal Service Sub‑Committee, Nagpur. Rule is made absolute in the aforesaid terms. There will be no order as to costs.
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Writ Appeal under clause 15 of the Letters Patent preferred against the order dated 22 January 2024 passed in W.P. No. 3468 of 2023 on the file of the High Court. Petition under Section 151 of the Code of Civil Procedure and the affidavit filed in support of the petition., Between: 1. M/s Ramadhuta Creations, Producer of the Motion Picture 'Vyuham' (also spelled Vyooham), represented by its sole proprietor Mr. Dasari Kiran Kumar. 2. Telugu Desam Party, represented by its General Secretary Nara Lokesh, Telugu Desam Party, Banjara Hills, Hyderabad. 3. Ministry of Information and Broadcasting, Office at Shastri Bhawan, New Delhi. 4. Central Board of Film Certification, having its head office at Films Division, Complex, Phase‑I Building, 9th Floor, Dr. G. Deshmukh Marg, Mumbai, Maharashtra, represented by its Chairman. 5. Regional Office of the Central Board of Film Certification, Secunderabad, Telangana, represented by the Regional Officer, Office at 206, CGO Towers, Kavadiguda, Secunderabad. 6. Revising Committee, Central Board of Film Certification, represented by the Presiding Officer T. S. Nagabharana, Regional Office at CGO Towers, Kavadiguda, Secunderabad., The petitioner prays that, in the circumstances stated in the petition, the High Court may be pleased to suspend the final order dated 22 January 2024 passed in W.P. No. 3468 of 2023 pending disposal of the present writ appeal., The appellant, office situated at RGV Den, Road, also files a writ appeal under clause 15 of the Letters Patent against the order dated 22 January 2024 passed in W.P. No. 3468 of 2023 on the file of the High Court. The parties are as listed above. The petitioner again prays that the High Court may suspend the judgment dated 22 January 2024 passed in writ petition No. 3468 of 2023 by the learned Single Judge of the High Court., ORDER Writ Appeal Nos. 56 and 59 of 2024. COMMON JUDGMENT: (per the Honorable Chief Justice Alok Kedarnath). These intra‑court appeals emanate from an order dated 22 January 2024 passed by the learned Single Judge in W.P. No. 3468 of 2023, by which the writ petition filed by the respondent No. 1, namely Telugu Desam Party (hereinafter referred to as “TDP”), has been allowed. W.A. No. 56 of 2024 has been filed by the producer of the film, whereas W.A. No. 59 of 2024 has been filed by the director of the film. The issue involved is the certification of the Telugu feature film ‘Vyuham’ for public viewing. Therefore, the appeals were heard together and are being decided by this common judgment., Appellant No. 1 in W.A. No. 56 of 2024 is the producer of the feature film titled ‘Vyuham’. The producer on 19 October 2023 submitted an application for censor certification of the feature film ‘Vyuham’ before the Central Board of Film Certification (CBFC). The examining committee of the CBFC viewed the film on 31 October 2023 and refused to certify the film as it was found not suitable for public exhibition., Thereafter, on 1 November 2023, the Chairperson of the CBFC referred the film for evaluation by the Revising Committee of the CBFC. The CBFC informed the producer on 3 November 2023 that the Revising Committee shall not review the film as the Model Code of Conduct was in force in the State of Telangana and certification could be considered only after the conclusion of the elections. The producer submitted a representation on 3 November 2023 itself to request a prompt review of the film. On 4 November 2023, Nara Lokesh submitted a complaint to the CBFC not to issue the certificate for public exhibition of the feature film., The feature film was scheduled to be released on 10 November 2023. On 23 November 2023, the producer filed a writ petition, namely W.P. No. 3237 of 2023, assailing the inaction of the CBFC in not certifying the film for public exhibition. The learned Single Judge of the High Court, by an order dated 28 November 2023, while disposing of the writ petition, directed the Regional Office of the CBFC to consider the application for grant of censor certificate within ten days in accordance with law., Thereafter, the CBFC issued a certificate for public exhibition of the feature film on 13 December 2023 and directed the producer to display a disclaimer at the beginning of the film stating that the film is based on true events with cinematographic liberties. Consequently, the revised date of release of the feature film was announced on 29 December 2023., The TDP filed a writ petition, namely W.P. No. 3468 of 2023, praying to quash the certificate issued by the CBFC in favour of the producer on the ground that the same is illegal and in violation of Section 5B(1) and (2) of the Cinematograph Act, 1952 (hereinafter referred to as “the Act”), violative of Guideline No. 2(xviii) of the Guidelines contained in S.O. 836E dated 6 December 1991 as well as Section 2(c) of the Contempt of Courts Act, 1921. The learned Single Judge, by an interim order dated 28 December 2023, suspended the operation of the certificate granted by the CBFC for a period of three weeks., The writ petition was thereafter heard by the learned Single Judge, who, by an order dated 22 January 2024, held that the TDP has locus to file the writ petition as it is a person aggrieved under Explanation 2 to Section 499 of the Indian Penal Code and Section 321 of the General Clauses Act, 1897. It was further held that the record does not show that the Revising Committee, while issuing the certificate, recorded any reasons. The learned Single Judge quashed the certificate granted in favour of the producer and directed the Regional Office of the CBFC and the Revising Committee to reconsider the matter and communicate the same., Learned Senior Counsel for the appellants submitted that a political party recognised under Section 29A of the Representation of the People Act, 1951 cannot maintain a writ petition, much less a writ petition for alleged defamation. It was submitted that reliance placed by the learned Single Judge on the definition of ‘person’ under Section 499 of the Indian Penal Code is misplaced. It is contended that the TDP does not fall within the definition of ‘association of persons’ under Section 499 IPC and therefore cannot maintain the writ petition. It was pointed out that, from the averments made in the writ petition, it is not clear whether Mr. Nara Lokesh has filed the writ petition in the capacity of General Secretary or as son of Mr. Nara Chandrababu Naidu. The learned Single Judge, therefore, ought to have appreciated that the writ petition at the instance of the TDP was not maintainable., It is contended that Form VIII appended to the Cinematograph (Certification) Rules, 1983 does not require the Revising Committee to record reasons while granting a ‘U’ certificate to a movie. It is argued that the Revising Committee is required to record reasons only when a UA/A/S certificate is granted by the CBFC. It is further argued that columns III and IV in Form VIII have to be read together, which clearly indicate that reasons must be ascribed only for excisions and not while granting a certificate. It is contended that once the CBFC has certified the release of the film, the same cannot be restrained from exhibition and a prior restraint on the release of the film is not permissible. It is also submitted that the plea of defamation must be pleaded and proved. A person in public life is subject to scrutiny and therefore cannot claim immunity from defamation. The producer has the protection guaranteed under Article 19 of the Constitution of India which permits him to allude to incidents which have taken place and present his version of the incidents., It is submitted that the learned Single Judge ought to have appreciated that the TDP approached the Court at the eleventh hour and therefore is not entitled to any relief. It is also urged that this Court cannot sit in appeal over the decision of the Revising Committee to release the film. Accordingly, the order passed by the learned Single Judge is urged to be set aside. In support of the aforesaid submissions, reliance has been placed on the decisions in R. Rajagopal v. State of Tamil Nadu, Goldsmith v. Bhoyrul, Balasaheb Keshav Thackeray (1994) 6 SCC 632, State of Maharashtra v. S. Q. M. S. K. J. S., F. A. Picture International v. Central Board of Film Certification, Mumbai, RBEF (Ritnand Balved Education Foundation) v. Alok Kumar, Vadlapatla Naga Vara Prasad v. Chairperson, Central Board of Film Certification, Mumbai, M/s Suryalok Film Factory v. R. Malleshwar, Raghunatha Rao Chakkilam v. Central Board of Film Certification, Mumbai, Arbaaz Khan Production Private Limited v. Northstar Entertainment Private Limited, Harinder Singh Sikka v. Union of India, ESSEL Infraprojects Limited v. Devendra Prakash Mishra, Naveen Jindal v. Zee Media Corporation Ltd., Bennett Coleman & Co. Ltd. v. K. Sarat Chandran, Ujjwal Anand Sharma v. Union of India, Indian National Congress v. Union of India, Nachiketa Walhekar v. Central Board of Film Certification, Viacom 18 Media Private Limited v. Union of India, Adarsh Cooperative Housing Society Limited v. Union of India, Atul Kumar Pandey v. Kumar Avinash, Tamil Nadu Telugu Yuva Sakthi v. Union of India, Krishna Kishore Singh v. Sarla A. Saroj, Kailash Gahlot v. Vijender Gupta, Nipun Malhotra v. Sony Pictures Films India Private Limited, and the decision of the Federal Court of Malaysia in Lim Lip Eng v. Ong Ka Chuan., Learned counsel for the appellant in W.A. No. 59 of 2024 adopted the submissions made by the learned Senior Counsel for the appellants in W.A. No. 56 of 2024. He submitted that Mr. Nara Lokesh is not authorised to file the writ petition as authorisation has not been given to him by Mr. Nara Chandrababu Naidu and therefore he has no locus to file the writ petition. In support of the submission, reliance has been placed on the decision of the Supreme Court in Viacom 18 Media Private Limited., The TDP submitted that it invoked the extraordinary discretionary jurisdiction under Article 226 of the Constitution of India as its right to reputation under Article 21 of the Constitution of India was violated. The writ petition was filed for enforcement of the statutory right under Section 5B(1) and (2) of the Cinematograph Act and for violation of Guideline 2(xviii) framed for certification of films by the CBFC notified under Section 5B(2) of the Act. It was urged that the TDP is an association/body of persons and a juristic entity and therefore entitled to maintain the writ petition. The TDP is an aggrieved person and therefore has locus to file the writ petition., It is contended that under Rule 24(9) of the Certification Rules, the Revising Committee is required to assign reasons for certifying that the film is suitable for unrestricted public exhibition, i.e., fit for a ‘U’ certificate, and that in case of inconsistency between the Form appended to the Certification Rules and the Rules themselves, the Rules shall prevail. The learned Single Judge held that no reasons were assigned by the Revising Committee for certifying the film suitable for unrestricted public exhibition. It is submitted that the decision‑making process of the Revising Committee of the CBFC is amenable to judicial review and that any procedural defect, if any, is curable., We have considered the rival submissions made on both sides and perused the record., The freedom of creation by artistic means is a fundamental right covered under Article 19(1)(a) of the Constitution of India. However, the same can be regulated. The Cinematograph Act, 1952 is an Act to make provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs., Before proceeding further, it is apposite to note the relevant provisions of the Cinematograph Act, 1952 as well as the Cinematograph (Certification) Rules, 1983 and the Guidelines contained in S.O. No. 836E dated 06 December 1991. Sections 5A and 5B of the Act are extracted below for reference., Section 5A – Certification of films: (1) After examining a film, the Board may grant a ‘U’ certificate if the film is suitable for unrestricted public exhibition, or a ‘UA’ certificate with endorsement, or an ‘A’ certificate if suitable for adults, or an ‘S’ certificate if suitable for a restricted class. The applicant, distributor or exhibitor shall not be liable for punishment under any law relating to obscenity for matters contained in the film for which a certificate has been granted under clause (a) or (b). (2) A certificate granted or an order refusing to grant a certificate shall be published in the Gazette of India. (3) A certificate granted shall be valid throughout India for a period of ten years., The principles for guidance in certifying films are: (1) A film shall not be certified for public exhibition if, in the opinion of the authority, the film is against the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation, contempt of court or is likely to incite the commission of any offence. (2) Subject to the provisions of subsection (1), the Central Government may issue directions setting out principles to guide the authority competent to grant certificates., In exercise of powers conferred by Section 8 of the Cinematograph Act, 1952, the Cinematograph (Certification) Rules, 1983 have been framed. Rule 22 deals with the Examining Committee and Rule 24 deals with the Revising Committee. Rule 22 provides that on receipt of an application, the Regional Officer shall appoint an Examining Committee to examine the film at the cost of the applicant. The Committee shall consist of members of the advisory panel and examining officers, with a specified number of women members, and shall examine the film in its final form with background music and sound effects. The names of the members shall not be disclosed, and the Committee shall record its opinion in Form VIII, indicating whether the film is suitable for a ‘U’, ‘UA’, ‘A’ or ‘S’ certificate, or whether it should be refused a certificate., The Central Government, under Section 58(2) of the Act, has laid down the principles for sanctioning films for public exhibition. The objectives are to ensure that the medium of film remains responsible and sensitive to societal values, that artistic expression and creative freedom are not unduly curbed, that certification is responsive to social change, that the film provides clean and healthy entertainment, and that, as far as possible, the film is of aesthetic value and of good cinematic standard. The guidelines prohibit glorification of anti‑social activities, depiction of violence that may incite offences, portrayal of child abuse, ridicule of physically or mentally handicapped persons, cruelty to animals, gratuitous violence, glorification of drinking or drug addiction, vulgarity, obscenity, denigration of women, sexual perversions, contemptuous remarks on racial, religious or other groups, threats to sovereignty, security of the State, friendly relations with foreign States, public order, defamation, contempt of court, and improper use of national symbols., The controversy involved in these writ appeals can be summarized as follows: (i) Whether the TDP can be termed as an aggrieved person so as to maintain the writ petition; (ii) Whether Mr. Nara Lokesh is authorized to file the petition; (iii) Whether the Revising Committee of the CBFC is required to assign reasons while granting a ‘U’ certificate to a film with excisions; and (iv) Whether the Revising Committee has assigned any reasons while granting a ‘U’ certificate to the film with excisions., The existence of a legal right and infringement thereof are the sine qua non for exercise of jurisdiction under Article 226 of the Constitution of India. According to Halsbury’s Laws of England (third edition, Volume 2, p. 293), the expression ‘person aggrieved’ is not defined and must be construed by reference to the context of the enactment and the circumstances. The Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar held that to have locus standi to invoke certiorari jurisdiction, the petitioner should be an ‘aggrieved person’. The expression denotes an elastic and elusive concept whose scope depends on the content and intent of the statute, the specific circumstances, the nature and extent of the petitioner’s interest, and the prejudice or injury suffered., Thus, a person whose rights are affected or infringed is a person aggrieved and has locus to maintain the petition. Rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in cases of habeas corpus or quo‑ warranto.
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Another exception to this Rule is where the writ petition is filed in public interest. The orthodox rule of interpretation regarding locus of a person to reach the court has undergone a sea change with the development of constitutional law in India and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds (see Ghulam Qadir vs. Special Tribunal). A person to whom the legal grievance has been caused can maintain a writ petition (see Samir Agrawal vs. Competition Commission of India). The Telugu Desam Party is claiming violation of the statutory right under Section 58 of the Act and Rule 24 of the Certification Rules, and therefore cannot be said to be a stranger having no right. Therefore, it is an aggrieved person., In Akhil Bharatiya Soshit Karamchari Sangh (Railway) vs. Union of India, a three‑Judge Bench of the Supreme Court of India dealt with the issue whether a large body of persons having a common grievance though not belonging to a registered Trade Union can maintain a writ petition under Article 32 of the Constitution of India. The aforesaid issue was answered in the affirmative by the Supreme Court of India and it was held that processual jurisprudence in our country is not of individualistic Anglo‑Indian mould and is broad‑based and people‑oriented and envisions access to justice through class actions and therefore, the writ petition at the instance of an unrecognized association was held to be maintainable. The Telugu Desam Party is a political party, which is a body of persons, the members of which subscribe to a particular ideology. The Telugu Desam Party on behalf of its members has approached the court seeking violation of the statutory right under the Act and the Certification Rules., A writ petition filed on behalf of someone is required to disclose the authority on whose behalf the writ petition has been filed; this remains a procedural requirement, so long as the person who has authorised filing of the petition does not dispute the authority of the person filing the writ petition. In the instant case, the writ petition was filed on 21 December 2023 on behalf of the Telugu Desam Party by Mister Nara Lokesh. Thereafter, on 22 December 2023 a letter of authority was issued by Mister Kinjarapu Atchennaidu instead of Mister Nara Chandrababu Naidu. The learned Single Judge therefore held that the aforesaid procedural requirement having been complied with, the writ petition does not deserve dismissal on account of non‑compliance of such a procedural requirement at the threshold. In this intra‑court appeal, the authority of Mister Kinjarapu Atchennaidu was challenged by the producer and it was contended that Mister Nara Chandrababu Naidu alone is competent to authorise Mister Nara Lokesh to file the writ petition. Even the aforesaid procedural requirement has been complied with and a memo has been filed authorising the petitioner to prosecute the writ petition. It is pertinent to note that Mister Nara Chandrababu Naidu or Mister Kinjarapu Atchennaidu or any other office bearer of the Telugu Desam Party has not questioned the authority of Mister Nara Lokesh to present the petition on behalf of the Telugu Desam Party. For the aforementioned reasons, it is held that the Telugu Desam Party is an aggrieved person and Mister Nara Lokesh has the authority to maintain the writ petition on its behalf., Now we proceed to deal with the issue, namely whether the Revising Committee of the Central Board of Film Certification is required to assign any reasons while granting a ‘U’ certificate (Unrestricted) to a film with excisions and, in the facts of the case, whether the same have been assigned. Undoubtedly, this Supreme Court of India, in exercise of powers of judicial review, can examine whether there has been infraction of the provisions of the Act and the Certification Rules made thereunder, though true it is that this Supreme Court of India cannot act as a Court of Appeal over the decision taken by the Revising Committee under the Act and the Certification Rules., It is trite law that principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. It is equally well settled legal proposition that where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. Its aim is to secure justice or to prevent miscarriage of justice. The principles of natural justice do not supplant the law, but supplement it (see Mangilal vs. State of Madhya Pradesh). The aforesaid principle has been reiterated with approval in Aurellano Fernandes vs. State of Goa., It is equally well settled legal proposition that in case of a conflict between the provisions of the Act, Rules and the Schedule, the provisions of the Act and the Rules shall prevail. A Schedule in an Act of Parliament is merely a question of drafting and in case of any inconsistency, the Schedule must yield to the provisions of the Act and the Rules. It is equally well settled legal proposition that a form prescribed under the Schedule can never be used as an aid in interpretation of a statute and a Schedule cannot wipe the effect of a statutory provision (see Aphali Pharmaceuticals Limited (supra), Commissioner of Income Tax vs. Tulsyan NEC Limited and Jagdish Prasad (supra))., In the backdrop of aforesaid legal principles, we may advert to the facts of the case in hand. Before proceeding further, it is apposite to take note of Rule 24 of the Certification Rules and the relevant extract of Form VIII appended to the Rules, which are extracted below for the facility of reference., Revising Committee: (1) On receipt of the record referred to in Rule 22, the Chairman may, of his own motion or on the request of the applicant, refer it to a Revising Committee constituted for the purpose. (2) The Revising Committee shall, subject to sub‑rule (5), consist of a Chairman and not more than nine members, being members of the Board or members of any of the advisory panels, to be specified by the Chairman: Provided that subject to the provisions of sub‑rule (11), the Chairman shall give due representation to women in the Committee by nominating such number of women members as he thinks fit. (3) The Chairman or, in his absence, a member of the Board nominated by the Chairman shall preside at every meeting of the Revising Committee. (4) The Regional Officer of the Centre where the application was received under Rule 27 may be invited to attend any meeting of a Revising Committee and participate in proceedings thereof but he shall have no right to vote thereat. (5) No member of the advisory panel who has been a member of the Examining Committee for any film shall be a member of the Revising Committee in respect of the same film. (6) The provisions of sub‑rules (a) to (h) of Rule 22 shall apply mutatis mutandis to the examination of film by the Revising Committee or the Board. (7) The Revising Committee shall examine the film at the applicant’s expense, on such date, at such place and at such time as the Chairman may determine. (8) For the purpose of examination by a Revising Committee, (a) the applicant shall present the same clear runnable print of the film which was shown to the Examining Committee and shall make no change whatsoever in it and shall furnish the necessary declaration in writing in that behalf; (b) the applicant shall be required to furnish fifteen typed or printed copies of the complete synopsis of the film together with the full credit titles and the full text of songs, if any, with reel number, and where he has made a representation under sub‑section (2) of section 4, fifteen copies thereof shall also be furnished: Provided that where the film is in a language other than English or any Indian language, the applicant shall furnish fifteen typed or printed copies of the translation in English or in Hindi of the synopsis together with full credit titles and the full text of the songs, if any: Provided further that in the case of a film referred to in the preceding proviso, the Chairman may direct the applicant to furnish also fifteen typed or printed copies of the translation in English or Hindi of the full text of the dialogue, speeches or commentary: Provided also that where the Chairman is satisfied that the applicant is not able to furnish the documents specified in this sub‑rule for reasons beyond his control, the Chairman may direct that the submission of such documents be dispensed with. (9) Immediately after examination of the film, each member of the Revising Committee shall before leaving the preview theatre record his recommendations in writing in Form VIII set out in the Second Schedule, spelling out in clear terms the reasons therefor and stating whether he or she considers (a) that the film is suitable for unrestricted public exhibition, i.e., for ‘U’ certificate (Unrestricted); or (b) that the film is suitable for unrestricted public exhibition but with an endorsement of caution that the question as to whether any child below the age of twelve years may be allowed to see the film should be considered by the parents or guardian of such child, i.e., for ‘UA’ certificate (Unrestricted with advisory); or (c) that the film is suitable for public exhibition restricted to adults, i.e., for ‘A’ certificate (Adults); or (d) that the film is suitable for public exhibition restricted to members of any profession or any class of persons having regard to the nature, content and theme of the film, i.e., for ‘S’ certificate (Special); or (e) that the film is suitable for grant of ‘U’, ‘UA’, ‘A’ or ‘S’ certificate, as the case may be, if a specified portion or portions be excised or modified therefrom; or (f) that the film is not suitable for unrestricted or restricted public exhibition, i.e., that the film be refused a certificate; and if the Chairman is away from the regional centre where the film is examined the form aforesaid shall be prepared in duplicate. (10) The Presiding Officer of the Revising Committee shall, within three days, send the recommendations of all the members of the Revising Committee to the Chairman and where the Chairman is away from the centre where the film is examined, by registered post. (11) The quorum of the Revising Committee shall be five members of whom at least two persons shall be women; provided that the number of women members shall not be less than one‑half of the total members of a Committee constituted under sub‑rule (2). (12) The decision of a Revising Committee shall be that of the majority of the members attending the examination of the film, and in the event of an equality of votes, the presiding officer shall have a second or casting vote: provided that where the Chairman disagrees with the decision of the majority of the Committee, the Board shall itself examine the film or cause the film to be examined again by another Revising Committee and that the decision of the Board or the second Revising Committee, as the case may be, shall be final., Thus, on perusal of Rule 24 of the Certification Rules, it is evident that each member of the Revising Committee before leaving the preview theatre records his recommendations in writing in Form VIII set out in the Second Schedule spelling out in clear terms the reasons therefor. Merely because in Columns III and IV the word ‘U’ is missing, it cannot be inferred that no reasons are required to be given in case a film is certified for public viewing with ‘U’ certificate (Unrestricted). Such an interpretation is clearly in contravention of Rule 24(9) of the Certification Rules, which requires reasons to be mentioned while granting the certificate. In any case, in the event of any clear and specific description of excisions or modifications, the provision in the Rule has to be given effect. Therefore, the contention that the Revising Committee while granting ‘U’ certificate (Unrestricted) is not required to assign any reasons and is required to assign the same only when ‘UA’ certificate (Unrestricted with advisory), ‘A’ certificate (Adults) or ‘S’ certificate (Special) is granted by the Central Board of Film Certification is misconceived., It is pertinent to note that the Examining Committee while viewing the movie had refused to issue a certificate and had held as under: Reasons for refusal of certificate: The film is a biography of the present Chief Minister of Andhra Pradesh, Shri Y. S. Jagan Mohan Reddy and the filmmakers are claiming it to be based on true events. The political timelines portrayed in the film are from the death of Shri Y. S. Rajasekhara Reddy up to the election of the present Chief Minister and also the sub‑judice matter of the Skill Development scam in which former Chief Minister Sri Chandrababu Naidu has been arrested. Against this backdrop, the makers have used the actual persons’ names, political parties, party symbols, montages, voice‑overs etc. Another prime issue of concern is the uncanny and striking resemblance of characters in the film with actual public and political figures/celebrities. Many of the above persons including Sonia Gandhi, Manmohan Singh, Chandrababu Naidu, Pawan Kalyan, N. Chandrababu Naidu etc are shown in a negative light. Few of the above are portrayed as conspiring against Jagan Mohan Reddy to avoid him coming into power by implicating him in CBI/ED cases. As such the film is derogatory towards these persons and their political parties which is against guidelines (xviii). Also the film by its decisive stand that Chandrababu Naidu has received kick‑backs in the Skill Development scam may lead to contempt of Court. Further the model code of conduct is in place in Telangana and the film in its present form has the potential to diminish as well as advance the electoral prospects of separate political parties, which is against the Election Commission order. Due to all the above reasons, the Examining Committee has unanimously declined to refuse a certificate to the film., We have perused the record of the Revising Committee produced by the learned Additional Solicitor General of India. The Revising Committee has not assigned any reasons for granting a ‘U’ certificate (Unrestricted) to the movie with excisions. Therefore, the action of the Revising Committee in granting a ‘U’ certificate (Unrestricted) to the movie with excisions, in the facts and circumstances of the case, is in contravention of Rule 24(9) of the Certification Rules. In view of the preceding analysis, it is held that the Revising Committee is required to assign reasons while granting ‘U’ certificate (Unrestricted) to the movie with excisions. It is further held that no reasons have been assigned by the Revising Committee while granting ‘U’ certificate (Unrestricted) to the movie with excisions., For the reasons assigned by us in the preceding paragraphs, we agree with the conclusions arrived at by the learned Single Judge. Freedom of expression is a fundamental right in a democratic society which is governed by a rule of law. The producer has a fundamental right under Article 19 of the Constitution of India which permits him to allude to true incidents with his perspective. The producer has invested money for producing the film and is also required to book the theatres in advance to ensure the release of the movie. The Chairman of the Central Board of Film Certification has already initiated the action for constitution of the Revising Committee. Therefore, in the facts and circumstances of the case, it is directed that the Chairman shall re‑constitute the Revising Committee, if not already constituted, and the Revising Committee shall view the movie and duly communicate its decision for certification of the film to the appellants on or before 09 February 2024., To the aforesaid extent, the order passed by the learned Single Judge is modified. In the result, the writ appeals are disposed of. Miscellaneous applications, if any pending, shall stand closed. There shall be no order as to costs., The Chairman, Central Board of Film Certification, having its head office at 9th Floor, Dr. G. Deshmukh Marg, Mumbai 400 026, Maharashtra. Regional Officer, Ms. Shifali Kumar, Regional Office at Hyderabad, Central Board of Film Certification, Office at 206, CGO Towers, Kavadiguda, Secunderabad 500 080, Telangana. Presiding Officer – T. S. Naqibharna (P. O.) Revising Committee, C/o Central Board of Film Certification at Hyderabad, Office at House No. 200, CGO Towers, Kavadiguda, Secunderabad 500 080. One copy to Sri Pasham Mohith, Advocate. One copy to M/s. Unnam Law Firm, Advocate. One copy to Shri Praveen Kumar, Deputy Solicitor General of India. One copy to Sri Rajagopallavan Tayi, Advocate.
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Appeal No. 456 of 2020. Sophy Thomas, Judge. The husband filed petition No. 620 before the Family Court, Alappuzha, under Section 10(1)(X) of the Indian Divorce Act, seeking dissolution of his marriage on the ground of matrimonial cruelty. He married the respondent on 09 February 2009 according to Christian rites, and three girl children were born of their lawful wedlock. Both spouses were employed in Saudi Arabia and their marital relationship was initially smooth., Subsequently the respondent allegedly developed behavioural abnormalities, quarrelled with the husband without reason, and accused him of an illicit relationship with another woman. The husband alleges that on one occasion the respondent slapped him and on 16 May 2018 she pointed a knife at him, threatening his life. He claims he was assaulted and humiliated in front of his children and the public, and that she turned his close relatives against him and compelled him to transfer properties into her name. He states that because of the respondent’s indifferent, abusive and violent behaviour he became mentally stressed and physically ill, and that the marital relationship was irretrievably broken, warranting a decree of divorce., The respondent vehemently opposes the petition, asserting that the husband fabricated reasons to distance himself from his wife and children. She denies ever being cruel, assaulting, or threatening him, and claims the husband lacked financial discipline while she herself purchased properties and constructed a house. She states she needs her husband and children, and that the husband’s allegations are unfounded., Evidence presented includes examination of witnesses and documentary exhibits. The appellant’s mother identified photographs (Exhibit B5) showing the appellant with a lady named Anjali, alleging an intimate relationship, and a photograph (Exhibit B6) of the appellant driving a car owned by Anjali. The mother testified that the appellant developed an illicit intimacy with Anjali in a particular year and thereafter tried to avoid his wife and children. The appellant contends that the respondent threatened to lodge a complaint with Saudi police and threatened his suicide. The respondent’s counsel submitted that the appellant filed the divorce petition solely to marry the other woman, without any valid ground for dissolution., Section 10(1)(X) of the Indian Divorce Act provides that a marriage may be dissolved on the ground of cruelty when the respondent has treated the petitioner with such cruelty as to cause reasonable apprehension in the petitioner that it would be harmful or injurious to continue cohabitation. The appellant must establish that the respondent’s conduct amounted to such cruelty. The Family Court, Alappuzha, after analysing the facts and evidence, found that the appellant failed to prove the allegations of cruelty against the respondent, and consequently dismissed the petition., The court noted that marriage, especially under Christian personal law, is a solemn and socially recognised union that cannot be dissolved on the basis of mere quarrels, ordinary wear and tear, or emotional outbursts. While the appellant alleges an extramarital relationship, the evidence does not establish that the respondent’s conduct rose to the level of cruelty required under the statute., Accordingly, the appeal is dismissed. No order as to costs.
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Competition Appeal (AT) No. 01 of 2023 [Arising out of Order dated 20.10.2022 passed by the Competition Commission of India in Case No. 39 of 2018] Google LLC having its office at 251 Little Falls Drive, Wilmington; Google India Private Limited having its office at Unitech Signature Tower‑II, Tower‑B, Sector‑15, Part‑II, Village Silokhera, Gurgaon 122001 India. Appellant: Competition Commission of India through its Secretary having its office at 10th Floor, Office Block‑1, East Kidwai Nagar, New Delhi‑110023; Mr. Umar Javeed F, 12/3, Second Floor, Malviya Nagar, New Delhi‑110017; Ms. Sukarma Thapar, B‑7, Extension, 14/A, Safdarjung Enclave, New Delhi‑110029; Mr. Aaqib Javeed Goriwan, Bijbehara, Kashmir‑192124. Respondents: Google LLC and Google India Private Limited (hereinafter referred to as Google)., For Appellants: Mr. Maninder Singh and Mr. Arun Kathpalia, Senior Advocates; Mr. Vijayendra Pratap Singh; Mr. Ravisekhar Nair; Ms. Hemangini Dadwal; Mr. Parthsarathi Jha; Mr. Toshit Shandilya; Mr. Mohith Gauri; Ms. Sayobani Basu; Ms. Arunima Chatterjee; Ms. Vanya Chhabra; Mr. Atish Ghoshal; Mr. Deepanshu Poddar; Ms. Ketki Agrawal; Ms. Bhaavi Agarwal; Mr. Abhisar Vidyarthi; Ms. Bani Brar; Mr. Kshitij Wadhwa; Mr. Aditya Dhupar; Mr. Prabhas Bajaj; Mr. Ajay Sabharwal, Advocates., For Respondents: Mr. N. Venkataraman, Additional Solicitor General; Mr. Samar Bansal; Mr. Manu Chaturvedi; Ms. Aakriti Singh; Mr. Vedant Kapur; Ms. Shruti Shivkumar; Mr. V. Chandrashekhara Bharathi; Ms. Amritha Chandramouli; Mr. Rahul Vijay Kumar; Mr. Ram Narayan; Mr. Madhav Gupta, Advocates; Mr. Abir Roy; Mr. Vivek Pandey; Mr. Aman Shankar; Ms. Sukanya Viswanathan; Mr. T. Sundar Ramanathan, Advocates for Impleader in I.A. Nos. 327 & 336 of 2023. Mr. Amit Sibal, Senior Advocate with Mr. Naval Chopra, Mr. Yaman Verma, Mr. Aman Singh Sethi, Ms. Shally Bhasin, Ms. Raveena Lalit, Ms. Prerna Parashar, Ms. Parinita Kare, Mr. Shivek Endlaw, Mr. Rohan Bhargava, Mr. Prateek Yadav, Mr. Rishabh Sharma, Mr. Saksham Dhingra, Mr. Darpan Sachdeva, Advocates in I.A. No. 630 of 2023. Mr. Rajshekhar Rao, Senior Advocate, Mr. Naval Chopra, Mr. Yaman Verma, Mr. Aman Singh Sethi, Mr. Ajit Warrier, Ms. Raveena Lalit, Ms. Prerna Parashar, Ms. Parinita Kare, Mr. Prateek Yadav, Mr. Prateek Gupta, Mr. Shivek Endlaw, Ms. Shally Bhasin, Mr. Darpan, Mr. Rohan Bhargava, Mr. Harshil Wason, Mr. Yashraj Samant, Ms. Chandini Anand, Advocates in I.A. No. 232 of Competition Appeal (AT) No. 01 of 2023., This Appeal by the two Appellants – Google LLC and Google India Private Limited (hereinafter referred to as Google) has been filed challenging the order dated 20.10.2022 passed by the Competition Commission of India in Case No. 39 of 2018, Mr. Umar Javeed and Others vs. Google LLC & Anr. The Commission, by the impugned order, found Google to have abused its dominant position in contravention of the provisions of Section 4(2)(a)(i), Section 4(2)(b)(ii), Section 4(2)(c), Section 4(2)(d) and Section 4(2)(e) of the Competition Act, 2002 (hereinafter referred to as the Act). In terms of the provision of Section 27 of the Act, the Commission directed Google to cease and desist from indulging in anti‑competitive practices that were found to be in contravention of the provisions of Section 4 of the Act and imposed a penalty of INR 1,337.76 crore., The National Company Law Appellate Tribunal, in this Appeal, passed an order on 04.01.2023 admitting the Appeal subject to deposit of 10 % of the penalty amount. Notices were issued and 03.04.2023 was fixed for final hearing. Google, aggrieved by the order dated 04.01.2023, filed Civil Appeal No. 229 of 2023 before the Honourable Supreme Court of India. The Supreme Court disposed of the Appeal by its judgment and order dated 19.01.2023, refusing to interfere with the order dated 04.01.2023 but requested the NCLAT to dispose of the Appeal by 31.03.2023. In pursuance of the Supreme Court order dated 19.01.2023, the Appeal was finally heard and orders were reserved on 20.03.2023., The brief facts giving rise to this Appeal are as follows: (i) In 2008, Google’s Android was featured as an open‑source licensable operating system for smartphones. In 2009‑10, Google signed the Mobile Applications Distribution Agreement (MADA) with Original Equipment Manufacturers (OEMs) under which the OEMs receive a suite of Google’s apps. The OEMs also have to sign the Anti‑Fragmentation Agreement (AFA) which requires OEMs to observe baseline compatibility standards. Google also signed the Revenue Sharing Agreement (RSA) with OEMs. (ii) In 2015, the European Commission initiated proceedings against Google’s Android licensing practices in Europe for alleged infringement of Article 102 of the Treaty on the Functioning of the European Union. The Commission took a decision on 18.07.2018 finding Google to have abused its dominant position in the relevant market in the European Union and imposed a penalty and fine on Google. (iii) On 28.08.2018, Respondent Nos. 2 to 4 – Umar Javeed, Sukarma Thapar and Aaqib Javeed – filed information under Section 19(1)(a) of the Act before the Competition Commission of India, claiming to be users of Android‑based smartphones. They stated that the majority of smartphone and tablet manufacturers in India use Google Android System and that Google is dominant in India. They delineated four distinct relevant markets: (a) Licensable Smart Mobile Operating System; (b) App Stores for Android Mobile OS; (c) Online Video Hosting Platform (OVHP); and (d) Online General Web Search Service. India was stated to be the relevant geographical market. The informants alleged that Google engaged in various anti‑competitive practices violating Section 4 read with Section 32 of the Act., The Competition Commission of India, taking into consideration the information submitted by Respondent Nos. 2 to 4, registered Case No. 39 of 2018. The Commission held a preliminary conference on 08.01.2019 under Regulation 17 of the Competition Commission of India (General) Regulations, 2009. After perusing the materials on record, the Commission passed an order dated 16.04.2019 under Section 26(1) of the Act directing the Director General to conduct an investigation under the same provision. The order noted the informants’ allegations that Google mandates smartphone and tablet manufacturers to exclusively pre‑install Google’s applications or services in order to obtain any part of the Google Mobile Services (GMS) suite in devices sold or marketed in India, that Google ties or bundles certain applications (such as Chrome, YouTube, Google Search) with other Google applications or APIs, and that Google prevents manufacturers from developing and marketing modified Android versions (so‑called Android forks). The Commission expressed a prima facie opinion that mandatory pre‑installation of the entire GMS suite under MADA amounts to an unfair condition on device manufacturers, contravening Section 4(2)(a)(i) of the Act., After the order dated 16.04.2019, the Director General commenced an inquiry under Section 19 of the Act, issuing several notices to Google requesting information. Google responded and submitted a comprehensive response. Notices were also issued to the informants, and the Director General sought information from third parties, including Indian and foreign mobile handset manufacturers, app store operators, online search service providers, web browsers, and key app developers in India. The Director General submitted its report dated 29.06.2021, framing the following issues for investigation: (1) Whether mandatory pre‑installation of the entire GMS suite under MADA amounts to an unfair condition infringing Sections 4(2)(a)(i) and 4(2)(d) of the Act; (2) Whether making pre‑installation of Google Play Store conditional upon signing the AFA/ACC reduces manufacturers’ ability to develop devices running Android forks, violating Section 4(2)(b)(ii); (3) Whether Google has perpetuated its dominant position in the online search market, denying market access to competing search apps, violating Section 4(2)(c); (4) Whether Google has leveraged its dominant position in the Play Store to protect its position in online general search, violating Section 4(2)(e); (5) Whether tying Google Chrome with the Play Store violates Section 4(2)(e); (6) Whether tying YouTube with the Play Store violates Section 4(2)(e); (7) Whether Google has imposed unfair and discriminatory terms on app developers in the Play Store, violating Section 4., The Director General concluded that Google’s Play Store policies are one‑sided, ambiguous, biased and arbitrary; that unilateral modification of developer terms, suspension of apps without cogent reason, and losses suffered by third‑party developers amount to an unfair or discriminatory condition limiting technical and scientific development of apps and denying market access, in violation of Sections 4(2)(a)(i), 4(2)(b) and 4(2)(c) of the Act. In Chapter 10, the Director General separately recorded that Google contravenes Sections 4(2)(a)(i), 4(2)(b), 4(2)(c), 4(2)(d) and 4(2)(e) of the Act., The Commission considered the Director General’s report on 06.10.2021, directed an electronic copy of the non‑confidential version of the investigation report to be forwarded to the parties for filing objections or suggestions, and forwarded the confidential version to Google through its authorised representative. Parties were asked to file objections/suggestions by 05.11.2021 and to furnish audited balance sheets and profit & loss accounts for financial years 2018‑19, 2019‑20 and 2020‑21 by the same date. A final hearing was scheduled for 24.11.2021. Google raised confidentiality claims regarding orders issued by the Director General and initiated proceedings on that ground. On 17.11.2021, the Commission directed Google to file its financial information by 26.11.2021. Google submitted audited financial statements of Google India Private Limited and annual reports of Alphabet Inc. on 26.11.2021, requesting a three‑week extension to file remaining financial information, which was later provided on 17.12.2021. Several extensions were granted to both Google and the Director General. The Commission, by order dated 17.06.2022, fixed 04.08.2022 for hearing the Director General’s report. Google submitted its response and objections, and the arguments were heard on several dates. On 02.09.2022, the Commission reserved its final order, allowing Google to file a written submission on the quantum of penalty. Google submitted post‑hearing written submissions on 16.09.2022. On 19.09.2022, the Commission directed Google to file further financial information within seven days; Google requested a two‑week extension on 22.09.2022, and provided the requested information on 11.10.2022. The Commission passed the final order in Case No. 39 of 2018 on 20.10.2022, concluding that Google contravened various provisions of Section 4(2) of the Act., The Commission’s conclusions, recorded in Paragraph 614, are as follows: (1) Mandatory pre‑installation of the entire GMS suite under MADA (with no option to uninstall) and its prominent placement amount to an unfair condition on device manufacturers, contravening Section 4(2)(a)(i) and constituting supplementary obligations in violation of Section 4(2)(d). (2) Google has perpetuated its dominant position in the online search market, denying market access for competing search apps, violating Section 4(2)(c). (3) Google has leveraged its dominant position in the Android app store market to protect its position in online general search, violating Section 4(2)(e). (4) Google has leveraged its dominant position in the app store market to enter and protect its position in the non‑OS specific web browser market through Google Chrome, violating Section 4(2)(e). (5) Google has leveraged its dominant position in the app store market to enter and protect its position in the Online Video Hosting Platform market through YouTube, violating Section 4(2)(e). (6) By making pre‑installation of Google’s proprietary apps (particularly Google Play Store) conditional upon signing the AFA/ACC for all Android devices, Google has reduced manufacturers’ ability and incentive to develop devices running Android forks, limiting technical or scientific development to the prejudice of consumers, in violation of Section 4(2)(b)(ii)., The Commission delineated five relevant markets in Paragraph 615: (a) Market for licensable operating systems for smart mobile devices in India; (b) Market for app stores for Android smart mobile OS in India; (c) Market for general web search services in India; (d) Market for non‑OS specific mobile web browsers in India; (e) Market for online video hosting platforms (OVHP) in India. The Commission held Google to be dominant in all these markets and to have abused its dominant position in contravention of Sections 4(2)(a)(i), 4(2)(b)(ii), 4(2)(c), 4(2)(d) and 4(2)(e) of the Act., In terms of Section 27 of the Act, the Commission directed Google to cease and desist from indulging in anti‑competitive practices and specified the following remedial measures: (1) OEMs shall not be forced to pre‑install a bouquet of Google applications and shall be free to decide the placement of pre‑installed apps on their devices. (2) Licensing of the Play Store (including Google Play Services) to OEMs shall not be linked with the requirement of pre‑installing Google Search, Chrome, YouTube, Google Maps, Gmail or any other Google application. (3) Google shall not deny access to its Play Services APIs to disadvantaged OEMs, app developers or competitors, ensuring interoperability of apps with Android forks. (4) Google shall not offer monetary or other incentives to OEMs for exclusivity of its search services. (5) Google shall not impose anti‑fragmentation obligations on OEMs under the AFA/ACC; OEMs should be permitted to manufacture Android forks. (6) Google shall not incentivise or obligate OEMs against selling devices based on Android forks. (7) Google shall not restrict users from uninstalling its pre‑installed apps. (8) During initial device setup, users shall be allowed to choose their default search engine and easily change the default settings. (9) Google shall allow developers of app stores to distribute their app stores through the Play Store. (10) Google shall not restrict app developers from distributing their apps through side‑loading., The Commission imposed a penalty of Rs 1,337.76 crore for violation of Section 4 of the Act and directed Google to deposit the penalty within 60 days of receipt of the order., The Tribunal heard Shri Arun Kathpalia, Senior Counsel, and Shri Maninder Singh, Senior Counsel, appearing for the Appellant, as well as Shri N. Venkataraman, Additional Solicitor General for India, Shri Samar Bansal for the Competition Commission of India, and senior advocates Shri Amit Sibal, Shri Rajshekhar Rao and Shri Abir Roy for the intervenors. Respondent Nos. 2 to 4, despite service of notice, did not appear., Shri Arun Kathpalia, Senior Counsel for the Appellant, submitted that to hold any abuse of a dominant position, the anti‑competitive effect of the conduct must be proved. He argued that the Scheme of Section 4 requires proof of such effect and that the Commission’s finding of unfair conditions in the MADA is incorrect because the MADA is a voluntary, non‑exclusive agreement; OEMs are free to sign or not sign it, and they may pre‑install competing apps. He contended that the pre‑installation and placement requirements do not constitute unfairness, that the “must‑have” characterization of GMS apps is unfounded, and that there is no evidence of foreclosure or denial of choice for consumers., Shri Arun Kathpalia further submitted that the Anti‑Fragmentation Agreement (AFA) and Android Compatibility Criteria (ACC) merely require Android devices to meet baseline compatibility standards, and that the Competition Commission of India itself has observed that AFA/ACC are valid. The agreements ensure that all apps developed for the device can run properly and do not constitute a dominance issue.
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Android Fragmentation Agreement / Android Compatibility Commitment (AFA/ACC) set out the minimum baseline that an Original Equipment Manufacturer (OEM) has to follow. In Android there are about 15,000 models and 1,100 OEMs and there is no restriction on OEMs to innovate. AFA/ACC cannot be said to be anti‑competitive and there is no stoppage of invocation by any OEM. In the impugned order the Competition Commission observed that AFA/ACC obligations reduce incentives for OEMs to distribute forked Android versions, but that observation is unfounded., Google, aware of the risk of fragmentation inherent in an open business model, adopted the AFA before the launch of Android devices to address this threat. The Commission failed to appreciate the Competition Appeal Tribunal (AT) No. 01 of 2023 evidence, which shows the failure of Symbian OS, an open‑source platform that did not implement any minimum compatibility standards. The objective of minimum compatibility is that any app writer can write an app once and it would run on every device within the ecosystem. An Android Fork is a device that uses the Android operating system but does not meet the compatibility requirements laid down in the Compatibility Definition Document (CDD). The compatibility requirement under the CDD is minimal and narrow., The AFA/ACC signatories are free to differentiate and innovate on top of these minimal baseline requirements and have done so. Innovation has been demonstrated by Samsung and Oppo releasing devices with foldable screens and pop‑up cameras. There is no embargo on innovation and customisation by OEMs. Certain permitted exceptions within the AFA allow OEMs to manufacture devices that are not Android Compatible Devices. The evidence brought before the Director General (DG) was not correctly appreciated with regard to forks. The Commission’s observation that anti‑fragmentation obligations cover a wide gamut of smart devices and that Google inhibited development of alternative Android‑based operating systems for smart TVs, watches and speakers is without jurisdiction because those markets are not the subject of the present investigation., The DG specifically asked the AT No. 01 of 2023 OEMs whether the AFA/ACC had impaired their ability to offer differentiated products, and the answer was negative. Attributing the failure of Amazon Fire OS to the AFA obligations is factually inaccurate because Amazon was not a signatory to the Mobile Application Distribution Agreement (MADA) or the AFA., The Revenue Share Agreement (RSA) is a voluntary, device‑wise agreement. A MADA signatory is not obliged to enter into an RSA. The DG and the Commission relied on a European Commission decision that examined portfolio‑based RSA. After 2014 OEMs are free to enter into RSA for one device only; Xiaomi is an RSA signatory, whereas Microsoft has an RSA with Xiaomi. The DG’s findings are based on a portfolio basis, whereas RSAs were device‑based. No user survey was conducted by the DG, and the Commission has not analysed the universe of MADA covered by RSA., The Commission has conjectured several conclusions that are not based on any evidence. There is no denial of market access by RSA; the RSA covers only qualified devices and does not impose unfair terms on OEMs. The MADA and RSA are separate agreements. Only six RSAs exist wherein OEMs entered into agreement with Google; OEMs have other agreements with other service providers. Xiaomi entered into an RSA with Bing in 2018. The MADA is a complete agreement with the matters it deals with, while the RSA is optional and can be read together with the MADA only when they are part of the same transaction., The Commission found a violation of Section 4(2)(b)(ii) of the Competition Act by observing that Google, by pre‑installation of proprietary apps and conditioning signing of the AFA/ACC for all Android devices, reduced the incentive of device manufacturers to develop and sell devices operating on alternative versions of Android (Android Forks). Google has a legitimate interest in licensing its apps only for devices that meet its minimum requirements, an observation also made by the Commission. The Commission relied on evidence from Amazon, which stated it does not want any Google apps, but there is no evidence that OEMs are precluded from manufacturing forks. Under the Android Open Source Project (AOSP) Google provides a free licence that any OEM can use to develop an Android Fork. The Commission’s findings that Google violated Section 4(2)(b) are unsustainable., Evidence before the DG shows that OEMs value the objective of the AFA/ACC and do not wish to develop or distribute fork devices. The Commission selectively relied on AT No. 01 of 2023 evidence from some OEMs while ignoring material evidence from others. Statements of Xiaomi and Lava were not fully read, and the Commission disproportionately relied on Amazon’s statements, which are inaccurate. Attributing the failure of Fire OS to the AFA is incorrect because Amazon was not a signatory to the MADA or AFA. Google’s proprietary apps, i.e., Application Programming Interfaces (APIs), were not the subject of the investigation; although the Commission recognised that Google has no obligation to give APIs, it directed Google to share them, which is an overreach of its intellectual property rights., Google Chrome, which is a search engine of Google, is not required to be made the default search under the MADA. OEMs may pre‑install as many search engines as they desire and users can disable any pre‑installed search and install another. Despite Chrome being pre‑installed, the UC Browser was downloaded on 79 % of Android devices in 2018. On desktop, Chrome is not pre‑installed but 86 % of users downloaded it. Default settings do not deny market access to competitors and users are free to switch away from the default., The Commission erred in concluding that Google leveraged the Play Store in the app‑store market for Android to strengthen Google Search in the online search market. The MADA does not restrict OEMs from pre‑installing competing search services. Both OEMs and users have indicated a preference for Google Search due to its superior quality. Google Search’s market share of 97.82 % across devices in 2011 and 97.69 % in 2019 is consistently high regardless of pre‑installation, and the success of search cannot be attributed to its pre‑installation under the MADA., Senior Counsel Arun Kathpalia submits that the Commission’s order shows confirmation bias, as it merely confirmed the order passed by the European Commission without independent consideration of the evidence on record., The Commission, without any inquiry, concluded a status‑quo bias in favour of Google. No user survey was conducted; yet the Commission claimed that 80 % of devices download the UC Browser, which contradicts the alleged bias. The finding of status‑quo bias is therefore without basis., The remedies directed under Section 27 of the Competition Act are drastic and unjustified. The Commission directed that Google shall allow developers of app stores to distribute their app stores through the Play Store, but this direction was issued without any discussion or finding and is ultra vires. No finding of abuse in the Play Store market was reported. Similarly, the direction that Google must share its Application Programming Interfaces, which are its intellectual property, would halt innovation and discourage technical advancement., The direction concerning sideloading states that Google does not prohibit sideloading but only issues warnings to protect users from malware. The direction that OEMs must make devices compatible under the AFA/ACC does not restrict OEMs from developing Android Forks for themselves. The direction restricting un‑installation of pre‑installed apps is unnecessary because users can disable those apps. Other directions, such as modifying the royalty‑free licensing model, would increase manufacturers’ costs and likely lead to higher prices for Indian consumers., Senior Counsel Maninder Singh challenges the procedure adopted by the DG and the Commission, including the penalty imposed on the appellant. He argues that the DG’s investigation was biased, with leading questions and a lack of empirical analysis, and that the Commission failed to compute the relevant turnover or apply the doctrine of proportionality as laid down by the Supreme Court in Excel Corp Care Limited v. Competition Commission of India (2017). The penalty and fine imposed are therefore disproportionate., The impugned order was passed in the absence of a Judicial Member, which is a mandatory requirement under the law for bodies exercising adjudicatory functions., Additional Solicitor General N. Vanketaraman submits that the test of Appreciable Adverse Effect on Competition (AAEC) is not attracted in Section 4 of the Competition Act; it is prescribed only for Sections 3 and 6. Therefore, effect analysis is not applicable to the alleged violations of Section 4. Nevertheless, the Commission recorded findings of abuse of dominance, citing mandatory pre‑installation and bundling of eleven core Google applications, tying of the Play Store with Google Search, Chrome and YouTube, and the reduction of OEM incentives to develop Android Forks, all of which constitute violations of various sub‑sections of Section 4., The Revenue Share Agreement, the Mobile Application Distribution Agreement and the AFA/ACC must be read together to determine their cumulative effect on an OEM. An OEM that is an RSA signatory must first sign the MADA, and to sign the MADA it must also sign the AFA/ACC, showing interdependence among the three agreements. The AFA/ACC and MADA allow Google to take complete control of OEM devices, making Google Search a must‑have app bundled with ten other Google apps and pre‑installed. The RSA further obliges OEMs to share revenue and to ensure that Google Search remains the default and exclusive search service on the device., Clause 2.4.3 of the RSA (Exhibit D) grants exemptions to certain jurisdictions such as the European Economic Area, Russia, Turkey and Korea from the exclusivity requirements imposed on other countries., The Android Compatibility Commitment (ACC) clauses prohibit OEMs who sign the ACC from producing Android Forks on any of their devices. The ACC effectively renders the Apache open licence defunct because OEMs are forced to sign a standard agreement that bars them from developing, manufacturing or selling Android Fork devices and software. This creates a barrier to entry for competitors, as evidenced by Amazon’s difficulty in finding a manufacturing partner for its Fire OS. The obligations under the ACC cement Google’s dominant position and the waivers granted by Google do not equate to commercial freedom for OEMs.
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Google is a virtual monopolist in the licensable smart device operating system. The Competition Commission of India, after detailed analyses, has found that Google has reduced the ability and incentive of original equipment manufacturers to develop and sell devices operating on forks, thereby limiting technical or scientific development to the prejudice of consumers, in contravention of Section 4(2)(b)(ii)., Shri Venkataraman submits that a special responsibility is cast by the statute on a dominant player. The competition law is enacted in public interest to protect consumers and other stakeholders. The dominant player has onerous duties and any anti‑competitive conduct is prohibited., The learned Assistant Solicitor General submits that Google is not only dominant but super‑dominant, and a dominant player is supposed to self‑police; failure to discharge special responsibilities leads to abuse. As soon as an entity becomes dominant, its freedom is circumscribed with heightened responsibility and it should be aware of its effect and its actions. The Preamble as well as Section 18 cast an obligation on the Competition Commission of India to prevent anti‑competitive practices. The argument of Google that under Section 4(2)(c) total denial or total access has to be proved is incorrect. The legislative threshold is limited; the denial of market access is sufficient to attract Section 4(2)(c)., The learned Assistant Solicitor General, replying to the submission made on behalf of the appellant regarding procedural infirmities in the conduct of investigation by the Director General, submits that compliance with natural justice at the time of investigation is uncalled for. The Director General cannot be equated with the Investigating Officer under criminal law procedure. The Director General is duty‑bound to elicit information relevant for the investigation and performs purely inquisitorial functions, culminating in a non‑binding report which is ultimately considered and adjudicated by the Competition Commission of India after giving due opportunity to the parties to be heard., Relying on the submission made on behalf of the appellant that the Commission does not have a Judicial Member and the impugned order needs to be set aside for want of proper quorum, the learned Assistant Solicitor General submits that Section 15 of the Competition Act clearly provides that any defect in the constitution of the Commission shall not vitiate any proceedings. The quorum of the Commission is as per the Act and no infirmity can be read into the functioning of the Commission. The argument of the appellant is rejected., Replying to the submission advanced by the learned Senior Counsel for the appellant on the measures directed by the Commission in paragraph 617, the learned Assistant Solicitor General submits that the Commission is sufficiently empowered to pass such remedial directions. Section 27(a) empowers the Competition Commission of India to impose the remedy by directing the enterprise to discontinue abuse of dominant position, and appropriate measures can be taken to achieve the object. It is submitted that not sharing APIs by Google was done with the anti‑competitive objective of discouraging forks; therefore, a direction was issued to share the APIs. The impugned order contains sufficient analysis regarding APIs. The learned Assistant Solicitor General further submits that Google must permit side‑loading. Google imposes excessive restrictions, which have severely impacted its competitors who side‑load competitive apps on Android OS. The direction to Google to allow listing of third‑party apps in its Play Store is also in consonance with the findings returned by the Commission., Replying to the submission of learned counsel for the appellant on imposition of penalty by the Commission on the ground that the Commission has not taken into consideration the relevant turnover, the learned Assistant Solicitor General submits that all relevant facts have been taken into consideration while imposing the fine. The relevant turnover as laid down by the Hon'ble Supreme Court has been noticed by the Commission. Thereafter, the Commission proceeded to analyse relevant turnover in the light of the principles laid down. The Commission rightly rejected Google's argument that only the revenue generated from the usage of Google's Search or YouTube through access points should be considered for relevant turnover for calculation of penalty., The Commission directed Google to submit financial data duly certified by a Chartered Accountant, whereas no data certified by a Chartered Accountant was submitted by Google. Google submitted financial information and documents with a certificate of its own officers. The financial information submitted on 11‑10‑2022 was subject to multiple caveats and disclaimers. The order dated 19‑09‑2022 was passed by the Commission to resubmit data after addressing the various shortcomings in the first submission. The Commission gave more than one opportunity to Google, but it failed to give clear financial data with regard to its relevant turnover duly supported by Chartered Accountant's certificate. The Commission then proceeded with the best possible alternative to compute the amount of penalty after Google's failure to provide relevant data, with an intent of ensuring necessary market correction at the earliest. The learned Assistant Solicitor General further submits that the Commission has considered the lower of the two conflicting figures given by Google with regard to total turnover for the financial years in question. The Commission's decision to impose penalty at 10 % of Google's turnover is clearly justified., The learned Assistant Solicitor General submits that Google's business model is akin to a castle and moat model. Implementation of the remedies mentioned in the order of the Commission would go a long way towards achieving the national mission of fair competition in the digital marketplace. The Commission, after considering relevant evidence on record and the report of the Director General, has passed the impugned order, which contains elaborate consideration and all relevant findings, and needs no interference by this Tribunal in the exercise of its appellate jurisdiction. The Commission as a regulator has to discharge its duty and function as entrusted by the Competition Act, 2002., We have also heard the learned counsel for the intervenors, who had sought intervention in this appeal., Shri Amit Sibal, learned Senior Counsel appearing in Intervenor Application No. 630 of 2023 on behalf of Epic Games Inc., submits that Google excludes all apps from the Google Play Store, creating severe impediments for downloading and side‑loading. Epic Games also operates its own app store. In side‑loading, warnings issued by Google are deterrent and result in inability to download. The applicant is compatible with Android. The remedial measures directed by the Commission flow from the conclusion of the Commission. Shri Sibal refers to Section 27(g), which empowers the Commission to pass any order as it may deem fit, including penalty. Google's policy of exclusion of third‑party apps is without any basis. Google Play Store is present on 98.4 % of mobile devices. Referring to the obstacles of side‑loading, Shri Sibal submits that side‑loading involves thirteen steps, whereas on PC there are no restrictions in downloading apps. The only reason for such restrictions is to cement the dominance of Google., Shri Abir Roy, learned counsel appearing for the applicant in Intervenor Applications No. 327 and 336 of 2023 on behalf of C.E. Info Systems Ltd. and Alliance of Digital India Foundation respectively, submits that the applicant has appeared before the Director General. The applicant has developed its app store in twelve Indian languages and is an Indian app developer., Shri Rajshekhar Rao, learned Senior Advocate appearing for OSlabs Technology (India) Pvt. Ltd. in Intervenor Application No. 232 of 2023, submits that the applicant is an Indian home‑grown system‑apps company, galvanized by the mission of the Hon'ble Prime Minister of Digital India. The applicant has built India's only indigenous mobile app store for Indian users to discover mobile applications in regional Indian languages of their choice. Referring to Section 4, Shri Rao submits that the larger the enterprise, the greater its responsibility. Referring to Section 19(4), Rao states that each aspect has been evaluated by the Competition Commission of India. He further submits that Google's argument of technical necessity to bundle the entire suite of apps is incorrect; there is no technical necessity for such bundling. The complaint that Google made against Microsoft is now being made against Google in the present proceedings. Rao submits that tying is prohibited and supplementary obligations thrust upon OEMs are violative of Section 4. The counsel for the applicant supports the order of the Commission., We have considered the arguments of the learned counsel for the parties and perused the records. The learned counsel for the parties have relied on various decisions of the Hon'ble Supreme Court, High Courts, Competition Appellate Tribunal and Competition Commission of India, which we shall refer to while considering the submissions in detail., From the submissions advanced by learned counsel for the parties and from perusal of the records, the following issues arise for consideration in this appeal: (1) Whether for proving abuse of dominant position under Section 4 of the Competition Act, 2002 any effect analysis of anti‑competitive conduct is required and, if so, what test is to be employed? (2) Whether the order of the Commission can be said to be replete with confirmation bias? (3) Whether pre‑installation of the entire GMS suite amounts to imposing an unfair condition on OEMs, which is an abuse of dominant position by the appellant resulting in breach of Section 3(a)? (4) Whether the Commission, while returning its finding on breach of Section 4(2)(a)(i) and 4(2)(d), has not considered the evidence on record and has not returned any finding regarding the appellant's conduct being anti‑competitive? (5) Whether the appellant, by making pre‑installation of the GMS suite conditioned upon signing of AFA/ACC for all Android device manufacturers, has reduced the ability and incentive of OEMs to develop and sell devices operating on alternative versions of Android (Android forks), thereby limiting technical and scientific development in breach of Section 4(2)(b)(ii)? (6) Whether the appellant has perpetuated its dominant position in the online search market resulting in denial of market access for competing search apps in breach of Section 4(2)(c)? (7) Whether the appellant has leveraged its dominant position in the Play Store to protect its dominant position in online general search in breach of Section 4(2)(e)? (8) Whether the appellant has abused its dominant position by tying Google Chrome with the Play Store in breach of Section 4(2)(e)? (9) Whether the appellant has abused its dominant position by tying YouTube with the Play Store in breach of Section 4(2)(e)? (10) Whether the investigation conducted by the Director General violated principles of natural justice? (11) Whether the investigation conducted by the Director General is vitiated due to the Director General framing leading questions to elicit information? (12) Whether the order of the Commission is vitiated since the Commission did not have any Judicial Member? (13) Whether the order passed by the Commission in exercise of its power under Section 27(a) is beyond the findings recorded by the Commission and is not in accordance with law? (14) Whether the penalty imposed on the appellant by the Commission in exercise of its power under Section 27(b) was not based on relevant turnover of the appellant, and is disproportionate and excessive? (15) Relief, if any, to which the appellant is entitled., Before we proceed to examine the various issues, we may have a brief overview of jurisprudence of competition law., The competition law is about the economic analysis of markets within a legal process. It must be effective in promoting competitive growth and enhancing consumer welfare. The thrust now is to build an active competition environment in which business can thrive and innovate, keeping pace with new‑age development in the digital market. The Indian economy has transformed into one of the largest and fastest‑growing economies in the world. Competition is now mainstream in Indian political‑economic philosophy. The Competition Commission of India performs diverse functions, involving investigation, inquiry and adjudication, which require a complex and sensitive approach compatible with principles of natural justice. The scheme of the Competition Act, 2002 indicates that the Commission has a positive duty to eliminate all practices which have an adverse effect on competition, to promote and sustain competition, and to protect the interests of consumers., The statutory scheme under the Competition Act, 2022 began with the Competition Bill, 2001 introduced in the Lok Sabha. The Bill sought to ensure fair competition in India by prohibiting trade practices which cause an appreciable adverse effect on competition (AAEC). The Statement of Objects and Reasons reads: In the pursuit of globalisation, India has responded by opening up its economy, removing controls and resorting to liberalisation. The natural corollary is that the Indian market should be geared to face competition from within the country and outside. The Monopolies and Restrictive Trade Practices Act, 1969 has become obsolete in certain respects in the light of international economic developments relating to competition laws, and there is a need to shift focus from curbing monopolies to promoting competition., The Central Government constituted a High Level Committee on Competition Policy and Law, which submitted its report on 22 May 2000. After consulting trade and industry associations and the general public, the Government decided to enact a law on competition. The Competition Bill, 2001 provides for the establishment of a quasi‑judicial body to be called the Competition Commission of India (CCI), which shall also undertake competition advocacy, create awareness and impart training on competition issues., The Competition Act, 2002 includes the Preamble: ‘An Act to provide, keeping in view the economic development of the country, for the establishment of a Competition Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets in India, and for matters connected therewith or incidental thereto.’, Section 2 of the Competition Act contains definitions. Section 3 deals with anti‑competitive agreements and Section 4 deals with abuse of dominant position. Section 3 provides that no enterprise or association of enterprises shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services which causes or is likely to cause an appreciable adverse effect on competition within India. Such agreements are void. The section enumerates agreements that directly or indirectly determine purchase or sale prices, limit or control production, supply, markets, technical development, investment or provision of services, share the market or source of production, result in bid rigging, or involve tie‑in arrangements, exclusive supply or distribution agreements, refusal to deal, resale price maintenance, etc., and provides exceptions where such agreements increase efficiency., Section 4 defines abuse of dominant position. No enterprise or group shall abuse its dominant position. Abuse includes imposing unfair or discriminatory conditions in purchase or sale of goods or services, limiting or restricting production of goods or provision of services or technical or scientific development to the prejudice of consumers, indulging in practices resulting in denial of market access, making contracts subject to supplementary obligations unrelated to the contract, or using dominant position in one market to protect another market. ‘Dominant position’ means a position of strength enjoyed by an enterprise in the relevant market in India which enables it to operate independently of competitive forces or affect its competitors or consumers in its favour. ‘Predatory price’ means the sale of goods or provision of services at a price below cost with a view to reduce competition or eliminate competitors., Section 5 deals with combinations and Section 6 with regulation of combinations., Section 18 contains the duties of the Commission: to eliminate practices having adverse effect on competition, to promote and sustain competition, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets in India, subject to the provision that the Commission may, for the purpose of discharging its duties, enter into any memorandum or arrangement with prior approval of the Central Government and any foreign agency., Section 19 empowers the Commission to inquire into any alleged contravention of the provisions of Section 3 or Section 4, either on its own motion or on receipt of information, or a reference made by the Central Government, a State Government or a statutory authority. While determining whether an agreement has an appreciable adverse effect on competition, the Commission shall have regard to factors such as creation of barriers to new entrants, driving existing competitors out of the market, foreclosure of competition, accrual of benefits to consumers, improvements in production or distribution, and promotion of technical, scientific and economic development. While inquiring whether an enterprise enjoys a dominant position, the Commission shall consider market share, size and resources, size and importance of competitors, economic power, vertical integration, dependence of consumers, statutory acquisition of dominance, entry barriers, counter‑vailing buying power, market structure, social obligations, relative advantage to economic development, and any other relevant factor., The learned Senior Counsel for the appellant submits that it is inherent in Section 4 that effect analysis is to be conducted before concluding that a dominant position has been abused. He argues that the object of the Act is to prevent practices having adverse effect on competition and that the duties of the Commission include a duty to eliminate such practices, so adverse effect must be proved before holding any violation of Section 4., The learned Assistant Solicitor General refutes this submission, stating that the scheme of Sections 3, 4 and 6 is different. In Sections 3 and 6, analysis of an appreciable adverse effect on competition within the relevant market is a statutory requirement. No such provision is made in Section 4. Section 4(1) merely provides that no enterprise or group shall abuse its dominant position, and Section 4(2) enumerates the conduct that constitutes abuse. The requirement of law is that the conduct covered by Section 4(2) per se leads to violation of Section 4, and no effect analysis is required. Even if the Commission has conducted effect analysis in some cases, it is not a requirement of law, and this Tribunal may hold that no effect analysis is required under Section 4., The Preamble of the Act, as noted above, contains the statement that the Competition Act has been enacted for the establishment of the Commission to prevent practices having an adverse effect on competition.
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It is a well‑established rule of statutory interpretation that the preamble does not control the interpretation of statutory provisions contained in the Act, but the preamble is a key to explain the object and purpose of enactment. Section 18, as noticed above, contains the duties of the Commission, which provides that it shall be the duty of the Commission to eliminate practices having an adverse effect on competition. We have to read Sections 3, 4, 6 and Section 18 in a harmonious way to find out the intent and purpose of the Act. The learned Additional Solicitor General is right in his submission that although Sections 3 and 6 use the expression \cause an appreciable adverse effect on competition\ whereas such phrase is not used in Section 4. The legislative intent is clear that the expression \an appreciable adverse effect on competition\ has to be found only with respect to Section 3 and Section 6 and the AAE test, which is attracted in Sections 3 and 6, is not attracted in Section 4. The question to be answered is whether, even if the AAE test is not attracted in Section 4, any analysis of conduct of an enterprise or group of anti‑competitive conduct has to be looked into or not., Before we proceed further, it is useful to notice the relevant case laws which have been relied upon by learned counsel for both parties., The learned Senior Counsel for the Appellant has relied on the judgment of the Competition Commission of India in Indian National Shipowners Association (INSA) vs. Oil and Natural Gas Corporation Limited (ONGC) Case No. 01 of 2018 decided on 02 August 2019. The Competition Commission in the said judgment held that the existence of an unfair condition may amount to a contravention of Section 4(2)(a)(i) of the Act; however, examination of exploitative conduct which involves imposition of an unfair condition by a dominant enterprise in a business‑to‑business transaction is essentially to undertake a fairness or reasonableness test, which requires examining both how the condition affects the trading partners of the dominant enterprise and whether there is any legitimate and objective necessity for the enterprise to impose such condition., Paragraph 135 of the judgment is as follows: Having given due regard to the aforesaid rival contentions of the parties, the Commission observes that Section 4(2)(a)(i) primarily covers exploitative conduct within its ambit. While dealing with a case involving exploitative conduct inflicted upon a consumer, the mere existence of such conduct may fulfil the criterion embedded under Section 4(2)(a)(i) of the Act. Thus, the existence of an unfair condition may amount to a contravention of the provisions of Section 4(2)(a)(i) of the Act. However, examination of exploitative conduct which involves imposition of an unfair condition by a dominant enterprise in a business‑to‑business transaction is essentially to undertake a fairness or reasonability test, which requires examining both how the condition affects the trading partners of the dominant enterprise and whether there is any legitimate and objective necessity for the enterprise to impose such condition. Appreciation of the context and rationale becomes all the more important in the cases of buyer power, lest it increase the risk of large industrial buyers being penalised for what may be an attempt to negotiate competitive terms with suppliers or simply a prudent business decision having pro‑competitive effects in the market for the final product in terms of lower prices, larger availability, greater choice etc. Keeping this framework for determination of unfairness in view, the conduct of ONGC is analysed hereunder., The next case relied on by Shri Kathpalia is the judgment of the Commission in Case No. 03 of 2017 Bharti Airtel Limited vs. Reliance Industries Limited and Another, where the Commission held that a dominant enterprise has to be shown to be tainted with an anti‑competitive objective of excluding competition. In paragraph 22, the following was observed: In the absence of any dominant position being enjoyed by OP‑2 in the relevant market, the question of examining the alleged abuse does not arise. Notwithstanding this, the offers of OP‑2 do not appear to raise any competition concern at this stage. All through the preliminary conference, the learned senior counsel for the Informant alleged that the impugned offers of OP‑2 amount to below‑cost pricing and resulted in OP‑2 gaining a huge subscriber base of around 72 million in a period of just four months. This, according to the Informant, amounts to predatory pricing. However, the Informant has not demonstrated reduction of competition or elimination of any competitor nor any intent to that effect. The Commission notes that providing free services cannot by itself raise competition concerns unless the same is offered by a dominant enterprise and shown to be tainted with an anti‑competitive objective of excluding competition or competitors, which does not seem to be the case in the instant matter as the relevant market is characterised by the presence of entrenched players with sustained business presence and financial strength. In a competitive market scenario, where there are already big players operating in the market, it would not be anti‑competitive for an entrant to incentivise customers towards its own services by giving attractive offers and schemes. Such short‑term business strategy of an entrant to penetrate the market and establish its identity cannot be considered anti‑competitive in nature and therefore cannot be a subject matter of investigation under the Act., Shri Kathpalia further relied on the judgment of the Competition Appellate Tribunal in Schott Glass India Private Limited vs. Competition Commission of India 2014 SCC OnLine Comp AT 3, where the Tribunal set aside the decision of the Commission imposing the penalty by holding that there was no effect on the downstream market and the ultimate consumer did not suffer on account of the prices of Schott Kaisha. In paragraph 55, the following was observed: These facts should have been enough to hold that there was no effect on the downstream market and the ultimate consumer did not suffer on account of the prices of Schott Kaisha and others being similar or the same. Though a different or larger discount was made to Schott Kaisha by the Appellant, it did not ultimately affect the downstream market at all and, in this regard, the principles involved in Article 82 of the EU Treaty as well as the provisions of the United States Robinson‑Patman Act should have been adhered to., The Competition Commission of India’s judgment in Harshita Chawla and Others vs. WhatsApp 2020 SCC OnLine CCI 32 has also been relied upon where the Commission, while examining provisions of Section 4(2)(a)(i) and 4(2)(a)(d), held that one of the conditions is that tying is capable of restricting or foreclosing competition in the market. It was held in paragraphs 91, 92 and 93 as follows: As regards Section 4(2)(a)(i), the Commission does not find much merit in the allegation of the Informant as mere existence of an app on the smartphone does not necessarily convert into transaction or usage. WhatsApp’s written submissions state that to enable WhatsApp payment, the user must separately register, accept the service agreement and privacy policy, and link a bank account as per the NPCI framework for UPI digital payment apps. No transaction can be completed without these voluntary steps. Incorporating the payment option in the messaging app does not influence a consumer’s choice, particularly given a strong likelihood of status‑quo bias favouring incumbents. WhatsApp has categorically ensured that users retain full discretion to use WhatsApp Pay or any other payment app already downloaded on their smartphones. Thus, in the absence of any explicit or implicit imposition that removes this discretion, the mere integration does not contravene Section 4(2)(a)(i) of the Act. Regarding the allegation under Section 4(2)(d), the Commission observes that although the Informant used the word “bundling”, the allegation is more akin to tying. Tying refers to a practice whereby the seller of a product or service (tying product) requires the buyer to also purchase another separate product or service (tied product). Bundling typically means that the two products are sold together in a fixed proportion at a particular price. Economic literature and decisions by other competition authorities have laid down conditions to conclude a case of tying: (i) the tying and tied products are separate; (ii) the entity concerned is dominant in the market for the tying product; (iii) customers do not have a choice to obtain only the tying product; and (iv) the tying is capable of restricting or foreclosing competition in the market., Another judgment relied upon is of the Competition Commission of India in Case No. 33 of 2014 in XYZ vs. REC Power Distribution Company Ltd., dealing with Section 4, sub‑section (2)(c). The Commission held: As per Section 4(2)(c) of the Act, there shall be an abuse of dominant position if an enterprise or a group indulges in practices resulting in denial of market access in any manner. The conduct requires two components: (i) an indulgence in a practice, i.e., a conduct; and (ii) that the conduct has resulted in denial of market access, i.e., an anti‑competitive effect or distortion in the market. The Commission noted that during 2013‑14, RECPDCL was awarded 70 DPRs on a nomination basis out of 189 total (37 %). Its market share in the second market, including all DPRs prepared for 2013‑14, was approximately 40 %. Although RECPDCL’s entry reduced the market share of other consultancy firms, the market remained contestable. Discom responses showed a clear preference for appointing RECPDCL. In the absence of conduct by the OP group, the reduction in market share of some players cannot be used to infer anti‑competitive conduct by the OP group. Moreover, RECPDCL’s share fell to about 36 % in 2015‑16, further weakening the allegation of denial of market access. With more than 60 % market share held by other consultancy firms and no evidence of OP group influencing Discom decisions, the Commission concluded that a contravention of Section 4(2)(c) cannot be made out in the instant case., The learned Additional Solicitor General has placed reliance on the judgment of the Competition Commission of India in Case No. 13/2019 MCX Stock Exchange Ltd. vs. National Stock Exchange of India Ltd. In paragraph 25.1, the Commission observed that once it is established that an enterprise or group is engaged in conduct specified in clauses (a) to (e) of Section 4, there is no statutory requirement to examine any additional impact on competitors. The contention that the Commission’s order dated 25 May 2011 made no observation on harm to consumers and therefore lacks an element of abuse is dismissed because Section 4 does not require such observation. Section 4 first requires establishing that an enterprise or group is in a dominant position in the relevant market, and then that it has engaged in conduct specified in clauses (a) to (e). Once both are established, no further examination of impact on competitors, consumers, or the market is required. Unlike Section 3, Section 4 does not require evaluation of an appreciable adverse effect on competition (AAEC) or the factors mentioned in Section 19(3), which include accrual of benefits to consumers., It is submitted that the above judgment has also been affirmed by the Competition Appellate Tribunal in National Stock Exchange of India vs. Competition Commission of India – 2014 SCC OnLine Comp AT 37. While the Tribunal affirmed the Commission’s decision, paragraph 25.1 has not been specifically affirmed or departed., The learned Additional Solicitor General relied on a judgment of the Supreme Court of India (Fifth Chamber) in Servizio Elettrico Nazionale, citing paragraphs 53, 54 and 123. The Court held that characterising a practice of a dominant undertaking as abusive does not require proof that the practice has actually driven competitors out of the market; the purpose of Article 102 TFEU is to penalise abuse of a dominant position irrespective of whether the practice has proved successful. The Court noted that even if a conduct has not produced actual anti‑competitive effects, it may still be capable of doing so, and absence of effect could be due to other causes such as market changes or the dominant undertaking’s inability to implement its strategy. The Court further stated that when a dominant position is abused by subsidiaries belonging to an economic unit, the existence of that unit is sufficient to find the parent company liable for the abuse, unless the parent shows it lacked power to define the subsidiaries’ conduct., The same judgment clarified that evidence showing a conduct has not produced actual restrictive effects is not sufficient to rule out abuse; additional evidence is required to demonstrate the inability of the conduct to produce anti‑competitive effects. The Court also reiterated that assessment of an abusive exclusionary practice must focus on whether the practice is capable of producing anti‑competitive effects, and that intent to exclude competitors is a factor that may be taken into account but is not mandatory., The Supreme Court (Fifth Chamber) also held that a dominant position must be assessed on the basis of whether the practice is capable of producing an anti‑competitive effect. This judgment does not support the Commission’s submission but rather supports the Appellants’ position., A judgment of the Honorable Supreme Court reported in (2019) 8 SCC 697 Uber (India) Systems Pvt. Ltd. vs. Competition Commission of India laid down that Section 4(1) refers to two ingredients for an abuse of dominant position: (1) the dominant position itself and (2) its abuse. Dominant position, as defined in Explanation (a), refers to a position of strength enjoyed by an enterprise in the relevant market (the National Capital Region) which enables it to operate independently of competitive forces or to affect its competitors or the market in its favour., The Committee Report on the Competition Law Review (July 2019) noted that the Competition Commission of India has sometimes followed a per se approach and sometimes an effects‑based analysis. The Report observed that Section 4(2) does not refer to the effect of actions by dominant enterprises, which may suggest a per se approach, whereas Section 3 requires an AAEC test. The Committee discussed whether an effects‑based analysis should be undertaken to establish abuse under Section 4, citing the Raghavan Committee Report that indicated such an approach was contemplated. It reviewed Indian jurisprudence, noting that in the NSE case the Commission followed a per se approach, while in Dhanraj Pillay v. Hockey India and the Schott Glass case the Commission and the Tribunal adopted effects‑based analyses, considering objective justifications and market impact. The Committee also highlighted that the Supreme Court has interpreted Section 4(2)(c) broadly to include restraining entry of non‑competitors, but has held that a penalty need not be imposed where legitimate justifications are provided. After analysing decisional practice, the Committee concluded that the Competition Commission of India does adopt an effects‑based approach in many cases, aligning with the approach of EU competition authorities. It noted that Article 102 TFEU does not provide an exhaustive list of abusive practices and that EU practice has moved from per se rules to effects‑based analysis, especially for exclusionary abuses, while exploitative abuses remain presumptively unlawful unless the dominant firm shows the conduct cannot restrict competition., Singapore’s competition authority, the Competition and Consumer Commission of Singapore, follows a similar approach. In conducting an assessment of an alleged abuse of dominance, the CCCS undertakes an economic effects‑based assessment to determine whether the conduct has, or is likely to have, an adverse effect on the process of competition, considering factors such as the position of the alleged dominant party, market structure, and the position of customers or input suppliers., In the United States, a monopoly is not per se unlawful and is judged under the rule of reason. To establish monopolisation, authorities must analyse whether the defendant’s conduct harms competition or consumers. Other jurisdictions, including Australia, Brazil and Canada, have also adopted the rule of reason to assess whether activities constitute an abuse of dominant position., The Committee, after noting the above, was of the view that effect analysis by the Competition Commission of India is well within the text of Section 4(2); therefore, no amendment is required in Section 4, sub‑section (2).
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| 4
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It was stated that the current test of Section 4(2) has not proven to be a hindrance to the Competition Commission of India's ability to assess effects in abuse of dominance disputes., Based on the above, the Committee discussed that the Competition Commission of India has interpreted Section 4(2) keeping in mind that one of the key aims of the Act is to prevent practices which adversely affect competition in India. It has therefore, wherever appropriate, analysed the effects of alleged abusive conduct by dominant entities before passing orders regarding such conduct. The Commission has relied on the effects built into some of the clauses of Section 4(2) to support its approach, for example denial of market access in any manner in Section 4(2)(c). The Committee did not find any significant issues with the decisional practice of the Commission and found it to be in line with global practices. After conducting an analysis of the Commission's orders, the Committee concluded that the current text of Section 4(2) has not proven to be a hindrance to the Commission's ability to assess effects in abuse of dominance disputes. It was agreed that since it may not be necessary to undertake an effects analysis in all kinds of abuse, for example exploitative abuse, it may not be appropriate to mandate an effects analysis in Section 4(2). Therefore, it was concluded that no legislative amendment is required in this regard., Article 102 of the Treaty on the Functioning of the European Union provides that any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market insofar as it may affect trade between Member States. Such abuse may, in particular, consist of: (a) directly or indirectly imposing unfair purchase or selling prices or unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts., In earlier cases, the Court of Justice of the European Union applied a per se rule, but there has been a shift in the opinion of the EU courts, which has been captured by Richard Whish and David Bailey in the Tenth Edition of Competition Law, Section 5 dealing with Article 102. Under the heading 'Legal formalism: are there any per se rules under Article 102?', it is noted that a common complaint about Article 102 is that the Commission and the EU courts have applied it in a too formalistic manner. In particular, some practices have been regarded as unlawful per se, irrespective of whether they produced, or were capable of producing, adverse effects on the market., This tendency was exemplified by the law on loyalty rebates. The Court of Justice in Hoffmann‑Law Roche v Commission formulated a rule on exclusive dealing and loyalty rebates by a dominant undertaking in per se terms. In paragraph 89 of its judgment, after stating that it would be unlawful for a dominant firm to enter into exclusive dealing agreements, it continued that the same would be true where that firm applies, either under the terms of an agreement concluded with purchasers or unilaterally, a system of loyalty rebates, i.e., discounts conditional on the customer's obtaining all or most of its requirements from the dominant undertaking, regardless of the quantity of its purchases., In Intel v Commission the General Court continued to adopt a strict approach to exclusivity rebates, holding them illegal unless the dominant firm could show an objective justification for granting them. However, there was an increasing consensus against the application of per se rules to unilateral behaviour, and the judgment of the General Court in Intel attracted particular hostility because of its formalistic approach. On appeal, the Court of Justice, in paragraph 137 of its judgment, cited paragraph 89 of the Hoffmann judgment; however, in paragraph 138 the Court added an important qualification: if the undertaking concerned submits, during the administrative procedure, supporting evidence that its conduct was not capable of restricting competition or producing alleged foreclosure effects, the Commission is obliged to address that argument., The clarification means that a dominant firm that argues its behaviour could not have a foreclosure effect must have its argument considered, and exclusionary conduct can be abusive only where it can be shown to be capable of having anti‑competitive effects on efficient competitors. Thus, there is no per se illegality under Article 102. The Court of Justice has recently reaffirmed this position in the Paroxetine case, stressing that, having regard to all relevant facts, conduct may be characterised as abusive only if it is capable of restricting competition and, in particular, producing exclusionary effects., Where it is not possible to say that the object of a dominant firm's conduct is to harm competition, the jurisprudence of the Court of Justice is clear that conduct should be condemned as abusively exclusionary under Article 102 only where it is demonstrated to have the actual or likely effect of restricting or distorting competition., For example, in TeliaSonera the Court said that in order to establish whether a margin squeeze is abusive, that practice must have an anti‑competitive effect on the market. In Post Danmark I the Court of Justice said that when determining whether a pricing practice could be abusive it was necessary to take into account all the circumstances, including the likely effects of the practice, a formulation repeated in Post Danmark II. The Commission's decisional practice for many years has sought to produce evidence of anti‑competitive effects, as can be seen from cases involving Microsoft, Google Search (Shopping), Google Android and Qualcomm (exclusivity) payments. Paragraph 19 of the Commission's Guidance on Article 102 Enforcement Priorities says that it prioritises enforcement activity in relation to conduct that is likely to lead to an anti‑competitive foreclosure of the market, thereby having an adverse effect on consumer welfare., In the judgment of the Court of Justice in Case C‑52/09 Konkurrensverket v TeliaSonera Sverige, the Court held that to establish whether a margin squeeze is abusive, that practice must have an anti‑competitive effect on the market., The decisional practice of the Commission, as noted above in the majority of cases, is to undertake effects analysis, and the judgment of the Competition Commission of India in Schott Glass India Pvt. Ltd. also endorsed the same view. Section 4, Explanation to Section 4(2) provides that, for the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or services referred to in sub‑clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub‑clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition; or (b) limits or restricts (i) production of goods or provision of services or market thereof; or (ii) technical or scientific development relating to goods or services to the prejudice of consumers; or (c) indulges in practice or practices resulting in denial of market access in any manner; or (d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or (e) uses its dominant position in one relevant market to enter into, or protect, another relevant market., For the purposes of this section, the expression 'dominant position' means a position of strength enjoyed by an enterprise in the relevant market in India, which enables it to operate independently of competitive forces prevailing in the relevant market or to affect its competitors, consumers or the market in its favour. 'Predatory price' means the sale of goods or provision of services at a price below the cost of production, as may be determined by regulations, with a view to reduce competition or eliminate competitors. 'Group' shall have the same meaning as assigned to it in clause (b) of the Explanation to Section 5., The explanation clearly provides that an unfair or discriminatory condition in purchase or sale of goods or services shall not include such discriminatory condition or price which may be adopted to meet the competition., We therefore answer Issue No. 1 as follows: For proving abuse of dominance under Section 4, effect analysis is required and the test to be employed in the effect analysis is whether the abusive conduct is anti‑competitive or not., The learned senior counsel for the appellant submitted that the order of the Competition Commission of India is replete with confirmation bias by relying on the decision of the European Commission dated 18 July 2018 in Case No. 40099, Google Android. It was contended that after the press release, the judgment was issued, and within a month information was submitted on the basis of which proceedings under the Act were initiated. The report of the Director General indicated that the Director General proceeded to collect materials to submit a report finding abuse of dominant position by Google. The Commission, after receipt of the report, returned findings similar to those recorded in the European Commission judgment, indicating the existence of confirmation bias., The Commission passed an order under Section 26(1) dated 16 April 2019 forming a prima facie opinion that mandatory pre‑installation of Google's proprietary apps under the Mobile Applications Distribution Agreement amounts to imposition of an unfair condition on the Original Equipment Manufacturers (OEMs), and also formed a prima facie opinion regarding breach of other provisions. The Director General issued notice to Original Equipment Manufacturers and other third parties, collected evidence, and submitted a report on the basis of which the order was passed. The order is detailed, noting submissions made by the appellant, the report of the Director General, and other materials on record, and cannot be said to rely solely on the European Commission decision. The relevant markets were determined by the Director General as follows: (a) market for licensable operating system for smart mobile devices comprising smartphones and tablets in India; (b) market for app store for Android smart mobile OS in India; (c) market for general web search services in India; (d) market for non‑OS specific web browsers in India; (e) market for online video hosting platform in India., We answer Issue No. 2 as follows: The Commission considered the materials on record and submissions of the parties with respect to each market and recorded findings and conclusions after considering the evidence on record. Hence, we are unable to accept the submission of the learned senior counsel for the appellant that the order of the Commission is replete with confirmation bias., The Mobile Applications Distribution Agreement (MADA) with Karbonn, dated 26 September 2018, begins with the following background: (A) Google offers an integrated suite of mobile services on a non‑exclusive, royalty‑free basis to Android device manufacturers that have executed an Android Compatibility Commitment; (B) the company desires to license Google's suite of mobile services to provide a consistent high‑quality out‑of‑the‑box user experience on the company's Android compatible devices; (C) nothing in this agreement is intended to restrict the company or end users from installing third‑party services on devices with Google's suite of mobile services, including services with similar functionality; and (D) the company is under no obligation to install Google applications on any of its Android devices., Clause 1.12 defines Core Applications as the following Google applications: Search, Chrome, Gmail, Maps, YouTube, Play Drive, Play Music, Play Movies, Duo, and Photos., Clause 2.1 provides a non‑transferable, non‑exclusive, no‑cost license during the term, subject to compliance with the agreement and the Android Compatibility Commitment, for the company to (a) distribute the Google applications on devices in the territories, and (b) reproduce the Google applications to the extent necessary to exercise the license. The company may only distribute a device with Google applications if it makes all Core Applications authorized for distribution in the applicable territory available on such device, unless otherwise approved by Google in writing. For the avoidance of doubt, Google may license such Google applications under intellectual property rights that Google owns or has the right to license without payment to or consent from a third party., Clause 2.3(b) provides that the company may not, and may not allow or encourage any affiliate or third party to create derivative works from or based on Google applications. Sub‑clause 2.3(i) restricts third parties from offering, downloading, or installing any additional products during the launch process of a Google application., Clause 4 contains various sub‑clauses regarding device implementation requirements. Clause 4.4 provides for placement requirement – device setup, and Clause 4.8 addresses Google approval and launch. Clause 4.4(a) and (b) require distribution of all Core Applications approved in the applicable territory in accordance with the Google Product Geo Availability Chart, and distribution on the default home screen (excluding the lock screen and notification tray) of (i) a Google‑provided widget; (ii) the Google Play Store icon; and (iii) an icon clearly labeled or branded 'Google' that provides direct access to the Core Applications., The learned senior counsel for the appellant argues that MADA is an optional and per‑device agreement which is voluntary and not unfair, and that the terms of MADA are not imposed on Original Equipment Manufacturers (OEMs). The expression 'imposes' contains an element of compulsion which is not present in any of the clauses of MADA. The counsel further submitted that OEMs do not find MADA's conditions unfair, citing evidence from Oppo, Intex, Sony, Samsung, Xiaomi, and others indicating that they either seek exemptions for certain apps or provide alternative browsers without facing a dilemma., The Android Compatibility Commitment (ACC), earlier in the form of an Android Fragmentation Agreement, includes Clause 1.2 defining Android compatible devices as devices that comply with the Android Compatibility Definition Document for each applicable version of Android. Clause 2.1 provides that all Android‑based hardware and software manufactured, distributed, or marketed by the company will be Android compatible, and that the company may not distribute or market an Android‑based SDK to third parties, though it may develop an SDK for internal use., The Commission, after reviewing evidence collected from different Original Equipment Manufacturers (OEMs), concluded that OEMs are not in a position to bargain with Google on the basis of non‑existent alternatives. The Commission observed that the relevant market has not seen new entry but rather exits by Google's rivals, leaving OEMs more dependent on Google. The Commission assessed Google as dominant in all five identified markets and found weak countervailing buyer power with OEMs., The Commission held that Google does not negotiate the key terms of MADA, which constitute anti‑competitive conduct by foreclosing the market for rivals, and that MADA reduces potential choice for users. The covenants of MADA are in the nature of imposing unfair conditions on Original Equipment Manufacturers (OEMs) who have no choice but to accept them. The pre‑installation requirement for the entire suite of Google apps is a supplementary obligation imposed on OEMs if they wish to pre‑install even a single Google app. These practices, especially when seen along with the Android Fragmentation Agreement and relevant supplier agreements, harm competition by preventing alternative vendors from outcompeting Google's apps on merit., The Commission also concluded that the claim made by Google that MADA is optional and voluntary does not reflect the commercial reality in terms of the real choice available to a device manufacturer. While an OEM is not obligated to pre‑install any Google app on its Android devices, lack of essential Google apps such as the Play Store erodes the marketability of the devices, as the majority of users expect these apps. Google’s policy of withholding its own apps from non‑Google Android app marketplaces reinforces the compulsion for Original Equipment Manufacturers (OEMs) to pre‑install these apps on their Android devices. Access to the Play Store is particularly critical because Google includes more functionality and API calls under the closed licensing of Google Play, making Google Play Services a critical input for Android OEMs. To pre‑load even a single essential Google app, such as the Play Store, a device manufacturer must sign MADA and the Android Fragmentation Agreement, committing to pre‑install the full GMS suite., The appellant also submitted that no complaint was made by any OEM regarding abuse of dominant position by Google, and that in the evidence led by several OEMs before the Director General, no complaint was recorded., The competition law is a public law which obliges the Competition Commission of India to prevent practices having an adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers, and to ensure freedom of trade carried on by participants in markets. The regulator, which is statutorily obliged to discharge its statutory function, cannot confine its analysis and decision only on the basis of evidence of countervailing parties and competitors. Any conduct or arrangement concerning the interests of consumers and OEMs is amenable to examination by the Commission to protect consumer interests and preserve competition. Learned Additional Solicitor General, in support of his submission, relied on the judgment of the Honorable Supreme Court in LIC of India & Anr. v. Consumer Education and Research Centre, (1995) 5 SCC 482. Paragraphs 23 to 27 of that judgment state that every action of a public authority or a person acting in public interest should be guided by public interest, must be based on rational and relevant principles, and must be accompanied by reasons. Administrative decisions must be hedged by reasons, and public law remedies such as certiorari, prohibition and mandamus are distinct from private law remedies.
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| 5
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At p. 514 it was elaborated that this difficulty was removed in 1977 by the provision of a comprehensive application for judicial review, under which remedies in both facilities became interchangeable. At p. 573 with the heading Application for Judicial Review in Chapter 17, it is stated thus: All the remedies mentioned are then made interchangeable by being made available as an alternative or in addition to any of them. In addition, the Supreme Court of India may award damages if they are claimed at the outset and if they could have been awarded in an ordinary action. The distinction between private law and public law remedy is now settled by this Supreme Court of India in LIC v. Escorts Ltd. [(1986) 1 SCC 264: 1985 Supp (3) SCR 909] by a Constitution Bench thus: (SCC p. 344, para 102) If the action of the State is related to contractual obligations or obligations arising out of the tort, the Supreme Court of India may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the Supreme Court of India will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances., In Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay [(1989) 3 SCC 293 : (1989) 2 SCR 751] it was held that the Corporation must act in accordance with certain constitutional conscience and whether they have so acted must be discernible from the conduct of such Corporations. Every activity of public authority must be informed by reasons and guided by the public interest. All exercises of discretion or power by public authority must be judged by that standard. In that case when the building owned by the port trust was exempted from the Rent Act, on terminating the tenancy for development when possession was sought to be taken, it was challenged under Article 226 that the action of the port trust was arbitrary and no public interest would be served by terminating the tenancy. In that context, the Supreme Court of India held that even in contractual relations the Supreme Court of India cannot ignore that the public authority must have constitutional conscience so that any interpretation put up must be to avoid arbitrary action, lest the authority would be permitted to flourish as imperium in imperio. Whatever be the activity of the public authority, it must meet the test of Article 14 and judicial review strikes an arbitrary action., In Mahabir Auto Stores v. India Oil Corporation [(1990) 3 SCC 752: AIR 1990 SC 1031] it was held that the State when acting in its executive power, enters into contractual relations with the individual, Article 14 would be applicable to the exercise of the power. The action of the State or its instrumentality can be checked under Article 14. Their action must be subject to rule of law. If the governmental action even in the matter of entering or not entering into contracts fails to satisfy the test of reasonableness, the same would be unreasonable. Rule of reason and rule against arbitrariness and discrimination, rules of fair play, natural justice are part of the rule of law applicable in situation or action by State/instrumentality in dealing with citizens. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract are subject to judicial review on the touchstone of relevance and reasonableness, fair play and natural justice, equality and non-discrimination. It is well settled that there can be malice in law. It was also further held that whatever be the act of the public authority in such monopoly or semi-monopoly, it must be subject to rule of law and must be supported by reasons and it should meet the test of Article 14., The Supreme Court of India has rejected the contention of an instrumentality or the State that its action is in the private law field and would be immune from satisfying the tests laid under Article 14. The dichotomy between public law and private law rights and remedies, though may not be obliterated by any strait-jacket formula, would depend upon the factual matrix. The adjudication of the dispute arising out of a contract would, therefore, depend upon facts and circumstances in a given case. The distinction between public law remedy and private law field cannot be demarcated with precision. Each case will be examined on its facts and circumstances to find out the nature of the activity, scope and nature of the controversy. The distinction between public law and private law remedy has now become too thin and practicably obliterated., In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision. Duty to act fairly is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest., Learned ASG has also made elaborate submission that OEMs have entered in Revenue Sharing Agreement (RSA) with Google under which they receive substantial revenue from search services from Google Search. The Revenue Sharing Agreement between the OEMs and Google also puts various conditions on the OEMs including condition of not installing the competing search app in the device. The OEM which received substantial revenue from Google is always apprehensive to lose the revenue if it goes against the business model of Google. The learned ASG has referred to judgment of the Commission in Tata Power Delhi Distribution Ltd. vs. NHPC Ltd., Case No. 20 of 2017, where the Commission has held that in terms of competition law, in cases of abuse of dominant position, the seminal issue is what harm is caused to the end consumer due to the behaviour of the dominant player. We thus conclude that what is said by OEMs who have Revenue Sharing Agreement with Google is not the final word on the dominant abuse by the Appellant. There were other statements by various competitors showing the harm caused to them. OEMs' statement thus has to be viewed in context of their total dependency on Google. The Commission has noted the submission of Amazon, Mozilla and Micromax, where they have stated that they could not enter into commercial relationship with OEMs due to restrictions imposed by Google on such OEMs through pre-existing commercial arrangement which may stand breached. In Para 447.3, the Commission has extracted the reply of Mozilla. Para 447.3 is to the following effect: 447.3 Relevant extract from the reply of Mozilla is reproduced as under: \The web browser represents the front line between the consumer and the web. Common barriers to entry and expansion for web browser developers include: (1) the high cost of technological development (2) pre-installed bundling of dominant digital platforms products and services; (3) limitations on consumers to easily replace fixed default pre-installed settings with alternatives; and (4) commercial terms and policies imposed by gatekeeper digital platforms. In addition, in order to expand, organizations must develop products across platforms which can be expensive and time consuming. For example, although the Google Android Operating System is dominant in India, Mozilla must still develop for the iOS platform. This is because Mozilla cannot have a competitive web browser in the global mobile market without developing for both the iOS and Android OS. Firefox was initially very successful, achieving close to 30% global market share in 2010 as the second most popular browser after Internet Explorer. After that, Mozilla's market share took a downturn, impacted by companies connecting their browsers to their operating systems: on desktop this was Microsoft connecting Windows to Internet Explorer (and later Edge) and on mobile this was Google connecting Chrome to Android mobile devices. This made default placement on devices a challenge. Without business opportunities for default placement of Firefox, the overwhelming majority of Firefox use was through dedicated fans who took several steps to find Firefox on the web or in an app store, install it on their device, change it to be default, and in many cases, re-change system settings that attempted to override their default choice. Mozilla also struggled on mobile without any major distribution opportunities for Firefox on Android in global markets. This included India, where Mozilla was engaged in discussions with OEMs but was unable to get placement as the default browser or in the home dock because of restrictions they faced. Meanwhile, while Mozilla has an iOS product as well, the mobile iOS market has been limited as Apple mandates Safari to be the default browser. (Emphasis supplied)\, The learned Senior Counsel for the Appellant has also contended that the Commission has used the expression \must have apps\ without there being any definition of \must have apps\. It is submitted that MADA does not define \must have apps\ in any manner. The Commission in its order at various places has referred to \must have apps\ as to the Play Store and has also referred to \must have apps\ as Core Applications i.e. eleven applications of Google., The Commission has used the expression \must have apps\ in reference to Play Store and Play Services. Play Services is the only place where essential Google APIs are housed without which a phone does not become functional or interact with applications and the OS. Due to the significance and importance of Play Services, the Commission mentioned the said app as a \must have app\. Use of the expression \must have apps\ has been done by the Commission in the process of giving emphasis. At other places \must have apps\ has been referred to as eleven Core Applications of Google which are pre-installed by virtue of MADA. For a MADA signatory, eleven applications of Google are \must have apps\. Use of the expression does not diminish the emphasis the Commission seeks to lay on the significance and relevance of eleven Core Applications and of the Play Store., While considering Issue No.1, we have accepted the submission of the learned Senior Counsel for the Appellant that the Commission is obliged to carry out effect analysis to the extent as to whether the abuse of dominant position is anti-competitive or harms the competitor. As noted above, the learned ASG has submitted that the Commission has carried out effect analysis and found that the contract of the Appellant is anti-competitive and harmful to the competitors and such requirement is also complete., The learned ASG has contended that abuse of dominance of the Appellant has been reflected in the proceeding both by quantitative as well as qualitative data on the basis of an extremely high market share of Android OS. In 2018, its market share was 98.47% whereas iOS was 1.46% and others were only 0.07%, indicating the effect of abusive conduct. The learned ASG has referred to data collected by the Director General and has been taken note by the Commission in Paras 96, 97, 100 and 101., The facts brought on the record indicate that the effect of abuse of dominant position by the Appellant was taken note of and reflected on extensive data. The Commission has also noticed that OEMs' lack of bargaining power and lack of negotiating space with Google clearly proves harm to competition and weak countervailing buyer power restricting bundled apps, pre-installation and premium placement are also anti-competitive. Various conditions in the MADA, including the condition under which Google retains sole discretion to change the list/bundle of GMS Apps and the condition that OEMs must seek approval of Google for launching devices, clearly prove anti-competitive practices. Paragraph 373 of the Commission's order expressly holds that the practices of Google harm competition. Para 373 is extracted for ready reference: \Based on the foregoing analysis, the Commission is of the view that various covenants of MADA are in the nature of imposition of unfair conditions on OEMs who have no choice but to accept the same. As already stated, Google does not negotiate on key terms of the MADA which are found to be resulting in anti-competitive conduct viz. pre-installation of the entire suite of GMS as well as prominent placement thereof. By foreclosing the market for rivals, these covenants have also reduced the potential choice for users. Further, the pre‑installation requirement for the entire bouquet of apps of Google is in the nature of a supplementary obligation imposed on the OEMs, if they wish to pre‑install even a single app of Google. The Commission is of the view that these practices of Google, especially when seen along with AFA/ACC and RSAs, harm competition as the restrictions prohibit alternative vendors from outcompeting Google’s apps on the merits.\, We also need to notice the judgment relied upon by the learned Senior Counsel for the Appellant. The learned Senior Counsel has placed reliance on the judgment of the Competition Appellate Tribunal (COMPAT) in DLF vs. Competition Commission of India, 2014 SCC OnLine Comp AT 17, where the Tribunal held that an imposition has an element of compulsion for it to be anti‑competitive. There can be no quarrel to the proposition laid down by the Tribunal. In the present case, the Commission, after considering all facts and circumstances, concluded that OEMs have no negotiation power and must accept the terms and conditions offered by the Appellant; business compulsions oblige them to enter into MADA and other agreements., The next judgment relied upon by the Appellant is the judgment of the Honorable Supreme Court in K. C. Cinema vs. State of Jammu and Kashmir, 2023 SCC OnLine SC 22. The appeal before the Honorable Supreme Court arose out of an order passed by the Honorable High Court in a public interest litigation challenging certain conditions imposed by multiplexes prohibiting cinema‑goers from carrying their own food items and water bottles. The Honorable High Court set aside the condition in exercise of its jurisdiction under Article 226. The Honorable Supreme Court allowed the appeal. In para 30 of the judgment it was observed: \The test in Central Inland Water Transport Corporation (supra) is not only to assess whether the parties have unequal bargaining power relative to one another but also to ascertain whether a contractual term or a contract is unfair, unreasonable or unconscionable. A contract (or a term in a contract) can be said to be unfair or unreasonable if it is one‑sided or devoid of any commercial logic. In the present case, although theatre owners may unilaterally determine the conditions of entry into the cinema hall, the condition imposed in this instance is not unfair, unreasonable or unconscionable.\, In the facts of that case, the Honorable Supreme Court held that the conditions imposed by multiplexes were not unfair, unreasonable or unconscionable. The judgment was specific to the facts and circumstances of that case and cannot be pressed in the present matter., The next case relied upon by learned counsel for the Appellant is Saurabh Tripathy vs. Competition Commission of India, 2019 SCC OnLine Del 10498, where in para 46 the Delhi High Court laid down: \It is important to note that neither the DG nor CCI were required to substitute the commercial wisdom of the contracting parties and evaluate clauses in the manner suggested by the petitioner. For any term or condition of a contract to be considered unfair under Section 4(2)(a)(i) of the Act, it must be patently unfair and one that no party with any negotiating ability would accept. Thus, clauses commonly used in commercial contracts would not fall within the scope of Section 4(2)(a)(i). There is no material on record to indicate that Clause 4.4 is commercially unconscionable or that it was imposed unilaterally by GEECL by virtue of its dominant position.\, There can be no quarrel to the proposition laid down by the Honorable Delhi High Court. The manner in which the Appellant has abused its dominant position in the present case has been examined in detail by the Commission. The conditions imposed by Google, for reasons noted in the Commission's order, have been held to be unfair resulting in violation of Section 4(2)(a)(i). The judgments cited by the learned Senior Counsel were based on the facts of those cases; as far as the proposition of law is concerned there is no dispute, but the present case has been fully considered and examined by the Commission., We note that MADA, which is primarily about licensing Google's suite of Mobile Services as stated in Recitals A and B of MADA, obligates the OEMs to distribute Core Applications upon being granted a license to distribute Google Applications. Clause 2.1 of MADA makes it clear that Google obliges the OEM to first accept bundling of apps as Core Applications and places an obligation on the OEM to distribute Core Applications in a tying arrangement with Google Applications., Clause 4.4 of MADA enjoins the OEM to (i) distribute all Core Applications, (ii) place on the Default Home Screen a Google‑provided widget, the Google Play Store icon, and an icon that provides direct access to Core Applications labelled as Google, and also stipulates that any Google Application that is not a Core Application be placed no more than one level below the Default Home Screen. The OEM must also implement the Home button animation as per Google's guidelines if Google Assistant is enabled on the Android device and implement Google Hotword if supported. These conditions, applied through MADA to provide Google Applications, constitute supplementary obligations attracting Section 4(2)(d) of the Act, whose contravention is evident., The Commission has noted in para 373 of the impugned order the unfair conditions imposed by Google on OEMs, holding that the OEMs have no choice but to accept them. Para 373 states: \Based on the foregoing analysis, the Commission is of the view that various covenants of MADA are in the nature of imposition of unfair conditions on OEMs who have no choice but to accept the same. As already stated, Google does not negotiate on key terms of the MADA which are found to be resulting in anti‑competitive conduct viz. pre‑installation of the entire suite of GMS as well as prominent placement thereof. By foreclosing the market for rivals, these covenants have also reduced the potential choice for users. Further, the pre‑installation requirement for the entire bouquet of apps of Google is in the nature of a supplementary obligation imposed on the OEMs, if they wish to pre‑install even a single app of Google. The Commission is of the view that these practices of Google, especially when seen along with AFA/ACC and RSAs, harm competition as the restrictions prohibit alternative vendors from outcompeting Google’s apps on the merits.\, In view of the foregoing discussion, we concur with the findings and conclusion of the Commission as returned in Para 614.1. Issue No.3 and 3a are answered as follows: (i) Issue No.3: Pre‑installation of the entire GMS suite amounts to imposing an unfair condition on OEMs, which is an abuse of dominant position by the Appellants resulting in breach of Section 4(2)(a)(i) and 4(2)(d). (ii) Issue No.3a: The Commission, while returning its finding on breach of Section 4(2)(a)(i) and 4(2)(d), considered the evidence on record and found that the conduct of the Appellant harms competition. Issue No.4 and 4a., The issues relate to Android Fork. A Fork is an operating system that is a modified, competing version of Android OS based on the Android source code. The issue in consideration is whether making pre‑installation of GMS Apps conditional upon signing of AFA/ACC reduces the ability of developers to make a Fork version of Android, thereby violating Section 4(2)(b)(ii). The Anti‑Fragmentation Agreement was introduced in India in 2011. AFA was succeeded by the Android Compatibility Commitment (ACC). From 2017 onwards, signing of ACC is a pre‑condition for signing MADA. Signing of AFA is not optional; it is an agreement that OEMs must sign to be MADA signatories. Once an OEM signs the AFA/ACC, it is prohibited from developing, manufacturing and selling Android Fork devices and software., The learned counsel for the Appellant, questioning the Commission's conclusion, contended that the Commission recorded its conclusion that the restriction imposed by various clauses of AFA/ACC is unreasonable, disproportionate in scope and has resulted in foreclosure of the Appellant's competitors in the OS market, without properly appreciating the evidence before the Commission. The learned Senior Counsel submits that AFA was introduced after the failure of Symbian OS, an open‑source platform that did not implement any minimum compatibility standard. The Senior Counsel further submits that AFA/ACC does not restrict innovation; signatories are free to differentiate and innovate on top of these minimal baseline requirements, and some OEMs have done so, e.g., Samsung and Oppo with foldable screens and pop‑up cameras. The intention was to secure minimal compatibility to avoid fragmentation. Clause 2.1(B) of ACC provides that any Android‑based software company developing, distributing or marketing will be designed to run on Android‑compatible devices. Clause 2.3 enumerates certain permitted exceptions. The Commission, after analysing the material on record, recorded the following finding in paragraph 583: \In view of the foregoing analysis, the Commission concurs with the finding of the DG that Google, by making pre‑installation of Google's proprietary apps (particularly Google Play Store) conditional upon signing of AFA/ACC for all Android devices manufactured, distributed or marketed by device manufacturers, has reduced the ability and incentive of device manufacturers to develop and sell devices operating on alternative versions of Android i.e., Android forks, thereby limiting technical or scientific development to the prejudice of consumers, in violation of Section 4(2)(b)(ii) of the Act.\, The learned Senior Counsel for the Appellant relied on paragraph 555 of the Commission's decision, where it was observed that Google has a legitimate interest in licensing its apps only for devices that meet its requirements. Paragraph 555 states: \The Commission notes that there are three aspects of the anti‑fragmentation obligations. First, OEMs can pre‑install Google's proprietary apps (i.e., GMS) only on Android devices that meet Google's compatibility requirements. Google has a legitimate interest in licensing its apps only for devices that meet the minimum requirements set by it. Thus, these anti‑fragmentation obligations allow Google to prevent OEMs from making changes in the OS that would interfere with the proper functioning of its proprietary apps. The Commission notes that some standardisation may be required to ensure a consistent and expected user experience from Google's proprietary applications. To some extent such restrictions can be justified when applied to devices with Google's applications. However, the restrictions must be reasonable, proportionate and not blanket prohibitions. From a competition law perspective, the issue is whether the restrictions under AFA/ACC adversely affect the incentives of OEMs, app developers and users to experiment with innovative products using Android forks. The Commission finds the answer affirmative and discusses it in subsequent paragraphs.\, The Commission, in the above paragraph, noted that some standardisation may be required to ensure a consistent user experience from Google's proprietary applications. It also returned a finding that restrictions under AFA/ACC adversely affect the incentives of OEMs, app developers and users to experiment with innovative products using Android Forks. In paragraph 558 the Commission observed: \The restrictions imposed via various clauses of AFA/ACC are unreasonable and disproportionate in scope and have resulted in foreclosure of its competitors in the OS market. Google, in its submissions, claims that a branding solution would be ineffective and lead to consumer confusion as firms would be allowed to market incompatible devices as based on Android. Though the Commission does not find this assertion convincing, Google could have amended its branding guidelines to make this distinction more prominent.\, With regard to the Appellant's complaint that the Commission, while returning its finding that AFA/ACC limits scientific development, did not consider the evidence on record, we examined paragraphs 504 to 583 of the Commission's order. In paragraph 564.1, the Commission noted evidence from Xiaomi, which submitted: \From a general perspective, if there are any AFA/ACC restrictions on fragmentation that result in the creation of one OS which then becomes the monolithic 'must‑have' OS for apps, this may restrict the development of alternative operating systems.\, Similarly, in paragraph 564.2, evidence from Lava was noted: \AFA/ACC obligations restrict the developer/OEM's ability to modify and/or create a forked version as an alternative OS or to develop upon it. This affects the entry of new developers/OEMs and the ability of existing developers to innovate, create and further develop an OS that is a true alternate to Android. However, since Lava has not yet attempted such modifications to the Android system, we cannot comment on the actual impact on future scientific development of an alternative OS. Currently, Android fork developers can utilise Google APIs only to a limited extent, restricting their ability to develop a holistic alternate app ecosystem.\, The obligation imposed by AFA/ACC has been noted by the Commission in paragraph 510.
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The Competition Commission of India reiterates the obligations imposed by the Android Fragmentation Agreement (AFA) on signatory original equipment manufacturers (OEMs) for better understanding of the allegation. The AFA places the following obligations on a signatory OEM: (d) the company will not take any actions that may cause or result in the fragmentation of Android; (e) the company will only distribute products that are either Android Compatible Devices in the case of hardware or software distributed solely on Android Compatible Devices; and (f) the company may not distribute a software development kit (SDK) derived from Android or Android Compatible Devices, nor may it participate in the creation of or promote any third‑party SDK derived from Android or Android Compatible Devices., The Competition Commission of India has noticed the evidence led by Amazon. Amazon pointed out hindrances in developing a forked version of the Android operating system owing to the terms and conditions of the AFA and the Android Compatibility Commitment (ACC). Achieving a viable scale would have allowed Amazon and other interested developers to invest in an alternative Android OS offering more features and services. Thus, the obligations imposed pursuant to the AFA and ACC have a huge impact on innovation and research and development by competitors., The Competition Commission of India, in its order, has elaborately dealt with evidence led by the OEMs. Consequently, the Appellant’s complaint that the evidence has not been considered in the right perspective cannot be accepted. The Commission notes that, in addition to Amazon, eight other OEMs have made submissions on various non‑negotiable constraints contained in the AFA and ACC, which ensure that fork developers cannot succeed., The learned Senior Counsel for the Appellant emphasized that the Competition Commission of India has selectively relied on the responses provided by Xiaomi and Lava. Xiaomi stated that, because it has not attempted to develop an independent OS, it is not aware of and has not considered the negative impact of the AFA and ACC on the future development of an alternative OS. The Commission considered Xiaomi’s response in its entirety, noting that the general perspective expressed by the OEM is relevant material and finding no error in its assessment., Similarly, the learned Senior Counsel referred to the statement of Lava. Lava indicated that, since the Competition Appeal (AT) No. 01 of 2023, it has not yet attempted any modifications to the Android system and therefore cannot comment on the actual impact on future scientific development of an alternative OS. The Commission recorded Lava’s statement as a clear indication that AFA and ACC obligations restrict developers from modifying or creating a fork version as an alternative OS. The value of the statement cannot be diminished on the basis that Lava has not yet attempted such modification, and the Commission’s reliance on the OEM’s perception of limitation is upheld., The learned Senior Counsel for the Appellant further emphasized that the Competition Commission of India has disproportionately relied on Amazon’s statement. Amazon was not a signatory to the AFA; it clearly stated that, as it did not sign the Mobile Application Distribution Agreement (MADA), it had no obligation to have Google Mobile Services (GMS) on its devices. The Commission noted Amazon’s submissions in paragraph 522, where the discussion was cited alongside several smartphone OEMs that mentioned the risk of losing access to GMS if they were to work with Amazon., Amazon’s own reply, as noted by the Commission, highlighted that the example of Amazon Fire OS – a forked version of Android developed by Amazon – demonstrates that anti‑fragmentation obligations severely limit the number of OEMs and their ability to market forked Android OS‑based devices. Amazon faced considerable difficulty in commercial production and distribution of handsets installed with Fire OS because OEMs were unwilling to work with Amazon under the AFA obligations, fearing loss of GMS access., Further, the terms and conditions of the AFA and ACC made it literally impossible for device manufacturers to partner with any developer of a forked version of the OS. Amazon’s attempt to launch a variant of an LG tablet under both brands was cancelled at an advanced stage when prototypes were being tested. The cancellation was due to LG’s concerns that its agreement with Google would be terminated if it supported a forked version of Android. Consequently, Amazon developed its own Fire tablet using a contract manufacturer., The Commission considered Amazon’s reply relevant and not irrelevant. Amazon’s attempt to develop an Android fork and the failure of its product cannot be dismissed. Because OEMs that were signatory to the AFA were incapacitated from entering any other venture for developing an Android fork, the AFA effectively blocked such development., The Competition Commission of India correctly returned a finding that the AFA and ACC result in less choice of smart mobile operating systems and general services for consumers. The Commission also noted that the fragmentation concept in the AFA and ACC has not been clearly defined, giving Google broad discretion. According to Google’s reply, the AFA specifies that to curtail any fragmentation, the company and Google will ensure that all products distributed by the company are Android compatible devices. Xiaomi’s statement that fragmentation is not clearly defined was also noted., Based on the replies of most OEMs, the Competition Commission of India observed that by keeping the contours of the term “fragmentation” undefined, Google retains sole discretion to interpret it as per its interest. By simply stating that the OEM will not take any actions that may cause or result in the fragmentation of Android, Google leaves OEMs guessing whether a particular action falls within the ambit of the AFA. Google could consider any customization of the Android code as fragmentation and retains the power to unilaterally change compatibility requirements. Since Google requires GMS licensees to submit all Android devices for approval, OEMs are left to Google’s discretion regarding their devices, restricting their ability to test markets with newer features., The Competition Commission of India’s conclusions in paragraph 548 clearly indicate that it recorded findings on anti‑competitive effects on Android fork developers and considered the relevant evidence, including Google’s submission. The complaint that the evidence has not been considered in the right perspective cannot be accepted., The Commission also examined whether its analysis returned any finding that Google’s conduct is anti‑competitive in imposing restrictions on OEMs, thereby limiting scientific development. A clear finding was recorded in paragraph 583 that restrictions imposed via various clauses in the AFA and ACC are unreasonable and disproportionate in scope, resulting in foreclosure of competitors in the OS market. Paragraph 563 further held that the anti‑fragmentation obligation restricts competition by disincentivising competing OS developers from developing forked versions of Android, as customisations are controlled by Google through unilateral CTS and CDD requirements., From the above discussion, it is clear that the Competition Commission of India also conducted effect analysis while concluding that Google’s abuse of dominant position breaches Section 4(2)(b)(ii) of the Competition Act. Issue No. 4: By making pre‑installation of the GMS suite conditional on signing the AFA and ACC for all Android device manufacturers, the Appellant reduced the ability and incentive of manufacturers to develop and sell self‑device operating or alternative versions of Android and Android forks, thereby limiting technical and scientific development, which breaches Section 4(2)(b)(ii). Issue No. 4a: The Commission, while returning its finding, considered the evidence on record in respect of Section 4(2)(b)(ii) and also returned a finding on the Appellant’s anti‑competitive conduct., The Competition Commission of India held that Google has perpetuated its dominant position in the online search market, resulting in denial of market access for competing search apps, violating Section 4(2)(c) of the Act. The conclusion, recorded in paragraph 419, states that based on the interplay between MADA, Revenue Sharing Agreements (RSAs), and the AFA/ACC, Google used its position as the only supplier of the Play Store to protect its market for general search services and made it difficult for competing general search services to access the market., The Commission further held that the requirement of pre‑installing Google Play Store under MADA results in the pre‑installation of Google Search Services, providing a significant advantage to Google Search compared with other competing search engines. Pre‑installation is a significant distribution channel that creates a status‑quo bias whereby users do not switch from default and pre‑installed apps, virtually closing all viable distribution channels for competitors. The Commission also relied on the RSAs entered by the Appellant with OEMs., The Revenue Sharing Agreement entered into by Google with Huawei Software Technologies Co., Ltd., effective 01‑12‑2017, contains several clauses. Clause 1 defines terms. Clause 2 deals with Revenue Sharing Eligibility. Clause 2.1 provides that Devices With Google Applications must meet conditions such as compliance with Search Access Point requirements, implementation of the applicable Client ID, compliance with Sections 2.2 and 3, implementation of the Search Launcher Services API and Google Search, Assistant, and Hotword set‑up screens, and that the company or its affiliate be a MADA licensee in good standing, among other requirements. Clause 2.2 sets out similar conditions for Devices Without Google Applications, subject to Google’s sole discretion for approval., Clause 2.4 contains prohibitions on the company. During the term, the company will not and will not allow any third party to implement, pre‑load or otherwise install on a Qualified Device any application, bookmark, product, service, icon, launcher, third‑party Hotword or feature that is an Alternative Service or whose primary purpose is to provide access to an Alternative Service, except as specified in subsection 2.4.3. The clause also prohibits pre‑loading a Hotword in connection with any third‑party assistant that is company‑branded, and prohibits altering the default search settings from the factory settings on a Qualified Device., Under Clause 2.4.3, in jurisdictions listed in Exhibit D (European Economic Area including the United Kingdom, South Korea, Turkey and Russia), the company (i.e., the OEM) may preload, distribute or otherwise install in a folder on the Default Home Screen or on any screen other than the Default Home Screen or the Minus One Screen. This benefit is confined to Exhibit D countries., Shri Arun Kathpalia, learned senior counsel for the Appellant, submitted that the Commission failed to distinguish between portfolio‑wide RSAs entered before 2014 and device‑based RSAs entered after 2014. He argued that the impugned order lacks an independent assessment of the RSAs and erred in observing that if an OEM pre‑installed a competing general search service on any device within an agreed portfolio, it would have to forego revenue‑share payments for that device and all other devices. The Appellant highlighted that Xiaomi’s submission, as a signatory to an RSA, stated that Xiaomi was not precluded from entering into agreement with competing search engines., The learned Additional Solicitor General for the Commission refuted the above submission, contending that the Commission considered all relevant evidence and correctly concluded that the Appellant abused its dominant position in the online search market, resulting in denial of market access for competing search apps., The Commission examined the submissions of the learned senior counsels. It may first address the Appellant’s submission that MADA and RSA need not be read together to conclude that RSA precludes pre‑loading of competing search apps. RSA can be entered by the Appellant with an OEM only when the OEM is a MADA signatory, and a MADA signatory necessarily has to sign an ACC. When an OEM signs all three agreements, their consequences must be examined conjointly; therefore, the Appellant’s argument that the three agreements should be looked at separately cannot be accepted., The Honourable Supreme Court of India, in S. Chattanatha Kurayalar v. Central Bank of India, (1965) 3 SCR 318, laid down the principle that if a transaction is contained in more than one document between the same parties, the documents must be read and interpreted together and have the same legal effect as if they were one document. This principle was reiterated in Manks v. Whiteley, L.R. 3, stating that contemporaneously executed deeds forming part of one transaction have the same effect for all purposes as a single deed., The Honourable Delhi High Court, in Mercury Travels (India) Ltd. & Ors. v. Mahabir Prasad & Ors., R.F.A. No. 680/98, held that where several deeds form part of one transaction and are contemporaneously executed, they should be considered as the same deed for all purposes. The court cited several authorities, including CHITTY ON CONTRACTS, which observed that contemporaneous deeds representing a single transaction must be treated as one deed., Many transactions involve a series of contracts, such as a sale of land involving an exchange of identical contracts, a sale and lease‑back of property, or an agreement of sale and a bill of sale. Where the transaction is, in truth, one transaction, all contracts may be read together to determine their legal effect. This principle was affirmed in Smith v. Chadwick, where the court stated that contemporaneous documents representing a single transaction are to be treated as one deed., The Honourable Supreme Court of India, in Excel Crop Care Limited v. Competition Commission of India, (2017) 8 SCC 47, examined the objectives of the Competition Act. The Court observed that the purpose of prohibiting anti‑competitive agreements is to ensure healthy competition, which contributes to economic efficiency, growth, and consumer welfare. The Court emphasized that competition policy aims to provide adequate and affordable choices to consumers and to maintain a level playing field for all market players., The Supreme Court further explained that competition policy, by curbing anti‑competitive agreements, enhances consumer welfare through better choice, quality, and lower prices. It noted that the Act obliges the Competition Commission of India to eliminate anti‑competitive practices and promote competition, the interests of consumers, and free trade, as highlighted by the learned Additional Solicitor General.
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As far as the objectives of competition laws are concerned, they vary from country to country and even within a country they seem to change and evolve over the time. However, it will be useful to refer to some of the common objectives of competition law. The main objective of competition law is to promote economic efficiency using competition as one of the means of assisting the creation of market responsive to consumer preferences. The advantages of perfect competition are threefold: allocative efficiency, which ensures the effective allocation of resources, productive efficiency, which ensures that costs of production are kept at a minimum and dynamic efficiency, which promotes innovative practices. These factors by and large have been accepted all over the world as the guiding principles for effective implementation of competition law., The Bill sought to ensure fair competition in India by prohibiting trade practices which cause appreciable adverse effect on the competition in market within India and for this purpose establishment of a quasi‑judicial body was considered essential. The other object was to curb the negative aspects of competition through such a body, namely, the Competition Commission of India (for short the Commission) which has the power to perform different kinds of functions, including passing of interim orders and even awarding compensation and imposing penalty. The Director General appointed under Section 16(1) of the Act is a specialised investigating wing of the Commission. In short, the establishment of the Commission and enactment of the Act was aimed at preventing practices having adverse effect on competition, to protect the interest of the consumer and to ensure fair trade carried out by other participants in the market in India and for matters connected therewith or incidental thereto., The various provisions of the Act deal with the establishment, powers and functions as well as discharge of adjudicatory functions by the Commission. Under the scheme of the Act, this Commission is vested with inquisitorial, investigative, regulatory, adjudicatory and to a limited extent even advisory jurisdiction. Vast powers have been given to the Commission to deal with the complaints or information leading to invocation of the provisions of Sections 3 and 4 read with Section 19 of the Act. In exercise of the powers vested in it under Section 64, the Commission has framed regulations called the Competition Commission of India (General) Regulations, 2009 (for short the Regulations)., The Act and the Regulations framed thereunder clearly indicate the legislative intent of dealing with the matters related to contravention of the Act, expeditiously and even in a time‑bound programme. Keeping in view the nature of the controversies arising under the provisions of the Act and larger public interest, the matters should be dealt with and taken to the logical end of pronouncement of final orders without any undue delay. In the event of delay, the very purpose and object of the Act is likely to be frustrated and the possibility of great damage to the open market and resultantly, the country's economy cannot be ruled out., We have already noticed that the principal objects of the Act, in terms of its Preamble and the Statement of Objects and Reasons, are to eliminate practices having adverse effect on the competition, to promote and sustain competition in the market, to protect the interest of the consumers and ensure freedom of trade carried on by the participants in the market, in view of the economic developments in the country. In other words, the Act requires not only protection of free trade but also protection of consumer interest. The delay in disposal of cases, as well as undue continuation of interim restraint orders, can adversely and prejudicially affect the free economy of the country. Efforts to liberalise the Indian economy to bring it on a par with the best of the economies in this era of globalisation would be jeopardised if time‑bound schedule and, in any case, expeditious disposal by the Commission is not adhered to. The scheme of various provisions of the Act which we have already referred to including Sections 26, 29, 30, 31, 53‑B(5) and 53T and Regulations 12, 15, 16, 22, 32, 48 and 31 clearly show the legislative intent to ensure time bound disposal of such matters., The judgment of the Supreme Court of India in S. Chattanatha Kurayalar v. Central Bank of India and the judgment of the Delhi High Court in Mercury Travels (India) Ltd. and Ors. v. Mahabir Prasad and Ors. noticed above fully support the submission of learned ASG that agreements forming part of the same transaction have to be read together. The subject of all the three agreements relate to Android open source and are interrelated. We are of the view that all agreements in question have to be conjointly read and their cumulative effect has to be noticed especially in reference to the competition., Coming to the submission of the Appellant that the Commission lost sight of the difference in pre‑2014 RSAs and post‑2014 RSAs, the above argument cannot be accepted in view of categorical observations made in Paragraph 403 of the Commission's order where the Commission has observed that the Commission understands that the agreements prior to 2014 covered all the Android devices of the respective OEM, whereas the coverage of RSAs for the period pertaining to post 2014, were in respect of identified portfolio of devices., The Commission has also observed that the Appellant has not brought on record any substantial pre‑installation agreement between competing search service provider and an OEM which may reduce Google's dominance in the relevant market. A positive finding has been recorded that competing general search services are not able to counter the competitive edge secured by Google for itself through pre‑installation which acts as an entry barrier for the competitors. The Commission has also observed that pre‑installation of Google Search Services results in status quo bias. In Paragraphs 392 and 393, the Commission made the following observations: 392. The Commission further notes that the market for general search services is characterized by presence of multiple entry barriers, which have already been discussed above in this decision. In addition, pre‑installation of Google search services (i.e., Google Search App, Google Search Widget as well as Google Chrome with Google search as default search engine) which results in status quo bias, virtually closes down all the viable distribution channels for competitors. In this regard, the following submission of Microsoft is important to note: Pre‑installation as the default option on mobile devices is, in Microsoft's view, the single most important factor for a challenger like Bing to gain in scale. Without those distribution opportunities, relatively few users will take the time to download the Bing app or change the search defaults on the device. For those users who do try Bing, because there is so little usage overall, the quality of Bing's results will suffer. This leads to the situation where even from the users who find and try Bing, a high percentage will switch back to Google. This cycle stemming from a lack of scale will continue until a large number of users can be attracted to the platform in a relatively short period of time, most likely by becoming the default search provider on a major mobile platform. In the absence of this kind of significant change in usage, Bing or other competing search providers are unlikely to be able to meaningfully compete with Google. 393. Based on the foregoing, the Commission is of the view that the competing general search service providers are not in a position to nullify the competitive edge that Google secured for itself through pre‑installation as well as premium placement under MADA., The consideration of the entire issue by the Commission from Paragraphs 410 to 419 as well as other paragraphs as noted above clearly indicates that the Commission has considered the evidence on record for coming to the finding that Section 4(2)(c) has been breached. The consequence of high payment by Appellant to OEMs who have signed RSA is also another factor which even acts as entry barrier for pre‑installing any competing general search apps by OEMs. In Paragraph 412, the Commission held: 412. Further, if a third‑party search service provider wants to pre‑install and set its search as default in Android, it will have to compensate the OEMs for the potential loss of revenue sharing. However, the total payment to OEMs by Google far exceeds the annual revenue of its key competitors Microsoft and Yahoo from search business in India. Based on the data presented by the DG, it is noted that a competing general search service could not have matched Google's revenue share payments to OEMs. In this regard, it is further noted that since the scope of these arrangements is generally global in nature, therefore, the competing general search service would have to offer a revenue share to OEMs sufficiently high to negate the payments made by Google at global level. This significantly impacted their ability to pay., The Commission has also returned finding that abuse of dominance by the Appellant has anti‑competitive effect which harms competition in the search engine market. Paragraph 411 is referred to in this context, which is to the following effect: 411. The Commission is of the view that these revenue sharing arrangements along with other agreements viz. MADA and AFA/ACC reduced the incentives of the OEMs to pre‑install competing general search services. In the absence of these revenue share payments, OEMs would have had a commercial interest in pre‑installing competing general search services. However, these exclusivity arrangements which forbid OEMs to pre‑install competing search services harms competition in the search engine market. Thus, Google has been able to protect and strengthen its market position in the relevant market., In view of the foregoing discussion, we answer Issues 5 and 5a in the following manner: Issue No.5: The Appellant has perpetuated its dominant position in the Online Search Market resulting in denial of market access for competing Search Apps in breach of Section 4(2)(c) of the Act. Issue No.5a: The Commission while returning its finding on breach of Section 4(2)(c) has considered the evidence on record and has also recorded finding regarding the Appellant's conduct being anti‑competitive., All the above questions relate to abuse of dominant position in the relevant market to enter or protect or to gain in any other relevant market. The criteria for determining abuse can be summed in the following manner: (i) A dominant company leverages its dominance in one market to benefit from any secondary market. This leveraging results in foreclosure of competition in the secondary market. (ii) The behaviour of the dominant firm is not objectively justified., Article 102 of the Treaty on the Functioning of the European Union (TFEU) also contains similar principles of competition law. Article 102 of TFEU also makes tie‑in agreements an infringement of Article 102. Tying is the practice of a supplier of one product, the tying product, requiring a buyer also to buy a second product, the tied product. The tying may have various forms., Richard Whish and David Bailey in the Competition Law, Tenth Edition, while dealing with leverage theory and tying state that tie‑in agreements may amount to infringement and referring to the decision in Google Android case dated 18.07.2018 state: In Google Android the Commission imposed a fine of 4.34 billion on Google for, among other practices, tying its Google Search app and Chrome browser with the Play Store, which enables users to download, install and manage the apps on Android, Google's smart mobile operating system. In the Commission's view the inclusion of Google Search and Chrome in the Play Store was capable of restricting competition for two main reasons. First, it provided Google with a significant competitive advantage that competing general search engines and internet browsers could not offset; Google Search and Chrome apps were pre‑installed on virtually all Android devices, which meant that they were more likely to be used than if users had to download them. Secondly, Google's tying practices were found to deter innovation, harm users of general search services and internet browsers and strengthen Google's dominant position for general search services. The decision is on appeal to the General Court and much is at stake is whether Google is entitled to pre‑install its own apps in its Play Store, or should it be required to permit OEMs to choose the apps that are pre‑installed on their smart mobile devices?, The Commission has examined the tying of Play Store with Google Search in Paragraphs 410 to 419. We have noticed above in Paragraph 419, the Commission held that Google used its position as the only supplier of Play Store to protect its market for general search services and it also made it difficult for the competing general search services to access the said market., Shri Arun Kathpalia, learned Senior Counsel for the Appellant, challenging the conclusion of the Commission, contends that the Commission's analysis is solely based on the flawed premise that pre‑installation per se results in foreclosure of competing apps. It is submitted that the Commission's findings based on Windows Phone OS were wholly incorrect. It has been further submitted that MADA does not restrict OEMs from pre‑installing competing search service apps on their devices., We have noticed that pre‑installation under MADA of Google Search engine gives a status quo bias and further after entering RSA the OEMs are precluded from pre‑installing competing search apps in particular device., The learned Senior Counsel for the Appellant has referred to reply of Xiaomi, where Xiaomi said that it is free to have different search engines for Xiaomi's browser app and on the one screen of Xiaomi's smartphone, which is also a standalone app., Learned ASG has referred to various paragraphs of the order of the Commission highlighting importance of pre‑installation as a distribution channel (paras 424‑432); inability of the rival web browsers to neutralize the competitive edge secured by Google in the browser market (paras 433‑434); Google setting the de‑facto web standards due to its dominant position in the browser market (paras 435‑441); impossible to uninstall Google Chrome on GMS devices (paras 442‑445); and negative impact on competition in the relevant markets (paras 446‑448)., The Commission, after analysing the evidence led by parties, found tying of Play Store with Google Search violative of Section 4(2)(e). The Commission has also returned its finding and conclusion regarding tying up of Play Store with YouTube. In Paragraph 465, the Commission returned the following finding: 465. Based on the foregoing analysis, the Commission is of the view that the aforementioned conduct of Google of tying Play Store with Google YouTube significantly restricts competition in the relevant market by foreclosing distribution channels for rivals OVHPs and thereby deterring their incentive to innovate and offer choice to users. Such leveraging by Google allows it not only to protect but also reinforces its dominant position in the market for OVHPs. The Commission further notes that Google by the aforementioned tying safeguarded its revenue from advertisements resulting from YouTube., The Commission has also noted that Google had a market share of more than 95 % since 2009 in the online general web search market. The Commission has also held that tying between Play Store and Google Search has been used to achieve and perpetuate dominance by the Appellant and having anti‑competitive effects. The competitive search engines have to take additional measures to compete with Google Search., From the foregoing discussion, we are of the view that the conclusion of the Commission, as recorded in Paragraphs 614.3, 614.4 and 614.5 regarding contravention of Section 4(2)(e) are based on relevant materials and reasons which does not warrant any interference in exercise of our appellate jurisdiction. In result, we answer the issues in the following manner: Issue No.6 and 6a: Appellant has leveraged its dominant position in Play Store to protect its dominant position in Online General Search in breach of Section 4(2)(e) of the Act. The Commission while returning its finding on breach of Section 4(2)(e) has considered the evidence on record and has also returned finding regarding the Appellant's conduct being anti‑competitive. Issue No.7 and 7a: Appellant has abused its dominant position by tying up of Google Chrome App with Play Store and thereby violated provisions of Section 4(2)(e) of the Act. The Commission while returning its finding on breach of Section 4(2)(e) has considered the evidence on record and has also returned finding regarding the Appellant's conduct being anti‑competitive. Issue No.8 and 8a: Appellant has abused its dominant position by tying up of YouTube App with Play Store and thereby violated provisions of Section 4(2)(e) of the Act. The Commission while returning its finding on breach of Section 4(2)(e) has considered the evidence on record and has also returned finding regarding the Appellant's conduct being anti‑competitive., Shri Maninder Singh, learned Senior Counsel for the Appellant, has attacked the Report submitted by the Director General. It is contended that the Report violates principle of natural justice and the Director General has put leading questions to the third parties, which were framed to obtain the desired answers from the OEMs. Some of the leading questions highlighted by learned Counsel are as follows: a. It is gathered that Mobile Application Distribution Agreement (MADA) obligation requires the device manufacturers to pre‑install a bundle of Google Mobile Services (GMS) before distribution. In light of the same, please furnish details about the possible dilemma faced by you, if any, in terms of avoidance to allow installation of competing app with apprehension of causing duplication of apps and filling up precious ROM space (in addition to Google's) as it might adversely affect the user experience on their devices. b. Apart from pre‑installation of GMS what are methods employed/used by Google that result in reduced discoverability and popularity of other competing apps? c. It is stated that default setting or pre‑installation exists in both desktop/laptop and smartphone market. In light of the aforesaid, please furnish complete details about the fact that user bias to pre‑installation may be more pronounced in mobile segment than PC/Laptops. d. There, admittedly was an impact of the non‑availability of the prime screen placement for your browser i.e. UC Browser as compared to Google's Chrome and further pre‑loading of any other apps competing with Google Browser in Android devices. Please provide a detailed response along with relevant documents, if any, to support your assertion. e. In light of the same, please furnish details of possible loss (not restricted to monetary loss) if any, faced by you due to inability of existing Android handset makers to distribute your handset (Fire OS) or make software for Fire OS on account of AFA/ACC obligations. f. Whether the restriction imposed on the device manufacturers by using AFA/ACC has any negative impact on future scientific development of alternative OS. Please submit a detailed response., The learned Senior Counsel has referred to the judgment of the Supreme Court of India in Competition Commission of India vs. Steel Authority of India Limited (SAIL) and Ors. (2010) 10 SCC 744, wherein the Supreme Court held that the Commission performs various functions including inquisitorial and adjudicatory functions. The learned ASG in response to the above contention submitted that the Director General cannot be equated with an Investigation Officer, who carries investigation under the Code of Criminal Procedure. The DG carries out investigation under the Act to assist the Commission and the DG, in the investigation, has to collect relevant materials to find out whether any breach of provision of Section 4 has been committed or not. The Investigation Officer is not to assist the Court and has full authority to carry on investigation. The DG is simply to assist the Commission and carries on investigation when directed by the Commission. The DG's role is also unlike that of disciplinary inquiry., The Supreme Court in CCI vs. SAIL had occasion to consider the nature of functions performed by the Director General. The Supreme Court held that function of Director General is inquisitorial. The Director General is to elicit relevant information for the purposes of discharge of functions of the Commission. In paragraph 126 of the CCI vs. SAIL judgment, the Supreme Court noticed one of the functions of the Commission as inquisitorial. The Director General does not perform any adjudicatory functions and its role is only inquisitorial. From the facts as noticed by the Commission in its impugned order that after passing of the order by the Commission under Section 26 for carrying out the investigation, the Director General issued notice to several OEMs and other stakeholders eliciting their response. Further, information was called from time to time. The Director General was to collect information and data for the purposes of preparing a Report. There is no occasion for violation of principles of natural justice by the Director General, when he was only to inquire and collect information., The learned Senior Counsel for the Appellant, elaborating on his submission, stated that the Director General was acting with a pre‑determined mindset and hence, having already decided to submit a Report on the lines of the European Commission's case, the investigation suffers from bias. The learned Counsel for the Appellant has relied on the judgment of the Supreme Court of India in Oryx Fisheries Pvt. Ltd. vs. Union of India and Ors., The Supreme Court in the above case had occasion to consider whether action taken by Marine Products Export Development Authority was justified. It was contended before the Supreme Court that the show‑cause notice issued by the Authority stated that it had been proved beyond doubt that you have sent sub‑standard material to M/s Cascade Marine Foods, LLC, Sharjah and it was contended that the Authority having already made up its mind, the show‑cause notice or proceedings were empty formality. The Supreme Court observed the following in paragraphs 27 to 33: 27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge‑sheet cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony. 28. Justice is rooted in confidence and justice is the goal of a quasi‑judicial proceeding also. If the functioning of a quasi‑judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against. 29. In the instant case from the underlined portion of the show‑cause notice it is clear that the third respondent has demonstrated a totally closed mind at the stage of show‑cause notice itself. Such a closed mind is inconsistent with the scheme of Rule 43 which is set out below. The aforesaid Rule has been framed in exercise of the power conferred under Section 33 of the Marine Products Export Development Authority Act, 1972 and as such that Rule is statutory in nature. 31. It is of course true that the show‑cause notice cannot be read hyper‑technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show‑cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show‑cause notice a person of ordinary prudence gets the feeling that his reply to the show‑cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show‑cause notice does not commence a fair procedure especially when it is issued in a quasi‑judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. 32. Therefore, while issuing a show‑cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and especially when they have the power to take a punitive step against the person after giving him a show‑cause notice. 33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi‑judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it., The above observation can have no application in the facts of the present case. In the present case, the Director General was not taking any decision on any of the rights of the parties. The notices issued by the Director General were notices enlisting several questions and asking for response. The learned Senior Counsel for the Appellant may be right that certain questions, which have been framed, ought not to have been framed in the manner they were framed. However, the OEMs, which have given answers to the questions, were in no manner inhibited by the framing of questions and the answers given by the OEMs, which have been noted by the Commission in its order, indicate that several OEMs gave answers in the negative., The learned Senior Counsel for the Appellant Shri Maninder Singh has relied on the judgment of the Supreme Court of India in Varkey Joseph vs. State of Kerala (1993) Supp (3) SCC 745 wherein the Supreme Court held that the question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness. In paragraph 11 of the judgment, the Supreme Court, considering the provisions of the Evidence Act, laid down the following: 11. The witness must account for what he himself has seen. Sections 145 and 154 of the Evidence Act are intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provide the right to cross‑examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to draw the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witness intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner to which the witness answer merely yes or no; but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into the witness's mouth the words which the prosecutor hoped that the witness will utter nor in any other way suggest to him the answer which is desired that the witness would give. The counsel must leave the witness to tell an unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses to what he intended that they should say on the material part of the prosecution case to prove against the appellant which is illegal and obviously unfair to the appellant offending his right to fair trial enshrined under Article 21 of the Constitution.
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It is not a curable irregularity. In the above case, the Honourable Supreme Court of India was considering the provisions of the Evidence Act and the question which a prosecutor is entitled to put to a witness in a criminal trial. The above analogy cannot be applied with regard to investigation which is to be carried out by the Director General under the statutory scheme of the Competition Act, 2002. The Director General as investigator is entitled to collect elicited information which will be relevant for the purposes of the Competition Act., We are, thus, of the view that looking at the questions which are termed as leading questions by the Appellant, it cannot be said that the Director General has pre‑decided the issue. The notices issued by the Director General were with the object of eliciting information; his function was only inquisitive in nature., The learned Senior Counsel for the Appellant has also placed reliance on the judgment of the Competition Appellate Tribunal in GlaxoSmithKline Pharmaceuticals Limited and Others v. Competition Commission of India, Appeal No. 85 of 2015. In paragraph 42 the Tribunal laid down: In our opinion, the investigation conducted by the Director General lacked objectivity and the findings recorded by him are ex facie erroneous and legally unsustainable and the Commission committed a grave error by approving the conclusions of the Director General that the appellants are guilty of collusive conduct in violation of Section 3(3)(d) read with Section 3(1) of the Act. It is more than evident from the record that in response to the tender notice dated 25 June 2011, GlaxoSmithKline had given a bid for 100,000 doses of QMMV at Rs 3,000.90 per ten‑dose vial and Sanofi had given a bid for 90,000 doses at Rs 2,899 per ten‑dose vial. Both appellants gave cogent explanations and produced voluminous records to show why they had given bids for limited quantity. Notwithstanding this, the Director General observed that the appellants had quoted identical quantity at the same price. Not only this, he completely overlooked the detailed explanation given by Sanofi for bidding only 90,000 doses of QMMV against the tender inquiry for 182,125 doses, as well as the explanation given by GlaxoSmithKline for non‑participation in the first and second re‑tenders. Sanofi explained that it did not bid for the entire quantity because in previous years it remained unsuccessful and had to destroy vaccine by incurring huge losses. GlaxoSmithKline explained that it was not plausible to import vaccine from Belgium, get it tested at Kasauli, put stickers and do packaging in a short period of 11‑12 days for the first re‑tender and 2‑3 days for the second re‑tender. The explanations were quite plausible but the Director General discarded them apparently because he had pre‑judged the issue and was determined to record a finding that the appellants had indulged in bid‑rigging., The observation of the Competition Appellate Tribunal in paragraph 42, as extracted above, were observations on the facts of that case. On consideration of the material on record, there can be no dispute to the proposition that if the investigation conducted by the Director General lacked objectivity and the findings recorded by him are ex facie erroneous, the same ought not to have been approved by the Commission. The learned Senior Counsel has also submitted that the judgment of the Tribunal has received approval by the Honourable Supreme Court of India, since Civil Appeal No. 3525‑3526/2017 filed by the Competition Commission of India was dismissed by the Supreme Court by judgment dated 10 August 2017. The Supreme Court noticed paragraph 42 of the Tribunal’s judgment and held that the aforesaid findings were based on detailed discussion on the basis of the material placed on record. The judgment of the Tribunal and the Supreme Court cannot be pressed in the facts of the present case, since the findings in the Report of the Director General were based on the evidence collected and cannot be said to be ex facie erroneous., The learned Senior Counsel for the Appellant has also relied on the judgment of the Honourable Supreme Court of India in Ranjit Thakur v. Union of India, (1987) 4 SCC 611. The Supreme Court in that case considered principles of natural justice, bias and real likelihood of bias. It held that a biased judgment is a nullity. The proposition laid down by the Supreme Court is well settled. In paragraphs 16 and 17 the Court laid down: 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. 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., From the sequence of events and the facts brought on record, we are not satisfied that either the Director General was suffering from any bias or the principle of natural justice was violated. Accordingly, we answer the questions as follows: Issue No. 9 – Investigation conducted by the Director General did not violate the principle of natural justice. Issue No. 10 – Investigation conducted by the Director General cannot be said to be vitiated due to the Director General framing leading questions to elicit information., Shri Maninder Singh, learned Senior Counsel, submitted that the Commission does not consist of a Judicial Member and its decision deserves to be set aside on this ground alone. He argued that the presence of a Judicial Member is a mandatory requirement wherever adjudicatory functions are carried out. The learned Senior Counsel relied on the judgment of the Delhi High Court in Mahindra Electric Mobility Limited v. Competition Commission of India, 2019 SCC OnLine Del 8032, where paragraphs 142, 148 and 212 laid down: The Competition Act does not take away or supplant the jurisdiction of the pre‑existing jurisdiction of any court or tribunal. The decision of the Seven Judges in L. Chandra Kumar is authority for the proposition that in service matters the Administrative Tribunal (which had replaced the High Court) is the primary adjudicatory body, yet the court did not accede to the proposition that all particulars ought to be drawn from the judicial branch. Given the multiple tasks that the Act requires the Competition Commission of India to discharge (advisory, advocacy, investigation and adjudication), it cannot be held that the Commission must necessarily comprise lawyers or persons possessing judicial experience or entitled to hold office as judges to conform with the Constitution. The Commission’s task as the primary regulator of the marketplace and watchdog in regard to anti‑competitive practices was conceived by Parliament to be a composite regulator and expert body which also adjudicates at a stage. That stage, however, cannot be given such primacy as to hold that the Commission is per se or purely a judicial tribunal. As an adjudicatory body, its orders are quasi‑judicial and must be preceded by adherence to a fair procedure, as elaborated in Section 26 and various regulations. In the course of such proceedings, the Commission is required to make procedural orders which must be based on reasons, and the final adjudicatory order must contain elaborate reasoning. In that sense, the Commission is a Tribunal, but not purely a judicial Tribunal. It follows that whenever adjudicatory orders, especially final orders, are made by the Commission, the presence and participation of a Judicial Member is necessary. In view of the findings of this Court, the following conclusions are recorded and directions issued: (i) Section 22(3) of the Competition Act (except the proviso) is declared unconstitutional and void; (ii) Section 53E (prior to the amendment in 2017) is declared unconstitutional and void, subject to the final decision of the Supreme Court in the writ petitions challenging the Finance Act, 2017; (iii) All other provisions of the Competition Act are held to be valid subject to the following orders: (a) The Commission shall frame guidelines to ensure that one who hears and decides is embodied in letter and spirit in all cases where final hearings are undertaken and concluded. Once final hearings in any complaint begin, the membership should not vary—it should preferably be heard by a substantial number of seven or at least five members. (b) The Central Government shall take expeditious steps to fill all existing vacancies in the Commission within six months; (c) The Commission shall ensure that at all times, during the final hearing, the Judicial Member is present and participates in the hearing; (d) The parties should, at the final hearing stage, address arguments taking into consideration the factors indicated in Excel Crop Care and any other relevant factors; they may also indicate in their written submissions why penalty should not be awarded, and if awarded, what should be the mitigating factors and the quantum, without prejudice to their other submissions; (iv) Since the petitioners had not availed the remedy of appeal and approached this Court, it is open to those who wish to do so to approach the Appellate Tribunal within six weeks; the Appellate Tribunal shall entertain their appeals and decide them on merits in accordance with law, unhindered by the question of limitation., The learned Additional Solicitor General submitted that against the above judgment of the Delhi High Court, an appeal filed by the Competition Commission of India before the Honourable Supreme Court of India is pending consideration., Section 15 of the Competition Act, 2002 provides: Vacancy, etc., not to invalidate proceedings of the Commission. No act or proceeding of the Commission shall be invalid merely by reason of (a) any vacancy in, or any defect in the constitution of, the Commission; or (b) any defect in the appointment of a person acting as Chairperson or as a Member; or (c) any irregularity in the procedure of the Commission not affecting the merits of the case., Section 15, sub‑clause (a) protects any act or proceeding of the Commission which suffers from any defect in the constitution of the Commission., The learned Additional Solicitor General referred to the judgment of this Tribunal in Amazon.com NV Investment Holdings LLC v. Competition Commission of India, Competition Appeal (Appeal Tribunal) No. 01 of 2022, where the judgment of the Delhi High Court was also taken into account and it was noted that the said judgment is pending before the Honourable Supreme Court of India. Relying on Section 15 of the Competition Act, this Tribunal held that the absence of a Judicial Member is not fatal., In view of the foregoing discussions, we are of the view that the order of the Commission cannot be set aside on the submission that it did not consist of a Judicial Member. Issue No. 11 – The impugned order by the Commission is not vitiated on the ground that the Commission did not consist of a Judicial Member., Section 27 empowers the Commission to pass any of the orders enumerated therein. Section 27(a) provides that any enterprise involved in abuse of dominant position be directed to discontinue such abuse. Paragraph 617 of the order of the Commission has been passed in exercise of powers under Section 27(a)., The learned Senior Counsel for the Appellant submits that the Commission has imposed ten unprecedented, drastic, intrusive and unjustified measures, which go far beyond what is needed to bring the alleged infringements to an end. Detailed submissions with regard to some of the measures contained in paragraph 617 are considered one by one., The Appellant submits that the Commission, in paragraph 617.9, directed: ‘Google shall allow the developers of app stores to distribute their app stores through Play Store.’ It is submitted that the order is passed without a finding of infringement and is therefore ultra vires. The direction to carry rival app stores within Google Play Store bears no relation to the abuses alleged in the impugned order. There is no finding by the Commission suggesting any restriction of competition on competing app stores. The Commission considered this issue only in the dominance section to establish entry barriers in the market for Android app stores. Under the Act, the Commission can remedy an abuse of dominance, not dominance itself. The DG Report also considered the issue only as a factor to establish dominance, not as a finding of abuse. The direction also heightens the risk of introduction of malware in the device., The learned Additional Solicitor General submits that the statutory scheme under Section 27(a) empowers the Commission to direct the enterprise to discontinue such abuse of dominant position. There is also ample power under Section 27(g) to pass such other orders or issue such directions as it may deem fit., During the submissions, the learned Senior Counsel for the Appellant submitted that any developer of apps or app stores can distribute their apps through Google Play Store under an agreement whereby the developer shares a portion of revenue with Google. There is no finding in the order of the Commission that Google has abused its dominance in restricting app developers to put their apps through Play Store., From the submissions it is clear that the Appellant does not prohibit distribution of apps developed by any developer through its Play Store. Requiring an agreement for distribution is a normal business practice. It is not argued that the revenue‑share percentage is unfair or discriminatory. The direction in paragraph 617.9 can be illustrated by an analogy: a mall may set terms and conditions for showcasing products; similarly, Google may set terms for distributing apps through its Play Store. The Commission did not find any abuse of dominance by Google in this regard., Issue VII framed by the Director General was: ‘Whether Google has abused its dominant position in Play Store by imposing unfair and discriminatory terms and conditions on app developers in violation of Section 4 of the Act?’ The issue was answered in favour of Google in paragraph 594 of the Commission’s judgment, which held that Google has been able to justify its conduct and no case is made out against Google under Section 4 of the Act., Therefore, when the Commission itself found that Google has not abused its dominant position, there was no occasion to direct the Appellant to distribute third‑party app stores without accepting the Appellant’s terms. We are of the view that the direction issued in paragraph 617.9 is unsustainable and should be set aside., The direction in paragraph 617.10 states: ‘Google shall not restrict the ability of app developers, in any manner, to distribute their apps through sideloading.’ The Appellant submits that this direction is unnecessary, since sideloading, unlike the Apple ecosystem, is permitted on the Android platform. Users may download any app outside the Play Store, and Google only displays appropriate statutory warnings about the risks, which does not constitute a restriction. The Commission has not found any infringement relating to sideloading. The DG recorded the issue only in the context of Play Store dominance and entry barriers., The learned Additional Solicitor General refutes the Appellant’s submission, stating that the Commission’s powers under Section 27 are wide and governed by its duties under Section 18 and the preamble of the Act. The Commission is obliged to prevent practices having adverse effect on competition and to promote competition. The ASG further submits that in September 2022 the European Parliament enacted the Digital Markets Act (Regulation 2022/1925). Article 6(4) of the DMA directs that sideloading be permitted, while allowing the relevant OS developer to impose measures strictly necessary and proportionate to ensure that sideloaded apps do not endanger the integrity of the hardware or operating system., Paragraph 179 of the Commission’s order observes that the process of sideloading alternative app stores or apps involves risk of malware or harmful applications, which acts as an entry barrier for competitors in the Android app store market, as users without technical knowledge may avoid the risk. The cumbersome process and security threats further enhance dependence of Android users on Google Play Store. Moreover, sideloading does not allow automatic update functionality, which deters users and developers. The Commission also noted that the ability for consumers to sideload apps does not exert any constraint on Google in the Android app store market., The learned Counsel for the Appellant relied on a judgment of the Delhi High Court delivered on 14 February 2023 in Winzo Games Private Limited v. Google LLC and Others, CS(COMM) 176/2022. In that case, the plaintiff sought to restrain Google from displaying any warning against the use of the plaintiff’s gaming application on the Android operating system. The Court observed that the warning is a disclaimer and does not prohibit or block the download; users can continue to download and install the APK by clicking ‘Download anyway’. Such warnings are not unique to Google Chrome; several other browsers display similar warnings, which is an industry practice. Under the prevailing legal regime, intermediaries are required to put such warnings to guard users against potential threats, as per Rules 3(1)(i) and 3(1)(k) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and Rule 8 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. The Court held that the warnings are not disproportionate nor illegal., The judgment of the Delhi High Court, although deciding only an interim injunction application, clearly notices the statutory provisions under which Google was required to put warnings to guard users against malware. When the statute provides for issuance of warnings, the warnings issued by Google at the time of sideloading cannot be said to be disproportionate or illegal. The consequence of the direction in paragraph 617.10 is that the Appellant is prohibited from issuing any warnings, which it is obliged to do under the statute. Since there is no restriction on sideloading and Google only displays appropriate warnings, the direction in paragraph 617.10 was unnecessary. Even though users see a warning during sideloading, it cannot be read as imposing any restriction on sideloading.
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We have also noticed the submission of the learned Additional Solicitor General relying on the Digital Markets Act (Regulation 2022/1925; DMA) and Article 6(4) of the DMA, which directs that sideloading be permitted, while allowing the relevant operating system developer to impose measures that are strictly necessary and proportionate to ensure that side‑loaded applications do not endanger the integrity of the hardware or operating system. Thus, the provision relied upon by the learned Additional Solicitor General permits the imposition of measures that are strictly necessary and proportionate and do not endanger the integrity of the hardware or the operating system. We are of the view that the direction under paragraph 617.10 was unnecessary., The next direction, which has been attacked by the learned Senior Counsel for the Appellant, is the direction issued in paragraph 617.3 to the following effect: Google shall not deny access to its Play Services application programming interfaces to disadvantage original equipment manufacturers, application developers and its existing or potential competitors. This would ensure interoperability of applications between Android operating system which complies with compatibility requirements of Google and Android forks. By virtue of this remedy, the competition appeal No. 01 of 2023 developers would be able to port their applications easily onto Android forks., The learned counsel for the Appellant contended that the Competition Commission of India has not returned any finding that the Appellant has a duty to supply Play Services APIs for original equipment manufacturers. It is submitted that the Commission did not demonstrate that Play Services APIs fulfil the criteria of essential facility. It is submitted that the Commission did not follow its own precedent for essential facilities standard laid down in Air Works India (Engineering) Private Limited v. GMR Hyderabad International Airport and others. The Play Services APIs provide developers with an additional layer of advanced functionality they can incorporate in their applications to improve security and other features. It is submitted that the APIs are proprietary and not part of open‑source Android and are licensed as part of the Google Mobile Services suite under the Mobile Application Distribution Agreement., The learned counsel for the Appellant referred to the direction in paragraph 617.5 to the following effect: Google shall not impose anti‑fragmentation obligations on original equipment manufacturers, as presently being done under the Anti‑Fragmentation Agreement/Anti‑Competitive Clause. For devices that do not have Google’s proprietary applications pre‑installed, original equipment manufacturers should be permitted to manufacture or develop Android‑fork based smart devices for themselves., It is submitted that the Commission has already, in paragraph 555, held that Google has a legitimate interest in licensing its applications only for those devices which meet the minimum requirements set by it. In paragraph 541, the Commission further held that Google may pursue its legitimate interest in the competition appeal No. 01 of 2023 by prescribing certain reasonable compatibility requirements to the extent these are applicable on devices of Google’s applications., The learned Additional Solicitor General refuting the submission contends that Section 27(a) of the Competition Act sufficiently empowers the Commission to pass any remedial direction. It is submitted that the Commission has held that provisioning and updating of APIs is a technological necessity for the device to work properly and that without APIs a mobile device will become dysfunctional. The Commission found that new APIs can be accessed by original equipment manufacturers only after signing the Mobile Application Distribution Agreement, whereas Android Open Source Project licencees who develop Android forks are either denied access to APIs or receive them after considerable delay, by which time the MADA signatories would have received new functionalities and updates., Most Android applications made by developers function on the basis of Google’s proprietary APIs; their unviability disincentivises developers from porting applications to forks due to higher cost and significantly decreases the chances of forks’ commercial success., The APIs, particularly Google Play Services, are a core system software that enables key functionalities of every certified Android device. Certified Android devices are those on which Google Play Protect is installed and Google certifies to ensure that these devices are secure and ready to run applications from Google and the Play Store. It is argued by the learned Senior Counsel for the Appellant that these APIs are proprietary applications, which are made available to developers and original equipment manufacturers and are continually updated by Google., The various core device features that Google Play Services provide include services relating to security and reliability through installation of Google Play Protect which provides protection from malware, facilities to developers through thousands of continually updated APIs such as Google Cast for streaming, Google Maps, provision of accurate location information and sending notifications through a messaging transport layer, and enabling core services such as making emergency calls, autofill services, sending and receiving files, etc. Thus, it is clear that the APIs, which include Google Play Services, provide essential services to the applications that are part of Google Play Store. These are privately developed and maintained by Google and are provided by Google to developers and original equipment manufacturers., Shri Kathpalia, learned Senior Counsel, has also contended that the development of APIs is the result of scientific and technical innovation by Google and that any move to provide unhindered access to APIs would disincentivise Google from undertaking such scientific and technical development., The learned Additional Solicitor General has submitted that these APIs are necessary for developing applications and therefore Section 27(a) gives powers to the Commission to discontinue any abuse of dominant position by a dominant party, which is alleged to be Google in the present case, and the direction contained in paragraph 617.3 should be seen in this context., It is abundantly clear from the arguments submitted by the learned Senior Counsel for rival parties and the definitive information available on the website support.google.com/android that the APIs developed by Google, of which Google Play Services are an integral part, are developed and maintained by Google and continually updated through scientific and technical development by Google’s teams. These APIs are necessary for the functionality of the applications in Google Play Store. We are therefore clear that the APIs and Google Play Services, which are proprietary items of Google, cannot be given through unhindered access to developers, original equipment manufacturers and Google’s existing and potential competitors. Proprietary software such as APIs, which are developed through scientific and technical innovation, should fetch value to Google and therefore remain an incentive for a technological company to further carry out such development and monetise it through its commercial use., We do not find any material in the impugned order as to why access to such APIs should be provided to Google’s competitors, developers and original equipment manufacturers without going through necessary technical and commercial engagement with Google. Further, APIs have not been found as part of any abusive conduct by the Appellant. We are thus of the view that the direction issued in paragraph 617.3 is unsustainable and is, therefore, set aside., Now we come to the direction issued in paragraph 617.7, i.e., Google shall not restrict uninstalling of its pre‑installed applications by the users., The learned Senior Counsel for the Appellant submits that the Commission imposed the direction on the ground that users’ inability to remove Google’s pre‑installed applications from the devices contributes to their tendency to use the pre‑installed options and not use alternatives, which causes foreclosure. The Appellant’s contention is that users are fully entitled to disable pre‑installed applications in three simple steps, which can be applied in three seconds; after the application is disabled, it stops being visible to the users and vanishes from the screen. The disabled applications do not collect data, do not perform any background functions or use any device resources and can be re‑enabled only by a user., The Commission has already issued a direction under Section 27 where the Appellant has been directed that original equipment manufacturers shall not be restrained from choosing from among Google’s proprietary applications to be pre‑installed and should not be forced to pre‑install a bouquet of applications or decide the placement of pre‑installed applications on their devices. When the pre‑installed applications are at the choice of the original equipment manufacturers and they are not obliged to pre‑install the entire bouquet of applications, the direction issued in paragraph 617.7 appears to be unnecessary. There is no dispute that pre‑installed applications can be disabled by the users in no time. The original equipment manufacturers are also not obliged to install the entire suite of Google applications, thus they are free to not pre‑install any of the applications. All the pre‑installed applications can be disabled as per the user’s choice; disabling the applications serves the purpose of disappearing the applications from the screen and not performing any functions. The applications can be enabled if the user so decides. Uninstallation would preclude the option of the user to disable and enable the particular application as per his choice., We are therefore of the view that the direction in paragraph 617.7 is uncalled for and deserves to be set aside., Apart from the four directions—paragraphs 617.3, 617.9, 617.10 and 617.7—there are six other directions issued by the Commission in paragraph 617 as noted above. In so far as the other directions are concerned, we have perused them and find that they are in accordance with the findings of the Commission as contained in the impugned order. No exception can be taken to the directions issued in paragraphs 617.1, 617.2, 617.4, 617.5, 617.6 and 617.8. All the above directions are upheld., In view of the foregoing discussions we direct the deletion of directions at paragraphs 617.3, 617.9, 617.10 and 617.7 while upholding the other directions in paragraph 617., We consider the issue of imposition of penalty on Google by the Competition Commission of India and whether it has been done in accordance with the relevant turnover and the doctrine of proportionality., The learned Senior Counsel for the Appellant has contended that the imposition of penalty by the Competition Commission of India has not been done in accordance with the ratio expounded by the Honorable Supreme Court of India in the case of Excel Crop Care Limited v. Competition Commission of India (2017 8 SCC 47), wherein the Supreme Court analysed the legislative intent of Section 27 and held that penalty should be computed under Section 27(b) with respect to the relevant turnover of the corporate entity and not its total turnover. He has further contended that the term ‘relevant turnover’ has been interpreted to mean the corporate entity turnover pertaining to the products and services that have been found to be contravening the provisions of the Competition Act., With regard to the calculation of relevant turnover in the present case, he has argued that the Competition Commission of India found Google’s model of providing Android mobile operating system, with signing of the Mobile Application Distribution Agreement, Anti‑Fragmentation Agreement/Anti‑Competitive Clause and Revenue Sharing Agreement, to be anti‑competitive and violative of the provisions of the Competition Act, and besides this, the Commission has not rendered any finding in relation to contravention of the Competition Act and its provisions. He has further argued that the Commission has, inter alia, held that the revenue of Google pertaining to India in relation to its applications and services shall be taken into account for computing the relevant turnover and that the penalty levied on Google by the impugned order is therefore incorrect. He has further argued that the calculation of relevant turnover is not correct in the light of the Supreme Court judgment in Excel Crop Care Limited and that turnover relating to those applications and services of Google that have not been found to contravene any provision of the Competition Act should not form part of relevant turnover., The learned Senior Counsel for the Appellant has also contended that revenue from non‑MADA devices is not subject to abuse of dominance and yet such revenue has also been considered in the imposition of penalty on Google. He illustrated that revenue generated from an Apple iPhone device, where a user may use Google Search or YouTube, can never be part of relevant turnover of Google insofar as contravention due to the Mobile Application Distribution Agreement is concerned. Similarly, the use of Google Search, Chrome, YouTube or Google applications by a desktop user should not be considered for calculating relevant turnover in the context of the present case., The learned Senior Counsel for the Appellant has further argued that the imposition of penalty under Section 27 of the Competition Act, 2002 is to be done by the Commission in one go and there is no provision to impose penalty on a provisional basis with the possibility of its revision later. He has further argued that once the Competition Commission of India has pronounced its final order, the Commission becomes functus officio and therefore cannot, under the garb of a provisional penalty, seek to revise the penalty based on any other material that may come to its notice later. In this regard, he cited the judgment of the Securities Appellate Tribunal in the matter of Zee Telefilms Ltd. v. The Adjudicating and Enquiry Officer, Securities and Exchange Board of India (2003 SCC Online SAT 5) wherein it is held that on passing the final order in adjudication, the Adjudicating Officer becomes functus officio and there is no scope for any further proceedings in the matter before the Adjudicating Officer., The learned Senior Counsel for the Appellant has also claimed that while Google complied with the order of the Competition Commission of India for supplying information of relevant turnover and submitted its financial information and financial statements accurately, the same was not relied upon and while the information and statements were supplied by Google on 17 December 2021, the Commission maintained an inexplicable silence till 19 September 2022, and did not indicate any concern regarding the inadequacy of information submitted by Google. He further submitted that after final arguments were concluded on 2 September 2022, the Commission invited written submission on the issue of the quantum of penalty on the basis of Google’s submission of financial information (that was made in 2021) without informing Google that it viewed Google’s data as inaccurate., The learned Senior Counsel for the Appellant has argued that Google was asked to provide accurate and reliable information by order dated 6 October 2021 whereby Google was asked to submit audited balance‑sheet and profit & loss account for three years as well as details of turnover and profit generated or arising from India by Google and its group entities from all revenue streams associated with Android applications (including advertising and revenue generated from Play Store and applications which are part of Google Mobile Services) for the financial years 2018‑19, 2019‑20 and 2020‑21 by affidavits supported by certificates of Chartered Accountants by 5 November 2021. He added that Google sought some more time for submitting the requisite financial details which was granted by the Competition Commission of India and thereafter Google submitted audited financial statements of Google India Private Limited and Alphabet (the global company) on 26 November 2021 and sought three weeks extra time to submit financial information regarding turnover and profit from all revenue streams associated with Android including advertising and revenue from Play Store plus Google Mobile Services applications. He added that this financial information was submitted by Google by letter dated 17 December 2021., The learned Additional Solicitor General appearing for the Competition Commission of India has pointed out that the financial information regarding turnover etc. submitted by Google was not complete and appropriate as required by the Commission’s order dated 6 October 2021. He further added that the information submitted by Google on 17 December 2021 contained turnover details of Google Mobile Services applications, but did not contain advertising revenue generated through Play Store and the information in respect of Google Search, Gmail, YouTube, Google Maps, Workspace and Google One were incomplete with many caveats, thereby making it difficult to correctly estimate the relevant turnover of Google. The learned Additional Solicitor General stated that the financial information submitted by Google by its letter dated 17 December 2021 contains certificates by financial managers looking after different verticals of Google LLC and this information was not accompanied by certificates of Chartered Accountant., The learned Additional Solicitor General has further submitted that after completion of hearing in the main case on 2 September 2022, the Competition Commission of India asked Google to submit its written arguments on the quantum of penalties by 16 September 2022, and by order dated 19 September 2022 the Commission again asked Google to submit requisite financial information and data along with certificates of Chartered Accountant within seven days since the information submitted earlier by Google was not found in accordance with the requirement. He submitted that some more information was submitted by Google by its letter dated 11 October 2022. He argued that the Commission’s order dated 22 October 2022 considered the information supplied by Google, but the financial information submitted by Google was not as required by the Commission and that despite being repeatedly asked and given additional time to submit requisite information, the Appellant did not submit clear and unambiguous financial information along with certificates of Chartered Accountant. Therefore, the Commission made the best estimates based on the information submitted which has been cogently dealt with and reflected in the impugned order., The relevant provision in Section 27 regarding imposition of penalty in the Competition Act, 2002 is as follows: 'Orders by Commission after inquiry into agreements or abuse of dominant position – 27. Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely: (b) impose such penalty, as it may deem fit, which shall be not more than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprise which are parties to such agreements or abuse... [provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel a penalty of up to three times its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher]'., The relevant portion from the Excel Crop Care Limited judgment that relates to relevant turnover is extracted below: Step 1 – Determination of relevant turnover. At this point of time it needs to be clarified that relevant turnover is the entity’s turnover pertaining to products and services that have been affected by such contravention. The aforesaid definition is not exhaustive. The authority should have regard to the entity’s audited financial statements. Where audited financial statements are not available, the Commission may consider any other reliable records reflecting the entity’s relevant turnover or estimate the relevant turnover based on the available information. However, the Tribunal is free to consider the facts and circumstances of a particular case to calculate relevant turnover as and when it is seized with such matter. Step 2 – Determination of appropriate percentage of penalty based on aggravating and mitigating circumstances. After such initial determination of relevant turnover, the Commission may consider appropriate percentage, as the case may be, by taking into consideration nature, gravity, extent of the contravention, role played by the infringer, duration of participation, intensity of participation, loss or damage suffered as a result of such contravention, market circumstances, nature of the product, market share of the entity, barriers to entry, nature of involvement of the company, bona fides of the company, profit derived from the contravention, etc., The judgment of the Honorable Supreme Court in Excel Crop Care Limited v. Competition Commission of India considered the issue of whether penalty under Section 27(b) should be imposed on the total turnover of the offending company or only on ‘relevant turnover’. The Supreme Court opined that adopting the criteria of ‘relevant turnover’ for the purpose of imposition of penalty will be more in tune with the ethos of the Act and the legal principles surrounding penalty imposition. The Court recorded that when the agreement leading to contravention of Section 3 involves one product, there is no justification for including other products of an enterprise for the purpose of imposing penalty. It also noted that it would be unreasonable to base the maximum penalty on the total turnover of an enterprise when the turnover may involve activities besides production and sale of products, such as rendering of services., The impugned order, while considering the imposition of penalty, first considers the objective behind the imposition of penalty and records that the quantum of penalties imposed must correspond with the gravity of the offence and the Commission does not find any reason to take a lenient view. The order holds that Indian consumers, original equipment manufacturers and application developers have been deprived of choice in the relevant markets as identified by the Competition Commission of India due to anti‑competitive practices of Google and therefore there is no reason to take a lenient view. In arguments, the learned Additional Solicitor General has referred to Section 4(1) to point out that dominant enterprises in a market have a special responsibility and that in case they abuse their dominant position, an offence is made out. The order also notes the decision of the Honorable Supreme Court of India in Excel Crop Care Limited and adopts the criteria of relevant turnover as propounded by the Supreme Court and proceeds to determine it to calculate appropriate penalty based on the facts and circumstances of the case., It is trite to mention that digital platforms such as the one operated by Google using the Android operating system based mobile devices are very different from traditional technology platforms. The software that runs on these digital platforms is interconnected and interacts at the machine level and also at the user level through flow of traffic and data, and therefore the business model, incentives and revenue streams are a net result of such interplay of software and programmes including various applications and services that are integral features of the mobile devices. In addition, the markets are multi‑sided in the digital space, which is evidenced in the business model adopted by Google in the present case. While Google purports to offer its mobile operating system free of charge, there are a number of applications and services on the same device which generate huge traffic and data that are effectively monetised through advertisements which bring revenue to Google. It would therefore be correct to say that the revenue streams coming from the mobile devices have at their base the operating system of the device. The multi‑sided nature of these digital platforms is clear from the fact that on one side there are the original equipment manufacturers and application developers, on the second side are the users that generate data and traffic, and on the third side are the advertisers who use these digital platforms for advertising their goods and services., The substratum of Android operating system on which the mobile ecosystem is based is therefore the foundation of Google’s ecosystem, comprising of Google search‑driven applications and other applications that derive data from users and funnel the traffic and data from them into Google Search results which become one of the important bases of its advertisement revenue. The payment received from advertisers is therefore dependent on the data and traffic coming from the various applications, including the search applications and also other strengthening and refining Google search service. Through network effects, Google Search gains more and more value, thus helping Google Search to gather increased advertising revenue and cementing its position in the mobile search market. It is quite clear from this business model that there is no single application or service that can be singled out to say that the revenue of Google is derived only out of its user functionality because the user traffic and data comes not only from Google Search and YouTube but also from other applications such as Google Maps, Google Cloud, Play Store and Gmail etc. In fact, the entire Android system in the mobile device, through tracking device usage, becomes an important source of data for the generic search result. Thus, the data and traffic from multiple applications and services and the entire Android ecosystem is funneled into Google Search which is monetised through advertisements., It is clear from earlier analysis in this judgment that the three agreements – Mobile Application Distribution Agreement, Anti‑Fragmentation Agreement/Anti‑Competitive Clause and Revenue Sharing Agreement – are not mutually exclusive agreements, but are inter‑related, inter‑woven agreements that should be read together while examining the anti‑competitive effects of these agreements. More importantly, the multiple Google applications and Google Search drive the business of Google based on traffic and data gathered from innumerable users. Thus, the entire ecosystem of Google sitting on Android operating system in the mobile device becomes the source of revenue to Google and, therefore, the total revenue from all the applications and services in the device becomes the relevant turnover., On the basis of the three inter‑woven agreements and Google’s business model using traffic and data from the multiple applications and services, we are not convinced that the relevant turnover should only be limited to Google’s revenue from Google Search and YouTube, as has been argued by Google. This business model and the functioning of Google’s ecosystem on mobile devices has been captured by the Competition Commission of India in the impugned order while calculating the relevant turnover and thus the Commission has decided to take the sum total of revenue of various segments and heads of Google’s business operating in India while calculating the relevant turnover., We are, therefore, of the opinion that while calculating the relevant turnover, the Competition Commission of India has correctly considered the sum total of revenue of various segments and heads in India arising out of the entire business of Google India’s operations of Android operating system based mobiles., We also note that Google has not provided the financial information as sought by the Competition Commission of India by its order dated 6 October 2021, and reiterated in its later order dated 17 October 2021. The inadequacy of the data supplied by Google has been mentioned in detail in paragraphs 630 to 634, whereafter the Commission points out significant inconsistencies and wide disclaimers in the presentation of the requisite data by Google.
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In such a situation, the Competition Commission of India (CCI) has carried out the best estimation on the basis of financial statements and information submitted by Google. Therefore, we agree with the CCI's decision to quantify the monetary penalties on the basis of data presented by Google. In doing so, also note that the CCI has considered the lower of the two figures, from between Rs.19,904 crores which is the sum total of various segments/heads of Google business in India for FY 2020-2021 and Rs.16,742 crores, which is its total revenue from the entire business from Indian operations for FY 2020-21. Thus, in a conservation approach, the CCI has taken the lower of these two figures as turnover for FY 2020-21 and imposed a penalty at 10% of its average of Competition Appeal (AT) No. 01 of 2023 relevant turnover for the last three FYs 2018-19, 2019-20 and 2020-2021. We uphold the amount of penalty imposed by the CCI on Google., Regarding the issue of imposition of provisional penalty, consider the argument of the learned Senior Counsel of the Appellant that there is no provision in the Competition Act for imposing a provisional penalty, with the possibility of revising it on receipt of further information data. We are of the view that Section 27(b) of the Competition Act, 2002 provides for imposition of penalty, which shall not be more than 10% of the average turnover for the last three preceding years upon enterprises, which are parties to such agreements or abuse. Once the CCI has derived the best estimate of the relevant turnover for the last three preceding financial years, and imposed a penalty of 10% of the average of such turnover, we are of the opinion that further revision of this penalty on the basis of financial information or data that may come to light in future will not be in keeping with law. We thus delete the word provisional used in imposition of penalty in paragraph 650 and elsewhere in the Impugned Order and hold that this penalty imposed is final and would not be subject to any revision upon Google furnishing any further financial details and supporting documents, as sought by the Competition Commission of India vide its order dated 19 September 2022., Now coming to the submission advanced by Shri Amit Sibal, learned Senior Advocate, Shri Abir Roy and Shri Rajshekhar Rao, Senior Advocates on behalf of different Intervenors, suffice it to say that they have supported the impugned order advancing certain submissions which have been elaborately Competition Appeal (AT) No. 01 of 2023 advanced by the Additional Solicitor General appearing for the Competition Commission of India, hence submission of Intervenors need no separate considerations., In view of the foregoing discussion, the impugned order of the Commission is upheld except the four directions issued in paragraph 617.3, 617.9, 617.10 and 617.7. The Appellant are thus not entitled for any other relief except for setting aside the above four directions., In the result of foregoing discussions, we dispose of this Appeal in the following manner: (i) The impugned order of the Commission dated 20 October 2022 is upheld, except as indicated at direction (ii) below; (ii) Directions issued in paragraphs 617.3, 617.9, 617.10 and 617.7 are set aside. Rest of the directions under paragraph 617 and fine imposed by paragraph 639 are upheld. (iii) The Appellant is allowed to deposit the amount of penalty (after adjusting the 10% amount of penalty as deposited under order dated 04 January 2023) within a period of 30 days from today. (iv) The Appellant is allowed 30 days time to implement the measures as directed in paragraph 617 (to the extent upheld by this order)., The parties shall bear their own costs., Before we close, we record our sincere appreciation to the learned Counsel, who have advanced their submissions with precision and great ability in this Appeal, namely Shri Arun Kathpalia, Senior Advocate, Shri Maninder Singh, Senior Advocate and Shri N. Venkataraman, learned Additional Solicitor General assisted by Shri Samar Bansal, Advocate, for their valuable assistance, which enabled us to decide somewhat complicated issues in this short period.
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Reserved On: 13.07.2023 Delivered On: 18.07.2023 Applicant: Jai Govind @ Ramji Yadav Opposite Party: State of Uttar Pradesh Counsel for Applicant: Vineet Vikram, Imran Ullah Counsel for Opposite Party: Additional Government Advocate, Vipin Kumar Hon'ble Justice Siddharth, J., Heard Sri Imran Ullah, learned counsel for the applicant; Sri Jai Kishan, Advocate, holding brief of Sri Vipin Kumar, learned counsel for the informant and as well as the learned Additional Government Advocate for the State and perused the material placed on record., The instant bail application has been filed on behalf of the applicant, Jai Govind @ Ramji Yadav, with a prayer to release him on bail in Case Crime No. 418 of 2022, under Sections 306, 504 and 506 of the Indian Penal Code, Police Station Nawabad, District Jhansi during pendency of trial., The implication of the applicant has been made after proceedings under Section 156(3) of the Criminal Procedure Code for committing the offences under Sections 306, 504, 506 of the Indian Penal Code. The prosecution case is that the applicant and the daughter of the informant, namely Kajal, were having a love affair. The applicant and co‑accused persons had threatened the informant and her husband, due to which her husband went into depression and died on 21.04.2021 due to heart attack. It is further alleged that on 27.10.2021 the applicant and co‑accused persons entered the house of the informant and threatened them and Case Crime No. 232/2021, under Sections 504, 506 was registered against them. It was further alleged that due to threats extended by the applicant, the daughter of the informant gave Rs. 1 lakh to him. On 08.05.2022 she was kidnapped and raped by the applicant and other co‑accused persons for four days as a result of which she suffered depression. She was again abducted on 09.06.2022 and thereafter left in the market. She met her sister Nancy and informed her that she had been given something intoxicating to drink and thereafter she was subjected to rape by the accused persons who also made a video. Thereafter she became unconscious and was taken to hospital where she died on 10.06.2022., Learned counsel for the applicant has submitted that admittedly the incident took place on 09.06.2022 and the victim Kajal died on 10.06.2022, but the application was made before the Chief Judicial Magistrate, Jhansi, under Section 156(3) of the Criminal Procedure Code on 18.06.2022 whereupon FIR was lodged on 04.07.2022. He has submitted that the deceased died in the hospital where she was allegedly taken by her sister Nancy on 09.06.2022 but the ward boy of the Medical College, Jhansi, namely Manoj, informed the police about her death by consumption of poison. Thereafter, inquest of the body of the deceased was conducted and the cause of her death was not ascertained and viscera was preserved. The informant was present with the deceased all through and she did not make any complaint to the police even after the death of the deceased. After the death of her daughter, the informant made a complaint against one Ayush Thakur, with whom the deceased had a close relationship. Ayush Thakur was a close relative of a sitting MLA of the ruling party; hence the First Information Report was not lodged against him. After the alleged incident, the informant repeated the same allegations as in the FIR, in her statement under Section 161 of the Criminal Procedure Code. Independent eye witness denied seeing any such incident. The younger sister of the deceased also repeated the allegations in the FIR. The Investigating Officer recorded the statements of landlords of the house where the deceased used to live. They stated that the deceased was having a love affair with Ayush Thakur, but their relationship was not acceptable to the family of the deceased. Quarrels used to take place between both families; therefore the landlord asked the deceased and her sister to vacate his house. A subsequent landlord also informed the police that the deceased had come to live in their house and was having an affair with a boy living in Shivaji Nagar. The owners of the society in the locality stated before police that the deceased purchased an All‑Out mosquito repellent and consumed the same in the marketplace on the date of her death. The Investigating Officer further found that at one point of time the applicant and the informant were very close and wanted to marry, but their families did not agree. She was ousted by her parents and was living in a rented home. The mobile number used by the deceased was new and not known to the applicant. Initial implication of the applicant for committing the offence of gang‑rape, abduction, intoxication and murder of the deceased was not found to be correct by the Investigating Officer and hence the Investigating Officer implicated the applicant only under Sections 306, 504, 506 of the Indian Penal Code. No video of any offence committed by the applicant against the victim was recovered by the Investigating Officer. Learned counsel for the applicant has submitted that even the implication of the applicant under Section 306 of the Indian Penal Code is not in accordance with law since there is no evidence of abetment of suicide of the deceased against the applicant. The applicant has not committed any direct or indirect act for instigating the deceased to commit suicide. There was no positive action of the applicant which may have compelled her to commit suicide. The applicant is languishing in jail since 28.11.2022., Learned Additional Government Advocate and learned counsel for the informant have vehemently opposed the prayer for bail of the applicant and have submitted that the offences alleged against the applicant are fully made out. They have submitted that from the CDR details of the deceased, it has been found that the applicant did not like the relationship of the deceased with the other boys and he used to ask her not to marry any of them and hence she committed suicide. The sister of the deceased has stated that on 09.06.2022 the deceased had gone with the applicant and thereafter she consumed something and died., After hearing the rival contentions, this Hon'ble Court finds that it is a case where the deceased had an initial affair with the applicant and both wanted to marry, but family members of the deceased came in their way. Thereafter the victim developed a relationship with another boy, Ayush Thakur, but the relationship with the applicant does not appear to have been fully broken. Between the two relationships the deceased could not find a clear way and therefore it appears that she consumed the mosquito repellent of Good Night after purchasing it from a shop and fell unconscious in the marketplace. She was taken to the hospital where she died during treatment. Initially allegations in the FIR were not found to be correct by the Investigating Officer regarding commission of offences of abduction and murder of the deceased. However, the applicant was implicated for committing the offence of abetment of suicide of the deceased, but the ingredients of constituting such an offence also do not appear to be made out against the applicant as held by the Apex Court in a number of decisions being considered hereinbelow., In the case of Amalendu Pal v. State of West Bengal (2009) 4 SCC 52 the Apex Court has held that it is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction under Section 306 of the Indian Penal Code is not sustainable., In the case of Geo Varghese v. State of Rajasthan (Criminal Appeal No. 1164 of 2021), it was held that from the intention of the legislature and the ratio of the case decided by the Supreme Court it is clear that in order to convict a person under Sections 306, 504 and 506 of the Indian Penal Code there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide, seeing no option, and that act must have been intended to push the deceased into such a position that he committed suicide., In the celebrated case of Common Cause Union of India reported in (2018) 5 SCC 1, it has been held that to constitute abetment, there must be a course of conduct, or action of intentionally aiding or facilitating another person to end life., In the case of Rajput Ranjit Bhai Khodabhai v. State of Gujarat AIR 2019 GUJ 775, it has been held that in order to bring out an offence under Sections 306, 504 and 506 of the Indian Penal Code, specific abetment as contemplated by Section 107 of the Indian Penal Code on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Sections 306, 504 and 506 of the Indian Penal Code. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by various Courts are clear that in order to convict a person under Sections 306, 504 and 506 of the Indian Penal Code there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide, seeing no option, and that act must have been intended to push the deceased into such a position that he committed suicide., The Hon'ble Apex Court in the case of Ramesh Kumar v. State of Chhattisgarh reported in (2001) 9 SCC 618 dealt with the issue. The relevant paragraph of the aforesaid judgment is reproduced as under: Investigation is to goad, urge forward, provoke, incite or encourage to do an act. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present case is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation., The Hon'ble Apex Court in the case of Gurcharan Singh v. State of Punjab AIR 2017 SC 74, para 22, has held that the basic ingredients of provision of Sections 306, 504 and 506 are suicidal death and the abetment thereof and to constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Sections 306, 504 and 506 of the Indian Penal Code. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Sections 306, 504 and 506 of the Indian Penal Code thus criminalize the sustained incitement for suicide. In the present case, the suicide note reveals that apart from an omnibus grievance against the accused herein, for which according to him he ought to be punished, there is no reference or disclosure of any specific incident in support thereof., Before parting this Hon'ble Court finds that this is one of the many cases coming to the court where the youth in this country are spoiling their lives due to lure of free relationship with the member of the opposite sex, aping western culture and not finding any real soulmate in the end. In the present case, the victim hopped from one affair to another with a number of boys and later on account of resistance of her family or incompatibility with the boys she befriended, she committed suicide in frustration. This shows that the youth in this country under the influence of social media, movies, television serials and web series being shown are not able to decide about the correct course of their life and in search of their correct soulmates, they often land up in the company of the wrong person. Indian families have not yet been able to accept the choice of their children when it comes to selection of their life partners. Their families also stumble on issues of caste, religion, monetary status, etc., of the partner chosen by their child and this sometimes leads to their children absconding from home for marrying a person of their own choice; sometimes to suicide and sometimes to further relationships contracted in hurry to fill the emotional lacuna left by the earlier unsuccessful relationship. Indian society is in a state of confusion whether to permit their young children to adopt western norms or to keep them firmly within the bounds of Indian culture. The young generation, unaware of the consequences of following western culture, is entering into relationships being aired on social media, movies etc., and thereafter, after denial of social recognition to their choice of partner they become disillusioned and behave, sometimes against society, sometimes against their parents and sometimes also against the partner of their choice when they do not find any way out from the predicament wherein they get landed after entering into such relationship. The social media, movies etc., show that multiple affairs and infidelity to the spouse are normal and this inflames the imagination of impressionable minds and they start experimenting with the same, but they do not fit in the prevailing societal norm., Due to the above situation the following types of cases are mostly pouring into the courts: (i) Commission of offence of rape on false promise of marriage; (ii) Commission of offence of instigation to commit suicide; (iii) Commission of offence of murder or offence of culpable homicide not amounting to murder with the help of estranged friend or his companions; and (iv) Cases of false implication regarding other major and minor offences arising out of such relationship are also coming., Having considered the submissions of the parties noted above and relevant case laws finding force in the submissions made by the learned counsel for the applicant, keeping in view the uncertainty regarding conclusion of trial, one‑sided investigation by police, ignoring the case of the accused side, applicant being under‑trial having fundamental right to speedy trial, larger mandate of Article 21 of the Constitution of India, considering the dictum of the Apex Court in the case of Satendra Kumar Antil v. C.B.I. & Another, passed in S.L.P. (Criminal) No. 5191 of 2021, judgment dated 11.7.2022 and considering overcrowding in jails over and above their capacity by under‑trials, without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that: (i) The applicant shall not tamper with the evidence or threaten the witnesses. (ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law. (iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229‑A of the Indian Penal Code. (iv) In case the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 of the Criminal Procedure Code is issued and the applicant fails to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174‑A of the Indian Penal Code. (v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of the Criminal Procedure Code. If in the opinion of the Trial Court the absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law., In case of breach of any of the above conditions, it shall be a ground for cancellation of bail., Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted., The court below is directed to conclude the trial against the applicant as expeditiously as possible, preferably within a period of two years., The Registrar (Compliance) is directed to communicate this order to the concerned court below within ten days.
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Judgment pronounced on: 18.10.2022. Advocates who appeared in this case: For the Appellant: Mr. Chetan Lokur, Advocate along with the Appellant (produced in custody). For the Respondent: Mr. Ashish Dutta, APP for the State with S.I. P.S.: Lodhi Colony., The present appeal under the provision of Section 374(2) of the Code of Criminal Procedure, 1973, read with Section 383 of the Code of Criminal Procedure, arises out of the judgment dated 11.10.2019 and the order on sentence dated 31.10.2019, rendered by the learned Additional Sessions Judge, Special Court (Protection of Children from Sexual Offences Act), South District, Saket Court Complex, New Delhi, in Session Case No. 7763/2016, titled as State versus Bagender Manjhi, emanating from FIR No. 152/2012 under Sections 376 of the Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, registered at Police Station Lodhi Colony, New Delhi., By way of the impugned judgment dated 11.10.2019, Bagender Manjhi, the Appellant, has been convicted for offences punishable under Section 376(2)(f) of the Indian Penal Code and Section 6 read with Section 5/3 of the Protection of Children from Sexual Offences Act. By way of the impugned order on sentence dated 31.10.2019, the Appellant has been sentenced to undergo imprisonment for life, along with a fine of Rs.20,000. In default of the payment of fine, the Appellant has been sentenced to undergo simple imprisonment for two additional months., Since this matter concerns sexual offences against a minor, the names of the prosecutrix and some key witnesses have been anonymized in keeping with the verdict of the Hon'ble Supreme Court in Nipun Saxena and Anr. versus Union of India & Ors., The gravamen of the charge for which the Appellant has been convicted is for having committed penetrative sexual assault on his niece Baby J, being the brother‑in‑law of the mother (PW 1) of the victim, hereinafter referred to as the prosecutrix, an infant girl aged about one year at the time of commission of the offence., The case arises from receipt of a diary entry No. 16A dated 01.12.2012, recorded pursuant to a reported altercation during patrolling by Head Constable Kulbir Singh (PW 4) at Aliganj, Mother Dairy, New Delhi. Upon reaching the spot of the quarrel, PW 4 was apprised that the Appellant had committed rape on the prosecutrix. The Appellant was being held by members of the public; PW 4 got the Appellant released and immediately informed the Duty Officer, Officer HC Shiv Kumar (PW 12) of the incident. Subsequently, Sub‑Inspector Kailash (PW 10) along with Constable Rameshwari (PW 11) and Constable Surender (PW 8) reached the spot and commenced the investigation. PW 10 took the prosecutrix, her mother (PW 1) and the Appellant to All India Institute of Medical Sciences, where they were medically examined., PW 10 recorded the statement of Ms. D, PW 1, the mother of the prosecutrix, wherein she stated that she and her husband are residents of the jhuggi situated at Aliganj, near Khanna Market, New Delhi and that the Appellant, who hails from their native village, resides in the same jhuggi. She further stated that on 01.12.2012, Mr. TM (PW 2), her husband, and the Appellant had consumed liquor together and when her husband returned to the jhuggi, she served chicken to him. PW 1 further stated that PW 2 had asked her to send food to the Appellant as well, and she sent the same to the Appellant through her infant daughter, the prosecutrix. She also stated that after some time the Appellant came to their jhuggi and took away the prosecutrix who was playing outside on the pretext that he was taking her for a stroll., PW 1, upon hearing the screams and cries of the prosecutrix, immediately ran outside and saw the Appellant standing outside his jhuggi with the prosecutrix on his lap, the child crying. PW 1 took the prosecutrix from the Appellant and attempted to pacify her, but the child continued to cry. PW 1 examined the child's body and found blood on the pajama and blood oozing from the private parts, realizing that a wrongful act had been perpetrated by the Appellant, as no one else was present., PW 1 raised alarm, and members of the public gathered at the spot and, upon being informed that the Appellant had committed a wrongful act with the prosecutrix, beat him up. Police officials arrived, and FIR No. 152/2012 was registered based on PW 1's statement., The Appellant was arrested and the investigation ensued. The exhibits concerning the Appellant and the prosecutrix, collected by the doctors after their medical examinations, were sent for analysis to the Forensic Science Laboratory. After completion of the investigation, a chargesheet was filed against the Appellant for offences punishable under Section 376 of the Indian Penal Code and Section 6 read with Section 4 of the Protection of Children from Sexual Offences Act; the Appellant pleaded not guilty and claimed trial. At the stage of evidence, the prosecution examined 16 witnesses. The Appellant chose not to lead any evidence., In his statement under Section 313 of the Code of Criminal Procedure, while denying the prosecution case in toto, the Appellant stated that he had been falsely implicated. He asserted his innocence, alleging that the father (PW 2) and mother (PW 1) of the prosecutrix are his neighbours and that they abruptly started fighting with him and beating him. He further claimed that police officials had forcibly taken his semen in police custody to fabricate evidence, and that he had not committed any wrongful act with the prosecutrix., Upon completion of the trial, the Appellant was convicted essentially based on (i) the depositions of the prosecution witnesses, in particular the testimony of PW 1, and (ii) the medical evidence brought on record. After carefully examining the testimonies and hearing the arguments, the learned Sessions Court convicted the Appellant under Section 6 read with Section 5/3 of the Protection of Children from Sexual Offences Act and Section 376 of the Indian Penal Code., Mr. Chetan Lokur, learned counsel for the Appellant, submitted that the evidence against the Appellant was planted to frame him. He contended that Constable Kuldeep Singh (PW 7) had framed the Appellant as Inspector Shanti Goswami (PW 15) had not recorded the statement of the person who collected the exhibits and samples, causing an unexplained break in the chain of custody. The Appellant relied on the contradictory depositions of PW 7 and PW 6., PW 7 deposed that on 12.12.2012 he was posted as a Constable at Police Station Lodhi Colony and that he took eight sealed pullandas along with two sample seals and a forwarding letter from the malkhana and deposited them with the Forensic Science Laboratory, Rohini, vide RC No. 8384/21/12, obtaining an acknowledgment, which is marked as Exhibit PW 7/C. He stated that the sealed pullandas and sample seals remained in his possession untampered and were deposited with the laboratory in proper sealed condition., PW 6 deposed that on 12.12.2012 eight sealed parcels in connection with FIR No. 152/2012, Police Station Lodhi Colony, were received by the Forensic Science Laboratory, Rohini, and marked to him for examination. He stated that the seals on the parcels were intact as per the forwarding letter and that the exhibits were examined by him, and a detailed report was filed, marked as Exhibit PW 6/A., The counsel argued that the learned Trial Judge erred in convicting the Appellant, citing glaring discrepancies and contradictions between the testimonies of PW 1 and PW 2, rendering them unreliable., He further submitted that apart from PW 1 and PW 2, no other public witness, specifically no neighbour, was examined by the police, despite the deposition that after the commission of the offence the Appellant tried to escape but was caught by neighbours and beaten up, after which he was handed over to the police., The third submission was that the medical report recorded by Dr. Supriya (PW 13) constitutes only an opinion and has no evidentiary value. He argued that the two smears collected from the vagina of the prosecutrix did not show the presence of human semen, and only the underwear showed the presence of the Appellant's semen, therefore it cannot be regarded as conclusive proof of penetrative sexual intercourse. Consequently, the Forensic Science Laboratory Report (Exhibit PW 6/A) cannot be considered conclusive evidence., Mr. Ashish Dutta, learned APP for the State, dispelled the Appellant's first and second contentions, drawing the Court's attention to the Supreme Court decision in Vijay v. State of Madhya Pradesh (2010 (8) SCC 191), which held that even if there are omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. The Court must sift the evidence to separate truth from untruth, and minor discrepancies that do not go to the heart of the matter should not be given undue importance., The Supreme Court observed that the evidence of witnesses must be read as a whole, and minor discrepancies on trivial matters that do not affect the core of the prosecution case should not be taken into consideration as they cannot form grounds to reject the evidence as a whole., The State relied on the testimony of PW 4, who stated that on 01.12.2012, while patrolling near Mother Dairy, Aliganj, he heard loud noises and reached the spot, where he was apprised that the Appellant had committed rape upon a one‑year‑old infant. PW 4 deposed that the Appellant was caught by members of the public and beaten, that he released the Appellant and informed PW 12 at Police Station Lodhi Colony, leading to the recording of DD No. 16‑A and initiation of investigation. This corroborates the testimony of PW 1., We have extensively heard counsel for the parties, examined the material on record and perused the entire evidence., The Appellant has been convicted for offences punishable under Section 376(2)(f) of the Indian Penal Code and Sections 6 read with Section 5/3 of the Protection of Children from Sexual Offences Act. Section 376 of the Indian Penal Code provides that whoever commits rape shall be punished with rigorous imprisonment for not less than ten years, which may extend to life, and shall also be liable to fine; subsection (f) deals with a relative, guardian, teacher, or person in a position of trust committing rape, and subsection (3) provides that rape of a woman under sixteen years shall be punished with rigorous imprisonment for not less than twenty years, which may extend to life, and a fine., Section 3 of the Protection of Children from Sexual Offences Act defines penetrative sexual assault. Section 5 defines aggravated penetrative sexual assault, enumerating various circumstances such as the offender being a police officer, member of armed forces, public servant, staff of a jail, hospital, educational institution, or committing the assault with a deadly weapon, causing grievous hurt, pregnancy, HIV infection, death, etc. Section 6 provides that whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for not less than twenty years, which may extend to life, and shall also be liable to fine or death., The Hon'ble Supreme Court in Ms. Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) & Anr. (2017) 15 SCC 133 dealt with the object of the legislation, emphasizing protection of children’s privacy, confidentiality, best interest, and child‑friendly procedures., The Hon'ble Supreme Court in Lillu @ Rajesh & Ors. v. State of Haryana (2013) 14 SCC 643 reiterated that rape violates the victim's fundamental right under Article 21 of the Constitution, and courts must deal with such cases sternly, recognizing the crime as an affront to human dignity and society., Upon careful consideration of the rival submissions, the evidentiary aspects including the testimony on record are of critical significance., The primary legal contention raised on behalf of the Appellant is that, apart from PW 1 and PW 2, the parents of the prosecutrix, no other public witnesses have been examined by the prosecution to prove the guilt of the Appellant, and that the testimonies of the parents are unreliable as they are interested witnesses., This proposition is no longer res integra. The Supreme Court in State of H.P. v. Gian Chand (2001) 6 SCC observed that the court must first assess the trustworthy intention of the evidence adduced; if the evidence is worthy of reliance, it must be accepted even if other witnesses could have been examined., The Apex Court in Md. Rojali Ali v. State of Assam (AIR 2019 SC 1128) held that a related witness is not automatically an interested witness; an interested witness derives some benefit from the result of litigation, such as prior enmity, and thus has a motive to falsely implicate the accused., The unimpeached testimony of PW 1 (mother of the prosecutrix) recorded on 18.11.2013 is as follows: 'That around a year ago, i.e., on 01.12.2012, the accused Bagender, present in court today, was drinking liquor along with my husband. My husband returned after the drinking session. The accused Bagender was present in the nearby jhuggi where my husband had drunk liquor. On that day, I had prepared chicken and sent some chicken to the accused Bagender through my daughter Jyoti, who was about one year old. Jyoti took the chicken to Bagender. The accused Bagender is my devar as per the relation of my village.'
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After some time accused Bagender came and took away Jyoti. After some time I started searching for Jyoti. When I was searching I heard that Jyoti was found in the nearby Jhuggi. I noticed that accused Bagender was having Jyoti in his lap and was coming out of his Jhuggi. My daughter Jyoti was continuously crying, although I tried to pacify her. When she did not stop crying I checked her body and found that she was bleeding from her private part. I immediately made noise as I could gather that the accused had done a wrong act with my daughter Jyoti, due to which she started bleeding from her private part. A crowd gathered and I told the act of the accused. Accused Bagender was caught then and there by the crowd. Later on, police arrived and took the accused into custody. My statement Exhibit PW1/A was recorded, bearing my Right to Information at Point A. Accused Bagender was arrested in my presence and I put my Right to Information on his arrest memo Exhibit PW1/B at Point A. Accused Bagender is present in the Supreme Court of India today who did a wrong act with my one‑year‑old daughter Jyoti. My daughter was also medically examined., On 01.12.2012 I had some drinks with accused Bagender Manjhi, my neighbour, in his Jhuggi No. 41. When I was returning, the accused asked me to send some vegetable/chicken to him. After returning, my wife sent some dish to the accused. Thereafter, my wife sent some chicken through my daughter Jyoti, aged about one year, to accused Bagender. After having the meal, the accused picked up my daughter Jyoti from outside my Jhuggi, stating that he would just roam around with her. After some time I heard the screams of Jyoti and sent my wife to take her back. My wife took back Jyoti and found her bleeding from her private part. Jyoti was crying loudly. My wife told me that accused Bagender had done a wrong act with our daughter Jyoti. I also noticed that Jyoti was bleeding from her private part. Accused Bagender ran away from there but he was chased and nabbed by us. He was beaten by the crowd. Police were called. Jyoti was medically examined. Accused Bagender is present in the Supreme Court of India today (correctly identified)., Thus, PW‑1 and PW‑2 cannot be characterised as interested witnesses simply because they are the parents of the prosecutrix; and nothing from the record or in the submissions of the appellant even remotely suggests that PW‑1 and PW‑2 had any motive in framing the appellant for the commission of such a heinous crime., In view of the foregoing, it is clear that the defence raised by the appellant that he has been falsely implicated in the case by PW‑1 (mother of the prosecutrix) and PW‑2 (father of the prosecutrix) is a mere after‑thought. The parents’ testimony is credible and inspires confidence as they were witnesses to the commission of the offence being present at the relevant time., However, it was also submitted by the counsel for the appellant that there are discrepancies in the testimony of PW‑1 and PW‑2. Bearing in mind that the parents are the only public witnesses besides the police officials and medical witnesses examined by the prosecution, it becomes imperative to decide whether minor contradictions in the witness statements can form grounds to disregard prosecution evidence as a whole., The courts have time and again dealt with this question, and we are of the view that while appreciating the evidence of a witness, minor discrepancies on trivial matters, that do not affect the core of the prosecution’s case, would not prompt the Court to reject the evidence in toto. Certain details which do not in any way corrode the credibility of a witness cannot be characterised as omissions or contradictions., In State of Uttar Pradesh v. M.K. Anthony reported as AIR 1985 SC 48, the Honorable Supreme Court of India laid down certain guidelines. The Court observed that while appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not touching the core of the case, hyper‑technical approach by taking sentences out of context, or attaching importance to technical errors not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole., In State v. Saravanan & Anr reported as AIR 2009 SC 152, the Honorable Supreme Court of India observed that minor discrepancies on trivial matters without affecting the core of the prosecution case ought not to prompt the court to reject evidence in its entirety. The trial court’s appreciation of the general tenor of the evidence is given deference unless there are weighty reasons to the contrary., In Mritunjoy Biswas v. Pranab @ Kuti Biswas and Anr reported as (2013) 12 SCC 796, the Supreme Court noted that minor discrepancies are not to be given undue emphasis and the evidence must be considered for its trustworthiness. Only serious contradictions and omissions that materially affect the case of the prosecution are relevant., In Smt. Shamin v. State (GNCT of Delhi) in Criminal Appeal No. 56/2018 decided on 19 September 2018, the Supreme Court held that small or trivial omissions in witness testimony do not justify a finding that the testimony cannot be relied upon. The court must consider whether inconsistencies go to the root of the matter or pertain to insignificant aspects., In view of the foregoing discussion, it is our considered view that normal discrepancies occur in witness depositions due to shock and horror at the time of the incident. When the testimony of the prosecution witnesses is credible, trustworthy, unimpeached and inspires confidence, the conviction of the appellant can be sustained., The other material aspect which, in our opinion, requires consideration is the medical evidence marshalled by the prosecution during trial. Sexual offences are often committed in seclusion and therefore there is usually no other corroborating eyewitness evidence. Consequently, medical evidence such as the Medical Legal Certificate, forensic science laboratory report and the statement of the medical expert can be of great significance., Dr. Rajanikanta Swain (Prosecution Witness 5) examined the appellant on 01.12.2012, as recorded in Exhibit PW‑5/A. On physical examination of accused Bagender Manjhi, he opined that there was nothing to suggest that he was incapable of performing sexual intercourse. The report noted that the penis was of normal size, uncircumcised and smegma was absent. The presence of alcohol in the appellant’s blood work and the aftermath of the beatings given to the appellant were also corroborated by the Medical Legal Certificate., Dr. Supriya (Prosecution Witness 13) medically examined the prosecutrix on 01.12.2012 at AIIMS Hospital. The mother alleged rape by Bagender Manjhi and reported that the baby was bleeding per vagina and had not passed urine after the episode. Examination revealed that the child was conscious, the hymen was torn, there was blood at the introitus and a 0.5 cm abrasion in the posterior fourchette. Two smears (interstitial and perineal) and two pieces of clothing were taken for forensic examination. The Medical Legal Certificate (Exhibit PW‑13/A) recorded these findings., The relevant extract from the Forensic Science Laboratory Report No. FSL‑2012/DNA‑8618 dated 01.09.2014 states that blood stains were found on the appellant’s shirt, blood sample, a baby pajama, and a baby underwear. Human semen was detected on the baby’s underwear. DNA analysis showed that the DNA profile from the appellant’s blood sample was similar to that from his shirt and the baby’s underwear., The position of law on the question whether absence of human semen in the smears collected from the vagina of the prosecutrix in a case of rape would result in an acquittal is well settled. The Supreme Court in Wahid Khan v. State of Madhya Pradesh reported as (2010) 2 SCC 9 held that even the slightest penetration is sufficient to constitute the offence of rape and that complete penetration or emission of semen is not required., In the present case the oral testimony is completely corroborated by the medical evidence on record. Both the prosecutrix and the appellant were medically examined at AIIMS, New Delhi on 01.12.2012. The Medical Legal Certificate of the prosecutrix confirms that the hymen was torn, there was blood at the introitus and a mucosal abrasion. The forensic report shows that the appellant’s semen was found on the undergarments worn by the prosecutrix at the time of the offence., The medical examination of the appellant, as per Exhibit PW‑5/A, opined that there was nothing to suggest that he was incapable of performing sexual intercourse and no abnormality was noted. The absence of smegma further supports the finding that the appellant had recent sexual activity., We find no weight in the contention urged on behalf of the appellant that the medical evidence does not support the prosecution case., Having regard to the totality of facts and circumstances, we agree with the conclusions of the learned trial court: (i) PW‑1’s testimony, read with other corroborative evidence, establishes that the appellant committed rape and aggravated penetrative sexual assault upon the prosecutrix; (ii) the testimonies of PW‑6 and PW‑7 do not contain contradictions; (iii) the oral testimony is fully corroborated by the medical evidence; (iv) no plausible reason for false implication of the appellant is found., Accordingly, there is no warrant for this Court to differ with the trial court’s conclusion that the appellant is guilty of the offences of rape and penetrative sexual assault. The case involves a one‑year‑old girl child, making the crime especially heinous. The Constitution of India, Article 39, provides special safeguards for children. The prosecution has established the guilt of the appellant beyond reasonable doubt. Consequently, the judgment and order on conviction dated 11 October 2019 and the order on sentence dated 31 October 2019 are upheld. The appeal is dismissed with no order as to costs. The trial court record shall be sent back forthwith and a copy of this judgment shall be provided to the learned counsel and uploaded on the website of the Supreme Court of India forthwith.
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Through: Delhi High Court on its own motion versus Mr. Amit Prasad, Special Public Prosecutor with Mr. Rajesh Deo, Deputy Commissioner of Police, Legal Cell in Application No. 23830/2020. Mr. Rahul Mehra, Standing Counsel (Criminal) for Government of National Capital Territory of Delhi. Extension of Interim Orders., Proceedings of the matter have been conducted through video conferencing., Delhi High Court vide order dated 25 March 2020 took suo moto notice of the outbreak of Covid‑19 and the restricted functioning of this court pursuant to notification No. 51/RG/DHC dated 13 March 2020 as well as Government notification dated 24 March 2020 declaring a nationwide lockdown for a period of 21 days effective from 25 March 2020. Taking suo moto cognizance of the extraordinary circumstances, under Articles 226 and 227 of the Constitution of India, it is ordered that in all matters pending before Delhi High Court and courts subordinate to it, where interim orders were subsisting as on 16 March 2020 and have expired or will expire thereafter, the same shall stand automatically extended till 15 May 2020 or until further orders, except where any contrary orders have been passed by the Hon'ble Supreme Court of India in any particular matter during the intervening period., Since the lockdown was extended from time to time by the Government with a few relaxations and the restrictive functioning of the courts continued, the order dated 25 March 2020 was extended on 15 May 2020, 15 June 2020, 13 July 2020, 31 August 2020 and lastly vide order dated 24 August 2020, the interim orders were extended till 31 October 2020., In the meantime, an application under Section 151 of the Code of Civil Procedure seeking modification of the above orders was moved by the Deputy Commissioner of Police, Legal Cell, PHQ, Delhi, enclosing an order passed by Shri Vinod Yadav, Assistant Sessions Judge‑03 (North East), KKD Courts, Delhi dated 7 September 2020, wherein a request was made to modify these orders and pass necessary directions as deemed fit in view of the difficulties faced. The learned Judge also sent a copy of the order to Delhi High Court praying for issuance of appropriate guidelines to follow in the cases of interim bails in the riots cases as to whether the interim bails granted on humanitarian ground would also be extended from time to time in terms of the orders passed by Delhi High Court. This application was taken up on 28 September 2020 and the learned Standing Counsel for the State was directed to supply the following information to Delhi High Court: (a) How many persons in jail are presently infected or suffering from Covid‑19? (b) How many persons involved in heinous crimes are granted interim bail? (c) How many persons involved in minor crimes are granted interim bail? (d) How many persons are granted interim bail by the Delhi High Court?, In response, a status report dated 15 October 2020 was filed. The relevant paragraph, being paragraph 2 of the status report, is reproduced below: (a) There are six prisoners who are presently infected or suffering from Covid‑19. (b) There are 2,318 prisoners who are involved in heinous crimes and granted interim bail by Hon'ble courts. (c) There are 2,907 prisoners involved in minor crimes and granted interim bail. (d) There are 356 prisoners who have been granted interim bail by the Delhi High Court., The matter was taken up today. The report received from the jail was perused and the learned Standing Counsel for the Government of National Capital Territory of Delhi, Mr. Rahul Mehra, and Mr. Amit Prasad, Special Public Prosecutor representing the applicant seeking modification, were heard. The Director General of Prisons was also present. Mr. Rahul Mehra, standing counsel, under instructions from the Director General of Prisons, submitted that although the report dated 15 October 2020 showed six prisoners infected with Covid‑19, three have already recovered and only three prisoners remain infected and have been admitted to LNJP Hospital for segregation. Regarding jail capacity, it was informed that the overall capacity of all prisons is about 10,000 but there are 15,900 prisoners inside the jails. The jail authority disclosed that 2,318 under‑trials involved in heinous crimes were granted interim bail by the District Courts and have been extended from time to time on the strength of orders dated 25 March 2020 and subsequent orders passed by Delhi High Court. A further 2,907 under‑trials involved in minor crimes were granted bail as per the recommendations of the High‑Power Committee and 356 prisoners were granted interim bail by the Delhi High Court. Mr. Amit Prasad highlighted that the under‑trials in riots cases who were granted interim bails on humanitarian grounds for short periods are covered under the ambit of the orders passed by Delhi High Court and their interim bails are extended from time to time. About 20 such accused are on interim bail at this time. On the other hand, Mr. Rahul Mehra submitted that the Covid‑19 pandemic is still prevailing and the earlier orders passed by this court need not be modified., After considering all aspects and in view of the fact that the interim bail and interim stay extension order was necessitated because the functioning of the courts was curtailed due to the complete lockdown declared on 25 March 2020, but now the situation has changed and all courts at High Court and District Court level are functioning through physical mode or video conferencing mode, and since there is no spread of Covid‑19 in the jails and out of about 16,000 prisoners only three are infected and have been segregated and admitted to hospital, Delhi High Court deems it proper to modify its order dated 25 March 2020, which was lastly extended on 24 August 2020, as follows:, For the first category of 2,318 under‑trials involved in heinous crimes who were granted interim bail by the District Courts, there shall be no further extension of interim bails under the orders of Delhi High Court. However, to facilitate their surrender before jail authorities and to avoid inconvenience to the jail authorities during surrender of a large number of under‑trials, the prisoners shall surrender in a phased manner as ordered: Central District, Tis Hazari Courts – surrender on 1 November 2020; West District, Tis Hazari Courts – surrender on 2 November 2020; Patiala House Courts, New Delhi District – surrender on 3 November 2020; East District, Karkardooma Courts – surrender on 4 November 2020; North East District, Karkardooma Courts – surrender on 5 November 2020; Shahdara District, Karkardooma Courts – surrender on 6 November 2020; North District, Rohini Court – surrender on 7 November 2020; North West District, Rohini Courts – surrender on 8 November 2020; South West District, Dwarka Courts – surrender on 9 November 2020; South District, Saket Courts – surrender on 10 November 2020; South East District, Saket Courts – surrender on 11 November 2020; Rouse Avenue Courts Complex, New Delhi – surrender on 12 November 2020; and the remaining prisoners on 13 November 2020., The above 2,318 prisoners are at liberty to move the respective courts for extension of their interim bails and the concerned courts shall consider such applications on their own merits without being influenced by any order previously passed by Delhi High Court. Regarding the 2,907 prisoners who have been granted bail on the recommendation of the High‑Power Committee, a request is made to the High‑Power Committee to take a decision in respect of these prisoners within ten days from today. As for the 356 prisoners granted interim bail by Delhi High Court, they shall surrender before the concerned jail superintendent(s) on 13 November 2020. However, all 356 prisoners are at liberty to move applications for extension of their interim bails before the concerned benches of Delhi High Court, and their applications will be considered on merit without being influenced by any order passed by this Full Bench., As far as interim orders passed in civil matters are concerned, which were extended vide orders dated 25 March 2020 and subsequent orders, it is ordered that all such interim orders shall cease to have effect on the next date of hearing in the said matters. The parties in those matters are at liberty to move the concerned courts for extension of the interim orders, and the courts shall consider such extensions on merit without being influenced by any orders passed by Delhi High Court in this matter., The jail authorities shall make appropriate arrangements to ensure surrender of the prisoners as detailed above and take all required steps in view of the guidelines issued by the Government authorities from time to time to contain the spread of Covid‑19., This order shall also apply to any other under‑trial who is granted interim bail in the meantime., In view of the above, no further orders are required to be passed in the instant writ petition and the same is disposed of accordingly. This order shall be uploaded on the website of Delhi High Court and circulated to all the Hon'ble Judges of the Delhi High Court and also conveyed to all the Standing Counsel, Union of India, Government of National Capital Territory of Delhi, Delhi Development Authority, Civic Authorities, Delhi High Court Bar Association, all other Bar Associations of Delhi, as well as to all the District Courts subordinate to Delhi High Court.
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WRIT PETITION Nos. 22010 of 2021, 18304 of 2022, 19570 of 2022, 19561 of 2022, 20119 of 2022 and 20120 of 2022 are filed. The main issue that arises for consideration in these petitions is whether offline or online games such as rummy, which are substantially based on skill and not on chance, and are played without stakes, amount to gambling or betting as contemplated in Entry 6 of Schedule III of the Central Goods and Services Tax Act, 2017., Messrs. Gameskraft Technologies Private Limited (hereinafter referred to as GTPL) claims to be an online intermediary company incorporated in June 2017, which runs technology platforms that allow users to play skill‑based online games against each other. GTPL contends that it has over ten lakh users from across India, is headquartered in Bangalore and is registered under the Central Goods and Services Tax Act, 2017 and the Karnataka Goods and Services Tax Act, 2017. It states that the company is legally compliant, has been duly filing GST returns, has paid GST and is a bona‑fide taxpayer having paid tax returns on a timely basis and has paid substantial tax to the tune of Rs. 1,600 crore under GST and Income Tax Laws up to June 2022., During the period between 11 November 2021 and 13 November 2021, the respondents’ Revenue Department undertook search and seizure operations at the premises of GTPL, during which various documents and devices were seized and panchanamas were issued. On 17 November 2021, the respondents passed Provisional Attachment Orders attaching the bank accounts of GTPL under Section 83 of the Central Goods and Services Tax Act, to which objections were filed by GTPL. Consequently, the respondents passed an Attachment Confirmation Order dated 30 November 2021., Writ Petition No. 22010 of 2021 is preferred by GTPL challenging the aforesaid attachment orders and on 3 December 2021, the Supreme Court of India passed an interim order permitting the petitioner to operate the bank accounts for the limited purposes mentioned in that order., Meanwhile, the officials, founders and employees of GTPL were summoned by the respondents for recording of statements, a process that continued up to August 2022. On 2 August 2022, in addition to the earlier interim order in Writ Petition No. 22010 of 2021, the Supreme Court of India directed that no punitive action be taken against the petitioner GTPL and the matter was heard finally and reserved for orders on 7 September 2022 while continuing the interim orders and directions., Subsequently, on 8 September 2022, the respondents issued an Intimation Notice under Section 74(5) of the Central Goods and Services Tax Act, calling upon GTPL to deposit a sum of Rs. 2,09,89,31,31,501 along with interest and penalty by 16 September 2022. This notice is challenged in Writ Petition No. 18304 of 2022, in which the Supreme Court of India passed an interim stay order dated 23 September 2022., Immediately thereafter, the respondents issued the impugned Show Cause Notice under Section 74(1) of the Central Goods and Services Tax Act to the petitioner GTPL as well as its founders, CEOs and CFOs, who have preferred Writ Petitions No. 19570 of 2022, No. 19561 of 2022, No. 20119 of 2022 and No. 20120 of 2022. Accordingly, the details of the instant writ petitions are as follows: (a) Writ Petition No. 22010 of 2021 challenges the attachment orders dated 17 November 2021 and 30 November 2021; (b) Writ Petition No. 18304 of 2022 challenges the Intimation Notice dated 8 September 2022; (c) Writ Petition No. 19570 of 2022 assails the impugned Show Cause Notice dated 23 September 2022; (d) Writ Petition No. 19561 of 2022 is filed by the Chief Financial Officer of GTPL challenging the same Show Cause Notice; (e) Writ Petition No. 20119 of 2022 is filed by the founders of GTPL challenging the same Show Cause Notice; (f) Writ Petition No. 20120 of 2022 is filed by the chief executive officers of GTPL challenging the same Show Cause Notice., At the outset, it is relevant to state that the impugned attachment orders dated 17 November 2021 and 30 November 2021 have a period of one year prescribed in Section 83 of the Central Goods and Services Tax Act, which expired during the pendency of the subsequent petitions challenging the impugned Show Cause Notice. The Supreme Court of India, while reserving the petitions on 17 November 2022, directed that the said attachment orders would continue till disposal of these petitions. Further, the impugned Intimation Notice dated 8 September 2022, having been subsumed by the issuance of the impugned Show Cause Notice dated 23 September 2022, makes the legality, validity and correctness of the impugned Show Cause Notice the core issue to be adjudicated upon in these petitions., It is significant to state that in Writ Petition No. 19570 of 2022, intervention applications have been filed by the All India Gaming Federation and the eGaming Federation, who support the petitioners and are aggrieved by the actions of the respondents. The said intervention applications have also been heard along with these petitions. The petitioners contend that the basic construct of an online skill‑based game facilitated by GTPL is that GTPL has no role or influence over the playing of the games. Users choose the games based on the amount they wish to stake to match their skills against other players who wish to play for a similar amount. GTPL merely hosts the games; the discretion to play a game and the stake for which it is to be played lies entirely with the players, with no role of GTPL. For illustration, assume that A and B have downloaded the mobile application of GTPL and intend to play a game of rummy against each other using GTPL’s online platform. As per the construct of the game, A and B each deposit INR 200 for participation. The winner at the end of the game receives INR 360 as winnings. GTPL charges INR 20 each from A and B for facilitating the game, retaining INR 40 as its platform fee. During the course of the game, INR 360 is held by GTPL in a designated account on which GTPL has no lien or right; the amount is transferred back to the winner at the end of the game. Thus, GTPL retains only INR 40 as consideration for facilitation of gameplay, on which it has deposited GST., The petitioners further contend that the respondents have issued the impugned Show Cause Notice alleging that GTPL is involved in betting or gambling and that it has evaded GST by misclassifying its supply as services under Services Accounting Code 998439 instead of actionable claims, which are goods, and by mis‑declaring its taxable value. The petitioners argue that the impugned Show Cause Notice is completely fallacious, perverse and without jurisdiction or authority of law, and is vitiated with malice and therefore deserves to be quashed., It is an undisputed fact that more than 96 % of the games played on GTPL’s platform are rummy, which is a game of skill and is constitutionally protected as established by judgments of the Supreme Court of India, this Court and other High Courts, a position that remains unchanged. It is settled law that the character of rummy as a game of skill does not change when it is played online; consequently, the allegation that GTPL is involved in betting or gambling must be rejected. The impugned Show Cause Notice has grossly erred in understanding GTPL’s actual business practice. The only service provided by GTPL is the facilitation service as an online intermediary. By the logic of the allegations, every form of intermediary service would be required to deposit GST not on the revenue earned by them but on the gross amount of transactions undertaken on their platform. The Show Cause Notice alleges that GTPL has made a windfall profit by portraying a scenario wherein the entire buy‑in amount of more than INR 70,000 crore is shown to be GTPL’s revenue. This is entirely misleading and a malicious attempt to inflate the figure. The buy‑in amounts are not the property of GTPL; GTPL has no lien or right over such money and it must be disbursed to the winning players once the game is over. The respondents, with a view to mislead this Court, are trying to portray an inflated figure that is not even the income of GTPL., The absurdity in the allegations made in the impugned Show Cause Notice can be gauged from the fact that the respondents have not even mentioned the Terms and Conditions of the game plays facilitated by GTPL. In the Terms and Conditions, it is specifically stated that the monies deposited by the players are held in trust by GTPL. This undisputed contractual understanding between GTPL and its players completely negates the allegation that the entire buy‑in amount is GTPL’s income. The Show Cause Notice also alleges that GTPL, by providing discounts or bonuses, induces the players to indulge in more game plays. At the outset, it is to be noted that the withdrawal wallet created for each player is the property of the player, who may either withdraw the winnings to his bank account or use the same for further games. The decision and control over the withdrawal wallet remain with the player and GTPL has no influence over it. Hence, it is absurd to say that GTPL induces the players to play more games by giving bonuses or discounts when, in reality, the option lies entirely with the players. Providing discounts and incentives to market a business and platform does not change the nature of the games played on that platform; rummy remains a game of skill irrespective of any discounts offered., With respect to issuance of invoices, GTPL has acted in accordance with Section 31(3)(b) of the Central Goods and Services Tax Act, which allows an assessee not to issue an invoice if the value of supply is less than INR 200. The Show Cause Notice does not dispute the fact that more than 99.5 % of the supplies made through GTPL’s platform had a value of less than INR 200 and therefore there was no requirement to issue an invoice. The Show Cause Notice has utterly failed to depict how non‑issuance of invoice has led to evasion of tax., The Show Cause Notice is utterly bad in law, as it seeks to scuttle the process contemplated in the statutory framework for adjudication of proceedings. In paragraph 22 of the Show Cause Notice, the respondents aver that GTPL has not responded to the Intimation Notice, which is a perverse statement because the proceedings sought to be initiated qua the Intimation Notice were stayed by the Supreme Court of India by its order dated 23 September 2022. The Show Cause Notice is in gross violation of the law laid down by our constitutional courts, including the Division Bench of this Court in the case of All India Gaming Federation v. State of Karnataka & Ors., (2022) SCC Online Kar 435 (DB). It is per se arbitrary, violates the principle of audi alteram partem, is bereft of any reasoning and fails to satisfy the Wednesbury test of reasonableness, thereby violating the petitioners’ fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India. The Show Cause Notice is actuated by malice, since it comes in the backdrop of the pendency of Writ Petition No. 22010 of 2021 and Writ Petition No. 18304 of 2022, wherein interim orders have been granted. It is a colourable exercise of power and a gross attempt to overreach the orders of this Court., The allegations raised against GTPL in the earlier proceedings by the respondents changed suddenly in the present proceedings. Initially, the allegation was that GTPL evaded GST by claiming ineligible discounts from its platform fee. This was the narrative for most of the investigation, but suddenly the same changed and it was alleged that GTPL was involved in betting. The fact that the respondents kept changing their narrative shows utter arbitrariness and malice on their part. It is evident that the prime objective of the respondents is to harass and intimidate GTPL and its employees. Further, as per the Show Cause Notice, the respondents supposedly had the intelligence from the beginning that GTPL was involved in betting, yet never disclosed the same in the provisional attachment orders. The entire approach of the respondents is motivated in nature., It is well settled that games of skill played with monetary stakes do not partake the character of betting and remain within the realm of games of skill only. The term betting and gambling cannot be artificially bifurcated by the respondents to carve out an exception by stating that games of skill played with monetary stakes can also partake the character of betting and hence be taxable at the rate of 28 %. Doing so would obliterate the well‑settled distinction between games of skill and betting and gambling. The respondents have been unable to discharge the burden of proving that GTPL’s games fall within the category of betting and gambling. No material or legal basis for such a classification has been referred to in the Show Cause Notice., The Show Cause Notice is premised on the fact that GTPL is involved in the supply of actionable claim, which is ex‑facie erroneous. GTPL merely facilitates the playing of skill‑based games between users on its technology platforms in return for consideration in the form of platform fees, on which GTPL has duly deposited GST. Actionable claim, if any, is between the players and is excluded from the ambit of GST under Entry No. 6 of Schedule III of the Central Goods and Services Tax Act, except for lottery, betting and gambling, which are not relevant because the games facilitated by GTPL qualify as games of skill as confirmed by this Court., Relevant case law includes: State of Bombay v. R.M.D. Chamarbaugwala (AIR 1957); R.M.D. Chamarbaugwala v. Union of India (AIR 1957); State of Andhra Pradesh v. K. Satyanarayana & Ors.; M.J. Sivani and Ors. v. State of Karnataka (1995); Dr. K.R. Lakshmanan v. State of Tamil Nadu; Head Digital Works Private Limited v. State of Kerala (2021) SCC Online Ker 3592; Junglee Games India Pvt. Ltd. v. State of Tamil Nadu (2021) SCC Online Mad 2762; All India Gaming Federation v. State of Karnataka & Ors. (2022) SCC Online Kar 435 (DB); Whirlpool Corporation v. Registrar General (1998); Linde Engineering Pvt. Ltd. v. Union of India; Calcutta Discount Co. Ltd. v. Income Tax Officer; Magadh Sugar and Energy Ltd. v. State of Bihar (2021) SCC Online SC 801; Director General of Foreign Exports v. Kanak Exports (2016) 2 SCC 226; Collector of Central Excise v. ONGC (1999) 1 SCC; Narendra Udeshi v. Union of India (2002) SCC Online Bom 962; Siemens Ltd. v. State of Maharashtra (2006); ORYX Fisheries v. Union of India (2011) 266 ELT; Spirotech Heat Exchangers v. Union of India (2016) 341 ELT 110 (Del); Topland Engines Pvt. Ltd. v. Union of India (2006) 199 ELT 209 (Guj); East India Commercial Co. Ltd. v. Collector of Customs (1983) 13 ELT 1342 (SC); NKAS Services Pvt. Ltd. v. State of Jharkhand; Gurdeep Singh Sachar v. Union of India (2019) 30; Ravindra Singh Choudhary v. Union of India (2020) 42 GSTL 195 (Raj); State of Karnataka v. State of Meghalaya (2022) SCC Online SC 350; Varun Gumber v. Union Territory of Chandigarh (2017) SCC Online P & H 5372; Executive Club v. State of Andhra Pradesh (1998); Patamata Cultural and Recreation Society v. Commissioner of Police (2004) SCC Online AP 963; D. Krishna Kumar v. State of A.P. (2002) 3 APLJ; Uniworth Textiles v. Commissioner of Central Excise (2013) 9 SCC 753; Tamilnadu Housing Board v. Collector of Central; Continental Foundation v. Commissioner of Central Excise (2007) 216 ELT 177 (SC); Densons Pultretaknik v. Commissioner of Central Excise (2003) (155) ELT 211 (SC); Shreya Singhal v. Union of India (2015) 5 SCC 1; Shayara Bano v. Union of India (2017) 9 SCC 1; Twin Cities Cinema Cultural Centre v. Commissioner of Police (2002) SCC Online AP 691; Subramanyan Swamy v. Union of India (2016) 7; Sunrise Associates v. Government of NCT of Delhi; Skill Lotto Solutions Pvt. Ltd. v. Union of India & Others (2020) SCC Online SC 990; State of Rajasthan v. Rajasthan Chemist Association (2006) 6 SCC 773; Commissioner of Income Tax v. Sun Engineering Works (1992) 4 SCC 363; Kalabharathi Advertising v. Hemanth Vimalnath Narichania (2010) 9 SCC 437; Ratanlal Khare v. State of M.P. (1985) SCC Online; Olga Tellis v. Bombay Municipal Corporation; State of Rajasthan v. Banwarlal Verma (2001) SCC Online Raj 106; Pratibha Processors v. Union of India (1996); M/s. Filterco v. Commissioner of Sales Tax (1986); Palitana Sugar Mills v. Vilasiniben Ramachandran; Bundl Technologies v. Union of India (2021) SCC Online KAR 14702; Union of India v. PFIZER Ltd. (2018) 2 SCC 39; Jitendra Kumar Singh v. State of Uttar Pradesh; Bombay Dyeing v. Bombay Environmental Action Group (2006) 3 SCC 434; Associated Management v. State of Karnataka., The respondents have filed their statement of objections denying and disputing the claims and contentions of the petitioners. They summarize their position as follows: The petitions challenging a mere Show Cause Notice are premature and not maintainable and should be dismissed. The platform of GTPL allows players of online rummy to place stakes and bet on the outcome of such games. In addition, GTPL makes profits and gains from such games of rummy played on its platform, which, according to the Supreme Court of India in State of Andhra Pradesh v. K. Satyanarayana & Ors., AIR 1968 SC 825, would amount to betting and gambling. The contention of GTPL that rummy played on its platform is a game of skill deserves to be rejected; it is, in their view, a pure game of chance., The respondents contend that the test laid down by the Supreme Court to determine whether a particular game is a game of chance or a game of skill is threefold: (i) identification of facts and circumstances of each case; (ii) determination of whether success in the game preponderantly depends on skill or chance; and (iii) discernment of skill from superior knowledge, training, attention, experience and adroitness of the player. They argue that on GTPL’s platform the only criterion to enter a particular table is the amount staked. Once an amount is staked, GTPL’s platform places the player in a table where other players have also staked an equal amount. GTPL admits this position. Further, GTPL’s platform does not record the skill level of a player nor disclose it to other players. Consequently, a player has no choice to make a conscious decision about against whom to compete. Any common man can sign up on the app and start playing. Therefore, when skill is not the qualifying criterion and placing stakes is the only criterion, the success of the game principally depends on chance, making rummy a game of chance in the facts and circumstances., The respondents assert that the presumption that people with less skill will stake less and people with higher skill will stake more is fallacious, because GTPL equates skill with the quantum of stakes rather than with how well a player can play rummy. They further state that GTPL charges 10 % of the total amount of stakes placed by the players at a particular table as its commission, which they characterize as profit from the stakes placed on the outcome of games of rummy, covered by the decision of the Supreme Court in Satyanarayana’s case. The respondents reject GTPL’s characterization of the 10 % commission as a service fee, arguing that a service fee must be charged purely for meeting expenses, must apply uniformly to all players and must be independent of the games of rummy. They note that the alleged service fee varies from table to table depending on the total amount of stakes, which they deem unacceptable., Assuming, but not admitting, that rummy played on GTPL’s platform is a game of skill, the respondents argue that playing it for stakes and GTPL making profit from such stakes would still constitute betting. They cite the ratio of the Supreme Court in Satyanarayana’s case, stating that any number of judgments holding the contrary are per incuriam. They maintain that a game of skill played for stakes would still amount to betting and that the Supreme Court has not specially blessed such games to be played with stakes. Consequently, any submission contrary to this settled position must be rejected., The respondents further contend that judgments of the Punjab and Haryana High Court, Bombay High Court and Rajasthan High Court in the cases of Varun Gumber, Gurdeep Singh and Ravindra Singh, respectively, relating to Dream 11, have no application here, as no factual investigations were made on a case‑by‑case basis and the petitioners therein approached the court by way of public interest litigations. When the Bombay High Court decided on aspects relating to GST, the Supreme Court permitted the Union of India to file a review before the High Court, which is still pending. The Rajasthan High Court took note of this and left it to the GST authorities to decide the issues. Therefore, the aspects of GST are still wide open and have not attained finality. Out of abundant caution, it is clarified that even the aspects of betting and gambling were decided without underlying facts and the respondents are at liberty to revisit and examine the facts as it has never been done before., Finally, the respondents argue that the judgment of this Court in All India Gaming Federation v. State of Karnataka & Ors. will have no applicability, as that decision dealt only with the vires of the 2021 amendment treating games of skill on par with games of chance. The amendment was struck down by this Court, which never examined on a factual basis whether the underlying games were games of chance or skill. Consequently, the contention of GTPL that the issue is decided against the Department in light of that decision deserves to be rejected.
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Narmada Bachao Andolan (34) Somasundaram Chettiar & Others v. Emperor, 1947 Supreme Court Cases Online Madras 193; (35) Krishnachandra and others v. State of Madhya Pradesh, All India Reporter 1965 Supreme Court 307; (36) Commissioner of Income Tax, Andhra Pradesh v. Motors & General Stores (P) Ltd., All India Reporter 1968 Supreme Court 200; (37) Commissioner of Income Tax, Calcutta v. Gilla nders Arbuthnot & Co., 1973 Supreme Court Cases (Tax) 359; (38) Bhopal Sugar Industries Ltd. v. Sales Tax Officer, Bhopal (1977) 3 Supreme Court Cases 147; (39) Relevant provisions of the Police Act, 1963; (40) D.V.R. Recreation Club v. State of Karnataka, 2014 Supreme Court Cases Online Karnataka 11073; Decision in Writ Petition No. 207054 of 2014 dated 15 December 2014; (41) D.V.R. Recreation Club v. State of Karnataka, Writ Appeal No. 200290 of 2015 dated 27 June 2016; (42) D.V.R. Recreation Club v. State of Karnataka, 2016 Supreme Court Cases Online Karnataka 8878; Decision in Review Petition No. 200029 of 2016 decided on 19 October 2016; (43) Strikers Association v. State of Karnataka, Writ Petition No. 51372 of 2019 decided on 29 November 2019; (44) Strikers Association v. State of Karnataka, Writ Appeal No. 4049 of 2019 decided on 3 January 2020., I have heard Sri. Dr. Abhishek Manu Singhvi and Sri. Udaya Holla, learned Senior Counsel appearing on behalf of the petitioners: Sri. Siddhartha H.M., Sri. Suhaan Mukherji, Sri. Nikhil Parikshith, Sri. B.R. Vyasakiran Upadhya, Sri. Abhishek Manchanda, Sri. Chandan Prakash Pandey, Sri. Manjunath B., Sri. Nidhiram Sharma, Sri. Onkar Sharma and Sri. Varun Thomas Mathew. I have also heard Sri. Mukul Rohatgi, learned Senior Counsel together with Sri. Pradeep Nayak, Smt. Anupama Hebbar, Sri. Sankeerth Vittal and Sri. Karan Gupta, learned counsel for the impleading applicant on Interim Application 1 of 2022. Further, Sri. Aravind Datar and Sri. Sajjan Poovayya, learned Senior Counsel, appeared with Miss Raksha Agarwal, Sri. Sameer Singh and Sri. Ravi Raghavan, learned counsel for the impleading applicant on Interim Application 2 of 2022. I have also heard Sri. N. Venkataman, learned Additional Solicitor General, together with Sri. Jeevan J. Neeralgi and Sri. Amit Anand Deshpande, learned counsel for the respondents Revenue, and Smt. Jai M. Patil, learned counsel for the respondent., The impugned Show Cause Notice is wholly illegal, arbitrary, untenable and without jurisdiction or authority of law for the following reasons., Games of skill are always a distinct class, never gambling or betting, and have always been judicially differentiated from games of chance. For distinguishing between skill and chance, the courts have applied the predominance test, which is the watershed test. Statutes that save games of mere skill mean that the skill element is more than chance – never 100% skill. For example, the way cards are distributed from a pack. We are concerned with rummy; rummy per se in law has always been designated as a game of skill. The age‑old distinction between skill and chance is vital and has been maintained in all statutes because the State has no competence over skill but only over chance. There is a rationale behind this distinction – it goes to the root of legislative competence since skill cannot fall under Entry 34 of List II of the Constitution of India., It makes no difference whether a game of skill is played physically or virtually; the same predominance test applies to ascertain the true character of the game. This artificial distinction between online and offline is merely to create a fear psychosis and to reopen settled legal principles. Earlier statutes codified exclusions for games of skill because games of skill are protected from any penal consequences. The correct ratio of the case of K. Satyanarayana was the apprehension of the Court that people were playing flush in guise of rummy or engaging in prostitution or other noxious activities – these are issues of policing, not of the validity or character of the game. Playing with stakes or high stakes is irrelevant., The contentions of the petitioner are fully covered by the judgments of the Supreme Court of India in RMDC‑1, RMDC‑2, Satyanarayana, Sivani, Lakshmanan and this Court in All India Gaming Federation, Junglee Games (Madras), Head Digital (Kerala) and judgments of other High Courts. The expression ‘gaming’ does not merit any re‑examination, since it has become nomen juris in view of Lakshmanan’s case, wherein it is held that gaming is the act or practice of gambling on a game of chance and that it is staking on chance, where chance is the controlling factor and the definition applies uniformly to all gaming legislations., It is no longer res integra that wagering or betting on a game of skill is not gaming in view of RMDC‑1, RMDC‑2 and Lakshmanan’s cases. It is also no longer res integra that wagering or betting on a game of skill is not gambling, since the outcome depends on a substantial degree of skill of the players as per Lakshmanan’s case. The distinction between games of skill and games of chance has always been in the context of gambling, i.e., wagering or betting on a game of chance. The distinction between skill and chance is not necessary for hosting tournaments with an ultimate prize money or trophy, since no wagering or betting occurs in such tournaments; this is because in all the State enactments, the pre‑condition for gaming and the accompanying penalties is wagering or betting. In other words, a competition without wagering or betting would not be gaming and therefore the distinction between skill and chance becomes immaterial., Competitions involving substantial skill or predominantly skill are business activities that stand protected under Article 19(1)(g) of the Constitution of India. This has been held in RMDC‑2’s case supra while discussing the consequences of gambling. Therefore, organising a game of rummy played with stakes for a commission is a business that stands protected under Article 19(1)(g). Rummy played with stakes has been judicially permitted and is not considered gaming or gambling as held in All India Gaming Federation, Head Digital, Junglee Games cases supra and the Andhra Pradesh High Court., In the case of G.S. Ananthaswamy Iyer v. State of Karnataka, 1982 Supreme Court Cases Online Karnataka 104, the Supreme Court of India dealt with the latter portion of paragraph 12 of K. Satyanarayana’s case supra and rejected arguments similar to those advanced by the learned Additional Solicitor General on behalf of the respondents. In another case of D.V.R. Recreation Club v. State of Karnataka, 2016 Supreme Court Cases Online Karnataka 8878, the Supreme Court of India clearly held that rummy played with stakes is permissible and not an offence., The judgment of a court is not to be read as Euclid’s theorem shorn of the facts and context in which the law has been declared. Accordingly, RMDC‑1 & 2, K. Satyanarayana, M.J. Sivani and K.R. Lakshmanan’s cases must be construed harmoniously and not in a disharmonious manner. The contention of the respondents that in RMDC‑1 it was held that any game whose result is based on a forecast is a gambling activity is liable to be rejected., At paragraph 17, the tripartite categorisation of competitions by the Supreme Court of India was in the context of clauses (i), (ii) and (iii) of the definition of prize competition under Section 2(1)(d) of the 1948 Act. Such prize competitions were offered through newspapers. Paragraph 17 concluded that competitions falling under Category I and III were of a gambling nature. Notably, paragraph 17 lays down a general principle that a competition whose success does not depend to a substantial degree upon the exercise of skill is recognised as gambling. Conversely, competitions wherein success depends on a substantial degree of skill are not of a gambling nature. De hors the definition of prize competition, the legal principle at paragraph 17 remains constant and universal., On a plain reading of paragraph 18, it becomes clear that competitions from all three categories are not games of skill. The amended definition of prize competition as amended in 1952 retains the tripartite categorisation. Paragraphs 18 and 19 do not lay down any general legal principles but only conclude that Category I prize competitions (under Section 2(1)(d)(i)) are of a gambling nature. Paragraph 20 of RMDC‑1 deals with Category II, which are also not games of skill. Prize competitions, i.e., competitions described under Section 2(1)(d)(ii) as any competition in which prizes are offered for forecasts of the results either of a future event or of a past event the result of which is not yet ascertained, were held by the Supreme Court of India to be difficult to treat as an invitation to a game of skill. The sentence at paragraph 20 does not lay down any general legal principle applicable to rummy played with stakes; it is a finding specific to competitions offered through newspapers, wholly distinct from a game of rummy played with stakes between two actual players., The Apex Court noticed that Category II was clubbed between clauses (i) and (iii) which cover competitions of a pure gambling variety offered to the general public via a newspaper. Therefore, Category II covers competitions akin to Categories I and III offered through the medium of a newspaper. Such competitions require a forecast that may involve several imponderables and can only be made by persons with scientific or technical expertise. When such games are offered to the general public, the forecast becomes a shot at a hidden target. While there is an element of chance in each game, an activity where the exercise of skill can control the chance element such that the better skilled player prevails more often qualifies as a game of skill. The game of rummy played with stakes is played between players on the basis of assessment of their own skill. While playing for stakes, the player makes a value judgment on his or her skill. The outcome of the game is determined predominantly by the skill of the players; therefore rummy played with stakes cannot be viewed as a forecast or a shot at a hidden target., The respondents contend that a club deriving income by charging sitting fees on players must be taken as profit or gain, making the club a common gaming house. However, the nature of the three‑card game in the cited case holds immense significance and cannot be brushed aside. Organising a three‑card game which is not a game of mere skill would amount to gaming and therefore the club would be a common gaming house within the meaning of Section 3 of the Madras Gaming Act, 1930. The High Court of Madras held that the relevant question was whether the club was utilised for gaming purposes for the profit of the club, which was a question of fact. The conviction was sustained on the basis that the premises were used for gaming purposes for profit. This decision does not lay down any general legal principle that charging a commission for playing a game of skill between players for stakes would amount to running a common gaming house, and such a principle would fall foul of RMDC‑2’s case., The judgment of the Supreme Court of India in K. Satyanarayana was relied upon to contend that making a profit or gain by charging players for playing rummy is impermissible and that rummy played for stakes is an offence. This contention is misconceived and untenable, since the club in that case was a members’ club and the illegal aspect was charging a heavy charge on members for playing in a card room for profit – i.e., five points per game. That scenario cannot be extended to the petitioner’s platform. Paragraph 10 of that judgment, if interpreted to prohibit any profit or gain derived from organising a game of skill, would run counter to the definition of a common gambling‑house, which requires an instrument of gaming to be used for profit or gain. At paragraph 12, the game of rummy was held to be protected under Section 14 of the Hyderabad Gambling Act, which implies that the game is not hit by any other provisions of the Act and therefore any profit or gain derived from playing rummy would not make the organiser a common gambling‑house. Interpreting the judgment to mean that no fees can be imposed on players for a skill‑based game would also make a chess competition organiser guilty of running a common gambling house, which is absurd., The respondents also rely on the latter portion of paragraph 12, which cannot be read in isolation. Paragraph 3 makes it clear that the game being played was rummy for stakes. The opening words of paragraph 12 confirm that protection under Section 14 was available. The only reasonable explanation of the sentence is that it prohibits the owner of the club from betting on a game of rummy played in the club, not the running of a club wherein rummy is played with stakes between the players., The respondents cite M.J. Sivani’s case to contend that gaming is associated with stakes or money on the result of a game, be it pure chance or mixed skill and chance. Paragraphs 7 and 8 of Sivani’s case contain the dictionary meaning of gaming, which makes clear that gaming is confined to playing a game of chance for stake or wager and is synonymous with gambling. The definition does not hold that playing a game of skill for stake or wager also amounts to gaming or gambling. Paragraph 14 refers to video games such as Super Continental, High Low, Black Jack, which are pure games of chance played between a user and a computer system. The Apex Court does not hold that video gaming is akin to gambling. In paragraphs 13 and 18, the Supreme Court of India acknowledges that offering video games is protected under Articles 19(1)(g) and 21 of the Constitution of India, implicitly holding that such activities are not res extra commercium. Nowhere does the Apex Court hold that playing a game predominantly of skill with money or stakes amounts to gaming or gambling., It is contended that K.R. Lakshmanan’s case, apart from not favouring the petitioner, actually supports the respondents’ claim. This contention is based on a misreading and misinterpretation of the ratio laid down in the said judgment and is liable to be rejected. Likewise, the ratio laid down by the Division Bench of this Court in All India Gaming Federation’s case is sufficient to reject all the respondents’ claims and their attempt to distinguish the cited judgment., Goods and Services Tax is a tax on the supply of goods and services. Without prejudice to the points discussed above and irrespective of the qualification as betting and gambling, GST liability as alleged in the impugned Show Cause Notice can be affixed on the petitioners only if the petitioner‑GTPL can be said to have supplied actionable claims. However, the petitioner‑GTPL is an online intermediary who only provides services of facilitating skill‑based game plays between the players and contractual terms of service with the players, showing that the petitioner‑GTPL was not supplying any actionable claim. For the gaming platform provided, the petitioner‑GTPL charges a consideration in the form of a platform fee on which GST is duly deposited. It is undisputed that the monies contributed by the players to the prize pool are merely held by the petitioner‑GTPL in trust and the petitioner‑GTPL has no right, lien or interest over the prize pool., An actionable claim means a claim to an unsecured debt or to a beneficial interest in movable property; it is a chose in action or a right to claim/enforce a debt. In colloquial terms, it can be described as an ‘I owe you’. Since the petitioner company does not have any right or claim over the prize pool and merely holds it in a fiduciary capacity to facilitate the game plays, the basic criteria for qualifying as an actionable claim is not met for the petitioner‑company and thus no question of supply of actionable claim by the petitioner‑company arises., The intervenor is a not‑for‑profit organisation established under the Societies Registration Act, 1860 and comprises various stakeholders in the online gaming industry as members. The members of the applicant (operators) are, inter alia, engaged in the business of providing technology‑based platforms which allow players to play online versions of rummy with other players on a real‑time basis. Players on these platforms are eligible to play the games upon payment of a platform fee (A) to the operators, which is charged as consideration for providing the technology‑based platform. Goods and Services Tax is discharged on the amount of platform fee collected by the operators. Each player is also required to contribute a predetermined amount towards the prize pool (B), which shall be distributed to the winning player(s) in accordance with the rules of each game. The players are informed of both (A) and (B) upfront before a game begins. The operators only provide platform services in consideration of the platform fees (A). The contribution towards the prize pool is not consideration for the platform services and the operators have no interest over the same; in other words, the operators do not have any skin in the game., The players contract with each other to make contributions to the prize pool and to abide by the rules of the game. Under the service terms of the platforms, operators manage the prize pool and implement the rules of the game by distributing the prize pool to the winners on behalf of the players. The prize pool is a fund held by the operators in trust for a brief period of time (i.e., from the time of the contribution by the players prior to the commencement of the game till its completion), after which the prize pool amount is distributed among the winners. The amounts comprising the prize pool are not a consideration for any services provided by the operators. Since these amounts are (i) not supplies made by the operators; and alternatively (ii) not consideration for supply of actionable claims, no Goods and Services Tax is required to be discharged on the contribution made by the players to the prize pool., Games of skill fall outside the purview of betting and gambling enumerated in Entry 34 of List II of the Seventh Schedule of the Constitution of India. The terms ‘betting’ and ‘gambling’ are not defined in the Constitution or in the Central Goods and Services Tax Act and the ordinary dictionary meanings ought to be ascribed to such terms. Section 65‑B(15) of the Finance Act, 1994 defines betting or gambling as putting on stake something of value, particularly money, with consciousness of risk and hope of gain on the outcome of a game or contest, whose result may be determined by chance or accident, or on the likelihood of anything occurring or not occurring., In RMDC‑1 and RMDC‑2, the Supreme Court of India recognized the distinction between gambling activities and games of substantial skill and excluded games of skill (where success depends on skill to a substantial degree) from the scope of gambling and consequently from the scope of Entry 34 of List II. The test for what is a game of skill and what is a game of chance has been clearly laid down by the Supreme Court of India in RMDC‑1 and has been consistently followed by the Apex Court, this Court and other High Courts. In RMDC‑2, it was held that a statute that applies to both betting or gambling as well as a game of skill will be severed to apply only to activities that amount to betting or gambling, while rejecting the State’s submission that the Prize Competition Act, 1955, insofar as it applies to competitions of skill, would be governed under Entry 26 of List II. Therefore, in interpreting Entry 34 of List II, the Supreme Court of India held that the phrase ‘betting and gambling’ does not include games of skill., The contentions urged by the petitioner with reference to RMDC‑1, RMDC‑2, Satyanarayana, M.J. Sivani, K.R. Lakshmanan, All India Gaming Federation, Junglee Games, Head Digital etc., are reiterated by the intervenor. It is thus submitted that playing games of skill for stakes does not amount to gambling. Gambling is the act of playing a game of chance for stakes. Such staking in gambling amounts to betting. Betting and gambling are compendious terms and cannot be separated from one another. The term betting partakes the colour and character of the term gambling, which means that betting can only be interpreted to apply to games of chance and games of skill stand excluded from betting., It is not disputed that rummy is a game of skill. The key skills involved in rummy are memorising the fall of the cards, building up the right sequences by discarding cards and drawing cards from the open pile. The game of rummy requires a player to strategise his or her moves, exercise experience, adroitness, alertness on the table and skills in permutations and combinations. A player with greater skills is always more likely to win against players with inferior skills, purely based on the skill that the players possess. The dispute only pertains to whether rummy when played for stakes amounts to gambling or betting, a question that has been held in the negative by the Supreme Court of India in the aforesaid judgments and also by the Andhra Pradesh High Court in Executive Club v. State of Andhra Pradesh (1998) 3 APL 138 and D. Krishna Kumar v. State of Andhra Pradesh (2002) Supreme Court Cases Online Andhra Pradesh 810., The respondents submit that playing a game of skill for stakes also amounts to betting and gambling and seek to completely annul the distinction between games of chance and games of skill as it stands today on the basis of settled law by the higher courts of the country. The respondents are doing so by selectively picking certain portions of Supreme Court decisions that are not part of the ratio and are divorced from the context of the decisions. It is settled law that sentences in a judgment cannot be picked out of context of the question under consideration. In this regard, reliance is placed on the decisions of the Supreme Court in Commissioner of Income Tax v. Sun Engineering (1992) 4 Supreme Court 363 and State of Rajasthan v. Ganeshi Lal (2008) All India Reporter 690., The question before this Court is whether the proper officer issuing the impugned Show Cause Notice can ignore the decision of the Division Bench of this Court in All India Gaming Federation and, in doing so, whether he was acting without jurisdiction. In this regard, reliance is placed on the decision of the Supreme Court in East India Commercial v. Collector of Customs (1962) All India Reporter 1893, wherein it was held that authorities subordinate to the High Court, such as the proper officer in this case, are bound by its rulings. Without prejudice to the above, it is submitted on merits that the decisions of the Apex Court referred to above have been misread and misinterpreted by the respondents and do not aid their case., It is thus submitted that playing games of skill for stakes does not amount to gambling. Gambling is the act of playing a game of chance for stakes and such staking in gambling amounts to betting. Betting and gambling are compendious terms and cannot be separated from one another. The term betting partakes the colour and character of the term gambling, which means that betting can only be interpreted to apply to games of chance and games of skill stand excluded from betting., The business model of the petitioner, i.e., an intermediary that facilitates players playing on its platform, is similar to that followed across the online gaming industry. The monies contributed by players to the prize pool are merely held in trust and the companies have no right, lien or interest over it as they only charge a service fee for the service provided, on which GST is paid. Accordingly, there is no supply of any goods or actionable claim by the entities involved., As on date, the revenue of the entire industry itself is not INR 21,000 crore. Therefore, to tax just one entity over INR 21,000 crore by way of the impugned Show Cause Notice is absurd. The stated stand of the Revenue is also that the allegations made in the impugned Show Cause Notice form the basis on which further demands will be made on the entire industry.
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It is distressing to note that while on the one hand, the Central and the State Governments are pushing to make the country a gaming hub, on the other hand, the Revenue is seeking to effectively kill the industry. It was submitted that the impugned Show Cause Notice is arbitrary and ignores settled law, reiterated time and again by the Supreme Court of India. Betting and gambling under the Central Goods and Services Tax Act is to be ascribed the same meaning as that under the Constitution of India. Betting and gambling under Entry 34 of List II has attained constitutional significance. Betting and gambling only relates to games of chance and its scope cannot be extended to include games preponderantly and substantially of skill. Betting and gambling has also been read conjunctively to mean betting in gambling. Thus, for any game to fall within the import of Entry 34, there has to be betting in gambling. The definition of gaming in various statutes should be read to mean the act or practice of gambling on a game of chance. Further, gambling and gaming have developed secondary meanings in judicial parlance (nomen juris). Gambling is equated with gaming where chance is the predominant factor. The Division Bench of the Supreme Court of India in All India Gaming Federation case supra has further held that including games of skill in the definition of gaming is manifestly arbitrary., The reliance by the respondents on paragraph 100 of Junglee Games case supra is erroneous. As is evident from a reading of this paragraph, the Madras High Court was discussing the meaning of gambling in the common parlance. Subsequently, the legal and constitutional meaning is adverted to in paragraph 104, wherein the Court has observed that in law, gambling is equated with gaming, where chance is the predominant factor. Paragraph 104 is the ratio emanating from the judgment of the Madras High Court, and not paragraph 100. Thus in summary: betting and gambling has been interpreted to mean wagering or betting on a game of chance; there is no independent category of betting separate from betting and gambling; and wagering on a game of skill does not amount to betting and gambling. Betting and gambling having attained constitutional significance and being nomen juris, betting and gambling under the Goods and Services Tax regime should be interpreted in the same manner as that in the Constitution of India., Prior to the 101st amendment to the Constitution of India, the State legislatures had the power to tax betting and gambling under entry 62 of List II. Betting and gambling under Entry 62 is to be ascribed the same meaning as under Entry 34 (State of Karnataka vs. State of Meghalaya, C.A. No. 10466 of 2011, paragraph 119). The deletion of betting and gambling from Entry 62 and simultaneous inclusion in the GST regime demonstrates the legislative and constitutional intention to transpose meaning. Wagering or staking on a game of skill does not amount to gambling. Section 9 of the Public Gambling Act, 1857 and Section 84 of the Karnataka Police Act, 1963 say that proof of playing for money is not required for conviction under the respective acts. These acts deal with gambling activities. Reference may also be had to Section 176 of the Karnataka Police Act, 1963, which exempts wagering by persons taking part in a game of skill. An amendment to this provision removing this exemption was struck down in All India Gaming Federation case as being manifestly arbitrary. Therefore, to say that placing of stakes on games of skill will make it gambling does complete violence to the legislative intent that has consistently been in vogue for over 150 years., The argument that games of skill played with stakes amounts to gambling obliterates the distinction between games of skill and games of chance. The respondents' argument that the distinction remains for the purpose of conducting competitions is entirely a figment of their imagination and finds no mention in any jurisprudence on the subject. As noticed by the Division Bench of the Supreme Court of India in All India Gaming Federation case, a game that involves a substantial amount of skill is not gambling. The Division Bench has further conclusively held that a game of skill does not cease to be one even when played with stakes. There is no concept of an independent category of betting on games of skill. All betting sought to be caught in the ambit of betting and gambling is betting on a game of chance. The argument of the respondents that placing bets on games of skill amounts to forecasting of results on a future event and consequently amounts to gambling by placing reliance on RMDC-1 is entirely misplaced. The Apex Court in RMDC-1 has held that sub‑clause (b) of the definition of prize competitions in Section 2(1)(d) of the Bombay Lotteries and Prize Competition Control and Tax Act, 1948, should be read to apply only to games that are gambling in nature and cannot take within its sweep innocent prize competitions. Thus, forecasting for the purposes of sub‑clause (b) of Section 2(1)(d) can only mean forecasting by a third party on an event, the outcome of which is not dependent on the skill of the player involved, such as the result of the rolling of a dice. This is an exclusion of games of skill and cannot be read to mean that all manner of forecasting is gambling., The respondents' contention that Satyanarayana case is a clear enunciation of law that games of skill played with stakes amounts to gambling and that when the club makes a profit, it amounts to the offence of running a common gaming house is wholly erroneous. The Supreme Court of India went into the question of profits only because this was the only point considered by the High Court in the impugned order, as the High Court did not consider whether rummy was a game of skill or not. The Supreme Court subsequently holds in paragraph 12 that even otherwise, rummy is a game of skill and that therefore the Hyderabad Gaming Act is not attracted. This is the ratio that emerges from Satyanarayana case. The last portion of paragraph 12 in Satyanarayana case relied on by the respondents says that the offence of being a common gambling house is attracted when the club itself is concerned with the outcome of the game (or if there is side betting), as recognised by the Kerala High Court in Head Digital case. It is no one's case that the petitioner is interested in the outcome of a game played by players on its platform. Irrespective of who wins, the petitioners, in terms of its contract with the players, collect a percentage of the amounts staked as its platform fees or commission for providing its services as an intermediary. Thus, the respondents cannot be permitted to supply words to these observations and say that placing stakes on a game of skill amounts to gambling. In any event, from a reading of the whole judgment, it is evident that this last line is not the ratio of the judgment at all., The decision of the three‑judge bench of the Supreme Court of India in Lakshmanan case is also entirely in favour of the petitioner. The Supreme Court clearly notes that the term gaming can only be interpreted in the light of the law laid down in RMDC‑1 and RMDC‑2, i.e., competition which substantially depends on skill is not gambling. The Supreme Court has held that gaming is the act or practice of gambling on a game of chance. It is staking on chance where chance is the controlling factor. Thus, accordingly, the Supreme Court concludes even if there is wagering or betting with the club it is on a game of mere skill and as such it would not be gaming under the two Acts. Hence, the ratio that emerges is that wagering or betting on a game of skill does not amount to gambling. The respondents' contention that an exception on wagering or betting on horse racing is carved out in specific circumstances and therefore wagering or betting otherwise is not permitted is specifically answered in the negative in paragraph 35 of Lakshmanan case, where the Supreme Court has held that these sections are applicable to bucket‑shops in the city streets or bazaars, purely for gambling purposes (i.e., where it cannot be said to be a game of skill). It is also pertinent to note that the Supreme Court, in paragraph 26, has noticed with approval the judgment of the Michigan Supreme Court in Edward J. Rohan vs. Detroit Racing Association, where the Michigan Supreme Court held that pari‑mutuel betting on a horse race is not a lottery (or in other words is not gambling)., It is important to keep in mind that in all cases referred above that have been decided by the Supreme Court of India, the games in question always involved playing with stakes. In none of the cases above has the Supreme Court held by inference or by a clear unambiguous declaration of law that playing games of skill for wager amounts to gambling. It was submitted that placing stakes by a player who plays a game of skill (as in the case in the platform run by the petitioners) cannot be equated to gambling by third persons placing bets on the outcome of the cricket match. Playing a game of skill is a protected activity under Article 19(1)(g) of the Constitution of India and therefore, classifying such activity only on account of placing stakes as gambling (and therefore a pernicious activity) will be manifestly arbitrary. Article 19(1)(g) guarantees the right to practice any profession or to carry on any occupation, trade or business. Any occupation, trade or business necessarily involves an element of earning monies to sustain one's livelihood and for profit. Therefore, it cannot be said in the same breath that playing games of skill is protected under Article 19(1)(g) while also saying that placing stakes on such games amounts to gambling and is illegal., Reliance placed by the respondents on paragraph 15 of M.J. Shivani case to say that a novice playing a game of skill does not make it gambling is completely misplaced. This is effectively the very definition of a game of skill. The more skilled player is likely to win against a novice, i.e., the outcome of the game is decided on the basis of the skills of the players involved. Further, the observations made herein will also have to be read in the context of the observations on this point made in RMDC‑1, where the Supreme Court observes that even in a game of chance, expert statisticians may form some idea of the result of an uncertain future event but it is difficult to treat these as a game of skill. Thus, the only test to ascertain the nature of the game is the preponderance test and not on the basis of the skill level of the player involved. The judgment of this Court in All India Gaming Federation is neither per incuriam nor sub‑silentio as contended by the respondents. Only because a specific paragraph in a precedent has not been excerpted by a Court does not mean that a precedent has not been considered in its entirety. By that logic, if the entirety of a precedent judgment is not excerpted in a subsequent judgment, the subsequent judgment will become automatically sub‑silentio and per‑incuriam, which is a completely absurd proposition. Thus it cannot be said that the decision of the Division Bench of the Supreme Court of India in All India Gaming Federation is either per incuriam (as it refers to and considers all the judgments of the Supreme Court of India) or sub‑silentio (as it specifically holds that playing games of skill for stakes does not amount to gambling in paragraph X)., Online gaming platforms do not supply goods (i.e., actionable claims) on their platforms and they only render services on which GST is paid. Online gaming platforms are essentially intermediaries, where a platform is created for third parties to connect for playing skill games against each other. The prize pool amounts are held by online gaming platforms in trust in a fiduciary capacity and these platforms have no right or beneficial interest thereon. An actionable claim has been defined in Section 2(1) of the Central Goods and Services Tax Act as having the same meaning assigned to it in the Transfer of Property Act, 1882. The stakes placed by a player while playing a game of skill amount to actionable claims but the platform itself is not involved in providing the actionable claim. It is only the players that provide the actionable claim inter se. Thus, the claim that the petitioner is involved in supply of actionable claims is fallacious. Since the petitioner is not creating or transferring any actionable claims, the stakes placed by the players on the games cannot be treated as a supply of goods or services., Going by the nature and character of a game, courts have classified them either as a game of skill or a game of chance. When the success in a game depends on skill or a substantial degree of skill, it gets classified as a game of skill or predominantly a game of skill. On the other hand, when the success in a game depends on chance, then it becomes a game of chance. To reiterate, a skill‑based game becomes a game of skill. If skill predominates chance, it becomes a predominant game of skill, whereas a chance‑based game becomes a game of chance. The question for consideration before this Honorable Court is not as to whether rummy played on the petitioner's platform is a game of skill or chance, as courts have already held that rummy is predominantly a game of skill. The question for consideration before this Honorable Court is something totally different. When any person including the players of rummy wagers, stakes or bets on the outcome of a game of rummy, which outcome is unknown and uncertain till the game gets over, whether such activity of wagering, staking or betting on the unknown and uncertain outcome would tantamount to betting and gambling irrespective of the nature of the underlying game, i.e., of skill or of chance. This issue is also no longer res integra as the Supreme Court of India in the very same case of Satyanarayana held at paragraph 12 that giving away prizes based on forecasting, i.e., predicting in anticipation an unknown and uncertain future outcome is nothing but betting and gambling., The petitioner before this Honorable Court had admitted both in the affidavit and during arguments that the game of rummy is played for stakes. A simple illustration would explain the position. The players of online rummy on the petitioner's platform are forecasting, i.e., predicting in anticipation the unknown and uncertain future event of the player winning the game of rummy, and are placing stakes on that unknown and uncertain future event. Assuming a scenario where in a table of four players, each of them have staked INR 1,000. Each player stakes INR 1,000 with a hope to win INR 3,600, on the event that the player wins, which event is a future unknown and uncertain event for each player on the table. The stakes are placed before even reaching the table. In fact, unless the stakes are placed, a player cannot reach the table. Therefore, each player of rummy on the petitioner's platform forecasts, i.e., predicts in anticipation the unknown and uncertain future event of the player winning the game of rummy, and places stakes on it. This is nothing but betting and gambling according to the Constitution Bench of the Supreme Court of India in RMDC‑1 case supra. It was submitted that when it comes to placing stakes on forecasting, i.e., predicting in anticipation the unknown and uncertain future event, it makes no difference whether the player of the game does it or if a stranger to the game does it. To both, the player and the stranger, the outcome is equally uncertain and placing stakes on such unknown uncertainty will qualify as betting and gambling which is reiterated in Sivani case and Lakshmanan case by the Apex Court, thereby leading to the following conclusions: The act of placing stakes on forecasting the outcome, i.e., predicting in anticipation of a future event which is uncertain and unknown is nothing but betting and gambling as the same is nothing but a shot at the hidden target (RMDC‑1 paragraphs 20 and 21). If the owner of the house or the club is making a profit or gain from the game of rummy or any other game played for stakes, the offence may be brought home i.e., the club will be a common gambling house and persons therein would be betting and gambling (K. Satyanarayana - paragraph 12). Video gaming, therefore, is associated with stakes or money or money's worth on the result of a game, be it a game of pure chance or of mixed skill and chance. For a commoner or a novice, it is difficult to play video game with skill. Ordinary common people who join the game can hardly be credited with skill for success in the game. The forecast is nothing better than a shot at a hidden target (MJ Sivani paragraphs 14 and 15)., Section 49‑A of the Police Act and Section 4 of the Gaming Act do not apply to wagering or betting in the club premises and on the horse‑races conducted within the enclosure of the club. These sections are applicable to the bucket‑shops or any house, room, tent, enclosure, vehicle, etc. which are run in the streets, bazaars or any other place away from the club, purely for gambling purposes (Lakshmanan case paragraphs 35 and 37). The affidavit filed by the learned Additional Solicitor General deals elaborately with the taxation and contentions of the respondents, the salient features of which are set out hereunder: The only question that arises for consideration is whether the players of online rummy on the platform of the petitioner are betting and gambling by placing stakes on the outcome of games of rummy. If the answer to this question is in the affirmative, then according to the Supreme Court of India in Skill Lotto Solutions Pvt Ltd v. Union of India, 2020 SCC Online SC 990, such a transaction would be a supply of actionable claims in the form of betting and gambling. Consequently, the scheme of Central Goods and Services Tax Rules 31A will govern the transaction to be taxed at 28% on 100% of the bet value., Games can be categorized into three categories: a game of pure skill (example: chess and cricket); a game of pure chance (example: three cards and mankatha where there is no requirement for any skill); a game of mixed skill and chance (example: rummy). In a game of mixed skill and chance, the test of predominance is applied to categorize the game. If in a game of mixed skill and chance, the element of chance predominates over the element of skill, the game would be categorized as a game of chance. If in a game of mixed chance and skill, the element of skill predominates over the element of chance, the game would be categorized as a game of skill. Therefore, this factual exercise has to be carried out on a case‑to‑case basis. Rummy undoubtedly falls under the category of mixed chance and skill as the Supreme Court of India in Satyanarayana case has held rummy to be mainly and preponderantly a game of skill. The act of gambling requires three elements, viz., (a) staking of an amount, (b) an element of uncertainty i.e., chance and (c) a reward which is usually higher than the amount staked. In short, gambling is staking of money for a chance to win more money. It was submitted that the answer to this question must lie in the negative. Be it a game of skill or a game of chance, both the games have one aspect in common and that is the uncertain outcome of the game. No player of the game knows with certainty the outcome of the game and it always remains an uncertain event until the game concludes. Therefore, placing stakes on an outcome of a game, irrespective of the game being of skill or chance, amounts to betting and gambling. This contention can be explained by way of certain illustrations. Assuming for a moment that two players A and B are placing a stake of INR 10 each on the outcome of a game of mankatha. The outcome of the game is determined by a particular card number falling on the inside (Ulle) or on the outside (Veliye). There is no skill involved and the outcome is purely chance based. The winner of the game is rewarded INR 20 which is the total amount staked on the outcome of the game and this act squarely fits the definition of gambling as an amount of INR 10 was placed on an uncertain outcome of the game with a hope to gain INR 20. Assuming for a moment that spectators C and D place INR 10 each on the outcome of the game of mankatha played by A and B, the same would also amount to betting and gambling, as the outcome is equally uncertain for C and D also. The petitioner is not disputing this example, as according to the petitioner, placing stakes on a game of chance would amount to gambling. When the petitioner does not dispute this example, the petitioner has virtually conceded the case as the scenario does not change when the underlying game is a game of skill as the outcome still remains uncertain and placing stakes on such an uncertain event would still amount to betting and gambling., The example placed before this Honorable Court during oral arguments is reiterated herein. Dhoni can play the game of cricket, a pure game of skill and the act of playing the game of cricket per se is not illegal and is in fact protected under Article 19(1)(g). The outcome of the game depends purely on the skill sets of Dhoni. According to the petitioner, in such a scenario, if Dhoni stakes on the outcome of the game, it would not amount to gambling. Now assuming for a moment that Dhoni places stakes of INR 100 on the outcome of the game of cricket, the outcome still remains uncertain and Dhoni with precision cannot predict the outcome as it is impossible. Therefore, placing stakes even on the outcome of a game of skill would continue to be gambling as stakes are placed on an uncertain event with a hope to gain more money. The petitioner contends that in a game of skill, only side betting is gambling and if the player of the game of skill places stakes, it would not amount to gambling. This submission is fallacious and deserves to be rejected for the sole reason that whether it is the player of a game of cricket who is betting or a spectator of a game of cricket who is betting, the outcome remains equally uncertain for both and placing stakes on such an uncertain event would amount to betting and gambling., On the petitioner's platform, the first choice a player has to make is the amount of stakes that is willing to be put in the game (buy‑in amount). Once the amount to be staked is determined by the player, the platform takes the player to the gaming table, where all the players have staked a similar amount, after deducting the amount from the in‑app wallet of the player. For example, if a player has determined INR 10,000 to be staked in a game of rummy, then the platform takes the player to a table where all players have staked INR 10,000 after deducting INR 10,000 from the wallet of the player. Assuming there are four players in a table playing the game of rummy on the petitioner's platform and each of them have staked INR 10,000, then the total amount staked on that particular table is INR 40,000. The petitioner makes an average 10% profit at each game of rummy played on their platform and therefore, in this particular table, the profit of the petitioner would be 10% of INR 40,000 i.e., INR 4,000. The players on the petitioner's platform are forecasting the unknown future event of the player winning the game of rummy and are placing stakes on such acts of forecasting. No player on the petitioner's platform knows the outcome of the game and placing stakes on such an uncertain event qualifies as betting and gambling. Players on the petitioner's platform carry out two transactions. The first transaction a player indulges in is to play the game of rummy, a game of predominant skill. This per se is not illegal and enjoys constitutional protection under Article 19(1)(g). The second transaction a player indulges in is to place stakes on the outcome of games of rummy played on the petitioner's platform which is an uncertain unknown event. The second transaction unequivocally qualifies as an act of betting and gambling. During oral arguments, it was contended by the petitioner that the respondents are bifurcating a single transaction and the same must not be permitted. According to the petitioner, the act of playing the game of skill and placing stakes on it is a single transaction. This argument deserves to be rejected for the sole reason that the game of rummy can be played independent of the stakes and without placing stakes on the outcome. When the element of staking on the outcome of the games of rummy is introduced, it is nothing but an independent transaction which is in the nature of betting and gambling on the outcome of a game which is an uncertain event., It was also contended alternatively that the judgment of this Court in All India Gaming Federation in addition to not laying down any ratio to support the claim of the petitioners was also sub‑silentio and per‑incuriam and no reliance can be placed upon the said judgment by the petitioners. It was therefore contended that there was no merit in the petition and that the same are liable to be dismissed. I have given my anxious consideration to the rival submissions and perused the material on record., Alternate Remedy (1) In the case of M/s Radha Krishan Industries vs State of Himachal Pradesh and others (2021) SCC Online SC 334, the Supreme Court of India held as under: The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well; The High Court has the discretion not to entertain a writ petition.
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One of the restrictions placed on the power of the High Court is that an effective alternate remedy must be available to the aggrieved person. Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case, though ordinarily a writ petition should not be entertained when an efficacious alternate remedy is provided by law. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and in cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with., Insofar as the scope of interference to a show‑cause notice by a writ Court exercising its power under Article 226 of the Constitution of India is concerned, the courts have carved out the following exceptions in abstinence for exercise of discretionary powers: notice is without jurisdiction; notice is in abuse of process of law; notice issued after inordinate delay; notice is illusory in nature; notice issued with premeditation or prejudgment; vires of an enactment is challenged; violation of principles of natural justice; notice is barred by limitation; authority is incompetent to issue notice as per statutes governing it; allegation that notice is malafide; infringement of fundamental rights., In the instant case, the material on record makes it clear that the specific contention of the petitioners is that the respondents did not have jurisdiction or authority of law to issue the impugned Show Cause Notice in the light of the law laid down by the Supreme Court of India, this Court and other High Courts. It has been held that games involving skill and games of betting or gambling are significantly different and that the former category of cases cannot be brought to tax similar to the latter category. Any attempt to unsettle a settled position would clearly mean that the tax authority has no jurisdiction. In view of the specific contention of the petitioners that the impugned Show Cause Notice was without jurisdiction or authority of law, I am of the considered opinion that the present petition is maintainable and this contention urged by the respondents cannot be accepted., Concept of res extra commercium: Res extra commercium is a Roman law doctrine that translates to \things outside commerce\. In RMDC‑1's case, the Supreme Court of India introduced this doctrine to India in order to constrict the scope of freedom of trade and commerce, a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. The doctrine excludes certain immoral or noxious trade activities from the scope of Article 19(1)(g) and thereby deprives them of constitutional protection. It was held that the doctrine of res extra commercium can be applied having regard to the obnoxious nature of trade. Gambling activities are, by their very nature, extra‑commercium and are hence not entitled to protection under Article 19(1)(g). In State of Punjab v. Devans Modern Breweries Ltd. (2004) 13 ILD 481 (Supreme Court of India), res extra commercium was defined as things beyond commerce, i.e., which cannot be bought or sold, such as public roads, rivers, titles of owners etc. Similarly, in Khoday Distilleries Ltd. v. State of Karnataka (1995) 1 SCC 574, the Court held that what articles and goods should be allowed to be produced, possessed, sold and consumed is to be left to the judgment of legislative and executive wisdom. There cannot be a business in crime. Res extra commercium would be trade or business in liquor when it is completely prohibited. The State can create a monopoly to do the business itself or through an agency in terms of Article 19(6) or otherwise. Restrictions and limitations on the trade or business in potable liquor can be both under Article 19(6) or otherwise. When the State permits trade or business in potable liquor with or without limitation, the citizen has the right to carry on trade or business subject to the limitations, if any, and the State cannot discriminate between citizens who are qualified to carry on the trade or business. The right to practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, and is condemned by all civilised societies. It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e., res extra commercium. Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is therefore an article which is res extra commercium being inherently harmful. A citizen has, therefore, no fundamental right to do trade or business in liquor. Hence the trade or business in liquor can be completely prohibited. Article 47 of the Constitution considers intoxicating drinks and drugs as injurious to health and impeding the raising of the level of nutrition and the standard of living of the people and improvement of public health. It therefore ordains the State to bring about prohibition of the consumption of intoxicating drinks, which obviously include liquor, except for medicinal purposes. Article 47 is one of the directive principles which is fundamental in the governance of the country. The State therefore has the power to completely prohibit the manufacture, sale, possession, distribution and consumption of potable liquor as a beverage, both because it is inherently a dangerous article of consumption and because of the directive principle contained in Article 47, except when it is used and consumed for medicinal purposes., In B.R. Enterprises v. State of Uttar Pradesh (1999) 9 SCC 700, the Supreme Court of India held that lottery is a gambling activity. State government prohibiting the sale of lottery tickets of other states within its territory is valid only if that state is declared to be a lottery‑free zone. There are three ingredients in the sale of lottery tickets, namely price, chance and consideration. When one purchases a lottery ticket, he purchases a prize which is by chance and the consideration is the price of the ticket. The holder of such ticket knows that the consideration he has paid may be for receiving nothing. Trade, under Article 19(1)(g) or Article 301, is an exchange of any article either by barter or for money or for service rendered. It is an exchange between two parties, one who tenders the consideration and the other who returns goods, money, service or such other thing for that consideration. The party paying consideration in any trade is aware of what he is paying for and receives an ascertained thing or service. There is no element of chance under any \trade\. This element of chance makes the lottery a gambling activity. On the other hand, an absence of chance inherently attached to any contract coupled with some skill makes it a \trade\. Trade is always associated with some skill while in lottery there is an absence of skill and a predominant element of chance. Gambling is not trade and is thus not constitutionally protected. Merely because a transaction is sanctioned in law or is legalized, it does not by itself make it a commercium. In other words, merely because lottery is run by the State, it will not change its character from being res extra commercium. Entry 62 of List II of the Seventh Schedule refers to taxes on betting and gambling which inherently permits gambling. Thus it could be said that gambling is recognised and authorised by law, perhaps through regulations, licences, etc. Therefore, imposition of tax on gambling must be legal. The stringent measures and conditions imposed under State lotteries are only to inculcate faith in participants that the lottery is conducted fairly with no possibility of fraud, misappropriation or deceit and to assure hopeful recipients of high prizes that all is fair and safe., In Union of India v. Martin Lottery Agencies Ltd. (2008) 12 SCC 209, the doctrine of res extra commercium was invoked in the United States of America where, keeping in view the nature of right conferred on its citizens and the concept of imposition of reasonable restrictions thereon being absent, it was held that gambling should be frowned upon as being opposed to constitutional jurisprudence. While borrowing the said principle in the Indian context, it must be borne in mind that the Constitution of India envisages reasonable restrictions in respect of almost all fundamental rights of the citizens. No citizen has an absolute fundamental right. Whereas the same principle may apply in Australia, it may not apply to the European countries where gambling and even sale of narcotic drugs subject to licensing provisions, if any, is permissible. The concept of res extra commercium may in future be required to be considered afresh having regard to its origin in Roman law as well as the concept thereof. Conceptually, business may be carried out in respect of a property which is capable of being owned as contrasted to those which cannot be. Having regard to the changing concept of the right of property, which includes all types of properties capable of being owned including intellectual property, it is possible to hold that the restrictions which can be imposed in carrying on business in relation thereto must only be reasonable within the meaning of clause (6) of Article 19 of the Constitution of India. Right of property, although no longer a fundamental right, is indisputably a human right (see Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel [2008] 4 SCC 649 and Karnataka State Financial Corporation v. N. Narasimhaiah [2008] 5 SCC 176)., It is therefore clear that there is sufficient jurisprudence to show that lottery, betting and gambling will be seen as noxious and per se classified as res extra commercium, i.e., beyond commerce. The concept of Goods and Services Tax (GST) and the definition of business under GST: The entire scheme of indirect taxes underwent transformation upon introduction of GST with effect from 1 July 2017. This tax is levied with concurrent jurisdiction of the Centre and the States on the supply of goods or services. For this purpose, the Constitution of India was amended by the Constitution (101st Amendment) Act, 2016 with effect from 16 September 2016. In the context of levy of GST, it is relevant to note that the erstwhile system of indirect tax, which was prevalent for decades in India, levied tax on the activities of manufacture (excise duty), sale of goods (VAT) and provision of service (service tax). Under the GST regime introduced on 1 July 2017, the levy of GST is on supply of goods or services., Under the Central Goods and Services Tax (CGST) Act, 2017, Section 9 deals with the levy and collection of CGST. In terms of this provision, Central GST will be levied on all intra‑State supplies of goods or services or both at the rates prescribed by the Government. State GST laws are a replica of the CGST provisions (save for some provisions relating to savings, etc.) and the discussion on provisions of the CGST Act, 2017 would equally be applicable to the State GST provisions. Similarly, Section 5 of the Integrated Goods and Services Tax (IGST) Act, 2017 deals with the levy and collection of taxes where the supply is in the course of inter‑State supply of goods or services or both. The provision also provides that integrated tax on goods imported into India will be levied and collected in accordance with the provisions of Section 3 of the Customs Tariff Act, 1975 on the value as determined thereunder at the point when duties of customs are levied on the said goods under Section 12 of the Customs Act, 1962., The provisions relating to levy can be summarised as follows: levy is on supply of goods and/or services or both, other than on the supply of alcoholic liquor for human consumption; rate to be notified but shall not exceed 20 % each of CGST and SGST; value determined in terms of Section 15 of the Act; on intra‑State supply of goods and/or services Integrated Tax applies; on inter‑State supply of goods and/or services the maximum rate is 40 %. The place of supply is determined pursuant to Sections 7 to 10 of the IGST Act., Meaning of the phrases goods and services: Goods are defined in Section 2(52) of the CGST Act, 2017 as every kind of movable property but excludes money and securities, actionable claims, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply. Services are defined in Section 2(102) of the CGST Act, 2017 to mean anything other than goods, money or securities, but includes activities relating to the use of money or conversion of money by cash or any other mode, from one form, currency or denomination to another where a separate consideration is charged for the above., Concept of supply under the erstwhile regime: various indirect taxes were levied on varied activities such as manufacture, sale or import of goods and rendering of services. Consequent to the introduction of the GST regime with effect from 1 July 2017, GST is levied solely on the concept of supply of goods and services or both. Import of goods continues to be governed by the Customs Act, 1962. In terms of Article 366(12A) of the Constitution as amended by the Constitution (101st Amendment) Act, 2016, Goods and Services Tax means tax on supply of goods, services or both except taxes on the supply of alcoholic liquor for human consumption. Accordingly, it is fundamental to examine and understand the meaning of the term \supply\ in the context of GST law. Section 7 of the CGST Act, 2017 defines the scope of supply: (a) all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business; (aa) activities or transactions by a person other than an individual to its members or constituents or vice‑versa for cash, deferred payment or other valuable consideration, with an explanation that the person and its members or constituents are deemed to be separate persons; (b) import of services for a consideration whether or not in the course or furtherance of business; and (c) activities specified in Schedule I made or agreed to be made without consideration. Sub‑section (1A) provides that where certain activities or transactions constitute a supply, they shall be treated either as supply of goods or supply of services as referred to in Schedule II. Sub‑section (2) states that activities specified in Schedule III or those undertaken by the Central Government, a State Government or any local authority as public authorities shall be treated neither as a supply of goods nor as a supply of services., Analysis of Section 7: Sub‑section (1) defines supply inclusively to include three sub‑groups: (a) all forms of supply of goods and/or services such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for consideration by a person in the course or furtherance of business; (aa) activities or transactions by a person other than an individual to its members or constituents or vice‑versa for cash, deferred payment or other valuable consideration, with the clarification that the person and its members or constituents are deemed separate persons; (b) importation of services for consideration whether or not in the course or furtherance of business; (c) activities specified in Schedule I made or agreed to be made without consideration. Section 7 was amended by the CGST (Amendment) Act, 2018 with retrospective effect from 1 July 2017, omitting clause (d) and inserting sub‑section (1A). The amendment clarifies that entries in Schedule II are for classification purposes only and do not by themselves constitute supply. Sub‑section (1A) makes it clear that where certain activities or transactions constitute a supply, they shall be treated either as supply of goods or supply of services as referred to in Schedule II. The provisions of Section 7(1)(c) deem activities listed in Schedule I as supplies even when there is no consideration, provided they are made or agreed to be made during the course or furtherance of business., Definition of business under the GST legislation (Section 2(17) of the CGST Act, 2017): business includes (a) any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity, whether or not it is for a pecuniary benefit; (b) any activity or transaction in connection with or incidental or ancillary to sub‑clause (a); (c) any activity or transaction in the nature of sub‑clause (a), whether or not there is volume, frequency, continuity or regularity of such transaction; (d) supply or acquisition of goods including capital goods and services in connection with commencement or closure of business; (e) provision by a club, association, society or any such body (for a subscription or any other consideration) of facilities or benefits to its members; (f) admission, for a consideration, of persons to any premises; (g) services supplied by a person as the holder of an office which has been accepted by him in the course or furtherance of his trade, profession or vocation; (h) activities of a race club including by way of totalisator or a licence to book maker or activities of a licensed book maker in such club; and (i) any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities. The definition of wager is not found in the GST legislation., Meaning of wager or any other similar activity: Section 30 of the Indian Contract Act, 1872 provides that agreements by way of wager are void and no suit shall be brought for recovering anything alleged to be owed on any wager or entrusted to any person to abide the result of any game or other uncertain event on which wager is made. The provision does not deem unlawful a subscription, contribution or agreement to subscribe or contribute for any plate, prize or sum of money of the value of five hundred rupees or upwards to be awarded to the winner(s) of any horse race. Nothing in this section legalises any transaction connected with horse‑racing to which the provisions of Section 294A of the Penal Code apply. Advanced Law Lexicon by P. Ramanatha Aiyar defines a wagering contract as one by which two persons, professing opposite views touching the issue of a future uncertain event, mutually agree that, dependent on the determination of that event, one shall win from the other, and the other shall pay or hand over a sum of money or other stake; neither party has any other interest in that contract than the sum or stake he will win or lose. If either party may win but cannot lose, or may lose but cannot win, it is not a wagering contract (see Carlill v. Carbolic Smoke Ball Co. [1892] 2 QB 484). An agreement for payment of prize money on a lottery ticket comes within the ambit of the expression wagering contract as contemplated under Section 30 of the Act.
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The word wagering is practically synonymous with the words betting and gambling and the terms are so used in common parlance and in statutory and constitutional enactments (Mc Donald v Bryant, 238 Ark. 338, 381 S.W.2d 736). The Rule of Ejusdem Generis shall apply. As per this doctrine, when particular words pertaining to a class, category or genus are followed by general words, the words are construed as limited to things of the same kind as those specified. Therefore, applying the above principle, the phrase any other similar activity would include those activities that are akin to wager., Black's Law Dictionary meanings for the terms betting and gambling may be extracted as follows: Bet – something (especially money) staked or pledged as a wager; Wager – money or other consideration risked on an uncertain event; a bet or gamble; a promise to pay money or other consideration on the occurrence of an uncertain event. Gambling – the act of risking something of value, especially money, for a chance to win a prize; an agreement between two or more persons to play together at a game of chance for a stake or wager which is to become the property of the winner, and to which all contribute., According to Venkataramaiya's Law Lexicon, betting is a contract by which two or more parties agree that a sum of money, or other thing, shall be paid or delivered to one of them on the happening or not happening of an uncertain event. Gambling is to play a game for money or other stake; hence to stake money or other thing of value on an uncertain event. It involves not only chance, but a hope of gaining something beyond the amount played., The Advanced Law Lexicon differentiates the acts of betting and gambling as follows: Betting means to pledge as a forfeit to another who makes a similar pledge in return, on a future contingency, in support of an affirmation or opinion. Gambling, according to the common use and understanding of that word, is a generic term that includes every act, game, and contrivance by which one intentionally exposes money or other thing of value to the risk or hazard of loss by chance., The definition of business under the Goods and Services Tax (GST) includes betting, gambling, lottery; the principle of res extra commercium applies to betting, gambling, wagering for the purpose of other laws. However, with respect to GST law, the definition of business is much wider to include wager or any other similar activity. Therefore, for the purpose of GST, business also includes betting, gambling, lottery, etc. Given the wide scope of the definition of business under the Central Goods and Services Tax Act, 2017, for the limited purpose of GST, a view is possible that protection under Article 19(1)(g) of the Constitution of India is available to wagering, betting, gambling, lottery, etc. But that in itself would not mean that lottery, betting and gambling are the same as other games of skill, a distinction that can still be made to justify lower tax rates for the latter, if any, and that is precisely what would be decided in this petition., Actionable claim under Schedule III of the Central Goods and Services Tax Act: Schedule III, referred to in Section 7(2) of the Act, reads as follows: Activities or transactions which shall be treated neither as a supply of goods nor a supply of services – 6. Actionable claims, other than lottery, betting and gambling. As per Entry No. 6 of Schedule III, actionable claims except lottery, betting and gambling are neither considered as goods nor services., Section 2(1) of the Central Goods and Services Tax Act, 2017 defines an actionable claim with the same meaning as assigned to it in Section 3 of the Transfer of Property Act, 1882. Section 3 of the Transfer of Property Act, 1882 defines an actionable claim as a claim to any debt, other than a debt secured by mortgage of immovable property or by the hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the civil courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent., Section 2(52) of the Central Goods and Services Tax Act, 2017 defines goods as every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply. Section 65B(15) of the Finance Act, 1994, during the service tax regime, defined betting and gambling as follows: \betting or gambling\ means putting on stake something of value, particularly money, with consciousness of risk and hope of gain on the outcome of a game or a contest, whose result may be determined by chance or accident, or on the likelihood of anything occurring or not occurring., In Skill Lotto Solutions Private Limited versus Union of India, 2020 (43) Goods and Services Tax Law 289 (Supreme Court of India), the Supreme Court of India held that inclusion of actionable claim in the definition of goods is not unconstitutional. Parliament is empowered to make laws with respect to Goods and Services Tax vide Article 246A of the Constitution. It was reasonable to take out only three actionable claims – lottery, gambling and betting – from Schedule III and there was no hostile discrimination by taxing them. They were not recognised as trade, business or commerce, and have been regulated and taxed over several decades. Therefore, it is clear that lottery, betting and gambling can be treated differently from other actionable claims and subjected to tax. The issue that arises is whether a game of skill, either wholly or predominantly, can be classified as lottery, betting or gambling if these elements are involved in such a game of skill., Law expositing game of skill versus game of chance: It must be noted that the highest Courts of India have differentiated game of skill and game of chance, particularly in the context of whether protection under Article 19(1)(g) can be taken. The decisions have clearly held that such protection is not available for lottery, betting and gambling which does not amount to a business. However, the definition of business would include wagering and other similar activities and lottery, betting and gambling, which are actionable claims, are defined as goods under the legislation. Since Schedule III expressly excludes lottery, betting and gambling from the generic term of actionable claims to ensure that they could be taxed, the interpretation of games of skill is fundamental to understand whether they fit into the realm of actionable claim or into the sub‑section of actionable claim that is lottery, betting and gambling, so that they could be subject to tax in the latter category. If they are in the former category, they would not be exigible to tax by virtue of Schedule III., The scope of betting and gambling was considered by the Supreme Court of India in RMDC‑2, where the Court followed its decision in RMDC‑1 and recognised the distinction between gambling activities and games of substantial skill, excluding games of skill (where success depends on skill to a substantial degree) from the scope of gambling and consequently from the entry on betting and gambling., A recent judgment of the Supreme Court of India, Career Institute Educational Society versus Om Shree Thakurji Educational Society, Supreme Court of India Special Leave Petition (Civil) Numbers 7455‑7456/2023 dated 24 April 2023, held that the judgment in Vidya Drolia & Ors. versus Durga Trading Corporation did not examine the effect of an unstamped or under‑stamped underlying contract on the arbitration agreement. Since that issue has not been decided in Vidya Drolia, the division is not precedent on this question. Vidya Drolia referred to the judgment in Garware Wall Ropes Limited versus Coastal Marine Constructions and Engineering Limited, but in a different context., Paragraph 146 of Vidya Drolia examines whether the word \existence\ in Section 11 of the Arbitration and Conciliation Act, 1996 merely refers to contract formation and excludes the question of enforcement. On a jurisprudential and textualist approach, it is possible to differentiate between existence of an arbitration agreement and validity of an arbitration agreement. It is equally possible, on a contextualist approach, to hold that an agreement has no existence if it is not enforceable and not binding. Existence of an arbitration agreement presupposes a valid agreement which would be enforced by the court by relegating the parties to arbitration. A void and unenforceable understanding is no agreement to do anything., Paragraph 147 of Vidya Drolia reproduces paragraph 29 of Garware Wall Ropes Limited versus Coastal Marine Constructions & Engineering Limited, (2019) 9 Supreme Court of India 209, where the Court examined the question of stamp duty in an underlying contract with an arbitration clause. The Court held that an arbitration clause that would be activated only if an insurer admits or accepts liability does not exist in law when the insurer repudiates the claim. Similarly, in the present case, the arbitration clause contained in the subcontract would not exist as a matter of law until the subcontract is duly stamped. The Court explained that existence and validity are intertwined, and an arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements., The distinction between obiter dicta and ratio decidendi in a judgment has been examined by several decisions of the Supreme Court of India, notably State of Gujarat & Ors. versus Utility Users Welfare Association & Ors. and Jayant Verma & Ors. versus Union of India & Ors. The Gujarat case applies the inversion test to identify ratio decidendi: if a proposition is removed from the judgment and the conclusion would still be the same, it is not ratio decidendi. In Jayant Verma, the Court held that the binding element of a precedent is the principle of law applied to the legal problem, not the factual findings or incidental observations., The State of Bombay appealed a judgment of the Bombay High Court dated 12 January 1955, which had confirmed a judgment and order of 22 April 1954 passed by a Single Judge of the Bombay High Court allowing the petitioners to continue their prize competition under Article 226 of the Constitution of India. The petitioners were: (1) an individual citizen of India who was the founder and Managing Director of (2) a company incorporated in the State of Mysore with its registered head office at 2 Residency Road, Bangalore. The company had obtained a licence under the Mysore Lotteries and Prize Competition Control and Tax Act, 1951 and paid a tax of 15 % (later reduced to 12 %) of gross receipts on the R.M.D.C. Crosswords prize competition conducted through the weekly newspaper The Sporting Star. After payment of prizes (about 33 % of receipts), taxes in Mysore (about 15 %) and other expenses (about 47 %), the net profit was approximately 5 %., The Bombay Lotteries and Prize Competition Control and Tax Act (Bombay Act 54 of 1948) came into force on 1 December 1948. The 1939 Act and the 1948 Act, as originally enacted, did not apply to prize competitions contained in a newspaper printed and published outside the Province of Bombay, so the R.M.D.C. Crosswords was not affected by either Act. On 20 November 1952, the Bombay Lotteries and Prize Competitions Control and Tax (Amendment) Act (Bombay Act 30 of 1952) amended the 1948 Act, deleting the exclusion for prize competitions printed outside Bombay and inserting a new definition of \Promoter\. It also introduced Section 12‑A, providing for a levy on every prize competition contained in a newspaper or publication printed outside Bombay for which a licence was obtained, at rates not exceeding those specified in Section 12 or a lump‑sum based on circulation., The main contentions of the respondents before the trial Judge were: (a) the impugned Act and its taxing provisions were beyond the competence of the State Legislature and invalid because they were not legislation with respect to betting and gambling under Entry 34, entertainments and amusements under Entry 33, or taxation on entertainments, amusements, betting and gambling under Entry 62 of the State List; instead they dealt with trade and commerce under Entry 60; (b) the prize competition was not a lottery and could not be regarded as gambling because it required skill, knowledge and judgment; (c) the Act itself recognised that prize competitions were distinct from lotteries; (d) the tax was a tax on the trade or calling of conducting prize competitions and offended Article 142‑A(2) of the Government of India Act, 1935 and Article 276(2) of the Constitution, which limit such taxes; (e) the Act was beyond the legislative competence of the Bombay Legislature as it dealt with trade and commerce outside the State; (f) the Act operated extra‑territorially; (g) the Act offended Article 301 of the Constitution and was not saved by Article 304(b); (h) the restrictions were unreasonable and violated the petitioners' fundamental right under Article 19(1)(g); (i) Sections 10, 12 and 12‑A offended Article 14 by discriminating between prize competitions printed inside and outside the State., The State of Bombay, as appellant, maintained that: (a) the prize competitions were a lottery; (b) the provisions of the impugned Act were valid and competent under Entries 33, 34 and 62 of the State List; (c) the Act was not extra‑territorial; (d) the prize competitions were opposed to public policy and therefore could not constitute a trade or business; (e) the petitioners were not carrying on a trade or business, so no violation of Article 19(1)(g) or Article 301 arose; (f) the second petitioner, being a corporation, was not a citizen and could not claim protection under Article 19(1)(g); (g) the restrictions on the alleged trade or business were reasonable restrictions in the public interest within the meaning of Article 19(6) and Article 304(b)., The trial Judge held: (a) the tax levied under Sections 12 and 12‑A was not a tax on entertainment, amusement, betting or gambling but a tax on the trade or calling of the respondents and fell under Entry 60, not Entry 62, of the State List; (b) the prize competition was not a lottery and could not be said to be betting or gambling because it required skill, knowledge and judgment; (c) the levy of the tax under the said sections was void for offending Article 276(2) of the Constitution; (d) the restrictions imposed by the impugned Act and its Rules offended Article 301 and were not saved by Article 304(b) because they were neither reasonable nor in the public interest; (e) the second petitioner, although a company, was a citizen of India and entitled to the protection of Article 19 of the Constitution; (f) the restrictions were neither reasonable nor in the interests of the general public and were void for offending Article 19(1)(g). Consequently, the rule nisi was made absolute and the State of Bombay, its servants and agents were ordered to forbear from enforcing any provision of the impugned Act or its 1952 Rules against the petitioners, to allow the petitioners to carry on their prize competition, and to pay the petitioners' costs., Being aggrieved by the trial Judge's decision, the State of Bombay appealed on 8 June 1954. The Court of Appeal dismissed the appeal and confirmed the trial Judge's order, though on somewhat different grounds. It held that the Legislature had competence to enact the legislation under Entry 34 of the State List (gambling). It agreed that the tax under Section 12‑A was not a tax on gambling but fell under Entry 60. While recognising legislative competence to impose the tax, the Court held the tax invalid because it did not comply with the restriction in Article 276(2) of the Constitution and could not be justified under Article 304(b). The Court differed from the trial Judge on the factual finding that the prize competitions were not a lottery, concluding that the Act applied to the respondents' prize competitions. It held that the petitioners' challenge succeeded because the restrictions could not be justified under Article 304(b). The High Court agreed that the petitioners' prize competitions were their business entitled to constitutional protection, and although the activity was a lottery, it was not against public interest, so Part XIII of the Constitution applied., The principal question before us relates to the validity of the impugned Act. The Court of Appeal correctly observed that when the validity of an Act is challenged, the first step is to examine whether the Act is a law on a topic assigned to the particular Legislature that enacted it. If it is, the next step is to consider whether, in the case of an Act passed by a Provincial (now State) Legislature, its operation extends beyond the boundaries of the Province or State, because a Legislature can make a law only for its territory or any part thereof and cannot, in the absence of a territorial nexus, have extra‑territorial operation. If the impugned law satisfies both tests, the court must then ascertain whether any other provision of the Constitution places a fetter on the Legislature's powers. The impugned law must pass all three tests., The petitioners contend that the object of the impugned Act is to control and tax lotteries and prize competitions, not to prohibit them. They argue that the Act deals alike with prize competitions that may involve gambling and those that require knowledge and skill, relying on the definition of prize competition in Section 2(1)(d) of the Act. We are pressed to hold that the impugned Act, in its entirety or at least insofar as it covers legitimate and innocent prize competitions, is a law with respect to trade and commerce under Entry 26, not with respect to betting and gambling under Entry 34. They also maintain that the taxing provisions, Sections 12 and 12‑A, are taxes on the trade of running prize competitions under Entry 60, not taxes on betting and gambling under Entry 62. We are unable to accept these contentions for reasons stated below., As already mentioned, the impugned Act replaced the 1939 Act, which dealt only with prize competitions.
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Section 2(2) of the 1939 Act defined prize competition as follows: Prize Competition includes (a) crossword prize competition, missing words competition, picture prize competition, number prize competition, or any other competition for which the solution is prepared beforehand by the promoters of the competition or for which the solution is determined by lot; (b) any competition in which prizes are offered for forecasts of the results either of a future event or of a past event the result of which is not yet ascertained or not yet generally known; and (c) any other competition in which success does not depend to a substantial degree upon the exercise of skill, but does not include a prize competition contained in a newspaper or periodical printed and published outside the Province of Bombay. Section 2(1)(d) of the 1948 Act, as originally enacted, substantially reproduced this definition: Prize Competition includes (i) crossword prize competition, missing words prize competition, picture prize competition, number prize competition, or any other competition for which the solution is prepared beforehand by the promoters of the competition or for which the solution is determined by lot; (ii) any competition in which prizes are offered for forecasts of the results either of a future event or of a past event the result of which is not yet ascertained or not yet generally known; and (iii) any other competition in which success does not depend to a substantial degree upon the exercise of skill, but does not include a prize competition contained in a newspaper printed and published outside the Province of Bombay., The collocation of words in the first category of the definitions in both the 1939 Act and the 1948 Act makes it clear that the qualifying clause—‘for which the solution is prepared beforehand by the promoters of the competition or for which the solution is determined by lot’—applies equally to each of the five kinds of prize competitions listed in that category. Both parts of the qualifying clause are separated by the disjunctive word ‘or’. Each of the five kinds of prize competitions therefore has a gambling nature. A prize competition for which a solution was prepared beforehand is clearly a gambling prize competition, as Lord Hewart, Chief Justice, observed in Coles v. Odhams Press, Ltd. (Law Reports 1936 1 KB 416), where competitors are invited to pay a certain number of pence to have the opportunity of taking blind shots at a hidden target. Prize competitions to which the second part of the qualifying clause applies—where the solution is determined by lot—are necessarily gambling adventures., The language used in the definition sections of the 1939 Act and the 1948 Act leaves no doubt that each of the five kinds of prize competitions in the first category, to which the qualifying clause applies, is of a gambling nature. The third category, which comprises any other competition in which success does not depend to a substantial degree upon the exercise of skill, also constitutes a gambling competition. Earlier it was thought that to be branded as gambling a competition must depend entirely on chance; if any scintilla of skill was required, the competition could not be regarded as gambling. The Court of Appeal, in the judgment under appeal, has shown that opinions have changed, and it is now accepted that a competition must depend to a substantial degree upon the exercise of skill to avoid the stigma of gambling. Therefore, a competition in which success does not depend to a substantial degree upon the exercise of skill is now recognised as being of a gambling nature., From the above discussion it follows that, according to the definition of prize competition given in the 1939 Act and the 1948 Act as originally enacted, the five kinds of prize competition comprised in the first category and the competition in the third category were all of a gambling nature. Between those two categories, the second category—competitions in which prizes are offered for forecasts of the results either of a future event or of a past event the result of which is not yet ascertained or not yet generally known—was inserted. This juxtaposition is important and will be discussed in greater detail., The 1948 Act was amended in 1952 by Bombay Act 30 of 1952. Section 2(1)(d) as amended reads: Prize competition includes (i)(1) crossword prize competition, (2) missing word prize competition, (3) picture prize competition, (4) number prize competition, or (5) any other prize competition, for which the solution is or is not prepared beforehand by the promoters or for which the solution is determined by lot or chance; (ii) any competition in which prizes are offered for forecasts of the results either of a future event or of a past event the result of which is not yet ascertained or not yet generally known; and (iii) any other competition in which success does not depend to a substantial degree upon the exercise of skill., The concluding sentence that excluded prize competitions contained in a newspaper printed and published outside the Province of Bombay has been deleted. This deletion removes the exclusion of such prize competitions from the scope of the definition. The definition of prize competition still comprises three categories as before. The second and third categories are couched in exactly the same language as in the earlier definitions. In the first category, the five kinds of prize competitions are now listed with separate numbers, and the qualifying clause has been amended by inserting the words ‘or is not’ after ‘is’ and before ‘prepared’, and by adding the words ‘or chance’ after ‘lot’. The qualifying clause appears after the fifth item, and a comma follows each of the five items, including the fifth. Assigning separate numbers to the five items does not affect the meaning, scope, or effect of this part of the definition; the numbering has not dissociated any of them from the qualifying clause. If the qualifying clause were intended to apply only to the fifth item, there would have been no comma after the fifth item. Therefore, the qualifying clause continues to apply to each of the five items as before the amendment., Accepting that the qualifying clause applies to each of the five kinds of prize competitions in the first category, it is argued that the amendment indicates the Legislature intended to include innocent prize competitions within the definition so as to bring all prize competitions, legitimate or otherwise, within the operation of the regulatory provisions of the Act, including the taxing sections. The amendment breaks the qualifying clause into three parts separated by ‘or’: (1) for which the solution is prepared beforehand by the promoters; (2) for which the solution is not prepared beforehand by the promoters; and (3) for which the solution is determined by lot or chance. The first and third parts, when applied to the five kinds of prize competitions, make each of them gambling adventures; however, it is contended that prize competitions to which the second part applies—where the solution is not prepared beforehand—need not be of a gambling nature and may be innocent. This argument rests on unskilful draftsmanship. In the old definitions all five kinds of prize competitions in the first category were gambling. There is no cogent reason why the Legislature, which treated lotteries and prize competitions on the same footing, should suddenly enlarge the first category to include innocent prize competitions. The 1939 Act dealt only with prize competitions and its first category comprised only gambling competitions. The 1948 Act combined lotteries and prize competitions, and its first category was purely gambling as both parts of the qualifying clause clearly indicated. Section 3 of the Act declared all lotteries and all prize competitions unlawful. There could be no reason for declaring innocent prize competitions unlawful., The regulatory provisions for licensing and taxing apply to all prize competitions. If the Legislature had intended to include innocent prize competitions in the first category, it would have made separate provisions for legitimate prize competitions imposing less rigorous regulations than those imposed on illegitimate prize competitions. Applying the same taxing sections to both legitimate and illegitimate competitions would be difficult. Tax on legitimate competitions may be a tax under Entry 60 on the trader who carries on the trade of innocent and legitimate competition. It may also be, as the Apex Court has noted, a tax on betting and gambling under Entry 62. Considering the nature, scope, and effect of the impugned Act, we have no doubt that the first category of prize competitions does not include any innocent prize competitions. This is the clear intention of the Legislature as expressed in the Act read as a whole. To give effect to this intention, we must read the word ‘or’ appearing in the qualifying clause after the word ‘promoter’ and before the word ‘for’ as part of the clause. Well‑known canons of construction of statutes permit us to do so (see Maxwell on the Interpretation of Statutes, 10th Edition, p. 238)., A similar argument was raised concerning the construction of clause (ii) of Section 2(1)(d). Between the first and third categories of prize competitions, which are gambling, the definition includes a second category of competitions in which prizes are offered for forecasts of the results either of a future event or of a past event the result of which is not yet ascertained or not yet generally known. It is argued that such forecasts may be made by the exercise of knowledge and skill derived from a close study of statistics of similar past events. Expert statisticians may form an idea of the result of an uncertain future event, but it is difficult to treat the invitation to the general public to participate in these competitions as an invitation to a game of skill. The ordinary public who join these competitions cannot be credited with the statistical skill required to attain success; for most, the forecast is nothing better than a shot at a hidden target. Apart from the unlikelihood that the Legislature, in enacting a statute tarring both lotteries and prize competitions with the same brush, would insert innocent prize competitions between two purely gambling categories, all the considerations and difficulties noted in connection with the first category will apply mutatis mutandis to the interpretation of this second clause., Reliance is placed on Section 26 of the English Betting and Lotteries Act, 1934 (24 & 25 Geo. 5 c. 58) in aid of the construction of the second category of prize competitions. Section 26 reads: (1) It shall be unlawful to conduct in or through any newspaper, or in connection with any trade or business or the sale of any article to the public (a) any competition in which prizes are offered for forecasts of the result either of a future event or of a past event the result of which is not yet ascertained or not yet generally known; (b) any other competition in which success does not depend to a substantial degree upon the exercise of skill. This section is a penal provision, not a definition, and makes certain competitions unlawful. Clause (a) corresponds to our second category but is not sandwiched between two gambling categories. In Elderton v. Totalisator Co. Ltd. (All England Reports 1945 2 AER 624), the question was whether a football pool advertised in newspapers fell within clause (a). Whether the pool required skill or was of a gambling nature was not directly relevant to whether it fell within clause (a). The penal provisions of the English Act and the decision of the Court of Appeal shed no light on the construction of our definition clause. Seeing that prize competitions have been clubbed together with lotteries and dealt with in the same Act, and that the second category is sandwiched between two gambling categories, we are of the opinion that the definition of prize competition, properly constructed in light of the other provisions of the Act, comprises only prize competitions that are of the nature of a lottery in the wider sense, that is, gambling., The Court of Appeal took the view that although, as a matter of construction, the definition could include innocent prize competitions, a literal construction would make the law invalid because it would exceed the limits of Entry 26, which comprises only trade and commerce within the State. Therefore, the definition should be read as limited to gambling prize competitions so as to make it a law with respect to betting and gambling under Entry 34. It is not necessary for us to consider whether the principle laid down by Sir Maurice Gwyer, Chief Justice, in the Hindu Women’s Right to Property Act case (1941 FCR 12) can be invoked to cut down the scope of a section by omitting one of two things when the section on a proper construction includes both, for we are unable, with great respect, to agree with the Court of Appeal that on a proper construction the definition covers both gambling and innocent competitions. In our view, the section, on a true construction, covers only gambling prize competitions and the Act is a law with respect to betting and gambling under Entry 34., The next point urged is that although the Act may come under Entry 34, the taxing provisions of Section 12‑A cannot be said to impose a tax on betting and gambling under Entry 62 but impose a tax on trade under Entry 60. Once it is held that the impugned Act is on the topic of betting and gambling under Entry 34, the tax imposed by such a statute would be a tax on betting and gambling under Entry 62. The Appeal Court expressed the view that Section 12‑A does not fall within Entry 62 because it does not impose a tax on the gambler but on the promoters who do not themselves gamble but only promote the prize competitions. For the promoters, the tax can only be regarded as a tax on the trade of prize competitions carried on by them. This is a narrow view. Entry 62 talks of taxes on betting and gambling and not of taxes on the men who bet or gamble. The tax imposed by Section 12‑A is, in terms, a percentage of the sums specified in the declaration made under Section 15 by the promoter or a lump sum having regard to the circulation and distribution of the newspaper or publication in the State., Under Section 15 the promoter of a prize competition carried on in a newspaper or publication printed and published outside the State must make a declaration in the prescribed form and period. Form J, prescribed by Rule 11(c), requires the promoter to declare, among other things, the total number of tickets or coupons received for the competitions from the State of Bombay and the total receipts from the sale of the tickets or coupons from the State of Bombay. The percentage under Section 12‑A is calculated on the total sums specified in the declaration. Thus the tax sought to be imposed is a percentage of the aggregate entry fees received from the State of Bombay. In large prize competitions it is extremely difficult for the State to obtain each individual competitor’s entry fee, and collecting the tax from the promoters after the entry fees reach them is a convenient method. The tax on gambling is a well‑recognised group of indirect taxes, as stated by Findlay Shirras in his Science of Public Finance, Volume II, p. 680. It is a kind of tax which, in the language of J.S. Mill quoted by Lord Hobhouse in Bank of Toronto v. Lambe (Law Reports 1887 12 AC 575), is demanded from the promoter in the expectation that he shall indemnify himself at the expense of the gamblers who sent entrance fees to him. The tax can be passed on to the gamblers, similar to how a seller of goods charges sales tax. Even if it is economically undesirable to pass on the tax, that does not change the general nature of the tax, which remains a tax on betting and gambling., If taxation on betting and gambling is to be regarded as a means of controlling such activities, the easiest way is to target the promoters who encourage and hold the gamblers’ money. Collecting the tax from the promoters is not a tax on the promoters but a convenient way of imposing the tax on betting and gambling and indirectly taxing the gamblers themselves. The tax is not on the profits of the promoters but on the total sum received from the State of Bombay as entrance fees without deduction of any expense. This indicates that it is not a tax on a trade. According to the general understanding, as stated by Lord Warrington of Clyffe in Rex v. Caledonian Collieries Ltd. (Law Reports 1928 AC 358), there are marked distinctions between a tax on gross collection and a tax on income, which for taxation purposes means gains and profits. Similar considerations may apply to tax on trade., There is another cogent reason for holding that the tax imposed by Section 12‑A is a tax on betting and gambling. In enacting the statute the Legislature was making a law with respect to betting and gambling under Entry 34. By the amending Act 30 of 1952 the Legislature deleted the concluding words of the definition of prize competition, thereby extending the operation of the Act to prize competitions carried on in newspapers printed and published outside the State of Bombay. They knew that under Article 276, which reproduced Section 142‑A of the Government of India Act, 1935, they could not impose a tax exceeding Rs 250 on any trade or calling under Entry 60. If the tax could be referable to Entry 60 or Entry 62, then Section 12‑A would become at least partially invalid as a tax on trade under Entry 60. Consequently, the court must, to uphold the section, follow the principle laid down by the Federal Court of India and hold that the Legislature must have been contemplating a law with respect to betting and gambling under Entry 62, for there is no constitutional limit to the quantum of tax that can be imposed by a law made under that Entry. For the reasons stated, we are satisfied that Section 12‑A is a valid piece of legislation under Entry 62., In RMDC‑1, the Apex Court held that any game or competition that relies substantially upon the exercise of skill cannot be classified as gambling; it also held that gambling or conducting the business of gambling is extracommercium and hence not included within the meaning of trade, commerce or intercourse, and consequently not protected by the fundamental right to trade, profession under Article 19(1)(g) or the freedom of trade, commerce and intercourse under Article 301., The respondents contend that in RMDC‑1 the Court held that category (ii)—any competition in which prizes are offered for forecasts of the results either of a future event or of a past event the result of which is not yet ascertained or not yet generally known—may not be dependent on chance and may include competitions where knowledge and skill are present. The Apex Court rejected this, holding that such a competition is a game of chance and therefore of a gambling nature. The Apex Court did not agree that such a competition was a game of skill and upheld the tax as falling within the ambit of Entry 62 of List II, i.e., tax on betting and gambling. The Court observed that tax on legitimate competitions (where success depends preponderantly on skill) may be a tax under Entry 60 on the trader who carries on the trade of innocent and legitimate competitions. Thus, tax on competitions where success depends preponderantly on skill is not governed by Entry 62 but by Entry 60 of List II, i.e., as a trade activity., The respondents also submitted that category (ii) competitions involve forecasting or speculating the outcome of an uncertain event, which was held to be gambling. They argued that players playing a game of skill for stakes are forecasting the outcome of the game for the prize and are therefore gambling. This contention cannot be accepted because a player involved in a game of skill does not forecast victory but plays in confidence that he will win. He is not betting or gambling on something but is confident of his skills., The game of rummy, as opposed to a category (ii) competition, is not one where the outcome of an event is being predicted. It is a game where substantial skill is exercised to control the outcome. Rummy is not a game where forecasting or predicting the answer or the winner against stakes is the activity of the player. When the outcome of a game is dependent substantially or preponderantly on skill, staking on such a game does not amount to betting or gambling., It is also relevant to state that in the definition of wagering, the persons doing so should not have any interest in the outcome, which is contrary to the concept of a game of skill, where the player is clearly interested in winning. The contention that it matters not whether the player or some third person is staking money is not appropriate, considering that the person who stakes does so based on confidence in his skills and not on luck.
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As rightly contended by the petitioners and intervenors, the contention of the respondents that in RMDC1, it was held that any game whose result is based on a forecast is a gambling activity is liable to be rejected. At paragraph 17, the tripartite categorisation of competitions by the Supreme Court of India was in the context of Clauses (i), (ii) and (iii) of the definition of prize competition as defined under Section 2(1)(d) of the 1948 Act. Such prize competitions were offered through the medium of newspapers. In the said paragraph 17, it was concluded that the competitions that fall under Category I and III were in the nature of gambling. Notably, paragraph 17 lays down a general principle which is that a competition whose success does not depend to a substantial degree upon the exercise of skill is now recognised to be of a gambling nature. In other words, competitions wherein success depends on a substantial degree of the exercise of skill are not of a gambling nature. Therefore, dehors the definition of prize competition, the said legal principle at paragraph 17 will remain constant and universal in its application., On a plain reading of paragraph 18, it becomes clear that competitions from all three categories are not games of skill. The amended definition of prize competition as amended in 1952 is extracted, which retains the tripartite categorisation. Paragraphs 18 and 19 do not lay down any general legal principles but only conclude that Category I prize competitions under Section 2(1)(d)(i) are of a gambling nature., Paragraph 20 of RMDC-1 deals with Category II which are also not games of skill. Prize competitions, i.e., competitions described under Section 2(1)(d)(ii) as any competition in which prizes are offered for forecasts of the results either of a future event or of a past event the result of which is not yet ascertained or not yet generally known. The Supreme Court of India holds that it would be difficult to treat the invitation to the general public to participate in these competitions as an invitation to a game of skill and that for most of the general public the forecast is nothing better than a shot at the hidden target. The said sentence at paragraph 20 does not lay down any general legal principle that can be applied to the game of rummy played with stakes. The sentence is a finding qua the specific competitions covered under sub‑clause (ii) / Category II competitions offered through the medium of a newspaper, which is wholly distinct from the game of rummy played with stakes between two actual players., In RMDC-1, the Supreme Court of India noticed that Category II was clubbed between clauses (i) and (iii) which cover competitions that are of a pure gambling variety offered to the general public via a newspaper. Therefore, Category II covers competitions which are akin to competitions that fall under Category I and III offered through the medium of a newspaper. Category II covers those rare category of games whose success requires the forecast of an event or a result, which cannot be made by ordinary persons (given that it may involve several imponderables). Such a forecast may possibly be made by conducting rigorous forensic or statistical study by persons who have the scientific or technical or super‑specialised knowledge to do so; it is when such games are offered to the general public that the forecast becomes a shot at the hidden target., The argument of the respondents that placing of bets on games of skill amounts to forecasting of results on a future event, and consequently amounts to gambling, by placing reliance on RMDC-1 is entirely misplaced. The Supreme Court of India in RMDC-1 has held that sub‑clause (b) of the definition of prize competitions in Section 2(1)(d) of the Bombay Lotteries and Prize Competition Control and Tax Act, 1948, should be read to apply only to games that are gambling in nature and cannot take within its sweep innocent prize competitions. Thus, forecasting for the purposes of sub‑clause (b) of Section 2(1)(d) can only mean forecasting by a third party on an event, the outcome of which is not dependent on the skill of the player involved, such as the result of the rolling of a dice. This is an exclusion of games of skill and cannot be read to mean that all manner of forecasting is gambling., That there is an element of chance in each game and a game of skill may not necessarily be such an activity where skill must always prevail; however, it is well settled in law that an activity where the exercise of skill can control the chance element involved such that the better skill would prevail more often than not, qualifies as a game of skill. The game of rummy played with stakes is played between players on the basis of the assessment of their own skill. Therefore, while playing for stakes, the player makes a value judgment on his or her skill. The outcome of the game is determined predominantly by the skill of the players. Therefore, rummy played with stakes cannot be viewed as a forecast or a shot at the hidden target. Thus the said contentions of the respondents based on RMDC-1 are liable to be rejected., Pursuant to resolutions passed by the legislatures of several states under Article 252, clause (1) of the Constitution, Parliament enacted the Prize Competitions Act, 42 of 1955, hereinafter referred to as the Act, and by a notification issued on 31 March 1956, the Central Government brought it into force on 1 April 1956. The petitioners before us are engaged in promoting and conducting prize competitions in different states of India, and they have filed the present petitions under Article 32 questioning the validity of some of the provisions of the Act and the rules framed thereunder., It will be convenient first to refer to the provisions of the Act and of the rules, so far as they are material for the purpose of the present petitions. The object of the legislation is, as stated in the short title and in the preamble, to provide for the control and regulation of prize competitions. Section 2(d) of the Act defines prize competition as meaning any competition (whether called a crossword prize competition, a missing‑word prize competition, a picture prize competition or by any other name), in which prizes are offered for the solution of any puzzle based upon the building up, arrangement, combination or permutation of letters, words or figures., Sections 4 and 5 of the Act are the provisions which are impugned as unconstitutional, and they are as follows: 4. No person shall promote or conduct any prize competition or competitions in which the total value of the prize or prizes (whether in cash or otherwise) to be offered in any month exceeds one thousand rupees; and in every prize competition, the number of entries shall not exceed two thousand. 5. Subject to the provisions of Section 4, no person shall promote any prize competition or competitions in which the total value of the prize or prizes (whether in cash or otherwise) to be offered in any month does not exceed one thousand rupees unless he has obtained in this behalf a licence granted in accordance with the provisions of this Act and the rules made thereunder., Then follow provisions as to licensing, maintaining of accounts and penalties for violation thereof. Section 20 confers power on the State Governments to frame rules for carrying out the purpose of the Act. In exercise of the powers conferred by this section, the Central Government has framed rules for Part C States, and they have been, in general, adopted by all the states. Two of these rules, namely, Rules 11 and 12 are impugned by the petitioners as unconstitutional, and they are as follows: 11. Entry fee. (1) Where an entry fee is charged in respect of a prize competition, such fee shall be paid in money only and not in any other manner. (2) The maximum amount of any entry fee shall not exceed Re 1 where the total value of the prize or prizes to be offered is rupees one thousand but not less than rupees five hundred; and in all other cases the maximum amount of an entry fee shall be at the following rates, namely (a) as where the total value of the prize or prizes to be offered is less than rupees five hundred but not less than rupees two hundred and fifty; and (b) as where the total value of the prize or prizes to be offered is less than rupees two hundred and fifty., 12. Maintenance of Register. Every licencee shall maintain in respect of each prize competition for which a licence has been granted a register in Form C and shall, for the purpose of ensuring that not more than two thousand entries are received for scrutiny for each such competition, take the following steps, that is to say, shall (a) arrange to receive all the entries only at the place of business mentioned in the licence; (b) serially number the entries according to their order of receipt; (c) post the relevant particulars of such entries in the register in Form C as and when the entries are received and in any case not later than the close of business on each day; and (d) accept for scrutiny only the first two thousand entries as they appear in the register in Form C and ignore the remaining entries, if any, in cases where no entry fee is charged and refund the entry fee received in respect of the entries in excess of the first two thousand to the respective senders thereof in cases where an entry fee has been charged after deducting the cost (if any) of refund., These petitions were heard along with Civil Appeal No. 134 of 1956, wherein the validity of the Bombay Lotteries and Prize Competitions Control and Tax Act, 1948, was impugned on grounds some of which are raised in the present petitions. In our judgment in that appeal, we have held that trade and commerce protected by Article 19(1)(g) and Article 301 are only those activities which could be regarded as lawful trading activities, that gambling is not trade but res extra commercium, and that it does not fall within the purview of those Articles. Following that decision, we must hold that as regards gambling competitions, the petitioners before us cannot seek the protection of Article 19(1)(g), and that the question whether the restrictions enacted in Sections 4 and 5 and Rules 11 and 12 are reasonable and in the interests of the public within Article 19(6) does not therefore arise for consideration., As regards competitions which involve substantial skill however, different considerations arise. They are business activities, the protection of which is guaranteed by Article 19(1)(g), and the question would have to be determined with reference to those competitions whether Sections 4 and 5 and Rules 11 and 12 are reasonable restrictions enacted in public interest. But Mr Seervai has fairly conceded before us that on the materials on record in these proceedings, he could not maintain that the restrictions contained in those provisions are saved by Article 19(6) as being reasonable and in the public interest. The ground being thus cleared, the only questions that survive for our decision are (1) whether, on the definition of prize competition in Section 2(d), the Act applies to competitions which involve substantial skill and are not in the nature of gambling; and (2) if it does, whether the provisions of Sections 4 and 5 and Rules 11 and 12 which are, ex concessio void, as regards such competitions, can on the principle of severability be enforced against competitions which are in the nature of gambling., If the question whether the Act applies also to prize competitions in which success depends to a substantial degree on skill is to be answered solely on a literal construction of Section 2(d), it will be difficult to resist the contention of the petitioners that it does. The definition of prize competition in Section 2(d) is wide and unqualified in its terms. There is nothing in the wording of it which limits it to competitions in which success does not depend to any substantial extent on skill but on chance. It is argued by Mr Palkhivala that the language of the enactment being clear and unambiguous, it is not open to us to read into it a limitation which is not there, by reference to other and extraneous considerations. Now, when a question arises as to the interpretation to be put on an enactment, what the court has to do is to ascertain the intent of those that make it, and that must of course be gathered from the words actually used in the statute. That, however, does not mean that the decision should rest on a literal interpretation of the words used in disregard of all other materials. The literal construction then, says Maxwell on Interpretation of Statutes, 10th Edn., p. 19, has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act; to consider, according to Lord Coke: (1) What was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4) The reason of the remedy. The reference here is to Heydon case [(1584) 3 Co. Rep 76 ER 637]. These are principles well settled, and were applied by this Court in Bengal Immunity Company Limited v. State of Bihar [(1955) 2 SCR 603, 633]. To decide the true scope of the present Act, therefore we must have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the legislation and the purposes thereof, the mischief which it intended to suppress and the other provisions of the statute, and construe the language of Section 2(d) in the light of the indications furnished by them., Having regard to the circumstances under which the resolutions came to be passed, there cannot be any reasonable doubt that the law which the State legislatures moved Parliament to enact under Article 252(1) was one to control and regulate prize competitions of a gambling character. Competitions in which success depended substantially on skill could not have been in the minds of the legislatures which passed those resolutions. Those competitions had not been the subject of any controversy in court. They had done no harm to the public and had presented no problems to the states, and at no time had there been any legislation directed to regulating them. And if the State legislatures felt that there was any need to regulate even those competitions, they could have themselves effectively done so without resort to the special jurisdiction under Article 252(1). It should further be observed that the language of the resolutions is that it is desirable to control competitions. If it was intended that Parliament should legislate also on competitions involving skill, the word control would seem to be not appropriate. While control and regulation would be requisite in the case of gambling, mere regulation would have been sufficient as regards competitions involving skill. The use of the word control which is to be found not only in the resolution but also in the short title and the preamble to the Act appears to us to clearly indicate that it was only competitions of the character dealt with in the Bombay judgment, that were within the contemplation of the legislature., Our attention was invited by Mr Seervai to the statement of objects and reasons in the Bill introducing the enactment. It is therein stated that the proposed legislation falls under Entry 34 of the State List viz. Betting and gambling. If we could legitimately rely on this, that would be conclusive against the petitioners. But Mr Palkhivala contends, and rightly, that the parliamentary history of the enactment is not admissible to construe its meaning, and Mr Seervai also disclaims any intention on his part to use the statement of objects and reasons to explain Section 2(d). We must accordingly exclude it from our consideration. But even apart from it, having regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of opinion that the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skill., That being the position in law, it is now necessary to consider whether the impugned provisions are severable in their application to competitions of a gambling character, assuming of course that the definition of prize competition in Section 2(d) is wide enough to include also competitions involving skill to a substantial degree., Applying these principles to the present Act, it will not be questioned that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend form two distinct and separate categories. The difference between the two classes of competitions is as clear cut as that between commercial and wagering contracts. On the facts, there might be difficulty in deciding whether a given competition falls within one category or not; but when its true character is determined, it must fall either under one or the other. The distinction between the two classes of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the courts have, time and again, pointed out the characteristic features which differentiate them. And if we are now to ask ourselves the question, would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. Nor does the restriction of the impugned provisions to competitions of a gambling character affect either the texture or the colour of the Act; nor do the provisions require to be touched and re‑written before they could be applied to them. They will squarely apply to them on their own terms and in their true spirit, and form a code complete in themselves with reference to the subject. The conclusion is therefore inescapable that the impugned provisions, assuming that they apply by virtue of the definition in Section 2(d) to all kinds of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill., In the result, both the contentions must be found against the petitioners, and these petitions must be dismissed with costs. There will be only one set of counsel's fee. In this case, the petitioners, who were advertising and running prize tournaments in various Indian states, challenged the constitutionality of the Prize Competitions Act (42 of 1955), Section 4 and 5, and Rules 11 and 12 framed under Section 20 of the Act. Their argument was that a prize competition, as defined in Section 2(d) of the Act, included not only gambling competitions but also those acts in which success depended to a significant degree on skill, and that the Sections and Rules infringed on their fundamental right to conduct business and therefore are violative of fundamental right guaranteed to every individual under Article 19(6) of the Constitution. They also contended that the said part of the Act cannot be severed from it, hence the entire Act should be declared as invalid., Whereas, on behalf of the Union of India, it was argued that the definition, when properly understood, meant and comprised only gambling competitions, and that even if that was not the case, the impugned provisions being severable from the Act as contended in their application, were legitimate as far as gambling competitions were concerned., The petitions were tried alongside RMDC-1 and the following issues arose for consideration: (i) Whether the Act applies to competitions that require substantial skill and are not in the nature of gambling, based on the definition of prize competition in Section 2(d)? (ii) And if it does, whether the ex‑concessio invalid provisions of Section 4 and 5 and Rules 11 and 12 relating to such competitions can be implemented on the principle of severability against competitions that are in the character of gambling., The Supreme Court of India reiterated the ratio in RMDC-1 that trade and commerce, as defined by Article 19(1)(g) and Article 301 of the Constitution are the only activities that can be considered authorised trading activities, and that gambling is res extra commercium., The Supreme Court of India held that the distinction between the two types of competitions is as distinct as the distinction between commercial and wagering contracts. On the facts, or at one glance, the Supreme Court stated that it may be difficult to discern whether a given competition belongs in one of the categories or not, but once the true nature of the competition is determined, it will fall into one of the categories., The challenged provisions were presumed to apply to all types of competitions by virtue of the definition in Section 2(d), and that they were severable in their application to competitions in which accomplishment is not dependent on skill to any significant amount., As it was in dispute whether Section 4 and Section 5 and also Rules 11 and 12 of the Act is void in its application to those competitions in which success did not depend on any skill, it was to be decided by the Supreme Court of India with reference to application of doctrine of severability that a statute which is void in part will be treated as void in overall or whether the valid part is capable of enforcement., The Supreme Court of India decided the interpretation of Section 2(d) by referring to the circumstances that led to the making of this legislation. Moreover, the Supreme Court applied the severability principle as to the application of Section 4 and Section 5 and Rules 11 and 12 of the Act not only to the acts involving skill but also to the acts which did not depend on any skill., The Court herein referred to many previously decided cases and used certain criteria laid down by the American Courts while determining the doctrine of severability and came to the conclusion that the provisions challenged by the petitioners are severable in their application to competitions in which success is not based on skill in any significant way., The Supreme Court of India held that the impugned provisions were indeed valid following the application of the doctrine of severability, and that competitions that had skill as the main deciding factor of the outcome of the competition would not come within the ambit of the Prize Competition Act, 1955. It was also held that a statute that applies to both betting or gambling as well as a game of skill, will be severed to only apply to activities which amount to betting or gambling, while rejecting the submission of the State that the Prize Competition Act, 1955, insofar as it applies to competitions of skill will be governed under Entry 26 of List II. Therefore, in interpreting the constitutional entry i.e., Entry 34 of List II, the Supreme Court held that the phrase betting and gambling featuring in Entry 34 does not include games of skill., It was held that a statute that applies to both betting or gambling as well as a game of skill, will be severed to only apply to activities which amount to betting or gambling, while rejecting the submission of the State that the Prize Competition Act, 1955, insofar as it applies to competitions of skill will be governed under Entry 26 of List II i.e., as a trading activity. It is relevant to state that the impugned statute, the Prize Competition Act, 1955, itself contained provisions relating to entry fee payable by the participants, which is a pointer to the fact that the competitions were being played for stakes. Even so, the Supreme Court held that if such competitions involve substantial skill, they do not amount to betting and gambling and the statute was severed only to apply to competitions which do not depend substantially on skill, i.e., games of chance. It is therefore clear that though the definitions in the legislation were wide enough, the Supreme Court still went on to interpret that games of skill are different from games of chance and could be severed for separate treatment., Thus a careful scrutiny of the ratio laid down in RMDC-1 and RMDC-2 is sufficient to indicate that the same completely support the case of the petitioners and intervenors and consequently, the various contentions urged by the respondents in this regard cannot be accepted., The State of Andhra Pradesh appeals by special leave against the judgment of the High Court of Andhra Pradesh in which, accepting a reference by the Sessions Judge, the conviction of the respondents under Sections 4 and 5 of the Hyderabad Gambling Act (2 of 1305-F) ordered by the 5th City Magistrate at Secunderabad has been set aside., The short question in this case is whether the premises of a club known as the Crescent Recreation Club situated in Secunderabad were being used as a common gambling house and whether the several respondents who were present at the time of the raid by the police could be said to be gambling therein., On May 4, 1963, the police headed by Circle Inspector Krishnaswami raided the premises of the club. They found Respondents 1‑5 playing a card game known as rummy for stakes. At the time of the raid, there were some counters on the table as also money and of course the playing‑cards with the players. Respondent 6, the Treasurer of the Club, was also present and was holding the stake money which is popularly known as kitty. The 7th respondent is the Secretary of the Club and he has been joined as an accused, because he was in charge of the management of the club. The kitty which the sixth respondent held was Rs 74.62 and a further sum of Rs 218 was recovered from the table of the sixth respondent. Sixty‑six counters were on the table and some more money was found with the persons who were indulging in the game. The evidence of the Circle Inspector is that he had received credible information that the premises of the club were being used as a common gambling house and he raided it and found evidence, because instruments of gambling were found and the persons present were actually gambling., The Magistrate convicted all the seven respondents and sentenced them to various fines, with imprisonment in default. The respondents then filed an application for revision before the Sessions Judge, Secunderabad who made a reference to the High Court under Section 438 of the Code of Criminal Procedure, recommending the quashing of the conviction and the setting aside of the sentences. This recommendation was accepted by the learned Single Judge in the High Court and the present appeal is brought against his judgment by special leave granted by this Court., The Hyderabad Act follows in outline the provisions of the Public Gambling Act, 1867 in force in India. Section 3 of the Act defines a common gambling house. The translation of the Urdu text placed before us was found to be inaccurate but we have compared the Urdu definition with the definition of common gaming house in the Public Gambling Act, and we are of opinion that it represents a truer translation than the one included in the official publication. We accordingly quote the definition from the Indian Act, adding thereto the explanation which is not to be found in the Indian Act. Common gambling‑house according to the definition means: any house, walled enclosure, room or place in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, enclosure; room or place, whether by way of charge for the use of the instruments of gaming, or of the house enclosure, room or place, or otherwise howsoever. Explanation. The word house includes a tent and all enclosed space.
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The contention regarding this definition is that the evidence clearly disclosed that the club was being used as a common gambling house and therefore the penal provisions of the Hyderabad Gambling Act were clearly attracted. Several sections of the Gambling Act need to be considered. Section 4, which follows in outline the corresponding section in the Public Gambling Act, provides for penalty for an owner, occupier or person using a common gambling house and includes within its reach persons who have the care or the management of, or in any manner assist in conducting, the business of, any such house, enclosure or open space. The members of the club, which is a Members' Club, would prima facie be liable but, as they are not before us, we need not consider whether they should also have been arraigned. The Secretary and the Treasurer, who were respectively Accused 7 and Accused 6, were arraigned because they were thought to come within the reach of Section 4 as they were in the care and management of the club itself., The Magistrate who tried the case was of the opinion that the offence was proved because the presumption was not successfully repelled on behalf of the respondents. In the order making the reference, the Sessions Judge made two points. He first referred to Section 14 of the Hyderabad Gambling Act, which provides that nothing done under the Act shall apply to any game of mere skill wherever played, and he was of the opinion, on the authority of two cases decided by the Madras High Court and one case of the Andhra High Court, that the game of rummy was a game of skill and therefore the Act did not apply to the case. He also held that there was no profit made by the members of the club from the charge for the use of cards, the furniture and the room in the club, and therefore the definition of common gambling house did not apply., In accepting the reference, the Single Judge of the High Court did not express any opinion upon the question whether the game of rummy can be described as a game of skill. He relied upon the second part of the proposition suggested by the Sessions Judge as the ground for acquitting the accused, namely, that the club was not making a profit but was only charging a service fee., In our opinion, the points made by Mr Ram Reddy do not prove this club to be a common gambling house. The presumption under Section 7, even if it arises in this case, is successfully repelled by the evidence which has been led, even on the side of the prosecution., We are also not satisfied that the protection of Section 14 is unavailable in this case. The game of rummy is not a game entirely of chance like the three‑card game mentioned in the Madras case. The three‑card game, which goes under different names such as flush, brag, etc., is a game of pure chance. Rummy, on the other hand, requires a certain amount of skill because the fall of the cards has to be memorised and the building up of rummy requires considerable skill in holding and discarding cards. Therefore, rummy is mainly and preponderantly a game of skill. The element of chance in rummy is of the same character as the chance in a deal at a game of bridge. In all games in which cards are shuffled and dealt, there is an element of chance because the distribution of the cards is not according to any set pattern but depends on how the cards fall in the shuffled pack. From this alone it cannot be said that rummy is a game of chance with no skill involved. Of course, if there is evidence of gambling in some other way or that the owner of the house or the club is making a profit or gain from the game of rummy or any other game played for stakes, the offence may be attracted. In this case, those elements are missing and therefore we think that the High Court was right in accepting the reference., The appeal fails and is dismissed. Both sides are ad idem as regards the ratio laid down by the Supreme Court of India in Satyanarayana's case that rummy preponderantly is a game of skill and that, from this alone, it cannot be said that rummy is a game of chance with no skill involved., This decision was heavily relied upon by the respondents to submit that playing a game of skill (rummy) for stakes also amounts to betting and gambling. Reliance was placed upon paragraph 12, which reads: 'The game of rummy is not a game entirely of chance like the three‑card game mentioned in the Madras case. The three‑card game, which goes under different names such as flush, brag, etc., is a game of pure chance. Rummy, on the other hand, requires a certain amount of skill because the fall of the cards has to be memorised and the building up of rummy requires considerable skill in holding and discarding cards. We cannot, therefore, say that the game of rummy is a game of entire chance. It is mainly and preponderantly a game of skill...', The Supreme Court of India observed that if (i) there is evidence of gambling in some other way or (ii) the owner of the house or the club is making a profit or gain from the game of rummy or any other game played for stakes, the offence of operating a common gaming house may be attracted. The term 'common gaming house' was defined as any house, walled enclosure, room or place in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, enclosure, room or place, whether by way of charge for the use of the instruments of gaming, or of the house, enclosure, room or place, or otherwise howsoever. Explanation: The word 'house' includes a tent and all enclosed spaces., It is in the context of this definition that the Supreme Court of India observed that when an owner of the house or the club is making a profit or gain from the game of rummy or any other game played for stakes, the offence of operating a common gaming house may be attracted. There is no inference, therefore, to suggest that games of rummy when played for stakes would take it into the realm of gambling, and such an inference cannot be accepted., It is true that in Satyanarayana's case, rummy was in fact being played for stakes. Even so, the Court held that rummy is a game of skill and outside the purview of betting and gambling. The Court also held that recovery of small costs such as sitting fees is not profit within the context of the definition of common gaming house. The reference to gambling in some other way concerns side betting, where third parties or the club itself may be staking on the outcome of a game being played by players., As rightly contended by the petitioners, paragraph 10 of the said judgment prohibits making any profit or gain derived from organising a game of skill, which would run counter to the definition of a common gambling house since, to fall within that definition, an instrument of gaming must be used for profit or gain. However, at paragraph 12 of the same decision, the game of rummy was held to be protected under Section 14 of the Hyderabad Gambling Act, which necessarily implies that the game is not hit by any of the other provisions of the Act and therefore any profit or gain derived from playing rummy would not make the organiser a common gambling house. If the judgment were interpreted to mean that no fees can be imposed on players for playing a skill‑based game, then even an organiser of a chess competition who charges an entrance fee would be guilty of running a common gaming house. In addition, paragraph 10, as interpreted by the respondent, conflicts with paragraph 5 of RMDC‑2, which permits running a business involving games of skill., The respondents are also not entitled to place reliance upon the latter portion of paragraph 12, which cannot be read in isolation. Paragraph 3 makes it abundantly clear that the game being played was rummy for stakes. The opening words of paragraph 12 make it clear that protection of Section 14 was available in this case. The only reasonable explanation of the sentence, which is consistent with the entire decision, is that the words refer to the outcome of the game. In other words, the sentence prohibits the owner of the club from betting on a game of rummy played in the club. It does not prohibit the running of a club wherein rummy is played with stakes between the players., The respondents' contention that Satyanarayana's case is a clear enunciation of law that games of skill played with stakes amount to gambling and that when the club makes a profit it amounts to the offence of running a common gaming house is wholly erroneous. The Supreme Court of India went into the question of profits only because that was the only point considered by the High Court in the impugned order, as the High Court did not consider whether rummy was a game of skill. The Supreme Court subsequently held in paragraph 12 that, even otherwise, rummy is a game of skill and therefore the Hyderabad Gambling Act is not attracted. This is the ratio that emerges from Satyanarayana's case and not what is sought to be contended by the respondents., The last portion of paragraph 12 in Satyanarayana's case, relied upon by the respondents, says that the offence of being a common gambling house is attracted when the club itself is concerned with the outcome of the game (or if there is side betting), as recognised by the Kerala High Court in the Head Digital's case. It is not the case that the petitioner is interested in the outcome of a game played by players on its platform. Irrespective of who wins, the petitioners, under their contract with the players, collect a percentage of the amounts staked as platform fees or commission for providing intermediary services. Thus, the respondents cannot be permitted to supply words to these observations and say that placing stakes on a game of skill amounts to gambling. A reading of the whole judgment shows that this last line is not the ratio of the judgment., In M.J. Sivani's case, the Supreme Court of India considered whether video games require regulation under the Mysore Police Act, 1963, the Madras City Police Act, 1888, and the notifications issued thereunder, as well as the Tamil Nadu Government Orders No. 166‑0 dated 18‑1‑1993. The appellants contended that video gaming does not involve collection, solicitation, receipt or distribution of winnings nor does it involve wagering. The Court held that the definition of gaming does not attract video gaming because the space occupied by the machines is very small, not a theatre or public place, and therefore it is not a 'common gaming house' as defined under the respective Acts. The games involve only non‑refundable token charges; tokens are not exchangeable for cash. The Court concluded that video games are neither illegal nor unjustified and that the appellants are not required to obtain any licence from the licensing authority., The primary question in that case was whether video games are games and whether they are games of skill or chance liable to be regulated under the relevant Act, notification or orders. The word 'gaming' defined under the Acts is an inclusive definition intended to bring within its ambit diverse games. Some video games are operated with joysticks, push buttons, steering wheels, gun‑trigger controls, etc. Video gaming, therefore, is associated with stakes or money's worth on the result of a game, be it a game of pure chance or of mixed skill and chance., In State of A.P. v. K. Satyanarayana, considering whether rummy is a game of chance or skill, this Court held: 'The game of rummy is not a game entirely of chance like the three‑card game. The three‑card game, which goes under different names such as flush, brag, etc., is a game of pure chance. Rummy, on the other hand, requires a certain amount of skill because the fall of the cards has to be memorised and the building up of rummy requires considerable skill in holding and discarding cards. It is mainly and preponderantly a game of skill. The chance in rummy is of the same character as the chance in a deal at a game of bridge.', The primary questions that emerge are whether a video game is a game and whether it is a game of skill or chance and liable to be regulated under the relevant Act, notification or orders. The word 'gaming' defined under the Acts is an inclusive definition to bring within its ambit diverse games. Some video games are operated with two‑way or four‑way joysticks, push buttons, volume control with a steering wheel and accelerator, gun‑trigger control or potentiometer, etc. Video gaming, therefore, is associated with stakes or money's worth on the result of a game, be it a game of pure chance or of mixed skill and chance., For a commoner or a novice, it is difficult to play a video game with skill. Ordinary people who join the game can hardly be credited with skill for success. The forecast is nothing better than a shot at a hidden target. Whether a particular video game is a game of skill, a game of chance, or a mixture requires determination of the main element, namely skill or chance. If it is a game of pure chance or mixed chance and skill, it is gaming. Even if the game is for amusement or diversion, it would constitute 'gaming'. The object of the relevant Act, notification or orders is to regulate the running of video games and a licence is required from the licensing authority., The report further disclosed that one player named Ramesh lost rupees one lakh in video games and was examined by the committee. The machines are not freely accessible or easily visible to a casual visitor; at some places they were installed behind partitions and players were conducted into such places to ensure that the games were not visible from outside. There is no scope for using one's skill to achieve a desired result in games such as Royal Casino, Super Continental, Five Line, High Low, Black Jack, Poker Double Up, Skill Ball, Pac Man and Golden Derby. They were classified as games of chance. By allowing such games, innocent children and the public would lose hard‑earned money. Machines were tampered with so that the player always loses; therefore, the Commissioner prohibited such games of chance while permitting games of skill., The question then emerges whether regulation of video games violates the fundamental right to trade or business guaranteed under Articles 19(1)(g) and 19 of the Constitution. The licensing authority is therefore conferred with discretion to impose such restrictions by notification or order having statutory force as appropriate to the trade or business. Unregulated video game operations not only pose a danger to public peace, order and safety, but also cause the public to fall prey to gaming where they always stand to lose. Unless one resorts to gaming regularly, one can hardly be reckoned to possess skill to play the video game. Therefore, when it is a game of pure chance or manipulated by tampering with the machines, even acquired skills hardly assist a player to obtain extra tokens. Consequently, even when it is a game of mixed skill and chance, it would be gaming prohibited under the statute except by regulation., It is contended for the appellants from Tamil Nadu that the authorities are refusing to grant licence en bloc and that the action is arbitrary. The Commissioner has banned exhibition of only those video games specified in the judgment and permitted exhibition of games of skill in appropriate cases. If the Commissioner rejects any application on irrelevant grounds, the aggrieved party may have its legality impugned in appropriate proceedings., The respondents also placed heavy reliance on the case of M.J. Sivani to suggest that playing a game of skill for stakes amounts to gambling. In that case, the Supreme Court of India was concerned with whether a video game is a game and whether it is a game of skill or chance and liable to be regulated under the Mysore Police Act, 1963, the Madras City Police Act, 1888 and the Tamil Nadu Government Orders No. 166‑0 dated 18‑1‑1993. The paragraphs extracted clearly show that the Court considered that several persons lose their livelihood in video gaming, which could be a mixed game of skill and chance, and that such activities could be subjected to licensing. This decision does not aid the respondents' submission that playing a game predominantly of skill for stakes amounts to gambling., It is significant to note that this contention of the respondents was also urged in the All India Gaming Federation's case and was repelled by the Division Bench of the Supreme Court of India, which held that the contention that gaming includes both a game of chance and a game of skill, and sometimes a combination of both, is not supported by the reliance. The Court observed that M.J. Sivani does not recognise a functional difference between actual games and virtual games. The decision was based on a wider interpretation of the definition of gaming in legislation enacted to regulate video parlours, not to ban video games. The Court noted manipulation potential of machines demonstrated by police reports. This decision cannot be construed as repugnant to Chamarbaugwala jurisprudence as explained in K.R. Lakshmanan. We are of the view that games of skill do not metamorphose into games of chance merely because they are played online, ceteris paribus., Reliance has been placed on paragraphs 7 and 8 of M.J. Sivani, which contain the dictionary meaning of gaming. However, the definition makes clear that gaming is confined to playing a game of chance for stake or wager and nothing more, and that gaming is synonymous with gambling. In other words, the definition does not hold that playing a game of skill for stake or wager also amounts to gaming or gambling. Although reliance is placed upon paragraph 14, the true meaning becomes clear from the nature of the games in question, viz. video games such as Super Continental, High Low, Black Jack, etc., all of which are pure games of chance. The Court does not hold that video gaming is akin to gambling. In paragraphs 13 and 18, the Court acknowledges that offering video games is protected under Articles 19(1)(g) and 21 of the Constitution and therefore such activities are not res extra commercium. The Court does not hold that playing a game predominantly of skill with money or stakes amounts to gambling., The Madras Race Club is an association registered as a company with limited liability under the Companies Act, 1956. The Club was formed in 1896 by taking over the assets and liabilities of the erstwhile unincorporated club known as Madras Race Club. According to its Memorandum and Articles of Association, the principal object of the Club is to carry on the business of a race‑club in the running of horse races. The Club is one of the five Turf Authorities of India, the other four being the Royal Calcutta Turf Club, the Royal Western India Turf Club Limited, the Bangalore Turf Club Limited and the Hyderabad Race Club. Race meetings are held in the Club's own racecourse at Madras and at Uthagamandalam (Ooty) for which bets are made inside the racecourse premises. While horse races continue in the rest of the country, the Tamil Nadu Legislature, as far back as 1949, enacted a law by which horse racing was brought within the definition of gaming. The law was not enforced till 1975, when it was challenged by the Club by way of a writ petition before the Madras High Court. The writ petition was dismissed by the High Court.
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These proceedings before us are a sequel to the chequered history of litigation between the parties over a period of two decades. From the pleadings of the parties and the arguments addressed before us by the learned counsel the following questions arise for our consideration: What is gambling? What is the meaning of the expression mere skill in terms of Section 49-A of the Madras City Police Act, 1888 (the Police Act) and Section 11 of the Madras Gaming Act, 1930 (the Gaming Act)? Whether the running of horse races by the Club is a game of chance or a game of mere skill? Whether wagering or betting on horse races is gaming as defined by the Police Act and the Gaming Act? Whether the horse racing even if it is a game of mere skill is still prohibited under Section 49-A of the Police Act and Section 4 of the Gaming Act? Whether the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986 (the 1986 Act) gives effect to the policy under Article 39(b) and (c) of the Constitution of India and as such is protected under Article 31-C of the Constitution. If not, whether the 1986 Act is liable to be struck down as violative of Articles 14 and 19(1)(g) of the Constitution., The New Encyclopaedia Britannica defines gambling as the betting or staking of something of value, with consciousness of risk and hope of gain on the outcome of a game, a contest, or an uncertain event the result of which may be determined by chance or accident or have an unexpected result by reason of the bettor's miscalculations. According to Black's Law Dictionary (sixth edition) gambling involves not only chance but a hope of gaining something beyond the amount played. Gambling consists of consideration, an element of chance and a reward. Gambling in a nutshell is payment of a price for a chance to win a prize. Games may be of chance, of skill, or of skill and chance combined. A game of chance is determined entirely or in part by lot or mere luck. The throw of the dice, the turning of the wheel, the shuffling of the cards are all modes of chance. In these games the result is wholly uncertain and doubtful. No human mind knows what it will be until the dice is thrown, the wheel stops its revolution or the dealer has dealt the cards. A game of skill, on the other hand, although the element of chance cannot be entirely eliminated, is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player. Golf, chess and even rummy are considered to be games of skill. The courts have reasoned that there are few games, if any, which consist purely of chance or skill, and as such a game of chance is one in which the element of chance predominates over the element of skill, and a game of skill is one in which the element of skill predominates over the element of chance. It is the dominant element, skill or chance, which determines the character of the game., The Public Gambling Act, 1867 provided punishment for public gambling and for keeping of common gaming houses. The Act did not bring within its scope betting on horse races. The Bengal Public Gaming Act, 1867 provided punishment for public gambling and the keeping of common gaming houses. Gaming was defined in the Bengal Act to include wagering or betting except wagering or betting on horse races. The next legislation was the Bombay Prevention of Gambling Act, 1887 which defines gaming in similar terms as the Bengal Act., Before we deal with the Madras legislations on the subject, it would be useful to refer to the judgments of the Supreme Court of India wherein the question whether trade or business which is of gambling nature can be a fundamental right within the meaning of Article 19(1)(g) of the Constitution was considered., The Supreme Court of India in State of Bombay v. R.M.D. Chamarbaugwala (All India Reporter 1957 Supreme Court 699; Supreme Court Reporter 1957 874; 59 Bombay Law Reporter 945) speaking through S.R. Das, Chief Justice, observed: From ancient times seers and law‑givers of India looked upon gambling as a sinful and pernicious vice and deprecated its practice. Hymn XXXIV of the Rig Veda proclaims the demerit of gambling. Verses 7, 10 and 13: 7. Dice verily are armed with goads and driving hooks, deceiving and tormenting, causing grievous woe. They give frail gifts and then destroy the man who wins, thickly anointed with the player's fairs. 10. The gambler's wife is left forlorn and wretched; the mother mourns the son who wanders homeless. In constant fear, in debt, and seeking riches, he goes by night unto the home of others. 11. Play not with dice: no, cultivate thy cornland. Enjoy the gain, and deem that wealth sufficient. There are thy cattle, there thy wife. O gambler, so this good Savitar himself hath told me. The Mahabharata deprecates gambling by depicting the woeful conditions of the Pandavas who had gambled away their kingdom. While Manu condemned gambling outright, Yajnavalkya sought to bring it under State control but he too in Verse 202(2) provided that persons gambling with false dice or other instruments should be branded and punished by the king. Kautilya also advocated State control of gambling and, as a practical person that he was, was not averse to the State earning some revenue therefrom. Vrihaspati, dealing with gambling in Chapter XXVI, Verse 199, recognises that gambling had been totally prohibited by Manu because it destroyed truth, honesty and wealth, while other law‑givers permitted it when conducted under the control of the State so as to allow the king a share of every stake. Such was the notion of Hindu law‑givers regarding the vice of gambling. Hamilton in his Hedaya Volume I V, Book XLIV, includes gambling as a kirāhīyat or abomination., The learned Chief Justice then referred to various statutes in India prohibiting public gambling and also referred to case law on the subject in other countries. He quoted the following observations of McTiernan, Judge of the Australian High Court in King v. Connara (1939 61 Commonwealth Law Reports 596): Some trades are more adventurous or speculative than others, but trade or commerce as a branch of human activity belongs to an order entirely different from gaming or gambling. Whether a particular activity falls within the one or the other order is a matter of social opinion rather than jurisprudence. It is gambling to buy a ticket or share in a lottery. Such a transaction does not belong to the commercial business of the country. The purchaser stakes money in a scheme for distributing prizes by chance. He is a gamester. On the question whether gambling is protected either by Article 19(1)(g) or Article 301 of the Constitution, the Supreme Court of India held: It will be abundantly clear from the foregoing observations that the activities which have been condemned in this country from ancient times appear to have been equally discouraged and looked upon with disfavour in England, Scotland, the United States of America and in Australia in the cases referred to above. We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard‑earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution‑makers to be raised to the status of trade, commerce or intercourse and to be made the subject‑matter of a fundamental right guaranteed by Article 19(1)(g). We find it difficult to persuade ourselves that gambling was ever intended to form any part of this ancient country's trade, commerce or intercourse to be declared as free under Article 301. It is not our purpose nor is it necessary for us in deciding this case to attempt an exhaustive definition of the word trade, business or intercourse. We are, however, clearly of opinion that whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of Articles 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling. Gambling activities from their very nature and in essence are extra‑commercium although the external forms, formalities and instruments of trade may be employed and they are not protected either by Article 19(1)(g) or Article 301 of our Constitution., On the crucial question whether games which depend to a substantial degree upon the exercise of skill come within the stigma of gambling, S.R. Das, Chief Justice, in the Chamarbaugwala case held: Thus a prize competition for which a solution was prepared beforehand was clearly a gambling prize competition, for the competitors were only invited to guess what the solution prepared beforehand by the promoters might be, or in other words, as Lord Hewart, Chief Justice, observed in Coles v. Odhams Press Ltd. (1936 1 King’s Bench 416; 1935 All England Reporter 598), the competitors are invited to pay a certain number of pence to have the opportunity of taking blind shots at a hidden target. Prize competitions to which the second part of the qualifying clause applied, that is to say, the prize competitions for which the solution was determined by lot, were necessarily gambling adventures. Nor has it been questioned that the third category, which comprised any competition whose success does not depend to a substantial degree upon the exercise of skill, constituted a gambling competition. At one time the notion was that in order to be branded as gambling the competition must be one whose success depended entirely on chance. If even a scintilla of skill was required for success the competition could not be regarded as of a gambling nature. The Court of Appeal in the judgment under appeal has shown how opinions have changed since the earlier decisions were given and it is not necessary for us to discuss the matter again. It will suffice to say that we agree with the Court of Appeal that a competition in order to avoid the stigma of gambling must depend to a substantial degree upon the exercise of skill. Therefore, a competition whose success does not depend to a substantial degree upon the exercise of skill is now recognised to be of a gambling nature., On the same day when the Supreme Court of India decided the Chamarbaugwala case, the same four‑Judge Bench presided over by S.R. Das, Chief Justice, delivered the judgment in another case between the same parties titled R.M.D. Chamarbaugwala v. Union of India (All India Reporter 1957 Supreme Court 628; Supreme Court Reporter 1957 930; 59 Bombay Law Reporter 973). The validity of some provisions of the Prize Competitions Act, 1955 (42 of 1955) was challenged before the Supreme Court of India by way of petitions under Article 32 of the Constitution. Justice Venkatarama Ayyar, speaking for the Court, noted the contentions of the learned counsel: The contention of Mr. Palkhiwala, who addressed the main argument in support of the petitions, is that prize competition as defined in Section 2(d) would include not only competitions in which success depends on chance but also those in which it would depend to a substantial degree on skill; that even if the provisions could be regarded as reasonable restrictions as regards competitions which are in the nature of gambling, they could not be supported as regards competitions wherein success depended to a substantial extent on skill, and that as the impugned law constituted a single inseverable enactment, it must fail in its entirety in respect of both classes of competitions. Mr. Seervai, who appeared for the respondent, disputed the correctness of these contentions. He argued that prize competition as defined in Section 2(d) of the Act, properly construed, means and includes only competitions in which success does not depend to any substantial degree on skill and are essentially gambling in their character; that gambling activities are not trade or business within the meaning of that expression in Article 19(1)(g), and accordingly the petitioners are not entitled to invoke the protection of Article 19(1)(g); and that even if the definition of prize competition in Section 2(d) is wide enough to include competitions in which success depends to a substantial degree on skill and Sections 4 and 5 of the Act and Rules 11 and 12 are to be struck down in respect of such competitions as unreasonable restrictions not protected by Article 19(1)(g), that would not affect the validity of the enactment as regards the competitions which are in the nature of gambling, the Act being severable in its application to such competitions. The learned Judge thereafter observed: We must hold that as regards gambling competitions, the petitioners before us cannot seek the protection of Article 19(1)(g). As regards competitions which involve substantial skill however, different considerations arise. They are business activities, the protection of which is guaranteed by Article 19(1)(g). Applying these principles to the present Act, it will not be questioned that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend form two distinct and separate categories. The difference between the two classes of competitions is as clear cut as that between commercial and wagering contracts. On the facts there might be difficulty in deciding whether a given competition falls within one category or not; but when its true character is determined, it must fall either under one or the other. The distinction between the two classes of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the Courts have, time and again, pointed out the characteristic features which differentiate them. And if we are now to ask ourselves whether Parliament would have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. The conclusion is therefore inescapable that the impugned provisions, assuming that they apply by virtue of the definition in Section 2(d) to all kinds of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill. The Supreme Court of India, therefore, in the two Chamarbaugwala cases, has held that gambling is not trade and as such is not protected by Article 19(1)(g) of the Constitution. It has further been authoritatively held that the competitions which involve substantial skill are not gambling activities. Such competitions are business activities, the protection of which is guaranteed by Article 19(1)(g) of the Constitution. It is in this background that we have to examine the question whether horse racing is a game of chance or a game involving substantial skill., The Police Act extends to the whole of the city of Madras, as defined in Section 3 of the Act. Section 3 defines common gaming‑house, gaming and instruments of gaming as follows: Common gaming‑house means any house, room, tent, enclosure, vehicle, vessel or any place whatsoever in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using, or keeping such place, whether by way of charge for the use of instruments of gaming or of the place, or otherwise howsoever; and includes any place opened, kept or used or permitted to be opened, kept or used for the purpose of gaming. Gaming does not include a lottery but includes wagering or betting, except wagering or betting on a horse race when such wagering or betting takes place (i) on the date on which such race is to be run; and (ii) in a place or places within the race enclosure which the authority controlling such race has with the sanction of the State Government set apart for the purpose. For the purposes of this definition, wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise, in respect of any wager or bet, or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution. Instruments of gaming include any article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming, and any winnings or prizes in money or otherwise distributed or intended to be distributed in respect of any gaming., Section 42 of the Police Act gives power to the Commissioner to grant a warrant to enter any place used as a common gaming‑house, to arrest persons found therein and to seize all instruments of gaming. Section 43 provides that any cards, dice, gaming table or cloth, board or other instruments of gaming found in any place entered or searched under Section 42 shall be evidence that such place is used as a common gaming‑house. Section 44 states that in order to convict any person of keeping a common gaming‑house, proof of playing for stakes shall not be necessary. Section 45 provides for penalty for opening, keeping or use of a gaming‑house. Section 46 lays down penalty for being found in a common gaming‑house for the purpose of gaming. Section 47 permits destruction of the instruments of gaming on conviction and Section 48 relates to indemnification of witnesses. Sections 49 and 49‑A (to the extent relevant) of the Police Act are reproduced hereunder: 49. Nothing in Sections 42 to 48 of this Act shall be held to apply to games of mere skill wherever played. 49‑A. (1) Whoever, being the owner or occupier or having the use of any house, room, tent, enclosure, vehicle, vessel or place, opens, keeps or uses the same for the purpose of gaming on a horse race, shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees, but in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of this Court, such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees for the first offence; (ii) such imprisonment shall not be less than six months and such fine shall not be less than seven hundred and fifty rupees for the second offence; and (iii) such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees for the third or any subsequent offence. Section 49‑A of the Police Act was substituted for the original section by Section 2(iii) of the Madras City Police and Gaming (Amendment) Act, 1955 (the 1955 Act)., The Gaming Act extends to the whole of the State of Tamil Nadu, with the exception of the city of Madras. Section 3 of the Gaming Act defines common gaming‑house, gaming and instruments of gaming which are identical to the definitions given under the Police Act. Sections 5 to 10 of the Gaming Act are identical to Sections 42 to 47 of the Police Act. Section 11 of the Gaming Act provides: Nothing in Sections 5 to 10 of this Act shall be held to apply to games of mere skill wherever played. Section 4 of the Gaming Act, to the extent relevant, reads: Whoever, being the owner or occupier or having the use of any house, room, tent, enclosure, vehicle, vessel or place, opens, keeps or uses the same for the purpose of gaming on a horse race. The above‑quoted Section 4 of the Gaming Act was substituted by Section 3(1) of the 1955 Act and is identical to Section 49‑A of the Police Act., The expression gaming as originally defined under the Police Act and the Gaming Act did not include wagering or betting on a horse race when such wagering or betting took place (i) on the date on which such race was to run; and (ii) in a place or places within the race enclosure which the authority controlling such race had with the sanction of the State Government set apart for the purpose. The definition of gaming in the two Acts was sought to be amended by Sections 2 and 4 of the Madras City Police and Gaming (Amendment) Act, 1949 (the 1949 Act). Section 2 substituted the definition of gaming in the Madras City Police Act, 1888, to read: Gaming does not include a lottery but includes wagering or betting. Explanation: For the purpose of this definition, wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise, in respect of any wager or bet, or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution. Section 4 made a similar substitution in the Madras Gaming Act, 1930., It is obvious from the 1949 Act that the words except wagering or betting on a horse race when such wagering or betting takes place (i) on the date on which such race is to be run; and (ii) in a place or places within the race enclosure which the authority controlling such race has with the sanction of the State Government set apart have been omitted from the definition of gaming in the two Acts. The State Government, however, did not enforce Sections 2 and 4 of the 1949 Act till 1975. Although no notification enforcing those sections was ever issued, the provisions were brought into existence and enforced by the Tamil Nadu Horse Races (Abolition and Wagering or Betting) Act, 1974 (the 1974 Act). Section 2 of that Act provides: Sections 2 and 4 shall come into force on 31‑03‑1975, notwithstanding anything contained in any law for the time being in force or in any notification or order issued by the Government., The 1974 Act was challenged before the High Court by way of writ petition under Article 226 of the Constitution. The challenge was primarily on two grounds. It was contended that betting on horse races, not being gambling, fell outside the legislative competence of the State Legislature under Entry 34 of List II of the Seventh Schedule to the Constitution; and that horse racing, being a game of substantial skill, the provisions of the two Acts were not applicable to horse races. The High Court rejected both contentions. The High Court held horse racing to be a game of chance, and therefore gambling, on the following reasons: The question is whether, having regard to this approach, betting on horse races is of gambling nature. We are told that it is not, because bettors bring to bear considerable knowledge of each horse’s ancestry, pedigree, performance history, and other factors, and skill based on such knowledge and experience in horse racing. We know the plethora of publications, booklets, pamphlets and books about horses and horse races. Even so, if any skill is involved it is the skill of the bettor and not the horse, and based on such skill the bettor cannot say with certainty that a horse will certainly win. The knowledge and experience may eliminate as far as possible the odds of failure and increase the probability of success, but even the most astute bettor may still fail. The element of chance is not outweighed by any skill of the bettor or the horse. The figures shown would only indicate that successful betting sometimes, not necessarily every time, goes with substantial skill of the bettor. We are not persuaded that betting on horses is a game of substantial skill. Horse racing is a competition in speed which will depend on a variety of changing and uncertain factors which, with the best knowledge and skill of the bettor, cannot be reduced to a certainty, although such knowledge and skill may approximate the probability of success. In our opinion, therefore, betting on horses involves an element of gambling and we are unable to agree that staking on horses with expert knowledge and skill of the bettor is not betting involving an element of gambling., We may now take up the second question for consideration. Section 49 of the Police Act and Section 11 of the Gaming Act specifically provide that the penal provisions of the two Acts shall not apply to games of mere skill wherever played. The expression game of mere skill has been interpreted by the Supreme Court of India to mean mainly and preponderantly a game of skill. In State of Andhra Pradesh v. K. Satyanarayana (1968 2 Supreme Court Reporter 387; All India Reporter 1968 Supreme Court 825; 1968 Criminal Law Journal 1009), the question before the Court was whether the game of rummy was a game of mere skill or a game of chance. The issue was to be answered on the interpretation of Section 14 of the Hyderabad Gambling Act (2 of 1305‑F) which was pari materia to Section 49 of the Police Act and Section 11 of the Gaming Act. The Court referred to the proceedings before the lower courts and noted: The learned Magistrate who tried the case was of the opinion that the offence was proved because the presumption had not been successfully repelled on behalf of the respondents. The order making the reference the learned Sessions Judge made two points: He first referred to Section 14 of the Act which provides that nothing done under the Act shall apply to any game of mere skill wherever played and he was of opinion, on the authority of two cases decided by the Madras High Court and one of the Andhra High Court, that the game of rummy was a game of skill and therefore the Act did not apply.
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Supreme Court of India held the game of rummy to be a game of mere skill on the following reasoning: The protection of Section 14 is not available in this case. The game of rummy is not a game entirely of chance like the three‑card game mentioned in the Madras case (Somasundaram Chettiar, In re, AIR 1948 Mad 264 : 49 Criminal Law Journal 434) to which we were referred. The three‑card game, which goes under different names such as flush, brag, etc., is a game of pure chance. Rummy, on the other hand, requires a certain amount of skill because the fall of the cards has to be memorised and the building up of rummy requires considerable skill in holding and discarding cards. Therefore, we cannot say that the game of rummy is a game of entire chance. It is mainly and preponderantly a game of skill. The chance in rummy is of the same character as the chance in a deal at a game of bridge. In all games in which cards are shuffled and dealt out, there is an element of chance because the distribution of the cards is not according to any set pattern but depends on how the cards find their place in the shuffled pack. From this alone it cannot be said that rummy is a game of chance and that there is no skill involved in it., The judgments of Supreme Court of India in the two Chamarbaugwala cases and in the Satyanarayana case [(1968) 2 SCR 387 : AIR 1968 SC 825 : 1968 Criminal Law Journal 1009] clearly lay down that (i) competitions where success depends on a substantial degree of skill are not gambling and (ii) despite there being an element of chance, if a game is preponderantly a game of skill it would nevertheless be a game of mere skill. We therefore hold that the expression ‘mere skill’ means a substantial degree or preponderance of skill., The crucial question to be determined is whether a horse‑race run on the turf of the Club is a game of chance or a game of mere skill. The relevant pleadings before the Madras High Court in the writ petition were as follows: Racing is really a test of equine speed and stamina. The horses are trained to run and their form is constantly watched by experts. As stated earlier, racing is not a game of chance. Experts on racing throughout the world would bear testimony to the fact, and indeed it has been recognised by decisions, that the result of a horse‑race on which bets are placed is not based on pure chance. A considerable degree of skill comes into the operation. It starts from the breeding and training of the race‑horse on which much talent, time and money are expended by trained persons; jockeys have also to be specially trained and equipped. The horses themselves are not necessarily consistent in fitness, which is the reason why horses are exercised openly and watched carefully by representatives of the press and their observations widely published. Thus, the inherent capacity of the animal, the capability of the jockey, the form and fitness of the horse, the weights carried and the distance of the race are all objective facts capable of assessment by race‑goers. Consequently, the prediction of the result of the race is not like drawing three aces in a game of poker; rather, it is the result of much knowledge, study and observation. Horse‑racing has been universally recognised as a sport. Horsemanship involves considerable skill, technique and knowledge and jockeys have to be specially trained over a period of years. Whether a particular horse wins the race is not dependent on mere chance or accident but is determined by numerous factors such as the pedigree of the animal, the training given to it as well as the rider, its current form and the nature of the race. Horseracing has been held judicially to be a game of skill unlike pure games of chance like roulette or a lottery., The New Encyclopaedia Britannica, 15th edition, volume 5, page 105, while defining the expression ‘gambling’, refers to horse‑racing as follows: Betting on horse‑racing or athletic contests involves the assessment of a contestant’s physical capacity and the use of other evaluative skills., Volume 6 of the Encyclopaedia, from page 68 onwards, deals with the subject of horse‑racing. Thoroughbred horses with pedigree are selected and trained for races. Horse‑racing is a systematic sport where a participant is supposed to have full knowledge about the horse, jockey, trainer, owner, turf and the composition of the race. An extract from the Encyclopaedia reads: ‘Horse‑racing, sport of running horses at speed, mainly thoroughbreds with a rider astride or Standardbreds with the horse pulling a conveyance with a driver. These two kinds of racing are called racing on the flat and harness‑racing. Some races on the flat involve jumping. Knowledge of the first horse‑race is probably lost in prehistory. Both four‑hitch chariot and mounted (bare‑back) races were held in the Olympic Games of 700‑40 BC. Organized racing presumably began in countries such as China, Persia, Arabia and other countries of the Middle East and North Africa, where horsemanship early became highly developed. From there came the Arabian, Barb and Turk horses that contributed to early European racing. Such horses became familiar to Europeans during the Crusades (11th to 13th centuries) from which they brought those horses back. Eligibility rules were developed based on the age, sex, birthplace and previous performance of horses and the qualifications of riders. Races were created in which owners were the riders (gentlemen riders); the field was restricted geographically to a township or country; and only horses that had not won more than a certain amount were entered. All horse‑racing on the flat except quarter‑horse racing involves thoroughbred horses. Thoroughbreds evolved from a mixture of Arab, Turk and Barb horses with native English stock. Private stud books existed from the early 17th century, but they were not invariably reliable. In 1791 Weatherby published “An Introduction to a General Stud Book”, the pedigrees being based on earlier racing calendars and sales papers. After a few years of revision, it was updated annually. All thoroughbreds are said to descend from three Oriental stallions (the Darley Arabian, the Godolphin Barb and the Byerly Turk, all brought to Great Britain, 1690‑1730) and from forty‑three royal mares (those imported by Charles II). The predominance of English racing and hence of the General Stud Book from 1791 provided a standard. A race‑horse achieves peak ability at age five, but the classic age of three years and the escalating size of purses, breeding fees and sale prices made for fewer races with horses beyond the age of four. Over the centuries the guiding principle for breeding thoroughbreds has been, as expressed by an old cliché: “breed the best to the best and hope for the best”. Performance of progeny is the most reliable guide to what is best for breeding purposes, but in the case of horses untried at stud, their own racing ability, pedigree and physical conformation are the only available yardsticks. Emphasis is on racing ability, especially in evaluating potential stallions.’, Horse‑racing is an organized institution. Apart from being a sport, it has become a huge public entertainment business. According to The New Encyclopaedia Britannica, the occasion of certain races is recorded as public holidays. Derby day at Epsom, where the public is admitted to two parts of the grounds at no fee, has drawn as many as 500,000 spectators. Attendance at horse‑races in many countries is among the highest of all sports. The horses that participate in the races are a class by themselves; they have a history of their own. The breed of the horse is an important factor. Experts select the horses to be inducted into the racing profession. The selected horses are given extensive training by professional trainers. Breed, upbringing, training and the past record of the race‑horses are prominently published and circulated for the benefit of prospective bettors. Jockeys are experts in horseriding and are extensively trained in various aspects of horse‑racing. They are supposed to know the horse they are riding and the turf on which the horse is to run., Judicial pronouncements on the subject are primarily of American courts. In People of Monroe [85 ALR 605], it was held that pari‑mutuel betting on the result of horse‑races did not violate a provision of the State Constitution prohibiting lotteries. The Court observed: ‘The winning horse is not determined by chance alone, but the condition, speed and endurance of the horse, aided by the skill and management of the rider or driver, enter into the result. In our opinion the pari‑mutuel system does not come within the constitutional inhibition as to lotteries. In horseracing the horses are subject to human guidance, management and urging to put forth their best efforts to win.’, The question before the Michigan Supreme Court in Edward J. Rohan v. Detroit Racing Association [166 ALR 1246, SW 2d 987] was whether Act No. 199 of the Public Acts of 1933, authorising pari‑mutuel betting on horse‑races, violated the constitutional prohibition against lotteries. The Court answered in the negative, relying on authorities such as Commonwealth v. Kentucky Jockey Club [238 Ky 739 : 38 SW 2d 987], Utah State Fair Association v. Green [(1926) 68 Utah 251 : 249 P 1016], Panas v. Texas Breeders & Racing Association Inc. [Tex Civ App 80 SW 2d 1020], State v. Thompson [160 Mo 333 : 60 SW 1077 : 54 LRA 950 : 83 American State Reports 468], Engle v. State of Arizona [(1939) 53 Ariz 458 : 90 P 2d 988], Stoddart v. Sagar [64 LJ MC 234 : (1895) 2 QB 474 : (1895‑9) All ER Rep Ext 2048] and Caminada v. Hulton [(1891) 60 LJ MC 116 : 64 LT 572]. Under these authorities it is clear that pari‑mutuel betting on a horse‑race is not a lottery. In a lottery the winner is determined by lot or chance, and a participant has no opportunity to exercise his reason, judgment, sagacity or discretion. In a horse‑race the winner is not determined by chance alone, as the condition, speed and endurance of the horse and the skill and management of the rider are factors affecting the result. The bettor has the opportunity to exercise his judgment and discretion in determining the horse on which to bet. The pari‑mutuel method or system of betting on a horse‑race does not affect or determine the result of the race; the machine is merely a convenient mechanical device for recording and tabulating information regarding the number and amount of bets, from which betting odds can be calculated. The fact that a bettor cannot determine the exact amount he may win at the time he places his bet, because odds may change during the course of betting, does not make the betting a mere game of chance, since the bettor can exercise reason, judgment and discretion in selecting the horse he thinks will win. Horse‑racing, like foot racing, boat racing, football and baseball, is a game of skill and judgment and not a game of chance., In Harless v. United States [(1843) Morris (Iowa) 169], the Court while holding that horse‑racing was not a game of chance observed: ‘The word game does not embrace all uncertain events, nor does the expression games of chance embrace all games. As generally understood, games are of two kinds, games of chance and games of skill. Besides, there are trials of strength, trials of speed and various other uncertainties which are perhaps not games at all; certainly they are not games of chance. Among this class may be ranked a horse‑race. It is as much a game for two persons to strive which can raise the heaviest weight, or live the longest under water, as it is to test the speed of two horses. It is said that a horse race is not only uncertain in its result, but is often dependent upon accident. So is almost every transaction of human life, but this does not render them games of chance. There is a wide difference between chance and accident. The one is the intervention of some unlooked‑for circumstance to prevent an expected result, the other is an uncalculated effect of mere luck. The shot discharged at random strikes its object by chance; that which is turned aside from its well‑directed aim by some unforeseen circumstance misses its mark by accident. In this case, therefore, we reasonably feel disappointed, but not in the other, for blind uncertainty is the chief element of chance. Pure chance consists in the entire absence of all the means of calculating results; accident in the unusual prevention of an effect naturally resulting from the means employed. The fleetest horse sometimes stumbles in the racecourse and leaves the victory to its more fortunate antagonist as a result of accident, but the gambler whose success depends upon the turn of the cards or the throwing of the dice trusts his fortune to chance. It is said that there are strictly few or no games of chance, but that skill enters as a very material element in most or all of them. This does not prevent them from being games of chance within the meaning of the law. There are many games the result of which depends entirely upon skill. Chance is in no wise resorted to therein. Such games are not prohibited by the statute. But there are other games in which, although they call for the exercise of much skill, there is an intermingling of chance. The result depends in a very considerable degree upon sheer hazard. These are the games against which the statute is directed, and horse‑racing is not included in that class.’, In Engle v. State [(1939) 53 Ariz 458 : 90 P 2d 988], horse‑racing was held to be a game of skill and not of chance on the following reasoning: ‘There is some conflict perhaps in the cases as to whether horse‑racing is in itself a game of chance, but we think the decided weight of authority and reason is that it is not. In any game there is a possibility that some oversight or unexpected incident may affect the result, and if these incidents are sufficient to make a game one of chance, there is no such thing as a game of skill.’ The Utah State Fair Association v. Green [(1926) 68 Utah 251 : 249 P 1016] held that a horse‑race was not a game of chance within the prohibition of a State Constitution, which provided that the legislature should not authorize any game of chance, lottery or gift enterprise, since in respect thereto the elements of judgment, learning, experience and skill predominate over the element of chance., Russell, L.J., in Earl of Ellesmere v. Wallace [(1929) 2 Ch 1 : 1929 All ER Rep Ext 751], while dealing with the question whether there was a contract by way of wagering between the jockey club and the horse‑owners, observed: ‘To the unsophisticated racing man (if such there be) I should think that nothing less like a bet can well be imagined. It is payment of entrance money to entitle an owner to compete with other owners for a prize built up in part by entrance fees, the winning of the prize to be determined not by chance but by the skill and merit of horse and jockey combined. Let us clear our minds of the betting atmosphere which surrounds all horse‑racing, and affirm a few relevant propositions. There is nothing illegal in horse‑racing; it is a lawful sport. There is nothing illegal in betting per se. There is all the difference in the world between a club sweepstakes on the result of the Derby and a sweepstakes horse‑race as defined in the Rules of Racing. In each, no doubt, the winner is ascertained by the result of an uncertain event, but in the case of the former the winner is ascertained by chance, i.e., the luck of the draw, not the result of the race (for the result is the same whether the draw is made before or after the race); in the case of the latter the winner is ascertained not by chance but by merit of performance. The former is a lottery; the latter is not.’, We have no hesitation in reaching the conclusion that horse‑racing is a sport which primarily depends on the special ability acquired by training. It is the speed and stamina of the horse, acquired by training, which matters. Jockeys are experts in the art of riding. Between two equally fast horses, a better trained jockey can touch the winning post., In view of the discussion and the authorities referred to by us, we hold that horse‑racing is a game where the winning depends substantially and preponderantly on skill., Mister Ashok Desai, learned counsel for the State of Tamil Nadu, contended that handicap horse‑races introduce an element of chance and therefore horse‑racing is not a game of skill. We do not agree. It is correct that in a handicap race the competitors are given advantages or disadvantages of weight, distance, time etc. in an attempt to equalise their chances of winning, but that is not the classic concept of horse‑racing, according to which the best horse should win. The very concept of a handicap race shows that there is no element of chance in regular horse‑racing. It is a game of skill. Even in a handicap race, despite the assignment of imposts, skill dominates. An occasional handicap race in a race‑club cannot change the natural horse‑racing from a game of skill to a game of chance., The expression ‘gaming’ in the two Acts has to be interpreted in the light of the law laid down by Supreme Court of India in the two Chamarbaugwala cases, wherein it has been authoritatively held that a competition which substantially depends on skill is not gambling. Gaming is the act or practice of gambling on a game of chance; it is staking on chance where chance is the controlling factor. Gaming in the two Acts would therefore mean wagering or betting on games of chance. It would not include games of skill like horse‑racing. Section 49 of the Police Act and Section 11 of the Gaming Act specifically save games of mere skill from the penal provisions of the two Acts. We therefore hold that wagering or betting on horse‑racing, a game of skill, does not come within the definition of gaming under the two Acts., Mister Parasaran relied on the judgment of the House of Lords in Attorney General v. Luncheon and Sports Club Ltd. [1929 AC 400 : 1929 All ER Rep Ext 780] and the judgment of the Court of Appeal in Tote Investors Ltd. v. Smoker [(1967) 3 All ER 242 : (1967) 3 WLR 1239 : (1968) 1 QB 509], in support of the contention that, apart from Section 49 of the Police Act and Section 11 of the Gaming Act, there is no wagering or betting by a punter with the Club. According to him, a punter bets or wagers with the totalizator or the bookmaker and not with the Club. It is not necessary for us to go into this question. Even if there is wagering or betting with the Club, it is on a game of mere skill and therefore would not be gaming under the two Acts., The next question considered is Section 49‑A of the Police Act and Section 4 of the Gaming Act, which were introduced by the 1955 Act by substituting the original sections. These provisions have been operating since 1955. Gaming as defined in the two Acts, prior to 31‑3‑1975, did not include wagering or betting on a horse‑race when such wagering or betting took place (i) on the date on which the race was to be run; and (ii) in a place or places within the race enclosure which the authority controlling such race had, with the sanction of the State Government, set apart for the purpose. The position that emerges is that during the period from 1955 till 31‑3‑1975 horse‑racing was not prohibited under the two Acts, despite the fact that Section 49‑A of the Police Act and Section 4 of the Gaming Act were also operating. If we accept the contention of the learned counsel for the respondents that Section 49‑A of the Police Act and Section 4 of the Gaming Act prohibit the holding of the horse‑races, then two contradictory provisions had been operating in the two Acts from 1955 till 1975. One set of provisions would have prohibited the horse‑races by making it an offence and the other set would have permitted the horse‑races. The legislature could never have intended such a situation. The only reasonable interpretation is that the two sets of provisions apply to different situations. Section 49‑A of the Police Act and Section 4 of the Gaming Act do not apply to wagering or betting in the Club premises and on the horse‑races conducted within the enclosure of the Club. These sections are applicable to bucket‑shops run in city streets or bazaars purely for gambling purposes., It is obvious that the 1955 Act was brought to control gambling in public streets and motor vehicles. It is further clear from the Objects and Reasons that the Act did not intend to stop horse‑racing, because even the prohibition on publications relating to horse‑racing was sought to be omitted under the Act., We may examine the question from another angle. We have held horse‑racing to be a game of skill and, as such, protected under Section 49 of the Police Act and Section 11 of the Gaming Act. Horse‑racing is not a game of chance and therefore is not gambling. Consequently, horse‑racing conducted at the racecourse of the Club is not gaming under the two Acts and cannot be made penal. We therefore hold that Section 49‑A of the Police Act and Section 4 of the Gaming Act are not applicable to wagering or betting on a horse‑race when such wagering or betting takes place within the Club premises and on the date on which the race is actually run on the turf of the Club. These sections are applicable to bucket‑shops or any house, houseroom, tent, enclosure, vehicle, etc., which are run in the streets, bazaars or any other place away from the Club., We allow the writ petitions and the civil appeal. The impugned judgment of the Madras High Court is set aside. We hold and declare that horse‑racing is a game of mere skill within the meaning of Section 49 of the Police Act and Section 11 of the Gaming Act. Horse‑racing is neither gaming nor gambling as defined and envisaged under the two Acts read with the 1974 Act, and the penal provisions of these Acts are not applicable to horse‑racing, which is a game of skill. The 1986 Act is ultra vires Article 14 of the Constitution and is struck down. The Madras Race Club was a registered company involved in horse racing. The Tamil Nadu Horse Races (Abolition and Wagering or Betting) Act, 1974 abolished horse racing in Tamil Nadu. Aggrieved by the enactment of this legislation, the petitioners contended that horse riding is a universally recognised sport. It involves a special skill to win a match which is not based on betting or gambling. It depends upon the pedigree of the horse, the ability of the horse and the rider, the nature of the race, its current form etc. Of the amount collected, 75 % goes to the winner as prize money, 20 % is paid as tax to the State government and only 5 % goes to the Club as commission. The petitioners relied upon the Satyanarayana case, where the Apex Court declared that the game of rummy required a special skill and cannot be called gambling or betting. They also placed reliance upon RMDC‑1 and RMDC‑2, wherein the Apex Court held that a business or trade will not be gambling or betting and will be provided protection under Article 19(1)(g), provided it involves predominantly and substantially skill without which its performance would be impossible., The State contended that horse riding is a form of betting which involves a skill neither from the horse nor from the rider but from the bettor who has to keep a keen check over the horses to determine their capability by observing various matches, which is a pure skill that any bettor should possess. Further, the State legislature reserves its authority under Entry 34 of List II of the Seventh Schedule of the Constitution to enact the 1974 Act., The Apex Court concluded that for a game or sport not to be considered as betting or gambling and to enjoy protection under Article 19(1)(g), it must have a substantial degree of skill which makes it unique. It held that horse riding is one such sport which involves special skills of the horse as well as the rider and consequently, since horse riding was not betting or gambling, declared the impugned Act unconstitutional, as horse riding, which involves substantial skill, was rightfully given protection under Article 19(1)(g)., In Lakshmanan’s case, the Honorable Supreme Court of India clearly notes that the term ‘gaming’ can only be interpreted in light of the law laid down in RMDC‑1, RMDC‑2 and Satyanarayana, i.e., competition or game which substantially or preponderantly depends on skill is not gambling. The Court has held that gaming is the act or practice of gambling on a game of chance; it is staking on chance where chance is the controlling factor. Accordingly, the Court concludes that even if there is wagering or betting with the Club, it is on a game of mere skill and therefore would not be gaming under the two Acts.
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Hence, the ratio that emerges is that wager or betting on a game of skill does not amount to gambling. The contention of the Respondents that an exception on wagering or betting on horse racing is carved out in specific circumstances, and therefore wagering or betting otherwise is not permitted is specifically answered in the negative in paragraph 35 of Lakshmanan's case, where the Honourable Supreme Court of India has held that these sections in question are applicable to bucket‑shops in the city streets or bazaars, purely for gambling purposes (in other words, where it cannot be said to be a game of skill). It is also pertinent to note that the Honourable Supreme Court, in paragraph 26, has noticed with approval the judgment of the Michigan Supreme Court in Edward J. Rohan vs. Detroit Racing Association, 166 ALR 1246 SW 2d 987, where the Michigan Supreme Court has held that pari‑mutuel betting on a horse race is not a lottery (or in other words, not gambling)., The decision in the K.R. Lakshmanan's case (supra) was strongly relied upon by the Respondents to suggest that staking of money on horse racing (a game of skill) amounts to betting and gambling. However, it was specifically exempt under the definition of gaming under the Police Act and the Gaming Act. The Respondents submit that but for such exemption, staking of money on horse racing would have been covered within the definition of gaming; and once it is within the ambit of the term gaming, it amounts to betting and gambling. In that case, under the Police Act and the Gaming Act, the term gaming excluded wagering or betting on a horse race when such wagering or betting takes place (i) on the date on which such race is to be run; and (ii) in a place or places within the race enclosure which the authority controlling such race has, with the sanction of the State Government, set apart for the purpose., Section 49 of the Police Act and Section 11 of the Gaming Act specifically provide that the provisions of those Acts do not apply to games of mere skill wherever played. The exclusion of horse racing from the definition of gaming was omitted by the Tamil Nadu Horse Races (Abolition and Wagering or Betting) Act, 1974. This 1974 Act was challenged before the Madras High Court on the ground that staking of money on horse racing is not gambling and the State legislature has no competence to enact the 1974 Act under Entry 34 of List II which enumerates betting and gambling. It was also challenged on the ground that horse racing being a game of substantial skill, the provisions of the Police Act and the Gaming Act, even as amended by the 1974 Act, are not applicable to horse racing. Both contentions were rejected by the Madras High Court. The Supreme Court of India, hearing an appeal from the judgment of the Madras High Court, held that where success depends on a substantial degree of skill, the activity is not gambling and that despite an element of chance, if a game is preponderantly a game of skill, it shall be a game of mere skill. The Apex Court held that the expression 'mere skill' would mean substantial degree or preponderance of skill., The Apex Court held that horse racing is a game of skill in the following words: \We have no hesitation in reaching the conclusion that horse racing is a sport which primarily depends on the special ability acquired by training. It is the speed and stamina of the horse, acquired by training, which matters. Jockeys are experts in the art of riding. Between two equally fast horses, a better trained jockey can touch the winning post. In view of the discussion and the authorities referred to by us, we hold that horse racing is a game where the winning depends substantially and preponderantly on skill.\, The Apex Court further held that gaming is the act or practice of gambling on a game of chance and that gaming is staking on chance, where chance is the controlling factor. Gaming, under the Police Act and the Gaming Act, therefore means wagering or betting on games of chance and does not include staking on games of skill, i.e., horse racing. The term 'chance' in this context must be applied with reference to a game of chance only; it is not chance in the sense that the outcome is uncertain and therefore subject to chance. Merely because the term wagering or betting is used in connection with horse racing does not indicate that staking on horse racing, a game of skill, amounts to betting and gambling. The relevant extract of the decision is as follows: \The expression ‘gaming’ in the two Acts has to be interpreted in the light of the law laid down by this Court in the two Chamarbaugwala cases, wherein it has been authoritatively held that a competition which substantially depends on skill is not gambling. Gaming is the act or practice of gambling on a game of chance. It is staking on chance where chance is the controlling factor. ‘Gaming’ in the two Acts would, therefore, mean wagering or betting on games of chance. It would not include games of skill like horse racing. In any case, Section 49 of the Police Act and Section 11 of the Gaming Act specifically save the games of mere skill from the penal provisions of the two Acts. We, therefore, hold that wagering or betting on horse racing – a game of skill – does not come within the definition of ‘gaming’ under the two Acts.\, The activity of horse racing is a game of skill and staking on horse racing has been held not to be gambling. The Respondents, however, seek to infer a second game, i.e., predicting the winner of a horse race for stakes, by suggesting that the decision implies so. As per the Respondents, predicting or forecasting the winner of the horse race for stakes, which they submit is an uncertain event and chance‑based, amounts to betting, and but for the exemption under Section 49 of the Police Act and Section 11 of the Gaming Act, the activity would amount to gambling. The decision does not mention or imply a second game, and no such inference can be drawn. Even if such a second game of predicting or forecasting were inferred and regarded as gambling, the game of rummy cannot be equated with it. Rummy is not a game where the outcome is predicted or forecasted; it is a game being played where success and the outcome are substantially and preponderantly dependent on the exercise of skill of the player., The submission fails in view of the findings of the Court in paragraph 33, wherein it was held that as a game of skill, horse racing is exempt from the definition of gaming itself, because gaming is the act or practice of gambling on a game of chance and gaming is staking on chance where chance is the controlling factor. Since horse racing was held to be outside the purview of gaming, the exemptions under Section 49 of the Police Act and Section 11 of the Gaming Act are not relevant. In other words, staking on horse racing is not protected because of the exemptions under those sections, but because it does not amount to gaming in the first place. If it is not gaming under the said Acts, it does not amount to betting and gambling. Consequently, playing any game of skill for stakes or otherwise cannot attract the provisions of those Acts., Head Digital Works case, Kerala High Court: The High Court of Kerala concluded that playing for stakes or playing not for stakes can never be a criterion to determine whether a game is a game of skill. Online rummy, played with or without stakes, remains a game of skill. The Court held that since the game does not come within the meaning of gambling or gaming, providing a platform for playing the game, which is in the nature of a business, cannot be curtailed., Junglee Games case, Madras High Court: The Madras High Court held that gambling and gaming have attained secondary meanings in judicial parlance and that the principle of nomen juris cannot be shrugged off to understand such words to mean anything other than how they have been judicially interpreted. Irrespective of dictionary meanings, gambling is equated with gaming and the activity involves chance to such a predominant extent that the element of skill, if present, cannot control the outcome. The Court also held that a game of skill may not necessarily be an activity where skill must always prevail; it suffices that ordinarily the exercise of skill can control the chance element such that the better skilled would prevail often. Every future event, game or similar activity depends on an element of chance which can never be eliminated. The Court observed that both rummy and poker are games of skill as they involve considerable memory, calculation of percentages, the ability to follow the cards on the table and constantly adjust to the changing possibilities of the unseen cards. Although poker had not been recognised in previous Indian judgments as a game of skill, the Law Commission in its 276th Report accepted poker as a game of skill., All India Gaming Federation case, Karnataka High Court: The Karnataka Government amended the Karnataka Police Act, 1963 vide Karnataka Police (Amendment) Act, 2021 (Act No. 28 of 2021) and thereby banned and prohibited the operations of online gaming with stakes in the State. The amendment was challenged, and the Honourable Division Bench of the Karnataka High Court, by order dated 14 February 2022, declared the subject provisions of the Amendment Act ultra vires the Constitution and struck them down., The challenge to the Amendment Act is based on (i) lack of legislative competence since the Amendment Act does not fit into Entry 34, List II, Schedule VII of the Constitution of India; (ii) violation of the fundamental right to profession/business guaranteed under Article 19(1)(g) read with Article 301; (iii) manifest arbitrariness, as the Amendment Act fails to recognize the normative difference between a game of skill and a game of chance, thereby grossly derogating the Chamarbaugwala jurisprudence of more than six decades; and (iv) excessive paternalism and populism, imposing a blanket ban on online games of skill, which is constitutionally unsustainable., The State derives legislative power under Article 246 read with Entries 1, 2, 6 and 34 of the State List as widely interpreted by the Supreme Court of India. The Amendment Act introduces clarificatory provisions that the provisions relating to gaming apply to online gaming and platforms, makes the offences cognizable and non‑bailable, and imposes stringent punishments. However, persons who merely play a game of chance or a game of skill without risking cash or kind do not fall within the net of penal provisions., Acclaimed jurist H.M. Seervai, in his magnum opus 'Constitutional Law of India' Volume III, Fourth Edition, at paragraph 22.262, writes: \If the decisions of the U.S. Supreme Court, Supreme Court of Australia or Canada, or the decision of the Privy Council can be referred to for showing the evils of gambling, there is no reason why references should not be made to Hindu law and Hindu religious books, or to Mohammedan law, to show that gambling had been condemned in India from ancient times.\, Historical texts show that gambling has been condemned in Indian tradition. The Rig Veda (10.34) contains a cautionary hymn titled 'The Gambler's Lament' describing the ruin of a gambler and his family. The Mahabharata narrates how King Yudhishthira gambles away his kingdom, brothers, wife Draupadi and himself. Various Smritis such as Yajnavalkya Smriti, Kautilya's Arthashastra, Manusmriti and Kautilya treat gambling as a vice and prescribe severe punishment. Tamil literature, such as Thiruvalluvar's Tirukkural, also condemns gambling., During the Constituent Assembly debates on Entry 34 of the State List (originally Entry 45 in the Draft Constitution), members Shibban Lal Saksena and Lakshminarayan Sahu suggested omitting the entry, mistakenly believing its removal would eliminate betting and gambling. Dr. B.R. Ambedkar responded that omission would leave the country without any control over betting and gambling, and that the entry is essential for the State to regulate the vice., The petitioners argue that the Karnataka Amendment Act lacks legislative competence because Entry 34 of the State List employs the term 'Betting and gambling', which has acquired constitutional significance as interpreted by the Supreme Court of India in the Chamarbaugwala cases. The respondents contend that the State's legislative competence extends beyond Entry 34, citing Entries 1 (Public Order), 2 (Police), 6 (Public Health and Sanitation) and 26 (Trade and Commerce). They assert that the Amendment Act is a ragbag legislation that misuses constitutional concepts.
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Supreme Court of India was treating the question, whether it was constitutionally permissible for section 2(d) of the Prize Competition Act, 1955, which defined Prize Competition to take within its embrace not only the competitions in which success depended on chance but also those wherein success depended to a substantial extent on the skill of the player. What is observed in Chamarbaugwala I becomes further clear by the following observations in this case: If the question whether the Act applies also to prize competitions in which success depends to a substantial degree on skill is to be answered solely on a literal construction of section 2(d), it will be difficult to resist the contention of the petitioners that it does. The definition of prize competition in section 2(d) is wide and unqualified in its terms. There is nothing in the working of it which limits it to competitions in which success does not depend to any substantial extent on skill but on chance. Competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend form two distinct and separate categories. The distinction between the two classes of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the Courts have, time and again, pointed out the characteristic features which differentiate them. And if we now ask ourselves the question, would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. The conclusion is therefore inescapable that the impugned provisions, assuming that they apply by virtue of the definition in section 2(d) to all kinds of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill., The Court was examining as to whether rummy was a game of chance or a game of skill. The Court observed, consistent with earlier decisions, the following: The game of rummy is not a game entirely of chance like the three‑card game mentioned in the Madras case. The three‑card game, which goes under different names such as flush, brag, etc., is a game of pure chance. Rummy, on the other hand, requires a certain amount of skill because the fall of the cards has to be memorised and the building up of rummy requires considerable skill in holding and discarding cards. Therefore, rummy is mainly and preponderantly a game of skill. The chance in rummy is of the same character as the chance in a deal at a game of bridge. In all games in which cards are shuffled and dealt out, there is an element of chance because the distribution of the cards is not according to any set pattern but depends on how the cards find their place in the shuffled pack. From this alone it cannot be said that rummy is a game of chance with no skill involved., In K.R. Lakshmanan, a three‑judge bench of the Supreme Court of India examined the vires of amendments to the Madras City Police Act, 1888 and the Madras Gaming Act, 1940 whereby the exception carved out for wagering on horse‑racing from the definition of gaming was deleted, much like the effect of the Amendment Act herein which widens the definition of gaming to include wagering on games of skill that hitherto enjoyed constitutional protection. Having considered K. Satyanarayana and some notable decisions of foreign jurisdictions, the Court succinctly stated the difference between a game of chance and a game of skill as follows:, The new Encyclopedia Britannica defines gambling as \the betting or staking of something of value, with consciousness of risk and hope of gain on the outcome of a game, a contest, or an uncertain event the result of which may be determined by chance or accident or have an unexpected result by reason of the bettor’s miscalculations\. According to Black’s Law Dictionary (Sixth Edition) gambling involves not only chance but a hope of gaining something beyond the amount played. Gambling consists of consideration, an element of chance and a reward. Gambling in a nutshell is payment of a price for a chance to win a prize. Games may be of chance, of skill, or of skill and chance combined. A game of chance is determined entirely or in part by lot or mere luck. The throw of the dice, the turning of the wheel, the shuffling of the cards are all modes of chance. In these games the result is wholly uncertain and doubtful. No human mind knows or can know what it will be until the dice is thrown, the wheel stops its revolution or the dealer has dealt the cards. A game of skill, on the other hand, although the element of chance necessarily cannot be entirely eliminated, is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player., The expression ‘gaming’ in the two Acts has to be interpreted in the light of the law laid down by the Supreme Court of India in the two Chamarbaugwala cases, wherein it has been authoritatively held that a competition which substantially depends on skill is not gambling. Gaming is the act or practice of gambling on a game of chance. It is staking on chance where chance is the controlling factor. ‘Gaming’ in the two Acts would, therefore, mean wagering or betting on games of chance. It would not include games of skill like horse‑racing. We therefore hold that wagering or betting on horse‑racing – a game of skill – does not come within the definition of ‘gaming’ under the two Acts. Even if there is wagering or betting with the Club, it is on a game of mere skill and as such it would not be gaming under the two Acts., The Punjab and Haryana High Court in Varun Gumber held that fantasy games predominantly involve skill and therefore do not fall within gambling activities and that the said games are protected under Article 19(1)(g) of the Constitution. The matter went to the Supreme Court of India in SLP No. 026642/2017 and was dismissed. A Division Bench of the Bombay High Court was considering, in public interest litigation jurisdiction, whether playing fantasy games by virtual teams amounted to gambling. The Court answered the question in the negative, specifically recording a finding that the success in Dream11 fantasy sports depends upon users’ exercise of skill based on superior knowledge, judgment and attention, and that the result of the game was not dependent on the winning or losing of the particular team in the real‑world game on any particular day. The Court said, \It is undoubtedly a game of skill and not a game of chance.\ The matter was carried upward to the Supreme Court of India in SLP (Criminal) No. 43346/2019 which was dismissed on 13 December 2019., A Division Bench of the Karnataka High Court extensively discussed the two Chamarbaugwala decisions and K.R. Lakshmanan, and invalidated Act 1 of 2021 which had amended the Tamil Nadu Gaming Act, 1930, as being ultra vires the Constitution. The observations at paragraph 125 of the judgment are reproduced: Betting and gambling in Entry 34 of the State List has to be seen where betting cannot be divorced from gambling and treated as an additional field for the State to legislate on, apart from the betting involved in gambling. Since gambling is judicially defined, the betting that the State can legislate on has to be the betting pertaining to gambling; ergo, betting only on games of chance. The judgments in the two Chamarbaugwala cases and in K.R. Lakshmanan also instruct that the concept of betting in the Entry cannot cover games of skill., Following the Supreme Court of India rulings and the above Madras decision, a learned single judge of the Kerala High Court in Head Digital Kerala quashed a statutory notification issued under Section 14A of the Kerala Gaming Act, 1960 which had proscribed online rummy played for stakes. The Court observed at paragraph 36: \Playing for stakes or playing not for stakes can never be a criterion to find out whether a game is a game of skill. The game of online rummy will also have to be held to be a game of skill.\, A Division Bench of the Rajasthan High Court, in public interest litigation jurisdiction, examined whether online fantasy sports/games offered on the Dream11 platform amounted to gambling or betting. Having considered K.R. Lakshmanan, the question was answered in the negative and the writ petition was dismissed with costs. The Court also discussed its decision in Rajasthan which had already considered the issue. The challenge to that decision was repelled by the Supreme Court of India on 30 July 2021. The Court referred to the decision of the New York Supreme Court in White v. Cuomo, which had taken the view that games of the kind were games of chance. This should be a complete answer to the learned Advocate General who heavily relied upon the decision of a US Court in support of his contention., Note: The collective ratio unmistakably emerging from all the decisions mentioned in paragraphs IX and X above, put succinctly, is: A game of chance and a game of skill, although not poles asunder, are two distinct legal concepts of constitutional significance. The distinction lies in the amount of skill involved in the games. There may not be a game of chance which does not involve a scintilla of skill and similarly there is no game of skill which does not involve some elements of chance. Whether a game is a ‘game of chance’ or a ‘game of skill’ is to be adjudged by applying the Predominance Test: a game involving a substantial degree of skill is not a game of chance but only a game of skill and it does not cease to be one even when played with stakes. Conversely, a game not involving a substantial degree of skill is only a game of chance and therefore falls within the scope of Entry 34 in the State List., The vehement contention of the learned Advocate General that gaming includes both a ‘game of chance’ and a ‘game of skill’, and sometimes also a combination of both, is not supported by his reliance on M.J. Sivani v. State, which recognises a functional difference between actual games and virtual games. That case was decided on the basis of a wider interpretation of the definition of ‘gaming’ in the context of legislation enacted to regulate the running of video parlours and not to ban video games; the Supreme Court of India treated certain video games as falling within the class of ‘games of chance’ and not ‘games of skill’. However, such a conclusion was arrived at because of the manipulation potential of machines demonstrated by a committee of senior police officers; the report specifically stated tampering of video game machines to eliminate the chance of winning. This decision cannot be construed as repugnant to Chamarbaugwala jurisprudence as explained in K.R. Lakshmanan. We are of the considered view that games of skill do not metamorphose into games of chance merely because they are played online, ceteris paribus. Thus, Sivani is not the best vehicle for drawing a distinction between actual games and virtual games., What heavily weighed with the Court in the said decision was the adverse police report. It is pertinent to recall Lord Halsbury’s observation in Quinn v. Leatham that a case is only authority for what it actually decides in a given fact matrix and not for a proposition that may seem to flow logically from what is decided. The Apex Court while considering found it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of hard‑earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home, could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject matter of a fundamental right guaranteed by Article 19(1)(g). It also reproduced the observation of the United States Supreme Court that there is no constitutional right to gambling. In view of the settled position of law, it hardly needs to be stated that gambling, i.e., games of chance, do not enjoy any constitutional protection since they are mala in se. It is open to the legislature to absolutely prohibit them as is done to trades in noxious or dangerous goods or trafficking in women. However, games of skill by their very nature stand on a different footing., Learned Advocate General appearing for the State contends that games of chance being res extra commercium, games of skill fall within the field of ‘Trade and commerce’ under Entry 26 of the State List. The fundamental right inter alia of trade and business is guaranteed under Article 19(1)(g) and therefore, the same is subject to reasonable restrictions imposed under Article 19(6). A reasonable restriction may also include an absolute embargo. Regard being had to enormous adverse implications of online gaming on society in general and the younger generation in particular, the Amendment Act criminalises cyber games. In support of his contention, he relies on Sivani, drawing attention to a spate of suicides in the State, a plethora of criminal cases registered by the police and debates in the Legislative Assembly that culminated in the Amendment Act. He contends that the policy of proscribing cyber games is a matter left to legislative wisdom and the writ Court should loathe to interfere., Learned advocates appearing for the petitioners do not dispute that the State has power to regulate business activities as provided under Article 19(6). They contend that, as held by the Supreme Court of India, the onus lies on the State to demonstrate the reasonableness of restrictions and that where the restriction amounts to an absolute embargo, this onus is of India. They draw attention to the observations of the Madras High Court in Junglee Games, to the effect that the State has not adopted the ‘least intrusive approach test’ and therefore, the Amendment Act should be voided. They also invoke the doctrine of proportionality for the invalidation of the impugned legislative measure., The online gaming activities, whether played with stake or not, do not fall within the ambit of Entry 34 of the State List, i.e., ‘Betting and gambling’, if they predominantly involve skill, judgment or knowledge. They partake the character of business activities and therefore have protection under Article 19(1)(g). Apparently, games of skill played online or offline with or without stakes are susceptible to reasonable restrictions under Article 19(6). The Amendment Act brings in a blanket prohibition with regard to playing games of skill. The version and counter‑version as to the nature and reasonableness of the restrictions need to be examined in the light of norms laid down by the Supreme Court of India., The Amendment Act puts games of skill and games of chance on par, when they are poles asunder, in light of prevailing jurisprudence. Games of skill, in addition to being a type of expression, are entitled to protection under Article 19(1)(g) by virtue of their recognition as business. There are competing interests of State and the individual, which need to be balanced by employing known principles such as the doctrine of proportionality, least restrictive test and the like. A line has to be drawn to mark the boundary between the appropriate field of individual liberty and State action for the larger good ensuring the least sacrifice from the competing claimants. As already mentioned, the Amendment Act puts an absolute embargo on games of skill involving money or stakes. The learned Advocate General contended that the State was not in a position to apply the least restrictive test and that the prohibition being the objective of the Amendment Act, there is no scope for invoking the said test at all. This amounts to throwing the baby out with the bath water., In a progressive society like ours, imposing an absolute embargo, by any yardstick, appears to be an excessive restriction. In such cases, a heavy burden rests on the State to justify such an extreme measure, as rightly contended by the petitioners. There is no material placed on record to demonstrate that the State, whilst enacting such an extreme measure, has considered the feasibility of regulating wagering on games of skill. If the objective is to curb the menace of gambling, the State should prohibit activities which amount to gambling as such and not the games of skill which are distinct in content and purpose. The State action suffers from the vice of paternalism since there is excessive restriction on citizens’ freedom of contract. However, the ground of legislative populism does not avail against the plenary power of legislation. It has long been settled that the motive of the legislature in passing a legislation is beyond the scrutiny of courts, vide a five‑judge bench decision of the Supreme Court of India., A mere likelihood or propensity of misuse of online gaming platforms, without anything more, does not constitute a legal justification for banning commercial activities. Article 300A has been expansively construed to include intangible property like intellectual property which is a product of original thought and skill, i.e., creation of the mind, and essentially used in commerce. An activity predominantly involving skill cannot be readily banned at a stroke of legislative pen. In any organised society, knowledge, wisdom, talent and skill are invaluable tools for wealth generation. They are the essential ingredients of economic rights such as rights to profession, property, etc. Our Constitution, modelled on the principle of limited government, normally frowns upon measures which stultify and negate these invaluables, whether acquired by man or gifted by his Maker. On the contrary, the State in the larger public interest has to create an atmosphere which nurtures them. History shows that economies that failed to do so suffered., An absolute embargo on business activities runs the risk of invalidation unless the State produces relevant material for the ouster of the ‘least restrictive test’. This test is normally employed as a litmus test in judicial review of State action in all civilized jurisdictions., The Tamil Nadu Gaming and Police Laws (Amendment) Act 2021, which was challenged before the Madras High Court, is substantially similar in its text, context, object and effect to the Amendment Act herein. They have been structured with the same jurisprudential concepts. The Madras High Court in Junglee Games observed that the amended statute prohibited all forms of games being conducted in cyberspace, irrespective of whether the game involved mere skill, if such game is played for a wager, bet, money or other stake. The main features of the Amending Act were to enlarge the inclusive definition of the word ‘gaming’ by introducing Section 3‑A to prohibit wagering or betting in cyberspace, and to replace the substance of Section 11, which originally exempted games of mere skill, by including games of mere skill within the fold of offences under the statute if such games are played for wager, bet, money or other stake., Learned Advocate General appearing for the State, in his style, contended that the provisions of an organic Constitution like ours have to be construed keeping in view contemporary socio‑economic developments and the new challenges associated with them. There has been a paradigm shift in societal activities owing to advancement of science and technology. New implications and difficulties are cropping up, justifying innovative ventures by the State to manage them. A greater leverage needs to be conceded to the State in devising appropriate measures for curbing the menace of online gaming. He passionately submitted that what was true of matters decided in the Chamarbaugwala cases needs to be examined afresh. In support of this, he cited the decision in Sivani, contending that the absolute embargo on video games has been upheld by the Supreme Court of India, despite..., However, the submission of the learned Advocate General overlooks one important factor: Chamarbaugwala cases were decided decades ago, but that jurisprudence has been validated time and again by the Supreme Court of India in K.R. Lakshmanan (1996) and other subsequent cases. Thus it is not that the Chamarbaugwala decisions are being revisited for the first time now. In the recent past, several High Courts have followed the same after critical examination, viz., Varun Gumber (P&H (Kerala‑2021)), etc. Some of these cases went to the Supreme Court of India and were affirmed, the latest being Avinash Mehrotra decided on 30 July 2021. All this is already discussed in paragraphs IX and X above. We need not refer to Sivani again as it is already discussed in detail. The public interest litigation does not rescue the respondents since the prayer therein is related to banning all online gambling as such. Apparently, the petitioners’ case is not one of gambling; their business does not involve any act determined by the wheel of fortune., Learned advocates appearing for the petitioners are justified in complaining that the Amendment Act is violative of Article 14 of the Constitution insofar as it does not recognise the long‑standing jurisprudential difference between a ‘game of skill’ and a ‘game of chance’ which animates the scheme of the Principal Act, even post‑amendment. Consequently, in the eye of the Amendment Act, persons who play games of chance and persons who play games of skill (in terms of the predominance test) are unjustifiably made to constitute one homogeneous class. Our Constitution does not permit things which are different in fact or opinion to be treated in law as though they were the same., The amended definition of ‘gaming’ excludes, in so many words, ‘a lottery or wagering or betting on horse‑race run on any race course’. The Supreme Court of India in K.R. Lakshmanan held that horse‑racing is a ‘game of mere skill’ and therefore it is neither gaming nor gambling. If the legislative policy is to protect games of skill from being treated as proscribed, the Amendment Act, being unjustifiably selective, suffers from a grave constitutional infirmity. It offends the clause of equal protection of the laws enacted in Article 14, since protection is unreasonably sectarian. The equal protection clause would be diluted into a mild constitutional injunction that the State shall treat as equal in law only the horse‑racers who are equal in fact with other players of games of skill. For saving such blatant discrimination, the respondents have failed to establish the reasonable basis on which such a classification is founded and the rational nexus between the differentia and the object sought to be achieved by such a classification., Learned Advocate General pressed into service the decision in Shreya Singhal to justify classification between ‘actual games’ and ‘virtual games’ and that the Amendment Act, which would focus on the latter, would not suffer any infirmity on the touchstone of the equality clause. He contends that there is an intelligible differentia between online media and offline media as recognised by the Supreme Court of India and therefore, the legislature has chosen to proscribe online games since they are injurious to public interest. It is true that the Supreme Court treated online media as different from offline. However, such differential treatment was in the context of distinction between dissemination of information via traditional media and via online media. While there are multiple layers of prior editorial control in traditional media, such layers may not exist in online media, where information ‘travels like lightning’. It hardly needs to be stated that the cases at hand are not about unregulated information travelling at the speed of lightning. We are at loss to see how the observations made in that decision would advance the case of respondents, when its contextual substratum is miles away from that of these petitions., The expression ‘pure game of skill’ as employed in legislation, i.e., Section 176 of the Principal Act, has been judicially construed to be ‘mere skill’ and that games mainly and preponderantly involving skill fall into this class. The expanded meaning of ‘gaming’ under Section 2(7) as amended pervades the entirety of the Amendment Act, which paints ‘games of skill’ and ‘games of chance’ with the same brush. However, Section 176 of the Principal Act, even post‑amendment, continues to maintain the distinction between these two classes of games. The original heading of this section ‘Saving of games of skill’ now also continues. In English parliamentary practice, headings and marginal notes are not voted or passed by Parliament, but are inserted after the Bill has become law (Maxwell on Interpretation of Statutes, 12th Ed., Butterworths, p. 11). In India, headings are part of the Bill and are voted in the legislature. They provide context for the substantive part of the section and cannot be ignored. The substantive text of Section 176 makes the penal provisions enacted in Sections 79 and 80 inapplicable to ‘any pure game of skill i.e., a game predominantly involving skill’. However, the Amendment Act deletes the term ‘and to wagering by person taking part in such games of skill’ from the text of this section. Thus the amended definition of ‘gaming’ under Section 2(7), to the extent it does not admit the difference between skill games and chance games, is in direct contradiction to the amended Section 176 which intends to maintain such a difference. The very definition of ‘gaming’ as amended suffers from the vice of over‑inclusiveness of the idea of gaming as enacted in the charging provisions of the Act., The rule of law is recognised by the Supreme Court of India as a ‘basic feature’ of our Constitution and suffers from infirmity insofar as Section 2(7), which encompasses all games regardless of skill involved, renders the charging provisions enacted in Section 176 read with Sections 79 and 80 of the Principal Act so vague that the man of common intelligence will not be in a position to guess its true meaning and scope of application and therefore is liable to be voided., The above view gains support from the following observations of the Madras High Court in Junglee Games: \It is true that, broadly speaking, games and sporting activities in the physical form cannot be equated with games conducted in the virtual mode or in cyberspace. However, when it comes to card games or board games such as chess or scrabble, there is no distinction between the skill involved in the physical form of the activity or in the virtual form.\
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It is true that Arnold Palmer or Severiano Ballesteros may never have mastered how golf is played on the computer, and Messi or Ronaldo may be outplayed by a team of infants in a virtual game of football, but Viswanathan Anand or Omar Sharif would not be so disadvantaged when playing their chosen games of skill on the virtual mode. Such distinction is completely lost in the Amending Act as the original scheme in the Act of 1930 of confining gaming to games of chance has been turned upside down and all games are outlawed if played for a stake or for any prize. In the above circumstances, these writ petitions succeed: the provisions of Sections 2, 3, 6, 8 and 9 of the Karnataka Police (Amendment) Act 2021, i.e., Karnataka Act No. 28 of 2021, are declared to be ultra vires the Constitution of India in their entirety and accordingly are struck down; the consequences of striking down the subject provisions shall follow, but nothing in this judgment shall be construed to prevent appropriate legislation concerning betting and gambling in accordance with the provisions of the Constitution; a writ of mandamus is issued restraining the respondents from interfering with the online gaming business and allied activities of the petitioners. No order as to costs., A careful perusal of the ratio laid down by the Supreme Court of India in the All India Gaming Federation case, bearing in mind the well‑settled principles pertaining to ratio decidendi and the inversion test as held in the Career Institutes case, indicates that the judgment of the Division Bench of the Supreme Court of India is neither per incuriam nor sub silentio as contended by the respondents. The fact that a specific paragraph in a precedent has not been excerpted does not mean that the precedent has not been considered in its entirety. By that logic, if the entirety of a precedent judgment is not excerpted in a subsequent judgment, the subsequent judgment does not become automatically sub silentio or per incuriam, which would be a completely absurd proposition. Therefore, it cannot be said that the decision of the Division Bench of the Supreme Court of India in the All India Gaming Federation case is either per incuriam (as it refers to and considers all the judgments of the Supreme Court of India) or sub silentio (as it specifically holds that playing games of skill for stakes does not amount to gambling)., Principle of Nomen‑Juris: In the case of State of Madras vs. Gannon Dunkerley & Company (Madras) Ltd, 2015 (330) ELT 11 (Supreme Court of India), the issue before the Apex Court was whether the provisions of the Madras General Sales Tax Act are ultra vires insofar as they seek to impose a tax on the supply of materials in execution of works contract treating it as a sale of goods by the contractor. The Apex Court interpreted the words \sale of goods\ in Entry 48 in List II of Schedule VII to the Government of India Act, 1935 and applied the principle of nomen‑juris, holding that the expression \sale of goods\ cannot be construed in its popular sense but must be interpreted in its legal sense. The Court held that words of legal import occurring in a statute should be construed in their legal sense because they have, in law, acquired a definite and precise meaning, and the legislature must be taken to have intended that meaning., Based on the aforementioned jurisprudence, the words gambling, game of chance and game of skill have developed meanings in judicial parlance. Applying the principle of nomen‑juris, the words should be construed in their legal sense, instead of general parlance. While gambling or game of chance has been held to involve chance as a predominant element, game of skill involves an exercise of skill which can control the chance. The element of chance cannot be completely overruled in any case, but the predominant element must be examined. In a game of rummy, a certain amount of skill is required because the fall of the cards has to be memorised and the building up of rummy requires considerable skill in holding and discarding cards. Therefore, a game of rummy is a game of skill as held in Satyanarayana supra., Interpretation of Betting and Gambling in the context of GST: The expression betting and gambling featured in the erstwhile Entry 62 of List II, which dealt with tax on betting and gambling. By the Constitution (One Hundred and First Amendment) Act, 2016, Entry 62 of List II was amended and the expression betting and gambling was omitted to subsume taxation on betting and gambling under the GST regime. Consequently, the same expression now features in Entry 6 of Schedule III of the CGST Act. In the case of State of Karnataka vs. State of Meghalaya, 2022 SCC Online SC 350, the Apex Court held that the interpretation of the expression betting and gambling in the context of Entry 34 of List II shall apply to the expression betting and gambling under Entry 62 of List II. As the expression was omitted from Entry 62 to give way for taxation under GST, the expression betting and gambling in Entry 6 of Schedule III of the CGST Act must also be interpreted in the same manner., Further, the decisions referred to above, in the context of betting and gambling, have been interpreted in the context of Entry 34 of List II of the Seventh Schedule to the Constitution and the Public Gambling Act, 1867. When words acquire a technical meaning because of their authoritative construction by superior courts, they must be understood in that sense when used in a similar context in subsequent legislations. The Supreme Court of India in Diwan Brothers v. Central Bank of India, AIR 1976 SC 1503, quoted Craies on Statute Law: \There is a well‑known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted, unless a contrary intention appears.\ The Apex Court also referred to Barras v. Aberdeen Steam Trawling and Fishing Company [(1933) 45 L.L.R. 199], where Lord Buckmaster observed that a word of doubtful meaning which has received a clear judicial interpretation must be construed in subsequent statutes according to the meaning previously ascribed to it. Lord Macnaghten stated that in construing Acts of Parliament, words must be taken in their legal sense unless the contrary intention appears., Thus, the terms betting and gambling in Entry 6 of Schedule III of the CGST Act must be given the same interpretation as given to them by the courts in the context of Entry 34 of List II of the Seventh Schedule to the Constitution and the Public Gambling Act, 1867. Accordingly, the terms betting and gambling appearing in Entry 6 of Schedule III of the CGST Act do not include games of skill within their ambit and must be held as such. The other judgments relied upon by both sides and various other contentions are neither relevant nor germane for the purpose of adjudicating the issue in controversy, and it is not appropriate to burden this order by referring to them in detail. A perusal of the impugned show‑cause notice and the respondents' submissions indicates that they are an outcome of a vain attempt to cherry‑pick stray sentences from judgments of various courts, including the Supreme Court of India, this Court and other High Courts, and to build a non‑existent case out of nothing, which amounts to splitting hairs and clutching at straws and is impermissible in law. There is a distinct difference between games of skill and games of chance; games such as rummy, as discussed in several decisions above and particularised in the Division Bench decision of the Supreme Court of India in the All India Gaming Federation case, whether played online or physically, with or without stakes, are games of skill and the test of predominance would apply. The judgment is a complete answer not only to the various contentions urged by the respondents but also covers the issues that arise for consideration in the instant petitions. Although Section 2(17) of the CGST Act recognises even wagering contracts as included in the term business, that does not mean that lottery, betting and gambling are the same as games of skill. The meaning of the terms lottery, betting and gambling as contemplated in Entry 6 of Schedule III of the CGST Act should be construed nomen‑juris in the light of the decisions of the Supreme Court of India, this Court and other High Courts, which do not include games of skill. Entry 6 in Schedule III to the CGST Act taking actionable claims out of the purview of supply of goods or services would clearly apply to games of skill, and only games of chance such as lottery, betting and gambling would be taxable. Taxation of games of skill is outside the scope of the term supply in view of Section 7(2) of the CGST Act, 2017 read with Schedule III of the Act. A game of chance whether played with stakes is gambling; a game of skill whether played with or without stakes is not gambling; a game of mixed chance and skill is gambling if it is substantially and preponderantly a game of chance and not of skill; a game of mixed chance and skill is not gambling if it is substantially and preponderantly a game of skill and not of chance; rummy is substantially and preponderantly a game of skill and not of chance; rummy whether played with stakes or without stakes is not gambling; there is no difference between offline/physical rummy and online/electronic/digital rummy and both are substantially and preponderantly games of skill and not of chance; online/electronic/digital rummy whether played with stakes or without stakes is not gambling; other online/electronic/digital games which are also substantially and preponderantly games of skill and not of chance are also not gambling. The expressions betting and gambling, having become nomen‑juris, are applicable for the purpose of GST and consequently the words betting and gambling contained in Entry 6 of Schedule III to the CGST Act are not applicable to online/electronic/digital rummy, whether played with stakes or without stakes, as well as to any other online/electronic/digital games which are also substantially and preponderantly games of skill. The subject online/electronic/digital rummy game and other online/electronic/digital games played on the petitioners' platforms are not taxable as betting and gambling as contended by the respondents under the CGST Act and Rules or under the impugned show‑cause notice issued by the respondents. Consequently, the impugned show‑cause notice dated 23 September 2022 issued by the respondents to the petitioners is illegal, arbitrary and without jurisdiction or authority of law and deserves to be quashed., In the result, I pass the following: the writ petitions numbered 19570/2022, 19561/2022, 20119/2022 and 20120/2022 are hereby allowed; the impugned show‑cause notice dated 23 September 2022 issued by the respondents is hereby quashed; writ petitions numbered 22010/2021 and 18304/2022 do not survive for consideration and are hereby disposed of; all interim orders that were in force during the pendency of any of the petitions stand automatically dissolved.
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Writ Petition(s) (Civil) No(s). 48/2024 Date: 22-01-2024 This petition was called on for hearing today. For Petitioner(s) Ms. Meenakshi Arora, Senior Advocate, Mr. Ankit Singh, Advocate, Mr. Chandratanay Chaube, Advocate, Mr. Manoj Kumar, Advocate, Ms. Puja Dewan, Advocate on Record. For Respondent(s)., Upon hearing the counsel the Supreme Court of India made the following: Heard Ms. Meenakshi Arora, learned Senior Advocate appearing for the petitioner., The petitioner’s father, Shri Balraj Dewan, was an Advocate on Record in the Supreme Court and he was allotted Chamber No. 108, C.K. Daphtary Block, Supreme Court of India, in the year 2006‑2007. At the time when the allottee died on 13 June 2021, the petitioner was not a lawyer. The petitioner passed her law examination and enrolled as a lawyer only on 22 July 2023., The petitioner made a representation for the chamber allotted to her father but the Competent Authority has not favourably considered the request made by the petitioner., Rule 7B of Lawyers Chambers (Allotment and Occupancy) Rules (as amended on 3 March 2023) provides that in case of death of an allottee of a chamber, the children of the allottee may be allotted a portion of the chamber if the Allotment Committee is satisfied that such person is practising in the Supreme Court. There is also a provision to allot only one half of the chamber to the surviving child or spouse., Ms. Meenakshi Arora, learned Senior Advocate submitted that on the date when the petitioner’s application came to be considered on 20 November 2023, the petitioner had already qualified as a lawyer on 22 July 2023. She further submitted that a direction was issued by this Supreme Court on 16 January 2023 to facilitate the petitioner to make a representation to the Allotment Committee and to consider the application in accordance with law and on its own merit., With the above projection, Ms. Arora argued that since the petitioner made a fresh representation and the Committee considered the matter on a date when the petitioner had already enrolled as a lawyer, the allotment can be made by sympathetically applying the provisions of Rule 7B of the Rules., We have considered the submission of the learned Senior Counsel. The petitioner herself has also made submission before us, with due permission., Since interpretation and application of Rule 7B will be needed for adjudication, the same is extracted below: 7B. In case of death of an allottee of a chamber his son/daughter/spouse, if an advocate, may be allotted the said portion of the chamber if the Allotment Committee is satisfied that such person is practising in the Supreme Court. However, if the single allottee dies, his son/daughter/spouse, if an advocate, may be allotted only one half of the chamber and not the whole., The Rule shows that the right of consideration accrues on the death of the allottee. The said date cannot be shifted on the basis of the date of consideration of the application for allotment by the children of the allottee. There could be cases when the committee may not be able to consider an application immediately on death. There could also be a situation of the application being kept pending for one reason or the other. Therefore, if either the date of consideration of the application or the date of qualification of the applicant is taken into consideration, the operation of Rule 7B will be inconsistent and will generate different results., In our understanding, the right for consideration under Rule 7B accrues on the date of death of the allottee. This will avoid any inconsistency in the manner of consideration., It cannot also be overlooked that a lawyer’s chamber within the premises of the Supreme Court is highly coveted by lawyers and there is a huge number of lawyers with much longer standing, waiting in queue for allotment of chambers. Chambers become available only rarely, usually on account of the death of the allottee., As earlier noted, the petitioner was not a practising lawyer in the Supreme Court when her father died on 13 June 2021. Therefore, on the date of the death of the allottee, she is disentitled to favourable consideration under the provisions of Rule 7B of the allotment Rules., In view of the foregoing, this Writ Petition is found devoid of merit and the same is accordingly dismissed., We are told that the chamber in question is kept locked and it is submitted by Ms. Arora that the furniture and papers are still kept in the locked chamber. Since we have decided against the petitioner on her plea of allotment, the petitioner be facilitated to remove the belongings from the allotted chamber on a date convenient to the Authorities and the petitioner., Pending applications, if any, shall stand disposed of.
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Case: Writ Petition (A) No. 2211 of 2023. Petitioner: Saroj Kumari. Respondent: State of Uttar Pradesh and five others. Counsel for the petitioner: Satyendra Chandra Tripathi. Counsel for the respondents: Chief Standing Counsel, Sanjay Kumar Srivastava. Honourable Justice Ashutosh Srivastava of the Allahabad High Court., Heard Sri Satyendra Chandra Tripathi, learned counsel for the petitioner, Shri Shailendra Singh, learned Standing Counsel for the State Respondents Nos. 1 & 2 and Sri Sanjay Kumar Srivastava, learned counsel for the Respondent Nos. 3 to 6., By means of the present writ petition, the petitioner has prayed for issuance of a writ of certiorari quashing the orders dated 14.11.2022 and 25.11.2022 passed by Respondent No.4, District Basic Education Officer, Etah whereby the sanction of Maternity Leave has been turned down by stating that \after child birth Maternity Leave is not allowed and now you are eligible for Child Care Leave according to rule\ and \for Maternity Leave out of date, now you can apply for Child Care Leave\., At the very outset, Sri Satyendra Chandra Tripathi, learned counsel for the petitioner, submits that the similar controversy, as raised in the present petition, has already been allowed by the Allahabad High Court in a bunch of writ petitions, leading amongst them being Writ (A) No. 9535 of 2022 (Smt. Anupam Yadav vs. State of Uttar Pradesh and 2 Others)., Learned counsel for the petitioner prays that the present writ petition may also be decided in terms of the aforesaid decision dated 21.10.2022 passed in Writ (A) No. 9535 of 2022 (Smt. Anupam Yadav vs. State of Uttar Pradesh and 2 Others)., Shri Shailendra Singh, learned Standing Counsel for the State Respondents as well as Sri Sanjay Kumar Srivastava, learned counsel for the Respondent Nos. 3 & 4, have vehemently opposed the prayer made in the petition and submit that the ratio laid down by the Allahabad High Court in Smt. Anupam Yadav (supra) heavily relied upon by the counsel for the petitioner is not applicable to the case at hand., I have heard learned counsel for the parties and have perused the record., Before the Allahabad High Court proceeds to examine the case of the petitioner on merits, it deems it appropriate to clear the mist that has engulfed the parties regarding the applicability of the ratio laid down by the Allahabad High Court in the case of Smt. Anupam Yadav (supra)., In the case of Smt. Anupam Yadav (supra) and the connected petitions the challenge laid was to an order passed by the competent authority/District Basic Education Officer whereby the sanction of Maternity Leave for 180 days was turned down by stating that the same was not admissible or on the ground that the period of two years had not elapsed from the date of expiry of the last Maternity Leave granted to the petitioners under the proviso to Rule 153 (1) of Chapter XIII of the Uttar Pradesh Fundamental Rules in Financial Handbook Volume II, Part 2 to 4. The moot question was regarding the applicability of the Maternity Benefit Act, 1961. There was no dispute with regard to the applicability of Fundamental Rules i.e. Rule 153 (1) of Chapter XIII of Uttar Pradesh Fundamental Rules in Financial Handbook Volume II, Part 2 to 4. The parties were at variance only with regard to the applicability of the Maternity Benefit Act, 1961. The Court, after appreciating the respective contentions of the learned counsels for the parties and considering the provisions of the Maternity Benefit Act, 1961 as also the relevant provisions of the Financial Handbook, particularly Rule 153, observed that the State Government exercising powers under Section 28 of the Maternity Benefit Act, 1961 had already adopted the provisions of the Maternity Benefit Act, 1961 for the benefits of its employees. Once the provisions of the Maternity Benefit Act, 1961 had been adopted by the State of Uttar Pradesh then the Act of 1961 would apply with full force irrespective of the provisions contained in the Financial Handbook which were held to be merely executive instructions and subsidiary to the legislation made by Parliament. The Court thus held that the provisions of the Maternity Benefit Act, 1961 would prevail over the provisions of the Financial Handbook and consequently, the provisions of Rule 153 (1) of the Financial Handbook Volume II to IV were to be read down with regard to the admissibility of leave to a woman with regard to second pregnancy which would be governed by the Maternity Benefit Act, 1961 and not Rule 153 (1) of the Financial Handbook Volume II to IV. The writ petitions were allowed accordingly., In view of the above, the Allahabad High Court finds substance in the stand taken by the learned counsel for the respondent. The only benefit the petitioner may derive from the ratio of the decision in Smt. Anupam Yadav (supra) is that the grant of Maternity Leave would be governed by the provisions of the Maternity Benefit Act, 1961., Now, the Allahabad High Court proceeds to decide the lis on merits., The undisputed facts are that the petitioner is posted as Headmistress at Primary School, Heerapur, Block Maarhara, District Etah on the institution run by the Board of Basic Education, Uttar Pradesh, Prayagraj. The service conditions of the petitioner are governed by the provisions of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981., Perusal of the record reveals that the petitioner was admitted in the hospital on 15.10.2022 and gave birth to a girl child and after discharge from the hospital, she immediately applied for Maternity Leave online for the period 18.10.2022 to 15.04.2023 (for 180 days). But the same was rejected on the ground that annexures in support of Maternity Leave were incomplete. Thereafter, the petitioner again applied for Maternity Leave on 30.10.2022 on the prescribed proforma, but the same was rejected by the District Basic Education Officer, Etah on 04.11.2022 and 25.11.2022 with remarks that \after child birth Maternity Leave is not allowed and now you are eligible for Child Care Leave according to rule\ and \for Maternity Leave out of date, now you can apply for Child Care Leave\, respectively. The above orders have been impugned in the instant writ petition., Learned counsel for the petitioner contends that the Maternity Benefit Act, 1961 has been enacted by Parliament to regulate the employment of women in certain establishments for certain periods before and after childbirth and to provide for Maternity Leave benefit and certain other benefits. The provisions of the Act of 1961 permit Maternity Benefit even after the birth of the child and as such, the denial of Maternity Leave to the petitioner on the ground that the child has already been born, the petitioner is not entitled to Maternity Leave is per se illegal and erroneous. It is also contended that Child Care Leave is distinct from Maternity Benefit and operates in a different field and relegating the petitioner to avail Child Care Leave is totally unwarranted. It is also contended that the respondents have stopped the salary of the petitioner since November and December 2022 which is also unwarranted., Learned counsel for the respondent have tried to justify the impugned orders by submitting that the orders are just and proper and do not suffer from any infirmity or illegality warranting any interference by the Allahabad High Court., Having heard the learned counsel for the parties and having perused the record, the Allahabad High Court deems it appropriate to refer to certain provisions of the Maternity Benefit Act, 1961 which are reproduced below: Section 3(h) of the 1961 Act defines \maternity benefit\ to mean the payment referred to in sub‑section (1) of Section 5. Section 5 of the 1961 Act reads as follows: \\\5. Right to payment of maternity benefit. (1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day. (2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery: Provided that the qualifying period of [eighty days] aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. (3) The maximum period for which any woman shall be entitled to maternity benefit shall be [Twenty‑six weeks of which not more than eight weeks] shall precede the date of her expected delivery: Provided that the maximum period entitled to maternity benefit by a woman having two or more surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery: [Provided further that] where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death: [Provided also that] where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled to maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child. (4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be. (5) In case where the nature of work assigned to a woman is such that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period on such conditions as the employer and the woman may mutually agree.\\\, The preamble of the Maternity Benefit Act, 1961 (Act No. 53 of 1961) reads as follows: An Act to regulate the employment of women in certain establishments for certain periods before and after childbirth and to provide for maternity benefit and certain other benefits., Sub‑section (1) of Section 5 of the Act confers an entitlement on a woman to the payment of maternity benefits at a stipulated rate for the period of her actual absence beginning from the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day. Sub‑section (3) specifies the maximum period for which any woman shall be entitled to maternity benefit. These provisions have been made by Parliament to ensure that the absence of a woman from the place of work occasioned by the delivery of a child does not hinder her entitlement to receive wages for that period or for the period during which she should be granted leave in order to look after her child after the birth takes place., The Act of 1961 was enacted to secure women's right to pregnancy and maternity leave and to afford women as much flexibility as possible to live an autonomous life, both as a mother and as a worker, if they so desire., From the perusal of the Preamble of the Act, Section 5(1), the third proviso to Sub‑section 3 of Section 5, and Sub‑section 4 of Section 5, it is more than apparent that the Maternity Benefit can be extended even after the birth of a child. It can also be extended in a case of legal adoption of a child or when the child is less than three months old. The only restriction is that Maternity Leave may not be granted for the entire 180 days or 26 weeks. Further, in the opinion of the Allahabad High Court, the availability of Child Care Leave to the petitioner or grant of the same cannot dis‑entitle the petitioner to Maternity Benefit. Maternity Benefit and Child Care Leave both operate in different fields and are mutually exclusive. The Apex Court in a recent case reported in AIR 2022 SC 4108 (Deepika Singh versus Central Administrative Tribunal and others) held that independent of the grant of Maternity Leave, a woman is also entitled to the grant of Child Care Leave for taking care of her two eldest surviving children whether for rearing or for looking after any of their needs, such as education, sickness and the like. Child Care Leave can be availed not only at the point when the child is born but at any subsequent period. Both constitute distinct entitlements. A purposive interpretation is required. The object and intent of the grant of Maternity Leave would be defeated if it were not interpreted purposively. The grant of Maternity Leave is intended to facilitate the continuance of women in the workplace. It is a harsh reality that, but for such provisions, many women would be compelled by social circumstances to give up work on the birth of the child if they are not granted leave and other facilitative measures. No employer can perceive childbirth as detracting from the purpose of employment. Childbirth has to be construed in the context of employment as a natural incident of life and the provisions of the Maternity Benefit Act are required to be construed in that perspective., The Allahabad High Court is of the opinion that the District Basic Education Officer, Etah, while rejecting the claim of the petitioner, has overlooked the provisions of the Maternity Benefit Act, 1961. In view of the above, the impugned orders dated 14.11.2022 and 25.11.2022 passed by Respondent No.4, District Basic Education Officer, Etah are not sustainable in the eyes of law and are set aside. The writ petition is allowed., The District Basic Education Officer, Etah is directed to pass fresh orders keeping in mind the provisions of the Maternity Benefit Act, 1961, within a period of two weeks from the date of production of a certified copy of this order., The District Basic Education Officer, Etah is further directed to release the arrears of salary and pay the salary month to month to the petitioner as and when the same falls due.
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Petitioner: Deepak. Respondent: State of Uttar Pradesh through Principal Secretary, Home Department, Lucknow, and others. Counsel for the petitioner: Prateek Shrivastava, Avinash Singh Vishen, Vishram Kumar Chauhan. Counsel for the respondent: Government Advocate Honourable Ramesh Sinha, Judge Honourable Narendra Kumar Johari. Heard Shri Avinash Singh Vishen, learned counsel for the petitioner, and Ms. Ranjana Srivastava, learned Additional Government Advocate for the State respondents, who perused the impugned First Information Report as well as material brought on record., This writ petition has been filed by the petitioner Deepak, seeking a writ of certiorari to quash the impugned First Information Report dated 23 February 2023, registered as First Information Report/Case Crime No. 0040 of 2023, under Section 505(2) of the Indian Penal Code, Police Station Shivratanganj, District Amethi, with a further prayer to stay the arrest of the petitioner in pursuance of the impugned First Information Report. Learned counsel for the petitioner argued that the petitioner, who is working as an Operator in Richa Global Export Private Limited, has been falsely implicated in the present case with malafide intention. He further argued that on 22 February 2023, a First Information Report No. 0039 of 2023 was lodged against the complainant/respondent number 4 with an allegation that respondent number 4, through his Facebook ID, made hate speech against the ex Chief Minister of Uttar Pradesh, namely, Behen Kumari Mayawati. The said First Information Report was lodged by Shri Vijay Kumar Gautam, President of 178 Tiloi Vidhan Sabha Kshetra, Tiloi, District Amethi; a copy of the First Information Report dated 22 February 2023 is annexed as Annexure No. 2 to the writ petition. He further argued that no offence is made out against the petitioner and that the impugned First Information Report has been lodged against the petitioner merely for harassment with an oblique motive, and therefore the impugned First Information Report is liable to be quashed., The learned Additional Government Advocate opposed the prayer for quashing of the First Information Report and submitted that the petitioner is named in the First Information Report. She further submitted that it is alleged in the impugned First Information Report that on 20 February 2023, the petitioner, who is an officer of Bhim Army, through his Facebook ID made hate speech against the Honourable Chief Minister of Uttar Pradesh, Yogi Adityanath, and Bageshwar Baba, Shri Dhirendra Shastri. She further submitted that the impugned First Information Report discloses a cognizable offence against the petitioner; hence, the instant writ petition is liable to be dismissed., After hearing the submissions advanced by learned counsel for the parties and perusing the impugned First Information Report, it is apparent that the petitioner made derogatory and disrespectful comments on the Honourable Chief Minister of Uttar Pradesh, Yogi Adityanath, and Bageshwar Baba, Shri Dhirendra Shastri. Moreover, from the allegations made in the First Information Report as a subject matter of investigation, at this stage it cannot be said that no offence whatsoever is made out against the petitioner. In view of the ratio laid down by the Supreme Court of India in Neeharika Infrastructure Private Limited versus State of Maharashtra: AIR 2021 Supreme Court 1918, and on perusal of the impugned First Information Report and material on record, it transpires that, prima facie, a case is made out against the petitioner. The submissions made by the learned counsel for the petitioner relate to disputed questions of fact, which cannot be adjudicated upon by the High Court of Uttar Pradesh under Article 226 of the Constitution of India. From the perusal of the First Information Report, prima facie, it cannot be said that no cognizable offence is made out; hence no ground exists for quashing the First Information Report or staying the arrest of the petitioner. The writ petition is, accordingly, dismissed.
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Through: Mr. Mukul Rohatgi, Senior Advocate with Ms. Anuradha Dutt, Mr. Pawan Sharma, Mr. Suman Yadav, Mr. Ambar Bhushan and Mr. Nishant Varun, Advocates versus Through: Mr. Chetan Sharma, Additional Solicitor General with Mr. Anil Soni, Advocate for Union of India, with Mr. Anurag K. Andley, Mr. Prakarsh Airan and Ms. Harpreet Kalsi, Advocates. Civil Miscellaneous Application 23632/2022 (Permission)., This application has been preferred by the petitioners for being accorded interim permission to travel abroad between 01 August 2022 and 30 August 2022 and time thereafter. Mr. Rohatgi, learned Senior Advocate appearing in support of the application has submitted that the petitioners at this stage seek to restrict the permission sought for the month of August only., The aforesaid prayer is addressed in the backdrop of Look Out Circulars (LOC) having been issued against the petitioners. The LOCs in turn had come to be opened pursuant to the registration of two First Information Reports dated 2 June 2017 and 19 August 2019. Supreme Court of India notes that although investigation is ongoing, to date no charge sheet has been filed by the Central Bureau of Investigation. From the record Supreme Court of India notes that an earlier LOC which had been issued had expired on 19 June 2020. A second LOC was thereafter opened on 11 January 2021., Although Mr. Rohatgi contends that the aforesaid Circular would not subsist after the expiry of one year from the date of its issuance, the contention is opposed by learned Counsel appearing for the Central Bureau of Investigation who contends that in terms of the Office Memorandum dated 22 February 2021, the LOC would continue to operate notwithstanding a period of one year having lapsed. Supreme Court of India thus proceeds on the basis that the LOC of 11 January 2021 which had been opened still subsists., The credentials of the petitioners are set forth in the application which has been moved. From the affidavit tendered on behalf of the Central Bureau of Investigation, Supreme Court of India notes that various allegations are levelled with respect to certain financial transactions which were undertaken by the petitioners in their capacity as being part of the management of New Delhi Television Ltd. However, as the record presently stands, the Court finds that the respondents do not place reliance on any material which may even remotely indicate that the petitioners constitute a flight risk. It is also not shown or established that they have failed to render cooperation in the ongoing investigation., From the material placed on behalf of the applicants, it is manifest that the petitioners have deep‑rooted ties in the country and consequently the prayer for interim permission as made would merit acceptance. Accordingly, the application is allowed. The petitioners shall consequently and in the interim be permitted to travel between 01 August 2022 and 30 August 2022, subject to the following conditions., The petitioners shall file a requisite undertaking before the Registrar General of the Supreme Court of India that they shall return to the country not later than 30 August 2022. The petitioners will also furnish to the respondents a copy of the air tickets they have purchased for their travel, along with the complete itinerary of their stay abroad. The petitioners will also provide their phone numbers which would be used by them during their stay abroad, and those numbers will be kept operational at all times.
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Haji Abdul Gani Khan & Anr. Petitioners v. Union of India & Ors. Respondents. The main challenge in this writ petition under Article 32 of the Constitution of India is to the legality and validity of the action of constituting a Delimitation Commission for the Union Territory of Jammu and Kashmir under the provisions of the Delimitation Act, 2002 and the exercise of delimitation undertaken by the Commission., The Constitution (Application to Jammu and Kashmir) Order, 2019 bearing Central Order No. 272 was issued by the Honourable President of India on 5 August 2019. The order was issued in the exercise of powers conferred by clause (1) of Article 370 of the Constitution of India. It directed that all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir, subject to modifications made to Article 367 as set out in the order. By the order, Clause (4) was added to Article 367 providing that the expression \Constituent Assembly of the State\ referred to in clause (2) in the proviso to clause (3) of Article 370 shall be read as \Legislative Assembly of the State\. On 6 August 2019, a declaration under Clause (3) of Article 370 bearing Central Order No. 273 was made by the Honourable President of India on the recommendation of Parliament, declaring that all the clauses of Article 370 shall cease to be operative., The Jammu and Kashmir Reorganisation Act, 2019 (for short, the J&K Reorganisation Act) was enacted to reorganise the State of Jammu and Kashmir by dividing it into two Union Territories. A new Union Territory of Ladakh was created comprising the territories of Kargil and Leh districts in the erstwhile State of Jammu and Kashmir. The Union Territory of Jammu and Kashmir (for short, the Union Territory of Jammu and Kashmir) was formed comprising the existing State of Jammu and Kashmir other than Kargil and Leh districts. The J&K Reorganisation Act came into force with effect from 31 October 2019. By virtue of Section 13 thereof, Article 239A of the Constitution of India, which was earlier applicable only to the Union Territory of Puducherry, became applicable to the Union Territory of Jammu and Kashmir. Article 239A confers a power on Parliament to enact a law for creating a legislature for the Union Territory., The Delimitation Act, 2002, which was not applicable to the erstwhile State of Jammu and Kashmir, was made applicable by virtue of Section 62 of the J&K Reorganisation Act to the newly formed Union Territory of Jammu and Kashmir. On 6 March 2020, the Central Government constituted a Delimitation Commission under Section 3 of the Delimitation Act, 2002 for the purpose of delimitation of Assembly and Parliamentary constituencies in the Union Territory of Jammu and Kashmir as well as the States of Arunachal Pradesh, Assam, Manipur and Nagaland. The Commission was headed by a retired Judge of the Supreme Court of India. The Election Commissioner and the State Election Commissioner were made ex‑officio members of the Delimitation Commission. The term of appointment of the Chairperson was fixed as one year. By a notification dated 3 March 2021, the earlier notification dated 6 March 2020 appointing the Delimitation Commission was amended by deleting the States of Arunachal Pradesh, Assam, Manipur and Nagaland from the purview of the Commission and extending the term of the Chairperson to two years. The notification dated 6 March 2020 was further amended by a notification dated 21 February 2022, providing that the term of the Chairperson shall be for two years and two months., Sub‑Section (1) of Section 60 of the J&K Reorganisation Act provides that the number of seats in the Legislative Assembly of the Union Territory of Jammu and Kashmir shall be increased from 107 to 114. Sub‑Section (4) of Section 14 provides that 24 seats in the Legislative Assembly of the Union Territory of Jammu and Kashmir shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly., Very wide and sweeping prayers have been made in the present writ petition invoking Article 32 of the Constitution of India. The first challenge is to the provision regarding the increase in the number of seats in the Legislative Assembly of the Union Territory of Jammu and Kashmir. The second challenge is to the modification made to the notification dated 6 March 2020 by deleting the States of Arunachal Pradesh, Assam, Manipur and Nagaland from the purview of the Delimitation Commission. The third challenge is to the constitution of the Delimitation Commission itself under the notification dated 6 March 2020. The petitioners contend that after the Delimitation of Parliamentary and Assembly Constituencies Order, 2008 (for short the Delimitation Order of 2008) was issued by the Election Commission of India, the existing Delimitation Commission was wound up and therefore it was inappropriate and illegal to constitute a new Delimitation Commission. They further argue that the Delimitation Commission was appointed by usurping the jurisdiction of the Election Commission of India and that its constitution was ultra vires the provisions of sub‑Sections (2) and (5) of Section 60 of the J&K Reorganisation Act. Additional challenges are raised on the ground of infringement of clause (3) of Article 170 as well as Articles 14, 19 and 21 of the Constitution., We may note here that on 13 May 2022, the Supreme Court of India recorded a submission of Shri Ravi Shankar Jandhyala, the learned senior counsel appearing for the petitioners, that the petitioners are not seeking to assail the abrogation of Article 370 of the Constitution. In view of this statement, the Supreme Court observed that certain allegations made on that behalf in the pleadings are to be ignored. The Court also noted that the real challenge was to the exercise undertaken in respect of the delimitation pursuant to the notification dated 6 March 2020 as amended by further notifications dated 3 March 2021 and 21 February 2022., A counter‑affidavit has been filed by the Union of India pointing out that during the pendency of this writ petition, on 5 May 2022, a notification was published by the Delimitation Commission in the exercise of powers under sub‑Section (2) of Section 4 and sub‑Section (2) of Section 9 of the Delimitation Act, 2002 containing the order of delimitation of Assembly constituencies of the Union Territory of Jammu and Kashmir and Parliamentary constituencies. It is also pointed out that by a further order dated 20 May 2022, the Central Government exercised powers under sub‑Sections (2) and (3) of Section 62 of the J&K Reorganisation Act, appointing 20 May 2022 as the date on which the order dated 5 May 2022 issued by the Delimitation Commission shall come into force. The counter‑affidavit notes that earlier a draft order was published by the Delimitation Commission on 14 March 2022 containing proposals for delimitation of the constituencies, and objections and suggestions were invited. Copies of the notifications/orders dated 5 May 2022 and 20 May 2022 have been placed on record by the Election Commission Respondent No. 5. A rejoinder has been filed by the petitioners dealing with the counter‑affidavits filed by the Union of India and the Election Commission., Shri Ravi Shankar Jandhyala, the learned senior counsel appearing for the petitioners, made detailed submissions:\n(a) The second proviso to clause (3) of Article 170 lays down that until the figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust the total number of seats in the Legislative Assembly on the basis of the 1971 census and the division into territorial constituencies on the basis of the 2001 census. The exercise of delimitation undertaken by the Delimitation Commission under the impugned notification dated 6 March 2020 violates this proviso. Similarly, the third proviso to Article 82 imposes an embargo on the readjustment of allocation of seats in the House of the People on the basis of the 1971 census until the first post‑2026 census figures are available. Articles 330 and 332 impose a similar embargo on reserving seats for Scheduled Castes and Scheduled Tribes.\n(b) The embargo was originally applicable until the first census after the year 2000 and was modified by the Constitution (84th Amendment) Act, 2001, substituting the year 2026 for the year 2000. The Government cannot undermine the objects and reasons for that amendment.\n(c) Until the first post‑2026 census figures become available, the number of members of the Legislative Assemblies of the States remains the same. Therefore, the effort to divide the Union Territory of Jammu and Kashmir into territorial constituencies was illegal and uncalled for.\n(d) Although the petitioners may not have challenged the validity of Section 62 of the J&K Reorganisation Act, that provision is violative of clause (3) of Article 170 and therefore cannot be implemented. The number of constituencies in Legislative Assemblies can be readjusted only in accordance with Article 170, particularly the second proviso to clause (3).\n(e) In view of Articles 82 and 83, constituencies of the House of the People for the Union Territory of Jammu and Kashmir cannot be reconstituted without the publication of the results of the first census after 2026.\n(f) The opinion rendered by the learned Attorney General for India on 6 July 2016 concerning the implementation of Section 26 of the Andhra Pradesh Reorganisation Act, 2014 is relevant. The Attorney General opined that there was a conflict between Section 26 of the 2014 Act and Article 170, and that Article 170 would prevail. The same principle should govern the relevant provisions of the J&K Reorganisation Act.\n(g) A non‑obstante clause in a statute cannot override the provisions of the Constitution. Reliance was placed upon the decision of this Court in Engineering Kamgar Union v. Electro Steel Casting.\n(h) The Delimitation Order of 2008 published by the Election Commission cannot be deviated from; the guidelines issued by the Election Commission are highly relevant.\n(i) As under Section 62 of the J&K Reorganisation Act the work of delimitation has been entrusted to the Election Commission, the notification dated 6 March 2020 permitting the Delimitation Commission to undertake the exercise is completely illegal.\n(j) It is settled law that the Supreme Court can take judicial notice of the proceedings of the Houses of Parliament. A question was asked in the Lok Sabha by a Honourable Member regarding delimitation of constituencies in the State of Telangana along with the Union Territory of Jammu and Kashmir. The answer given by Shri Nityanand Rai, the Honourable Minister of State in the Ministry of Home Affairs on 3 August 2021, was that the total number of seats in the Assembly of each State will be readjusted after the first census is published after 2026.\n(k) The appointment of the Delimitation Commission under the order dated 6 March 2020 is contrary to Section 3 of the Delimitation Act, which provides that the Delimitation Commission shall be constituted at the earliest. Sub‑Section (6) of Section 10 of the Delimitation Act, 2002 requires the Commission to complete the exercise and publish orders not later than 31 July 2008. Hence, the orders passed by the Commission constituted under the notification dated 6 March 2020 violate the mandate of Sub‑Section (6) of Section 10.\n(l) The Delimitation Act, 2002 contemplates the constitution of a single Delimitation Commission and not multiple commissions. Therefore, the constitution of the Delimitation Commission is completely illegal.\n(m) The States of Arunachal Pradesh, Assam, Manipur and Nagaland were illegally excluded from the purview of the notification dated 6 March 2020 on the basis of a letter dated 22 February 2021 from the Deputy Secretary of the Ministry of Home Affairs. The earlier notification cannot be modified on the basis of the views of a Deputy Secretary; the Union of India and the Election Commission cannot apply different yardsticks to different States.\n(n) Sections 59 to 63 of the J&K Reorganisation Act are not only violative of the express provisions of the Constitution but also contradictory to each other. These sections confer the power of delimitation both on the Election Commission and the Delimitation Commission, making them completely illegal. Sub‑Section (1)(b) of Section 11 of the Delimitation Act, 2002 permits the Election Commission to make any changes in the boundary, area or extent of any constituency as described in the delimitation order already issued and published.\n(o) The omission of the words \but does not include the State of Jammu and Kashmir\ from Section 2(f) of the Delimitation Act, 2002 by Sub‑Section (1) of Section 62 of the J&K Reorganisation Act infringes Article 14 of the Constitution.\n(p) Consolidation of all the delimitation orders was already made by the Election Commission in accordance with Section 9 of the Representation of the People Act, 1950.\n(q) Articles 2 to 4 of the Constitution are subject to other provisions of the Constitution and cannot override the constitutional scheme.\n(r) Notwithstanding the orders dated 5 May 2020 and 20 May 2022 passed under Sub‑Section (1) of Section 10 of the Delimitation Act, 2002, the present writ petition is maintainable. The decision of the Constitution Bench of this Court in Meghraj Kothari v. Delimitation Commission & Ors. will have no application to the facts of the present case., Shri Tushar Mehta, the learned Solicitor General of India appearing for the Union of India, made the following submissions:\n(a) The writ petition suffers from delay because the Delimitation Commission was constituted by the impugned notification dated 6 March 2020, which was amended on 3 March 2021 by deleting the States of Arunachal Pradesh, Assam, Manipur and Nagaland. A draft delimitation order was published on 14 March 2022 and the petition was filed only on 28 March 2022, more than two years after the original notification.\n(b) During the pendency of this petition, the Delimitation Commission issued a delimitation order under Sub‑Section (1) of Section 10 of the Delimitation Act, 2002, which came into force on 20 March 2022.\n(c) Sub‑Section (2) of Section 10 of the Delimitation Act creates a complete bar on any Court questioning the order passed under Sub‑Section (1) of Section 10. In view of the decision of the Constitution Bench in Meghraj Kothari, the bar under Sub‑Section (2) of Section 10 is applicable also to a remedy under Article 226 of the Constitution. Article 329 also creates a bar on interference by Courts in matters relating to the validity of any law concerning delimitation of constituencies. An order of delimitation of constituencies has been held to be a law; therefore, the orders dated 5 May 2020 and 20 May 2022 cannot be questioned.\n(d) Sections 60 and 62 of the J&K Reorganisation Act operate in different fields. Section 60 generally refers to delimitation of constituencies, whereas Section 62 deals with delimitation on the basis of the 2011 census figures. Sub‑Section (1) of Section 60 confers power on the Election Commission using the word \may\, while Section 62 uses the word \shall\.\n(e) The Election Commission, by a letter dated 2 September 2019, informed the Government of India that since the Delimitation Commission is constituted under Section 62 of the J&K Reorganisation Act, which is carrying out readjustment of Parliamentary and Legislative Assembly constituencies, it was not necessary for the Election Commission to undertake the exercise under Section 60 of the Delimitation Act.\n(f) Article 3 specifically empowers Parliament by law to form a new State or Union Territory, and the law must provide for the appropriate amendments to the First Schedule and Fourth Schedule. Clause (2) of Article 4 provides that no such law shall be deemed to be an amendment of the Constitution for the purpose of Article 368. Reliance was placed upon the decision of the Constitution Bench in Mangal Singh & Anr. v. Union of India.\n(g) Clauses (3) of Articles 81 and Article 170 do not apply to Union Territories at all., The learned senior counsel appearing for the petitioners, by way of rejoinder, urged that although there may not be any specific challenge in the present petition to the validity of the provisions of the J&K Reorganisation Act, the challenge can be inferred. He submitted that the issues of inconsistency between the constitutional provisions and the provisions of the J&K Reorganisation Act have not been answered by the learned Solicitor General of India., Developments concerning the State of Jammu and Kashmir in the year 2019:\n(a) On 5 August 2019, the Constitution (Application to Jammu and Kashmir) Order, 2019 (for short the 2019 Presidential Order) was promulgated by the Honourable President of India in the exercise of powers under clause (1) of Article 370 of the Constitution of India. The order was issued in concurrence with the Government of the State of Jammu and Kashmir. Clause (2) provided that all the provisions of the Constitution of India, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir subject to exceptions and modifications set out in the order. Clause (4) was added to Article 367, providing that the expression \Constituent Assembly of the State\ shall be read as \Legislative Assembly of the State\. The 2019 Presidential Order was brought into force with immediate effect.\n(b) The second important development was the declaration under Clause (3) of Article 370 made by the Honourable President on the recommendation of Parliament, declaring that from 6 August 2019 all clauses of Article 370 shall cease to be operative, subject to the exceptions incorporated in the declaration. It provided that notwithstanding anything contained in Articles 152 and 308 or any other provision of the Constitution of Jammu and Kashmir or any law, all the provisions of the Constitution of India as amended from time to time shall apply to the State of Jammu and Kashmir.\n(c) Consequently, with effect from 6 August 2019, all the provisions of the Constitution of India became applicable to the State of Jammu and Kashmir except the modifications provided in the 2019 Presidential Order, effectively ending the special status of the State under Article 370.\n(d) Another important development was the enactment of the J&K Reorganisation Act, which received the assent of the Honourable President on 9 August 2019. 31 October 2019 was fixed as the appointed day. By virtue of Sections 3 and 4 thereof, a new Union Territory of Ladakh comprising Kargil and Leh districts came into existence, and the Union Territory of Jammu and Kashmir comprising the remaining territories of the erstwhile State was also created. Thus, with effect from 31 October 2019, the State of Jammu and Kashmir ceased to exist and the Union Territories of Ladakh and Jammu and Kashmir were brought into existence.\n(e) The Delimitation Act, 2002 became applicable to the Union Territory of Jammu and Kashmir as the definition of \State\ in clause (f) of Section 2 includes Union Territories having a Legislative Assembly. Many other Central enactments incorporated in Table‑1 of the Fifth Schedule to the J&K Reorganisation Act also became applicable to the Union Territory of Jammu and Kashmir.\n(f) The Representation of the People Act, 1951 was not applicable to elections to either House of Parliament or the Legislature of the erstwhile State. An amendment by the J&K Reorganisation Act made its provisions applicable to both newly created Union Territories. Previously, the Jammu and Kashmir Representation of the People Act, 1957 was applicable to the State. Since the Representation of the People Act, 1950 was applicable to the State, it continues to apply to the two Union Territories.\n(g) By virtue of Section 13 of the J&K Reorganisation Act, the provisions contained in Article 239A, earlier applicable only to the Union Territory of Puducherry, were made applicable to the Union Territory of Jammu and Kashmir. Article 239A provides that Parliament may by law create a body to function as a legislature for the Union Territory., During the hearing of submissions of the learned senior counsel appearing for the petitioners, he attempted to assail the validity of certain provisions of the J&K Reorganisation Act. The Court pointed out that there is no challenge incorporated in the present writ petition to the constitutional validity of any provision of the J&K Reorganisation Act. The senior counsel initially stated that he did not wish to challenge the provisions, but subsequently submitted that the challenge to the relevant provisions is implicit in the writ petition., There cannot be any doubt that when a party wants to challenge the constitutional validity of a statute, he must plead in detail the grounds on which the validity is sought to be challenged. In the absence of specific pleadings, the Court cannot go into the issue of validity of statutory provisions. Constitutional Courts cannot interfere with legislation made by a competent Legislature unless specific grounds are incorporated in the pleadings. The burden of proving unconstitutionality lies on the person alleging it, and the State must be made aware of the specific grounds of challenge., Although an opportunity was available to the petitioners to challenge the provisions of the J&K Reorganisation Act, they have chosen not to do so. The petitioners are also not questioning the 2019 Presidential Order or the declaration. Accordingly, the Court will proceed on the footing that the 2019 Presidential Order, the declaration and the provisions of the J&K Reorganisation Act are valid. The submissions made across the Bar will be appreciated in this context., The Constitution makes a clear distinction between the States and Union Territories as can be seen from Article 1 and the First Schedule. Part V of the Constitution deals with the Union, Chapter II of Part V deals with Parliament. Part VI deals with the States, Chapter III of Part VI deals with the State Legislature. Part VIII independently deals with the Union Territories., Article 3 provides that Parliament may by law form new States and alter the areas, boundaries or names of the existing States. Explanation I clarifies that in clauses (a) to (e) of Article 3, a State includes a Union Territory. Thus, Parliament's power under Clause (a) of Article 3 to form a new State or alter a boundary includes the power to form a new Union Territory. Explanation II further clarifies that the power to form a new State includes the power to form a Union Territory by uniting parts of any State or Union Territory with any other State or Union Territory. Clause (1) of Article 4 provides that any law made by Parliament under Article 3 shall contain such provisions for the amendment of the First Schedule (list of States and Union Territories) and Fourth Schedule (allocation of seats in the Council of States) as may be necessary to give effect to the law. Such a law may also contain supplemental, incidental and consequential provisions, including provisions as to representation in Parliament and in the legislatures of the States or Union Territories affected. Clause (2) of Article 4 clarifies that no such law shall be deemed to be an amendment of the Constitution for the purposes of Article 368. The Constitution Bench in Mangal Singh has held that the power under Article 4 is wide enough even to reduce the total members of a Legislative Assembly below the minimum prescribed by clause (1) of Article 170., First, we consider the applicability of Article 170, which deals with the composition of Legislative Assemblies, to the Union Territory of Jammu and Kashmir. Article 170 is part of Chapter III of Part VI, which deals with the legislatures of States. The Article does not deal with legislatures of Union Territories. Articles 239A and 239AA, included in Part VIII, are the provisions that deal with the creation of a body to function as a legislature and Council of Ministers for certain Union Territories. For convenience, Article 239A reads: \239A. Creation of local Legislatures or Council of Ministers or both for certain Union territories (1) Parliament may by law create—for the Union territory of Puducherry—a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or (b) a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law.\
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Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution. Article 239A as it originally stood provided that Parliament may by law create for the Union Territory of Puducherry a body to function as a Legislature for the Union Territory or a Council of Ministers or both. Such a body to act as a Legislature of the Union Territory covered by Article 239A may be elected or partly nominated and partly elected. By virtue of Section 13 of the Jammu and Kashmir Reorganisation Act, with effect from 31 October 2019, Article 239A became applicable to the Union Territory of Jammu and Kashmir. As noted by clause (2) of Article 239A, the law contemplated by clause (1) of Article 239A shall not be deemed to be an amendment to the Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending the Constitution., On a conjoint reading of Articles 3, 4 and 239A, we find that Parliament by making a law can convert an existing State into one or more Union territories; Parliament is empowered by law to create a body of legislature for the Union territories of Puducherry and Jammu and Kashmir. Accordingly, sub‑Section (2) of Section 14 of the Jammu and Kashmir Reorganisation Act provides that there shall be a Legislative Assembly for the Union Territory of Jammu and Kashmir; and even if the law made by Parliament creating a body of legislature for Union territories of Puducherry and Jammu and Kashmir has the effect of amending certain parts of the Constitution, it shall not be deemed to be an amendment of the Constitution for the purposes of Article 368., Now coming to the Jammu and Kashmir Reorganisation Act, it is apparent that the said law has been made by Parliament in the exercise of powers under Articles 3, 4 and 239A. The law created two Union territories in place of the State of Jammu and Kashmir. The law provides for the amendment of the First and Fourth Schedules for giving effect to its provisions. Section 13 provides for amendment of Article 239A for applying the same to the Union territory of Jammu and Kashmir. Section 13 is a supplemental and consequential provision made by Parliament as provided in clause (1) of Article 4 for the purposes of giving effect to the creation of the new Union territory of Jammu and Kashmir. In view of clause (2) of Article 4, though Section 13 has the effect of amending Article 239A, it will not be affected by Article 368 of the Constitution., Under sub‑section (2) of Section 14 of the Jammu and Kashmir Reorganisation Act, a Legislative Assembly for the Union territory of Jammu and Kashmir has been created. Sub‑section (3) provides that the total number of seats in the Legislative Assembly of the Union territory of Jammu and Kashmir to be filled by direct election shall be 107. Clause (a) of subsection (4) provides that 24 seats shall remain vacant until the area of the Union Territory under the occupation of Pakistan ceases to be so occupied. Under the Constitution of Jammu and Kashmir, the seats in the State Legislative Assembly excluding the 24 seats earmarked for Pakistan‑occupied territory were 87, of which 7 seats were reserved for Scheduled Castes and Scheduled Tribes., As far as the number of constituencies is concerned, Part V of the Jammu and Kashmir Reorganisation Act, titled “Delimitation of Constituencies”, provides that sub‑section (1) of Section 60 increases the number of seats in the Legislative Assembly of the Union territory of Jammu and Kashmir from 107 to 114, while the excluded 24 seats covered by Pakistan‑occupied territory remain the same. Thus the total number of seats available now for holding elections to the Legislative Assembly is 90. Article 170, which deals with the composition of State Legislatures, has no application to the Legislature of the Union Territory of Jammu and Kashmir because Union Territory legislatures are governed by the law made by Parliament in accordance with Article 239A, not by Chapter III of Part VI., The issue of delimitation of constituencies of the Legislative Assembly of the Union territory of Jammu and Kashmir is addressed. Earlier enactments – the Delimitation Commission Act, 1962; the Delimitation Act, 1972; and the Delimitation Act, 2002 – did not apply to the State of Jammu and Kashmir because the definition of “State” excluded it. Section 3 of the Jammu and Kashmir Reorganisation Act laid down the requirement of establishing a Delimitation Commission to distribute seats in the Legislative Assembly to single‑member territorial constituencies, taking into account various factors. Section 4‑B provided for the Commission to pass an order regarding delimitation and publish it. The Delimitation of Assembly Constituencies Order, 1995 was issued for the State of Jammu and Kashmir. Section 4‑C conferred power on the Election Commission to correct printing mistakes or errors in the final order and to amend boundaries or names of districts or territorial divisions., By virtue of sub‑section (5) of Section 14, the Delimitation Order of 1995 was amended as provided in the Third Schedule, which details the amendments to the delimitation of the 83 assembly constituencies (out of the total 107) that are not covered by the Pakistan‑occupied area. Thus the delimitation of those 83 constituencies was incorporated in the Third Schedule, setting out the boundaries and areas of the new individual constituencies., Part V of the Jammu and Kashmir Reorganisation Act deals with the Delimitation of Constituencies. By virtue of clause (a) of sub‑section (1) of Section 62, the provisions of the Delimitation Act, 2002 were made applicable to the Union Territory of Jammu and Kashmir with effect from 31 October 2019. Section 60 (1) provides that, without prejudice to sub‑sections (3) of Section 14, the number of seats in the Legislative Assembly of the Union territory of Jammu and Kashmir shall be increased from 107 to 114, and delimitation of the constituencies may be determined by the Election Commission in the manner hereinafter provided, including reservation of seats for Scheduled Castes and Scheduled Tribes and the determination of constituency boundaries. Section 60 (2) requires the Election Commission, in determining the matters, to ensure that all constituencies are single‑member, geographically compact, and that reserved constituencies are located where the proportion of the relevant population is largest. Section 60 (3) allows the Election Commission to associate four persons as associate members, who shall have no right to vote. Section 60 (4) provides for filling any vacancy among associate members. Section 60 (5) obliges the Election Commission to publish its proposals, invite objections, consider them, and issue orders that shall have the force of law and not be called into question in any court. Section 60 (6) requires each order to be laid before the Legislative Assembly. Section 61 (1) empowers the Election Commission to correct printing mistakes or amend boundaries or names of territorial divisions in any order, and Section 61 (2) requires such notifications to be laid before the Legislative Assembly. Section 62 (1) deems the Delimitation Act, 2002 amended to omit the words “but does not include the State of Jammu and Kashmir” and to read “census held in the year 2011” wherever “census held in the year 2001” occurs. Section 62 (2) and (3) provide that readjustment of Assembly and Parliamentary constituencies in the Union territory shall be carried out by the Delimitation Commission as constituted under the amended Delimitation Act, with dates to be specified by the Central Government. Section 63 states that until the first census after 2026 is published, readjustment shall be based on the 2011 census figures., As noted earlier, the delimitation of 83 constituencies was made under the Jammu and Kashmir Reorganisation Act and incorporated in the Third Schedule. Sub‑section (1) of Section 60 required the total number of seats in the Legislative Assembly to increase from 107 to 114; excluding the 24 seats from Pakistan‑occupied areas, the increase was from 83 to 90. The exercise of delimitation for dividing the Union Territory into 90 constituencies and determining reservations was to be undertaken by the Election Commission under sub‑section (1) of Section 60, but sub‑section (2) of Section 62 provides that the readjustment shall be carried out by the Delimitation Commission constituted under the Delimitation Act, 2002 as amended., The Delimitation Act, 2002 defines “readjustment”. Section 4 states that the readjustment made on the basis of census figures (originally 1971) for allocation of seats in the House of the People and Legislative Assemblies shall be deemed the readjustment for the purposes of the Act. Sub‑section (2) provides that the Commission shall readjust the division of each State into territorial constituencies on the basis of the census figures as ascertained at the census held in the year 2001, with a proviso for single‑seat states. Clause (b) of sub‑section (1) of Section 62 substitutes the year 2001 with 2011 for the Legislative Assembly of the Union Territory of Jammu and Kashmir., Section 9 of the Delimitation Act, 2002 confers on the Delimitation Commission the power to conduct the delimitation exercise. It requires distribution of seats in the House of the People and Legislative Assemblies to single‑member territorial constituencies based on census figures (originally 2001) and various criteria, including geographic compactness and reservation considerations. Sub‑section (2) obliges the Commission to publish proposals, invite objections, hold public sittings, and determine the delimitation of parliamentary and assembly constituencies. By virtue of clause (b) of sub‑section (1) of Section 62, the reference to the 2001 census in Section 9 is to be read as the 2011 census. Consequently, the Delimitation Commission established on 6 March 2020 undertook the delimitation of 90 constituencies on the basis of the 2011 census, which is lawful., Regarding parliamentary constituencies, the First Schedule to the Representation of the People Act, 1950 allocated six seats to the erstwhile State of Jammu and Kashmir with no reservation. Section 10 of the Jammu and Kashmir Reorganisation Act provides that five of those seats shall be allocated to the Union Territory of Jammu and Kashmir and one to the Union Territory of Ladakh. Section 11 amends the Delimitation of Parliamentary Constituencies Order, 1976 accordingly. Clause (c) of sub‑section (1) of Section 60 allows the Election Commission to adjust the boundaries and description of Parliamentary Constituencies in each Union Territory, while sub‑section (3) of Section 62 mandates that such readjustment be carried out by the Delimitation Commission., The impugned notification dated 6 March 2020 constituted the Delimitation Commission. It states: “Legislative Department, New Delhi, 6 March 2020, S.O. 1015 (E). In exercise of the powers conferred by Section 3 of the Delimitation Act, 2002 (33 of 2002), the Central Government hereby constitutes the Delimitation Commission for the purpose of delimitation of Assembly and Parliamentary constituencies in the Union territory of Jammu and Kashmir and the States of Assam, Arunachal Pradesh, Manipur and Nagaland, consisting of the following members: (i) Justice (Retd.) Ranjana Prakash Desai – Chairperson; (ii) Shri Sushil Chandra, Election Commissioner – Member (ex officio); (iii) The State Election Commissioner of the concerned State or Union Territory appointed under clause (1) of Article 243K or clause (1) of Article 243L of the Constitution, as the case may be.” The appointment of the Chairperson was for one year, later extended., The notification requires the Delimitation Commission to delimit constituencies of the Union territory of Jammu and Kashmir in accordance with Part V of the Jammu and Kashmir Reorganisation Act, 2019 and the Delimitation Act, 2002, and of the specified States in accordance with the Delimitation Act, 2002. This refers to the readjustment provided in sub‑sections (2) and (3) of Section 62, which is the delimitation exercise contemplated by sub‑section (1) of Section 60 due to the increase in Legislative Assembly membership from 83 to 90, and to be based on the 2011 census figures as amended., One contention is that the Delimitation Act, 2002 envisages only one Delimitation Commission. However, the Act became applicable to Jammu and Kashmir only on 31 October 2019. The Jammu and Kashmir Reorganisation Act made the provisions of the Delimitation Act, 2002 applicable to the Union Territory and expressly entrusted the duty of readjustment of constituencies to the Delimitation Commission under sub‑sections (2) and (3) of Section 62. Therefore, the establishment of a Delimitation Commission for the Union Territory does not violate the Act., Sub‑section (6) of Section 10 of the Delimitation Act, 2002 uses the word “endeavour” and sets a time limit of 31 July 2008 for publication of orders, but Section 10A indicates that the President may defer the delimitation exercise. The time limit is not mandatory. The legislature’s intention, reflected in sub‑sections (2) and (3) of Section 62, is that the Delimitation Commission for Jammu and Kashmir will not be bound by the 2008 deadline. Hence the argument based on Section 10(6) must be rejected., Articles 2 and 3 of the Constitution enable Parliament to create new States and Union territories, which has been done. The Jammu and Kashmir Reorganisation Act assigns the role of readjustment of constituencies to the Delimitation Commission under the Delimitation Act, 2002. Article 4 permits Parliament to incorporate such provisions in the law made under Article 3. Consequently, there is no illegality associated with the establishment of the Delimitation Commission under the impugned order of 6 March 2020., The notification of 6 March 2020 appointed the Chairperson, a retired Judge of the Supreme Court of India, for a period of one year. By a notification dated 3 March 2021, the period was extended to two years, and by a further notification dated 21 February 2022, it was extended to two years and two months. Once the Delimitation Commission was established, extending the period of appointment until the delimitation exercise is completed is permissible.
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The Delimitation Act, 2002 is silent about the term of the appointment of the Chairperson. Exclusion of the North-Eastern States from the purview of the notification dated 6th March 2020 is another challenge which is seriously pressed, namely that part of the second impugned notification dated 31st March 2021 by which the States of Arunachal Pradesh, Assam, Manipur and Nagaland were excluded from the purview of the Delimitation Commission constituted under the notification dated 6th March 2020. In the counter affidavit filed by the Union of India, reliance has been placed on the letter dated 22nd February 2021 issued by the Deputy Secretary (North Eastern III), Ministry of Home Affairs, Government of India. In paragraphs 5 and 6 of the counter affidavit, it is stated that the Delimitation Commission set up on 12th July 2002 under the Chairmanship of a retired Judge of the Supreme Court of India had completed the delimitation exercise in respect of the entire country except for four North-Eastern States of Assam, Arunachal Pradesh, Manipur and Nagaland. It is stated that delimitation of these four States was deferred due to security reasons. Section 10A of the Delimitation Act, 2002 permitted such a course to be adopted. Though these four States were a part of the notification dated 6th March 2020, it is stated in the letter dated 22nd February 2021 that there were a number of petitions pending in the Supreme Court of India as well as in the Manipur High Court concerning delimitation exercise in North-Eastern States and that in the Supreme Court of India cases, discrepancies in census figures of 2001 in relation to these States were pointed out. In fact, it is stated that a number of notices have been issued regarding the said discrepancies. Therefore, the said letter was issued with the approval of the competent authority in which it was stated that it may not be conducive to grant an extension for the process of delimitation in the four North-Eastern States. The term of the Chairman of the Delimitation Commission constituted under the first impugned notification dated 6th March 2020 was to expire on 5th March 2021. In view of the aforesaid letter, while extending the term of the Chairman by one more year by the second impugned notification dated 3rd March 2021, the said four States were excluded. Thus, in effect, the term of the Delimitation Commission constituted under the notification dated 6th March 2020 was extended by a period of one year only in relation to the Union territory of Jammu and Kashmir. By the third impugned notification, the period was further extended by a period of two months., Section 10A of the Delimitation Act, 2002 itself permits the postponement of the exercise of delimitation in certain contingencies. Moreover, the position and the status of the newly created Union Territory of Jammu and Kashmir under the Constitution is completely different from the four North-Eastern States. In its applicability to the Union Territory of Jammu and Kashmir, Sections 4 and 9 of the Delimitation Act, 2002 stand amended by requiring readjustment to be carried out on the basis of the census figures of 2011. In case of the North-Eastern States, there is no such amendment. Therefore, two unequal cannot be treated as equals. Hence, the argument based on the violation of Constitutional provisions including Article 14 deserves to be rejected., The learned counsel appearing for the petitioners did not dispute that the draft order of delimitation was issued on 14th March 2022. The final order was issued on 5th May 2022 which was brought into force with effect from 20th May 2022. While accepting that he has not challenged these subsequent orders, the learned counsel submitted that the petitioners cannot challenge the said order in view of sub‑Section (2) of Section 10 which lays down that every such order shall have the force of law and shall not be called in question in any Court. In fact, the learned Solicitor General, by relying upon a decision of the Constitution Bench in the case of Megharaj Kothari, urged that the intention of the legislature is that once an order passed by the Delimitation Commission is published in accordance with sub‑Section (1) of Section 10, the same are treated as law, which cannot be questioned in any Court. In paragraph 21 of the said decision, the Constitution Bench held that though orders passed under Sections 8 and 9 of the Delimitation Act, 2002 in accordance with sub‑Section (1) of Section 10 are not part of an act of the Parliament but their effect would be the same. In any event, the order of the Delimitation Commission has not been questioned in this petition., We may note here that there is a great deal of substance in the argument of the learned Solicitor General that the challenge to the notification dated 6th March 2020 was belatedly made by filing the present petition on 28th March 2022 and for the said delay, there is no valid explanation. Moreover, the notification dated 6th March 2020 was substantially acted upon by completing the exercise of delimitation as the draft Order was also published on 14th March., In the writ petition, the first prayer is for challenging the increase in number of seats from 107 to 114. The said provision is made by sub‑Section (1) of Section 60. Without challenging the legality of any of the provisions of the Jammu and Kashmir Reorganisation Act, it is contended that the Act of increasing the number of seats is violative of Articles 81, 82, 170, 330 and 332 of the Constitution of India. Article 81 deals with the composition of the House of the People; Article 82 deals with the readjustment and allocation of seats of the House of Parliament after the census and Article 170 deals with legislatures of the States. None of these provisions deal with the Legislature of any Union territory. Article 330 deals with the reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People. Article 332 deals with the reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States. Both these provisions do not deal with reservation of seats for the House of legislature of Union Territories. In any case, even assuming that Article 332 can be applied to the reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislatures of Union territories, it is not shown how the act of increasing the total number of seats in the legislature will offend Article 332, so long as the reservation is maintained as per the formula provided under Article 332., Another argument sought to be made is that the provision made for 114 seats in the legislature of the newly constituted Union Territory of Jammu and Kashmir is illegal. This submission calls for no consideration as there is no challenge to the validity of sub‑Section (1) of Section 60 of the Jammu and Kashmir Reorganisation Act., Another argument was canvassed that the Delimitation Order of 2008 published by the Election Commission cannot be deviated from. The perusal of the said Order shows that it reproduces the delimitation of the Parliamentary and Legislative Assembly Constituencies made by the Delimitation of Parliamentary and Assembly Constituencies Orders of 1976 and 1995 for the State of Jammu and Kashmir. Both the orders of 1976 and 1995 have been expressly modified by the Jammu and Kashmir Reorganisation Act by virtue of Sections 11(4) and 14(5) as provided in the second and third Schedules thereto. Hence, the argument deserves to be rejected., The petitioners have overlooked the fact that clause (b) of sub‑Section (1) of Section 62 of the Jammu and Kashmir Reorganisation Act has further amended the Delimitation Act, 2002 by providing that words and figures census held in the year 2001 appearing in the Delimitation Act shall be construed as census held in the year 2011. To its application to the Union territory of Jammu and Kashmir, the year 2001 in sub‑Section (1) of Section 9 of the Delimitation Act, 2002 has been substituted by the year 2011 and therefore, distribution of seats in the House of the People and seats assigned to the Legislative Assembly will have to be readjusted on the basis of 2011 census and the delimitation will have to be carried out on the basis of the figures of the census held in the year 2011. The effect of Section 63 is that once the exercise of readjustment/delimitation is made on the basis of 2011 census figures, the same will be frozen till the relevant figures of the first census taken after 2026 are available. Therefore, the exercise of delimitation/readjustment of the seats in the Union Territory of Jammu and Kashmir was required to be made by the Delimitation Commission on the basis of the figures of the 2011 census. In view of Section 63, further readjustment can be carried out only after the publication of figures from the census held after the year 2026., Reliance placed on the opinion of the learned Attorney General of India is misplaced as it deals only with the provisions of the Andhra Pradesh Reorganisation Act, 2014. The petitioners cannot rely upon the answer given by the Honourable Minister in the Lok Sabha as it deals with delimitation of Constituencies in Telangana in the context of Article 170. In any event, the said opinion as well as the answer given by the Honourable Minister have no bearing on the interpretation of the Jammu and Kashmir Reorganisation Act., A vague attempt was made by the learned senior counsel appearing for the petitioners to submit that the exercise which is undertaken for the newly created Union territory of Jammu and Kashmir was not undertaken on the basis of the Uttar Pradesh Reorganisation Act, 2000 and Andhra Pradesh Reorganisation Act, 2014. In both the Acts, there is no provision which is pari materia with clause (b) of sub‑Section (1) of Section 62 of the Jammu and Kashmir Reorganisation Act which amended the provisions of the Delimitation Act, 2002 in its applicability to the newly formed Union Territories by substituting the year 2001 with 2011., Thus, there is absolutely no merit in any of the contentions raised by the petitioners. We may, however, clarify that the findings rendered in the judgment are on the footing that the exercise of power made in the year 2019 under clauses (1) and (3) of Article 370 of the Constitution is valid. We are aware that the issue of the validity of the exercise of the said powers is the subject matter of petitions pending before the Supreme Court of India. Therefore, we have not dealt with the issue of validity. Nothing stated in this judgment shall be construed as giving our imprimatur to the exercise of powers under clauses (1) and (3) of Article 370 of the Constitution., Hence, the writ petition is dismissed with no order as to costs.
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The Board of Control for Cricket in India (Appellant) versus Regional Director Employees State Insurance Corporation and others (Respondents). Mr. Aditya Thakkar with Mr. Ranjit Shetty and Mr. Rahul Dev in behalf of Argus Partners for the Appellant. Mr. Shailesh Pathak as well as Mr. Jay Vora for the Respondents., The present appeal is filed by the Board of Control for Cricket in India (hereinafter referred to as BCCI), being aggrieved by the impugned judgment and order passed by the Employees State Insurance Court at Bombay dated 9 September 2021, declaring that the BCCI is covered within the meaning of shop as per notification dated 18 September 1978 issued by the Government of Maharashtra under the provisions of Section 1(5) of the Employees State Insurance Act. The Employees State Insurance Court has remitted the matter for determining the contribution from the appellant Board in the wake of the observations made in the impugned judgment., In support of the appeal, I have heard the learned Advocate Mr. Aditya Thakkar with Mr. Rahul Dev in behalf of Argus Partners for the appellant and Mr. Shailesh Pathak along with Mr. Jay Vora for the respondent. Since the parties expressed their desire to argue the appeal finally and have placed on record the compilation of documents and the relevant judgments on which they seek to place reliance, at the request of the parties I have heard the appeal finally., The brief facts in the background of which the present appeal deserves consideration are as follows: The BCCI is a society registered under the provisions of the Tamil Nadu Societies Registration Act, 1975 in Chennai. It claims to be a national governing body for cricket in India and has existed since 1928. It is an autonomous non‑profit making sports body established for promoting the sport of cricket in India., In April–May 2011, the Board office was surveyed by the Insurance Inspector and the salary details of its employees were verified. Upon completion of the inspection, a visit note was recorded by the Inspector on 10 May 2011 and, by communication dated 22 June 2011 issued by the Regional Director of Employees State Insurance Corporation, Mumbai, it was communicated that the BCCI is covered under the provisions of the Employees State Insurance Act, 1948 with effect from 1 January 2007 and it was allotted a code number, indicating applicability of the provisions of the Act to the Board. The Board was served a notice in Proforma C‑18 dated 1 July 2014, claiming a contribution amount of Rs 5,04,075 as Employees State Insurance contribution for the period commencing from May 2007 to March 2014. The Board resisted by a letter dated 11 August 2014, clarifying that it is a non‑profit organization where no commercial, economic or manufacturing activities are performed and requested the Employees State Insurance Corporation to reconsider its decision of allotting an ESI code., On various dates, hearings were conducted before the Assistant Director of Employees State Insurance Corporation, and on 23 June 2015 the legal advisor of the Assistant Director called for a personal hearing but refused to accept the Board’s claim that it is not covered under the Employees State Insurance Act. The decision came as a shock since no opportunity of hearing was afforded to the Board before the decision was taken., The Board contends that coverage of the appellant under the Employees State Insurance Act is in violation of Section 2‑A of the Act read with Regulation 10‑B of the Employees State Insurance (General) Regulations, 1950, because the Board is a governing body for cricket in India and its primary object is to administer, promote and control the game of cricket throughout the country, including women’s cricket, and to encourage formation of state, regional and other cricket associations. Accordingly, it is not registered as a shop under the Maharashtra Shop and Establishment Act and is not primarily engaged in any trading or commercial activities; therefore it cannot be covered within the meaning of Section 1(5) of the Employees State Insurance Act, 1948., Being aggrieved by the impugned order passed under Section 45A of the Employees State Insurance Act, which determined the amount of contribution to the tune of Rs 4,93,350 for the period from June 2010 to March 2014, the Board raised a challenge before the Employees State Insurance Court, Mumbai, seeking to have the order quashed and set aside. In the application, the Regional Director, Employees State Insurance Corporation, Mumbai and the Recovery Officer, Employees State Insurance Corporation, Mumbai were impleaded as respondents., The Employees State Insurance Corporation raised a point of limitation and urged the Employees State Insurance Court that the Board is carrying on systematic, economic, commercial activity such as selling tickets of cricket matches and rendering services for a price and therefore it is a shop covered under Section 1(5) of the Employees State Insurance Act, 1948. The Board’s annual report projected its income for the financial year, which included income from international tours and from the conduct of the Indian Premier League. The Corporation argued that the Board is a profit‑making establishment carrying systematic commercial activity, that it employs 20 coverable employees since the year 2000 and renders services for a price. Since the statute itself had covered the Board, the Corporation argued that there was no question of affording an opportunity of personal hearing. The Board’s claim was opposed on the ground that it falls within the purview of the term ‘shop’ and, because it employs 20 coverable employees, it is covered by the Employees State Insurance Act. The Corporation assessed the contribution on assumed wages as per the best method, considering information available, and held that the Board’s admission of providing entertainment at a price, i.e., selling tickets, broadcasting rights and sponsorship, was sufficient to bring the Board within Section 1(5) of the Employees State Insurance Act, 1948., The Employees State Insurance Court determined the seminal issue arising in the application, namely whether the applicant Board is covered by the provisions of the Employees State Insurance Act, 1948, and whether the decision of the Corporation to cover the Board under the Act is bad in law. It also deliberated upon whether the Board had proved that out of 20 employees, eight were engaged through contractors and, if so, what the effect would be., On consideration of the evidence of Shri Rahul Dinesh Johri on behalf of the applicant Board and referring to various documents produced, including the Memorandum of Association, Rules and Regulations, and annual reports, the Employees State Insurance Court examined the nature of the Board’s functioning, including activities such as conducting international cricket matches, Indian Premier League matches, Indian Cricket League, Champion League etc., which the Court held to be purely commercial activities. The Court rejected the Board’s contention that it is engaged only in promoting sport cricket and not in profit‑making business. The Court noted admissions by the Board’s witness that the Board sells television broadcasting rights by auction, receives sponsorship amounts, exercises control over IPL matches and receives income from sponsorship. The Court concluded that the Board is engaged in systematic commercial activities, is a profit‑earning institution, works in the entertainment industry and provides entertainment to its customers at a price by selling tickets. Therefore, it is liable to pay Employees State Insurance contribution on the wages paid to the coverable employees., The Court held that the impugned order passed under Section 45A of the Employees State Insurance Act dated 15 July 2015, which determined the number of employees as 20 and claimed contribution from June 2010 to March 2014, was illegal and set it aside because neither party produced documentary evidence showing whether the two contractors who employed the eight employees had paid Employees State Insurance contribution on the wages. The matter was remitted back to the determining authority for fresh hearing to calculate the correct outstanding contribution payable by the Board., However, the applicability of the provisions of the Employees State Insurance Corporation to the BCCI, being held to be proved, the decision of the Corporation to classify the Board as a shop in terms of the notification dated 18 September 1978 issued by the State Government was held to be legal., The learned counsel Mr. Thakkar appearing for the Board would assail the decision by submitting that the test of systematic, economic or commercial activity as laid down by the Hon'ble Apex Court in Bangalore Turf Club Ltd. v. Regional Director, Employees State Insurance Corporation, 2014 (9) SCC 656 is a qualitative test and not a quantitative one. He would submit that although the Board’s activities are structured to be economically viable, the basic character of the Board’s activity—promoting and popularising cricket—has been lost sight of by the Employees State Insurance Court. He would further rely on the Board’s Memorandum of Association, which enumerates various activities, and argue that it was impermissible for the Court to go beyond the objects of the appellant as set out in the Memorandum to hold that the appellant is engaged in profit‑making activities. He would contend that performance of ancillary or incidental objects to achieve the main object does not alter the principal object of promoting cricket., The counsel would also argue that the Board is the national governing body for cricket in India, comprises affiliate members who are the central controlling bodies of cricket in their respective states, and is affiliated to the International Cricket Council, the apex governing body worldwide. He would submit that the Board is an autonomous, non‑profit making sports body, neither a shop nor a commercial establishment as contemplated under the Bombay Shop and Establishment Act, and that merely generating some revenue through sponsorship and selling broadcasting rights does not make it a shop within the meaning of the Employees State Insurance Act., The legality of the order dated 15 July 2015 is also questioned on the ground that the Assistant Director determined contribution for 20 employees, whereas, according to the Social Security Officer, out of 15 employees only 12 were drawing wages below the limit of coverage, and the employees employed through contractors were covered separately under the contractors’ code numbers. The impugned orders failed to mention that the Assistant Director had verified the contractors’ records and found no contribution paid by them on behalf of the employees, amounting to a total non‑application of mind in passing the order, an illegality even percolated by the Employees State Insurance Court., The counsel for the Corporation would heavily rely upon the evidence of the Social Security Officer, Regional Office, Lower Parel, Mumbai, who gave a surprise visit to the Board’s office on 11 April 2011 and on 26 April 2011 for the purpose of survey and prepared a visit note. The counsel would emphasize that the Board’s activities such as selling tickets of cricket matches and providing entertainment clearly constitute rendering services for a price. He would submit that the Board’s annual report comprises income from international tours and the Indian Premier League, and that the systematic economic commercial activity carried out by the Board places the establishment within the four corners of the Employees State Insurance Act., The Corporation would oppose the Board’s submission that its Memorandum of Association is determinative of its nature. The counsel would argue that admissions given in cross‑examination by the Board’s witness lead to the inference that the Board is engaged in systematic commercial activity, is a profit‑earning institution, and operates in the entertainment industry by providing entertainment to viewers at a price, i.e., by selling tickets, and therefore must extend Employees State Insurance coverage to its coverable employees. He would place reliance upon the Apex Court decision in Bangalore Turf Club Ltd., where a race club was held to be an establishment coverable under the Employees State Insurance Act, and contend that a similar broader interpretation should apply to the BCCI., In order to determine whether the BCCI is a shop within the context of the Employees State Insurance Act, 1948, it is necessary to refer briefly to the statute. The Employees State Insurance Act, 1948 is a piece of social security legislation enacted in accordance with Article 38 and Article 39 of the Constitution, as well as the concept of economic and social justice envisaged in the preamble of the Constitution, to effectively give effect to the fundamental right to life. Under Article 39(e) the State is enjoined to protect the health of its workers, under Article 41 to secure sickness and disablement benefits, and under Article 43 to ensure a decent standard of life. Right to health is considered a facet of the right to life, and the Act seeks to maintain the health of an insured workman, conferring benefits in case of sickness, maternity, employment injury and other matters, thereby operating as beneficial legislation for the general welfare of employees., The coverage of the Act by inclusion of Section 1 was initially made applicable to all factories (including government factories) other than seasonal factories. Sub‑section (5) of Section 1 permitted expansion of the applicability of the provisions of the Act and empowered the appropriate Government, in consultation with the Corporation, to extend the provisions to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. The Act defines ‘employee’ as a person employed for wages in or in connection with the work of a factory or establishment to which the Act applies. It defines ‘factory’ in Section 2(12) and ‘manufacturing process’ in Section 2, as well as ‘principal employer’, ‘wages’ and ‘wage period’. The Act does not define ‘establishment’, but Section 1(5) empowers the Government to extend the provisions to any other establishment or class of establishment. Judicial pronouncements have interpreted ‘establishment’ broadly, rejecting a restrictive approach., The Government of Maharashtra issued notification No. ESI/1677/3910/PH‑15 on 18 September 1978, exercising the power conferred on it under Sub‑section (5) of Section 1 and extending the provisions of the Employees State Insurance Act to certain classes of establishments, namely: (i) hotels, (ii) restaurants, (iii) shops, (iv) cinemas, including preview theatres, and (v) newspaper establishments as defined in Section 2(d) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. A similar notification was issued by the Government of Karnataka extending the provisions to establishments such as shops, road transport, motor transport, cinemas, including preview theatres and newspaper establishments employing twenty or more persons for wages on any day of the preceding twelve months., The issues crystallised for determination by the Employees State Insurance Court were: (1) whether the order dated 15 July 2015 passed by the Corporation declaring that the BCCI is liable to pay contribution under the Employees State Insurance Act is illegal and bad in law; and (2) whether the Board proved that out of twenty employees, eight are already covered through contractors and, if so, what is the effect., In order to answer the first issue, it is necessary to determine whether the BCCI is a shop covered under the Maharashtra notification covering shops wherein twenty or more employees are employed or were employed for wages on any day of the preceding twelve months. The Board argues that it is neither a shop nor a commercial establishment but an autonomous non‑profit making sports body. The BCCI is a society registered at Chennai under the Tamil Nadu Societies Act, 1975 and projects itself as a national governing body for cricket in India, existing since 1928. The Board consists of its affiliate members, which are primarily the central controlling bodies of cricket in their respective states, who select their representatives and elect the Board’s officials in terms of the Rules and Regulations. The BCCI also claims to be a full‑member autonomous body affiliated to the International Cricket Council, the apex body for the sport of cricket., The amended Memorandum of Association and Rules and Regulations, formulated as per the judgment of the High Court dated 9 August 2018, set out the objects of the BCCI. They include: (a) to control and improve the quality and standards of cricket in India, lay down policies, roadmaps, guidelines and make rules and regulations; (b) to provide measures necessary for promotion and development of cricket, welfare of cricketers and elimination of unethical practices; (c) to organise coaching schemes, academies, tournaments, exhibition matches, Test matches, ODIs, Twenty‑20 matches; (d) to encourage formation of state, regional or other cricket associations and organise inter‑state tournaments; (e) to arrange, control, regulate and finance visits of international teams to India; (f) to arrange, control, regulate and finance visits of Indian teams abroad; (g) to select teams to represent India in various formats; (h) to foster sportsmanship among students; (i) to appoint India’s representatives on the International Cricket Council and at conferences; (j) to appoint managers and other officials for Indian teams; (k) to employ CEOs, professional managers, auditors, executive secretaries, administrative officers, assistants, clerks, team support staff, players and other personnel and remunerate them; (l) to ensure tickets to cricket matches are widely available at reasonable rates and to offer seats gratis or at nominal rates to students; (m) to develop cricket grounds and provide pavilions, canteens and other facilities for members, players and fans, including women and disabled; (n) to constitute committees to achieve the objects; (o) to vest immovable property and funds in trustees; (p) to sell, manage, mortgage, lease, exchange or dispose of property; (q) to acquire or purchase movable and immovable property and apply the capital and income therefrom towards the objects; (r) to collect funds, borrow with or without security and purchase or redeem securities; (s) to carry out any other activity that may enhance the value or generate revenue from the BCCI’s properties; and (t) to promote, protect and assist players through various welfare measures.
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The benefit of cricketers or their spouses and children by introducing benevolent fund schemes or other benefit schemes, as the Board of Control for Cricket in India deems fit, subject to its rules and regulations; (iii) The benefit of any other persons who have served cricket or their spouses and children as the Board of Control for Cricket in India may consider fit; (iv) To award sponsorships to sportspersons in games other than cricket for development of their individual skills; and (v) To donate to any charitable cause., Clause No.3 of the Memorandum of Association is stressfully relied upon which reads thus: The income, funds and properties of the Board of Control for Cricket in India, however acquired, shall be utilized and applied solely for the promotion of the objects of the Board of Control for Cricket in India as set forth above to aid and assist financially or otherwise and to promote, encourage, advance and develop and generally to assist the game of cricket or any other sport throughout India., On being directed to pay Employees' Contribution and Employer's contribution and failure to abide by the said direction, action came to be initiated against the Board of Control for Cricket in India under section 45A of the Employees' State Insurance Act, which was contested by the appellant Board broadly on the following grounds., It is clarified that the Board of Control for Cricket in India is the apex governing body responsible for formulation and implementation of policies for the game of cricket in India. It is registered under the Tamil Nadu Societies Registration Act 21 of 1860 dated 28th November 1940. It is a non‑profit organization, where no commercial, economical and/or manufacturing activities are performed or carried on. It is therefore stated that we do not perform or carry out any functions which fall under the purview of Section 1(5) of the Employees' State Insurance Act., The coverage of the Board of Control for Cricket in India under the provisions of the Employees' State Insurance Act as a shop within the meaning of the notification issued by the Government of Maharashtra under section 1(5) of the Employees' State Insurance Act, and the notice received by it in Form C‑18 proposing to determine contribution for the period from May 2009 to March 2014, resulted in questioning the said decision by submitting that the Board of Control for Cricket in India, in no manner, is engaged in any trading activities but its primary object is to administer, promote and control the game of cricket throughout the territory of India, including women's cricket and to encourage formation of State, Regional or other cricket associations. The decision of the Corporation was clammed as arbitrary and its classification as a shop was seriously objected to, also by pleading non‑adherence of principles of natural justice., The Board of Control for Cricket in India approached the Employees' State Insurance Court, Mumbai, calling into question the said decision of the Corporation initiating any proceedings, pursuant to its classification as a shop. The Employees' State Insurance Court, Mumbai stayed the recovery, subject to deposit of fifty percent of the amount., In support of its claim, the Chief Executive Officer Shri Rahul Dinesh Johri of the Board filed his affidavit in lieu of Examination‑in‑Chief and affirmed its stand that the Board only comprises its affiliated members which are primarily central controlling bodies of the discipline of cricket in respective states and it is an autonomous, non‑profit making sports body and its functions are not akin to any commercial or business trading activity. Making a grievance about not affording an opportunity of hearing before determining the coverage of the Employees' State Insurance Act and allotment of code number, he gave the following admission., I say that having heard us, the Assistant Director countered that the applicant Board is involved in sale of tickets, gets revenue through sponsorship, selling broadcasting rights and is also deriving income from International Cricket Council membership. To this, our representative clarified that occasionally tickets are being sold during cricket matches, but the primary activities of the Board are not in any way involved with trading or commercial activities. Our representative further explained that we were generating revenue to meet the expenses, to achieve the aims and objectives, through sale of tickets, sponsorship, selling broadcasting rights, etc. I say that we emphatically had informed that the generation of income was necessary to plough back the same to the game, its promotion and development. I say that a reference was drawn to the fact that a sport, being part of education and entertainment, we provide our income for the promotion and development of infrastructure also and such expenses following income could not be correlated with commercial or business activities. It was also pointed out to the Assistant Director that the predominant activity of the Board is to administer, promote, develop and control the game of cricket throughout the territory of India., On being cross‑examined by the Corporation, the following admissions surfaced before the Supreme Court of India. It is true to say that the applicant Board is selling television broadcasting rights to the concerned television companies by auction. The witness volunteers that the applicant Board is selling said rights on behalf of the concerned state cricket association. It is true to say that till today the applicant Board has not produced any documentary evidence on record in order to show that the applicant Board is selling television rights on behalf of the concerned state cricket association. It is true to say that the applicant Board is receiving amount from sponsorship of the Indian cricket team. The witness volunteers that the applicant Board is receiving said sponsorship amount for the Indian cricket team. It is true to say that the applicant Board is having control over Indian Premier League cricket matches. The witness volunteers that the applicant Board is exercising said control through the IPL Governing Council. The IPL Governing Council consists of five members from the applicant Board, two members representing players and one nominee by the Comptroller and Auditor General of India. It is true to say that after the judgment of the Apex Court, the Chief Executive Officer of the applicant Board, two representatives of players and the nominee of the Comptroller and Auditor General became members of the IPL Governing Council. It is true to say that the applicant Board is receiving income from sponsorship of IPL matches. It is not true to say that the applicant Board is receiving income from auction of players. The IPL matches tickets are sold by the hosting franchise team. There is a franchise agreement between the applicant Board and the IPL franchise in respect of management of team commercial relationship and respective duties of both parties. It is true to say that the applicant Board is receiving income from IPL matches. The IPL franchise team is making payment of a fixed percentage share of their respective income., In contrast, in support of its stand, the Corporation examined the Social Security Officer Smt. Sadhana Pangare, who narrated the procedure that was followed while carrying out the inspection of the Board and deposed that twenty coverable employees were employed in the premises of the Board of Control for Cricket in India on 10 May 2011 and during inspection, it was found that since January 2007, there were fifteen employees employed by the Board and, of those, twelve employees were drawing salary less than Rs 10,000 per month, whereas M/s. Property Guard Security Services Pvt. Ltd had employed five coverable employees in the premises of the Board with effect from 1 January 2007, whereas M/s. Rahul Housekeeping Services had employed three coverable employees in the premises of the Board with effect from 1 February 2006. The witness brought on record the inspection note which categorically recorded as under: The unit has started its business of sports and training activities with effect from 28 January 1940 (as per PAN card). The unit has been registered under the Tamil Nadu Societies Registration Act, 1975. On verification of salary statements produced before me, it is observed that in the month of January 2007, there are total fifteen employees employed for wages, out of which twelve employees are drawing salary below Rs 10,000. Also two contractors namely M/s. Property Guards Security Services (31‑43395‑101) and M/s. Rahul Housekeeping Services (35‑17063‑101) have an agreement with the Board of Control for Cricket in India w.e.f. 1 January 2007 and 1 December 2006 respectively (copies of agreement enclosed). As per agreement, both the contractors have five and three coverable employees respectively in the premises. Thus, in the month of January 2007, there are total twenty coverable employees working in the premises of the Board of Control for Cricket in India. As per employer's version, they are exempted from Income Tax and also argued that they are not coverable under the Employees' State Insurance Act., In light of the evidence brought before it, the Employees' State Insurance Court decided the application preferred by the Court, seeking a declaratory relief that it is not covered under the provisions of the Employees' State Insurance Act as a shop and therefore, the order directing to deposit the contribution was just and proper. The Employees' State Insurance Court, apart from analyzing the factual scenario, also minutely scanned the authoritative judicial pronouncements cited before it by the rival parties and, in light of the factual and legal position, proceeded to determine whether the Board of Control for Cricket in India is a shop and covered under section 1(5) of the Employees' State Insurance Act, since it is engaged in commercial and trading activities. The learned Judge exhaustively referred to the Memorandum of Association and Rules and Regulations and extensively relied upon various clauses therein, to repel the contention of the Board that the Board is engaged only in promoting the sport of cricket and not engaged in profit‑making business., The Court rendered the following finding on the basis of the evidence placed before it: The witness has further admitted in his cross‑examination that the IPL matches tickets are sold by the hosting franchise team. There is a franchise agreement between the applicant Board and the IPL franchise in respect of management of team, commercial relationship and respective duties of both parties. The witness has specifically admitted in his cross‑examination that the applicant Board is receiving income from IPL matches and the IPL franchise team is making payment of a fixed percentage share of their respective income. All above‑mentioned admissions given by the applicant's witness show that the applicant Board is engaged in systematic commercial activities and earning profit by arranging international cricket matches, IPL cricket matches as well as selling television broadcasting rights and taking percentage share earned by IPL franchises., The annual report for the financial years 2008‑2009 to 2014‑2015 are produced by the applicant Board on record along with exhibits 1 to 7 respectively. The audit report included in said annual report shows the following entries in respect of total income and paid entertainment tax: Year 2008‑2009 Total Income Rs 72,58,327,503 (Page No. 63); Year 2009‑2010 Total Income Rs 8,861,118,021 (Page No. 95); Year 2010‑2011 Total Income Rs 8,680,315,771 (Page No. 101); Year 2011‑2012 Total Income Rs 849.44 crores (Page No. 102); Year 2012‑2013 Total Income Rs 753.42 crores (Page No. 97); Year 2013‑2014 Total Income Rs 1,139.36 crores (Page No. 86); Year 2014‑2015 Total Income Rs 1,266.41 crores (Page No. 81). All above‑stated reports show that the applicant Board has earned income from sources such as grant of media rights, income from international tours, income from Indian Premier League, income from Champion League T‑20, distribution/participation fee from the International Cricket Council, minimum guarantee royalty, interest income, additional sponsorship income and other income. The reports also show that the applicant Board has paid entertainment tax during the period 2008 to 2015 and prayed for refund/recovery of the following amounts on the ground that it has paid entertainment tax on matches not held and pertaining to tickets which remained unsold: 2009‑2011 Paid Rs 31,250,348; Recoverable Rs 7,187,354 (Para No. 34). 2010‑2011 Paid Rs 15,576,000; Recoverable Rs 15,576,000 (Match shifted from Bangalore to Mumbai) – Total entertainment tax amounting to Rs 22,763,354 is recoverable (Para No. 37). 2011‑2012 Rs 5.87 crores considered recoverable (Para No. 31). 2012‑2013 Rs 3.02 crores considered recoverable (Para No. 31). 2013‑2014 Rs 4.49 crores paid and considered recoverable (Para No. 31). 2014‑2015 Rs 4.69 crores paid and considered recoverable (Para No. 31)., A similar issue arose before the Hon'ble Apex Court when it was called upon to decide a reference whether its earlier decision in the case of ESI Corporation Vs. Hyderabad Race Club, 2004 (6) SCC 191, is a flawed decision, where it was held that the Race Club is an establishment and whether it is an establishment for the purpose of the Employees' State Insurance Act. The Apex Court determined the issue, confronted with a factual aspect in determining whether the Bangalore Turf Club Ltd and Royal Western India Turf Club Ltd are shops engaged in systematic commercial activity and hence, covered by the notification issued under section 1(5) of the Employees' State Insurance Act. The question which was taken up for consideration was whether a race club would be covered under the definition of shop, a term not defined either in the Employees' State Insurance Act or in the notification. The Apex Court proceeded to decide whether the activities of the race club amount to entertainment. Keeping in mind the purpose of the Employees' State Insurance Act, to confer certain benefits to employees in case of sickness, maternity, employment injury, the wording was given a wider interpretation., The Apex Court referred to the notification issued by the Karnataka Government as well as the Government of Maharashtra in exercise of power conferred upon them under section 1(5) of the Employees' State Insurance Act, 1948 to cover shops and also referred to the term establishment in its normal parlance and observed: The term establishment would mean the place for transacting any business, trade or profession or work connected with or incidental or ancillary thereto. It is true that the definition in dictionaries is the conventional definition attributed to trade or commerce, but it cannot be wholly valid for the purpose of constructing social welfare legislation in a modern welfare State. The test of finding out whether professional activity falls within the meaning of the expression establishment is whether the activity is systematically and habitually undertaken for production or distribution of goods or services to the community with the help of employees in the manner of a trade or business. If a systematic economic or commercial activity is carried on in the premises, it would follow that the establishment at which such activity is carried on is a shop. This Court, in Hyderabad Race Club case, keeping in view the systematic commercial activity carried on by the Club, held that the race club is an establishment within the meaning of the expression as used in the notification issued under section 1(5) of the Employees' State Insurance Act. Therefore, in our considered view, the view expressed by this Court is in consonance with the provisions of the Employees' State Insurance Act and settled legal principles. Therefore, the decision does not require reconsideration., While determining the question whether a race club would be covered under the definition of shop, after referring to the meaning of the term in various dictionaries, it was concluded: From the above, it can be said that a shop is a place of business or an establishment where goods are sold for retail. However, the definitions given in the dictionaries are very old and may not reflect, with complete accuracy, what a shop may be referred to as in the present day. Therefore, it may be pertinent to consider the manner in which this Court has dealt with the word shop in its judicial decisions. The term shop, in regard to the Employees' State Insurance Act, has been discussed in earlier cases by this Court. In the case of Hindu Ja Band, it is observed that a shop would be a place where services are sold on a retail basis. In International Iron Ore and Fertilizers (India) Pvt. Ltd. v. ESIC (1987) 4 SCC 203, this Court stated that a shop would be a place where the activities connected with buying and selling of goods are carried on. In the case of Cochin Shipping Company, the Court observed that a shop must be held to be a place where commercial activity of buying and selling of merchandise takes place. In R.K. Swamy's case, the Court extended the meaning of a shop to include even sale of services. Therefore, certain basic features of a shop may be culled out: a shop is a business establishment where a systematic or organised commercial activity takes place with regard to the sale or purchase of goods or services, and includes an establishment that facilitates the above transaction as well., The word shop is not defined either in the Employees' State Insurance Act or in the notification. The Act being a social welfare legislation intended to benefit workers belonging to all categories, one has to be liberal in interpreting the words. The definition of a shop which meant a house or building where goods are sold or purchased has now undergone a great change. The word shop occurring in the notification is used in a larger sense than its ordinary meaning. What is now required is a systematic economic or commercial activity and that is sufficient to bring that place within the sphere of a shop. In view of the fact that an establishment has been found to be a place of business and further that a shop is a business establishment, it can be said that a shop is indeed covered under, and may be called a subset of, the term establishment., Analyzing the activity of racing and the facilities provided by the race clubs to indulge in betting activities, the Lords of the Apex Court have held: It is not the case of the appellants that the Club does not provide services. It may be gainsaid that the said services, apart from providing the viewers with a form of entertainment, are available to all members of the public at a mere payment of an admission or entrance fee. The only question, therefore, would be whether such services may be construed to be along the same lines as those provided for by a shop. If the answer is affirmative, then such race clubs would fall within the definition of the term shop, and thereby under the Employees' State Insurance Act as well., By referring to the objects of the Bangalore Turf Club as contained in its Memorandum of Association, it was held: The objects of the appellant include, inter alia, the following: (a) to carry on the business of a race‑club in all its branches and in particular to lay out and prepare lands for the running of horse races, steeplechases or races of any other kind; (d) to establish any clubs, hotels or other conveniences in connection with the company's property; (e) to carry on the business of hotel‑keepers, licensed victualler, refreshment purveyors; (f) to buy, maintain and sell horses and ponies for racing, breeding and training either directly or through riding clubs, studs or other agencies; (j) to establish institutions, schools, funds and other conveniences for training jockeys and riders, both professional and amateur. The above objects are reproduced solely with the intention to establish that the appellant cannot claim that the Turf Club is established for the limited purpose of conducting races. This does not imply that this Court is of the opinion that if the Turf Club were to merely conduct horse races, it would fall out of the purview of a shop. Further, it would not be relevant as to whether the said activities as enlisted above are being conducted as on date. One cannot argue that a given premises may not be a shop based on the grounds that certain contentious activities have been discontinued for the time being. These activities are provided for in the Memorandum of Association and therefore, the Turf Clubs may, legally and as a matter of right, resume them on a future date., It can be safely concluded that the appellant‑turf clubs conduct the activity of horse racing, which is entertainment. The appellant‑turf clubs provide various services to the viewers, ranging from providing facilities to enjoy viewership of the said entertainment, to facilitating betting activities, for a consideration either in the form of admission fee or as commission. An argument may be advanced that not all persons who come to the race would avail the services as provided by the appellant‑turf clubs, however the same would fail as even in the case of a shop in the traditional meaning, a customer may or may not purchase the said goods. What is relevant is that the establishment must only offer the clients or customers goods or services. In this light, it is found that a race‑club of the nature of the appellants would fall under the scope of the term shop and thereby the provisions of the Employees' State Insurance Act would extend upon them by virtue of the respective impugned notifications issued under subsection (5) of section 1 of the Employees' State Insurance Act., Conclusively, it was held that a race club is an establishment and the appellant turf clubs are duly covered under the term shop for the purpose of the Employees' State Insurance Act and the notification issued thereunder., It is this judgment which is heavily relied upon by the Employees' State Insurance Court while setting the impugned judgment. In the background of this judgment, attention is turned to the various clauses contained in the Memorandum of Association which are indicative of systematic commercial activity carried out by the Board of Control for Cricket in India in its functioning. The Board claims that it is the national governing body for cricket in India and its prime objective is to promote cricket in the world and its specific stand is that its functions are not akin to any commercial or business/trading activity. The nature of the Board can be discerned from its Memorandum of Association and Rules and Regulations. The objects of the Board of Control for Cricket in India as enumerated in the Memorandum of Association are multiple and, amongst its various objects, the key object is to control and improve the quality and standard of the game of cricket in India and to lay down policies, road maps, guidelines and to make the rules and regulations in all matters relating to the game of cricket. It also aims to provide for measures necessary for promotion and development of cricket and, for that purpose, organize coaching teams, establish coaching academies, hold tournaments, exhibition matches, test matches, One Day Internationals, Twenty‑20 and any other matches., As the learned counsel for the Board has argued, the object of the Board is to carry out activities for promoting the game of cricket and, while doing so, to earn money but to spend the same on cricket. The argument of the learned counsel, in the wake of certain objectives and purposes of the Board highlighted in the Memorandum of Association, appears prima facie correct. However, when one looks at the commercial angle of its objectives, being to hold matches of distinct categories and permitting cricket fans to watch those matches by purchasing tickets, the Board is engaged in an activity of providing entertainment to the viewers. The objective (i) of the Memorandum of Association contemplates that the tickets of the cricket matches are made widely available in advance to the members of the public at reasonable rate. The Chief Executive Officer of the Board, in his affidavit, highlighted the activities of the Board. In cross‑examination, he admitted that the Board is selling television broadcasting rights to concerned television companies by auction, though he clarified that it is on behalf of the concerned State Cricket Association. He, however, admitted that there is no documentary evidence to make the assertion good. He also admitted that the Board is receiving amount from sponsorship of the Indian cricket team., It is an admitted fact that the Board exercises control over the Indian Premier League cricket matches, through the IPL Governing Council. A categorical admission on behalf of the witness examined by the Board is that the Board is receiving income from sponsorship of the IPL matches. It is also admitted that the IPL matches tickets are sold by the holding franchise team and there is a franchise agreement between the Board and the IPL franchisee in respect of the management of the team. This is clearly indicative of the commercial relationship between them and the duties to be discharged by both parties. A specific admission has come on record from the said witness that the Board is receiving income from the IPL matches and the IPL franchise team is also making payment of a fixed percentage share of their respective income to the Board. The above admissions given by a person who is at the helm of the affairs of the appellant Board go a long way to establish the nature of the activities carried out by the Board. The Board is constituted for permitting the game of cricket, but at the same time, it has also carried out various systematic activities, which are commercial in nature by providing services and entertainment., The question which falls for determination is whether the Board is a shop for the purposes of the Employees' State Insurance Act. The term shop, which has not been defined in the Act, has been covered under section 1(5) of the Employees' State Insurance Act by way of a notification issued by the Government of Maharashtra on 18 September 1978 while exercising its power under subsection (5) of section 1 and, in absence of the definition, one has to turn to the definition of the term in common parlance. The concise Oxford English Dictionary, 11th Edition defines the term shop as a building or part of a building where goods or services are sold. According to Black's Law Dictionary, 7th Edition, 1999, shop is stated to denote a business establishment or place of employment, a factory, office or other place of business. The words and phrases permanent edition Vol. 39 define the term shop as: The word shop means room or building in which the making, preparing or repairing of any article is carried out or in which any industry is pursued, the place where anything is made, the purchasing place or source. In common parlance, shop may denote a place where goods are sold, or a place where goods and things are kept on sale for retail. In Bangalore Turf Club Ltd (supra), the Apex Court referred to the judicial meaning assigned to the term shop and held that, as the Employees' State Insurance Act is a social welfare legislation intended to benefit workers belonging to different categories, it deserves a liberal interpretation., By applying the same analogy to the Board of Control for Cricket in India, where, on ascertaining its nature, functioning and object, it can be seen that the appellant is carrying out a business/commercial activity and earning money out of the said activity. Furthermore, its activities are not only restricted to providing entertainment, but, as has been clearly admitted by Shri Dinesh Johri, television broadcasting rights are also sold by the Board to television companies by auction, which is again a systematic commercial activity. By conducting the Indian Premier League and exercising control over the IPL, which was founded by the Board of Control for Cricket in India in the year 2007, the most attended cricket league in the world and ranked sixth by average attendance amongst all sports leagues, the Board engages in a major sporting event broadcast live on various channels.
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Though the Memorandum of Association prescribe that the income, funds and properties of the Board of Control for Cricket in India shall be utilized and applied solely for promotion of objects of the Board of Control for Cricket in India, to aid and assist financially, or otherwise to promote, encourage, advance and develop the game of cricket, the fact that the Board engages itself in its various activities as indicated above, being purely commercial in nature, there is no reason why the test as laid down by the Hon'ble Supreme Court of India in case of Bangalore Turf Club Ltd (supra), shall not be applied to it since the matches arranged and supervised by the Board enjoy future viewership of entertainment and that too, for a consideration, i.e., on purchase of the tickets. I have no hesitancy to hold that the nature of activities conducted by the Board are commercial in nature and hence, covered under the term shop for the purpose of Employees' State Insurance Act and notification issued thereunder., The learned counsel for the appellant had stressfully placed reliance on the decision of the Employees' State Insurance Tribunal at Mumbai, in case of the Mumbai Cricket Association Vs. Regional Director, Employees' State Insurance Corporation, and urged that by judgment dated 10/2/2015, it has been held that the decision of the Employees' State Insurance Corporation to cover the said association is arbitrary, illegal and bad in law and the Association is not liable to pay any contribution to the Employees' State Insurance Corporation., I have carefully perused the said judgment delivered by the learned judge, presiding the said tribunal and on perusal of an elaborate judgment, it can be seen that the learned judge has miserably failed to consider the decision of the Supreme Court of India in case of Bangalore Turf Club (supra) and instead, referred to various authorities cited before it in the backdrop of the fact that the Bombay Cricket Association is the association of various cricket clubs and/or sports clubs formed for the purpose of promoting, organizing and controlling the game of cricket in Mumbai, Navi Mumbai and Thane district, having its office at Wankhede Stadium, Mumbai., The Association argued that it does not provide any entertainment facilities or catering facilities nor does it involve itself in preparation or manufacturing of any food items and therefore, the provisions of the Employees' State Insurance Act are not applicable. In contrast, the Corporation claimed that the said establishment is a shop within the meaning of Section 1(5) of the Employees' State Insurance Act and the Association is managing and controlling the game of cricket and having large number of individual members as well as membership of different clubs and the association sells tickets whenever cricket matches are played through members of various clubs., The Employees' State Insurance Corporation specifically objected to the application by submitting that the members of the club and their guests are entitled to use the various facilities which are part of the entire complex of Wankhede Stadium, Garware Club, permit room, etc., and various commercial activities are also carried out in the premises and when the cricket match is played, the association permits its members as well as the general public to watch the cricket on payment of fees by selling tickets., Though the decision of the Supreme Court of India in case of Employees' State Insurance Corporation Vs. Hyderabad Race Club was cited before the learned judge, he reached a conclusion that the Bombay Cricket Association is not a shop as the term shop cannot be given a wider meaning and scope than what has been mentioned in the notification, and if the State wanted to include a society within its ambit, it would have specifically provided so., The above finding is exactly contradictory to the observation of the Supreme Court of India in Bangalore Turf Club, and hence I am not ready to accept the submission of learned counsel that the said judgment would bind the subsequent judge and if a subsequent judge of the same court was not in agreement, he should have made a reference to a larger bench. Though it is a well‑accepted proposition that when benches of the same strength of a particular court do not agree with a coordinate bench of the same strength, the matter needs a reference to a larger bench. However, when the earlier bench has ignored a binding precedent and has decided the issue without making reference to the earlier decision delivered by the Supreme Court of India in case of Bangalore Turf Club (supra), I do not think that the impugned judgment suffers from any illegality on account of not making a reference or following the earlier decision in Bombay Cricket Association., The Employees' State Insurance Tribunal, after referring to the documents on record and appreciating the evidence that has come before it, has held that the Employees' State Insurance Act, 1948 is applicable to the appellant Board, since it is covered under the definition of shop under Section 1(5) of the Act. The Corporation as well as the tribunal has noticed a systematic commercial profit‑making activity on behalf of the Board and I concur with the said finding., The Board has its source of income on different counts like holding of international tours, income from IPL, selling rights of broadcasting the cricket matches, sponsorship, sale of tickets, etc. From the ballot sheet, the source of earning of the Board has come before the tribunal and this is not disputed. The Board is admittedly involved in entertaining and from the Memorandum of Association, an inference can be drawn that the Board is carrying out systematic commercial activity and is engaged in providing services to the public at large by engaging its employees, organizing events, promoting cricket as a source of entertainment and thereby collecting funds. It is also engaged in acquisition or purchase of movable or immovable assets, tangible or intangible and authorized to sell or transfer the same for achieving its objectives. It also makes available the facility of canteen, lays out cricket ground and provides amenities for the convenience and benefits of the members, players and cricket fans, etc. The Memorandum of Association is clearly indicative of its activities being commercial in nature and it can be inferred that the Board is engaged in profit‑making activities., The impugned judgment therefore cannot be said to be suffering from any flaw, legal or factual illegality. Considering the inspection note survey report, fifteen employees were found to be employed for wages in the month of January 2007, out of which twelve were drawing salary of Rs 10,000 coupled with engagement of two contractors i.e., M/s Property Guards Security Services and M/s Rahul House Keeping Services, which had also engaged five and three coverable employees in the premises of the Board of Control for Cricket in India. It was held by the Employees' State Insurance Tribunal that in the month of January 2006, there were twenty coverable employees working in the premises of the Board., To prove the report, Smt. Sadhana Pangare, Employees' State Insurance Inspector, stepped into the witness box and proved the survey note. Having once held that the appellant Board is covered by the provisions of the Employees' State Insurance Act, it was recorded that the Board has never paid Employees' State Insurance contribution on the wages paid to any employee, nor any evidence was produced to show whether the two contractors have paid outstanding Employees' State Insurance contribution on the wages paid to their eight employees., Before fixing liability of payment of Employees' State Insurance contribution on the Board, the Employees' State Insurance Tribunal deemed it necessary to ascertain whether the two contractors have paid Employees' State Insurance contribution and therefore remanded the matter back to the authority/Employees' State Insurance Corporation for considering the aspect. The two contractors are directed to be impleaded before the determining authority and the matter is directed to be decided on merits within one year from the date of the order. I do not find any justification in disturbing the said direction issued by the Employees' State Insurance Corporation, Mumbai on 9/9/2021., Limiting the remand only to the aforesaid purpose, by upholding the finding of the Employees' State Insurance Tribunal that the appellant Board of Control for Cricket in India is covered under the notification dated 18/9/1978 issued under the provision of Section 1(5) of the Employees' State Insurance Act, the appeal is dismissed. In view of the dismissal of the appeal, IA No.1026/22 does not survive and is disposed of., On pronouncement of the judgment, learned counsel for the appellant seeks stay of the judgment for a period of six weeks. Prayer granted. The above judgment shall remain stayed for a period of six weeks so as to enable the appellant to approach the Hon'ble Supreme Court of India.
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In this clutch of writ petitions maintained under Article 32 of the Constitution, the Supreme Court of India is called upon to consider the true effect of Article 324 and, in particular, Article 324(2) of the Constitution. The sub‑Article reads as follows: 324(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President., A bench of two learned judges of the Supreme Court of India in Writ Petition (Civil) No. 104 of 2015 passed the following order on 23 October 2018: I.A. No.2 for amendment of writ petition; raising additional facts, grounds and prayer is allowed. The matter relates to the petitioner’s perceived requirement of a full‑proof and better system of appointment of members of the Election Commission. Having heard the learned counsel for the petitioner and the learned Attorney General for India, we are of the view that the matter may require a close look and interpretation of the provisions of Article 324 of the Constitution of India. The issue has not been debated and answered by this Court earlier. Article 145(3) of the Constitution of India would, therefore, require the Court to refer the matter to a Constitution Bench. Accordingly, we refer the question arising in the present proceedings to a Constitution Bench for an authoritative pronouncement. The matter is posted before the Hon'ble Chief Justice of India on the administrative side for fixing a date of hearing., The prayers in Writ Petition (Civil) No. 104 of 2015 are: (i) issue a writ of mandamus or an appropriate writ, order or direction, commanding the respondent to make law for ensuring a fair, just and transparent process of selection by constituting a neutral and independent collegium/selection committee to recommend the name for the appointment of the member to the Election Commission under Article 324(2) of the Constitution of India; (ii) issue a writ of mandamus or an appropriate writ, order or direction constituting an interim neutral and independent collegium/selection committee to recommend the names for the appointment to the vacant post of the member to the Election Commission; (iii) issue a writ of mandamus or an appropriate writ, order or direction commanding the respondent to decide the petition of the petitioner dated 03 December 2014 for making a law for ensuring a fair, just and transparent selection process by constituting an independent and neutral collegium/selection committee for recommending the names for members to the Election Commission., In Writ Petition (Civil) No. 1043 of 2017, filed by Shri Ashwani Kumar Upadhyay, which is also a public interest litigation, the reliefs sought are: (a) direct the Central Government to take appropriate steps to provide the same and similar protection to both the Election Commissioners so that they shall not be removed from their office except in like manner and on the like grounds as the Chief Election Commissioner; (b) direct the Central Government to provide an independent secretariat to the Election Commission of India and declare its expenditure as charged on the Consolidated Fund of India on the lines of the Lok Sabha/Rajya Sabha secretariat; (c) direct the Central Government to confer rule‑making authority on the Election Commission of India on the lines of the rule‑making authority vested in the Supreme Court of India to empower it to make election‑related rules and code of conduct; (d) take such other steps as this Hon'ble Court may deem fit for strengthening the office of the Election Commission of India and allow the cost of the petition to be borne by the petitioner., In Writ Petition (Civil) No. 569 of 2021, filed by the Association for Democratic Reforms, the reliefs sought are: (i) issue an appropriate writ, order or direction declaring the practice of appointment of the Chief Election Commissioner and Election Commissioner solely by the executive as violative of Articles 324(2) and 14 of the Constitution of India; (ii) direct the respondent to implement an independent system for appointment of members of the Election Commission on the lines of the recommendations of the Law Commission in its 255th report of March 2015; the Second Administrative Reform Commission in its fourth report of January 2007; the Dr. Dinesh Goswami Committee in its report of May 1990; and the Justice Tarkunde Committee in its report of 1975., In the latest and last Writ Petition (Civil) No. 998 of 2022, the petitioner is Dr. Jaya Thakur. The relief sought is: (a) issue a writ, order or directions in the nature of mandamus to the respondents to implement an independent and transparent system for appointment of members of the Election Commission on the lines recommended by the Report of the Committee on Electoral Reforms of May 1990, formulated by the Ministry of Law and Justice, Government of India; the Report of the Second Administrative Reforms Commission, Government of India of 2007; and the Report of the Law Commission of India on Electoral Reforms of March 2015., Having referred to the broad complaint and the reliefs sought, we may appropriately notice the contentions of the parties., In Writ Petition No. 1043 of 2017, Shri Gopal Sankaranarayanan makes the following submissions: There is a lacuna in the matter of appointment under Article 324. Of the twelve categories of unelected constitutional authorities, only the Election Commission and the National Commission for Scheduled Castes lack qualifications and eligibility laid down in the Constitution or statute. The words ‘subject to law made’ fall into two broad categories. In the matter of appointments they are represented by Articles 324, 338, 338A and 338B. The other category relates to conditions of service and is represented by Articles 146, 148, 229 and 243K. In the first category, Article 324 assumes critical importance. Shri Sankaranarayanan puts forward the test that if a law could be made under Article 324 providing for a committee to select Chief Election Commissioners and Election Commissioners and also for their qualifications, then there is a void; if such a law cannot be made, then there is no vacuum. Continuing with the argument about the presence of a vacuum, it is contended that the underlying rationale for the Court intervening must be the existence of a fundamental norm or a basic feature that needs to be secured. In this regard, democracy and the imperative to hold free and fair elections are projected. It is also contended that the impact of the vacuum on the rights of the public, both directly and indirectly, must not be ignored. Like the judiciary, the Election Commission must display fearless independence. In the absence of norms regarding appointment, a central norm, viz. institutional integrity, is adversely affected. An independent appointment mechanism would guarantee eschewing even the prospect of bias; favouritism would be largely reduced. The right to vote is a constitutional right. With reference to laws prevailing in other South Asian countries and the United Kingdom, it is contended that clear qualifications and eligibility conditions have been put in place, mandatory tenures are provided, and the removal process is uniform and rigorous. It is contended that after 2001 there has been a sudden change in the matter of appointing Chief Election Commissioners, with successive governments selecting increasingly older candidates, casting a shadow on independence and curtailing tenure. Inaction by the Election Commission even in the face of an alarming increase of criminals in public life must guide this Court. The Election Commission has allegedly indulged in misconduct and favouritism. A vigorous appeal is made to the Court to listen to the constitutional silence and understand the dire need for the Court to step in. This Court has played a proactive role in matters relating to elections and electoral reforms, including interference in affidavits on assets, criminal antecedents, time‑bound election petition trials, special courts for criminal trials of MPs and MLAs, protection from booth capturing, freebies and NOTA. The executive under‑reach justifies judicial oversight and activism, particularly when more than 72 years have passed. No mandamus is sought against Parliament or to implement the Gaikwad Law Commission Report. The following directions are pressed for until a law is made: a committee of five, comprising the Prime Minister, the leader of the Opposition or of the single largest party in the Lok Sabha, the Chief Justice of India, the Speaker of the Lok Sabha and an eminent jurist selected by the first four, to recommend suitable candidates for appointment to the Election Commission. The petitioner would have the Court declare qualifications which include citizenship of India, age between 45 and 61 years, impeccable integrity and high moral character, no direct or indirect affiliation to any political party, and prior service as a member of the Indian Administrative Service, Indian Police Service or as a Judge of a High Court. In terms of the two provisos in Article 324(5), the Election Commissioners must be irremovable except after following the procedure in the first proviso. An independent secretariat must be established. The expenditure of the Election Commission should be brought on par with that of the Supreme Court, the Comptroller and Auditor General and the Union Public Service Commission, and made a non‑votable expenditure charged on the Consolidated Fund of India., An independent Election Commission is necessary for a functioning democracy as it ensures rule of law and free and fair elections. The existing practice of appointment is incompatible with Article 324(2) and is manifestly arbitrary because Article 324(2) mandates that Parliament should make a just, fair and reasonable law. The provision for making a law was rested on the hope that, in due course of time, the Government would exhibit initiative to make such a law and ensure independence and integrity of the members of the Election Commission. It is contended that there is a vacuum. No power under the Constitution can be exercised contrary to Part III, be it the executive or the legislative power. The Government of India (Transaction of Business) Rules, 1961 are silent regarding the process of selection and the eligibility criteria. The convention of appointments being made from members of the bureaucracy is criticised as lacking transparency, objectivity and neutrality, and being inaccessible to the public. Executive‑only involvement ensures that the Commission becomes a partisan body and a branch of the executive. The independence of the Commission is intimately linked with the process of appointment. The concepts of power of reciprocity and loyalty to the appointing body, referred to in Supreme Court Advocates‑on‑Record Association and Another v. Union of India, are invoked. Recent developments casting a shadow on the conduct of the Election Commission are relied upon, including the Report of Justice Madan B. Lokur. Several instances of inaction or omission are pointed out, apart from various commissions and committees which have highlighted the need for change. This Court has stepped in on many occasions. Democracy is a facet of the basic structure of the Constitution. Appointment of members of the Election Commission on the whims of the executive defeats the object of an independent Election Commission. The Election Commission resolves disputes between political parties, including the ruling government, meaning the executive cannot be the sole participant. The practice falls foul of Article 14. Reference is made to the Constituent Assembly Debates. Elaborating on the powers of the Election Commission, it is pointed out that the power to register a political party under Section 29A of the Representation of the People Act, 1951, has come up for consideration. The ruling of this Court in Indian National Congress v. Institute of Social Welfare and Others, that the Election Commission acts in a quasi‑judicial capacity under Section 29A, is relied upon. The Election Commission is clothed under Rules 6 and 8 of the Election Symbols (Reservation and Allotment) Order, 1968 to recognise political parties and allot symbols. Rule 15 of the said order is pressed to highlight that the Election Commission is empowered to decide matters concerning splinter groups within recognised parties. Rule 16A provides for withdrawal and suspension of recognition for breach of the model code of conduct or the instructions of the Commission. The Commission is empowered to enforce the model code of conduct, to ban a candidate from campaigning under Article 324(1), and to remove star campaigners. Reliance is placed on various reports which will be adverted to later. Further support is drawn from the Second Judges case in Supreme Court Advocates‑on‑Record Association and Others v. Union of India and the judgment declaring the NJAC unconstitutional in Supreme Court Advocates‑on‑Record Association and Another v. Union of India. The learned counsel also relies upon the judgment in Prakash Singh and Others v. Union of India and Others relating to police reforms, as well as Vineet Narain v. Union of India and Another, and the Third Judges Case in Special Reference No. 1 of 1998. It is contended that the Court may, apart from declaring appointment by the executive unconstitutional, direct the constitution of a committee to recommend names for appointment on the basis of the reports, including the recommendations of the Law Commission of India in its 255th report., Shri Anup G. Choudhary, learned senior counsel assisted by Virender K. Sharma, appeared on behalf of the petitioner. It is pointed out that there is ad‑hocism flowing from the legislative vacuum. Regional Commissioners have not been appointed since 1951. The role of the Election Commission in a modern election process can be abused by simply manipulating the election schedule. The instrument of instructions sought at the time of passage of amendments to the original article can be filled in by judicial intervention. Appointment is reduced only to bureaucrats, mainly IAS officers, who work in close alliance with their political masters. Appointment must be from a broader pool of talent, including judicial members. The secretariat must have sufficient manpower., Shri Kaleeswaram Raj, learned counsel for the intervenor in Writ Petition (Civil) No. 569 of 2021, contends that the projected vacuum must be conceded as a democratic space left open by the Founding Fathers of the Constitution for future Parliament to fill. He observes that the Constituent Assembly, not being an elected body in the real sense, left many matters to Parliament, which enjoys better democratic legitimacy. Relying upon the Judges cases, he submits that a parallel may be drawn and that this is a glaring instance of legislative inaction. Since denial of free and fair elections vitiates fundamental rights of citizens, judicial intervention is highly necessary. The right to vote is now part of the fundamental right and is a constitutional right. He invites attention to instances in other jurisdictions, including neighbouring countries such as Sri Lanka., The learned Attorney General, Shri R. Venkataramani, addresses the following submissions: Accepting the petitioners’ contention would involve an amendment to the provisions of Article 324. The petitioners rely on various reports, including that of the Central Law Commission, and argue that the existing mechanism has failed and the Union of India has been reluctant to redress the complaint. He asserts that there is no vacuum. Introducing a collegium or body of persons to select the Chief Election Commissioner or the Election Commissioner would require the Court to trample upon the constitutional process of aid and advice of Ministers contemplated under Article 74 of the Constitution of India. There can be no merit in the contention that a six‑year tenure must be inexorably guaranteed. Judicial intervention would disturb the delicate separation of powers between the legislature, the executive and the judiciary. The cases cited rely on an aspirational ideal rather than a disclosed vacuum. A better model of selection cannot form the foundation for this Court to intrude into constitutional provisions. Article 324(2) already contemplates a clear procedure for appointment of the Chief Election Commissioner and the Election Commissioners. Until a law is made providing otherwise, the Founding Fathers laid down that appointment shall be by the President. The Constitution of India follows the Westminster model; the President exercises powers on the advice of the Council of Ministers and is the formal head of state. The power under Article 324(2) is exercised by the President acting on the aid and advice of the Council of Ministers. Article 77 provides for the conduct of business of the Government of India and the rules thereunder. The Attorney General does not dispute that under the rules, the appointment of the Chief Election Commissioner and the Election Commissioners is a matter that need not engage the attention of the Council of Ministers. The rules provide that the Prime Minister is empowered to decide the person to be appointed as the Chief Election Commissioner or an Election Commissioner. In other words, the President exercises the power under Article 324(2) and appoints a person as Chief Election Commissioner or Election Commissioner acting on the advice of the Prime Minister. This system has been in place for more than seven decades with no confusion. A long array of Chief Election Commissioners and Election Commissioners have been appointed by the legitimate method contemplated under Article 324(2). It is further contended that there exists no identifiable wrong or trigger point to warrant judicial interference. Elections have been held and voting rights ensured to millions of eligible voters, with nearly 68 per cent polling. The Election Commission of India has entered into various agreements under the auspices of the United Nations, sharing its expertise for elections in other countries. The petitioners have not demonstrated that the independence of the Chief Election Commissioner or the Election Commissioner is under threat. The Election Commission is regulated in the discharge of its functions by law in every manner. The matters relating to appointment have been settled by this Court in T.N. Seshan, Chief Election Commissioner of India v. Union of India and others. The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 does not deal with the process of selection. It is a matter of fact that Election Commissioners have been appointed from senior members of the civil services, as no government has provided for any other source and Parliament has not intervened. The system has worked well under Article 324(2). Any aberrations or illegalities in appointment or acts or omissions by appointees are subject to correction by the superior courts under judicial review. Section 4 of the 1991 Act provides for a six‑year tenure for both Election Commissioners and the Chief Election Commissioner. Based on observations in T.N. Seshan, the government has followed a sound practice of appointing officers from the civil services. The six‑year tenure is an ideal; strict adherence would have introduced problems, leading to a composite tenure concept where the incumbent can look forward to an approximate six‑year term, whether as Election Commissioner or Chief Election Commissioner. A database of serving or retired officers of the rank of Secretary to the Government of India/Chief Secretaries is used; the Minister of Law and Justice recommends a panel for the Prime Minister and the President from this database. Unless this Court finds non‑adherence to Section 4 of the 1991 Act to constitute a subversion of the independence of the Election Commission requiring redress, it need not consider aspirational propositions occupying an imagined vacuum. The reports relied upon by the petitioners are based on systems in other jurisdictions. The Constituent Assembly, though aware of other mechanisms, deliberately chose the method found in Article 324(2). There is no identifiable wrong or continuing wrong. The decisions empowering this Court to lay down guidelines were rendered when a vacuum clearly existed. The Court was invited to interfere when a fundamental right was found to exist or was saved under an international treaty. In the present batch of cases, no fundamental right is involved to support interference. Article 324(2) lays down a procedure, signalling the absence of any vacuum. The non‑existence of a vacuum is shown by the fact that several Chief Election Commissioners and Election Commissioners have been appointed as needed in the past. A perceived advancement in the method of appointment, based on the reports, including the Law Commission of India, would scarcely justify violating the Constitution. The Attorney General reminds that this Court is being invited to apply principles applicable to ordinary statutes to the interpretation of the Constitution itself, which is impermissible., Relying upon Article 53, which deals with the executive power of the Union, it is contended that the law contemplated under Article 324(2) is the law contemplated under Article 53(3)(b). In the absence of such a law, the President has the constitutional power. The constitutional validity of Article 324 cannot be questioned as it is part of the original Constitution. The Constitution provides a complete machinery to deal with appointments to the Commission. The Vineet Narain judgment dealt with a lack of statutory enactment, not a constitutional provision. Any direction to include a non‑executive would violate the doctrine of separation of powers. Reliance is placed on the judgment of this Court in Samsher Singh v. State of Punjab and Another. Article 324(2) cannot impose a constitutional duty on Parliament to legislate. Reliance is placed on T.N. Seshan to contend that the President is the appointing authority and that the Chief Election Commissioner cannot be equated with Supreme Court judges. The doctrine of separation of powers is emphasized. Separation of powers, it is pointed out, is a reflection of democracy itself. The learned Solicitor General urges the Court to exhibit judicial restraint. A causa omissa may not justify judicial interference. Matters relating to policy must remain immune from the judicial radar. What is involved in this case is essentially a political question., Shri Balbir Singh contends that there is no vacuum and no trigger. Unlike the position in Vishakha, there is no dire need. The efficient working of the Election Commission demonstrates independence, having conducted several elections under its aegis. The Election Commission of India is recognised worldwide. A utopian model cannot be the premise for inserting guidelines when existing provisions are working well. The extent of neutrality and transparency invoked by the petitioners cannot form a sound basis for Court interference., It is appropriate to understand the historical perspective, including the debates in the Constituent Assembly. In The Framing of India’s Constitution by B. Shivarao, the following narrative is presented regarding franchise and elections. In the Government of India Act, 1935, and earlier statutes, the conduct of elections was left to the executive—central or provincial governments—according as the election was to the central or state legislature. In the Constituent Assembly discussions, a consensus emerged that the right to vote should be treated as a fundamental right and that an independent machinery to conduct elections should be set up, free from local pressures and political influences. The Fundamental Rights Sub‑Committee and the Minorities Sub‑Committee discussed these issues. K.M. Munshi’s draft articles on fundamental rights included the clause: ‘Every citizen has the right to choose the Government and the legislators of the Union and his State on the footing of equality in accordance with the law of the Union or the unit, as the case may be, in free, secret and periodic elections.’ The sub‑committee approved that (1) universal adult suffrage must be guaranteed by the Constitution; (2) elections should be free, secret and periodic; and (3) elections should be managed by an independent commission set up under Union law. To give effect to these conclusions, the following recommendation was drafted for inclusion in the sub‑committee’s report: (1) Every citizen not below 21 years of age shall have the right to vote at any election to the Legislature of the Union or of any unit thereof, or, where the Legislature is bicameral, to the lower chamber, subject to disqualifications on grounds of mental incapacity, corrupt practice or crime, and qualifications relating to residence as may be required by law; (2) The law shall provide for free and secret voting and for periodic elections to the Legislature; (3) The superintendence, direction and control of all elections to the Legislature, whether of the Union or of a unit, including the appointment of Election Tribunals, shall be vested in an Election Commission for the Union or the unit, appointed in all cases in accordance with the law of the Union. There was some difference of opinion about vesting so much power in the Union in the matter of Election Commissions.
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It will be seen that, in terms of the recommendation made by the sub‑committee, the appointment of all Election Commissions, irrespective of whether they were to function in relation to elections to the Legislature of the Union or in relation to elections to the Legislature of a unit, was to be regulated by Union law. Some members of the sub‑committee felt that it would be an infringement of the rights of the units if such overriding authority was given to Union law in matters relating to elections to the Legislatures of the units. Nevertheless the recommendation as included in the draft was adopted by the sub‑committee by a majority vote., The Minorities Sub‑Committee considered these provisions at its meeting held on 17 April and accepted these recommendations. The only point that arose at the meeting was raised by Syama Prasad Mukerjee, who thought that minorities should be effectively represented in these Election Commissions. Jairamdas Daulatram did not think it practicable to provide for separate representation for minorities and suggested that the Election Commissions should be constituted as impartial bodies that inspire confidence among all parties and communities. Accepting this suggestion, the Minorities Sub‑Committee proposed in its report that Election Commissions should be independent and quasi‑judicial in character., The Advisory Committee on Fundamental Rights, Minorities, and Tribal and Excluded Areas considered this matter at its meetings of 20 and 21 April. There was unanimous acceptance of the principles formulated by the Fundamental Rights Sub‑Committee. Discussion centred mainly on whether the chapter on fundamental rights was the proper place for laying down these matters pertaining to electoral law., C. Rajagopalachari was of the view that franchise would not ordinarily be a part of fundamental rights; P. R. Thakur pointed out that the proposal not only made adult franchise compulsory, but also provided for direct elections, thereby prejudging the issue of direct elections. He expressed the view that the Advisory Committee, dealing with fundamental rights, could not appropriate the jurisdiction to decide on this issue. Doctor B. R. Ambedkar, on the other hand, was clearly and emphatically of the opinion that adult franchise and all provision for its free and fair exercise should be recognized as being in the nature of fundamental rights., He said: 'So far as this committee is concerned, my point is that we should support the proposition that the committee is in favour of adult suffrage. The second thing that we have guaranteed in this fundamental right is that the elections shall be free and the elections shall be by secret voting. We have not said that they shall be direct or they shall be indirect. This is a matter that may be considered at another stage. The third proposition which this fundamental clause enunciates is that in order that elections may be free in the real sense of the world, they shall be taken out of the hands of the Government of the day, and that they should be conducted by an independent body which we may here call an Election Commission. We have also given permission in sub‑clause (3) of this clause that each unit may appoint its own Commission. The only thing is that the law shall be made by the Union. The reason for this is that later on there will be a clause in the Constitution which will impose an obligation upon the Union Government to protect the Constitution framed by themselves for the units. Therefore we suggested that the Union should have the power of making a law, although the administration of that law may be left to the different units.', There was unanimous support for the principles enunciated by Doctor Ambedkar but Rajagopalachari argued that it would not be proper to deal with this issue as a fundamental right. He said that it could not be taken for granted that the Union Legislature would be elected by the direct vote of all citizens from all India. He therefore suggested that matters relating to franchise should be dealt with when they arose in connection with the Constitution and not be prejudged as fundamental rights. Eventually a compromise solution suggested by Govind Ballabh Pant was adopted, and it was decided that these recommendations need not go as part of the clauses on fundamental rights; but that in the letter forwarding the report of the Advisory Committee the Chairman should make it clear that the committee recommended the adoption of these proposals. In accordance with this decision the Advisory Committee recommended that, instead of being included in the chapter of fundamental rights, the provision regarding the setting up of an independent Election Commission, along with the other two proposals regarding adult franchise and free and fair elections to be held periodically, should find a place in some other part of the Constitution., In his memorandum on the principles of a model Provincial Constitution circulated on 30 May 1947, B. N. Rau, the Constitutional Adviser, included a provision that the superintendence, direction and control of elections, including the appointment of election tribunals, should be vested in the Governor acting in his discretion, subject to the approval of the Council of State. Likewise, in the memorandum on the Union Constitution circulated on the same date, he included a similarly comprehensive provision that the control of central elections, including the appointment of election tribunals, should be vested in the President acting in his discretion; the intention of this provision was to make available to the President the advice of the Council of State., The Provincial Constitution Committee in its report of 27 June 1947 accepted the suggestions in the Constitutional Adviser’s memorandum but deleted the reference to the approval of the Council of State. The Union Constitution Committee deleted all the suggestions for the exercise of discretionary powers by the President and also the proposal for a Council of State. The committee, however, took a definite step in the direction of a centralized authority in the matter of elections: according to its recommendations, all powers of supervision, direction and control in respect of the federal as well as provincial elections would be vested in a Commission to be appointed by the President. The Union Powers Committee expanded this proposal by the inclusion in the Federal Legislative List of the subject ‘All Federal elections: and Election Commission to superintend, direct and control all Federal and Provincial elections.’, The provisions suggested in the model Provincial Constitution came up for discussion in the Constituent Assembly on 18 July 1947. The Constitutional Adviser, in his Draft Constitution of October 1947, provided that the superintendence, direction and control of all elections to the Federal Parliament and Provincial Legislatures (including the appointment of Election Tribunals for the decision of doubts and disputes in connection with elections to Parliament and to Provincial Legislatures) and of all elections to the offices of President, Vice‑President, Governor and President. The Drafting Committee altered this scheme and in its draft the power of appointing an Election Commission for supervising elections to the office of Governor and to the State Legislature was vested in the Governor. The Drafting Committee expressed the definite opinion that the Election Commission for provincial elections should be appointed by the Governor. This view underwent a radical change subsequently and on 15 June 1947, when the article came up for discussion in the Constituent Assembly, Doctor B. R. Ambedkar introduced a new article which made comprehensive provision for a Central Election Commission to be in charge of all Central and State elections. Draft Article 289 later blossomed into Article 324 of the Constitution., Amendment No. 99 was moved by Doctor B. R. Ambedkar to the original Article 289. The original Article 289 read as follows: 289. The superintendence, direction and control of elections to be vested in an Election Commission. (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution, including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and to the Legislatures of States shall be vested in a Commission (referred to in the Constitution as the Election Commission) to be appointed by the President. (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may, from time to time appoint, and when any other Election Commissioner is so appointed, the Chief Election Commissioner shall act as the Chairman of the Commission. (3) Before each general election to the House of the People and to the Legislative Assembly of each State and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President shall also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on it by clause (1) of this article. (4) The conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from the office except in like manner and on the like grounds as a judge of the Supreme Court and the conditions of the service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (5) The President or the Governor or Ruler of a State shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1) of this article., The amendment contemplated substitution of the original Article 289 inter alia as follows: (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may, from time to time appoint, and when any other Election Commissioner is so appointed, the Chief Election Commissioner shall act as the Chairman of the Commission. (4) The conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from the office except in like manner and on the like grounds as a judge of the Supreme Court and the conditions of the service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner., Doctor B. R. Ambedkar stated: The House will remember that at a very early stage in the proceedings of the Constituent Assembly, a Committee was appointed to deal with what are called Fundamental Rights. That Committee made a report that it should be recognised that the independence of the elections and the avoidance of any interference by the executive in the elections to the Legislature should be regarded as a fundamental right and provided for in the chapter dealing with Fundamental Rights. When the matter came up before the House, it was the wish of the House that while there was no objection to regard this matter as of fundamental importance, it should be provided for in some other part of the Constitution and not in the Chapter dealing with Fundamental Rights. The House affirmed without any dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any interference from the executive of the day. In pursuance of the decision of the House, the Drafting Committee removed this question from the category of Fundamental Rights and put it in a separate part containing articles 289, 290 and so on., He further remarked that the appointment of the Chief Election Commissioner and other Election Commissioners should be subject to the provisions of any law made in this behalf by Parliament. He compared the Indian situation with the United States of America, where Article II Section 2 of their Constitution provides that certain appointments cannot be made by the President without the concurrence of the Senate, thereby checking the President’s power. He noted that while this American check is salutary, it could create administrative difficulties in India because Parliament may not be in session when an appointment is required. He suggested that a possible solution would be an Instrument of Instructions to the President, obligating the President to consult a designated body before making any appointment, though he admitted that the exact form of such a mechanism was uncertain., He proposed an amendment reading: The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in this behalf by Parliament, be made by the President., The amendment proposed by Professor Shibban Lal Saksena was negatived and the amendment proposed by Doctor B. R. Ambedkar was adopted. Thus, Article 289 as amended was added to the Constitution and appears as Article 324. B. Shiva Rao observed that leaving a great deal of power in the hands of the President gave room for political influence by the Central Government in the appointment of the Chief Election Commissioner and the other Election Commissioners, and that Parliament should be authorised to make provision for these matters by law. K. M. Munshi, while supporting Doctor Ambedkar’s proposal, suggested that the appointment of the Chief Election Commissioner and the other Election Commissioners be subject to law made by Parliament, and that the President’s power to make rules regulating their conditions of service should likewise be subject to any law made by Parliament. With these modifications the article was adopted as Article 324., The Constituent Assembly of India can be proximately traced to the deliberations of the Cabinet Mission. The broad features were as follows.
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The members of the Constituent Assembly were to be elected not on the basis of adult suffrage. At the time, that is, in 1946, India was still under British rule. British India broadly consisted of the Governor's provinces and the Chief Commissioner’s provinces. There were also a large number of princely states. An interim government, based on elections, was put in place. There were also at the same time provincial legislative bodies. The members of the Constituent Assembly came to be elected by the members of the provincial assemblies and they were not directly elected by the people of the country as such. Shri Kaleeswaram Raj is therefore correct that the Constituent Assembly was not directly elected by the people. There were changes which were necessitated by the partition. Suffice it to note that there were 238 members representing the Governor's and other provinces. This is besides 89 sent by the princely states. The first meeting of the Assembly was held on 9th December, 1946., Shri B.N. Rau was appointed as the constitutional advisor. He made a draft constitution. A drafting committee, drawn from the members of the Constituent Assembly in turn with the help of the Secretariat, brought out two further drafts, which were published. Public discussion ensued. Thereafter, the draft articles were discussed in the Constituent Assembly. There were further amendments. It is to be noticed also that the humongous task necessarily led to the creation of several committees. The most prominent of them can be perceived as the drafting committee, the advisory committee and various sub-committees which included the sub-committee on fundamental rights., In regard to the use of Constituent Assembly debates, the law has not stood still. At any rate, whatever may be the controversy, as regards its employment to discern the purport of a provision there can be no taboo involved in its use to understand the history of a provision under the Constitution and the various steps leading up to and accompanying its enactment. In this regard, we may refer to the following view expressed in Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another: If the debates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution including its derivation, that is, the various steps leading up to and attending its enactment, to ascertain the intention of the makers of the Constitution, it is difficult to see why the debates are inadmissible to throw light on the purpose and general intent of the provision. After all, legislative history only tends to reveal the legislative purpose in enacting the provision and thereby sheds light upon legislative intent. It would be drawing an invisible distinction if resort to debates is permitted simply to show the legislative history and the same is not allowed to show the legislative intent., In fact, in a recent judgment by Justice Ashok Bhushan, which is partly concurring and partly dissenting, reported in Dr. Jaishri Laxmanrao Patil v. Chief Minister and others, the Supreme Court of India approved, after referring to the decisions of this Court on the point, the use of Constituent Assembly debates., The members of the Constituent Assembly were undoubtedly concerned over the need to ensure independence of the Election Commission. Under the Government of India Act, 1935, the earlier law, it was the Executive which was conferred the power to conduct the election. Initially, there was a consensus of opinion that the right to vote was to be made a fundamental right. In the draft article by Shri K.M. Munshi, he contemplated providing for the right to choose for every citizen and a free, secret and periodic election. The Fundamental Rights Sub‑Committee also approved that there must be universal adult franchise guaranteed by the Constitution. The election was to be free, secret and periodic. Most importantly, the Fundamental Rights Sub‑Committee in the meeting held on 29.03.1947 contemplated that an independent Commission must be set up under Union law. A recommendation providing for an Election Commission being appointed in all cases with the law of the Union was made. It becomes clear from a perusal of the work Framing of India’s Constitution by B. Shiva Rao that some disputes arose relating to the power being conferred on the Union in the matter of elections. The dispute essentially related to clothing the Commission with power to conduct elections in regard to the State Legislatures, besides the Union Legislature. The Minority Sub‑Committee also made a report that the Election Commission should be independent and quasi‑judicial in character. The Advisory Committee on Fundamental Rights, Minority, Tribal and Excluded Area also accepted the principles formulated by the Fundamental Rights Sub‑Committee. However, the view was expressed by Shri C. Rajagopalachari that the right to vote should not be a part of fundamental right. Dr. Ambedkar specifically opined that in order that election may be free in the real sense of the word, they shall be taken out of the hands of the government of the day and be conducted by the independent body called the Election Commission. Shri C. Rajagopalachari, however, persevered with the theme that the matter relating to franchise may not find itself among the provisions providing for Fundamental Rights. Shri Govind Vallabh Pant suggested a compromise and the Advisory Committee thereby recommended that instead of being included in the Chapter on Fundamental Rights, the provisions relating to franchise and to an independent Election Commission should be located in another part of the Constitution., In his work Framing of India’s Constitution, B. Shiva Rao has not minced words by commenting that by leaving a great deal of power in the hands of the President, it gave room for exercising political influence in the appointment of the Election Commissioner and other election commissioners. The remedy contemplated was that Parliament would make a law to regulate the matter. There was severe criticism, particularly by Shri Kunzru and Professor Shiben Lal Saxena, and it was thereupon that Shri K.M. Munshi, while supporting Ambedkar’s amendment to the original article, recommended that the appointment be subject to the law made by Parliament. It is on this fundamental basis that the amendment proposed by Dr. Ambedkar to the original article was adopted., Professor Saxena was emphatic that the draft amended Article 289, which contemplated appointment being made by the President without anything more, would necessarily mean that the Prime Minister would end up appointing the Commission. He warned that it would not ensure their independence and that in future no Prime Minister should abuse the right to appoint. Shri H.V. Pataskar felt Article 289(2) sufficed. The thought which comforted the member was that not merely some official of the Government could be appointed as Election Commissioners but people in the position of High Court Judges. Pandit Hirday Nath Kunzru clearly articulated the anxiety and the need for the preparation of the electoral roll and the conduct of the elections to be entrusted to people who were free from political bias and whose impartiality could be relied upon in all circumstances. The plight of the President, who has to act on the advice of the Prime Minister, was highlighted. It was the learned member who suggested the remedy that Parliament should be authorised to make provisions for these matters by law. This was also the view of the Sub‑Committee on Fundamental Rights. Shri K.M. Munshi took the view that the Election Commission must remain to a large extent an ally of the Government. He felt that the pursuit of independence of the Election Commission should not result in a kingdom within a kingdom and it was not to be a quasi‑independent organ of the Government, because the Election Commission would necessarily have to rely upon officers who would have to be provided by the Government., Dr. Ambedkar acknowledged the existence of a great deal of merit in the fear that guaranteeing a fixed and secure tenure would be of no use if there was no provision in the Constitution to stand in the way of either an incompetent or unfair official becoming and running the Election Commission. He foresaw the danger of the Election Commissioners being persons likely to be under the control of the Executive. The provision as proposed to be amended by Dr. Ambedkar did not provide against an unfit person being appointed to the Election Commission. He predicted that the question would emerge as one of the greatest headaches. He found solace in the prospect of an instrument of instructions being issued to the President to guide the appointment to the Election. To allay the apprehensions voiced by both Professor Saxena and Pandit Kunzru, Article 324(2), as it presently obtains, came to be proposed by way of amendment of the original article. In other words, before the words ‘made by the President’, the words ‘subject to provisions of any law made in this behalf by Parliament’ were to be inserted., We understand the historical perspective and the deliberations of the Fundamental Rights Sub‑Committee, the Drafting Committee and the other Sub‑Committees and finally of the Constituent Assembly itself as follows: A golden thread runs through these proceedings. All the members were of the clear view that election must be conducted by an independent Commission. It was a radical departure from the regime prevailing under the Government of India Act, 1935. The members very well understood that providing for appointment of members of the Election Commission by the President would mean that the President would be bound to appoint the Election Commissioner solely on the advice of the Executive, which was understood as on the advice of the Prime Minister. The model of appointment prevailing in the United States was deliberated and not approved. Though Shri K.M. Munshi was not in favour of giving complete independence to the Election Commission and felt that it should be an ally of the Government, it did not represent the views of the predominant majority of the members. Right to vote was originally contemplated as a Fundamental Right but finally it was found more appropriate that it should be contained in a separate part of the Constitution. It is equally clear that the members of the committees, including the Constituent Assembly, wanted the appointment to the Election Commission not to be made by the Executive. The uncertain prospect of an instrument of instructions finally led the Assembly to adopt the amendment suggested by Dr. Ambedkar, which was initially the suggestion made by Pandit Kunzru and seconded by Shri K.M. Munshi. In short, the Founding Fathers clearly contemplated that Parliament would step in and provide norms governing the appointment to such a uniquely important post as the Chief Election Commissioner and the Election Commissioners. Dr. Ambedkar’s final words regarding the debate surrounding Article 324 expressed regret that he did not have time to circulate the amendments., It is important that we understand that when the Founding Fathers inserted the words ‘subject to the provisions of any law to be made by Parliament’, it was intended that Parliament would make a law. While we would not go so far as to hold that Parliament is under a compellable duty which this Court can enforce by a mandamus to make a law, we find that the Constituent Assembly clearly intended that Parliament must make a law within the meaning of Article 324(2). Such an understanding of Article 324(2) may be contrasted with similar provisions in the Constitution which also contemplated enabling the making of law by Parliament. This brings us to the question relating to an evaluation of similar provisions in the Constitution., One of the contentions of the respondent Union is that this Court must bear in mind the snowballing effect of the interpretation canvassed by the petitioners being accepted in other situations governed by other articles., Articles in the Constitution that employ the words ‘subject to any law to be made by Parliament’ include Article 98, which provides that each House of Parliament shall have a separate secretarial staff and may, by law, regulate the recruitment and conditions of the staff. Article 98(3) empowers the President, in consultation with the Speaker of the House of the People or Chairman of the Council of States, to make rules till Parliament makes law. Article 137 declares that, subject to the provisions of any law made by Parliament or rules made under Article 145, the Supreme Court shall have the power of review. The absence of a law made by Parliament would have little effect on the purport of Article 137, which differs from Article 324(2). Article 142(2) uses the same expression and provides that the Supreme Court may order the attendance of any person, the discovery or protection of any document or the investigation or punishment for any contempt. The absence of any law under Article 142 cannot produce the impact which Article 324(2) is capable of producing. Article 145 uses the expression ‘subject to the provisions of any law made by Parliament’ for the Supreme Court to make rules for regulating practice and procedure of the Court, which bears no resemblance to the context, purpose and background of Article 324(2). Article 146 deals with officers and servants of the Supreme Court and, subject to the provisions of any law made by Parliament, the conditions of service of officers and servants shall be prescribed by rules made by the Chief Justice of India, with the President’s approval for matters of salary, allowances, leave or pensions., Article 146(2) essentially deals with the conditions of service of officers and servants of the Supreme Court. The Founding Fathers provided rule‑making power with the Chief Justice of India. There can be no valid comparison between the employees of the Supreme Court and the members of the Election Commission, as there is no safeguard provided against removal as is contemplated for the Chief Election Commissioner and Election Commissioners., Article 148 deals with the appointment of the Comptroller and Auditor General of India. It provides that the Comptroller and Auditor General shall be appointed by the President by warrant under his hand and seal and shall be removed only in like manner and on the like grounds as a Judge of the Supreme Court. The salary and conditions of service shall be determined by Parliament by law, and until then shall be as specified in the Second Schedule. The Comptroller and Auditor General shall not be eligible for further office after ceasing to hold office. Subject to the provisions of the Constitution and any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be prescribed by rules made by the President after consultation with the Comptroller and Auditor General. The administrative expenses shall be charged upon the Consolidated Fund of India. While the appointment of the Comptroller and Auditor General is made by the President and removal safeguards are provided, Article 324(2) makes the appointment of the Chief Election Commissioner and Election Commissioners by the President subject to a law to be made by Parliament, a distinction not present in Article 148., Article 187 provides for a Secretariat for the State Legislature and mirrors Article 98, except that the legislative body is the State Legislature and the Governor takes the place of the President. Article 229 deals with officers, servants and expenses of the High Court. There can be no valid comparison between the Chief Election Commissioner and Election Commissioners contemplated under Article 324(2) and the officers and servants of the High Court, as the latter are not extended protection against removal. Article 243K, inserted by the Constitution (Seventy‑Third) Amendment Act, 1992, deals with elections to the Panchayats. The superintendence, direction and control of the preparation of electoral rolls and conduct of elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner appointed by the Governor. Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of the State Election Commissioner shall be such as the Governor may by rule determine, provided that the State Election Commissioner shall not be removed except in like manner and on the like ground as a Judge of a High Court and the conditions of service shall not be varied to his disadvantage after appointment. Parliament was aware of the mandate of Article 324(2) when it inserted Article 243K, and deliberately chose not to provide for the making of any law regarding the appointment of the State Election Commissioner, thereby limiting judicial intervention., Articles 338, 338A and 338B provide for the National Commissions for Scheduled Castes, Scheduled Tribes and Backward Classes respectively. Subject to the provisions of any law made by Parliament, the commissions shall consist of a Chairman, Vice‑Chairman and other members appointed by the President, and the conditions of service and tenure shall be determined by the President by rule. Article 324(5) similarly contemplates a law to regulate the conditions of service and tenure of the Election Commissioners. Parliament has enacted the 1991 Act as contemplated in Article 324(5), but no law has been made regarding the appointment of the Election Commissioners, leaving the old regime in place., Article 367(3) deals with the meaning of a foreign State for the purpose of the Constitution and, subject to a proviso, declares that subject to the provisions of any law made by Parliament, the President may, by order, declare any State not to be a foreign State for such purposes, as may be specified in the order. The matter is governed fully by the Constitution (Declaration as to Foreign States) Order, 1950. Apart from the apparent absence of any imperative need for a law, the matter is governed by an order issued under the Constitution, which itself is of a statutory nature. No further discussion is needed to conclude that Article 324(2) is unique in its setting and purpose., In 1951, Shri Sukumar Sen was appointed as the first Chief Election Commissioner of India. He was a civil servant and former Chief Secretary of the State of West Bengal. His term lasted eight years and two hundred and seventy‑three days. Shri Kalyan Sundaram, the second Chief Election Commissioner, also a civil servant and the first Law Secretary who chaired the Indian Law Commission from 1968 to 1971, was appointed on 20 December 1958 and his term ended on 30 September 1967, lasting eight years and two hundred and eighty‑four days., The Government of India (Transaction of Business) Rules, 1961 have been referred to by the parties. Under Rule 8, the cases to be submitted to the Prime Minister and President are described as all cases of the nature specified in the Third Schedule. In the Third Schedule, Serial No. 22 describes appointment, resignation and removal of the Chief Election Commissioner and other Election Commissioners in Column 1 under the heading ‘nature of cases’. Article 324 is referred to, and the column ‘authority to whom the matter is submitted’ indicates the Prime Minister and the President., Shri S.P. Sen Verma was the third Chief Election Commissioner and was appointed on 1 October 1967, serving until 30 September 1972, a term of five years. Shri Nagendra Singh, a civil servant, member of the Constituent Assembly and later a Judge of the International Court of Justice, had a short tenure as the fourth Chief Election Commissioner from 1 October 1972 to 6 February 1973, lasting one hundred and twenty‑eight days. The fifth Chief Election Commissioner was Shri T. Swaminathan, also a civil servant who became a Cabinet Secretary; his stint was from 7 February 1973 to 17 June 1977, lasting four years and ten days. Shri S.L. Shakdher was appointed as the sixth Chief Election Commissioner. He was also a civil servant and Secretary General of the Lok Sabha.
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His term commenced on 18 June 1977 and expired on 17 June 1982 (his term lasted for four years and three hundred and sixty‑four days). Shri R. K. Trivedi, the Seventh Chief Election Commissioner, was also a Civil Servant, and he had a term of three years and one hundred and ninety‑six days. Shri R. V. S. Perishastri was the Eighth Chief Election Commissioner. He was the Secretary to Government and his term lasted from 01 January 1986 till 25 November 1990., It was for the first time that Election Commissioners, two in number, viz. Shri V. S. Seigel and Shri S. S. Dhanoa, were appointed as Election Commissioners on 16 October 1989. However, the Notification dated 16 October 1989 was rescinded on 01 January 1990. The rescission was challenged by Shri S. S. Dhanoa and culminated in the judgment of the Supreme Court of India reported in S. S. Dhanoa v. Union of India and Others., A Committee known as the Goswami Committee made certain recommendations. On its heels, Parliament passed an Act titled The Chief Election Commissioner and Other Commissioners (Conditions of Service) Act, 1991 (hereinafter referred to as the 1991 Act). It is noteworthy that this is the law made by Parliament and relates to Article 324(5), which contemplated a law made by Parliament regulating conditions of service of the Chief Election Commissioner and the Election Commissioners., Smt. V. S. Ramadevi, who had the shortest tenure as the Ninth Chief Election Commissioner, was drawn from the Civil Services. Her term lasted for sixteen days. The Tenth Chief Election Commissioner was Shri T. N. Seshan, who was the Eighteenth Cabinet Secretary of India and had a term of six years commencing from 12 December 1990 till 11 December 1996., The 1991 Act was amended initially by an Ordinance and later by a law made by Parliament; the Ordinance was published on 01 October 1993. Shri M. S. Gill and Shri G. V. G. Krishnamurthy were appointed as Election Commissioners with effect from 01 October 1993. The amendment and the appointments were challenged by Shri T. N. Seshan, the Chief Election Commissioner, and others; the challenge was repelled by a Constitution Bench of the Supreme Court of India, and the judgment is reported in T. N. Seshan (supra)., The founding Fathers contemplated an Election Commission consisting of a permanent figure, viz. the Chief Election Commissioner, and such Election Commissioners as may be necessary. For nearly forty years after the adoption of the Constitution of India, there were only Chief Election Commissioners. After the judgment in T. N. Seshan (supra), the Election Commission of India became a team consisting of the Chief Election Commissioner and two Election Commissioners., With the term of Shri T. N. Seshan ending on 11 December 1996, the trend began of appointing Election Commissioners as Chief Election Commissioners. Thus, Shri M. S. Gill became the Chief Election Commissioner. Shri M. S. Gill, also a Civil Servant, served as Chief Election Commissioner for a period of four years and sixty‑nine days, i.e., from 12 December 1996 till 13 June 2001. Shri G. V. G. Krishnamurthy continued till 30 September 1999 (nearly six years) as Election Commissioner. Shri James Michael Lyngdoh became an Election Commissioner in 1997 and was made the Chief Election Commissioner on 14 June 2001, on the expiry of the term of Shri M. S. Gill, and he continued till 07 February 2004 (the term lasted two years and two hundred and sixty‑nine days)., The details of the Election Commissioners and the Chief Election Commissioners from 2000 to 2022 are as follows:\n\n1. Krishnamurthy, Election Commissioner: 01 January 2000 – 15 May 2005 (5 years 3 months 16 days); Chief Election Commissioner: 29 June 2006 – 5 years 17 days.\n2. N. Gopalaswamy: 20 April 2009 – 5 years 2 months 13 days.\n3. Navin B. Chawla, Election Commissioner: 16 May 2000 – 07 July 2010 (5 years 2 months 14 days).\n4. Quraishi, Election Commissioner: 30 June 2000 – 10 June 2012 (5 years 11 months 12 days).\n5. Sampath, Election Commissioner: 21 April 2000 – 15 January 2015 (5 years 8 months 26 days).\n6. H. S. Brahma, Election Commissioner: 24 August 2010 – 18 April 2015 (4 years 7 months 26 days).\n7. Nasim Zaidi, Election Commissioner: 07 January 2012 – 05 July 2017 (4 years 10 months 29 days).\n8. Achal Kumar Joti, Election Commissioner: 07 May 2012 – 22 January 2018 (2 years 8 months 16 days).\n9. O. P. Rawat, Election Commissioner: 14 August 2012 – 01 December 2018 (3 years 3 months 18 days).\n10. Sunil Arora, Election Commissioner: 31 August 2012 – 12 April 2021 (3 years 7 months 13 days).\n11. Ashok Lavasa (voluntary resignation): 2 years 7 months 9 days.\n12. Sushil Chandra, Election Commissioner: 15 February 2012 – 14 May 2022 (3 years 3 months).\n13. Rajiv Kumar, Election Commissioner: 01 September 2012 – 14 May 2022 (4 years 8 months 14 days, expected).\n14. Anup Chandra Pandey, Election Commissioner: 08 June 2012 – 2 years 8 months 7 days (expected)., On 07 October 1989 the President, in exercise of his powers under Clause 2 of Article 324 of the Constitution, fixed the number of Election Commissioners as two. This was to continue until further orders. Later, on 16 October 1989, two persons, one of whom was Shri S. S. Dhanoa, were appointed as Election Commissioners. It was the first time after Independence that Election Commissioners were appointed, thereby making the Election Commission of India a multi‑Member Commission. In less than three months, on 01 January 1990, exercising power under Article 324(2), the President rescinded the Notification dated 07 October 1989, which had created the two posts of Election Commissioner, and also rescinded the Notification dated 16 October 1989 that had appointed the two Election Commissioners. The latter Notifications were challenged by Shri S. S. Dhanoa before the Supreme Court of India. A bench of two learned judges dismissed the writ petition., In the judgment S. S. Dhanoa v. Union of India and others, the Supreme Court of India observed that the appointment of both the Chief Election Commissioner and the other Election Commissioners is made by the President under Article 324(2) of the Constitution, pending a law made by Parliament to regulate such appointments. The Court noted that the provisions of the article leave the matter of appointment to be regulated by Parliament, and the President exercises the power of appointing them today because such a law has not yet been made., The Court further observed that while two heads are better than one for an institution entrusted with vital functions, the independence of an institution depends on the persons who man it and not on their number. It held that when vast powers are exercised by an institution accountable to none, it is prudent to entrust its affairs to more than one individual to assure judiciousness and avoid arbitrariness. The Court also found that the situation did not constitute removal of the Election Commissioners within the meaning of the second proviso to Article 324(5)., The changes to the 1991 Act were introduced through an Ordinance published in the Gazette of India on 01 October 1993. The Ordinance provided for a new Chapter III, which contemplated that, as far as possible, all business shall be transacted unanimously (Section 10(2) of the 1991 Act). Section 10(3) provides that, subject to Section 10(2), in case of difference of opinion, the matter is to be decided according to the opinion of the majority. The Ordinance also brought the Election Commissioners substantially on par with the Chief Election Commissioner, equating their salaries (the Chief Election Commissioner’s salary equal to that of a Judge of the Supreme Court and the Election Commissioner’s salary equal to that of a Judge of the High Court). It further aligned the ages of superannuation, allowing both to hold office for six years subject to vacating office upon attaining the age of 65 years., Under the first proviso to Article 324(5), the Chief Election Commissioner can be removed only in the manner and on the like grounds as a Judge of the Supreme Court of India, and his conditions of service cannot be varied to his disadvantage after appointment. The second proviso to Article 324(5) provides that an Election Commissioner or a Regional Commissioner can be removed only on the recommendation of the Chief Election Commissioner. On 01 October 1993, exercising powers under Article 324(2), the President again fixed, until further orders, the number of Election Commissioners other than the Chief Election Commissioner at two, and two Election Commissioners were appointed with effect from 01 October 1993. The Ordinance became Act No. 4 of 1994 on 04 January 1994, leading to writ petitions, including one filed by Shri T. N. Seshan, who had been appointed Chief Election Commissioner on 12 December 1990. The Constitution Bench’s decision is reported in T. N. Seshan, Chief Election Commissioner of India v. Union of India and Others., The Constitution Bench observed that the Preamble of the Constitution proclaims India to be a Democratic Republic and that free and fair elections are essential to a healthy democracy. To ensure the purity of the election process, the Constitution makers entrusted the responsibility to an independent body insulated from political and executive interference. This objective is achieved by the setting up of an Election Commission, a permanent body, under Article 324(1) of the Constitution. Clause (2) provides that the Commission shall consist of the Chief Election Commissioner and such number of Election Commissioners, if any, as the President may from time to time fix. Clause (3) makes clear that when the Commission is a multi‑member body, the Chief Election Commissioner shall act as its Chairman. Clause (4) provides for the appointment of Regional Commissioners to assist the Commission., The Supreme Court of India disagreed with certain parts of the judgment in S. S. Dhanoa (supra). It held that the Election Commission of India can be either a single‑Member Body or a multi‑Member Body. While the conditions of service and tenure of all functionaries of the Election Commission are to be determined by the President unless made by law, only the Chief Election Commissioner enjoys protection against variation of conditions of service to his disadvantage under the first proviso to clause (5). This protection does not extend to the Election Commissioners. However, the Ordinance placed the Chief Election Commissioner and the Election Commissioners on a par with respect to salary and other conditions. The Court noted that the removal provisions differ: the Chief Election Commissioner can be removed in the same manner as a Judge of the Supreme Court, whereas the Election Commissioners can be removed only on the recommendation of the Chief Election Commissioner. This distinction reflects the intended permanent nature of the Chief Election Commissioner’s office, as envisaged by the Constitution., The Court explained that the function of the Chairman (the Chief Election Commissioner) is to preside over meetings, preserve order, conduct the business of the day, ensure that precise decisions are taken and correctly recorded, and do all that is necessary for smooth transaction of business. He must conduct himself in a manner that wins the confidence of his colleagues and does not treat other members as subordinates. The Election Commission performs administrative, adjudicative, and legislative functions, including laying down policies, deciding important administrative matters, adjudicating disputes such as symbol allocation, and undertaking subordinate legislation‑making functions., The Court further reasoned that the distinguishing features between the Chief Election Commissioner and the Election Commissioners arise primarily from their tenure. The Chief Election Commissioner’s conditions of service cannot be varied to his disadvantage after appointment, whereas no such safeguard exists for the Election Commissioners because their posts are temporary. This difference alone does not make the Chief Election Commissioner the final authority in all matters; the Election Commissioners are not merely advisers, as the scheme of Article 324 indicates., It is clear that the founding Fathers intended that elections in the country be under the superintendence, direction and control of an independent body—the Election Commission of India. Under Article 324, the Chief Election Commissioner is an unalterable feature. A Commission can consist of only the Chief Election Commissioner, but a multi‑Member Commission was also contemplated. The post of Election Commissioner was to be need‑based. For nearly four decades there were no Election Commissioners; the first two were appointed on 16 October 1989. The Constitution does not prescribe any specific criteria, qualifications, or disqualifications for the appointment of the Chief Election Commissioner or Election Commissioners., The appointees have been bureaucrats drawn from the Civil Services. Article 324(5) deals with the conditions of service and tenure of the Election Commissioners and the Regional Commissioners. Until Parliament enacted a law, the President could lay down the conditions of service and tenure by Rule. Parliament enacted the 1991 Act to lay down those conditions. The first proviso to clause (5) guarantees that the Chief Election Commissioner cannot be removed except on like grounds and in like manner as a Judge of the Supreme Court, and his conditions of service cannot be varied to his disadvantage after appointment. This provision acts as a singular insulation to protect the Chief Election Commissioner from arbitrary removal or adverse variation of service conditions., In 1990 the Government of India constituted a Committee under the chairmanship of the then Law Minister, Shri Dinesh Goswami (the Goswami Committee). The Committee made several recommendations relating to electoral reforms, including:\n\n1. Setting up a multi‑member Commission with three members.\n2. Appointment of the Chief Election Commissioner by the President in consultation with the Chief Justice of India and the Leader of the Opposition (or, if no Leader of the Opposition is available, the leader of the largest opposition group in the Lok Sabha), with statutory backing.\n3. Appointment of the other two Election Commissioners in consultation with the Chief Justice of India, the Leader of the Opposition (or the leader of the largest opposition group), and the Chief Election Commissioner.\n4. Regional Commissioners should be appointed only when necessary and not on a permanent footing.\n5. Protection of salary and other allied matters of the Chief Election Commissioner and the Election Commissioners should be provided for in the Constitution on the analogy of the provisions for the Chief Justice and Judges of the Supreme Court; pending such measures, a parliamentary law should be enacted.\n6. The expenditure of the Commission should continue to be voted as at present.\n7. The Chief Election Commissioner and the Election Commissioners should be ineligible for any appointment under the Government, including the office of Governor.\n8. The tenure of the Chief Election Commissioner and other Election Commissioners should be for a term of five years or until the age of sixty‑five, whichever is later, and in no case should they continue in office beyond sixty‑five years or for more than ten years in total., The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 provides that the Chief Election Commissioner and other Election Commissioners shall receive a salary equal to that of a Judge of the Supreme Court (Section 3). Section 4 states that the Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years from the date on which he assumes office, subject to vacating office upon attaining the age of sixty‑five years. The provision also allows resignation by writing to the President. Section 5 deals with leave, which is granted or refused by the President. Section 6 provides for pension rights, Section 7 for subscription to the General Provident Fund, and Section 8 aligns other conditions of service (travel allowance, rent‑free residence, exemption from income‑tax on the value of such residence, conveyance facilities, sumptuary allowance, medical facilities, etc.) with those applicable to a Judge of the Supreme Court under the Supreme Court Judges (Conditions of Service) Act, 1958. Section 9 mandates that the business of the Election Commission be transacted in accordance with the 1991 Act, and Section 10 provides for the disposal of business by the Election Commission.
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The Election Commission may, by unanimous decision, regulate the procedure for transaction of its business as also allocation of its business amongst the Chief Election Commissioner and other Election Commissioners. Save as provided in sub‑section (1), all business of the Election Commission shall, as far as possible, be transacted unanimously. Subject to the provisions of sub‑section (2), if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority., In the year 1993, the Government of India constituted what is known as the Vohra Committee. It made certain recommendations in regard to the Central Bureau of Investigation and the Intelligence Bureau. Five years thereafter, in 1998, the Government of India appointed a Committee under the Chairmanship of Shri Indrajit Gupta on State funding of elections. The Committee submitted its Report in December 1998. The conclusion and summary of the recommendations are found in Chapter 9 and they include various recommendations relating to funding of political parties., In the year 2002, a National Commission for reviewing the work of the Constitution, under the Chairmanship of the former Chief Justice of India M. N. Venkatachaliah, made fifty‑eight recommendations involving amendments to the Constitution, eighty‑six recommendations relating to legislative measures and the rest involved executive action. In relation to electoral processes and political parties, various recommendations were made by the Commission. One of the recommendations, which is of relevance to the cases before us, is as follows: The Chief Election Commissioner and the other Election Commissioners should be appointed on the recommendation of a body consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, the Leader of the Opposition in the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha. It was further recommended that a similar procedure should be adopted in the case of appointment of the State Election Commissioners., In the year 2004, the Election Commission of India, on 02‑08‑2004, made certain proposals on electoral reforms to the Government of India. The proposals included affidavits to be filed by candidates on criminal antecedents, their assets, etc. The aspect about criminalisation of politics is noted as an issue being raised by the Commission from 1998 onwards. The Commission was of the opinion that keeping a person accused of a serious criminal charge and where the Court had framed charges, out of the electoral arena, would be a reasonable restriction in the greater public interest. Among the various reforms it proposed, we notice the following: The Election Commission of India is an independent constitutional body created by the Constitution of India vide Article 324. Clause (1) of Article 324 has vested the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice‑President of India in the Election Commission. Under Clause (2) of Article 324, the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. The President has, by Order dated 1‑10‑1993 under Clause (2) of Article 324, fixed the number of Election Commissioners as two until further orders. Although the Constitution permits the President to fix the number of Election Commissioners at any number without any limit, it is felt that in the interest of smooth and effective functioning of the Election Commission, the number of Election Commissioners should not be unduly large and should remain as two as presently fixed, in addition to the Chief Election Commissioner. The three‑member body is very effective in dealing with the complex situations that arise in the course of superintending, directing and controlling the electoral process, and allows for quick responses to developments in the field that arise from time to time and require immediate solution. Increasing the size of this body beyond the existing three‑member body would, in the considered opinion of the Commission, hamper the expeditious manner in which it has necessarily to act for conducting the elections peacefully and in a free and fair manner. In order to ensure the independence of the Election Commission and to keep it insulated from external pulls and pressures, Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, that Clause (5) does not provide similar protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Election Commissioners from office as is available to the Chief Election Commissioner. The independence of the Election Commission, upon which the Constitution makers laid so much stress, would be further strengthened if the Secretariat of the Election Commission consisting of officers and staff at various levels is also insulated from the interference of the Executive in the matter of their appointments, promotions, etc., and all such functions are exclusively vested in the Election Commission on the lines of the Secretariats of the Lok Sabha and Rajya Sabha, Registries of the Supreme Court and High Courts, etc. An independent Secretariat is vital to the functioning of the Election Commission as an independent constitutional authority. In fact, the provision of an independent Secretariat to the Election Commission has already been accepted in principle by the Goswami Committee on Electoral Reforms and the Government had, in the Constitution (Seventieth Amendment) Bill, 1990, made a provision also to that effect. That Bill was, however, withdrawn in 1993 as the Government proposed to bring in a more comprehensive Bill., As regards expenses of the Election Commission, we find the following complaint and solution: The Commission had sent a proposal that the expenditure of the Commission should be charged on the Consolidated Fund of India. The Government had moved in the 10th Lok Sabha the Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill, 1994 with the objective of providing for the salaries, allowances and pension payable to the Chief Election Commissioner and other Election Commissioners and the administrative expenses including salaries, allowances and pension of the staff of the Election Commission to be charged upon the Consolidated Fund of India. Similar provisions already exist in respect of the Supreme Court, the Comptroller and Auditor General and the Union Public Service Commission, which are, like the Election Commission, independent constitutional bodies. To secure its independent functioning the Commission is of the opinion that the Bill, which lapsed with the dissolution of the 10th Lok Sabha in 1996, needs reconsideration., The next milestone to be noticed is the Second Administrative Reforms Commission Report made in January 2007. The Commission consisted of Shri Veerappa Moily, the then Law Minister, as its Chairperson and five other members. In the summary of its recommendations, it recommended that a collegium headed by the Prime Minister, with the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Law Minister and the Deputy Chairman of the Rajya Sabha as members, should make recommendations for consideration of the President for appointment of the Chief Election Commissioner and the Election Commissioners. In the year 2010, the Ministry of Law and Justice, Government of India, had constituted a Committee on Electoral Reforms. The report it made in 2010 indicates the background which led to the constitution of the Committee. Reference is made to various earlier reports as also the efforts being made by the Election Commission. It made various recommendations relating to electoral reforms. Under the heading measures for Election Commission, an update on the Election Commission’s recommendations includes the following: Composition of Election Commission and constitutional protection of all members of the Commission and independent Secretariat for the Commission was decided to be included as a proposal for regional and national consultation. Expenses of Election Commission to be treated as charged. The proposal to make the expenses of the Election Commission of India charged was considered by the Dinesh Goswami Committee but was not favoured. In 1994, the Government introduced the Election Commission (Charging of Expenses on the Consolidated Fund of India) Bill, 1994 in Lok Sabha on 16‑12‑1994 which lapsed on the dissolution of the Tenth Lok Sabha. The Department‑Related Parliamentary Standing Committee on Home Affairs in its 24th Report on the said Bill presented to the Rajya Sabha on 28‑11‑1995 was of the considered view that there is no need of passing the proposed Bill and recommended that the Bill be dropped. The Election Commission of India again made a similar proposal in 1997 which was placed before political parties in the all‑party meeting held on 22‑05‑1998 but no view was taken. Again, the Election Commission of India made the same proposal in May 2003 and on the direction of the then Honourable Prime Minister the same was placed before the political parties in the all‑party meeting held on 29‑01‑2003. The debate on the proposal remained inconclusive., In regard to the appointment of the Chief Election Commissioner and other Election Commissioners, we notice the following remarks: Appointment of Chief Election Commissioner (CEC) and other Election Commissioners (EC) and consequential matters – One of the Chief Election Commissioners has requested the Government to have a collegium consisting of the Prime Minister and the Leader of Opposition, etc., who is empowered to make recommendations for appointments. Further, it has also been suggested that there should be a complete ban for ten years after retirement from the post of CEC to any political party., In the year 2015, the Law Commission of India, in its Two Hundred and Fifty‑Fifth Report dated 12‑03‑2015, dealing with electoral reforms in India, made various recommendations in regard to strengthening the Office of the Election Commission of India. After referring to Article 324(2), the fact of the appointments being discussed in the Constituent Assembly, Article 324(2) leaving it to Parliament to legislate, and the recommendation of the Goswami Committee in 1990, we find the following discussion: This was followed by the introduction of the Constitution (Seventieth Amendment) Bill 1990, which was introduced in the Rajya Sabha on 30 May 1990 providing that the Chief Election Commissioner would be appointed by the President after consultation with the Chairman of the Rajya Sabha, the Speaker of the Lok Sabha, and the Leader of the Opposition (or the leader of the largest party) in the Lok Sabha. The Chief Election Commissioner was further made a part of the consultative process in the appointment of the Election Commissioners. However, on 13 June 1994, the Government moved a motion to withdraw the Bill, which was finally withdrawn with the leave of the Rajya Sabha on the same day. Consequently, in the absence of any parliamentary law governing the appointment issue, the Election Commissioners are appointed by the government of the day, without pursuing any consultation process. This practice has been described as requiring the Law Ministry to get the file approved by the Prime Minister, who then recommends a name to the President. Thus, there is no concept of collegium and no involvement of the opposition. The Commissioners are appointed for a six‑year period, or up to the age of 65 years, whichever is earlier. Further, there are no prescribed qualifications for their appointment, although convention dictates that only senior (serving or retired) civil servants, of the rank of the Cabinet Secretary or Secretary to the Government of India or an equivalent rank, will be appointed. The Supreme Court in Bhagwati Prashad Dixit Ghorewala v. Rajiv Gandhi rejected the contention that the Chief Election Commissioner should possess qualifications similar to that of a Supreme Court judge, despite being placed on par with them in terms of the removal process., We find that under the caption Comparative Practices, the Report contains the following discussion: Comparative practices – An examination of comparative practices is instructive. In South Africa, the Independent Electoral Commission comprises of five members, including one judge. They are appointed by the President on the recommendations of the National Assembly, following nominations by a National Assembly inter‑party committee, which receives a list of at least eight candidates. This list of at least eight nominees is recommended by the Selection Committee, which has four members being the President of the Constitutional Court; a representative of the Human Rights Commission; the Commission on Gender Equality; and the Public Prosecutor. In Ghana too, the seven‑member Election Commission is appointed by the President on the advice of the Council of State, with the Chairman and two Deputy Chairmen having permanent tenure. In Canada, the Chief Electoral Officer of Elections Canada is appointed by a House of Commons resolution for a non‑renewable ten‑year term, and to protect their independence from the government, he/she reports directly to Parliament. In the United States, the six Federal Election Commissioners are appointed by the President with the advice and consent of the Senate. The Commissioners can be members of a political party, although not more than three Commissioners can be members of the same party. In all these cases, it is clear that the appointment of the Election Commissioners or the electoral officers is a consultative process involving the Executive, the Legislature or other independent bodies., Thereafter, under the caption Recommendation, we find the following: Given the importance of maintaining the neutrality of the Election Commission of India and to shield the Chief Election Commissioner and Election Commissioners from executive interference, it is imperative that the appointment of Election Commissioners becomes a consultative process. To this end, the Commission adapts the Goswami Committee’s proposal with certain modifications. First, the appointment of all the Election Commissioners (including the Chief Election Commissioner) should be made by the President in consultation with a three‑member collegium or selection committee, consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha in terms of numerical strength) and the Chief Justice of India. The Commission considers the inclusion of the Prime Minister important as a representative of the current government. Second, the elevation of an Election Commissioner should be on the basis of seniority, unless the three‑member collegium/committee, for reasons to be recorded in writing, finds such Commissioner unfit. Such amendments are in consonance with the appointment process in the Lokpal and Lokayuktas Act, 2013, the Right to Information Act, 2005 and the Central Vigilance Commission Act, 2003. Pursuant to Article 324(2), an amendment can be brought to the existing Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 to amend the title and insert a new Chapter 1A on the appointment of Election Commissioners and the Chief Election Commissioner as follows: The Act should be renamed the Election Commission (Appointment and Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. The short title should state: ‘An Act to determine the appointment and conditions of service of the Chief Election Commissioner and other Election Commissioners and to provide for the procedure for transaction of business by the Election Commission and for matters connected therewith or incidental thereto.’ Chapter I‑A Appointment of Chief Election Commissioner and Election Commissioners. Appointment of Chief Election Commissioner and Election Commissioners (1) The Election Commissioners, including the Chief Election Commissioner, shall be appointed by the President by warrant under his hand and seal after obtaining the recommendations of a Committee consisting of: (a) the Prime Minister of India (Chairperson); (b) the Leader of the Opposition in the House of the People (Member); (c) the Chief Justice of India (Member). Provided that after the Chief Election Commissioner ceases to hold office, the senior most Election Commissioner shall be appointed as the Chief Election Commissioner, unless the Committee mentioned in sub‑section (1) above, for reasons to be recorded in writing, finds such Election Commissioner to be unfit. For the purposes of this sub‑section, the Leader of the Opposition in the House of the People shall, when no such Leader has been recognised, include the Leader of the single largest group in opposition of the Government in the House of the People., In regard to the aspect about the permanent and independent Secretariat of the Election Commission of India, it was noticed that to give effect to the Goswami Committee recommendation, the Constitution Seventieth Amendment Bill, 1990 was introduced on 30‑05‑1990 and that it was subsequently withdrawn in 1993 in view of the changed composition of the Election Commission of India, on it becoming a multi‑Member Body pursuant to the 1991 Act and on the ground that the Bill needed some amendments. The Bill, however, the Law Commission observed, was never introduced. Thereafter, the Law Commission referred to the recommendations of the Election Commission itself for seeking appointment of an independent Secretariat. The Law Commission, accordingly, recommended insertion of Article 324(2A), inter alia, providing for a separate, independent and permanent secretarial staff for the Election Commission. In regard to the need for equating the two Election Commissioners with the Chief Election Commissioner and noting that Election Commissioners were clearly superior to the Regional Commissioners, the Law Commission recommended changes in Article 324(5) as well. The amended Article 324, as proposed by the Law Commission of India in its Report, reads as follows: 324. Superintendence, direction and control of elections to be vested in an Election Commission. (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice‑President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. (2A) (1) The Election Commission shall have a separate independent and permanent secretarial staff. (2) The Election Commission may, by rules prescribed by it, regulate the recruitment and the conditions of service of persons appointed to its permanent secretarial staff. (3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. (4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint, after consultation with the Election Commission, such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1). (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Regional Commissioners shall be such as the President may by rule determine; provided that the Chief Election Commissioner and any other Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner and any other Election Commissioner shall not be varied to his disadvantage after his appointment; provided further that a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. (6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1)., There is a newspaper report of The Hindu dated 04‑06‑2012, which appears to project the demand of Shri L. K. Advani that a collegium be put in place for appointment to the constitutional body and taking the stand that the present system of appointment did not inspire confidence among the people. There is also a reference to the report of the Citizens Commission of Elections. It appears to be prepared by the former judge of the Supreme Court of India Shri Madan B. Lokur and Shri Wajahat Habibullah, a former Chief Information Commissioner. In the said report, we find the article ‘Are Elections in India Free and Fair’ by Shri M. G. Devasahayam. Under the heading Election Commission of India functioning and autonomy, we find the following criticism: The Election Commission of India has plenipotentiary powers drawn from Article 324 of the Constitution of India to conduct free and fair elections. In addition, the Supreme Court has ruled that when Parliament or any State Legislature makes a valid law relating to, or in connection with, elections, the Commission shall act in conformity with, not in violation of, such provisions, but where such law is silent, Article 324 is a reservoir of power to act for the avowed purpose of pushing forward a free and fair election with expedition. However, the Election Commission of India is not using such powers, because the Election Commissioners are appointees of the Government of the day and not through an independent process of collegium. The case of one dissenting Election Commissioner, who was sidelined and then eased out, has caused irretrievable damage to the Election Commission of India's independence and integrity. This compromises the autonomy of the Election Commission of India and creates doubts about the neutrality of the Chief Election Commissioner and the Election Commissioners, and consequently, the neutrality of the Commission itself. This poses a serious danger to the fairness and integrity of not only the elections but democracy itself., In the year 2016, we find the following proposed electoral reforms essentially related to Article 324(5), being proposals made by the Election Commission itself. Clause (5) of Article 324 of the Constitution provides that the Chief Election Commissioner shall not be removed from his office except in the same manner and on the same grounds as a Judge of the Supreme Court. The Chief Election Commissioner and the two Election Commissioners enjoy the same decision‑making powers, which suggests that their powers are at par with each other. However, Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The reason for giving protection to a Chief Election Commissioner as enjoyed by a Supreme Court Judge in matters of removability from office was to ensure the independence of the Commission from external pulls and pressure. However, the rationale behind not affording similar protection to other Election Commissioners is not explicable. The element of ‘independence’ sought to be achieved under the Constitution is not exclusively for an individual alone but for the whole institution. Thus, the independence of the Commission can only be strengthened if the Election Commissioners are also provided with the same protection as that of the Chief Election Commissioner. The present constitutional guarantee is inadequate and requires an amendment to provide the same protection and safeguard in the matter of removability of Election Commissioners as is available to the Chief Election Commissioner., In I. C. Golak Nath and Others v. State of Punjab and Another, Justice Subba Rao, speaking for the Supreme Court of India, held: The Constitution demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them. No authority created under the Constitution is supreme; the Constitution is supreme and all the authorities function under the supreme law of the land., What is this jurisdiction which is demarcated? Justice R. S. Pathak, speaking for the Bench in Bandhua Mukti Morcha v. Union of India and Others, held: It is a commonplace that while the Legislature enacts the law the Executive implements it and the Court interprets it and, in doing so, adjudicates on the validity of executive action and, under our Constitution, even judges the validity of the legislation itself. The question would arise as to whether the powers/functions are cast in stone or whether the aforesaid powers/functions can legitimately be exercised or discharged by the other organs. We may in this regard again refer to what the Supreme Court of India held in the aforesaid case: And yet it is well recognised that in a certain sphere the Legislature is possessed of judicial power, the Executive possesses a measure of both legislative and judicial functions, and the Court, in its duty of interpreting the law, accomplishes in its perfect action a marginal degree of legislative exercise. Nonetheless a fine and delicate balance is envisaged under our Constitution between these primary institutions of the State., The High Courts and the Supreme Court of India make Rules under the power granted to them. No doubt, they will be acting as delegates of the Legislature but the exercise of power in such cases would be legislative in nature. When an Ordinance is made under Article 123 by the Executive, that is, the Union of India, it is a case of the Executive exercising legislative power. When Parliament adjudicates a man guilty of contempt of itself and punishes him, the proceedings are informed by the attribute of judicial power., It cannot be disputed that there is no strict demarcation or separation of powers in India unlike the position obtaining in the United States of America and Australia. The doctrine of separation of powers, no doubt, has been eloquently expounded by Montesquieu in his work The Spirit of Laws and the basis on which it rests is the imperative need to avoid concentration of power in one or two organs. Undoubtedly, an observance of the doctrine of separation of powers has been traced to the principle of equality. Justice Y. V. Chandrachud, as His Lordship then was, speaking in Indira Nehru Gandhi v. Raj Narain & Ors., held inter alia: But the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions., Separation of powers as understood as prevailing in India constitutes a part of the basic structure of the Constitution of India (see His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another and I. R. Coelho v. State of Tamil Nadu)., In Indian Aluminium Co. and others v. State of Kerala and others, the Supreme Court of India, while dealing with the alleged encroachment by the Legislature of the boundaries set by the Doctrine of Separation of Powers, laid down, inter alia, as follows: (1) The adjudication of the rights of the parties is the essential judicial function. The Legislature has to lay down the norms of conduct or rules which will govern the parties and the transactions and require the court to give effect to them; (2) The Constitution delineates a delicate balance in the exercise of the sovereign power by the Legislature, Executive and Judiciary; (3) In a democracy governed by the rule of law, the Legislature exercises the power under Articles 245 and 246 and other companion articles read with the entries in the respective lists in the Seventh Schedule to make the law which includes power to amend the law; (4) Courts, in their concern and endeavour to preserve judicial power equally, must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries. In order that the rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free play in their joints so that the march of social progress and order remains unimpeded. The smooth balance built with delicacy must always be maintained., Apart from the power to make subordinate legislation as a delegate of the Legislature, do the superior courts make law or is it entirely tabooed? In other words, when the court decides a case, is the function of the court merely to apply law to the facts as found or do courts also make law? The theory that the courts cannot or do not make laws is a myth which has been dispelled a long while ago. We may in this regard refer to what Justice S. B. Sinha, speaking for the Supreme Court of India, opined in the decision reported in State of Uttar Pradesh v. Jeet S. Bisht.
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Separation of powers is a favourite topic for some of us. Each organ of the State in terms of the constitutional scheme performs one or the other functions which have been assigned to the other organ. Although drafting of legislation and its implementation by and large are functions of the legislature and the executive respectively, it is too late in the day to say that the constitutional court's role in that behalf is nonexistent. The judge-made law is now well recognised throughout the world. If one is to put the doctrine of separation of power to such a rigidity, it would not have been possible for any superior court of any country, whether developed or developing, to create new rights through interpretative process., Separation of powers in one sense is a limit on active jurisdiction of each organ. But it has another deeper and more relevant purpose: to act as check and balance over the activities of other organs. Thereby the active jurisdiction of the organ is not challenged; nevertheless there are methods of prodding to communicate the institution of its excesses and shortfall in duty. Constitutional mandate sets the dynamics of this communication between the organs of polity. Therefore, it is suggested to not understand separation of powers as operating in vacuum. Separation of powers doctrine has been reinvented in modern times., If we notice the evolution of separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. But in today's world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. Otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation., Separation of powers is part of the basic structure of the Constitution of India. Equally, judicial review has been recognised as forming a part of the basic structure. Judicial review of legislation is expressly provided in Article 13 of the Constitution. A court when it declares a law made by the legislature as unconstitutional, if it be that, it is within its bounds, cannot be accused of transgressing the principle of separation of powers. Declaring even a law made by the Parliament as unconstitutional forms a part of its powers. In view of the enunciation of the doctrine of basic structure in India, unlike perhaps in most countries, even an amendment to the Constitution can be declared unconstitutional by the Supreme Court of India. Such exercise cannot expose the court to the charge that it is not observing the limits set by the Constitution., While it may be true that the Constitution is supreme and all disputes must finally attain repose under the aegis of the Constitution, in one sense the final arbiter of what is the law must be the Supreme Court of India. While it may be true that by removing the text forming the premise for a judicial verdict, the lawgiver may revisit the judgment, it is not open to the legislature to don the robes of a judge and arrogate to itself the judicial function. The theory of separation of powers in an ultimate analysis is meant to prevent tyranny of power flowing from the assumption of excess power in one source. Its value lies in a delicate but skilful and at the same time legitimate balance being struck by the organs of the State in the exercise of their respective powers. This means that the essential powers which are well understood in law cannot be deliberately encroached upon by any organ of the State., Creative judicial activism has been a subject of both controversy reaching brickbats as also bouquets to the courts. Under the Constitution which clothes both citizens and persons with fundamental rights besides tasking the State with achieving the goals declared in the Directive Principles, judicial activism as opposed to a mere passive role may be the much‑needed choice. Judicial activism, however, must have a sound juridical underpinning and cannot degenerate into a mere exercise of subjectivism., The learned Solicitor General is right therefore that judicial restraint may be a virtue in the elevated region of constitutional law. Being the grundnorm, it is indeed a rarified field where the Supreme Court of India must tread wearily (see Divisional Manager, Aravali Golf Club and Another v. Chander Hass and Another). This Supreme Court of India indeed has admonished against the court itself running the Government. In Asif Hameed v. State of Jammu and Kashmir, no doubt this Supreme Court of India refers to the following observations of Justice Frankfurter in paragraph 18: All power is, in Madison's phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self‑restraint. Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of prudence requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of the Supreme Court of India to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court's giving effect to its own notions of what is wise or politic. That self‑restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Parliament and the executive branch do., In the work Judicial Activism in India by S. P. Sathe, the learned author in the chapter Legitimacy of Judicial Activism observes: Legitimacy of Judicial Activism The realist school of jurisprudence exploded the myth that the judges merely declared the pre‑existing law or interpreted it and asserted that the judges made the law. It stated that the law was what the courts said it was. This is known as legal scepticism and was really a reaction to Austin's definition of law as a command of the political sovereign. According to analytical jurisprudence a court merely found the law or merely interpreted the law. The American realist school of jurisprudence asserted that the judges made law, though interstitially. Justice Jerome Frank, Justice Holmes, Justice Cardozo, and Justice Llewellyn were the chief exponents of this school. The Indian Supreme Court not only makes law, as understood in the sense of the realist jurisprudence, but actually has started legislating exactly in the way in which a legislature legislates. Judicial law making in the realist sense is what the Supreme Court of India does when it expands the meanings of the words personal liberty or due process of law or freedom of speech and expression. When the Court held that a commercial speech (advertisement) was entitled to the protection of freedom of speech and expression, it was judicial law‑making in the realist sense. Similarly, the basic structure doctrine or the parameters for reviewing the President's action under article 356 or the wider meanings of the words life, liberty, and procedure established by law in article 21 of the Constitution by the Supreme Court of India are instances of judicial law‑making in the realist sense. When, however, the Court lays down guidelines for inter‑country adoption, against sexual harassment of working women at the workplace, or for abolition of child labour, it is not judicial law‑making in the realist sense; these are instances of judicial excessivism that fly in the face of the doctrine of separation of powers. The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the existing law. In reality such watertight separation exists nowhere and is impracticable. Broadly it means that one organ of the State should not perform a function that essentially belongs to another organ. While law‑making through interpretation and expansion of the meanings of open‑textured expressions such as due process of law, equal protection of law, or freedom of speech and expression is a legitimate judicial function, the making of an entirely new law, which the Supreme Court of India has been doing through directions in the above‑mentioned cases, is not a legitimate judicial function. True, the Court has not supplanted but has merely supplemented the legislature through such directions. It has said in each case that it legislated through directions only because no law existed to deal with situations such as inter‑country adoption or sexual harassment of working women and that its direction could be replaced by legislation of the legislature., In the work The Nature of the Judicial Process by Benjamin N. Cardozo, in the lecture The Method of Sociology – The Judge as a Legislator, Justice Cardozo observes under the following subject: No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. How far he may go without travelling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habit in the practice of an art. Even within the gaps, restrictions not easy to define, but felt, however impalpable they may be, by every judge and lawyer, hedge and circumscribe his action. They are established by the traditions of the centuries, by the example of other judges, his predecessors and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law. The process, being legislative, demands the legislator's wisdom. Customs, no matter how firmly established, are not law, they say, until adopted by the courts. Even statutes are not law because the courts must fix their meaning. That is the view of Gray in his Nature and Sources of the Law. The true view, as I submit, he says, is that the Law is what the Judges declare; that statutes, precedents, the opinions of learned experts, customs and morality are the sources of the Law. So, Jethro Brown in a paper on Law and Evolution, tells us that a statute, till construed, is not real law. It is only ostensible law. Real law, he says, is not found anywhere except in the judgment of a court. They have the right to legislate within gaps, but often there are no gaps. We shall have a false view of the landscape if we look at the waste spaces only, and refuse to see the acres already sown and fruitful. The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight‑errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life. Wide enough in all conscience is the field of discretion that remains., Close to the aspect of separation of powers, is the controversial subject of judicial activism. In the work Judicial Activism, Authority, Principles and Policy in The Judicial Method by Honourable Justice Michael Kirby, we find of particular interest the following: The acute needs of the developing countries of the Commonwealth have sometimes produced an approach to constitutional interpretation that is unashamedly described as activist, including by judges themselves. Thus in India, at least in most legal circles, the phrase judicial activism is not viewed as one of condemnation. So urgent and numerous are the needs of that society that anything else would be regarded by many including many judges and lawyers as an abdication of the final court's essential constitutional role. One instance may be cited from Indian experience: the expansion of the traditional notion of standing to sue in public interest litigation. The Indian Supreme Court has upheld the right of prisoners, the poor and other vulnerable groups to enlist its constitutional jurisdiction by simply sending a letter to the Court. This might not seem appropriate in a developed country. Yet it appears perfectly adapted to the nation to which the Indian Constitution speaks. Lord Chief Justice Woolf recently confessed to having been astounded at first by the proactive approach of the Indian Supreme Court in this and other aspects. However, he went on: I soon realised that if that Court was to perform its essential role in Indian society, it had no option but to adopt the course it did and I congratulate it for the courage it has shown., Unlike demands of a formal democracy, the hallmark of a substantive democracy and, if we may say so, a liberal democracy must be borne in mind. Democracy is inextricably intertwined with power to the people. The ballot is more potent than the most powerful gun. Democracy facilitates a peaceful revolution at the hands of the common man if elections are held in a free and fair manner. Elections can be inflated with a non‑violent coup capable of unseating the most seemingly powerful governing parties, if they do not perform to fulfil the aspirations of the governed. Democracy is meaningful only if the sublime goals enshrined in the preamble to the Constitution receive the undivided attention of the rulers, namely, social, political and economic justice. The concepts of liberty, equality and fraternity must not be strange bedfellows to the ruling class. Secularism, a basic feature of the Constitution, must inform all actions of the State, and therefore, cannot be spurned but must be observed in letter and spirit. Democracy can be achieved only when the governing dispensation sincerely endeavours to observe the fundamental rights in letter and spirit. Democracy also, needless to say, would become fragile and may collapse, if only lip service is paid to the rule of law. We cannot be oblivious to the fact that the founding fathers have contemplated that not only must India aspire for a democratic form of government and life but it is their unambiguous aim that India must be a Democratic Republic. The conventional definition of a Republic is that it is a body polity, in which the Head of State is elected. However, the republican character of our democracy also means that the majority abides by the Constitution ensuring rights granted under it and also pursues goals enshrined in it. A brute majority generated by a democratic process must conform to constitutional safeguards and the demands of constitutional morality. A Democratic Republic contemplates that majoritarian forces which may be compatible with a democracy, must be counter‑balanced by protection accorded to those not in the majority. When we speak about the minority, the expression is not to be conflated with or limited to linguistic or religious minorities. These are aspects which again underlie the need for an independent election commission., It may be true that the resort to courts is not a remedy for all ills in a society (see Common Cause v. Union of India and Others). We are equally cognizant that the courts must not try to run a Government nor behave like emperors. We also take notice of the following words of the Supreme Court of India in Divisional Manager, Aravali Golf Club and Another v. Chander Hass and Another, where the merit of exercising judicial restraint has been emphasized. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising inter‑branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other co‑equal branches. In contrast, judicial activism's unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co‑branches. Restraint stabilises the judiciary so that it may better function in a system of inter‑branch equality. Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach into the legislative or administrative fields almost inevitably voters, legislators and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. This would be counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects. The moral of this story is that if the judiciary does not exercise restraint and overstretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary; in fact the mere threat may do, as the above example demonstrates. The judiciary should, therefore, confine itself to its proper sphere, realising that in a democracy many matters and controversies are best resolved in non‑judicial setting. However, we may also listen to the following words. We hasten to add that it is not our opinion that judges should never be activist. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the United States Supreme Court v. Brown v. Board of Education, Miranda v. Arizona, Roe v. Wade, etc., or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not the judiciary., A Constitution Bench Judgment reported in State of Tamil Nadu v. State of Kerala and another summarised its conclusions on the constitutional principles relating to separation of powers as follows: Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of the Indian Constitution. The Constitution has made demarcation, without drawing formal lines between the three organs legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the constitutions of the countries which contain express provision for separation of powers. Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of the Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India. Separation of powers between the three organs the legislature, executive and judiciary is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution., The right to vote is not a civil right. A Bench of six learned judges in N. P. Ponnuswami v. Returning Officer, Namakkal, in the context of Article 329(b) held that the right to vote was a creature of a statute or a special law and must be subject to limitations imposed by it. The matter arose from a challenge to the rejection of the nomination maintained in a writ petition and the question which substantially arose was the impact of Article 329(b). No doubt, the court examined Part XV of the Constitution and about Articles 325 and 326, the Supreme Court of India held as follows: The other two Articles in Part XV i.e. Article 325 and 326 deal with two matters of principle to which the Constitution framers have attached much importance. They are (1) prohibition against discrimination in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste, sex or any of them; and (2) adult suffrage. The Court really was not concerned with the question as to whether Article 326 provided for a constitutional right to vote., In Jyoti Basu and Others v. Debi Ghosal and Others, the Supreme Court of India was dealing with a challenge to the High Court rejecting an application in an election petition to strike out the names of certain parties from the array of parties. The Court inter alia held that Article 326 provides for elections to be held on the basis of adult franchise. Thereafter, the Court held as follows: The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Jagan Nath v. Jaswant Singh. We proceed to state what we have gleaned from what has been said, so much as necessary for this case. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election., Mohan Lal Tripathi v. District Magistrate, Raibrailly and others was a case wherein the appellant who was elected directly under Section 43 of the Uttar Pradesh Municipalities Act was removed by a no‑confidence motion. It was his contention that his removal was undemocratic as it was sought to be done by a smaller and different body than the one that elected him. In these facts the Supreme Court of India inter alia held as follows: But electing representatives to govern is neither a fundamental right nor a common right but a special right created by the statutes or a political right or privilege and not a natural, absolute or vested right., In Rama Kant Pandey v. Union of India, a Bench of three learned judges was dealing with a petition challenging the validity of the Representation of the People (Amendment Ordinance) Act, 1992 on the ground of violation of Articles 14, 19 and 21. Section 52 providing for countermanding of polls was amended. In the context of the said challenge, the Supreme Court of India noted that the right to vote or to stand as a candidate for election was neither a fundamental nor civil right. It purported to follow the views which originated in Ponnuswami case., In Anukul Chandra Pradhan v. Union of India and others, a Bench of three learned judges, while dealing with a challenge to Section 62(5) of the 1951 Act, on the ground that it violated Articles 14 and 21 of the Constitution, upheld Section 62(5). The Court observed that there are provisions made in the election law which exclude persons with criminal background of the kind specified therein, from the election scene as candidates and voters. The object is to prevent criminalisation of politics and maintain probity in elections. Any provision enacted with a view to promote this object must be welcomed and upheld as subserving the constitutional purpose. The elbow room available to the legislature in classification depends on the context and the object for enactment of the provision. The existing conditions in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the legislation. Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and order which are the essence of democracy must, therefore, be so viewed. More elbow room to the legislature for classification has to be available to achieve the professed object., The Court also found other reasons to justify the provision. It was noted that permitting every person in prison to vote would lead to a resource crunch in terms of police force required to facilitate the right. The Court also held that the right to vote is also subject to limitations imposed by the statute. The specific question as to whether it constituted a constitutional right under Article 326, as such, was not presented for adjudication., In Shyamdeo P. Singh v. Nawal Kishore Yadav, a Bench of three learned judges while dealing with a case arising out of an election petition had this to say about Article 326: Article 326 of the Constitution is founded on the doctrine of adult suffrage. It provides that every person who is a citizen of India and who is not less than 18 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under the Constitution or any law made by the appropriate legislature on the ground of non‑residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. This Article clearly contemplates law being enacted by an appropriate legislature providing for qualifications and disqualifications subject to which a citizen of India not less than 18 years of age shall be entitled to be registered as a voter and exercise his right to franchise. Article 327 provides for law being made by Parliament subject to the provisions of the Constitution with respect to all matters relating to or in connection with elections to either House of Parliament or to the House or either House of the Legislature of a State which law may include provisions for the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses., The Court, inter alia, after referring to Section 62 of the 1951 Act, held as follows: A person who is not entered in the electoral roll of any constituency is not entitled to vote in that constituency though he may be qualified under the Constitution and the law to exercise the right to franchise. To be entitled to cast a ballot the person should be entered in the electoral roll. It was further held: A perusal of the aforesaid provisions leads to certain irresistible inferences. Article 326 of the Constitution having recognised the doctrine of adult suffrage has laid down constitutional parameters determinative of the qualifications and disqualifications relating to registration as a voter at any election. The two Articles, i.e., Article 326 and Article 327 contemplate such qualifications and disqualifications being provided for, amongst other things, by the appropriate legislature. The fountain source of the 1950 Act and the 1951 Act enacting provisions on such subject are the said two Articles of the Constitution. The provisions of Section 16 of the 1950 Act and Section 62 of the 1951 Act read in juxtaposition go to show that while Section 16 of the 1950 Act provides for disqualifications for registration in an electoral roll, (qualifications having been prescribed by Section 27 thereof), Section 62 of the 1951 Act speaks of right to vote which right is to be determined by reference to the electoral roll of the constituency prepared under the 1950 Act.
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The eligibility for registration of persons who have been tested under Section 16 or Section 27 of the Representation of the People Act, 1950, and for whom the electoral roll has been prepared, is subject to the disqualifications listed in clauses (a), (b) and (c) of subsection (1) of Section 16. If a person becomes subject to any of those disqualifications, two consequences may follow: his name may forthwith be struck off the electoral roll in which it is included under subsection (2) of Section 16, and the person is disqualified from exercising the right to vote at the election by virtue of subsection (2) of Section 62 of the Representation of the People Act, 1951., The qualifications prescribed for enrolment in the electoral roll under clause (b) of subsection (5) of Section 27 of the 1950 Act are: (i) ordinary residence in a teachers' constituency, and (ii) engagement in the relevant educational institution for a total period of at least three years within the six years immediately before the qualifying date. The inquiry into the availability of these eligibility qualifications is to be made at the time of preparation of the electoral roll or while entering or striking out a name in or from the electoral roll., Section 62 of the 1951 Act does not provide that a person who is not qualified to be enrolled as an elector in the electoral roll shall be barred from voting. In brief, a disqualification under Section 16 of the 1950 Act affects the right to vote under Section 62 of the 1951 Act, whereas being not qualified for enrolment under Section 27 of the 1950 Act has no bearing on the right to vote under Section 62 of the 1951 Act. The distinction between a disqualification and not being qualified is therefore significant. It is relevant to note that the case arose from a challenge to the result of an election to a legislative council, and Section 27 dealt with legislative councils, not legislative assemblies., In Union of India v. Association for Democratic Reforms, the High Court gave certain directions to the Election Commission on the basis that the voter’s right to make an informed choice depends upon the availability of information about the past of the candidates, and that such information must be disclosed to the voters. The Supreme Court of India found that, for the health of democracy and fair elections, and having regard to the wide jurisdiction of the Election Commission under Article 324(1) of the Constitution, the directions given by the High Court were justified, but the Supreme Court subsequently issued certain directions which modified those of the High Court., Under the Constitution, Article 19(1)(a) provides for freedom of speech and expression. In the electoral context, a voter’s speech or expression includes casting a vote; therefore, information about the candidate to be selected is essential. The voter’s right to know the antecedents, including the criminal past, of a candidate contesting an election for Member of Parliament or Member of Legislative Assembly is fundamental for the survival of democracy, allowing the voter to consider before electing law‑breakers as lawmakers., The directions led to the insertion of Sections 33A and 33B in the Representation of the People Act. Section 33B provides that, notwithstanding any judgment, no candidate is liable to disclose any information that is not required to be disclosed under the Act or the rules made thereunder. In People’s Union for Civil Liberties and Another v. Union of India, Justice M.B. Shah, dealing with the nature of the right to vote, held that the right of the voter to know the biodata of the candidate is the foundation of democracy and concluded that Section 33B of the amended Act was illegal and invalid. Justice P. Venkatarama Reddi clarified that the right to vote, if not a fundamental right, is certainly a constitutional right originating from the Constitution and shaped by the Representation of the People Act, and that the argument that the right to vote is merely a statutory right is inaccurate., Justice D.M. Dharmadhikari agreed with Justice Reddi’s conclusion, stating that the right to vote at elections to the House of the People or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from the right to vote is a facet of the fundamental right enshrined in Article 19(1)(a), and the act of casting a vote constitutes the exercise of freedom of expression., In Kuldip Nayar and Others v. Union of India, the question before the Constitution Bench was the validity of an amendment made on 28 August 2003 that deleted the requirement of domicile in the State for election to the Council of States. The Supreme Court of India observed that the majority view in People’s Union for Civil Liberties was that the right to vote is a constitutional right and also a facet of the fundamental right under Article 19(1)(a), but the Court did not agree with that submission. It held that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, and reiterated the view in Jyoti Basu v. Debi Ghosal that the right to elect, though fundamental to democracy, is a pure statutory right, not a fundamental or common law right., The Supreme Court of India noted that the Council of States is not the same as the House of the People within the meaning of Article 326. It observed that the right to vote in free and fair elections is always in terms of an electoral system prescribed by national legislation; the right to vote derives its colour from the right to free and fair elections and is essential but not the sole ingredient of such elections., Article 327 empowers Parliament, subject to the Constitution, to make provisions with respect to elections to either House of Parliament or to the House or either House of the Legislature of a State, including preparation of electoral rolls, delimitation of constituencies and other matters necessary for securing the due constitution of such Houses. Article 328 similarly empowers the Legislature of a State, subject to the Constitution and where Parliament has not legislated, to make provisions with respect to elections to the State Legislature, including preparation of electoral rolls and related matters., Article 326 provides that elections to the House of the People and to the Legislative Assemblies of States shall be on the basis of adult suffrage. Adult suffrage means that every person who is a citizen of India, who is not less than eighteen years of age on the date fixed by law, and who is not disqualified under the Constitution or any law made by the appropriate Legislature on grounds of non‑residence, unsoundness of mind, crime, corrupt practice or illegal practice, shall be entitled to be registered as a voter at any such election., The Representation of the People Act, 1950, enacted by Parliament, provides in Part III for electoral rolls for Assembly constituencies. Section 14(b), as substituted with effect from 1 March 1956, defines the qualifying date as the first day of January of the year in which the electoral roll is prepared or revised. Section 15 requires that for every constituency an electoral roll be prepared under the supervision, direction and control of the Election Commission. Section 16 disqualifies a person from registration in an electoral roll if he is not a citizen of India, is of unsound mind as declared by a competent court, or is disqualified from voting under any law relating to corrupt practices or other offences in connection with elections; the name of any person who becomes so disqualified after registration shall forthwith be struck off the roll, subject to reinstatement if the disqualification is removed., Section 19, effective from 30 December 1958, stipulates the conditions of registration: every person who is not less than eighteen years of age on the qualifying date and who is ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for that constituency., Section 20 defines the meaning of ordinarily resident and sets out circumstances in which a person shall not be deemed ordinarily resident, as well as circumstances in which he shall be deemed ordinarily resident., The Representation of the People Act, 1951, defines “election” in Section 2(d) as an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State, and defines “elector” in Section 2(e) as a person whose name is entered in the electoral roll of a constituency and who is not subject to any of the disqualifications mentioned in Section 16 of the 1950 Act. Chapter III of the 1951 Act provides for disqualifications for membership of Parliament and State Legislatures; Section 8 deals with disqualification upon conviction for certain offences, Section 8A with disqualification on the ground of corrupt practices, and Section 11A (as amended) provides for disqualification arising out of conviction and corrupt practices, prescribing a six‑year period of disqualification for specified offences., Section 62 of the 1951 Act deals with the right to vote. Subsection (1) declares that every person entered in the electoral roll of a constituency shall be entitled to vote in that constituency. Subsection (2) bars any person who is subject to any of the disqualifications referred to in Section 16 of the 1950 Act from voting. Subsection (3) prohibits a person from voting in more than one constituency of the same class, rendering all such votes void. Subsection (4) voids multiple votes cast by a person whose name appears more than once in the electoral roll of the same constituency. Subsection (5) disallows voting by a person confined in prison or in lawful police custody, except for persons under preventive detention. Subsection (6) excludes from the provisions of subsections (3) and (4) any person authorised to vote as a proxy., The effect of Section 62(1) is that a person not entered in the electoral roll of a constituency is not entitled to vote there, while a person entered in the roll is entitled to vote, subject to the disqualifications in Section 16. Accordingly, even if a person is entered in the roll, if he is disqualified under Section 16 at the time of voting, his right to vote is eclipsed. Sections 62(3) and 62(4) ensure that a person cannot vote in multiple constituencies or cast multiple votes in the same constituency, and Section 62(5) bars voting by persons confined in prison or police custody. These provisions operate alongside the adult suffrage guarantee in Article 326, which entitles a citizen who is at least eighteen years old and not disqualified under the Constitution or any law to be registered as a voter, while the actual right to cast a vote is conferred by Section 62 of the 1951 Act.
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Equally, we may notice that even if a person is included in the electoral roll, if he is in confinement in a prison, it would not entitle him or rather it would disentitle him to cast his vote. In other words, while ordinarily, the Right to Vote inevitably follows from the inclusion of a person in the electoral roll, the Right to Vote may be denied in terms of the law as we have noticed. The mere inclusion of a person's name more than once in an electoral roll in a constituency, it has been declared, also would not entitle him to vote more than once [See Section 62(4)]. Equally, inclusion of a person's name in the electoral roll of more than one constituency would not entitle a person to cast his vote, in terms of such inclusion in more than one constituency [See Section 62(3)]. No doubt, we do notice that the Supreme Court of India has issued notice in a case which involves a challenge to Section 62(5) of the 1951 Act., Section 16(1)(b) of the 1950 Act provides for disqualification of a person of unsound mind to be registered in an electoral roll. There is a condition that he must be so declared by a competent court. Unsoundness of mind is also to be found in Article 326 as a disqualification. Section 16(1)(c) of the 1950 Act disqualifies a person for registration in an electoral roll if he is for the time being disqualified from voting under any law relating to corrupt practices and other offences in connection with elections. If such a person is included in such electoral roll, his name is to be struck off from the electoral roll [See Section 16(2)]. Section 11A of the 1951 Act provides for disqualifications from voting. We have already noticed its contents., In Desiya Murpokku Dravida Kazhagam (DMDK) and another v. Election Commission of India, dealing with the validity of the Symbols Order 1968, providing for recognition and allotment based on the criteria mentioned therein, Justice Chelameswar authored a dissent. In the course of his dissent, the learned Judge, after adverting to Articles 81 and 170, which respectively provided for the composition of the Lok Sabha and the Legislative Assemblies, and, more particularly, that the Members of the said Legislative Bodies would be chosen by direct elections and after adverting to Articles 325 and 326, held as follows: The cumulative effect of all the abovementioned provisions is that the Lok Sabha and the Legislative Assemblies are to consist of members who are to be elected by all the citizens who are of 18 years of age and are not otherwise disqualified by a valid law to be voters. Thus, a constitutional right is created in all citizens who are 18 years of age to choose (participate in the electoral process) the members of the Lok Sabha or the Legislative Assemblies. Such a right can be restricted by the appropriate legislature only on four grounds specified under Article 326., In this regard, we may also notice the Judgment of the Supreme Court of India in Rajbala and others v. State of Haryana and others. Therein a Bench of two learned Judges was dealing with the constitutionality of the Haryana Panchayati Raj (Amendment) Act, 2015, under which certain categories of persons were rendered incapable of contesting elections. One such category was persons who did not possess specified educational qualifications. Justice Chelameswar speaking for the Bench held as follows: The right to vote of every citizen at an election either to the Lok Sabha or to the Legislative Assembly is recognised under Articles 325 and 326 subject to limitations (qualifications and disqualifications) prescribed by or under the Constitution. On the other hand, the right to vote at an election either to the Rajya Sabha or to the Legislative Council of a State is confined only to members of the electoral colleges specified under Articles 80(4) and (5) and Articles 171(3)(a), (b), (c) and (d)., Of the total number of members of the Legislative Council of a State (a) as nearly as may be, one‑third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify; (b) as nearly as may be, one‑twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university; (c) as nearly as may be, one‑twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament; (d) as nearly as may be, one‑third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly; (e) the remainder shall be nominated by the Governor in accordance with the provisions of clause (5). In the case of election to the Rajya Sabha, the electoral college is confined to elected members of Legislative Assemblies of various States and representatives of Union Territories. In the case of the Legislative Council, the electoral college is divided into four parts consisting of: (i) members of various local bodies specified under Article 171(3)(a); (ii) certain qualified graduates specified under Article 171(3)(b); (iii) persons engaged in the occupation of teaching in certain qualified institutions described under Article 171(3)(c); and (iv) members of the Legislative Assembly of the State concerned. Interestingly, persons to be elected by the electors falling under any of the aforementioned categories need not belong to that category, in other words, need not be a voter in that category., The Supreme Court of India thereafter held as follows: We, therefore, proceed on the basis that, subject to restrictions mentioned above, every citizen has a constitutional right to elect and to be elected to either Parliament or the State Legislatures., The Court further held: The right to vote at an election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified in Article 326. It must be remembered that under Article 326, the authority to restrict the right to vote can be exercised by the appropriate Legislature., What are the incidents of a legal right? In Salmond on Jurisprudence we find the following discussion about the characteristics of a legal right: (1) It is vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled, the person of inherence. (2) It avails against a person, upon whom lies the correlative duty. He may be distinguished as the person bound, or as the subject of the duty, or as the person of incidence. (3) It obliges the person bound to an act or omission in favour of the person entitled. This may be termed the content of the right. (4) The act or omission relates to something (in the widest sense of that word), which may be termed the object or subject‑matter of the right. (5) Every legal right has a title, that is to say, certain facts or events by reason of which the right has become vested in its owner., Article 168 of the Constitution reads as follows: For every State there shall be a Legislature which shall consist of the Governor, and (a) in the States of Bihar, Madhya Pradesh, Maharashtra, Karnataka and Uttar Pradesh, two houses; (b) in other States, one House. Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly., A perusal of Article 168(2) leads to the following inevitable conclusion: Wherever there are two Houses in a Legislature of a State, one is designated as Legislative Assembly and the other is called a Legislative Council. In States where there is only one House, it will be called the Legislative Assembly. Thus Article 170 deals with the composition of Legislative Assemblies whereas Article 171 deals with the composition of Legislative Councils. Section 27 of the 1950 Act actually deals with the preparation of electoral roll for the Legislative Council and not the Legislative Assembly. This observation reminds us that there is a distinction between the Legislature of a State and the Legislative Assembly. Article 168 deals with the constitution of the Legislatures of the States. Apart from the Governor, a Legislative Assembly, when there is only one House, would be the other constituent part of the Legislature of the State. Therefore Article 326 deals with the House of the People and the Legislative Assembly. It does not deal with Legislative Councils. As far as Article 327 is concerned, it deals with the power of Parliament to make law with respect to all matters relating to election in connection to either House of Parliament. Parliament can also make law in regard to either House of the Legislature of a State, including the preparation of electoral roll. However, Article 327 begins with the words subject to the provisions of this Constitution. This means that Article 327 is subject to Article 326. Since Article 326 provides for the specific heads of disqualification in regard to election to the House of the People and to the Legislative Assembly, the power to make law under Article 327 may not be available to overcome the limitation as regards the grounds of disqualification enumerated in Article 326. This limitation is found also in Article 328, which deals with the powers of the State Legislature., Undoubtedly, the Founding Fathers contemplated conferring the right to participate in elections to the House of the People and the Legislative Assemblies on all citizens who were of a certain age. The right was, however, subject to the condition that they were not to be disqualified. The disqualifications, again, were limited to what was contained in Article 326. The disqualifications were to be expressly provided by a law made by the appropriate Legislature. The disqualification or rather qualification included the aspect of residence. Section 20 of the 1950 Act elaborates upon the concept of residence. Likewise, in the matter of corrupt practices and other crimes in connection with elections, within the meaning of Section 16(c) of the 1950 Act, the matter is to be regulated by the law., Having noticed all the relevant provisions and bearing in mind the characteristics of a legal right, we find as follows: Since every legal right, which would include a Constitutional Right, must have a title, we must ascertain whether a citizen of India who is not less than eighteen years, as on the qualifying date, has a right. Since the title to a legal right means the facts or events by reason of which the right becomes vested in its owner, we will explore whether Article 326 contains the facts and reasons and whether it also contains the content of a Right. In keeping with the mandate of Article 326, Parliament has made the 1950 Act and the 1951 Act. It is thereafter that the first general elections were held in the country. It may be true that the 1950 Act and the 1951 Act have been amended from time to time. Placing Article 326 side‑by‑side with the law made by Parliament or the law made by the State Legislature, we find that if a person is a citizen of India and not below eighteen years of age, and if he does not incur the disqualifications, which cannot be more than what is provided in Article 326, the citizen becomes entitled to be entered in the electoral roll. Such a person, as indicated in Article 326, indeed has a right which can be said to be a Constitutional Right, subject to restriction. Section 62(1) of the 1951 Act gives also the Right to Vote to such a person. Any other interpretation would whittle down the grand object of conferring adult suffrage on citizens., The mere fact that for the creation of a Right, one needs to lean on certain facts, which may consist of a law, which in turn is in the main respects dictated by the constitutional provision, may not detract from the existence of a Right. Article 19 confers fundamental freedoms, which are understood as Fundamental Rights. The Fundamental Rights can be regulated by law made under Article 19(2) to Article 19(6). Could it be said that, in view of the power to regulate the Fundamental Right, no right exists? In the case of Fundamental Rights under Article 19, it could be said that the Right exists and it is only made subject to a law, which may be made. However, could it be said that whenever a law is made by Parliament, acting even within the boundaries of Article 326, by amending or adding to the disqualifications, even if it is limited by the disqualifications declared in Article 326, such a law could be described as falling foul of the Constitution, as contained in Article 326?, Take for instance, a new corrupt practice is added by law. Would it be vulnerable on the ground that it takes away the Constitutional right under Article 326? We think that it may not. What would be the position if the Legislature had not provided for any corrupt practice or a crime as a disqualification? Then there would be no such disqualification. However, the appropriate Legislature is also limited in the matter of the disqualifications by Article 326. In that sense, it could be said that Article 326 provides a constitutional right, subject to restrictions which the law provides for, which must finally be traced to its source. Section 62(1) of the 1950 Act provides the fulfilment of the goal of adult suffrage guaranteed in Article 326. Article 326(3) and Article 326(4) are only meant to provide against the misuse of the right. Section 62(2) is clearly reconcilable with Article 326. Section 62(5) again appears to be a restriction., In regard to Article 326, we may observe, when the Founding Fathers clearly created a right on the citizen who was an adult (the age was originally 21 years and it was lowered to 18 years), to have his name entered in the electoral roll unless he has incurred disqualifications, which, in turn, were limited to those mentioned in Article 326, they were to be provided by law. It is clear that a law necessarily had to be made. The law was, indeed, made by the 1950 and 1951 Acts, providing for the true contours of the disqualification limited to what was provided in Article 326. Imagine a situation, if Parliament had not passed the 1950 and 1951 Acts, it would have led to a situation where the foundational democratic process of holding elections to the House of the People and the Legislative Assemblies would have been rendered impossible. A law had to be made and it was made. Not making the law would have led to a constitutional breakdown. We make these remarks to remind ourselves that treating the Constitution as the grundnorm, providing the very edifice of the State and the Legal System, the making of the law by the Legislative Body, which is a power entrusted to the Legislative Branch, may come with a duty. A conferment of legislative power, as is done under Article 245 read with Article 246 of the Constitution, is not to be confused with the making of the law under Article 326. The conferment of legislative power under Article 245 read with Article 246 is the essential legislative power in terms of the separation of powers envisaged broadly under the Constitution., We have noticed that we cannot and we need not finally pronounce on this aspect, in view of the fact that a Constitution Bench of the Supreme Court of India, which we have noticed in Kuldip Nayar, has proceeded to hold that there is no Constitutional Right., What is important is that the Supreme Court of India noted in Anukul that holding of free and fair elections constitutes a basic feature of the Constitution and approved of the view apparently that the Right to Elect is fundamental to democracy (see Jyoti Basu)., Even if it is treated as a statutory right, which at any rate cannot be divorced or separated from the mandate of Article 326, the right is of the greatest importance and forms the foundation for a free and fair election, which in turn constitutes the right of the people to elect their representatives. We would for the purpose of the present case rest content to proceed on the said basis., Dr. B.R. Ambedkar made the following pertinent observations regarding democracy in the course of his speech in the Constituent Assembly on 25 November 1949: What we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it a social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality, which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty. On 26 January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man, one vote and one vote, one value. In our social and economic life we shall, by reason of our social and economic structure, continue to deny the principle of one man, one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which we have so laboriously built up., In Indira Nehru Gandhi Smt. v. Raj Narain and another, the Supreme Court of India adverted to the importance of elections in a democracy as follows: Democracy postulates that there should be periodical elections, so that people may be in a position either to re‑elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections. Even in the absence of unfair means and malpractices, sometimes the result of an election is materially affected because of the improper rejection of ballot papers., Aharon Barak, President of the Supreme Court of Israel in his book The Judge in a Democracy articulates concepts about democracy succinctly. He says the following while answering the difficult question as to what is democracy: What is democracy? According to my approach, democracy is a rich and complex normative concept. It rests on two bases. The first is the sovereignty of the people. This sovereignty is exercised in free elections, held on a regular basis, in which the people choose their representatives, who in turn represent their views. This aspect of democracy is manifested in majority rule and in the centrality of the legislative body through which the people’s representatives act. This is a formal aspect of democracy. It is of central importance, since without it the regime is not democratic. The second aspect of democracy is reflected in the rule of values (other than the value of majority rule) that characterize democracy. The most important of these values are separation of powers, the rule of law, judicial independence, human rights, and basic principles that reflect yet other values such as morality and justice, social objectives such as the public peace and security, and appropriate ways of behavior (reasonableness, good faith). This aspect of democracy is the rule of democratic values. This is a substantive aspect of democracy. It too is of central importance. Without it, a regime is not democratic. Both aspects, the formal and the substantive, are necessary for democracy. They are nuclear characteristics. I discussed them in one case, holding that these characteristics are based upon the recognition of the sovereignty of the people manifested in free and egalitarian elections; recognition of the nucleus of human rights, among them dignity and equality, the existence of separation of powers, the rule of law, and an independent judiciary., He dilates on the qualities that inform a substantive democracy as follows: Democracy is not satisfied merely by abiding by proper elections and legislative supremacy. Democracy has its own internal morality based on the dignity and equality of all human beings. Thus, in addition to formal requirements (elections and the rule of the majority), there are also substantive requirements. These are reflected in the supremacy of such underlying democratic values and principles as separation of powers, the rule of law, and independence of the judiciary. They are based on such fundamental values as tolerance, good faith, justice, reasonableness, and public order. Above all, democracy cannot exist without the protection of individual human rights so essential that they must be insulated from the power of the majority. Democracy is not just the law of rules and legislative supremacy; it is a multidimensional concept. It requires recognition of both the power of the majority and the limitations on that power., On the topic of Change and Stability and elaborating on The Dilemma of Change, the learned Judge writes: The Dilemma of Change The need for change presents the judge with a difficult dilemma, because change sometimes harms security, certainty, and stability. The judge must balance the need for change with the need for stability. Professor Roscoe Pound expressed this well more than eighty years ago: Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and of the need of change. Law must be stable and yet it cannot stand still. Stability without change is degeneration. Change without stability is anarchy. The role of a judge is to help bridge the gap between the needs of society and the law without allowing the legal system to degenerate or collapse into anarchy. The judge must ensure stability with change, and change with stability. Like the eagle in the sky, which maintains its stability only when it is moving, so too is the law stable only when it is moving. Achieving this goal is very difficult. The life of the law is complex. It is not mere logic. It is not mere experience. It is both logic and experience together. The progress of case law throughout history must be cautious. The decision is not between stability or change. It is a question of the speed of the change. The decision is not between rigidity or flexibility. It is a question of the degree of flexibility., In S.R. Chaudhuri v. State of Punjab and Others, the Supreme Court of India had to deal with the question whether the person who was not a Member of the Assembly and who failed to get himself elected during the period of six consecutive months after appointment as Minister could be reappointed as Minister without being elected after the expiry of the period of six consecutive months. The decision involved the interpretation of Article 164, in particular Article 164(4) of the Constitution of India. Article 164 reads as follows: Other provisions as to Ministers. (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the States of Bihar, Madhya Pradesh and Odisha, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and Backward Classes or any other work. (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. (5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule. A Bench of three learned Judges of the Supreme Court of India disapproving of the resort to repeated appointments without the Minister getting elected held as follows: Parliamentary democracy generally envisages (i) representation of the people, (ii) responsible government, and (iii) accountability of the Council of Ministers to the Legislature. The essence of this is to draw a direct line of authority from the people through the Legislature to the executive.
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The character and content of parliamentary democracy in the ultimate analysis depends upon the quality of persons who man the Legislature as representatives of the people. It is said that elections are the barometer of democracy and the contestants the lifeline of the parliamentary system and its set‑up. Constitutional provisions are required to be understood and interpreted with an object‑oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but their full import and true meaning have to be appreciated considering the true context in which they are used and the purpose which they seek to achieve. Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non‑member's inclusion in the Cabinet was considered to be a privilege that extends only for six months, during which period the member must get elected, otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a constitutional provision because it is the function of the Supreme Court of India to find out the intention of the framers of the Constitution. We must remember that a Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. The debates clearly indicate the privilege to extend only for six months., In B.R. Kapur v. State of Tamil Nadu and Another, interpreting Article 164, a Constitution Bench which also relied upon Constituent Assembly debates held that a non‑legislator could become a Chief Minister or Minister under Article 164 only if he had the qualification for membership of the legislative body and was also not disqualified within the meaning of Article 191. Of relevance to the cases before us are the following observations of Justice G.B. Pattanaik: In a democracy, constitutional law reflects the value that people attach to orderly human relations, to individual freedom under the law and to institutions such as Parliament, political parties, free elections and a free press. The Constitution occupies the primary place. Notwithstanding the fact that we have a written constitution, in course of time a wide variety of rules and practices have evolved which adjust the operation of the Constitution to changing conditions. Many important rules of constitutional behaviour, which are observed by the Prime Minister and Ministers, members of the Legislature, Judges and civil servants, are contained neither in Acts nor in judicial decisions. Such rules have been termed by the constitution‑writers as the rule of the positive morality of the Constitution and sometimes are called the unwritten maxims of the Constitution, rules of constitutional behaviour, which are considered to be binding on those who operate the Constitution but which are not enforced by the law courts nor by the presiding officers in the House of Parliament., In B.P. Singhal v. Union of India and Another, dealing with Article 156(1) which declares that a Governor shall hold office during the pleasure of the President, the Supreme Court held that when a Governor holds office during the pleasure of the Government and the power to remove at the pleasure of the President is not circumscribed by any conditions or restrictions, the power is exercisable at any time without assigning any cause. However, there is a distinction between the need for a cause for removal and the need to disclose the cause for removal. While the President need not disclose the cause for removal to the Governor, a cause must exist. Regarding the limitations or restrictions on the exercise of removal of a Governor, the Court observed: \The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions. The significance is vital, not formal; it is to be gathered not simply by taking the words in a dictionary, but by considering their origin and the line of their growth.\, Article 324 is a plenary provision clothing the Election Commission with the entire responsibility to hold national and state elections and carries with it the necessary powers to discharge its functions. However, the Commission cannot act against a law framed by Parliament or the State Legislature. The power of the Commission is also subject to norms of fairness and it cannot act arbitrarily or mala fide. Article 324 governs matters not covered by legislation. Being a high functionary who is expected to function fairly and legally, if he does otherwise the courts can veto the illegal action (see Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others)., The Election Commission under Article 324 can postpone an election on the basis of the opinion that there existed disturbed conditions in the State or some area of the State, thus making the holding of free and fair elections not possible. The Court followed the views in the Mohinder Singh Gill case that democracy depends on the man as much as on the Constitution (see Digvijay Mote v. Union of India and Others). The Election Commission is endowed with the power to recognise political parties and to decide disputes arising among them. It can also adjudicate controversies between splinter groups within a political party. The Commission has been found to have the power to issue the symbols order. This right has been traced to Article 324 (see All Party Hill Leaders Conference Shillong v. Captain W.A. Sangma and Others, and Kanhiya Lal Omar v. R.K. Trivedi and Others)., Recognising the magnitude of the exercise involved in ensuring free and fair elections, the Supreme Court declared that in case of conflict of opinion between the Election Commission and the Government as to the adequacy of the machinery to deal with the state of law and order, the assessment of the Election Commission was to prima facie prevail. The Court also observed that a mutually acceptable coordinating machinery may be put in place (see Election Commission of India v. State of Tamil Nadu and Others)., While dealing with the power of the Election Commission to requisition staff for election duty and disagreeing with the Commission that it could requisition the service of the employees of the State Bank of India, the Supreme Court declared that the Election Commission did not have untrammeled power. The power must be traced to the Constitution or a law (see Election Commission of India v. State Bank of India Staff Association Local Head Office Unit, Patna and Others)., The Election Commission has power to issue directions for the conduct of elections requiring political parties to submit details of the expenditure incurred or authorised by them for the purpose of the election of their respective candidates. This power was traced to the words 'conduct of elections' (see Common Cause (A Registered Society) v. Union of India and Others)., All powers, though not specifically provided but necessary for effectively holding elections, are available to the Election Commission (see Election Commission of India v. Ashok Kumar and Others)., Article 324 is a reservoir of power to be used for holding free and fair elections. The Commission, as a creature of the Constitution, may exercise it in an infinite variety of situations. In a democracy, the electoral process plays a strategic role. The Commission can fill the vacuum by issuing directions until there is a law made. This was laid down in the context of directions aimed at securing information about the candidates (see Union of India v. Association for Democratic Reforms and Others)., Following a spate of violence in the State of Gujarat and upon the dissolution of the Assembly, the Commission took the view that it may not be possible to hold the election though Article 174(1) mandated that there shall not be more than six months between the last session of the assembly and the first meeting of the next session. After finding that Article 174 did not apply to a dissolved assembly, the Supreme Court reiterated that the words superintendence, control, direction as well as the conduct of all elections were the broadest terms. The Court also found that if there is no free and fair periodic election, it is the end of democracy (see (2000) 8 SCC 237). The judgment was rendered while answering a reference made to the Supreme Court under Article 143 of the Constitution., The Election Commission has the power to lay down a certain benchmark to be achieved by a party in State politics before it could be recognised as a political party (see Desiya Murpokku Dravida Kazhagam (DMDK) v. Election Commission of India and Others). Justice J. Chelameswar wrote a dissenting opinion., While dealing with the aspect of jurisdiction of the Election Commission under Section 10A of the 1951 Act to ascertain whether there has been a failure to lodge true, correct and genuine accounts of bona fide election expenditure and that it did not exceed the maximum limit, the Election Commission has been found to have overarching powers and it has been described as a guardian of democracy. In this regard, the Supreme Court observed in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar: \In this context, we also keep in mind the Preamble to the Constitution which in liberal words states that the People of India having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all citizens justice, liberty, equality and fraternity. In such a large democratic country, if purity in elections is not maintained, the authority created, namely the Election Commission, must have effective and stable powers so that unscrupulous elements are scuttled. It is unfortunate that those who are really interested in the welfare of society and are incapable of indulging in corrupt practices are virtually sidelined and treated as ineligible for contesting elections.\, Under Article 103(2) and Article 192(2), the President and the Governor are to act on the opinion of the Election Commission as regards the question of disqualification of a Member of Parliament and of a member of the Legislature of a State, respectively. This is the advisory jurisdiction of the Election Commission. It exercises vast administrative powers and also discharges quasi‑judicial functions., Article 329(b) declares: \No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.\, Regarding the impact of Article 329(b), a Bench of three learned judges, after an exhaustive review of earlier case law, set down the following summary of conclusions in Election Commission of India v. Ashok Kumar: The founding fathers of the Constitution consciously employed the words 'no election shall be called in question' in Article 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If a petition presented to the Court calls an election into question, the bar of Article 329(b) is attracted; otherwise it is not. An election, the term being widely interpreted to include all steps and proceedings from the date of notification of election till the date of declaration of result, if called into question in a manner that may interrupt, obstruct or protract the election proceedings, judicial remedy must be postponed till after the completion of the election. Any decision rendered will not amount to calling the election into question if it subserves the progress of the election and facilitates its completion. Actions or orders issued by the Election Commission are open to judicial review on well‑settled parameters such as mala fide or arbitrary exercise of power or breach of law. Without interrupting, obstructing or delaying the election proceedings, judicial intervention is available if the court is sought merely to correct or smoothen the progress of the election, to remove obstacles, or to preserve vital evidence that might be lost before results are declared. The court must be circumspect and act with caution while entertaining any election dispute not barred by Article 329(b) but brought during the pendency of election proceedings, guarding against attempts to retard, interrupt, protract or stall the election. The court should not act except on a clear and strong case for intervention, with precise pleadings and supporting material., We would therefore find that the Election Commission of India has been charged with the duty and blessed with extraordinary powers to hold elections to both Parliament and state legislatures from time to time. This is an enormous task. The power it possesses under Article 324 is plenary, subject only to any law made by Parliament or by the State Legislature. Undoubtedly, the Election Commission is duty bound to act in a fair and legal manner, observe the provisions of the Constitution and abide by the directions of the Supreme Court of India. When the poll is notified, which again is a call to be taken by the Election Commission itself and can be misused, the Commission assumes unusual powers. Its writ lies across governments throughout the country. Officers of the Government who come under its charge become subject to the superintendence of the Commission. The fate of political parties, their candidates and therefore of democracy itself rests largely in the hands of the Election Commission. While officers assist the Commission, vital decisions are taken by the Chief Election Commissioner and the Election Commissioners. Subject to proceedings initiated in courts that conduce to the effective holding of the poll, any proceeding seeking to bring the election process under a shadow is tabooed. This adds to the enormity of the powers and responsibilities of the Election Commission. Awaiting the outcome of the poll to question the election before the tribunal may result in illegal, unfair and mala fide decisions by the Election Commission. Once election results are out, the matter is largely reduced to a fait accompli. An omission or delay in taking a decision can be fatal to the holding of a free and fair poll. The relief granted in an election petition may not itself provide a just solution to an illegal, mala fide or unfair election. These observations have a direct connection with the need to take the appointment of the members of the Election Commission out of the exclusive hands of the executive, namely the party which naturally has an interest in perpetuating itself in power., The basic and underlying principle central to democracy is power to the people through the ballot. Abraham Lincoln declared democracy to be government of the people, by the people and for the people. A political party or a group or a coalition assumes the reins of governance. The purpose of achieving power is to run the Government in accordance with the dictates of the Constitution and the laws. Political parties present manifestos containing a charter of promises they intend to keep. Without attaining power, organised political parties cannot achieve their goals. Power therefore becomes a means to an end, the end being governance that achieves the directive principles while observing fundamental rights and the mandate of all laws. The concern is the pollution of the electoral process that precedes the gaining of power. Ends cannot justify the means. The strength and credibility of democracy must depend upon the means employed to gain power being as fair as the conduct of Government after the assumption of power. An unrelenting abuse of the electoral process over time is the surest way to the grave of democracy. Democracy can succeed only insofar as all stakeholders uncompromisingly work at it, and the most important aspect of democracy is the electoral process; its purity alone truly reflects the will of the people so that the fruits of democracy are truly reaped. The essential hallmark of a genuine democracy is the transformation of the ruled into a citizenry clothed with rights, including Fundamental Rights, and the change of the ruler from an emperor to a public servant., The cardinal importance of a fiercely independent, honest, competent and fair Election Commission must be tested on the anvil of the rule of law and the grand mandate of equality. The rule of law is the very bedrock of democratic governance; it means that persons and their affairs are governed by pre‑announced norms, averting a democratic government brought to power by the ballot from betraying trust and lapsing into caprice, nepotism and despotism. An Election Commission that does not ensure free and fair polls as per the rules of the game guarantees the breakdown of the foundation of the rule of law. The qualities described are indispensable for adherence to the guarantee of equality in Article 14. If the Election Commission exercises its powers unfairly or illegally, or refuses to exercise a duty, it has a chilling effect on political parties. Inequality in the treatment of similarly situated political parties breaches Article 14. Political parties must be viewed as organisations representing the hopes and aspirations of their constituents, who are citizens. The recognition of NOTA by this Court, enabling a voter to express distrust for all candidates, exposes disenchantment with the electoral process. Any action or omission by the Election Commission that treats political parties unevenly or arbitrarily would breach Article 14. The right to vote is imbedded in the fundamental freedom under Article 19(1)(a). The right of a citizen to seek and receive information about candidates has been recognised as a fundamental right (see Public Interest Foundation). The Election Commissioners, including the Chief Election Commissioner, blessed with nearly infinite powers and bound by fundamental rights, must not be chosen exclusively by the Executive and must be selected with objective criteria., Apart from the 1950 and 1951 Acts, the Code of Election Rules, 1961 was made. In 1968, the Election Symbols (Reservation and Allotment) Order, 1968 (the Symbols Order) was issued by notification dated 31 August 1968, in exercise of powers conferred under Article 324 of the Constitution read with Section 29A of the 1951 Act and Rules 5 and 10 of the Conduct of Elections Rules. The Symbols Order deals with allotment and classification of symbols. Political parties are broadly divided into recognised political parties and unrecognised political parties. A recognised party may be a national party or a state party. Conditions for recognition as a national party and as a state party are separately laid down. Paragraph 15 of the Symbols Order reads: \Power of Commission in relation to splinter groups or rival sections of a recognised political party: When the Commission is satisfied, on information in its possession, that there are rival sections or groups of a recognised political party each claiming to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons who desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party, and the decision of the Commission shall be binding on all such rival sections or groups.\, Paragraph 16 deals with the power of the Commission in case of amalgamation of two political parties., In the same year, 1968, a Model Code of Conduct was issued. As of date, a large body of norms forming part of the Model Code of Conduct has been put in place. The Model Code of Conduct for guidance of political parties and candidates provides, inter alia, that no party or candidate shall engage in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes, communities, religions or linguistic groups; there shall be no appeal to caste or communal feelings for securing votes; places of worship shall not be used as forums for election propaganda; all parties and candidates shall avoid corrupt practices and offences under the election law, such as bribing voters, intimidation, impersonation, canvassing within 100 metres of polling stations, holding public meetings within 48 hours of the poll, and transport of voters to and from polling stations., The Model Code of Conduct also deals with meetings, processions and polling day conduct. Regarding the party in power, Part VII of the Model Code of Conduct reads: \The party in power, whether at the Centre or in the State, shall ensure that no cause is given for any complaint that it has used its official position for the purposes of its election campaign. Government transport, including official aircraft, vehicles, machinery and personnel, shall not be used for furtherance of the interest of the party in power. Rest houses, dak bungalows or other government accommodation shall not be monopolised by the party in power or its candidates and shall be made available to other parties and candidates in a fair manner; such accommodation shall not be used as a campaign office or for holding public meetings for election propaganda. Advertisement at the cost of the public exchequer in newspapers and other media and the misuse of official mass media during the election period for partisan coverage shall be scrupulously avoided. Ministers and other authorities shall not sanction grants or payments out of discretionary funds from the time elections are announced by the Commission.\, There is a clear need for a fearless and independent Election Commission of India to give full effect to these salutary principles.
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Paragraph -16A of the Symbols Order inserted by Notification dated 18.02.1994 reads as follows: 16A. Power of Commission to suspend or withdraw recognition of a recognised political party for its failure to observe Model Code of Conduct or follow lawful directions and instructions of the Commission. Notwithstanding anything in this Order, if the Commission is satisfied on information in its possession that a political party, recognised either as a National party or as a State party under the provisions of this Order, has failed or has refused or is refusing or has shown or is showing defiance by its conduct or otherwise (a) to observe the provisions of the Model Code of Conduct for Guidance of Political Parties and Candidates as issued by the Commission in January 1991 or as amended by it from time to time, or (b) to follow or carry out the lawful directions and instructions of the Commission given from time to time with a view to furthering the conduct of free, fair and peaceful elections or safeguarding the interests of the general public and the electorate in particular, the Commission may, after taking into account all the available facts and circumstances of the case and after giving the party reasonable opportunity of showing cause in relation to the action proposed to be taken against it, either suspend, subject to such terms as the Commission may deem appropriate, or withdraw the recognition of such party as the National Party or, as the case may be, the State Party., In Abhiram Singh v. C.D. Commachen (DEAD) by Legal Representatives and others, a Bench of seven learned Judges of the Supreme Court of India had to interpret the word \his\ in Section 123 of the Representation of the People Act. By a 4:3 majority, the Supreme Court of India held that the word \his\ in Section 123(3) of the Representation of the People Act, 1951, for the purpose of maintaining the purity of the electoral process, must be given a broad and purposive interpretation so that any appeal made to an elector by a candidate or his agent or by any other person with the consent of the candidate or his election agent, to vote or refrain from voting, inter alia, on the grounds of religion and caste, would constitute a corrupt practice. Dr. T.S. Thakur, Chief Justice, wrote a concurring judgment and we find it apposite to notice the following passage from his judgment on the importance of India being a secular country and about according any particular religion, special privileges, being a violation of the basic principles of democracy: 35. At the outset, we may mention that while considering the mischief sought to be suppressed by clauses (2), (3) and (3‑A) of Section 123 of the Act, the Supreme Court of India observed in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra (1976) 2 SCC 17, decided by a Bench of three learned Judges, that the historical, political and constitutional background of our democratic set‑up needed adverting to. In this context, it was said that our Constitution‑makers intended a secular democratic republic where differences should not be permitted to be exploited., Dr. Radhakrishnan, the noted statesman/philosopher, said about India being a secular State in the following passage: When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government. This view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges, which it denies to others. No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life. This is the basic principle involved in the separation of church and State., The Model Code of Conduct, the views of the Supreme Court of India about appeal to religion being a corrupt practice, and paragraph -16A of the Symbols Order, empowering the Commission to act in the face of defiance, constitute a powerful weapon in the hands of an independent and impartial Election Commission. Placing the exclusive power to appoint with the Executive hardly helps., In regard to the Symbols Order, the Supreme Court of India in Shri Sadiq Ali and another v. Election Commission of India, New Delhi and others upheld the vices of the Symbols Order. The Supreme Court of India, inter alia, held as follows: The Commission is an authority created by the Constitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice‑President shall be vested in the Commission. The fact that the power of resolving a dispute between two rival groups for allotment of a symbol of a political party has been vested in such a high authority would raise a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner., It is further found that when the Commission issues directions, it does so on its own behalf and not as a delegate of some other authority. This was on the construction of Article 324(1)., The Supreme Court of India upheld the power of the Election Commission of India to rescind its order according to recognition to a political party, even without elections having been held in all the States in the country (see Janata Dal (Samajwadi) v. Election Commission of India)., In Indian National Congress (I) v. Institute of Social Welfare and others, the Supreme Court of India took the view that the Election Commission has not been conferred with the express power to deregister a political party registered under Section 29A on the ground that it violated the Constitution or any undertaking given to the Election Commission at the time of its registration. The Supreme Court of India also held that while exercising its power to register a political party under Section 29A, the Commission acts quasi‑judicially. The Court set out the three exceptional cases where the Commission could review its order for registering a political party, including obtaining registration by practicing fraud or forgery. Under Paragraph -16A of the Symbols Order, the Commission has been empowered to suspend or withdraw the recognition of a party as a national or a state party after giving a reasonable opportunity. One of the grounds is refusal or defiance, apart from failure to observe the provisions of the Model Code of Conduct for Guidance. Therefore, after 1994, enormous powers have been conferred on the Election Commission to ensure compliance with the Model Code of Conduct for Guidance of Political Parties issued by the Election Commission in 1991 or as amended from time to time. The power can also be exercised under Paragraph -16A in regard to failure or defiance in following lawful directions and instructions by the Commission., In Subramanian Swamy v. Election Commission of India through its Secretary, the Supreme Court of India held that the purpose of making the Symbols Order was to maintain the purity of elections. The Court highlighted the duty of the Election Commission to hold free, fair and clean elections., Paragraph -18 of the Symbols Order reads as follows: 18. Power of Commission to issue instructions and directions. The Commission may issue instructions and directions (a) for the clarification of any of the provisions of this Order; (b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions; and (c) in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which this Order makes no provision or makes insufficient provision, and provision is, in the opinion of the Commission, necessary for the smooth and orderly conduct of elections., Dealing with the ambit of paragraph -18, the Supreme Court of India held, inter alia, in Edapaddi K. Palaniswami v. T.T.V. Dhinakaran and others as follows: Indeed, allotment of an election symbol cannot be claimed as a fundamental right as much as contesting election is not, as observed in Jyoti Basu v. Debi Ghosal (1982) 1 SCC 691. It is a statutory right. It is also well settled that the Election Commission has plenary powers and could exercise the same to ensure free and fair elections. Clause 18 of the Symbols Order predicates the facet of such plenary power to be exercised by the Election Commission. Clause 18 reads thus: 18. Power of Commission to issue instructions and directions. The Commission may issue instructions and directions (a) for the clarification of any of the provisions of this Order; (b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions; and (c) in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which this Order makes no provision or makes insufficient provision, and provision is, in the opinion of the Commission, necessary for the smooth and orderly conduct of elections. The Election Commission in the past has exercised plenary powers under Para 18 for issuing interim directions regarding allocation of common symbols to the two factions when the dispute under the Symbols Order was still pending before it. It was argued that the Election Commission cannot do so once it had finally decided the dispute. There is no difficulty in agreeing with the proposition that once the dispute had been finally decided by the Election Commission of India, the question of invoking powers under Para 18 would not arise. However, if the dispute is pending enquiry before the Election Commission of India or the final decision of the Election Commission of India is sub‑judice in the proceedings before the Supreme Court of India, providing for an equitable arrangement in the interests of free and fair elections and to provide an equal level playing field to all concerned would be a just and fair arrangement., The above observations indicate the width of the powers available to the Election Commission., In Public Interest Foundation and others v. Union of India and others, a Constitution Bench was invited but refused to add or prescribe disqualifications for contesting elections other than what was prescribed by the Constitution and Parliament. In this regard, an appeal made to the existence of plenary power under Article 324 did not pass muster. The attempt was to persuade the Supreme Court of India to direct the Election Commission to disallow a candidate from contesting on the ground that charges have been framed for heinous and/or grievous offences. It was found that Parliament had the exclusive legislative power to lay down the disqualifications for the membership of the Legislative Body. It is apposite that we, however, notice the following: An essential component of a constitutional democracy is its ability to give and secure for its citizenry a representative form of government, elected freely and fairly, and comprising a polity whose members are men and women of high integrity and morality. This could be said to be the hallmark of any free and fair democracy., The Supreme Court of India, thereafter, quoted from the Goswami Committee on Electoral Reforms, wherein the Committee bemoaned the role of money and muscle power at elections and rapid criminalisation of politics, greatly encouraging evils of booth capturing, rigging and violence. It is important that we notice paragraph 30. Criminalisation of politics was never an unknown phenomenon in the Indian political system, but its presence was seemingly felt in its strongest form during the 1993 Mumbai bomb blasts, which resulted from a collaboration of a diffused network of criminal gangs, police and customs officials and their political patrons. The tremors of the attacks shook the entire nation and, as a result of the outcry, a commission was constituted to study the problem of criminalisation of politics and the nexus among criminals, politicians and bureaucrats in India. The Vohra Committee Report, submitted by Union Home Secretary N.N. Vohra in October 1993, referred to several observations made by official agencies, including the Central Bureau of Investigation, Intelligence Bureau and Research and Analysis Wing, who unanimously expressed their opinion on the criminal network virtually running a parallel government. The Committee also took note of the criminal gangs who carried out their activities under the aegis of various political parties and government functionaries. The Committee further expressed great concern that, over the past few years, several criminals had been elected to local bodies, State Assemblies and Parliament. The Report observed: 3.2. In the bigger cities, the main source of income relates to real estate forcibly occupying lands/buildings, procuring such properties at cheap rates by forcing out the existing occupants/tenants etc. Over time, the money power thus acquired is used for building up contacts with bureaucrats and politicians and expansion of activities with impunity. The money power is used to develop a network of muscle‑power which is also used by politicians during elections. 3.3. The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country. The existing criminal justice system, which was essentially designed to deal with individual offences/crimes, is unable to deal with the activities of the mafia; the provisions of law in regard to economic offences are weak., We are tempted to quote the following observations by Shri C. Rajagopalachari, made in 1922 and referred to by the Constitution Bench in Public Interest Foundation: Elections and their corruption, injustice and tyranny of wealth, and inefficiency of administration, will make a hell of life as soon as freedom is given to us., The Supreme Court of India, in Public Interest Foundation, elaborately quoted from the Two Hundred and Forty‑Fourth Report of the Law Commission of India on Electoral Disqualifications. The Supreme Court of India also reiterated the role and powers of the Election Commission. The Court observed that: The best available people, as is expected by the democratic system, should not have criminal antecedents and the voters have a right to know about their antecedents, assets and other aspects. In a constitutional democracy, criminalisation of politics is an extremely disastrous and lamentable situation. Citizens cannot be compelled to stand as silent, deaf and mute spectators to corruption by projecting themselves as helpless. Voters cannot be allowed to resign to their fate. The information given by a candidate must express everything that is warranted by the Election Commission as per law. Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified., Thereafter, the Constitution Bench held as follows: Keeping the aforesaid in view, we think it appropriate to issue the following directions which are in accord with the decisions of the Supreme Court of India: 1. Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein. 2. It shall state, in bold letters, the criminal cases pending against the candidate. 3. If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her. 4. The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents. 5. The candidate as well as the political party concerned shall issue a declaration in widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media; the same shall be done at least thrice after filing of the nomination papers. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic setup. Certain gaps or lacunae in a law or legislative enactment can be addressed by the legislature if it is backed by proper intent, strong resolve and determined will of right‑thinking minds to ameliorate the situation. The law cannot always be found at fault for lack of stringent implementation by the authorities concerned. Therefore, it is the solemn responsibility of all concerned to enforce the law as well as the directions laid down by the Supreme Court of India from time to time in order to infuse the culture of purity in politics and democracy, to foster an informed citizenry, for ultimately the citizenry decides the fate and course of politics in a nation and thereby ensures that we shall be governed no better than we deserve. Complete information about the criminal antecedents of the candidates forms the bedrock of wise decision‑making and informed choice by the citizenry. Informed choice is the cornerstone of a pure and strong democracy., We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that Parliament must make law to ensure that persons facing serious criminal cases do not enter the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law‑making should be above any kind of serious criminal allegation. False cases are sometimes foisted on prospective candidates, but the same can be addressed by Parliament through appropriate legislation. The nation eagerly awaits such legislation, for society has a legitimate expectation to be governed by proper constitutional governance. Voters cry for systematic sustenance of constitutionalism. The country feels agonised when money and muscle power become the supreme power. Substantial efforts must be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of entering politics. They should be kept at bay. It would appear that the grant of relief would have resulted in the rewriting of the provision., What is independence? Independence is a value that is only one of the elements in the amalgam of virtues that a person should possess. The competence of a man is not to be conflated with fierce independence. A person may be excellent, i.e., at his chosen vocation. He may be an excellent administrator. He may be honest but the quality of independence transcends the contours of professional excellence and the dictates of honesty. Ordinarily, honesty would embrace the quality of courage of conviction, flowing from the perception of what is right and what is wrong. Irrespective of consequences to the individual, an honest person would unrelentingly take on the high and mighty and persevere in the righteous path. An Election Commissioner is answerable to the Nation. The people of the country look forward to him so that democracy is always preserved and fostered. True independence of a body of persons is not to be confused with sheer unilateralism. The Election Commission must act within the constitutional framework and the laws; it cannot transgress the mandate of either and still claim to be independent. Riding on the horse of independence, it cannot act in an unfair manner. Independence must be related, finally, to the question of what is right and what is wrong. A weak‑kneed person before the powers that be cannot be appointed as an Election Commissioner. A person who is in a state of obligation or feels indebted to the one who appointed him fails the nation and can have no place in the conduct of elections, forming the very foundation of democracy. An independent person cannot be biased. Holding the scales evenly, even in the stormiest of times, not being servile to the powerful, but coming to the rescue of the weak and the wronged, would qualify as true independence. Upholding the constitutional values, which are part of the Basic Structure and include democracy, the Rule of Law, the Right to Equality, secularism and the purity of elections, would indeed proclaim the presence of independence. Independence must embrace the ability to be firm even against the highest. Uncompromising fearlessness will mark an independent person from those who put all they hold dear before their Karma. In this context we refer to the discussion in Supreme Court Advocates‑on‑Record Association and another v. Union of India: A little personal research resulted in the revelation of the concept of the legitimate power of reciprocity debated by Bertram Raven in his article \The Bases of Power and the Power/Interaction Model of Interpersonal Influence\ (Analyses of Social Issues and Public Policy, Vol. 8, No. 1, 2008, pp. 1‑22). The article pointed out that the reciprocity norm envisages that if someone does something beneficial for another, the recipient would feel an obligation to reciprocate. The inherent need of power is universally available in the subconscious of the individual; on achieving the desired power there is a similar unconscious desire to reciprocate the favour., An application was filed by the petitioner in W.P. No. 569 of 2021 to seek interim relief for appointment to fill a vacancy of Election Commissioner which had arisen on 15.05.2022 by a Committee. The Bench commenced hearing of these cases on 17.11.2022. The matter stood posted to 22.11.2022. On 18.11.2022, the vacancy of Election Commissioner was filled by the appointment of Shri Arun Goel. This appointment was attacked by Shri Prashant Bhushan, learned counsel for the petitioner, who contended that when the petitioner moved an application seeking interim relief relating to appointment, it was not open to the Union to make the appointment. The Supreme Court of India called upon the Union to produce the files relating to the appointment. The perusal of the files shows that a vacancy arose upon the appointment of Shri Rajiv Kumar as Chief Election Commissioner w.e.f. 15.05.2022. No specific law has been made under Article 324. A convention exists of appointing senior members of the Civil Services, or other serving or retired officers of the rank of Secretary to the Government of India/Chief Secretary of a State Government, and of appointing the senior‑most Election Commissioner as Chief Election Commissioner. The respondent was aware of the pendency of Writ Petition (Civil) No. 104 of 2015 and other writ petitions. The appointment was made on the basis that there was no hindrance to the appointment. Approval was sought on 18.11.2022 for the appointment of one Election Commissioner. On the same day, a database of IAS officers was accessed and four names were found, the top of the list being the present appointee. Three other names were considered by the Minister of Law and Justice. The officers were from Andhra Pradesh (1983 batch), Telangana (1983 batch), Tamil Nadu (1985 batch) and Punjab (1985 batch). The present appointee, belonging to the Punjab cadre, was the youngest and was due to superannuate in December 2022; he had taken voluntary retirement. The Law Minister suggested the panel of four names for consideration by the Prime Minister and the President, noting the absence of a law and the existing convention. Three of the officers had superannuated in the last two years. The appointee’s voluntary retirement was accepted on 18.11.2022, waiving the three‑month period required for acting on such a request, and his appointment as Election Commissioner was notified on the same day., In regard to this appointment, the salient features may be noticed. The vacancy subsisted from 15.05.2022. The Constitution Bench held a preliminary hearing on 17.11.2022. On the next day, 18.11.2022, while an interim application was pending, all procedures—including the proposal, processing by the Minister for Law, further recommendations of the concerned officers, the Prime Minister’s recommendation, acceptance of the appointee’s voluntary retirement, waiving the three‑month period, and the appointment by the President under Article 324(2)—took place in a single day. No interim order restraining such appointment existed, but I.A. No. 63145 of 2021 in Writ Petition (Civil) No. 569 of 2021, seeking a direction to make the appointment by an independent body, was pending. Shri Prashant Bhushan would seek invalidation of the appointment on that ground., Since the Constitution Bench has been constituted to consider the need for a different method of appointment of the Chief Election Commissioner and the Election Commissioners, the procedure followed raises certain pertinent questions. Appointment is, admittedly, made from a panel of senior civil servants, both retired and serving. The learned Attorney General would contend that the appointment is made from a panel of officers. The current appointee was due to retire on 31.12.2022. The other three persons on the panel had superannuated in 2020. As on 18.11.2022, if any of them had been considered and appointed, they would have had a tenure of less than three years.
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This is for the reason that, under Section 4 of the 1991 Act, an Election Commissioner is entitled to a term of six years, subject, however, to the condition that the Officer would have to vacate the Office upon his reaching the age of 65 years. In fact, even the appointed Officer was due to retire on 31.12.2022, at the age of sixty years. He would have a term of a little over five years, on the basis of the appointment made on 18.11.2022. He would be appointed not as a Chief Election Commissioner but as an Election Commissioner. Both the Chief Election Commissioner and the Election Commissioner, as per Section 4 of the 1991 Act, are to be appointed for a term of six years., This brought up the question of Section 4, declaring a fixed term of six years from the date of assumption of Office, for a Chief Election Commissioner and an Election Commissioner, being observed in its breach. The learned Attorney General would respond as follows. He pointed out that since the time when the Election Commission became a multi‑Member team, a convention has grown up of making appointments of persons initially as Election Commissioners and the senior‑most Election Commissioner, unless considered unfit, is appointed as the Chief Election Commissioner. As far as Section 4, declaring that the Chief Election Commissioner and the Election Commissioner are to be appointed for a term of six years and the appointments falling foul of the said mandate, the learned Attorney General would point out that the term of the Election Commissioner and the term as Chief Election Commissioner, for those who are appointed as the Chief Election Commissioner, is aggregated. In view of the first proviso to Section 4 of the 1991 Act, a shortfall in terms of the six‑year stint may occur, but it is pointed out that as far as possible, appointments are being made so as to fulfil the requirements of the law., In view of the operation of the proviso, resulting in a compulsory and premature vacating of the Office by the incumbent on attaining the age of 65 years, the term may not last for the full six years, even on the combination of the two appointments, viz., firstly as Election Commissioner and later as Chief Election Commissioner. The learned Attorney General would point out that this Supreme Court of India should not be detained by the said aspect, when the question which this Supreme Court of India is concerned with is different., As far as the criticism launched, both by Shri Prashant Bhushan and Shri Gopal Sankaranarayanan, that the panel which was considered betrayed sheer arbitrariness and reinforced the grievance and the complaint of the Writ Petitioners that an undeniable case is made out for this Supreme Court of India to step in and grant relief so that a fair procedure for selection and appointment is laid down, till a law is made by the Parliament, the learned Attorney General would point out that Civil Servants or Indian Administrative Service Officers are by dint of the experience gathered in the course of their careers ideally suited for appointment as Election Commissioners and Chief Election Commissioners. They have experience in the matter of the conduct of elections at different stages of their career and operate as observers in States other than their cadre States. The Election Commission is not to be conflated with the Chief Election Commissioner and the Election Commissioners; the Commission functions as a large team. It is in this regard that Officers of the Civil Services are impeccably poised for being considered under Article 324(2)., The learned Attorney General would point out that the panel of Officers is born out of the database of serving and retired Indian Administrative Service Officers in the position of Secretaries to the Government of India., When it was pointed out that it remained a mystery to the Supreme Court of India that, incongruous with the unambiguous mandate of Section 4 of the 1991 Act, all the panellists were either retired (three out of four) and the person finally appointed was himself appointed when he had less than a month for his 60th birthday, it was submitted that the Supreme Court of India must bear in mind that the panel was drawn up from the database of Officers in the rank of Secretaries to the Government of India, both serving and retired, and drawn up by the Ministry of Law and Justice. When it was further queried why the respondent did not exhibit any anxiety to ascertain whether there were Officers who could be appointed and be assured the full term of six years in keeping with the mandate of law, it was submitted that there is a dearth of such Officers., Thereupon, it was the contention of both Shri Prashant Bhushan and Shri Gopal Shankaranarayan that this may not be the case. Shri Prashant Bhushan pointed out that there are 160 Officers who belonged to the 1985 Batch and some of them are younger than Shri Arun Goel., We have noted that the three Officers in the panel were described and edged out, noting the factum of superannuation. On that basis, it was found that the appointee was the youngest. Thereafter, on the basis of his experience, age and suitability, the appointee was recommended and finally appointed., If the drawing up of the panel itself results in a fait accompli, then the whole exercise would be reduced to a foregone conclusion as to who would be finally appointed. Even proceeding on the basis that the Government has the right to confine the appointee to Civil Servants, it is in clear breach of the contemplated mandate that, be it as an Election Commissioner or Chief Election Commissioner, the appointee should have a period of six years. The philosophy behind giving a reasonably long stint to the appointee to the post of Election Commissioner or Chief Election Commissioner is that it would enable the Officer to have enough time to gear himself to the needs of the Office and to be able to assert his independence. An assured term would instil in the appointee the inspiration and the will to put in place any reforms, changes, as also the inspiration to bring out his best. A short‑lived stint may drain the much‑needed desire besides the time to fulfil the sublime objects of the high Office of the Election Commissioner or the Chief Election Commissioner. Any tendency towards placating the powers that be would wax, as also the power and the will to assert his independence may wane, bearing in mind the short tenure. This apparently is the underlying philosophy of the law made by Parliament, assuring a term of six years. The term of six years is separately assured to both the Election Commissioner and the Chief Election Commissioner. In other words, the object of the law and its command would stand defeated and the practice lends strength to the complaint of the petitioners. We must make it clear that the observations are not meant to be an individualised assessment of the appointee, who we note has excellent academic qualifications, but academic excellence possessed by members of the civil service cannot substitute values such as independence and freedom from bias or political affiliation., We draw the following conclusions: Parliament enshrined a term of six years separately for the Chief Election Commissioner and the Election Commissioner. This is the rule, found in Section 4(1). A proviso cannot arrogate itself to the status of the main provision. The exception cannot become the rule. Yet this is what the appointments have been reduced to. It undermines the independence of the Election Commission. The policy of the law is defeated., When Article 324(2) provides that the appointment of the Chief Election Commissioner and the other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President, in view of Article 74 it would, undoubtedly, mean that the President is bound to make appointments in accordance with the advice of the Council of Ministers. Taking into consideration Article 77 also and, in view of the Rules of Business made, which we have referred to in paragraph 51 of this Judgment, the appointment, till a law is made by Parliament, would be made by the President in accordance with the advice of the Prime Minister. It was precisely such an appointment that was the cause of unanimous concern to the Members of the Constituent Assembly, which we have already adverted to., The petitioners placed considerable reliance on the judgment of this Supreme Court of India rendered in Vineet Narain and others v. Union of India and another. No doubt, it is a case where the Court, inter alia, held that there are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is a mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. It is in the discharge of this duty that the IRC was constituted by the Government of India with a view to obtain its recommendations after an in‑depth study of the problem in order to implement them by suitable executive directions till proper legislation is enacted. The report of the IRC has been given to the Government of India but because of certain difficulties in the present context, no further action by the executive has been possible. The study, having been made by a Committee considered by the Government of India itself as an expert body, makes it safe to act on the recommendations of the IRC to formulate the directions of this Court, to the extent they are of assistance. In the remaining area, on the basis of the study of the IRC and its recommendations, suitable directions can be formulated to fill the entire vacuum. This is the exercise we propose to perform in the present case since this exercise can no longer be delayed. It is essential and indeed the constitutional obligation of this Court under the aforesaid provisions to issue the necessary directions in this behalf. We now consider formulation of the needed directions in the performance of this obligation. The directions issued herein for strict compliance are to operate till such time as they are replaced by suitable legislation in this behalf., We must, at once, notice, however, that this Supreme Court of India has also held that, in exercise of the powers of this Court under Article 32 read with Article 142, guidelines and directions have been issued in a large number of cases. In Erach Sam Kanga v. Union of India [WP No. 2632 of 1978 decided on 20‑3‑1979] the Constitution Bench laid down certain guidelines relating to the Emigration Act. In Lakshmi Kant Pandey v. Union of India [(1984) 2 SCC 244] (In re, Foreign Adoption) guidelines for adoption of minor children by foreigners were laid down. Similarly, in State of West Bengal v. Sampat Lal [(1985) 1 SCC 317], Veeraswami v. Union of India [(1991) 3 SCC 655], Union Carbide Corporation v. Union of India [(1991) 4 SCC 584], Delhi Judicial Service Association v. State of Gujarat [(1991) 4 SCC 406] (Nadiad case), Delhi Development Authority v. Skipper Construction Co. (P) Ltd. [(1996) 4 SCC 622] and Dinesh Trivedi, M.P. v. Union of India [(1997) 4 SCC 306] guidelines were laid down having the effect of law, requiring rigid compliance. In Supreme Court Advocates‑on‑Record Association v. Union of India [(1993) 4 SCC 441] (II Judges case) a nine‑Judge Bench laid down guidelines and norms for the appointment and transfer of Judges which are being rigidly followed in the matter of appointments of High Court and Supreme Court Judges and transfer of High Court Judges. More recently in Vishaka v. State of Rajasthan [(1997) 6 SCC 241] elaborate guidelines have been laid down for observance in workplaces relating to sexual harassment of working women. In Vishaka it was said that the obligation of this Court under Article 32 of the Constitution for the enforcement of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of Asia and the Pacific at Beijing in 1995 (as amended at Manila, 28th August, 1997) as representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary. The objectives of the judiciary mentioned in the Beijing Statement are: (a) to ensure that all persons are able to live securely under the rule of law; (b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and (c) to administer the law impartially among persons and between persons and the State. Thus, an exercise of this kind by the Court is now a well‑settled practice which has taken firm roots in our constitutional jurisprudence. This exercise is essential to fill the void in the absence of suitable legislation to cover the field., It therefore becomes necessary for us to undertake a journey back in time to recapture the views taken by this Supreme Court of India, which has been referred to in paragraph 51. In Lakshmi Kant Pandey v. Union of India this Court dealt with a public interest litigation lodged against malpractices in trafficking of children in connection with adoption of Indian children by foreigners living abroad. The Court noted from the legislative history that, though Bills were introduced, including the Adoption of Children Bill, 1980, besides the earlier Bill in 1972, it had not attained a legislative effect. The Court found that inter‑country adoption had to be supported but great care had to be exercised in the matter of giving children in adoption to foreign parents. The Court referred to, inter alia, the draft Declaration by the Commission for Social Development at its twenty‑sixth session, besides the guidelines and draft guidelines, which were approved on 04‑09‑1982. The Court noted, at paragraph 10, the absence of a law providing for adoption of an Indian child by a foreign parent. Thereafter, it elaborated on the materials available and finally laid down certain principles and norms to be observed in the matter of giving a child in adoption to foreign parents., In Union Carbide Corporation and others v. Union of India and others, one of the questions for consideration was whether this Supreme Court of India had the power under Article 142 to withdraw to itself Original Suits pending in the District Court at Bhopal and dispose of the same in accordance with the settlement. Similarly, the Court had to deal with the contention that it had no jurisdiction to withdraw the criminal proceedings. The Court held that Article 136 is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction to entertain and hear appeals by granting special leave against any judgment or order made by a Court or Tribunal in any cause or matter and the powers can be exercised notwithstanding the limitations under specific provisions for appeal contained in the Constitution or other laws. The powers given by Article 136 are, however, special or residuary powers exercisable outside the purview of ordinary laws where the needs of justice demand interference by the Supreme Court. To the extent that power of withdrawal and transfer of cases to the apex Court is, in the opinion of the Court, necessary for effectuating the high purpose of Articles 136 and 142(1), the power under Article 139‑A must be held not to exhaust the power of withdrawal and transfer. Article 139‑A, introduced as part of the Constitution Forty‑second Amendment, was intended to enable litigants to approach the apex Court for transfer of proceedings if the conditions envisaged in that article are satisfied. Article 139‑A was not intended, nor does it operate, to whittle down the existing wide powers under Articles 136 and 142 of the Constitution., In Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and others, the question arose concerning police officers who had assaulted and arrested a Chief Judicial Magistrate on flimsy grounds, handcuffing and tying him with a rope. The Court directed the State Government to take immediate steps for review and revision of the Police Regulations. Learned counsel for the State of Gujarat and the police officers argued that this Court had no jurisdiction to quash the criminal proceedings pending against N.L. Patel, CJM, asserting that once a criminal case is registered the law requires the case to proceed to its normal conclusion without interference. The learned Attorney General submitted that, having taken cognizance of the contempt matter arising out of the incident, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and to prevent abuse of process of the court. The Court explained that there is no limitation on the power of this Court under Article 142 in quashing a criminal proceeding pending before a subordinate court. Although there is no provision like Section 482 of the Criminal Procedure Code conferring express power on this Court to quash criminal proceedings, this Court has power to do so in exercise of its plenary and residuary power under Article 136 if, on the admitted facts, no charge is made out against the accused or the proceedings are initiated on concocted facts or for oblique purposes. The Court has previously quashed proceedings in State of West Bengal v. Swapan Kumar Guha and Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre where the proceedings were found to be based on false facts or initiated for oblique purposes., Article 142(1) of the Constitution provides that the Supreme Court, in exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The expression \cause or matter\ includes any proceeding pending in court, covering civil or criminal matters. The inherent power of this Court under Article 142, coupled with the plenary and residuary powers under Articles 32 and 136, embraces the power to quash criminal proceedings pending before any court to do complete justice. If the Court is satisfied that the proceedings in a criminal case are being utilised for oblique purposes, are based on manufactured false evidence, or no case is made out on the admitted facts, it would be in the ends of justice to set aside or quash the criminal proceedings. It is idle to suggest that in such a situation this Court should be a helpless spectator., Mr Nariman urged that Article 142(1) does not contemplate any order contrary to statutory provisions. He relied on the Court's observations in Prem Chand Garg v. Excise Commissioner, U.P., Allahabad and A.R. Antulay v. R.S. Nayak, where the Court observed that, although the powers conferred under Article 142(1) are very wide, the Court cannot make any order plainly inconsistent with the express statutory provisions of substantive law. Those observations were made in the context of fundamental rights and have no bearing on the present issue, as there is no provision in any substantive law restricting this Court's power to quash proceedings pending before a subordinate court. This Court's power under Article 142(1) to do complete justice is of a different level and quality; ordinary statutory provisions cannot limit the constitutional power of this Court. Once this Court has seisin of a cause or matter, it may issue any order or direction necessary to do complete justice. This constitutional power cannot be limited by statutory law, although the Court must consider statutory provisions while exercising it. In Harbans Singh v. State of U.P., Justice A.N. Sen observed that very wide powers have been conferred on this Court for the due and proper administration of justice and that the Court retains an inherent power to deal with extraordinary situations in the larger interests of justice, which must be used sparingly and only in exceptional circumstances. No enactment made by the Central or State legislature can limit or restrict the power of this Court under Article 142, though the Court must take into account the statutory provisions regulating the matter in dispute. The need for complete justice depends on the facts and circumstances of each case, and the Court will consider the express provisions of any substantive statute while exercising its power. Since the foundation of the criminal trial of N.L. Patel is based on facts already found to be false, it is in the ends of justice to quash the criminal proceedings. Accordingly, the criminal proceedings pending before the Chief Judicial Magistrate, Nadiad in Criminal Cases Nos. 1998 of 1990 and 1999 of 1990 are quashed., It issued various guidelines for the protection of members of the Subordinate Judiciary. The decision in Supreme Court Advocates‑on‑Record Association and others v. Union of India related to the appointment of Judges to the Supreme Court and High Court and the transfer of Judges and Chief Justices. In the majority opinion of Justice J. S. Verma, it was noted that when the Constitution was being drafted, there was general agreement that appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive. Consequently, the Constitution imposed the obligation to consult the Chief Justice of India and the Chief Justice of the High Court, to achieve independence of the Judges even at the time of their appointment, beyond merely providing security of tenure and conditions of service after appointment. The aim was to prevent political considerations from influencing appointments, which led to the incorporation of the consultation obligation in Articles 124(2) and 217(1)., We may at once observe that, in the context of the Constituent Assembly debates and the Sub‑Committee Reports that preceded them, there was general agreement that a law must be made by Parliament. The amended draft Article 289 was further amended and approved, leading to the insertion of the words \subject to the law to be made by Parliament\ in Article 324(2). The purpose of the provision and the imperative need to make such a law were eloquently articulated by the Members of the Constituent Assembly. The appointment of Judges of the Superior Judiciary under the Government of India Act, which preceded the Constitution, was made at the absolute discretion of the Crown. This Supreme Court of India noted that if the Executive, as the appointing authority, were given absolute discretion, political considerations could influence appointments. Article 124(2) dealing with appointments to the Supreme Court and Article 217(1) dealing with appointments to the High Courts were to be made based on consultations as described in those Articles. Article 324(2) does not provide for consultation with anyone and appears to place the power to make appointments exclusively with the Executive, as the President is bound by the advice of the Prime Minister. However, to guard against abuse of the exclusive executive power, Parliament was required to make a law, reflecting the contemplation of the Founding Fathers.
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Supreme Court of India proceeded to lay down norms in the absence of any specific guidelines. The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly. The hereinafter mentioned norms emerging from the actual practice and crystallized into conventions, not exhaustive, are expected to be observed by the functionaries to regulate the exercise of their discretionary power in the matters of appointments and transfers., We may also indicate that this judgment provides a situation where Supreme Court of India has laid down norms, even in the constitutional realm. It is further of the greatest moment that Supreme Court of India noted that it was realised that independence of the Judiciary had to be protected not merely after appointment but by the process of appointment. The Chief Election Commissioner can also be removed only in the same fashion as a Judge of the Supreme Court. His conditions of service cannot be varied to his disadvantage. But unlike the Comptroller and Auditor General, who also enjoys protection after appointment, the Founding Fathers clearly intended to also provide for an independent Election Commission regulating by law, the appointment itself. This is in place of consultation provided for Judges., In Vishaka and others v. State of Rajasthan and others, a writ petition was filed for enforcement of fundamental rights of working women under Articles 14, 19 and 21. The complaint in the writ petition was sexual harassment of working women at workplaces. An alleged brutal gang rape of a social worker provided an immediate trigger. Supreme Court of India found that an incident of sexual harassment violated the fundamental rights of general equality under Articles 14 and 15, and the right to life and liberty under Article 21. The Court drew support from the role of the judiciary in the Beijing Statement of Principles of the Independence of Judiciary in Law Asia Region., The objectives and functions of the judiciary include: (a) to ensure that all persons are able to live securely under the rule of law; (b) to promote, within the proper limits of the judicial function, the observance and attainment of human rights; and (c) to administer the law impartially among persons and between persons and the State., The Court also drew on an international convention providing for elimination of all forms of discrimination against women. Finally, on the basis of the principle that when there is no inconsistency between a convention and a domestic law and there is a void in the domestic law, and bearing in mind the meaning and content of the fundamental rights, the Court laid down elaborate guidelines and norms. The norms include what constitutes sexual harassment, inter alia. The Court provided for disciplinary action to be initiated and a complaint mechanism. The guidelines were made binding and enforceable in law until suitable legislation was enacted. The norms, which may have been legislative in nature, held the field for more than fifteen years, when Parliament came out with a law., In Special Reference No. 1 of 1998, the Third Judges case, which was a judgment rendered in a reference made under Article 143(1) of the Constitution, one of the contentions was whether the expression in Articles 217(1) and 222(1), viz., consultation with the Chief Justice of India, required consultation with the plurality of judges or the sole opinion of the Chief Justice sufficed. Supreme Court of India answered that the sole individual opinion of the Chief Justice would not constitute consultation. It was laid down that the Chief Justice of India must consult four senior‑most puisne judges before making appointment to the Supreme Court and High Courts., Article 124(2) as it stood then read: 'Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty‑five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4).', The relevance is the elaboration of the procedure as regards consultation, and the laying down of norms which were to govern the appointment to the superior judiciary. The mandate to consult four may appear to crystallize a figure not found in the Constitution., The doctrine of separation of powers has spawned decisions of Supreme Court of India largely in the context of litigation where challenges led to actions by the legislative organ, allegedly contravening the limits set for it. This is not to say that the courts are oblivious to the true role they are called upon to perform. As noticed by Supreme Court of India, there is no magic formula; the need is to maintain a delicate balance. While ordinarily the Court cannot usurp a purely legislative power, in the context of the Constitution, which clothes citizens with fundamental rights and provides for constitutional goals, where there exist gaps or a vacuum, the Court may not shy away from acting as part of its judicial function., A writ petition was filed under Article 32 of the Constitution assailing the appointment of certain ministers despite their involvement in serious and heinous crimes. The Constitution Bench of Supreme Court of India in Manoj Narula v. Union of India referred to the criminalisation of politics as an anathema for the sanctity of democracy. The Court observed the principle of constitutional silence or abeyance, a progressive principle applied as a recognised advanced constitutional practice to fill gaps in the interest of justice and larger public interest., Liberalisation of the concept of locus standi for public interest litigation, guidelines as procedural safeguards in the matter of adoption of Indian children by foreigners in Laxmi Kant Pandey v. Union of India, issuance of guidelines pertaining to arrest in D.K. Basu v. State of West Bengal, and directions issued in Vishaka v. State of Rajasthan are examples., In Bhanumati and others v. State of Uttar Pradesh through its Principal Secretary and others, pronouncing a state law providing for a no‑confidence motion as valid, the Court held that despite the absence of any documentary or material form, these abeyances are real and integral to any constitution. What remains unwritten and indeterminate can be as responsible for the operational character and restraining quality of a constitution as its more tangible components., The basic structure doctrine vis‑à‑vis Article 368 of the Constitution emerged out of this concept of silence. A constitution which professes to be democratic and republican and which makes a revolutionary change by the Seventy‑third Constitutional Amendment by providing detailed provision for democratic decentralisation cannot be interpreted to exclude the provision of a no‑confidence motion in respect of the chairperson of the panchayat merely because of its silence on that aspect., In Kalpana Mehta and others v. Union of India, the Constitution Bench of Supreme Court of India held that the constitution being an organic document, its ongoing interpretation is permissible. The supremacy of the constitution is essential to bring social changes in the national polity evolved with the passage of time. The courts must consider their own experience, international treaties and covenants, and keep the doctrine of flexibility in mind., In K.S. Puttaswamy v. Union of India, Justice D.Y. Chandrachud opined that constitutional developments have taken place as the words of the constitution have been interpreted to deal with new exigencies requiring an expansive reading of liberties and freedoms to preserve human rights under the rule of law. The interpretation of the constitution cannot be frozen by its original understanding; it must evolve to meet present and future aspirations., Regarding Article 324, the Court noted that the Constitution of India is a living instrument with enormous dynamism, made for a progressive society. Dr. Ambedkar said that constitutional morality is not a natural sentiment; it has to be cultivated., The legislative history of Article 324 shows that the power of appointment of the members of the Election Commission, which is charged with the highest duties and nearly infinite powers to hold elections to the Central and State Legislatures, was not to be lodged exclusively with the Executive. The words 'subject to any law to be made by Parliament' were incorporated., No law, however, has been enacted by Parliament. Various reports, including the Goswami Committee (1990), the Two Hundred and Fifty‑Fifth Law Commission Report (2015), and other materials, have called for legislation., It may be true that the Election Commission of India provides its services to certain countries, but that does not deflect the Court from providing for what the Founding Fathers contemplated., Only Chief Election Commissioners were appointed for the first four decades of the Republic; since 1993 the Election Commission has become a team consisting of the Chief Election Commissioner and two Election Commissioners. The President, acting on the advice of the Prime Minister, has been making appointments., Article 324 has a unique background. The Founding Fathers contemplated a law by Parliament and did not intend the executive exclusively to make appointments to the Election Commission. Seven decades have passed without such a law, creating a void despite calls across the political divide to divest the exclusive power of appointment from the Executive., While making a law is ordinarily a legislative power and cannot be compelled by a court, the making of law may be a constitutional imperative. In the context of Article 326, Parliament enacted the 1950 Act and the 1951 Act to give effect to the statutory framework for elections., Political parties appear to betray a special interest in not bringing forward the law. There is a crucial link between the independence of the Election Commission and the pursuit, consolidation and perpetuation of power., As long as the party in power seeks to continue in office, a pliable Election Commission becomes a gateway to acquisition and retention of power., The values of the freedom struggle required the insertion of fundamental duties. Criminalisation of politics, the surge of money power, and partisan media call for filling the vacuum. Justice must not only be done but be seen to be done; an impartial mode of appointment of the members is required., The demand for safeguards to end the pernicious effects of exclusive executive power in appointing the Election Commission has been voiced by political parties across the board. Successive governments have, irrespective of their colour, shied away from enacting the law contemplated by the Founding Fathers., The electoral scene is no longer as it was after the Republic was formed. Criminalisation of politics, big money influence, and partisan media have shaken the faith of the electorate. The appointment of the Election Commission, declared by Supreme Court of India to be the guardian of citizens and their fundamental rights, cannot be postponed further., Supreme Court of India is not invited to issue a mandamus to the legislature to make a law under Article 324(2), but it may not be the end of its duty. Core values of the constitution, including democracy and rule of law, are being undermined and are interlinked with violations of Articles 14 and 19., Given the unique nature of the provision and the devastating effect of leaving appointments solely in the hands of the Executive on fundamental values and rights, the Court considers that the time is ripe to lay down norms. The vacuum exists because the appointment by the Executive was intended as a temporary arrangement to be replaced by a parliamentary law., Article 148, dealing with appointment of the Comptroller and Auditor General of India, provides that the appointment is made by the President. This contrasts with the appointment of members of the Election Commission under Article 324(2), where the Founding Fathers provided a unique method suited to the importance of free and fair elections., Although Parliament has not enacted the contemplated law, the Court must lay down norms that will bear life only till Parliament steps in. The appointment process for the Chief Election Commissioner and Election Commissioners should be fair and reasonable, reflecting what Parliament could have enacted., Under the Rules of Business made under Article 77, the appointment of the Chief Election Commissioner and Election Commissioners does not engage the Cabinet. For the appointment of the Director of the Central Bureau of Investigation, Section 4A of the Delhi Special Police Establishment Act, 1946 provides that appointment shall be made by the Central Government on the recommendation of a committee consisting of the Prime Minister as Chairperson, the Leader of the Opposition in the Lok Sabha (or, if no Leader of Opposition, the leader of the single largest opposition party), and the Chief Justice of India or a Supreme Court judge nominated by him., Similarly, under the Lokpal and Lokayuktas Act, 2013, the Chief Justice of India is one of the five members of the Selection Committee for appointment of the Chairperson and Members of the Lokpal. Section 4 of that Act reads: (1) The Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of (a) the Prime Minister (Chairperson); (b) the Speaker of the Lok Sabha; (c) the Leader of Opposition in the Lok Sabha; (d) the Chief Justice of India or a Supreme Court judge nominated by him; (e) one eminent jurist recommended by the Chairperson and Members and nominated by the President. (2) No appointment shall be invalid merely by reason of any vacancy in the Selection Committee. (3) The Selection Committee shall, for the purpose of selecting the Chairperson and Members of the Lokpal and preparing a panel of persons, constitute a Search Committee of at least seven persons with special knowledge in anti‑corruption, public administration, vigilance, policy making, finance, law and management, with at least fifty percent belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and women., The Court therefore lays down the following norm: The appointment of the Chief Election Commissioner and the Election Commissioners shall be made by the President on the advice of a Committee consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or, if no Leader of Opposition, the leader of the largest opposition party in the Lok Sabha), and the Chief Justice of India., This shall be subject to any law to be made by Parliament., Petitioners contend that the Election Commissioners should enjoy the same protection as the Chief Election Commissioner. The Report of the Election Commission itself appears to endorse this view. While the Constitution originally contemplated that appointment of Election Commissioners was need‑based and not a full‑time affair, the Election Commission has become a multi‑member team since 1993. The second proviso to Article 324(5) provides that an Election Commissioner or Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. The Court interprets that an Election Commissioner or Regional Commissioner can be removed only in the like manner and on like grounds as a Judge of the Supreme Court of India, with the additional safeguard of removal only on the recommendation of the Chief Election Commissioner., Article 324(5) reads: 'Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine; Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment; Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.', The conditions of service and tenure of the Election Commissioners and Regional Commissioners were to be made by rule, subject to any law made by Parliament. Parliament, following the Goswami Committee, enacted the 1991 Act, which provides salary equal to that of a Supreme Court Judge and a term of six years for both the Chief Election Commissioner and the Election Commissioners, subject to the proviso. Section 10 of the Act provides that in case of a difference of opinion among members, the majority opinion shall prevail., Thus, while the Chief Election Commissioner may act as the Chairman of the Commission, equality otherwise exists between the Chief Election Commissioner and the Election Commissioners in various matters under the Act.
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In law, there may not be an insuperable obstacle for Parliament to decide to do away with the post of Election Commissioner. In fact, it happened, as can be seen in the Judgment in Dhanoa (supra) wherein it was found that the termination of service of the Election Commissioners following the abolition of the posts did not constitute removal of the Election Commissioner within the meaning of the second proviso to Article 324(5). More importantly, even on a plain reading of Article 324(5), we are of the view that in regard to the prayer that the Election Commissioner must be accorded the same protection as is given to the Chief Election Commissioner, the argument appears to be untenable. This prayer was rejected, in fact, in T.N. Seshan (supra). It is clear as daylight that the first proviso protects the Chief Election Commissioner alone from removal by providing for protection as is accorded to a Judge of the Supreme Court of India. It is further more important to notice that the first proviso interdicts varying of the conditions of service of the Chief Election Commissioner to his disadvantage after the appointment. It is thereafter that the second proviso appears. The second proviso exclusively deals with any other Election Commissioner, inter alia. The word any other Election Commissioner has been provided to distinguish him from the Chief Election Commissioner. Therefore, for the Election Commissioners other than the Chief Election Commissioner, the protection which is clearly envisaged, as against his removal is only that it can be effected only with the recommendation of the Chief Election Commissioner. We are of the view that in the context of the provision, the words provided further cannot be perceived as an additional protection to the Election Commissioner. It is intended only to be a standalone provision, specifically meant to deal with the categories of persons mentioned therein. In fact, the acceptance of the argument of the petitioners would involve yet another consequence, which to our minds would appear to project an anomalous result. To put it mildly, if the Election Commissioner is accorded the protection available under the first proviso to the Chief Election Commissioner, the result will be as follows. He would be entitled to not only claim immunity from removal except on being impeached like a Judge of the Supreme Court but he would be conferred with a further protection even after the impeachment or before the impeachment starts, that the Chief Election Commissioner must also recommend the removal. We would think that no more need be said and we reject the contention. However, we only would observe that in the light of the fact that Election Commissioners have become part of the Election Commission, perhaps on the basis of the volume of work that justifies such an appointment and also the need to have a multi‑Member team otherwise, it is for Parliament acting in the constituent capacity to consider whether it would be advisable to extend the protection to the Election Commissioners so as to safeguard and ensure the independence of the Election Commissioners as well. This goes also as regards variation of service conditions after appointment., One of the contentions and, therefore, relief sought is that there must be an independent Secretariat to the Election Commission of India and its expenditure must be charged on the Consolidated Fund of India on the lines of the Lok Sabha/Rajya Sabha Secretariat., In this regard, the second respondent (the Election Commission of India) has filed a counter affidavit in Writ Petition (C) No. 1043 of 2017, in which the contention and the prayer have been incorporated. In the Counter Affidavit of the Election Commission itself, the stand of the Election Commission can be stated in a nutshell as follows: It has sent a proposal that the expenditure of the Commission should be charged on the Consolidated Fund of India. It refers to the Election Commission Charging of Expenses on the Consolidated Fund of India Bill, 1994, which provided for the various items of expenditure to be charged upon the Consolidated Fund of India. It reiterated its proposal for an independent Secretariat as also charging of the expenditure on the Consolidated Fund of India by letter dated 13 April 2012, as also in December 2016. It has also laid store by the recommendation of the Law Commission, which inter alia recommended the insertion of Article 324(2A), which contemplated the Election Commission being provided with an independent and permanent secretarial staff., There cannot be any doubt that the Election Commission of India is to perform the arduous and unenviable task of remaining aloof from all forms of subjugation and interference from the Executive. One of the ways in which the Executive can bring an otherwise independent body to its knees is by starving it of or cutting off the requisite financial wherewithal and resources required for its efficient and independent functioning. It would not be unnatural if faced with the prospect of not being supplied enough funds and facilities, a vulnerable Commission may cave in to the pressure from the Executive and, thus, it would result in an insidious but veritable conquest of an otherwise defiant and independent Commission. This is apart from the fact that cutting off the much‑needed funds and resources will detract from its efficient functioning., No doubt, the stand of the Union of India would appear to be that these are all matters of policy and no interference is needed or warranted., We must bear in mind that to elevate it to a constitutional provision and protection thereunder may be a matter which must engage the attention of the Constituent Body. This is again a matter which can also be provided by way of a law by Parliament. We have no doubt that there is considerable merit in the complaint of the petitioner, which apparently is endorsed by the Election Commission of India itself. We cannot be oblivious to the need for articulation of details in regard to the expenditure, which is a matter of policy, which we refrain from doing. We would only make an appeal on the basis that there is an urgent need to provide for a permanent Secretariat and also to provide that the expenditure be charged on the Consolidated Fund of India and it is for the Union of India to seriously consider bringing in the much‑needed changes., The Writ Petitions are partly allowed and they are disposed of as follows: I. We declare that as far as appointment to the posts of Chief Election Commissioner and the Election Commissioners are concerned, the same shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India. This norm will continue to hold good till a law is made by Parliament. II. As regards the relief relating to putting in place a permanent Secretariat for the Election Commission of India and charging its expenditure to the Consolidated Fund of India, the Supreme Court of India makes a fervent appeal that the Union of India/Parliament may consider bringing in the necessary changes so that the Election Commission of India becomes truly independent., [Aniruddha Bose] [Hrishikesh Roy] [C. T. Ravikumar], I have had the advantage of going through the judgment penned by my brother K.M. Joseph, Justice. I entirely agree with the conclusions which my erudite brother has drawn, based on the remarkable process of reasoning with my additional conclusion. I wish to add few lines and express my views not because the judgment requires any further elaboration but looking for the question of law that emerges of considerable importance., For the purpose of analysis, the judgment has been divided into the following sections: I. Reference II. Election Commission of India III. Why an independent Election Commission is necessary A. Working a Democratic Constitution B. Right to vote C. Free and fair elections IV. Constitutional and statutory framework: The Constitutional Vacuum V. The Judgment in T.N. Seshan VI. Reports of various Commissions on Manner of Appointment of Chief Election Commissioner and Election Commissioners VII. Comparative framework – Foundational parameters VIII. Process of selection of other constitutional/statutory bodies IX. Constitutional silence and vacuum – power of the Court to lay down guidelines X. Independence of Election Commissioners XI. Directions, Reference. This case arises out of a batch of writ petitions, with the initial petition filed as a public interest litigation by Anoop Baranwal in January 2015. The petitioner raised the issue of the constitutional validity of the practice of the Union of India to appoint the members of the Election Commission. It was argued in the petition that a fair, just, and transparent method to select the members of the Election Commission is missing. The petition also referred to several reports, which we will discuss in due course, to highlight the issue of bringing reforms in the selection of members of the Election Commission. It was further highlighted that since the appointment of the members of the Election Commission was solely on the advice of the parliamentary executive of the Union, which leads to arbitrariness and is in violation of Article 14 of the Constitution. The petition has also suggested that the process of selection of members of the Election Commission (Chief Election Commissioner/Election Commissioner) should be transparent and with greater scrutiny, accountability and stability as it is for the other constitutional and legal authorities including Judges of the Supreme Court and High Courts, Chief Information Commissioner, Chairpersons and Members of the Human Rights Commission, Chief Vigilance Commissioner, Director of Central Bureau of Investigation, Lokpal, Members of the Press Council of India. The writ petition made a prayer for issuance of mandamus to the Union Government to make law for ensuring a transparent process of selection by constituting a neutral and independent committee to recommend the names of Chief Election Commissioner/Election Commissioners. By order dated 23 October 2018, a two‑Judge Bench of this Court emphasized the importance of the matter, and referred the matter under Article 145(3) of the Constitution to the Constitutional Bench. The order is reproduced as follows: The matter relates to what the petitioner perceives to be a requirement of having a fool‑proof and better system of appointment of members of the Election Commission. Having heard the learned counsel for the petitioner and the learned Attorney General for India we are of the view that the matter may require a close look and interpretation of the provisions of Article 324 of the Constitution of India. The issue has not been debated and answered by this Court earlier. Article 145(3) of the Constitution of India would, therefore, require the Court to refer the matter to a Constitution Bench. Accordingly, we refer the question arising in the present proceedings to a Constitution Bench for an authoritative pronouncement. Post the matter before the Honourable Chief Justice of India on the Administrative Side for fixing a date of hearing., A couple of similar writ petitions were tagged with the above petition. On 29 September 2022, this Constitution Bench started the hearing of the case. The Bench sat for several days hearing the arguments of the petitioner side and of the Union government and Election Commission of India on the respondents side., The Union Government has opposed this group of petitions on the premise that the Court must respect the principle of separation of power between different organs of the State and should refrain from interfering in the selection process of the Election Commission under Article 324. It was argued by the Union that Article 324 of the Constitution conferred the power to appoint Election Commissioners solely upon Parliament. He made a reference to the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 (hereinafter being referred to as the Act 1991) to emphasize his point that the Parliament, being cautious of its responsibility, protected the condition of service of the Chief Election Commissioner/Election Commissioners., The learned Attorney General Mister R. Venkataramani suggested that the absence of any law does not mean that a constitutional vacuum exists, calling for the interference of the Court. It was also argued by the learned Attorney General that the appointment of the members of the Election Commission by the President has not damaged the process of free and fair elections., The learned Solicitor General Mister Tushar Mehta argued that if there are lacunas in the process of selection/appointment of the Election Commission, then it is for Parliament and not the Court to look into the issues. The learned counsel further argued that the appointment of the Election Commissioners is to be made by the President, therefore it is not open to the judiciary to interfere with the power of the executive. Mister Mehta further argued that there is something called independence of the executive which must not be interfered with. It was also argued by the counsel for the Election Commission that since the right to vote is a statutory right and not a fundamental right, so it does not call any interference for violation of fundamental rights., It was raised by the petitioners that the issue of appointment of the Election Commission is linked not just with the right to vote but with the conception of free and fair elections. Reference was also made to the selection processes in other jurisdictions to emphasize the point that a larger set of parameters or factors play an important role in appointment of Commissioners. Points were also debated regarding the term of the Chief Election Commissioner/Election Commissioners, and the process of removal of Election Commissioners. The petitioners further argued that there must be constitutional safeguards in the term and tenure of the Election Commissioners, so that they can function independently., This case not only raises certain fundamental questions about the interpretation of Article 324 of the Constitution but also forces us to look at the larger perspective about how the process of selection of the Election Commission is linked with the working of a democracy, the right to vote, idea of free and fair elections, and the importance of a neutral and accountable body to monitor elections. The Supreme Court of India ought to make a discussion on these interconnected debatable issues raised for our consideration. All these points are indeed sacrosanct for democracy and for maintaining the independence of the Election Commission., Article 324(1) provides that the power of superintendence, direction, and control of the preparation of the electoral rolls for, and the conduct of, elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice‑President held under the Constitution is vested in the Election Commission., As to the composition of the Election Commission, Article 324(2) provides that the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix, and the appointment of the Chief Election Commissioner and other Election Commissioners, subject to the provisions of any law made in that behalf by Parliament, shall be made by the President., By an order dated 1 October 1993, the President fixed the number of Election Commissioners as two, until further orders. The current composition of the Election Commission is that of Chief Election Commissioner and two Election Commissioners., Article 324(3) provides that the Chief Election Commissioner shall act as the Chairman of the Election Commission., As regards the service conditions, Article 324(5) provides that subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be determined by the rules made by the President. In exercise of its power under Article 324(5), Parliament has enacted the Act 1991., The provisos to Article 324(5) provide the mechanism for removal of Chief Election Commissioner, Election Commissioners, and Regional Commissioner. The first proviso to Article 324(5) provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. Furthermore, any other Election Commissioner or a Regional Commissioner, according to the second proviso to Article 324(5), shall not be removed from office except on the recommendation of the Chief Election Commissioner., The facility of support staff of the Election Commission has been covered under Article 324(6), which provides that the President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission., The question that emerges for consideration is what interpretation needs to be afforded to the above‑discussed provisions, so that the independence of the Election Commission is ensured. Before dealing with that, we shall deal with the necessity of the independence which is imperative for the Election Commission., Why an independent Election Commission is necessary. Working a Democratic Constitution. The basic perception of democracy is that it is a government by the people, of the people, and for the people. People is the central axis on which the concept of democracy revolves. The establishment of democracy has been linked with the idea of welfare of the people. Doctor B. R. Ambedkar once noted that democracy means a form and a method of government whereby revolutionary changes in the economic and social life of the people are brought about without bloodshed. Democracy is thus linked with the realization of the aspirations of the people., According to the celebrated philosopher John Dewey, democracy is not simply and solely a form of government, but a social and personal ideal; in other words, it is not only a property of political institutions but of a wide range of social relationships. Democracy is thus about collective decision‑making. The principles of democracy have been held as a part of the basic structure of the Constitution., The Indian Constitution establishes a constitutional democracy. The Preamble to the Constitution clearly lays down the vision and creates an outline of the structure of democracy that India envisaged at the moment of independence. The Preamble begins with the phrase We, the People of India. This indicates that the foundations of the Constitution and democracy begin with the people of India at the core. The phrase also means that the people of India would be in a deciding position to choose the governments they want. The Preamble provides that the people of India have secured for its citizens justice social, economic and political. Justice manifests the vision of undoing centuries of injustice that was prevalent on Indian soil. Justice was to be based on three components: social, economic, and political., Democracy was established in India to fulfill the goals encapsulated in the Preamble. The institutions which were set up were given a role and duty to fulfill the task as enshrined in the Preamble and the Constitution. While the three main pillars of the State rest on the legislature, executive, and judiciary, the Constitution framers also envisioned the creation of other institutions, which would be independent in nature and would facilitate the working of the three pillars by either demanding accountability or by taking on roles which would maintain the faith of the people in the three pillars of democracy. The Election Commission of India is one such institution that has been created through the text of the Constitution. It is constitutionally an independent body. The role of the Election Commission of India is to ensure that the democratic process in India does not come to a standstill. The task conferred on the Election Commission is enormous. It has to ensure that periodical elections keep on happening., India has chosen a system of direct elections. This means that elections are supposed to happen at regular intervals where the people of India directly participate by exercising their right to vote. The Constitution also provides for elections where the representatives of the people are chosen by an indirect method. These include the elections for the post of President and Vice‑President and the members of State Legislative Councils. The task to maintain the sanctity of the elections is to be carried out by the Election Commission in a fair, transparent and impartial manner, without any bias or favour. The Election Commission has been given a wide range of powers towards superintendence, direction, and control over the conduct of all elections to Parliament and the Legislature of every State and of elections to the offices of President and Vice‑President held under this Constitution. The three words superintendence, direction, and control have not been defined in the Constitution but were used in a sense to give the widest responsibility to the Election Commission. In that sense, the Election Commission becomes one of the most important as well as central institutions for preserving and promoting the democratic process and the structures of democracy on Indian soil. The role of the Election Commission takes much more relevance given the fact that how Indian society and polity traditionally behaved. As a chief architect of the constitution, Doctor B. R. Ambedkar once said democracy in India is only a top‑dressing on Indian soil, which is essentially undemocratic., The Election Commission performs its role to ensure that every person in the society is able to participate in the process of elections to select the government. Therefore, the Election Commission in its constituent assembly debates needs to demonstrate the highest degree of transparency and accountability. The decisions taken by the Election Commission need to generate the trust of the people so that the sanctity of the democratic process is maintained. If the Election Commission starts showing any arbitrary decision‑making, then the resulting situation would not just create doubt on the members of the Election Commission being biased but would create fear in the minds of the common citizens that the democratic process is being compromised. Therefore, the Election Commission needs to be independent and fully insulated from any external or internal disrupting environment. The working of the Commission has to generate confidence in the minds of the people. In a country like India, where millions of people still struggle to fulfill their basic needs, it is their right to vote which gives them hope that they would elect a government that would help them in crossing the boundaries of deprivation. If this power is compromised or taken away even by one slight bad decision or bias of the members of the Election Commission, it would undoubtedly attack the very basic structure of Indian democracy. Indian democracy has succeeded because of the people's faith and participation in the electoral process as well as the everyday work of the institution. As the constitutional court of the world's largest democracy, we cannot allow the dilution of people's faith in democratic institutions. The country gained and adopted democracy after decades of struggle and sacrifices, and the gains received by us cannot be given away because the institutions still continue to operate in an opaque manner., A nine‑judge bench of the Supreme Court of India in the case of K.S. Puttaswamy and Another v. Union of India and Others held: Opacity enures to the benefit of those who monopolize scarce economic resources. On the other hand, conditions where civil and political freedoms flourish ensure that governmental policies are subjected to critique and assessment. It is this scrutiny which serves the purpose of ensuring that socio‑economic benefits actually permeate to the underprivileged for whom they are meant. Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio‑economic programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom., Indian democracy will work only when the institutions which have the responsibility to preserve democracy work. Each institution in our Constitution has its demarcated role, which can only be fulfilled if the people who are running these institutions are responsible. The people who run these institutions need to be accountable to the people, and therefore the process of selecting them has to ensure the independence of the institution., Democracy is not an abstract phenomenon. It has been given effect by a range of processes. The perception and trust in institutions are important parameters on which the working of democracy is assessed. The success of democracy, thus, depends on the working of institutions that support the pillars of the structure of democracy., Accountability of institutions provides legitimacy not only to the institutions themselves, but also to the very idea of democracy. That is to say, if the institutions are working in a fair and transparent manner, then the citizens would be assured that democracy is working. In that sense, democracy is a means to check on officeholders and administrators and to call them to account. Therefore, the norms and rules governing these institutions cannot be arbitrary or lack transparency., To strengthen the democratic processes, the institution of the Election Commission needs to be independent and demonstrate transparency and accountability. This reason is enough in itself to call the Supreme Court of India to examine the institutional structure of the Election Commission of India., Right to Vote. The working of democracy depends on whether the people can decide the fate of the elected form of government. It depends on the choices which people make in different ways. This choice of people cannot be compromised, as their mandate in elections changes the destinies of government. India is democratic because the people govern themselves. It is a republic because the government's power is derived from its people. Through the electoral process and voting, citizens participate in democracy. By voting, citizens take part in the public affairs of the country. Thus, citizens by voting enjoy their right to choose the composition of their government. It is their choice, and their ability to participate. A nine‑judge bench held: it must be realised that it is the right to question, the right to scrutinize and the right to dissent which enables an informed citizenry to scrutinize the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio‑economic welfare benefits. The power to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights., The right to vote is now widely recognized as a fundamental human right. However, this was not always the case. The history of the adult franchise tells us that it was limited to the privileged in society. It took several decades of struggles by marginalized communities to gain the right to vote. The right to vote is so intrinsic to the practice of democracy., It has been argued by the counsel for the Election Commission of India that the right to vote is merely a statutory right, and since no fundamental right is violated, it does not call the attention of this Court. The Supreme Court of India does not agree with the view argued by the Election Commission. Furthermore, it becomes necessary to look at the Constituent Assembly Debates to examine the scope of the right to vote., The demand for the adult franchise was consistently raised by several Indian leaders.
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In their drafts prepared for the consideration of the Constituent Assembly, Dr. B. R. Ambedkar and K. T. Shah proposed the incorporation of the right to vote in the fundamental rights portion. This proposal was initially endorsed in the initial draft report of the Fundamental Rights Sub‑Committee, which was a part of the Advisory Committee of the Constituent Assembly. The draft provision also included a sub‑clause on an independent Election Commission., 1. Every citizen not below twenty‑one years of age shall have the right to vote at any election to the Legislature of the Union and any unit thereof, or, where the Legislature is bicameral, to the lower chamber of the Legislature, subject to such disqualifications on the ground of mental incapacity, corrupt practice or crime as may be imposed, and subject to such qualifications relating to residence within the appropriate constituency, as may be required by law.\n\n2. The law shall provide for free and secret voting and for periodical elections to the Legislature.\n\n3. The superintendence, direction and control of all elections to the Legislature, whether of the Union or the unit, including the appointment of Election Tribunals, shall be vested in an Election Commission for the Union or the unit, as the case may be, appointed in accordance with the law of the Union., Constitutional Adviser B. N. Rau’s note on the draft provision explains the inclusion of the right to vote as a fundamental right: Clause 12 secures that the right to vote is not refused to any citizen who satisfies certain conditions. The idea of an Election Commission to supervise, direct and control all elections is new., K. T. Shah objected to the idea of a centralized Election Commission, arguing that, if adopted, it would be a serious infringement of the rights of Provincial Autonomy and should be either dropped or reworded so as not to prejudice the rights of the Provincial Legislature to legislate on such subjects., The clause on the right to vote and the creation of the Election Commission as part of the fundamental rights was then accepted by a majority vote of the Fundamental Rights Sub‑Committee and forwarded to the Advisory Committee in the Report of the Sub‑Committee on Fundamental Rights dated 16 April 1947., The draft prepared by the Fundamental Rights Sub‑Committee was examined by the Minorities Sub‑Committee to see if any rights proposed needed to be amplified or amended to protect minority rights. The committee received two suggestions on the fundamental right to vote and Election Commission. S. P. Mukherjee proposed that minorities should be adequately represented on the Election Commissions proposed for the Union and the units. Jairamdas Daulatram suggested that such bodies should be made neutral so that they may inspire confidence among all parties and communities, noting that separate representation for minorities may not be workable. The Minorities Sub‑Committee also decided that the Election Commission should be an independent quasi‑judicial body., After the clause on the right to vote passed by the Fundamental Rights Sub‑Committee and the Minorities Sub‑Committee reached the Advisory Committee, there was a serious debate on whether to keep the clause in the fundamental rights chapter. Dr. Ambedkar argued for retaining it as a fundamental right, stating: \My point is that we should support the proposition that the committee is in favour of adult suffrage. The second thing we have guaranteed in this fundamental right is that the elections shall be free and the elections shall be by secret voting. It shall be by periodical elections. The third proposition which this fundamental clause enunciates is that in order that elections may be free in the real sense of the word, they shall be taken out of the hands of the Government of the day, and that they should be conducted by an independent body which we may call an Election Commission.\, Several members of the Advisory Committee expressed apprehension that such a clause might be objected to by representatives of the Princely States. C. Rajagopalachari argued that the future method of elections was not clear, and therefore it was not appropriate to keep a detailed clause on the franchise in the fundamental rights. He suggested that the issue should be left for consideration by the whole Assembly, noting that it could not be assumed that the Union Legislature would be elected by direct vote from all citizens., Dr. Ambedkar responded that the document would go before the Constituent Assembly, where representatives of the States and the Muslim League would have the opportunity to raise objections to adult suffrage. He indicated that if the Assembly were convinced that adult suffrage was advisable for British India but not for the Indian States, a restricted suffrage could be adopted., Govind Ballabh Pant explained that there was apprehension that some people belonging to the States might claim that their rights had been interfered with. He suggested that the clause be sent to the Constituent Assembly not as part of the fundamental rights but included in the Chairman’s letter recommending principles for framing the Constitution. Dr. Ambedkar insisted on his view, but the majority of the Advisory Committee, including Sardar Vallabhbhai Patel, adopted Pant’s suggestion., The Minutes of the Advisory Committee dated 21 April 1947 recorded that Clause 13 was to be deleted from the fundamental rights, but it should be recommended by the Chairman in his report to the Constituent Assembly that it be made a part of the Union Constitution. In his letter to the President of the Constituent Assembly, Sardar Patel presented the interim report of the Advisory Committee, noting that while he agreed in principle with the clause, it should be placed in another part of the Constitution rather than the list of fundamental rights., The discussion shows that there was initial agreement among the Fundamental Rights Sub‑Committee and the Minorities Sub‑Committee that a clause providing for the right to vote and an independent Election Commission should be included in the fundamental rights chapter. However, the Advisory Committee did not retain the clause as a fundamental right because of concerns that the princely states might not agree to the Union Constitution. Nevertheless, the founders retained the right to vote as a constitutional right by recommending its inclusion elsewhere in the Constitution., On 16 June 1949, Dr. B. R. Ambedkar moved the following clause providing for adult franchise: \Elections to the House of the People and to the Legislative Assemblies of states shall be on the basis of adult suffrage: that is to say, every citizen who is not less than twenty‑one years of age on such date as may be fixed by law and is not otherwise disqualified under the Constitution or any law on the ground of non‑residence, unsoundness of mind, crime or corrupt or illegal practice shall be entitled to be registered as a voter at any such election.\ This clause was adopted and later became Article 326 of the Constitution., By virtue of Article 326, the right to vote became a constitutional right granted to citizens. The right was given effect by Section 62 of the Representation of the People Act, 1951, which provides that every person entered in the electoral roll of any constituency shall be entitled to vote in that constituency. The legal position is that the relevant provision of the Act is derived from the text of the Constitution, namely Article 326., However, judgments of the Supreme Court of India adopted a restricted view of the right to vote for several decades. In N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others, a six‑judge bench examined whether the High Court could interfere with the order of the Returning Officer under Article 329(b). While doing so, the Court observed that the right to vote or stand as a candidate is not a civil right but a creature of statute or special law and must be subject to the limitations imposed by it., A different view was adopted by a Constitution Bench of the Supreme Court of India in Mohinder Singh Gill and Another v. Chief Election Commissioner, New Delhi and Others. The Bench, interpreting Articles 324 and 329(b), held that the most valuable right in a democratic polity is the vote, and that the right to be elected is not a civil right that can be wished away. It stated that every Indian has a constitutional right to elect and be elected, distinguished from a common law right, and is subject to statutory regulations., A subsequent two‑judge decision in Jyoti Basu and Others v. Debi Ghosal and Others relied on the position taken in N. P. Ponnuswami, observing that the right to elect, though fundamental to democracy, is neither a fundamental right nor a common law right but a pure statutory right, and similarly the right to be elected and to dispute an election are statutory rights subject to statutory limitation., While the three decisions made statements about the right to vote, the issue of interpretation of Article 326, dealing with adult franchise, did not arise in those cases; therefore, the statements cannot be treated as authority on that subject., In Union of India v. Association for Democratic Reforms and Another, the Supreme Court of India considered whether voters have a right to know about the candidates contesting elections. Holding affirmatively, the Court observed that in a democracy, periodic elections are conducted for efficient governance and that voters have the right to elect or re‑elect based on the antecedents and past performance of candidates, including considerations of educational qualification or property., Amendments to the Representation of the People Act after the ADR judgment were scrutinized in People’s Union for Civil Liberties (PUCL) and Another v. Union of India and Another (2003). The three‑judge bench re‑examined whether a voter has any fundamental right to know the antecedents or assets of a candidate under Article 19(1)(a). While the bench unanimously held that voters have such a right, there was a difference of opinion on the scope of the right to vote., Referring to N. P. Ponnuswami and Jyoti Basu judgments, Justice M. B. Shah held that the right to vote or stand as a candidate is a creature of statute and subject to statutory limitations, but that a citizen’s fundamental rights cannot be abridged except as permissible under the Constitution. He stated that whether the right to vote is statutory does not affect the right to know a candidate’s antecedents, which is a component of the fundamental right under Article 19(1)(a). He also held that adult franchise is part of the basic structure of the Constitution and may be restricted only by a valid law that does not offend constitutional provisions., Justice Venkatarama Reddi emphasized that the right to vote for the candidate of one’s choice is essential to democratic polity, recognized by the Constitution and given effect by the Representation of the People Act. He noted that the Constituent Assembly debates reveal that the idea of treating the voting right as a fundamental right was dropped, but it was provided for elsewhere in the Constitution, namely Article 326., He distinguished the conferment of the right to vote upon fulfillment of criteria from the act of casting a vote, stating that while the initial right may not be a fundamental right, the act of voting is an expression of opinion protected by Article 19(1)(a). He concluded that the right to vote is a constitutional right, not merely a statutory right, and that freedom of voting is a facet of the fundamental right to freedom of expression., Justice D. M. Dharmadhikari agreed with Justice Reddi, making it a majority decision that the right to vote is a constitutional right. He also noted that the right of adults to take part in the election process as voters can be restricted only by a valid law that does not offend constitutional provisions., In Kuldip Nayar and Others v. Union of India and Others, a Constitution Bench of the Supreme Court of India rejected the argument that the right to vote is a constitutional right and a facet of the fundamental right under Article 19(1)(a). The Bench held that the right to elect is a statutory right and that there is no constitutional provision declaring the right to vote in elections to the Council of States as an absolute right., The Court’s observation in Kuldip Nayar seemed to overlook that Justice Reddi’s opinion in PUCL 2003, which held the right to vote to be a constitutional right, was explicitly concurred by Justice Dharmadhikari. Therefore, the view that PUCL 2003 considered the right to vote as merely statutory does not present the complete picture., In Desiya Murpokku Dravida Kazhagam and Another v. Election Commission of India, a three‑judge bench considered a challenge to the constitutional validity of the amendment of the Election Symbols (Reservation and Allotment) Order, 1968. The counsel for the Election Commission argued that since the right to vote was a statutory right, it could not be questioned by a writ petition. The majority upheld the amendment, but Justice Chelameswar, in dissent, held that the right to elect flows from Articles 81, 170 read with Articles 325 and 326, creating a constitutional right for all citizens aged eighteen to participate in elections, which can be restricted only on the four grounds specified in Article 326., Justice Chelameswar also noted that the question whether the right to vote or contest elections to the Legislative Bodies created by the Constitution arose was not addressed in N. P. Ponnuswami, and that earlier statements were over‑broad without a complete analysis of the constitutional scheme., In 2013, the correctness of ADR and PUCL 2003 was doubted in People’s Union for Civil Liberties and Another v. Union of India and Another (PUCL 2013). The three‑judge bench held that Kuldip Nayar did not overrule the earlier decisions and reiterated that the right to vote is a statutory right, but also emphasized that the casting of a vote is a facet of the expression right under Article 19(1)(a), making it essential to democracy., A clarity on the status of the right to vote was given in Raj Bala v. State of Haryana and Others, where Justice Chelameswar and Justice Sapre gave separate concurring opinions. Justice Chelameswar concluded that every citizen has a constitutional right to elect and be elected to Parliament or State legislatures. Justice Sapre reiterated the view taken in PUCL 2003 that the right to vote is a constitutional right but not merely a statutory right., What emerges from this detailed discussion is that there has been conflicting view on the status of the right to vote. This provides an opportunity to authoritatively hold that the right to vote is not just a statutory right. The analysis of the nine‑judge bench in K. S. Puttaswamy facilitates this examination.
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In that case, a plea was made that since privacy was not included as a fundamental right in the original Constitution, it cannot be declared a fundamental right. Supreme Court of India rejected this argument and held that it cannot be concluded that the Constituent Assembly had expressly resolved to reject the notion of the right to privacy as an integral element of the liberty and freedoms guaranteed by the fundamental rights. The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future., In the instant case, the provision on adult franchise is in Article 326 of the Constitution. An analysis of Constituent Assembly Debates shows that it was initially considered as a fundamental right in the proceedings of the Advisory Committee. The only reason it was shifted from fundamental‑rights status to another constitutional provision was that the founders did not want to offend the Princely States, with whom they were negotiating to be part of a united India. Otherwise, they had stressed the importance of the right to vote and universal adult franchise. Seventy‑five years after Independence, we have the opportunity to realize their vision by recognizing what they could not due to socio‑political circumstances of their time. When the Constitution came into force, the former Princely States became part of India and accepted direct elections as a method of choosing the government. These areas have now been included in different states, and there has been no objection to the right to vote., The right to take part in the conduct of public affairs as a voter is the core of the democratic form of government, which is a basic feature of the Constitution. The right to vote is an expression of the choice of the citizen, which is a fundamental right under Article 19(1)(a). The right to vote is a part of a citizen's life as it is their indispensable tool to shape their own destinies by choosing the government they want. In that sense, it is a reflection of Article 21. In history, the right to vote was denied to women and those who were socially oppressed. Our Constitution took a visionary step by extending franchise to everyone. In that way, the right to vote enshrines the protection guaranteed under Article 15 and Article 17. Therefore, the right to vote is not limited only to Article 326, but flows through Articles 15, 17, 19, 21. Article 326 has to be read along with these provisions. We therefore declare the right to vote in direct elections as a fundamental right, subject to limitations laid down in Article 326., Supreme Court of India has precedents to support its reasoning. In Unnikrishnan J.P. and Others v. State of Andhra Pradesh and Others, Supreme Court of India read Articles 45 and 46 along with Article 21 to hold that the right to education is a fundamental right for children in the age group of six to fourteen years., Now that we have held that the right to vote is not merely a constitutional right but a component of Part III of the Constitution as well, it raises the level of scrutiny on the working of the Election Commission of India, which is responsible for conducting free and fair elections. As it is a question of constitutional as well as fundamental rights, Supreme Court of India needs to ensure that the working of the Election Commission under Article 324 facilitates the protection of people's voting rights., Democracy works when citizens are given a chance to decide the fate of the ruling government by casting their vote in periodic elections. The faith of citizens in democratic processes is ensured by conducting free and fair elections through an independent and neutral agency., Free and fair elections have been enshrined as a precedent for the working of democracy in global conventions and rights‑based frameworks. The Universal Declaration of Human Rights 1948 recognizes that everyone has the right to take part in the government of his country, directly or through freely chosen representatives; everyone has the right of equal access to public service in his country; and the will of the people shall be the basis of the authority of government, expressed in periodic and genuine elections by universal and equal suffrage, held by secret vote or equivalent free voting procedures., Article 25 of the International Covenant on Civil and Political Rights provides that every citizen shall have the right and opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections by universal and equal suffrage, held by secret ballot, guaranteeing the free expression of the will of the electors; and (c) to have access, on general terms of equality, to public service in his country., India is committed to these international frameworks. Supreme Court of India has previously read India’s obligation to international frameworks to recognise new areas of constitutional discourse that are not explicitly covered by the provisions of the Constitution or where there is a constitutional vacuum. Free and fair elections have been recognised as an essential feature of the democratic apparatus by the judgments of Supreme Court of India as well., In Indira Nehru Gandhi Smt v. Shri Raj Narain and Another, Justice H.R. Khanna held that all the seven judges who constituted the majority in the Kesavananda Bharati case agreed that the democratic set‑up was part of the basic structure of the Constitution. Democracy postulates that there should be periodic elections so that people may either re‑elect the old representatives or, if they choose, change the representatives and elect others in their place. Democracy further contemplates that elections should be free and fair, enabling voters to choose candidates of their choice. Democracy can function only upon the faith that elections are free and fair, not rigged or manipulated, and are effective instruments of ascertaining popular will rather than mere rituals generating an illusion of deference to mass opinion. Free and fair elections require that candidates and their agents do not resort to unfair means or malpractices that may impinge upon the process., For conducting free and fair elections, an independent body in the form of the Election Commission is essential. In Mohinder Singh Gill, a Constitution Bench was called to interpret Articles 324 and 329(b) of the Constitution and emphasized the connection between elections and the role of the Election Commission. Justice Krishna Iyer, speaking for Chief Justice Beg, Justice Bhagwati and himself, stated: 'Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll, does a social audit of his Parliament and the political choice of his proxy.' Although the full flower of participative government rarely blossoms, the minimum credential of popular government is an appeal to the people after every term for a renewal of confidence. Thus we have adult franchise and general elections as constitutional compulsions. The right of election is the very essence of the constitution. It needs little argument to hold that the heart of the parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more., It was emphasized by Justice Krishna Iyer that the Election Commission is an institution of central importance and enjoys far‑reaching powers, and the greater the power to affect others' rights or liabilities, the more necessary the need for oversight., Justice P.K. Goswami, in his concurring opinion (for himself and P.N. Singhal), held that elections supply the viva voce to a democracy. It was therefore deliberately and advisedly thought to be of paramount importance that the high and independent office of the Election Commission should be created under the Constitution to be in complete charge of the entire electoral process, from the issue of the notification by the President to the final declaration of the result., Justice Goswami further emphasized the need for independence of the Election Commission, stating: 'The Election Commission is a high‑powered and independent body which is irremovable from office except in accordance with the provisions of the Constitution relating to the removal of Judges of the Supreme Court, and is intended by the framers of the Constitution to be kept completely free from any pulls and pressures that may be brought through political influence in a democracy run on a party system.', The importance of periodical elections was also emphasized in the Constitution Bench decision in Manoj Narula v. Union of India, which held: 'In the beginning, we emphasized the concept of democracy which is the cornerstone of the Constitution. There are certain features, the absence of which can erode the fundamental values of democracy. One of them is the holding of free and fair elections by adult franchise in a periodical manner, for it is the heart and soul of the parliamentary system.', Thus, the role of the Election Commission is integral to conducting free and fair elections towards the working of democracy. It is the duty and constitutional obligation of Supreme Court of India to protect and nurture the independence of the Election Commission., Article 324 of the Constitution provides that superintendence, direction and control of elections shall be vested in an Election Commission. Clause 1 of Article 324 states: 'The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice‑President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).', Clause (2) of Article 324 provides that the Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix, and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President., Article 324(3) states that the Chief Election Commissioner shall act as the Chairman of the Election Commission., Clause (5) of Article 324 deals with conditions of service and tenure of office of the Election Commissioners. It provides that, subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine, provided that the Chief Election Commissioner shall not be removed from his office except in the same manner and on the same grounds as a Judge of the Supreme Court, and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. Further, any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner., The provision shows that the office of the Chief Election Commissioner stands on a higher constitutional pedestal, as he is given equivalence to a Judge of the Supreme Court in matters of removal. It also provides that the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment, ensuring that independence cannot be indirectly diluted by creating unwarranted conditions of service. Lastly, a wide discretion has been vested in the Chief Election Commissioner to seek removal of any other Election Commissioner or a Regional Commissioner., It has been argued before us that there exists a constitutional vacuum in the method of selection of the Chief Election Commissioner and other Election Commissioners, and nothing has been provided under Article 324. It has been argued that as the Executive (through the President) makes these appointments, it reduces the independence of the Election Commission. Furthermore, it was pointed out that the term and tenure of the Election Commissioners also need to be streamlined in order to ensure absolute independence of the Election Commission and to prevent any arbitrary or biased decision by the Chief Election Commissioner., The learned Attorney General argued that the conditions of service and tenure of the Chief Election Commissioner and Election Commissioners are already governed by the Election Commission Act, 1991., The Act provides the conditions of service of the Chief Election Commissioner and other Election Commissioners to cover the procedure and transaction of business by the Election Commission and matters connected therewith or incidental thereto. The Act deals with salary (Section 3), tenure/term of office (Section 4), leave (Section 5), pension (Section 6), and other conditions of service (Section 8)., The term of office provided under Section 4 for the Chief Election Commissioner or an Election Commissioner is six years from the date on which he assumes office, subject to the proviso that if the Chief Election Commissioner or an Election Commissioner attains the age of sixty‑five years before the expiry of the six‑year term, he shall vacate his office on the date on which he attains that age. Section 4 thus does not provide a mandatory six‑year term., An analysis of the provisions of the Act indicates that there is nothing provided regarding the selection process of the Chief Election Commissioner or the Election Commissioners. Thus, both Article 324 and the Election Commission Act, 1991 are silent on the selection process of the Chief Election Commissioner and the Election Commissioners. There also appears to be a lacuna in ensuring independence, as the Act indirectly provides discretion to the Executive to appoint someone close to retirement at the age of sixty‑five as the Chief Election Commissioner or Election Commissioner, who therefore may not be able to serve the full term of six years., We need to look at the Constituent Assembly Debates to examine the level of independence expected from the Election Commission. When the draft article on the Election Commission was moved before the Constituent Assembly on 15 June 1949, Dr. B.R. Ambedkar explained that the vision behind the provision was independence from the executive in conducting elections. Dr. Ambedkar said: 'The House affirmed without any kind of dissent that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be freed from any kind of interference from the executive of the day. Therefore, as far as the fundamental question is concerned, the election machinery should be outside the control of the executive Government. There has been no dispute.' He further noted that what Article 324 does is to carry out that part of the decision of the Constituent Assembly. It transfers the superintendence, direction and control of the preparation of the electoral rolls and of all elections to Parliament and the Legislatures of States to a body outside the executive to be called the Election Commission, as provided in sub‑clause (1)., The reason behind having a permanent office of Chief Election Commissioner was explained by Dr. Ambedkar as follows: 'What the Drafting Committee proposes by sub‑clause (2) is to have permanently in office one person called the Chief Election Commissioner, so that the skeleton machinery would always be available. Elections generally take place at the end of five years, but a by‑election may occur at any time, and the Assembly may be dissolved before its five‑year period has expired. Consequently, the electoral rolls must be kept up to date at all times so that a new election may take place without difficulty. It was therefore felt that, given these exigencies, it would be sufficient to have permanently in session one officer called the Chief Election Commissioner, while when elections are approaching, the President may further add to the machinery by appointing other members to the Election Commission.', The above statement suggests that the office of the Chief Election Commissioner requires a kind of permanency, which may be fulfilled by having someone with a stable full term as the Chief Election Commissioner., Regarding the conditions of service, Dr. Ambedkar said: 'As far as clause (4) is concerned, we have left the matter to the President to determine the conditions of service and the tenure of office of the members of the Election Commission, subject to the condition that the Chief Election Commissioner shall not be liable to be removed except in the same manner as a Judge of the Supreme Court. If the object of this House is that all matters relating to elections should be outside the control of the executive Government of the day, it is absolutely necessary that the new machinery we are setting up, namely the Election Commission, should be irremovable by the executive by a mere fiat. We have therefore given the Chief Election Commissioner the same status as the Judges of the Supreme Court with respect to removability. We do not propose to give the same status to the other members of the Commission. We have left to the President the circumstances under which he would deem fit to remove any other member of the Election Commission, subject to the condition that the Chief Election Commissioner must recommend that the removal is just and proper.', Shibban Lal Saxena pointed out that the draft provision may favour the Executive in the appointment of the Chief Election Commissioner and the Election Commissioners, and therefore appealed for a change in the provision. He argued: 'If the President is to appoint this Commission, it naturally means that the Prime Minister appoints this Commission. He will appoint the other Election Commissioners on his recommendations. This does not ensure their independence. Once appointed, the Chief Election Commissioner shall not be removable except by a two‑thirds majority of both Houses. While this can instill independence, it is possible that a party in power may appoint a staunch party‑man as the Chief Election Commissioner. He would be removable only by a two‑thirds majority of both Houses on grave charges, which makes him almost irremovable. Therefore, the person originally appointed should enjoy the confidence of all parties, and his appointment should be confirmed not only by a simple majority but by a two‑thirds majority of both Houses. Of course, there is a danger when one party has a huge majority. Still, if a party‑man is appointed and the appointment comes up for confirmation in a joint session, even a small opposition or a few independent members can block the Prime Minister before public opinion is affected.', On 16 June 1949, Hirday Nath Kunzru echoed a similar sentiment and also highlighted issues regarding the removal of the Election Commissioners. He said: 'Two things are noticeable: first, only the Chief Election Commissioner can feel that he can discharge his duties without the slightest fear of incurring the displeasure of the executive; second, the removal of the other Election Commissioners will depend on the recommendation of one man only, namely the Chief Election Commissioner. However responsible he may be, it seems very undesirable that the removal of his colleagues, who will occupy positions as responsible as those of Judges of the Supreme Court, should depend on the opinion of one man. We are anxious that the preparation of the electoral rolls and the conduct of elections should be entrusted to people who are free from political bias and whose impartiality can be relied upon in all circumstances. By leaving a great deal of power in the hands of the President, we have given room for the exercise of political influence in the appointment of the Chief Election Commissioner and the other Election Commissioners and officers by the Central Government. The Chief Election Commissioner will have to be appointed on the advice of the Prime Minister, and if the Prime Minister suggests the appointment of a party‑man, the President will have no option but to accept the Prime Minister's nominee, however unsuitable he may be on public grounds.', He warned: If the electoral machinery is defective, inefficient, or operated by people whose integrity cannot be depended upon, democracy will be poisoned at the source; people, instead of learning from elections how to exercise their vote and, by a judicious use of their vote, bring about changes in the Constitution and reforms in administration, will learn only how parties based on intrigue can be formed and what unfair methods they can adopt to secure what they want., Dr. Ambedkar agreed with the points made by Saksena and Kunzru, and said: 'With regard to the question of appointment, I must confess that there is great force in what my friend Professor Saksena said—that there is no use making the tenure of the Election Commissioner a fixed and secure tenure if there is no provision in the Constitution to prevent either a fool, a knave, or a person likely to be under the thumb of the Executive. My provision, I must admit, does not contain anything to prevent the nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioners.', The solution Dr. Ambedkar gave was that the Constituent Assembly should adopt an Instrument of Instructions to the President, consisting of guidelines according to which the President must make the appointments. He said: 'The Drafting Committee had paid considerable attention to this question because, as I said, it is going to be one of our greatest headaches, and as a via media it was thought that if this Assembly would give or enact what is called an Instrument of Instructions to the President and provide therein some machinery which would be obligatory on the President to consult before making any appointment, the difficulties felt as resulting may be obviated and the advantage contained therein may be secured.', He added that, since he was unsure whether the Assembly would adopt his suggestion of an Instrument of Instructions, he proposed an amendment stating that the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in this behalf by Parliament, be made by the President. This is incorporated currently in Article 324(2). The idea behind this amendment was that the law made in this behalf by Parliament would address the concerns and fears raised by members of the Constituent Assembly that the Executive should not have the exclusive say in the appointment of the Chief Election Commissioner and the Election Commissioners. However, we find that the Election Commission Act, 1991 does not cover any aspect highlighted in the Constituent Assembly. For this reason, Supreme Court of India needs to lay down certain broader parameters to fill the constitutional/legislative gap., It would be relevant to quote the following excerpt from the Constitution‑bench judgment of Supreme Court of India in T.N. Seshan, Chief Election Commissioner of India v. Union of India and Others: 'The Preamble of our Constitution proclaims that we are a Democratic Republic. Democracy being the basic feature of our constitutional set‑up, there can be no doubt that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process, it was thought by our Constitution‑makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body insulated from political and/or executive interference. It is inherent in a democratic set‑up that the agency entrusted with the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or the executive of the day.', In that case, a petition challenged the validity of 'The Chief Election Commissioner and other Election Commissioners (Condition of Service) Amendment Ordinance, 1993' to amend the Election Commission Act, 1991. While upholding the amendment, Supreme Court of India discussed the role of the Election Commission as a multi‑member body and the relation between the Chief Election Commissioner and other Election Commissioners. Important points highlighted were as follows: The Election Commissioners and the Regional Commissioners have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the Chief Election Commissioner. The recommendation for removal must be based on intelligible and cogent considerations related to the efficient functioning of the Election Commission, as this privilege has been conferred on the Chief Election Commissioner to ensure that the Election Commissioners and Regional Commissioners are not at the mercy of political or executive bosses of the day. If the power were exercisable by the Chief Election Commissioner at his whim, he would become an instrument of oppression and would destroy the independence of the Election Commissioners and Regional Commissioners. Therefore, the Chief Election Commissioner must exercise this power only when valid reasons exist that are conducive to efficient functioning of the Election Commission. The Court further highlighted the salient features regarding the composition of the Election Commission, including provisions on tenure, conditions of service, salary, allowances, and removability of the Chief Election Commissioner, the Election Commissioners and the Regional Commissioners. The Chief Election Commissioner and the Election Commissioners alone constitute the Election Commission, whereas the Regional Commissioners are appointed merely to assist the Commission. Under clause (3) of Article 324, in the case of a multi‑member Election Commission, the Chief Election Commissioner shall act as the Chairman of the Commission. Article 324 envisages a permanent body headed by a permanent incumbent, namely the Chief Election Commissioner. The fact that the Chief Election Commissioner is a permanent incumbent does not confer a higher status than the Election Commissioners, as the latter are not intended to be permanent appointees. The staff of the Election Commission must function under the direction and guidance of the Chief Election Commissioner, ensuring continuity and smooth functioning. The Court also noted distinguishing features from Article 324 between the position of the Chief Election Commissioner and the Election Commissioners. Differences arise primarily from their tenure. The removability clause for Election Commissioners differs, and variations in salary cannot be determinative, as the executive or legislature fixes conditions of service under clause (5) of Article 324. The only distinguishing feature that remains is that the Chief Election Commissioner’s conditions of service cannot be varied to his disadvantage after appointment, whereas no such safeguard exists for Election Commissioners, whose posts are temporary in character. However, this alone does not lead to the conclusion that the final word in all matters lies with the Chief Election Commissioner.
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Such a view would render the position of the Election Commissioners to that of mere advisers which does not emerge from the scheme of Article 324. (emphasis added) The judgment in T.N. Seshan did not directly consider the issues which are before this Bench. Furthermore, the observations made in T.N. Seshan indicate that the Election Commissioners were not mere advisors, but have a crucial constitutional role., The appointment of the Chief Election Commissioner should be made by the President in consultation with the Chief Justice of India and the Leader of the Opposition (and in case no Leader of the Opposition is available, the consultation should be with the leader of the largest opposition group in the Lok Sabha). The consultation process should have a statutory backing. The appointment of the other two Election Commissioners should be made in consultation with the Chief Justice of India, the Leader of the Opposition (in case the Leader of the Opposition is not available, the consultation should be with the leader of the largest opposition group in the Lok Sabha) and the Chief Election Commissioner., The Chief Election Commissioner and the other Election Commissioners should be appointed on the recommendation of a body consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, the Leader of the Opposition in the Rajya Sabha, the Speaker of the Lok Sabha and the Deputy Chairman of the Rajya Sabha. Similar procedure should be adopted in the case of appointment of State Election Commissioners., The independence of the Election Commission upon which the Constitution makers laid so much stress in the Constitution would be further strengthened if the Secretariat of the Election Commission consisting of officers and staff at various levels is also insulated from the interference of the Executive in the matter of their appointments, promotions, etc., and all such functions are exclusively vested in the Election Commission on the lines of the Secretariats of the Lok Sabha, the Rajya Sabha, the Registries of the Supreme Court of India and the High Courts. The Independent Secretariat is vital to the functioning of the Election Commission as an independent constitutional authority. In fact, the provision of an independent Secretariat to the Election Commission has already been accepted in principle by the Goswami Committee on Electoral Reforms and the Government had, in the Constitution (Seventieth Amendment) Bill, 1990, made a provision also to that effect. That Bill was, however, withdrawn in 1993 as the Government proposed to bring in a more comprehensive Bill., In recent times, for statutory bodies such as the National Human Rights Commission and the Central Vigilance Commission, appointment of Chairperson and Members are made on the recommendations of a broad‑based Committee. Given the far‑reaching importance and critical role of the Election Commission in the working of our democracy, it would certainly be appropriate if a similar collegium is constituted for selection of the Chief Election Commissioner and the Election Commissioners., Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court of India. However, Clause (5) of Article 324 does not provide similar protection to the Election Commissioners and it only says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Election Commissioners. The Election Commission recommends that constitutional protection be extended to all members of the Election Commission. The Election Commission also recommends that the Secretariat of the Election Commission, consisting of officers and staff at various levels, be insulated from the interference of the Executive in the matter of their appointments, promotions, etc., and all such functions be exclusively vested in the Election Commission on the lines of the Secretariats of the Lok Sabha, the Rajya Sabha, the Registries of the Supreme Court of India and the High Courts. The third recommendation of the Election Commission is that its budget be treated as charged on the Consolidated Fund of India., Taking note of the important role played by the Election Commission of India i.e., the task of conducting elections throughout the country, the Law Commission in its 255th Report emphasized that the Commission should be completely insulated from political pressure or executive interference to maintain the purity of elections, inherent in a democratic process, and recommended: The Election Commissioners, including the Chief Election Commissioner, shall be appointed by the President by warrant under his hand and seal after obtaining the recommendations of a Committee consisting of: (a) the Prime Minister of India (Chairperson), (b) the Leader of the Opposition in the House of the People (Member), (c) the Chief Justice of India (Member). Provided that after the Chief Election Commissioner ceases to hold office, the senior‑most Election Commissioner shall be appointed as the Chief Election Commissioner, unless the Committee mentioned in sub‑section (1) above, for reasons to be recorded in writing, finds such Election Commissioner to be unfit. Explanation: For the purposes of this sub‑section, the Leader of the Opposition in the House of the People shall, when no such Leader has been so recognised, include the Leader of the single largest group in opposition of the Government in the House of the People., The Law Commission also recommended the formation of an independent and permanent Secretariat staff for the Election Commission and suggested that: The Election Commission shall have a separate independent and permanent secretarial staff. The Election Commission may, by rules prescribed by it, regulate the recruitment and the conditions of service of persons appointed to its permanent secretarial staff., These reports clearly indicate the need for reforms in the working of the Election Commission, in particular in the process of selection and removal of the members of the Election Commission., An examination of practice for appointment of the head of election‑conducting bodies across the world shows some trends that include, amongst others, the inclusion of members of the opposition. In most jurisdictions, such appointments are a consultative process, involving members or nominees of both the ruling party and the opposition party. The presence of opposition in various critical decision‑making processes of governance is a sine qua non for a healthy democracy. It not only provides a system of accountability of the ruling party but also ensures a much‑crucial deliberative process. This, in turn, plays a pivotal role in preserving the true essence of democracy by raising the concerns of the people of the country. In addition, some jurisdictions also have constitutional functionaries such as Speakers of the house of Parliament or Legislature, and Judges of the Highest Court in the country in a multi‑member Committee., Relevant details of electoral bodies of some countries are as follows: Pakistan – The composition includes a Chief Election Commissioner and four members who shall be High Court Judges from each Province. Appointment is made by the President after consultation with the Leader of the Opposition in the National Assembly, forwarding three names to a parliamentary committee for hearing and then to the President. The Chief Election Commissioner must be a Judge of the Supreme Court or a former High Court Judge qualified to be a Supreme Court Judge. Members must be High Court Judges not more than 68 years of age and can be removed only as prescribed in Article 209. Bangladesh – The President appoints the Chief Election Commissioner and other election commissioners. The commission may consist of up to four election commissioners. The term is five years and commissioners are not eligible for appointment in the service of the Republic after ceasing office. Australia – The Australian Electoral Commission is a three‑person body consisting of a Chairperson, an Electoral Commissioner and one other member. The Chairperson and non‑judicial appointee are appointed by the Governor‑General for a term of seven years. The Chairperson must be an active or retired judge of the Federal Court of Australia. Canada – The Chief Electoral Officer is appointed by resolution of the House of Commons for a ten‑year term and may be removed for cause by the Governor General on address of the Senate and House of Commons. Sri Lanka – The Election Commission consists of a Chairman and four members. The President appoints them after seeking observations of a Parliamentary Council comprising the Prime Minister, the Speaker, the Leader of the Opposition and nominees of the Prime Minister and Leader of the Opposition who are Members of Parliament. The term is five years and removal follows the procedure for removal of a Judge of the Supreme Court or Court of Appeal. United States of America – The Federal Election Commission consists of six commissioners, not more than three of whom may belong to the same political party. Commissioners are appointed by the President and confirmed by the Senate for six‑year terms, with two commissioners appointed every two years and the chair rotating annually. Nepal – The Chief Election Commissioner and four other Election Commissioners are appointed by the President on the recommendation of the Constitutional Council, which includes the Prime Minister, Chief Justice, Speaker of the House of Representatives, Chairperson of the National Assembly, Leader of the Opposition in the House of Representatives and Deputy Speaker. Candidates must hold a bachelor’s degree, not be a member of any political party immediately before appointment, be at least forty‑five years old and possess high moral character. The term is six years and removal is by the President on recommendation of the Constitutional Council on grounds of inability to hold office due to physical or mental illness. South Africa – The Electoral Commission consists of five members, one of whom shall be a judge, appointed by the President. A panel nominates candidates, and the National Assembly approves the appointment. Members serve for seven years and may be reappointed for one additional term. Removal may be on grounds of misconduct, incapacity or incompetence after a finding by a committee of the National Assembly. United Kingdom – The Electoral Commission’s ten commissioners are appointed by a committee drawn from Members of Parliament. The committee’s recommendations are approved by the House of Commons and the commissioners are appointed by the Queen by Royal Warrant., Various state institutions supporting constitutional democracy have an independent mechanism for the appointment of their heads and members. The same is carried out with an object to keep them insulated from any external influence that allows them to remain neutral to carry on the assigned functions. Table showing the position of various authorities is as follows:, National Human Rights Commission – Composed of a Chairperson (a retired Judge of the Supreme Court of India) and twelve other members (five full‑time and seven deemed members). The Selection Committee includes the Prime Minister (Chairman), the Speaker of the Lok Sabha, the Union Home Minister, the Deputy Chairman of the Rajya Sabha, the Leaders of the Opposition in both Houses of Parliament and the President. Members are appointed by the President and may serve for three years or until the age of seventy, whichever is earlier. The President may remove the Chairperson or any member under specified circumstances., State Human Rights Commission – Consists of a Chairperson (a retired Chief Justice or a judge of a High Court) and two members (serving or retired judges of a High Court or District Court). The Selection Committee includes the Speaker of the Legislative Assembly, the State Home Minister and the Leader of the Opposition in the Legislative Assembly, and the Governor appoints the members. The term is three years or until the age of seventy, whichever is earlier, and members are eligible for re‑appointment. Removal is only by the President., Central Bureau of Investigation – Headed by a Director appointed by the Central Government on the recommendation of a three‑member committee consisting of the Prime Minister (Chairperson), the Leader of the Opposition in the Lok Sabha and a member appointed by the Appointment Committee. The Director serves a two‑year term and may be removed or suspended by the President on grounds of misbehaviour or incapacity., Chief Information Commissioner – The Chief Information Commissioner and Central Information Commissioners are appointed by the Prime Minister (Chairman), the Leader of the Opposition in the Lok Sabha and a Union Cabinet Minister (nominated by the President on the recommendation of the committee). Candidates are persons of eminence in public life with wide knowledge and experience in law, science, technology, social service, management, journalism, mass media or administration and governance. They must not be members of Parliament or hold any office of profit. The term of office shall not exceed five years or until the age of sixty‑five, whichever is earlier, and they are ineligible for re‑appointment. Removal is by the President on grounds of proven misbehaviour, incapacity, insolvency, conviction for an offence involving moral turpitude, infirmity of mind or acquisition of financial interests inconsistent with official position., Central Vigilance Commission – Consists of a Central Vigilance Commissioner and up to two Vigilance Commissioners. The Selection Committee includes the Prime Minister (Chairman), the Leader of the Opposition in the Lok Sabha, the Minister of Home Affairs and the President on the recommendation of the committee. Members are persons who have served in the All India Service or Civil Service with experience in vigilance, policy making, administration, finance, law or investigations. The term is four years or until the age of sixty‑five, whichever is earlier, and they are ineligible for re‑appointment. Removal is by the President on grounds of proven misbehaviour or incapacity after a Supreme Court of India inquiry., Lokpal – The Lokpal consists of a Chairperson and other members, not more than a specified number, of whom at least half shall be judicial members. The Selection Committee includes the Prime Minister (Chairman), the Leader of the Opposition in the Lok Sabha, the Speaker of the House of the People, a distinguished jurist and the President on the recommendation of the committee. The Chairperson must be a former Chief Justice of India or a former Supreme Court Judge or an eminent person of impeccable integrity with at least twenty‑five years of experience in anti‑corruption policy, public administration, vigilance, finance, insurance or banking. The term is five years or until the age of seventy, whichever is earlier, and the Chairperson and members are ineligible for re‑appointment or any other office of profit. Removal is by the President on grounds of proven misbehaviour or incapacity after a Supreme Court of India inquiry., Press Council of India – The Council consists of a Chairman and other members appointed by the President on the recommendation of a committee that includes the Chairman of the Council of States (Rajya Sabha), the Speaker of the Lok Sabha and other members as required. The Chairman must not be a working journalist who owns or manages any newspaper. The term of office is three years and the Chairman may continue to hold office until the Council is reconstituted or for six months, whichever is earlier. Members are eligible for only one term., The Supreme Court of India has plenary power under Article 142 to issue directions to do complete justice. An analysis of the judgments of the Supreme Court of India shows that it has created a jurisprudence, where it has exercised its power under Article 142 to fill legislative gaps. Reference can also be made to the speech given by Dr B.R. Ambedkar in the Constituent Assembly on 4 November 1948, where he noted that the Drafting Committee had tried to include detailed processes to avoid the misuse of power. Dr Ambedkar was emphasizing a constitutional design which would prevent arbitrariness by laying down legal procedures to regulate power., The Supreme Court of India has laid down guidelines in order to fill the legislative gap on a number of occasions. In Lakshmi Kant Pandey v Union of India, in the absence of statutory enactment for the adoption of Indian children by foreign parents, the Court laid down safeguards to prevent malpractice by social organisations and private adoption agencies. Directions were provided in Kumari Madhuri Patil and Another v Additional Commissioner, Tribal Development and Others for issuance and early scrutiny of social status certificates (showing that a person belongs to SC/ST community) for admission in educational institutions or for employment. This Court laid down guidelines for autonomy of the Central Bureau of Investigation and other special investigating agencies in the case of Vineet Narain and Others v Union of India and Another. In the case of Vishaka and Others v State of Rajasthan and Others, this Court laid down guidelines to ensure prevention of sexual harassment of women at workplace. Another judgment in this regard is Vishwa Jagriti Mission Through President v Central Government, Through Cabinet Secretary and Others, where a two‑judge bench of this Court laid down guidelines for educational institutes to prevent the menace of ragging., This Court in the case of Prakash Singh and Others v Union of India and Others, after studying various committee reports on police reforms, laid down certain directions in the nature of police reforms to be operative until the new Police Act is to be framed. It is necessary to quote the following excerpt from the judgment: It is not possible or proper to leave this matter only with an expression of this hope and to await developments further. It is essential to lay down guidelines to be operative till the new legislation is enacted by the State Governments. Article 32 read with Article 142 of the Constitution empowers the Supreme Court of India to issue such directions, as may be necessary for doing complete justice in any cause or matter. All authorities are mandated by Article 144 to act in aid of the orders passed by the Supreme Court of India. In the discharge of our constitutional duties and obligations having regard to the aforesaid position, we issue the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations., The Supreme Court of India has also laid down guidelines to streamline and facilitate the institutional apparatus and procedural system. In the case of Laxmi v Union of India and Others, the Court intervened to prevent cases of acid violence, and laid down guidelines on sale of acid and the treatment of victims of acid attack. A three‑judge bench decision in Shakti Vahini v Union of India and Others issued guidelines to check unlawful interference by Khap panchayat in interfaith and inter‑caste marriages. The Court held: To meet the challenges of the agonising effect of honour crime, we think that there has to be preventive, remedial and punitive measures and, accordingly, we state the broad contours and the modalities with liberty to the executive and the police administration of the concerned States to add further measures to evolve a robust mechanism for the stated purposes., The series of case laws authoritatively demonstrate the commitment of the Supreme Court of India to intervene to preserve and promote the Rule of Law, by supplementing the legislative gaps till the Legislature steps in.
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This has been done in exercise of the plenary power of the Supreme Court of India under Article 142 of the Constitution. Our decision is therefore to lay down parameters or guidelines for the selection process for the appointment of the Chief Election Commissioner and the Election Commissioner. This decision is supported by the two‑judge judgment in State of Punjab v. Salil Sabhlok and Others. In this case, it was pointed out that no parameters or guidelines have been laid down in Article 316 of the Constitution for selecting the Chairperson of the Public Service Commission and no law has been enacted on the subject with reference to Schedule VII List II Entry 41 of the Constitution. In his concurring opinion, Justice Madan Lokur, for the bench, relied on Mohinder Singh Gill case to reiterate that wide discretion is fraught with tyrannical potential even in high personages. Therefore, the jurisprudence of prudence demands a fairly high degree of circumspection in the selection and appointment to a constitutional position having important and significant ramifications., Justice Lokur also analysed the previous judgments of the Supreme Court of India on judicial review of the selection process, and noted: In Centre for Public Interest Litigation v. Union of India (2011) 4 SCC 1 : (2011) 1 SCC (L&S) 609, the Supreme Court of India struck down the appointment of the Central Vigilance Commissioner while reaffirming the distinction between merit review pertaining to the eligibility or suitability of a selected candidate and judicial review pertaining to the recommendation‑making process. Acknowledging this, the Supreme Court of India looked at the appointment of the Central Vigilance Commissioner not as a merit review of the integrity of the selected person, but as a judicial review of the recommendation‑making process relating to the integrity of the institution. It was made clear that while the personal integrity of the candidate cannot be discounted, institutional integrity is the primary consideration to be kept in mind while recommending a candidate. It was observed that while the Supreme Court of India cannot sit in appeal over the opinion of the High Power Committee, it can certainly see whether relevant material and vital aspects having nexus with the objects of the Act are taken into account when a recommendation is made. The Supreme Court of India emphasized the overarching need to act for the good of the institution and in the public interest. Reference in this context was made to N. Kannadasan v. Ajoy Khose (2009) 7 SCC 1 : (2009) 3 SCC (Civ)., It was also held that the selection process of a constitutional post cannot be equated with the selection process of a bureaucratic functionary. If the Executive is left with the exclusive discretion to select the candidate, it may destroy the fabric of the constitutional institution. The Supreme Court of India held: A constitutional position such as that of the Chairperson of a Public Service Commission cannot be equated with a purely administrative position; it would be rather facetious to do so. While the Chief Secretary and the Director General of Police are at the top of the ladder, they are essentially administrative functionaries. Their duties and responsibilities, however onerous, cannot be judged against the duties and responsibilities of an important constitutional authority or a constitutional trustee, whose very appointment is not only expected to inspire confidence in the aspirational Indian but also project the credibility of the institution to which he or she belongs. I am therefore unable to accept the view that the suitability of an appointee to the post of Chairperson of a Public Service Commission should be evaluated on the same yardstick as the appointment of a senior administrative functionary. The Chairperson takes the oath of allegiance to India and to the Constitution of India, not an oath of allegiance to the Chief Minister. An appointment to that position cannot be taken lightly or on considerations other than the public interest. Consequently, it is not possible to accept the contention that the Chief Minister or the State Government is entitled to act only on the perceived suitability of the appointee, over everything else, while advising the Governor to appoint the Chairperson of the Public Service Commission. If such a view is accepted, it will destroy the very fabric of the Public Service Commission., It was concluded that the Supreme Court of India can frame guidelines till the Legislature steps in. In the light of the various decisions of the Supreme Court of India adverted to above, the administrative and constitutional imperative can be met only if the Government frames guidelines or parameters for the appointment of the Chairperson and Members of the Punjab Public Service Commission. That it has failed to do so does not preclude the Supreme Court of India or any superior court from giving a direction to the State Government to conduct the necessary exercise within a specified period. Only because it is left to the State Legislature to consider the desirability or otherwise of specifying the qualifications or experience for the appointment of a person to the position of Chairperson or Member of the Punjab Public Service Commission, does not imply that the Supreme Court of India cannot direct the executive to frame guidelines and set the parameters. The Supreme Court of India can certainly issue appropriate directions in this regard, and in the light of the experience gained over the last several decades coupled with the views expressed by the Law Commission, the Second Administrative Reform Commission and the views expressed by this Court from time to time, it is imperative for good governance and better administration to issue directions to the executive to frame appropriate guidelines and parameters based on the indicators mentioned by the Supreme Court of India. These guidelines can and should be binding on the State of Punjab until the State Legislature exercises its power., Article 324(2) refers to the appointment of the Chief Election Commissioner and other Election Commissioners which shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. It contemplates that Parliament makes a law laying down the procedure of selection for appointment of the Chief Election Commissioner and other Election Commissioners, but such law has not been made by Parliament, even after 73 years since the adoption of the Constitution. In order to fill the legislative vacuum, i.e., the absence of any law made by Parliament for the appointment of members of the Election Commission, and in the light of the views expressed in various reports of the Law Commission, Election Commission, etc., the Supreme Court of India is of the considered view that the instant case aptly calls for the exercise of the power of the Supreme Court of India under Article 142 to lay down guidelines to govern the process of selection and removal of the Chief Election Commissioner and Election Commissioners, till the Legislature steps in., Independence of Election Commissioners. In order to allow independence in the functioning of the Election Commission as a constitutional body, the office of the Chief Election Commissioner as well as the Election Commissioners have to be insulated from executive interference. This is envisaged under the proviso to Article 324(5) which reads: Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner., There are two procedural safeguards available regarding the removal of the Chief Election Commissioner: (i) shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court; (ii) the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. However, the second proviso to Article 324(5) postulates that the removal of the Election Commissioners could be made only on the recommendation of the Chief Election Commissioner. The protection available to the Chief Election Commissioner is not available to other Election Commissioners. Various reports have recommended that the protection against removal available to the Chief Election Commissioner should be made available to the other Election Commissioners to ensure the independence of the Election Commission., A note titled Proposed Electoral Reforms (2004) prepared and published by the Election Commission of India itself recommended that: In order to ensure the independence of the Election Commission and to keep it insulated from external pulls and pressures, Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, that Clause (5) does not provide similar protection to the Election Commissioners and it merely says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Election Commissioners from office as is available to the Chief Election Commissioner., The above recommendation was reiterated in the Background Paper on Electoral Reform (2010) prepared by the Union Ministry of Law and Justice, in co‑sponsorship of the Election Commission of India, which states: Recommendation: Clause (5) of Article 324 of the Constitution, inter alia, provides that the Chief Election Commissioner shall not be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court. However, Clause (5) does not provide similar protection to the Election Commissioners and it only says that they cannot be removed from office except on the recommendation of the Chief Election Commissioner. The provision, in the opinion of the Election Commission, is inadequate and requires an amendment to provide the very same protection and safeguard in the matter of removability of Election Commissioners from office as is provided to the Chief Election Commissioner. The Election Commission recommends that constitutional protection be extended to all members of the Election Commission. The Election Commission also recommends that the Secretariat of the Election Commission, consisting of officers and staff at various levels, be insulated from the interference of the Executive in the matter of their appointments, promotions, etc., and all such functions be exclusively vested in the Election Commission on the lines of the Secretariats of the Lok Sabha and Rajya Sabha, Registries of the Supreme Court and High Courts etc. The third recommendation of the Election Commission is that its budget be treated as charged on the Consolidated Fund of India., The office of the Election Commission is an independent constitutional body which has been vested with the powers of superintendence, direction and control of the preparation of electoral rolls and the conduct of all parliamentary and State Legislature elections and that of the offices of President and Vice‑President in terms of Article 324(1) of the Constitution. In terms of Article 324(2), the office of the Election Commission comprises the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and by an order dated 01 October 1993, the President has fixed the number of Election Commissioners to two until further orders. Since 1993, it is a multi‑member Commission with equal participation in transacting the business of the Election Commission as provided under Chapter III of the Representation of the People Act, 1991 to ensure the smooth and effective functioning of the Election Commission., Article 324(5) of the Constitution is intended to ensure the independence of the Election Commission free from all external political interference and, thus, expressly provides that the removal of the Chief Election Commissioner from office shall be in like manner as on the grounds as of a Judge of the Supreme Court. Nevertheless, a similar procedure has not been provided for other Election Commissioners under the second proviso to Article 324(5) of the Constitution. The other conditions of service of the Chief Election Commissioner and other Election Commissioners have been protected by the Legislature by the Representation of the People Act, 1991., In the facts and circumstances, keeping in view the importance of maintaining the neutrality and independence of the office of the Election Commission to hold free and fair elections which is a sine qua non for upholding the democracy as enshrined in our Constitution, it becomes imperative to shield the appointment of Election Commissioners and to insulate them from executive interference. It is the need of the hour and advisable, in my view, to extend the protection available to the Chief Election Commissioner under the first proviso to Article 324(5) to other Election Commissioners as well until any law is being framed by Parliament., Directions. Until Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect: (1) The appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations of a three‑member Committee comprising the Prime Minister, the Leader of the Opposition of the Lok Sabha and, if no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength, and the Chief Justice of India. (2) It is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner, that is on the like grounds as a Judge of the Supreme Court, subject to the recommendation of the Chief Election Commissioner as provided under the second proviso to Article 324(5) of the Constitution of India. (3) The conditions of service of the Election Commissioners shall not be varied to their disadvantage after appointment.
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Reserved on: 25th September, 2020. Decided on: 6th October, 2020. Represented by: Plaintiff in person, Mr. Arun Batta, Ms. Neha Kumari and Mr. Abdul Vahid, Advocates. Versus Represented by: Mr. Arvind Nigam, Senior Advocate with Mr. Ankit Banati, Advocate for defendant No.1, Supreme Court Bar Association. Ms. Rajdipa Behura and Mr. Preet Pal Singh, Advocates for defendant. Interim Application 5151/2020 (under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure)., The plaintiff has filed the present suit inter alia seeking a decree of declaration declaring the resolution of the Executive Committee of defendant No.1 dated 8th May, 2020 whereby the plaintiff was suspended as void ab initio and ultra vires the Rules and Regulations of the Supreme Court Bar Association, besides a decree of permanent injunction restraining defendant No.1, its office bearers and employees from interfering in the functioning of the plaintiff as duly elected Secretary of defendant No.1, declaring that the Committee of three retired Judges constituted by the defendant No.1 is illegal and that the resolution of the Bar Council of India, defendant No.2 herein dated 10th May, 2020 be implemented in letter and spirit by defendant No.2., By way of this application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure the plaintiff seeks an interim injunction staying the operation of the resolution dated 8th May, 2020 of the Executive Committee of defendant No.1 in terms whereof the plaintiff was suspended from functioning as Secretary of the defendant No.1., Plaintiff who appears in person contends that in terms of Rule 35 of the Supreme Court Bar Association Rules only the General Body of the Supreme Court Bar Association is competent to suspend or terminate the membership of a member and thus the decision of the Executive Committee of the Supreme Court Bar Association suspending the plaintiff from the post of Secretary is illegal and non est. Further, Rule 14 gives power to the President of the Association and, in his absence, the Vice President to preside over all meetings and, if any question arises with respect to any matter not provided for in the Rules or in the by‑laws made by the Executive Committee, such questions shall, subject to the provisions of these Rules, be decided by the President whose decision shall be binding unless the General Body in a subsequent meeting otherwise decides. It is the case of the plaintiff that since the action of the Executive Committee falls under Rule 35, Rule 14 has no application to the facts of the case. The petitioner also challenges the coram of the Executive Committee which passed the impugned resolution on the ground that most of the members of the said meeting being interested parties, and the neutral members in the meeting dated 8th May, 2020 being less than five, their decision cannot be binding. Hence the decision of the Executive Committee dated 8th May, 2020 is non est in law. However, after some arguments, the plaintiff confines his arguments to the applicability of Rule 35 and states that the allegations and counter‑allegations between the parties cannot be gone into at this stage in this application seeking interim injunction. Reliance is placed on the decisions reported as AIR 1936 PC 253 Khwaja Nazir Ahmed vs. King Emperor and 1994 (1) SCC 1 S. P. Chengal Varya Naidu vs. Jagannath & Ors., Supporting the contentions of the plaintiff, learned counsel for the Bar Council of India states that the Bar Council of India is the top regulatory statutory body which derives its powers and jurisdiction from the Advocates Act, 1961. Section 7 of the Advocates Act provides for the functions of the Bar Council of India and sub‑sections (b) and (d) empower the Bar Council of India to lay down standards of professional conduct and etiquette for advocates as also the power to safeguard the rights, privileges and interests of advocates. Further, under Section 36 of the Advocates Act, 1961 the Bar Council of India is empowered to take disciplinary action against an advocate who is found guilty of professional or other misconduct. The Bar Council of India has also prepared Rules on Professional Standards to govern an advocate’s professional conduct in discharge of his duties as an advocate which he owes towards the court, the opposite counsel, the clients and fellow advocates. Therefore, if any individual or a Bar Association, collectively or their members individually or collectively violate the standards of professional conduct and etiquette or impinge on the rights, privileges and interests of any advocate, the Bar Council of India is empowered to regulate the same. It is further contended that the Bar Council of India generally avoids interfering in the functioning of the affairs of any Bar Association but, given the extreme circumstances of the present case, the Bar Council of India took notice of the complaints/events received by it and, since the issue has a far‑reaching effect in relation to the working of the Bar Associations of the country, took the conscious decision and passed the resolution dated 10th May, 2020. Reliance is placed on the decisions reported as 2003 (2) SCC 45 Ex. Capt. Harish Uppal vs. Union of India and 2020 SCC OnLine SC 244 District Bar Association, Dehradun vs. Ishwar Shandilya & Ors., Rebutting the contentions of the plaintiff and learned counsel for defendant No.2, learned counsel for defendant No.1 contends that the provisions under the Advocates Act, 1961 empower the Bar Council of India to regulate the conduct of the advocates and State Bar Councils. The power under Section 7(1)(b) and (1)(d) of the Advocates Act does not vest jurisdiction in the Bar Council of India to act as an appellate authority in relation to individual grievances or issues of Bar Associations. Further, the Bar Associations of various District Courts, High Courts or the Supreme Court are independent bodies and their actions are not subject to the jurisdiction of the Bar Council of India. The decisions relied upon by the learned counsel for the Bar Council of India in Capt. Harish Uppal (supra) and District Bar Association, Dehradun vs. Ishwar Shandilya (supra) have no applicability to the facts of the present case. In those decisions the Court was dealing with the issue as to whether lawyers can go on strike and, on merits, the Court did not hold that the Bar Council of India was the appellate authority of the various Bar Associations. Even under Section 46 of the Advocates Act, the Bar Council of India could at best issue directions to the State Bar Councils and not to the various Bar Associations. The resolution of the Bar Council of India dated 10th May, 2020 is violative of the principles of natural justice, as before passing the resolution the defendant No.1 Association was not heard nor was it represented. In case the plea of the Bar Council of India and the plaintiff is that the resolution dated 10th May, 2020 of the Bar Council of India is binding on the defendant No.1 Association, then the present suit is not maintainable as the plaintiff has already received the necessary decree/award/directions in his favour., Refuting the arguments raised by the plaintiff, learned counsel for defendant No.1 submits that the plaintiff is indulging in forum shopping. The plaintiff first filed a writ petition before the Supreme Court of India and thereafter, by filing an application, withdrew the same. The ground taken for withdrawal of the writ petition in the application was that a Committee has been constituted by defendant No.1 to look into the matter, that is, the complaints and counter‑complaints. Further the writ petition was withdrawn from the Supreme Court of India unconditionally, thus the same was an order under Order XXIII Rule 1 of the Code of Civil Procedure. Reliance is placed on the decision reported as AIR 1987 SC 88: 1987 (1) SCC 5 Sarguja Transport Services vs. State Transport Appellate Tribunal, M.P. Gwalior & Ors wherein it was held that on the same cause of action another suit or petition will not be maintainable. It is further contended that the suit filed by the plaintiff is barred by provisions of the Specific Relief Act. Learned counsel for the Supreme Court Bar Association/defendant No.1 states that the issue raised in the present suit is a matter of internal management of an Association and no power is vested in the Bar Council of India in the manner it has chosen to exercise. Hence the present suit is not maintainable even on the count seeking implementation of the resolution dated 10th May, 2020 of the Bar Council of India., The interim relief in the present application and the final relief in the suit are the same and hence the interim relief sought cannot be granted unless the parties have led their respective evidence. The defence of the plaintiff is being looked into by a Committee constituted of three honourable retired Judges, hence the decision on the disputes raised in the suit and the application will be taken by the Committee. Further the plaintiff has neither proved a prima facie case in his favour nor shown any irreparable loss. Balance of convenience also lies in favour of defendant No.1. Hence no interim relief be granted., Learned Senior Counsel for the Supreme Court Bar Association further states that Rule 35 of the defendant No.1 Association relates to the suspension/termination of the membership of a member of the Supreme Court Bar Association whereas the present case relates to the working of the plaintiff as an office‑bearer of defendant No.1 Association. In its written statement defendant No.1 has clarified that the President convened the meeting under Rule 14(2) and recused himself from the meeting. The plaintiff duly participated in the meeting and the plaintiff’s contentions and explanations have been duly noted in the minutes. Defendant No.1 Association passed the resolution dated 8th May, 2020 after ascertaining the views and explanation of the plaintiff. It is thus the case of defendant No.1 Association that effective representation was permitted to the plaintiff and hence it cannot be alleged that the principles of natural justice were not followed., Learned counsel for defendant No.1 Association further states that since there is no specific provision in the Rules of defendant No.1 Association with regard to the termination/suspension of an office‑bearer of the Association, the Court would look into the past precedents of the Association. It is stated that vide the minutes dated 14th December, 2011 the then President took up the matter in the Executive Committee and suspended the then Secretary of defendant No.1 Association. A similar resolution was passed on 9th August, 2019 wherein, due to the behaviour of the Secretary with the President, the Secretary was suspended and his jurisdictional powers were handed over to the Treasurer. In the absence of a specific provision this Court can base its decision on the past precedents., Heard the plaintiff and learned counsels for defendant No.1 and defendant No.2., Brief facts giving rise to the filing of the present suit and application are that, according to the plaintiff, after being elected for the third time as Secretary of defendant No.1 Association on 13th December, 2019 he was taking active and effective steps in furtherance of the provisions and Rules of defendant No.1 Association. On 19th March, 2020 the plaintiff received a requisition signed by more than 400 members of defendant No.1 Association asking the plaintiff to convene a meeting in his capacity as Secretary. On 21st March, 2020 the plaintiff informed the Executive Committee of defendant No.1 Association and the said requisition was posted in the WhatsApp group of the Executive Committee. On 6th May, 2020 the plaintiff was constrained to take logical steps towards convening the emergent General Body Meeting in view of the requisition received by more than 400 members on 19th March, 2020. Since the plaintiff was pursuing the requisition signed by more than 400 members of the Supreme Court Bar Association, on 8th May, 2020 the President of defendant No.1 Association called a meeting of the Executive Committee. In the said meeting, vide the resolution concerning agenda Nos. 3 and 4 which related to the plaintiff and is impugned in the suit, the plaintiff was suspended from functioning as Secretary of defendant No.1 Association., Pursuant to the resolution of defendant No.1 Association dated 8th May, 2020, the plaintiff made representation to the Bar Council of India on 10th May, 2020 which passed the resolution dated 10th May, 2020 on which the plaintiff relies and seeks implementation thereof. On 20th May, 2020 the plaintiff filed a petition under Article 32 of the Constitution of India before the Supreme Court of India; however, on 8th June, 2020 the same was withdrawn in view of the subsequent events including the filing of the present suit and application. On 6th June, 2020 the plaintiff received another communication from defendant No.1 Association informing that a Committee of three honourable retired Judges has been constituted to hold an inquiry against the plaintiff in respect of the show‑cause notice dated 5th June, 2020. The plaintiff responded to the show‑cause notice dated 5th June, 2020 denying all the allegations as false and frivolous. However, thereafter the plaintiff, in view of the fact that his term would expire on 11th December, 2020, has sought quashing of the impugned resolution dated 8th May, 2020 and implementation of the resolution of the Bar Council of India dated 10th May, 2020 in the present suit., The minutes of the meeting dated 8th May, 2020 of the Executive Committee of the Supreme Court Bar Association read as follows: The following members were present for this urgent meeting: 1. Mr. Dushyant A. Dave, President 2. Mr. Kailash Vasdev, Vice President 3. Mr. Ashok Arora, Honorary Secretary 4. Mr. Rohit Pandey, Joint Secretary 5. Mr. Meenesh Dubey, Treasurer 6. Ms. Shamsravish Rein, Joint Treasurer 7. Ms. Pavani Mahalakshmi, Senior Executive Member 8. Mr. Chander Uday Singh, Senior Executive Member 9. Colonel R. Balasubramaniam, Senior Executive Member 10. Mr. Arijit Prasad, Senior Executive Member 11. Mr. Anip Sachtey, Senior Executive Member 12. Mr. Amarendra Kumar Singh, Member‑Executive 13. Ms. K. V. Bharathi Upadhyaya, Member‑Executive 14. Ms. Anjali Chauhan, Member‑Executive 15. Dr. Ritu Bharadwaj, Member‑Executive 16. Mr. Upendra Narayan Mishra, Member‑Executive 17. Mr. R. Anand Padmanabhan, Member‑Executive 18. Ms. Alka Agrawal, Member‑Executive 19. Ms. Reena Rao, Member‑Executive 20. Ms. Prerna Kumari, Member‑Executive. Mr. Adish Chandra Aggarwala sought leave of absence. A special requisition seeking that an urgent meeting of the Executive Committee be convened at the immediate earliest was sent to the President and Vice President of the Supreme Court Bar Association by seven members as follows: Request/Requisition to the President and Vice‑President to call an emergency meeting of the Executive Committee, Supreme Court Bar Association, through video‑conferencing, to consider the agenda and take suitable follow‑up action. Shri Dushyant Dave, President. Shri Kailash Vasdev, Vice President. Dear Mr. President and Mr. Vice President, We, the six undersigned members of the Executive Committee, consisting of three office‑bearers and three members, are sending in terms of Rule 12(h) of the SCBA Rules 2010 (as amended) this requisition with a request to convene an emergency meeting of the Executive Committee immediately through video‑conferencing mode to consider the following agenda: Agenda No.1. It has come to the notice of the members of the EC that Shri Ashok Arora, the Honorary Secretary, SCBA, has issued a notice dated 7th May, 2020 purportedly exercising and assuming power to himself under Rule 22 of the SCBA Rules, convening a General Body Meeting on 11th May, 2020 to consider an alleged requisition allegedly signed by 400 members for nullifying a validly passed EC resolution dated 26th February, 2020 and for removing Shri Dushyant Dave from the post of SCBA, as well as from the primary membership of the SCBA. The notice dated 07.05.2020 was never discussed in any meeting by the EC so far nor was it ever decided by the EC to issue any such notice. In fact, the notice allegedly signed and served by about 400 members was also never discussed in the EC. Rule 22 empowers only the Committee, i.e. the EC, to call a General Body Meeting upon requisition, and though the requisition is to be addressed to the Secretary, the Rule does not authorise or empower the Secretary to call such a General Body Meeting, and yet, without obtaining the approval of the EC, Shri Arora has caused havoc and consternation among thousands of SCBA members throughout the length and breadth of India by unilaterally calling this General Body Meeting. Agenda No.2: The EC should consider and decide to cancel the notice dated 7th May, 2020 issued by Shri Ashok Arora in contravention of Rule 22 of the SCBA Rules, and to intimate all members of the SCBA that the alleged General Body Meeting shall not be held as the EC has neither had occasion to study or examine any requisition issued in February 2020, nor to determine whether such requisition is valid, proper, or worthy of consideration by the General Body, as required by Rule 22. Agenda No.3: It has also come to the notice of some of the members of the EC that the conduct of Shri Ashok Arora as Secretary has exceedingly become obstructive, abusive, and now indulging in destructive acts of commission and omission by him. He has failed in his primary duty of maintaining proper records and minutes of meetings and proceedings of the EC as mandated under the Rules; he has resorted to highly objectionable, unparliamentary language, and even outright abusive language primarily against the President, but occasionally against some of the other office‑bearers/other EC members too; time and again when his actions have been found wanting by an office‑bearer or member, he has retaliated by threatening criminal prosecution or removal from the EC, and on one occasion unilaterally issued a show‑cause notice to the Treasurer; he has frequently taken far‑reaching actions suo moto, unilaterally, and without even consulting the EC or obtaining EC approval; he has sought to disown EC resolutions after they are passed, even though they were issued under his own signature; he has obstructed the farewell function for a highly respected Judge of the Supreme Court, organised under difficult circumstances during the lockdown period, not only by indulging in violent abuse and threats against the President and Vice President, but even by telephoning the honourable retiring Judge in order to try and disrupt the function; on one occasion when the Lecture Committee organised a lecture by Justice Deepak Gupta, which was entirely organised and paid for by the Lecture Committee without seeking any funds from the SCBA, Shri Arora misused the courtesy shown to him as Secretary and launched a verbal tirade against the President and Vice President from the podium, causing immense embarrassment to the audience and especially to the Chief Guest Justice Gupta and the Attorney General for India, Shri K. K. Venugopal. Agenda No.4: In the light of the above is it not imperative to immediately suspend Shri Ashok Arora from discharging the duties of Honorary Secretary SCBA and consider vesting all functions and powers of the Honorary Secretary as a pro‑term measure upon the Joint Secretary, with intimation and information to all authorities and bodies concerned. Agenda No.5: To consider conducting a one‑man enquiry to investigate the acts of commission and omission resorted to by Shri Ashok Arora and thereafter place the matter before the EC in order to take further necessary action as may be warranted. Agenda No.6: Any other matter incidental to the agenda with the permission of the Chair. In view of the above and considering the grave urgency and sensitivity of the matter we, the undersigned in our capacity as EC Committee Members invoking the power under Rule 12(h) of the SCBA Rules 2010 as amended hereby give notice for immediate convening of an emergent meeting of the EC. Thanking you. Mr. C. U. Singh, Mr. Colonel Balasubramanian, Mr. Anand R. Padmanabhan, Mr. Rohit Pandey, Ms. Ritu Bharadwaj, Ms. Shamsravish Rein, Mr. Meenesh Dubey., On receiving the aforesaid requisition the President invoking Rule 14 of the Supreme Court Bar Association Rules gave due notice for convening an urgent meeting of the Executive Committee to be held by video‑conferencing on Friday 8th May 2020 at 12.30 hours. The meeting was called to order after confirming that the chair and each member present was audible and understood video functioning. After calling the meeting to order, the President recused himself as the issues raised in the agenda were directed at him. The Vice President was asked to preside over the meeting. There was no objection from the members. The Vice President then presided over the meeting. The agenda was read out by the Chairman. After reading out the proposed agenda, members were asked to have their say on each agenda where, after the agenda was put to vote, Agenda Items No.1 and 2 were taken up together. Mr. Ashok Arora and some members made their address and were heard. The EC discussed items 1 and 2 on the agenda at length and heard the views and counter‑views (from Shri Arora). Members were of the view that the Honorary Secretary should have informed the Committee before calling a special meeting of the SCBA, more so when the requisition had been received by him in physical form and was available with him since the third week of March 2020. Further, the Honorary Secretary could not have called the special meeting of the Association without the concurrence of the EC. After hearing all members in great detail it was resolved by majority of members present and voting to declare that the notice dated 7th May, 2020 issued by Shri Ashok Arora purporting to act under Rule 22 was illegal and unauthorised as the EC alone has power to call any EGM/AGM and consequently resolved to cancel the EGM called on 11th May 2020 under the said notice and to inform the distinguished members of the SCBA accordingly. Agenda Items 3 and 4 were then taken together for consideration by the members. Mr. Ashok Arora objected to the said agenda being taken up or being framed. Members of the Committee were given full opportunity to put forth their views. The EC discussed these items dispassionately and seriously at great length, allowing full and proper opportunity to all members including Shri Ashok Arora to put their viewpoints. When the agenda were put to vote, the majority of the members after extensive debate resolved to approve agenda items 3 and 4. It was resolved by majority of the members present and voting that in view of the serious misconduct and act of indiscipline and unauthorised acts by Shri Arora as prima facie indicated in the notice calling for the meeting of the EC, Shri Arora be suspended as the Honorary Secretary of the SCBA and divested of his powers as the Secretary with immediate effect. It was further resolved that Shri Rohit Pandey, Joint Secretary would discharge all functions of the Secretary with immediate effect in consultation with the President of the SCBA. It was further resolved that Shri Pandey would discharge all duties, functions and obligations of the SCBA including and not limited to operating bank accounts, signing all documents, notices, pleadings on behalf of the Supreme Court Bar Association. Due intimation and information of this resolution be sent to all authorities concerned. Agenda Item No.5: Thereafter agenda Item 5 was taken up by inviting the views of the members. Majority of the members were of the view that any enquiry into the matter as mentioned should be held by a Committee to be constituted by three independent persons. They suggested an amendment to the proposed agenda by changing the constitution of the enquiry Committee. This amendment was accepted. The majority of the members present and voting resolved that an enquiry to investigate the acts of commission and omission by Shri Ashok Arora be conducted by a Committee of three members to be nominated by the President in consultation with the EC and thereafter the report of the enquiry be placed before the EC for taking necessary action as may be warranted. The President abstained from voting. The Vice President did not cast his vote as he chaired the meeting. The meeting ended with a vote of thanks to the Chair. 08.05.2020 signed/New Delhi Kailash Vasdev, Vice President, Chairman of the Meeting., Learned counsel for defendant No.1/Supreme Court Bar Association has objected to the maintainability of the present suit on the ground that the same is barred under Order XXIII Rule 1 of the Code of Civil Procedure and relies upon the decision of the Supreme Court in Sarguja Transport Services (supra). The plaintiff had filed a writ petition before the Supreme Court of India inter alia seeking quashing of the resolution dated 8th May, 2020 of the Executive Committee of defendant No.1 in terms whereof the plaintiff was suspended as Secretary of the Association, as void ab initio and ultra vires the Rules and Regulations of defendant No.1 Association along with directions to reinstate the plaintiff as the Secretary, SCBA for the remaining term for which he was elected. Before the said writ petition under Article 32 of the Constitution of India could be listed the plaintiff filed an application seeking withdrawal of the said writ petition on the ground that after the filing of the writ petition the defendant No.1 had issued the show‑cause notice to the plaintiff and had constituted a three‑member Committee. Therefore, the plaintiff sought to appear before the Committee and sought permission to withdraw the writ petition. However, before the said application was listed, the plaintiff filed the present suit and hence the plaintiff withdrew the writ petition on the ground that a suit had been filed. The present suit would not be barred on the ground that the plaintiff having withdrawn the earlier proceedings under Order XXIII Rule 1 of the Code of Civil Procedure without leave of the Court to file the present suit as the plaintiff withdrew the writ petition before the Supreme Court of India before it could even be taken up for hearing. Even in Sarguja Transport Services (supra) relied upon by learned counsel for SCBA it was held that where a petitioner withdraws a petition in the High Court under Articles 226/227 of the Constitution of India without permission to institute a fresh petition, remedy under Articles 226/227 of the Constitution of India would be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition, however, the remedies like filing of a suit or a writ petition before the Supreme Court of India under Article 32 of the Constitution of India would remain open to him. In the present case the plaintiff has not resorted to filing a fresh writ petition having withdrawn the earlier one without leave of the Court and has filed the present suit though for the same cause of action and is thus maintainable., While addressing arguments in the application the plaintiff has based his submission on Rule 35 of the Supreme Court Bar Association Rules and stated that the resolution dated 8th May, 2020 is contrary to and violative of Rule 35 of the Supreme Court Bar Association Rules. The Rules of the Supreme Court Bar Association relevant for the decision of this application being Rules 12, 14 and 35 are reproduced hereinafter: 12. MEETINGS The Committee shall ordinarily meet at least once every three months for dispatch of business. The Committee shall, subject to the control of the members in the General Meeting assembled, have the following powers: a) To maintain such establishments and staff for the Association as may be required from time to time. b) To appoint or suspend, dismiss or remove any member of the staff of the Association. c) To determine and regulate the remuneration and conditions of the services of the staff of the Association. d) To spend within the budgeted provisions such monies for the purposes of the Association as may be required from time to time. e) To make such bye‑laws and regulations as it may consider necessary or expedient to carry out the aims and objects of the Association. Such bye‑laws and regulations shall, however, be submitted for the approval of the members of the Association in the next General Body Meeting. f) To report to the General Body Meeting about its activities and the activities and work done by other committees at least once every year. g) To re‑constitute all committees at least once every year other than those that may have been elected by the members assembled in the General Body Meeting. h) The Committee shall normally transact its business by resolutions passed by the majority of the members present and voting. In case of equality of votes the President shall have a casting vote. It shall be open to the Committee to transact its business and to pass resolutions by means of circulars provided that if any three members of the Committee desire a particular matter to be brought in a meeting of the Committee such a matter shall be transacted in a meeting of the Committee. The President and, in his absence, the Vice‑President shall preside at all meetings of the Association and of the Executive Committee or other committees. In the absence of the President or the Vice‑President the members present shall elect one of them to preside over a meeting.
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If any question arises with respect to any matter not provided for in the rules or in the bye-laws made by the Executive Committee, such question shall, subject to the provisions of these rules, be decided by the President whose decision shall be binding unless the General Body of the members in a subsequent meeting otherwise decides. Regarding members: On receipt of a written complaint from any person as to unprofessional or improper conduct on the part of any member, the Secretary shall place it before the President, and if the President is of the opinion that it merits consideration, the Secretary shall call a meeting of the Committee as expeditiously as possible. The Committee or the Sub‑Committee constituted by it generally for the purpose of this rule or especially for any particular case will hold an inquiry into the complaint. If, on consideration of its own findings or of the report of the Sub‑Committee, the Committee is satisfied that there is a prima facie case against the member complained against, it shall direct that the complaint together with the report of the Committee or Sub‑Committee be placed before a General Meeting of the Association, provided always that where a prima facie case is made out against the member complained against the Committee or Sub‑Committee shall give such member a reasonable opportunity of being heard in person. The Association may by a resolution passed at such meeting expel or suspend for a specific period the member complained against, if in its opinion he is guilty of dishonorable conduct. Such resolution shall be voted up by ballot and shall be considered to be passed if supported by not less than two‑thirds of the members present and voting at such meeting, provided always that before such resolution is passed the member concerned shall be given a reasonable opportunity of being heard in person before the ballot by the General Meeting. A copy of the resolution shall, if the General Meeting so decides, be forwarded to the Secretary of the All India Bar Council or the Bar Council where such member may be enrolled., As noted above, Rule 35 of the Supreme Court Bar Association (SCBA) Rules relates to the suspension or expulsion of a member of the SCBA as a member of the said Association. Rule 35 of the SCBA Rules has no application to the suspension or termination of the status or position of a member of the SCBA as an office‑bearer of its Association. By the impugned resolution dated 8 May 2020 the plaintiff has not been either suspended or expelled as a member of the SCBA. The plaintiff continues to be a member of the SCBA and by the impugned resolution has been directed not to act in his capacity as the Secretary of the SCBA. Since Rule 35 of the SCBA Rules has no application to the facts of the present case, the residuary rule applicable would be Rule 14 under which the resolution has been passed by the Executive Committee., By the present suit the plaintiff seeks a decree of declaration and mandatory injunction and, in the present application, the prayer seeking a stay of the operation of the resolution dated 8 May 2020 is also in the nature of an interim mandatory injunction, thereby seeking a status quo ante position. Dealing with the relief of grant of mandatory injunction, the Supreme Court in the decision reported as 1990 (2) SCC 117 Dorab Cawasji Warden vs. Coomi Sorab Warden & Ors. laid down the principles as follows: The trial court gave an interim mandatory injunction directing respondent 4 not to continue in possession. There could be no doubt that the Supreme Court can grant such interlocutory mandatory injunction in certain special circumstances. It would be very useful to refer to some of the English cases which have given guidelines in granting such injunctions., In Shepherd Homes Ltd. v. Sandham [(1970) 3 All ER 402: (1970) 3 WLR 348] Megarry J. observed: On motion, as contrasted with the trial, the Supreme Court was far more reluctant to grant a mandatory injunction; in a normal case the Supreme Court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted, and this was a higher standard than was required for a prohibitory injunction., In one of the earliest cases, Rasul Karim v. Pirubhai Amirbhai [ILR (1914) 38 Bom 381: 16 Bom LR 288: 24 IC 625], Beaman, J. held that the courts in India have no power to issue a temporary injunction in a mandatory form, but Shah, J. who constituted a bench in that case did not agree with Beaman, J. In a later Division Bench judgment in Champsey Bhimji & Co. v. Jamna Flour Mills Co. Ltd. [(1914) 16 Bom LR 566: 28 IC 121] two learned Judges of the Bombay High Court took a different view from Beaman, J., and this view is now the prevailing view in the Bombay High Court. In M. Kandaswami Chetty v. P. Subramania Chetty [ILR (1918) 41 Mad 208: 1917 MWN 501: 41 IC 384], a Division Bench of the Madras High Court held that courts in India have the power by virtue of Order XXXIX Rule 2 of the Code of Civil Procedure to issue temporary injunctions in a mandatory form and differed from Beaman, J.'s view, accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. Ltd. In Israil v. Shamser Rahman [ILR (1914) 41 Cal 436: 18 CWN 176], it was held that the High Court was competent to issue an interim injunction in a mandatory form. The court further held that in granting an interim injunction the Supreme Court had to determine whether there was a fair and substantial question to be decided as to the rights of the parties and whether the nature and difficulty of the questions was such that it was proper for the injunction to be granted until the time for deciding them should arrive. The Supreme Court should consider where the balance of convenience lies and whether it is desirable that the status quo should be maintained. While accepting that it is not possible to say that in no circumstances will the courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. v. Art Pictures Ltd. [AIR 1956 Cal 428] a Division Bench was of the view that if a mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and not to establish a new state of things differing from the state which existed at the date when the suit was instituted., The relief of interlocutory mandatory injunctions is thus granted generally to preserve or restore the status quo of the last non‑contested status which preceded the pending controversy until the final hearing when full relief may be granted, or to compel the undoing of acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. Because granting such an injunction to a party who fails or would fail to establish his right at trial may cause great injustice or irreparable harm to the party against whom it was granted, and alternatively not granting it to a party who succeeds may equally cause great injustice or irreparable harm, the Supreme Court has evolved certain guidelines. Generally stated, these guidelines are: (1) the plaintiff has a strong case for trial, a higher standard than a prima facie case normally required for a prohibitory injunction; (2) it is necessary to prevent irreparable or serious injury which normally cannot be compensated in money; (3) the balance of convenience is in favour of the one seeking such relief., Being essentially an equitable relief, the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Supreme Court to be exercised in the light of the facts and circumstances of each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as a prerequisite for the grant or refusal of such injunctions would be a sound exercise of judicial discretion., Considering the fact that the plaintiff bases his case on the alleged violation of Rule 35 of the SCBA Rules and, as noted above by this Supreme Court, the plaintiff's case is not covered by Rule 35 of the SCBA Rules, the plaintiff has not made out a prima facie case, much less a strong prima facie case. This Supreme Court finds no merit in the application. The plaintiff has also relied on the decision in the case of Khwaja Nazir Ahmed, wherein the Privy Council held that an act can be performed only in the manner prescribed and in no other manner. As noted above, Rule 35 of the SCBA Rules having no application to the facts of the case, the defendant No. 1 Association has proceeded under Rule 14., The plaintiff has also contended that the composition of the Executive Committee which passed the impugned resolution was incomplete and thus not binding. The plaintiff argues that since seven members of the Executive Committee were interested for the reason that the requisition to the President was made by these seven members, they being non‑neutral members, their votes should not be counted. The plaintiff has not been able to point out any rule of the SCBA that participation of the members who have moved the issue before the Committee would vitiate the resolution. This argument of the plaintiff cannot be accepted prima facie, as merely because various office‑bearers take stands on various issues, their right to vote and participate in the meeting cannot be taken away., In S.P. Chengalvarya Naidu, relied upon by the plaintiff, the Supreme Court noted that a person whose case is based on falsehood has no right to approach the Court and can be summarily thrown out at any stage of the litigation. It was also held that a litigant who approaches the Court is bound to produce all documents executed by him which are relevant to the litigation, and if he withholds a vital document in order to gain advantage over the other side, he would be guilty of fraud on the Court as well as on the opposite party. In the present case, defendant No. 1 has filed no pleadings where facts have been concealed. If the plaintiff alleges that the acts of some members of the Executive Committee of the SCBA are mala fide, those allegations must be raised specifically and the parties against whom mala fides are alleged must be impleaded as defendants in the suit. The seven members of the Executive Committee have not been impleaded as parties., Since at this stage the Supreme Court is only required to take a prima facie view, it finds that the plaintiff has not made out any prima facie case in his favour for the grant of the injunction as prayed for. The application is dismissed.
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S. Manikumar, Chief Justice, has filed a writ petition seeking the following reliefs: Issue a writ of mandamus or any other appropriate writ, order or direction directing or compelling respondents 1 to 5 to take adequate and effective measures so that wild animals in the various forest divisions of Kerala are protected from attacks from the outside world; Issue a writ of mandamus or any other appropriate writ, order or direction directing or compelling respondents 1 to 5 to provide sufficient fodder and drinking water inside the forest so that these elephants and wild animals do not stray into inhabited areas; Issue a writ of mandamus or any other appropriate writ, order or direction directing or compelling respondents 2, 4 and 5 to have check dams and troughs filled with water inside the various forests in Kerala so as to enable the elephants and other animals to have sufficient food and water for their sustenance; Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to make clear demarcation between the boundaries of forests and private lands or highways and use protective devices at the boundaries to prevent wild animals from straying into human habitations., According to the petitioner, he is an Indian citizen residing in Ontario, Canada, where he is professionally employed. The petitioner submits that numerous instances in the history of Kerala show that due to absolute negligence of the Government and its officials, many wild animals have faced brutal attacks, which has compelled the petitioner to file this pro bono litigation before the Kerala High Court, seeking protection for animals living in the forest and a direction to the Government to take remedial measures. The petitioner is an avid animal lover involved in many philanthropic activities in various parts of India. A recent incident widely reported in the media on 27 May 2020 involved a pregnant elephant that succumbed to injuries caused by eating pineapple filled with crackers in the State of Kerala, prompting the petitioner to approach the Court., Referring to Article 48A of Part IV of the Constitution of India, the petitioner further submits that the State is bound to protect and safeguard the wildlife of the country. Article 51A of Part IV of the Constitution of India casts duties on every citizen of India, one of which is to protect and improve the natural environment and to have compassion for living creatures., The petitioner has produced exhibits P1 and P2, reports dated May 1999 and January 2016 respectively, which were submitted to the Government, against which no action has been taken., The petitioner contends that regarding damage to crops caused by wild animals, no study has been conducted to determine the causes of such damage or the measures that could be adopted by the Government to prevent wild animals from straying into inhabited areas. It is usually in summer that these wild animals stray into human habitations. One of the main reasons for the straying during summer is the lack of drinking water inside the forest, causing the animals to seek water in human habitations. Therefore, to ensure adequate water inside the forest, it is proper for the Government to construct check dams and troughs and ensure they are filled with water., The petitioner further contends that the menace of wild elephants straying into habitat areas occurs in many states of India. However, most states have taken measures to keep these wild animals confined within the forest, as they consider prevention better than cure. In the State of Kerala, steps are taken only when there is an attack by a pachyderm on a citizen., On 26 July 2022, the Court passed the following order: Chief Wild Life Warden, Forest Headquarters, Vazhuthacaud, Thiruvananthapuram 695001, respondent No.5, filed a counter affidavit, for which a reply dated 17 March 2021 was also filed by the writ petitioner. Referring to Exhibit P5 guidelines for Management of Human–Elephant Conflicts dated 06 October 2017 filed along with the reply affidavit, the learned Senior Counsel appearing for the petitioner submitted that the guidelines have to be implemented by the State Government., Notwithstanding the reliefs sought, the Court directed the learned Special Government Pleader to ascertain whether the guidelines are being followed and implemented by the State of Kerala., Sri. Nagaraj Narayanan, learned Special Government Pleader, submitted that the 2017 guidelines have been implemented and that an appropriate statement of facts along with supporting documents would be filed by 27 July 2022, and copies would be served in advance on the learned Senior Counsel appearing for the petitioner., Pursuant to the order, the Assistant Conservator of Forests and Liaison Officer, Forest Liaison attached to the Advocate General's Office, filed an affidavit dated 26 July 2022 on behalf of the Chief Wild Life Warden, Thiruvananthapuram, the fifth respondent, with proposals to deal with the human–wildlife conflict. The affidavit states that the respondent acted upon Exhibit P5 guidelines (Guidelines No.1/2016‑PE dated 06 October 2017 of the Project Elephant Division of the Ministry of Environment, Forest and Climate Change) and has taken appropriate action to reduce human–wildlife conflict in Kerala. The actions taken include: construction of 2,560 kilometres of solar‑powered fence, 511.22 kilometres of trench, 70 kilometres of elephant‑proof wall, 44 kilometres of crash‑guard rope fencing, 10 kilometres of rail fencing, 55 kilometres of hanging solar fence, 5.70 kilometres of bio‑fence, 15.12 kilometres of Kayyala, etc., to prevent wild animals, especially elephants, from entering human settlements and farmland; soil and moisture conservation activities, construction and maintenance of check dams and water holes, and eradication of exotic flora with planting of endemic species to improve habitats; annual fire‑protection activities to prevent casualties to wildlife and degradation of habitats; establishment of early warning systems along fringe areas bordering forest land in high conflict zones; deployment of fifteen rapid response teams in highly prone areas to drive away wild animals, especially elephants, straying into human settlements; tranquilisation and radio‑collaring of frequently crop‑raiding elephants to monitor their movements; deployment of Kumki elephants in Palakkad and Wayanad districts where human–elephant conflict is higher; tranquilisation, trapping, release or translocation of regular crop‑raiding, cattle‑lifting or human‑casualty‑causing wild animals to interior forest areas, with captivity in rehabilitation centres in rare cases; payment of compensation for death, injury or handicap caused by wildlife attacks as per Government Order (MS) 17/2018/F&WLD dated 05 April 2018; payment of compensation to farmers for twenty‑seven crops that sustain loss or damage due to wildlife attacks as per Government Orders (MS) 2/2015/F&WLD dated 08 January 2015 and (MS) 17/2018/F&WLD dated 05 April 2018; implementation of crop insurance by the Agricultural Department vide Government Order (MS) No. 37/2017/Agri dated 22 March 2017, covering twenty‑seven crops against wildlife loss for a low premium payable by farmers; formation of 261 Jana Jagratha Samithies in various panchayats bordering forest areas to mitigate human–animal conflict; relocation of people living in high‑conflict settlements inside forest based on consent in Wayanad Wildlife Sanctuary, with central assistance for resettling eight hundred families from fourteen settlements, of which three hundred thirty‑nine families have already been relocated; construction of an Elephant Rehabilitation Centre at Kottoor, Thiruvananthapuram Wildlife Division, covering 176 hectares (434.89 acres) for housing elephants individually and in groups, with the first phase completed; formulation of Captive Elephant Management Rules 2012 prescribing proper care and management of captive elephants, with the State currently having four hundred forty‑three captive elephants including those of the Devaswom Board and Forest Department; submission of a proposal under the Scheduled Tribe Sub‑Plan (Project Elephant) on Human‑Elephant Interface Management for Anayirangal, Chinnakanal region of Munnar Division for Rs 1.94 crore, submitted by the Divisional Forest Officer, Munnar Forest Division to the Ministry of Environment, Forest and Climate Change on 25 May 2022, pending sanction; preparation of a proposal dated May 2022 on mitigation of human–elephant conflict in the Athirapally‑Ezhattumugham region of Vazhachal and Malayattoor divisions for submission to NABARD for financial support of Rs 1,082.78 crore (Rupees ten crore eighty‑two lakh seventy‑eight thousand only), prepared by the Parambikulam Tiger Conservation Foundation, Parambikulam Tiger Reserve; preparation of a mitigation plan along the boundary of Aralam Wildlife Sanctuary for Rs 2,200 crore (Rupees twenty‑two crore only) by an expert committee appointed by the Government of Kerala, submitted on 2 December 2021 and pending consideration; preparation of a Multilayered Elephant Alert System for forest and railway officials of Walayar in Palakkad District; and submission of a comprehensive project dated August 2021 to mitigate human–animal conflict for the next five years with a budget of Rs 620 crore, submitted by the Kerala Forest and Wildlife Department to the State Government on 7 September 2021, pending consideration for raising funds with central assistance., Thus, all possible effective initiatives and steps have been taken by the State for redressing issues related to human–wildlife conflict in accordance with Exhibit P5 guidelines and other detailed studies. In view of the implementation of the guidelines and the steps taken, the Court observes that the proposals and actions should be expedited. Accordingly, the writ petition is disposed of.
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